[Federal Register Volume 69, Number 141 (Friday, July 23, 2004)]
[Rules and Regulations]
[Pages 43913-43916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16836]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 04-015]
RIN 1625-AA87


Security Zone: Coronado Bay Bridge, San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing permanent security zones 
extending 25 yards in and under the navigable waters around all piers,

[[Page 43914]]

abutments, fenders and pilings of the Coronado Bay Bridge. This action 
is required for national security reasons to protect the bridge from 
potential subversive actions. Persons and vessels are prohibited from 
entering into, transiting through, loitering, or anchoring within these 
security zones unless authorized by the Captain of the Port, or his 
designated representative.

DATES: This rule is effective August 23, 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 SD 04-015 and are available for inspection or 
copying at Coast Guard Marine Safety Office San Diego, Port Operations 
Department, 2716 North Harbor Drive, San Diego, California, 92101, 
between 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Todd Taylor, USCG, 
c/o U.S. Coast Guard Captain of the Port, telephone (619) 683-6495.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On January 16, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone: Coronado Bay Bridge, San Diego, CA'' 
in the Federal Register (69 FR 2554). We received no letters commenting 
on the proposed rule. No public meeting was requested, and none was 
held. COTP San Diego issued a temporary final rule (TFR) for this 
security zone that was effective November 7, 2003, to May 1, 2004 (68 
FR 67946, December 5, 2003). No comments or letters were received as a 
result of the TFR.

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 October 
2002 attack of a tank vessel off the coast of Yemen and the 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 as evidenced by the 
September 11, 2001, attacks and that such disturbances continue 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); Continuation of 
the National Emergency With Respect To Persons Who Commit, Threaten To 
Commit, Or Support Terrorism (67 FR 59447, September 20, 2002). 
Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag 
and Effective U.S. controlled Vessels and other Maritime Interests, 
detailing the current threat of attack, MARAD 02-07 (October 10, 2002).
    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 Coronado Bridge would have on the 
public interest, the Coast Guard proposes to establish security zones 
around the Coronado Bridge. These security zones would help the Coast 
Guard to prevent vessels or persons from engaging in terrorist actions 
against these bridges. Due to these heightened security concerns and 
the catastrophic impact a terrorist attack on these bridges would have 
on the public transportation system and surrounding areas and 
communities, security zones are prudent for these structures.
    U.S. Coast Guard personnel will enforce this security zone. The 
Coast Guard may be assisted by other Federal, State, county, municipal 
or private agencies, including the Coast Guard Auxiliary. 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 $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.
    This regulation is promulgated under the authority of 33 U.S.C. 
1225 in addition to the authority contained in 50 U.S.C. 191 and 33 
U.S.C. 1231.

Discussion of Comments and Changes

    We received no comments on our proposed rule. Therefore, our final 
rule remains the same as our proposed rule.

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).
    The anticipated economic impact of this rule is so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is deemed unnecessary. Although the rule restricts access to 
portions of the navigable waterways around the bridge, the effect of 
this regulation will not be significant because: (i) The zones would 
encompass only a small portion of the waterway; (ii) vessels would be 
able to pass safely around the zones; and (iii) vessels would 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 sizes of the security zones are the minimum necessary to 
provide adequate protection for the bridges, vessels operating in the 
vicinity, their crew and

[[Page 43915]]

passengers, adjoining areas and the public. The entities most likely to 
be affected are commercial vessels transiting the main ship channel en 
route the southern San Diego Bay and Chula Vista ports 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 
would not have a significant economic impact on a substantial number of 
small entities. The security zones would not have a significant 
economic impact on a substantial number of small entities for several 
reasons: small vessel traffic could pass safely around the security 
zones and vessels engaged in recreational activities, sightseeing and 
commercial fishing would have ample transit area outside of the 
security zones to engage in these activities. Small entities and the 
maritime public would 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 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.

Collection of Information

    This rule would call 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 would not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would 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 would 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 would 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.

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.  165.1110 to read as follows:


Sec.  165.1110  Security Zone: Coronado Bay Bridge, San Diego, CA.

    (a) Location. All navigable waters of San Diego Bay, from the 
surface to the sea floor, within 25 yards of all piers, abutments, 
fenders and pilings of the Coronado Bay Bridge. These security zones 
will not restrict the main navigational channel nor will it restrict 
vessels from transiting through the channel.
    (b) Regulations. (1) Under Sec.  165.33, entry into, transit 
through, loitering, or anchoring within any of these security zones by 
all persons and vessels is prohibited, unless authorized by the Captain 
of the Port, or his designated representative. Mariners seeking 
permission to transit through a security zone may request authorization 
to do so from Captain of the Port or his designated representative. The 
Coast

[[Page 43916]]

Guard can be contacted on San Diego Bay via VHF-FM channel 16.
    (2) Vessels may enter a security zone if it is necessary for safe 
navigation and circumstances do not allow sufficient time to obtain 
permission from the Captain of the Port.

    Dated: July 9, 2004.
Stephen P. Metruck,
Commander, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 04-16836 Filed 7-22-04; 8:45 am]
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