[Federal Register Volume 69, Number 176 (Monday, September 13, 2004)]
[Proposed Rules]
[Pages 55125-55128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20544]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 04-007]
RIN 1625-AA87


Security Zone; Suisun Bay, Concord, CA

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Coast Guard is issuing a supplement to our notice of 
proposed rulemaking (NPRM) published on July 19, 2004 (69 FR 42950). 
The NPRM incorrectly stated that lighted buoys would be used to mark 
the perimeter of the proposed security zones around three piers at the 
Military Ocean Terminal Concord (MOTCO), California (formerly the 
United States Naval Weapons Station Concord, California). In addition, 
the NPRM stated that the MOTCO Piers were numbered from east to west 
instead of west to east. Because of these errors, this supplement is 
intended to correct the errors in the initial NPRM and re-initiate the 
60-day public comment period.
    The Coast Guard proposes to establish fixed security zones in the 
navigable waters of the United States around each of the three piers at 
the Military Ocean Terminal Concord (MOTCO), California (formerly 
United States Naval Weapons Center Concord, California), any 
combination of which would be enforced by the Captain of the Port 
(COTP) San Francisco Bay during the onloading or offloading of military 
equipment and ordnance, depending on which pier, or piers, are being 
used. In light of recent terrorist actions against the United States, 
these proposed security zones are necessary to ensure the safe 
onloading and offloading of military equipment and to ensure the safety 
of the public from potential subversive acts. The proposed security 
zones would prohibit all persons and vessels from entering, transiting 
through or anchoring within portions of the Suisun Bay within 500 yards 
of any MOTCO pier, or piers, where military onload or offload 
operations are taking place, unless authorized by the COTP or his 
designated representative.

DATES: Comments and related material must reach the Coast Guard on or 
before November 12, 2004.

ADDRESSES: You may mail comments and related material to the Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, Coast Guard Island, Alameda, California 94501. The Waterways 
Management Branch maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket and will be 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, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (04-007), 
indicate the specific section of this document to which each comment 
applies, and give the reason for each comment. Please submit all 
comments and related material in an unbound format, no larger than 8\1/
2\ by 11 inches, suitable for copying. If you would like to know that 
your submission reached us, please enclose a stamped, self-addressed 
postcard or envelope. We will consider all comments and material 
received during the comment period. We may change this proposed rule in 
view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Management Branch at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

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.
    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

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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 proposed rulemaking, to address the 
aforementioned security concerns and to take steps to prevent the 
catastrophic impact that a terrorist attack against the MOTCO facility 
would have on the public, we propose to establish three security zones 
in the navigable waters of the United States within 500 yards of any 
MOTCO pier, or piers, where military onload or offload operations are 
taking place to safeguard vessels, cargo and crew. These proposed 
security zones are necessary to safeguard the MOTCO terminal and the 
surrounding property from sabotage or other subversive acts, accidents 
or criminal acts. These zones are 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. Due to heightened security concerns and the 
catastrophic impact a terrorist attack on this facility would have on 
the public, environment, transportation system, surrounding areas, and 
nearby communities, establishing security zones is a prudent and 
necessary action for this facility.
    Previously, for each military operation at MOTCO, a temporary final 
rule would be written and published to establish a temporary security 
zone around the entire MOTCO facility, and the maritime public would be 
advised of the security zone using a Broadcast Notice to Mariners 
(BNM). In this rulemaking, we propose to create three smaller security 
zones that would surround only the pier, or piers, being used for a 
military onload or offload, and the security zone(s) would only be 
enforced during an onload or offload operation. This would accomplish 
the same goal of providing additional security for the facility during 
military operations, and would continue the practice of notifying 
mariners of the security zone(s), but would remove the need to publish 
a temporary final rule in the Federal Register each time an operation 
occurs. This proposed rule would add Sec.  165.1199, Security Zones; 
Suisun Bay, Concord, California, to Title 33 of the Code of Federal 
Regulations.

Discussion of Proposed Rule

    The Coast Guard proposes to establish fixed security zones 
encompassing the navigable waters, extending from the surface to the 
sea floor, within 500 yards around each of the three MOTCO piers, any 
combination of which would be enforced by the COTP during the onloading 
or offloading of military equipment and ordnance, depending on which 
pier, or piers, are being used. 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 Two is now the westernmost pier. The proposed 
500-yard security zone around Pier Two would encompass portions of both 
the Roe Island Channel and the Port Chicago Reach sections of the 
deepwater channel. The proposed 500-yard security zone around Pier 
Three would encompass a small portion of the Roe Island Channel and 
most of the Port Chicago Reach section of the deepwater channel. The 
proposed 500-yard security zone around Pier Four would encompass 
portions of both the Port Chicago Reach and the Middle Ground West 
Reach sections of the deepwater channel. If more than one pier is 
involved in onload or offload operations at the same time, the proposed 
security zone for each of the piers being used would be enforced.
    Prior to the commencement of a military onload or offload, the COTP 
San Francisco Bay will cause notification of enforcement of the 
security zone(s) to be made by issuing a Local Notice to Mariners and a 
Broadcast Notice to Mariners to inform the affected segments of the 
public. During periods that the security zone(s) are being enforced, 
Coast Guard patrol personnel will notify mariners to keep out of the 
security zone(s) as they approach the area. In addition, Coast Guard 
Group San Francisco Bay maintains a telephone line that is maintained 
24 hours a day, 7 days a week. The public can contact Group San 
Francisco Bay at (415) 399-3530 to obtain information concerning 
enforcement of this rule. When the security zone(s) are no longer 
needed, the COTP will cease enforcement of the security zone(s) and 
issue a Broadcast Notice to Mariners to notify the public. Upon notice 
of suspension of enforcement, all persons and vessels are granted 
general permissions to enter, move within and exit the security 
zone(s).
    In addition to restricting access to the pier, or piers, where 
military operations are taking place, each of these proposed security 
zones would provide necessary standoff distance for blast and 
collision, surveillance and detection perimeter, and a margin of 
response time for security personnel. This proposed rule, for security 
reasons, would prohibit entry of any vessel or person inside any of the 
security zones without specific authorization from the Captain of the 
Port or his designated representative.
    Vessels or persons violating this section would 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 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 would enforce these proposed 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. This regulation is proposed under the authority of 33

[[Page 55127]]

U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 
33 U.S.C. 1231.

Regulatory Evaluation

    This proposed 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 proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. Although this proposed rule 
restricts access to the waters encompassed by the security zones, the 
effect of this proposed rule would not be significant because: (i) The 
zones would encompass only small portions of the waterway; (ii) smaller 
vessels would be able to pass safely around the zones; and (iii) larger 
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 sizes of the proposed zones are 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 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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed rule may 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, and owners and operators of 
private vessels intending to fish or sightsee near the MOTCO facility.
    The proposed security zones would not have a significant economic 
impact on a substantial number of small entities for several reasons: 
(i) Although the security zones would occupy sections of the navigable 
channel adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels 
may receive authorization to transit through the zones by the Captain 
of the Port or his designated representative on a case-by-case basis, 
(ii) small vessel traffic would be able to pass safely around the area, 
and (iii) vessels engaged in recreational activities, sightseeing and 
commercial fishing would have ample space 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 
and by Coast Guard patrol personnel.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant Doug 
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety 
Office San Francisco Bay, at (510) 437-3073. The Coast Guard will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of the Coast Guard.

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

Taking of Private Property

    This proposed 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 proposed 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 proposed 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 proposed 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 proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have

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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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

Environment

    We have analyzed this proposed 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 proposed rule is categorically excluded, 
under figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because it would establish security zones.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) will be available in the 
docket where indicated under ADDRESSES. Comments on this section will 
be considered before we make the final decision on whether the rule 
should be categorically excluded from further environmental review.

List of Subjects in 33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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.

    2. Add Sec.  165.1199, to read as follows:


Sec.  165.1199  Security Zones; Military Ocean Terminal Concord 
(MOTCO), Concord, California.

    (a) Location. The security zone(s) encompass the navigable waters 
of Suisun Bay, California, extending from the surface to the sea floor, 
within 500 yards of the three Military Ocean Terminal Concord (MOTCO) 
piers in Concord, California.
    (b) Regulations. (1) The Captain of the Port (COTP) San Francisco 
Bay will enforce the security zone(s) established by this section 
during military onload or offload operations only upon notice. Upon 
notice of enforcement by the COTP, entering, transiting through or 
anchoring in the zone(s) is prohibited unless authorized by the COTP or 
his designated representative. Upon notice of suspension of enforcement 
by the COTP, all persons and vessels are granted general permissions to 
enter, transit, and exit the security zone(s).
    (2) If more than 1 pier is involved in onload or offload operations 
at the same time, the 500-yard security zone for each involved pier 
will be enforced.
    (3) Persons desiring to transit the area of a security zone may 
contact the Patrol Commander on scene on VHF-FM channel 13 or 16 or the 
COTP at telephone number 415-399-3547 to seek permission to transit the 
area. If permission is granted, all persons and vessels must comply 
with the instructions of the COTP or his designated representative.
    (c) Enforcement. All persons and vessels must 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. The U.S. Coast Guard may be assisted in the patrol and 
enforcement of the security zones by local law enforcement and the 
MOTCO police as necessary. Upon being hailed by U.S. Coast Guard patrol 
personnel by siren, radio, flashing light, or other means, the operator 
of a vessel must proceed as directed.
    (d) Notice of enforcement or suspension of enforcement of security 
zone(s). The COTP San Francisco Bay will cause notification of 
enforcement of the security zone(s) to be made by issuing a Local 
Notice to Mariners and a Broadcast Notice to Mariners to inform the 
affected segments of the public. During periods that the security 
zone(s) are being enforced, Coast Guard patrol personnel will notify 
mariners to keep out of the security zone(s) as they approach the area. 
In addition, Coast Guard Group San Francisco Bay maintains a telephone 
line that is maintained 24 hours a day, 7 days a week. The public can 
contact Group San Francisco Bay at (415) 399-3530 to obtain information 
concerning enforcement of this rule. When the security zone(s) are no 
longer needed, the COTP will cease enforcement of the security zone(s) 
and issue a Broadcast Notice to Mariners to notify the public. Upon 
notice of suspension of enforcement, all persons and vessels are 
granted general permissions to enter, move within and exit the security 
zone(s).

    Dated: September 2, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 04-20544 Filed 9-10-04; 8:45 am]
BILLING CODE 4910-15-P