[Federal Register Volume 69, Number 118 (Monday, June 21, 2004)]
[Rules and Regulations]
[Pages 34280-34283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13974]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-009]
RIN 1625-AA00


Security Zones; San Francisco Bay, San Francisco, CA and Oakland 
CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing fixed security zones in areas 
of the San Francisco Bay adjacent to San Francisco International 
Airport and Oakland International Airport. These security zones are 
necessary to ensure public safety and prevent sabotage or terrorist 
acts at these airports. Entry into these security zones is prohibited, 
unless specifically authorized by the Captain of the Port San Francisco 
Bay, or his designated representative.

DATES: This rule is effective August 1, 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 03-009 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 September 21, 2001, we issued a temporary final rule under 
docket COTP San Francisco Bay 01-009, and published that rule in the 
Federal Register (66 FR 54663, Oct. 30, 2001). That rule (codified as 
33 CFR 165.T11-095) established a security zone extending 1800 yards 
seaward from the Oakland airport shoreline and a security zone 
extending 2000 yards seaward from the San Francisco airport shoreline. 
Upon further reflection, and after discussion with airport officials 
and members of the public, we issued a new temporary rule in Title 33 
of the Code of Federal Regulations. That rule (67 FR 5482, Feb. 6, 
2002, codified as 33 CFR 165.T11-097) reduced the size of the security 
zones to 1000 yards seaward from both the Oakland and San Francisco 
airport shorelines.
    We received several written comments about the 1000-yard security 
zones established by that rule (33 CFR 165.T11-097). Virtually all of 
those comments urged a reduction in size of the security zones in order 
to allow increased public access to San Francisco Bay for fishing, 
windsurfing and similar uses. As a result, we issued a new temporary 
rule (67 FR 44566, July 3, 2002) that further reduced the size of the 
security zones to 200 yards seaward from both the Oakland and San 
Francisco airport shorelines. That rule (codified as 33 CFR 165.T11-
086) expired on December 21, 2002.
    Since the time that the security zones were allowed to expire, 
there were several security incursions involving personnel gaining 
access to the airports from boats. In addition, the Department of 
Homeland Security in consultation with the Homeland Security Council, 
raised the national threat level on December 21, 2003, and since then, 
from an Elevated to High risk of terrorist attack based on intelligence 
indicating that Al-Qaeda was poised to launch terrorist attacks against 
U.S. interests. To address these security concerns and to take steps to 
prevent the catastrophic impact that a terrorist attack against one of 
these airports would have on the public interest, we published a notice 
of proposed rulemaking (NPRM) entitled ``Security Zones; San Francisco 
Bay, San Francisco, CA and Oakland, CA'' in the Federal Register (69 FR 
2320, January 15, 2004) proposing to establish permanent security zones 
extending approximately 200 yards seaward around the Oakland and San 
Francisco airports. 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 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 $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

[[Page 34281]]

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 would 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 
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 these airports would have on the 
public, the Coast Guard is establishing two fixed security zones within 
the navigable waters of San Francisco Bay extending approximately 200 
yards seaward from the shorelines of the Oakland International Airport 
and the San Francisco International Airport. The two security zones are 
designed to provide increased security for the airports, while 
minimizing the impact to vessel traffic, fishing, windsurfing and other 
activities upon San Francisco Bay. Two hundred yards from the shoreline 
is estimated to be an adequate zone size to provide increased security 
for each airport by providing a standoff distance for blast and 
collision, a surveillance and detection perimeter, and a margin of 
response time for security personnel. Buoys will be installed by the 
respective airports to indicate the perimeter of each of the security 
zones.
    This rule, for security reasons, will 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 one of these airports would have on the public, the 
transportation system, and surrounding areas and communities, security 
zones are prudent for these airports.

Discussion of Comments and Changes

    We received no letters commenting on the proposed rule. No public 
hearing was requested, and none was held. The only change made in this 
final rule is a minor correction to the last geographical coordinate 
used to describe the security zone around the San Francisco 
International Airport. A more accurate charting program than was 
originally used revealed that the latitude and longitude used in the 
NPRM indicates a position slightly offshore from the intended on-shore 
position. This change is not considered significant, and the general 
description of the security zones is not effected.

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 regulation restricts access to the 
zones, the effect of this regulation is not significant because: (i) 
These security zones are established in an area of the San Francisco 
Bay that is seldom used, (ii) the zones encompass only a small portion 
of the waterway; (iii) 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 security zones is the minimum necessary to provide 
adequate protection for the San Francisco International Airport and the 
Oakland International Airport. The entities most likely to be affected 
are small recreational vessel traffic engaged in fishing or sightseeing 
activities.

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: these security zones do not occupy an 
area of the San Francisco Bay that is frequently transited, small 
vessel traffic is able to 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. Buoys are being installed to mark the perimeter of the 
security zone at each airport and 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 (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 Cast Guard, call 1-800-REG-FAIR 
(1-888-734-3247).

[[Page 34282]]

Collection of Information

    This proposed 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 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.  165.1192 to read as follows:


Sec.  165.1192  Security Zones; Waters surrounding San Francisco 
International Airport and Oakland International Airport, San Francisco 
Bay, California.

    (a) Locations. The following areas are security zones:
    (1) San Francisco International Airport Security Zone. This 
security zone includes all waters extending from the surface to the sea 
floor within approximately 200 yards seaward from the shoreline of the 
San Francisco International Airport and encompasses all waters in San 
Francisco Bay within a line connecting the following geographical 
positions--

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
37[deg]36'19'' N                            122[deg]22'36'' W
37[deg]36'45'' N                            122[deg]122'18'' W
37[deg]36'26'' N                            122[deg]21'30'' W
37[deg]36'31'' N                            122[deg]21'21'' W
37[deg]36'17'' N                            122[deg]20'45'' W
37[deg]36'37'' N                            122[deg]20'40'' W
37[deg]36'50'' N                            122[deg]21'08'' W
37[deg]37'00'' N                            122[deg]21'12'' W
37[deg]37'21'' N                            122[deg]21'53'' W
37[deg]37'39'' N                            122[deg]21'44'' W
37[deg]37'56'' N                            122[deg]21'51'' W
37[deg]37'50'' N                            122[deg]22'20'' W
37[deg]38'25'' N                            122[deg]22'54'' W
37[deg]38'23'' N                            122[deg]23'01'' W
------------------------------------------------------------------------


and along the shoreline back to the beginning point.
    (2) Oakland International Airport Security Zone. This security zone 
includes all waters extending from the surface to the sea floor within 
approximately 200 yards seaward from the shoreline of the Oakland 
International Airport and encompasses all waters in San Francisco Bay 
within a line connecting the following geographical positions--

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
37[deg]43'35'' N                            122[deg]15'00'' W
37[deg]43'40'' N                            122[deg]15'05'' W
37[deg]43'34'' N                            122[deg]15'12'' W
37[deg]43'24'' N                            122[deg]15'11'' W
37[deg]41'54'' N                            122[deg]13'05'' W
37[deg]41'51'' N                            122[deg]12'48'' W
37[deg]41'53'' N                            122[deg]12'44'' W
37[deg]41'35'' N                            122[deg]12'18'' W
37[deg]41'46'' N                            122[deg]12'08'' W
37[deg]42'03'' N                            122[deg]12'34'' W
37[deg]42'08'' N                            122[deg]12'32'' W
37[deg]42'35'' N                            122[deg]12'30'' W
37[deg]42'40'' N                            122[deg]12'06'' W
------------------------------------------------------------------------


and along the shoreline back to the beginning point.
    (b) Regulations. (1) Under Sec.  165.33, 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.

[[Page 34283]]

    (2) Persons desiring to transit the area of a 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 
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: June 3, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-13974 Filed 6-18-04; 8:45 am]
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