[Federal Register Volume 69, Number 47 (Wednesday, March 10, 2004)]
[Rules and Regulations]
[Pages 11314-11317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5349]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-029]
RIN 1625-AA00


Security Zones; San Francisco Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing fixed security zones extending 
25 yards in the U.S. navigable waters around all piers, abutments, 
fenders and pilings of the Golden Gate Bridge and the San Francisco-
Oakland Bay Bridge, in San Francisco Bay, California. These security 
zones are needed for national security reasons to protect the public 
and ports from potential subversive acts. Entry into these security 
zones is prohibited, unless doing so is necessary for safe navigation, 
to conduct official business such as scheduled maintenance or retrofit 
operations, or unless specifically authorized by the Captain of the 
Port San Francisco Bay or his designated representative.

DATES: This rule is effective April 9, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket 03-029 and are available for inspection or copying 
at the Waterways Management Branch between 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Doug Ebbers, Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, (510) 437-3073.

[[Page 11315]]


SUPPLEMENTARY INFORMATION:

Regulatory Information

    On March 19, 2003, we published a rule in the Federal Register (68 
FR 13228) creating temporary Sec.  165.T11-078 of Title 33 of the Code 
of Federal Regulations (CFR). Under temporary Sec.  165.T11-078, which 
expired at 11:59 p.m. P.d.t. on September 30, 2003, the Coast Guard 
established 25-yard fixed security zones around all piers, abutments, 
fenders and pilings of the Golden Gate Bridge and the San Francisco-
Oakland Bay Bridge, San Francisco Bay, California.
    On September 25, 2003, a change in effective period temporary rule 
was published in the Federal Register (68 FR 55312) under the same 
previous temporary section 165.T11-078, extending the rule to 11:59 
p.m. P.s.t. on March 31, 2004.
    On November 25, 2003, we published a notice of proposed rulemaking 
(NPRM) in the Federal Register (68 FR 66064), proposing to establish 
permanent, fixed security zones extending 25 yards in the U.S. 
navigable waters around all piers, abutments, fenders and pilings of 
the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San 
Francisco Bay, California. We received no letters commenting on the 
proposed rule. No public hearing was requested, and none was held.

Penalties for Violating Security Zone

    Vessels or persons violating this section will be subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 
U.S.C. 1232, any violation of the security zones described herein, is 
punishable by civil penalties (not to exceed $27,500 per violation, 
where each day of a continuing violation is a separate violation), 
criminal penalties (imprisonment up to 6 years and a maximum fine of 
$250,000), and in rem liability against the offending vessel. Any 
person who violates this section, using a dangerous weapon, or who 
engages in conduct that causes bodily injury or fear of imminent bodily 
injury to any officer authorized to enforce this regulation, also faces 
imprisonment up to 12 years. Vessels or persons violating this section 
are also subject to the penalties set forth in 50 U.S.C. 192: seizure 
and forfeiture of the vessel to the United States, a maximum criminal 
fine of $10,000, and imprisonment up to 10 years.
    The Captain of the Port will enforce these zones and may enlist the 
aid and cooperation of any Federal, State, county, municipal, and 
private agency to assist in the enforcement of the regulation.

Background and Purpose

    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia, and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Afghanistan and 
the conflict in Iraq have made it prudent for U.S. ports to be on a 
higher state of alert because Al-Qaeda and other organizations have 
declared an ongoing intention to conduct armed attacks on U.S. 
interests worldwide.
    In its effort to thwart terrorist activity, the Coast Guard has 
increased safety and security measures on U.S. ports and waterways. As 
part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 
99-399), Congress amended section 7 of the Ports and Waterways Safety 
Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, 
including the establishment of security and safety zones, to prevent or 
respond to acts of terrorism against individuals, vessels or public or 
commercial structures. The Coast Guard also has authority to establish 
security zones pursuant to the Act of June 15, 1917, as amended by the 
Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing 
regulations promulgated by the President in subparts 6.01 and 6.04 of 
part 6 of title 33 of the Code of Federal Regulations.
    In this particular rulemaking, to address the aforementioned 
security concerns and to take steps to prevent the catastrophic impact 
that a terrorist attack against the Golden Gate Bridge or San 
Francisco-Oakland Bay Bridge would have on the public, the Coast Guard 
is establishing fixed security zones extending 25 yards in the U.S. 
navigable waters around all piers, abutments, fenders and pilings. 
These security zones help the Coast Guard to prevent vessels or persons 
from engaging in terrorist actions against these two bridges. In 
addition to restricting access to critical parts of bridge structures, 
these security zones provide necessary standoff distance for blast and 
collision, a surveillance and detection perimeter, and a margin of 
response time for security personnel.
    This rule prohibits entry of any vessel or person inside the 
security zone without specific authorization from the Captain of the 
Port or his designated representative. Due to heightened security 
concerns, and the catastrophic impact a terrorist attack on one of 
these bridges would have on the public, the transportation system, and 
surrounding areas and communities, security zones are prudent for these 
structures.

Discussion of Comments and Changes

    We received no letters commenting on this rule. No public hearing 
was requested, and none was held. Accordingly, we have not changed our 
final rule from the rule we proposed in November 2003.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary. Although this rule restricts access to the 
waters encompassed by the security zones, the effect of this rule is 
not significant because: (i) the zones encompass only a small portion 
of the waterway; (ii) vessels are able to pass safely around the zones; 
and (iii) vessels may be allowed to enter these zones on a case-by-case 
basis with permission of the Captain of the Port or his designated 
representative.
    The size of the zones is the minimum necessary to provide adequate 
protection for the bridges. The entities most likely to be affected are 
commercial vessels transiting the main ship channel en route to the San 
Francisco Bay and Delta ports, fishing vessels, and pleasure craft 
engaged in recreational activities and sightseeing.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. We

[[Page 11316]]

expect this rule may affect owners and operators of private vessels, 
some of which may be small entities, intending to fish or sightsee near 
bridge pilings or abutments affected by these security zones. The 
security zones will not have a significant economic impact on a 
substantial number of small entities for several reasons: small vessel 
traffic will be able to pass safely around the area and vessels engaged 
in recreational activities, sightseeing and commercial fishing have 
ample space outside of the security zones to engage in these 
activities. Small entities and the maritime public will be advised of 
these security zones via public notice to mariners.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because we are establishing a security 
zone. An ``Environmental Analysis Check List'' and a ``Categorical 
Exclusion Determination'' (CED) are available in the docket where 
indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.1187, to read as follows:


Sec.  165.1187  Security Zones; Golden Gate Bridge and the San 
Francisco-Oakland Bay Bridge, San Francisco Bay, California.

    (a) Location. All waters extending from the surface to the sea 
floor, within 25 yards of all piers, abutments, fenders and pilings of 
the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, in San 
Francisco Bay, California.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into these security zones is 
prohibited, unless doing so is necessary for safe navigation, to 
conduct official business such as scheduled maintenance or retrofit 
operations, or unless specifically authorized by the Captain of the 
Port San Francisco Bay or his designated representative.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 415-399-3547 or on 
VHF-FM channel 16 (156.8 MHz) to seek permission to transit the area. 
If permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his or her designated 
representative.
    (c) Enforcement. All persons and vessels shall comply with the

[[Page 11317]]

instructions of the Coast Guard Captain of the Port or the designated 
on-scene patrol personnel. Patrol personnel comprise commissioned, 
warrant, and petty officers of the Coast Guard onboard Coast Guard, 
Coast Guard Auxiliary, local, state, and federal law enforcement 
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by 
siren, radio, flashing light, or other means, the operator of a vessel 
shall proceed as directed.

    Dated: February 25, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-5349 Filed 3-9-04; 8:45 am]
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