[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Rules and Regulations]
[Pages 31294-31297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12537]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 04-012]
RIN 1625-AA00


Security Zone; Suisun Bay, Concord, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary security zone in 
the navigable waters of the United States adjacent to Pier Three at the 
Military Ocean Terminal Concord (MOTCO), California (formerly United 
States Naval Weapons Center Concord, California). In light of recent 
terrorist actions against the United States, this security zone is 
necessary to ensure the safe loading of military equipment and to 
ensure the safety of the public from potential subversive acts. The 
security zone will prohibit all persons and vessels from entering, 
transiting through or anchoring within a portion of Suisun Bay within 
500 yards of Pier Three at the MOTCO facility unless authorized by the 
Captain of the Port (COTP) or his designated representative.

DATES: This rule is effective from 7 a.m. P.d.t. on May 28, 2004, to 
11:59 p.m. P.d.t. on June 4, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket (COTP San Francisco Bay 04-012) and are 
available for inspection or copying at Coast Guard Marine Safety Office 
San Francisco Bay, Coast Guard Island, Alameda, California 94501, 
between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Ensign John Bannon, U.S. Coast Guard 
Marine Safety Office San Francisco Bay, at (510) 437-3082.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a NPRM because the duration of the NPRM 
rulemaking process would extend beyond the actual period of the 
scheduled operations and defeat the protections afforded by the 
temporary rule to the cargo vessels, their crews, the public and 
national security.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register as the schedule and other 
logistical details were not known until a date fewer than 30 days prior 
to the start date of the military operation. Delaying this rule's 
effective date would be contrary to the public interest since the 
safety and security of the people, ports, waterways, and properties of 
the Port Chicago and Suisun Bay areas would be jeopardized without the 
protection afforded by this security zone.

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.
    The threat of maritime attacks is real as evidenced by the attack 
on the USS Cole and the subsequent attack in

[[Page 31295]]

October 2002 against a tank vessel off the coast of Yemen. These 
threats manifest a continuing threat to U.S. assets as described in the 
President's finding in Executive Order 13273 of August 21, 2002 (67 FR 
56215, September 3, 2002), that the security of the U.S. is endangered 
by the September 11, 2001, attacks and that such aggression continues 
to endanger the international relations of the United States. See also 
Continuation of the National Emergency with Respect to Certain 
Terrorist Attacks (67 FR 58317, September 13, 2002), and Continuation 
of the National Emergency with Respect to Persons Who Commit, Threaten 
To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002). The 
U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. 
shipping interests to maintain a heightened status of alert against 
possible terrorist attacks. MARAD more recently issued Advisory 03-05 
informing operators of maritime interests of increased threat 
possibilities to vessels and facilities and a higher risk of terrorist 
attack to the transportation community in the United States. The 
ongoing foreign hostilities have made it prudent for U.S. ports and 
waterways to be on a higher state of alert because the Al-Qaeda 
organization and other similar 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, United States Army officials have requested that the 
Captain of the Port, San Francisco Bay, California, establish a 
temporary security zone in the navigable waters of the United States 
within 500 yards of Pier Three at the Military Ocean Terminal Concord 
(MOTCO), California, to safeguard vessels, cargo and crew engaged in 
military operations. This temporary security zone is necessary to 
safeguard the MOTCO terminal and the surrounding property from sabotage 
or other subversive acts, accidents or criminal acts. This zone is also 
necessary to protect military operations from compromise and 
interference and to specifically protect the people, ports, waterways, 
and properties of the Port Chicago and Suisun Bay areas.

Discussion of Rule

    In this temporary rule, the Coast Guard is establishing a fixed 
security zone encompassing the navigable waters, extending from the 
surface to the sea floor, within 500 yards of any portion of Pier Three 
at Military Ocean Terminal Concord (MOTCO), California. There are three 
existing piers at the MOTCO facility. Originally there were four piers, 
numbered One through Four from west to east, but Pier One was destroyed 
in an explosion in 1944. Therefore, Pier Three is the middle pier of 
the three remaining piers. The area encompassed by this security zone 
includes a portion of both the Port Chicago Reach and the Roe Island 
Channel sections of the deepwater channel. Persons and vessels are 
prohibited from entering, transiting through or anchoring within this 
security zone unless authorized by the Captain of the Port (COTP) or 
his designated representative.
    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 zone described herein, is 
punishable by civil penalties (not to exceed $32,500 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, will also 
face 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, and a civil 
penalty of not more than $25,000 for each day of a continuing 
violation.
    The Captain of the Port will enforce this zone and may enlist the 
aid and cooperation of any Federal, State, county, municipal, and 
private agency to assist in the enforcement of the regulation. If the 
need for this security zone ends before the scheduled termination time, 
the Captain of the Port will cease enforcement of the security zone and 
will announce that fact via Broadcast Notice to Mariners.

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).
    Although this regulation restricts access to a portion of navigable 
waters, the effect of this regulation will not be significant because 
mariners will be advised about the security zone via public notice to 
mariners, and the zone will encompass only a small portion of the 
waterway for a short duration. In addition, vessels and persons may be 
allowed to enter this zone on a case-by-case basis with permission of 
the Captain of the Port or his designated representative.
    The size of the zone is the minimum necessary to provide adequate 
protection for MOTCO, vessels engaged in operations at MOTCO, their 
crews, other vessels operating in the vicinity, and the public. The 
entities most likely to be affected are commercial vessels transiting 
to or from Suisun Bay via the Port Chicago Reach section of the 
channel.

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. This rule will affect the following entities, some of which 
may be small entities: the owners and operators of vessels intending to 
anchor or transit to or from Suisun Bay via the Port Chicago Reach 
section of the channel. Although the security zone will occupy a 
section of the navigable channel (Port Chicago

[[Page 31296]]

Reach) adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels 
may receive authorization to transit through the zone by the Captain of 
the Port or his designated representative on a case-by-case basis. 
Additionally, vessels engaged in recreational activities, sightseeing 
and commercial fishing will have ample space outside of the security 
zone to engage in those activities. Small entities and the maritime 
public will be advised of this security zone 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 offer to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. If the 
rule will affect your small business, organization, or government 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
    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.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' will be available in the docket 
where located 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.T11-017 to read as follows:


Sec.  165.T11-017  Security Zone; Navigable Waters of the United States 
Surrounding Pier Three at Military Ocean Terminal Concord (MOTCO), 
Concord, California.

    (a) Location. The security zone, which will be marked by lighted 
buoys, will encompass the navigable waters, extending from the surface 
to the sea floor, within 500 yards of any portion of Pier Three at 
Military Ocean Terminal Concord (MOTCO), California.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entering, transiting through or anchoring in 
this zone is prohibited unless authorized by the Coast Guard Captain of 
the Port, San Francisco Bay, or his designated representative.
    (2) Persons desiring to transit the area of this security zone may 
contact the Patrol Commander on scene on VHF-FM channel 13 or 16 or the 
Captain of the Port at telephone number 415-399-3547 to seek permission 
to transit the area. If permission is granted, all

[[Page 31297]]

persons and vessels must comply with the instructions of the Captain of 
the Port or his designated representative.
    (c) Effective period. This section becomes effective at 7 a.m. 
p.d.t. on May 28, 2004, and terminates at 11:59 p.m. p.d.t on June 4, 
2004. If the need for this security zone ends before the scheduled 
termination time, the Captain of the Port will cease enforcement of the 
security zone and will announce that fact via Broadcast Notice to 
Mariners.

    Dated: May 25, 2004.
Steven J. Boyle,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco 
Bay, California.
[FR Doc. 04-12537 Filed 6-2-04; 8:45 am]
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