[Federal Register Volume 69, Number 109 (Monday, June 7, 2004)]
[Rules and Regulations]
[Pages 31737-31739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12825]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-026]
RIN 1625-AA00


Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a security zone extending 
approximately 150 feet into the navigable waters of the Oakland 
Estuary, Alameda, California, surrounding the United States Coast Guard 
Island Pier. This action is necessary to provide for the security of 
the military service members on board vessels moored at the pier and 
the government property associated with these valuable national assets. 
This security zone prohibits all persons and vessels from entering, 
transiting through or, anchoring within a portion of the Oakland 
Estuary surrounding the Coast Guard Island Pier unless authorized by 
the Captain of the Port (COTP) or his designated representative.

DATES: This rule is effective July 7, 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 COTP 03-026 and are available for inspection or 
copying at the Waterways Branch of the 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: Lieutenant Doug Ebbers, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On January 29, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; San Francisco Bay, Oakland Estuary, 
Alameda, CA'' in the Federal Register (69 FR 4267) proposing to 
establish a permanent security zone extending approximately 150 feet 
into the navigable waters of the Oakland Estuary surrounding the United 
States Coast Guard Island Pier. We received one letter commenting on 
the proposed rule. No public hearing was requested, and none was held.

Penalties for Violating Security Zone

    Vessels or persons violating this security zone 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, 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 this zone and may enlist the 
aid and cooperation of any Federal, State, county, municipal, or 
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.
    The threat of maritime attacks is real as evidenced by the attack 
on the USS Cole and the subsequent attack in 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 and to take steps to prevent a terrorist attack 
against a Coast Guard Cutter, the Coast Guard is establishing a 
permanent, fixed security zone around and under the United States Coast 
Guard Island Pier that encompasses all

[[Page 31738]]

waters of the Oakland Estuary, extending from the surface to the sea 
floor, within approximately 150 feet of the pier. The perimeter of the 
security zone commences at a point on land approximately 150 feet north 
of the northern end of the Coast Guard Island Pier at latitude 
37[deg]46'53.6'' N and longitude 122[deg]15'06.1'' W; thence out to the 
edge of the charted channel at latitude 37[deg]46'52.3'' N and 
longitude 122[deg]15'07.9'' W; thence along the edge of the charted 
channel to latitude 37[deg]46'42.2'' N and longitude 
122[deg]14'50.5''W; thence to a point on land approximately 150 feet 
south of the southern end of the Coast Guard Island Pier at latitude 
37[deg]46'44.8'' N and longitude 122[deg]4'48.8'' W; thence along the 
shoreline back to the beginning point, latitude 37[deg]46'53.6'' N and 
longitude 122[deg]15'06.1'' W.
    This security zone is needed for national security reasons to 
protect Coast Guard Cutters, their crews, the public, transiting 
vessels, and adjacent waterfront facilities from potential subversive 
acts, accidents or other events of a similar nature. This security zone 
will help the Coast Guard to prevent vessels or persons from engaging 
in terrorist actions against Coast Guard Cutters that moor at the Coast 
Guard Island Pier by providing a surveillance and detection perimeter, 
and a margin of response time for security personnel. This rule, for 
security reasons, would prohibit 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 a Coast 
Guard Cutter would have on the crew on board and surrounding government 
property, a security zone is prudent for this location.

Discussion of Comments and Changes

    No public hearing was requested, and none was held. We received one 
comment on the proposed rule, which pointed out that two of the four 
geographical positions used in the NPRM to indicate the corner points 
of the 150-foot security zone around the Coast Guard Island Pier were 
incorrect. As a result, we have corrected the geographical positions to 
accurately reflect the 150-foot security zone in this final rule. This 
change is not considered significant since the general description of 
the security zone was correct in the NPRM and has not been changed.

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 the zone, the effect 
of this regulation is not significant because: (i) The zone encompasses 
only a small portion of the waterway; (ii) the zone does not encroach 
into the charted channel; (iii) vessels are able to pass safely around 
the zone; and (iv) vessels will 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 security zone is the minimum necessary to provide 
adequate protection for Coast Guard Cutters, their crews, other vessels 
operating in the vicinity, adjoining areas and the public. The entities 
most likely to be affected are tug and barge companies transiting the 
Oakland Estuary 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 for several reasons: The zone does not extend into the charted 
channel, vessel traffic can pass safely around the area, and vessels 
engaged in recreational activities, sightseeing and commercial fishing 
have ample space outside of the security zone to engage in these 
activities. Small entities and the maritime public would 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 (Pub. L. 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 1-800-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.

[[Page 31739]]

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 might 
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 draft 
``Categorical Exclusion Determination'' (CED) will be available in the 
docket where located under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports 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.  165.1190 to read as follows:


Sec.  165.1190  Security Zone; San Francisco Bay, Oakland Estuary, 
Alameda, CA.

    (a) Location. The following area is a security zone: all navigable 
waters of the Oakland Estuary, California, from the surface to the sea 
floor, 150 feet into the Oakland Estuary surrounding the Coast Guard 
Island Pier. The perimeter of the security zone commences at a point on 
land approximately 150 feet north of the northern end of the Coast 
Guard Island Pier at latitude 37[deg]46'53.6'' N and longitude 
122[deg]15'06.1'' W; thence out to the edge of the charted channel at 
latitude 37[deg]46'52.3'' N and longitude 122[deg]15'07.9'' W; thence 
along the edge of the charted channel to latitude 37[deg]46'42.2'' N 
and longitude 122[deg]14'50.5'' W; thence to a point on land 
approximately 150 feet south of the southern end of the Coast Guard 
Island Pier at latitude 37[deg]46'44.8'' N and longitude 
122[deg]14'48.8'' W; thence along the shoreline back to the beginning 
point, latitude 37[deg]46'53.6'' N and longitude 122[deg]15'06.1'' W.
    (b) Regulations. (1) Under Sec.  165.33, entry into or remaining 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 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 designated 
representative.

    Dated: May 5, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-12825 Filed 6-4-04; 8:45 am]
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