[Federal Register Volume 69, Number 176 (Monday, September 13, 2004)]
[Proposed Rules]
[Pages 55122-55125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20545]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Diego 04-019]
RIN 1625-AA87


Security Zone; San Diego Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to expand the geographical boundaries 
of the permanent security zone at Naval Base San Diego. This action is 
required to provide adequate area for the U.S. Navy to install an 
upgraded barrier system and provide the minimum required separation 
distances between the barrier and protected assets at Naval Station San 
Diego. The proposed security zone would run adjacent to the navigation 
channel between Pier 14 and Pier 5. From the edge of the navigation 
channel west of Pier 5, the proposed security zone extends to a point 
650 feet opposite of Pier 1.
    The existing security zone at Naval Station San Diego, implemented 
on April 15, 2003, does not provide the area necessary for this 
upgraded barrier system.

DATES: Comments and related material must reach the Coast Guard on or 
before October 13, 2004.

ADDRESSES: You may mail comments and related material to Coast Guard 
Sector San Diego, 2716 North Harbor Drive, San Diego, California, 
92101. Sector San Diego, Prevention Department maintains the public 
docket for these rulemakings. 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 Coast Guard Sector San Diego, 
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: MSTC Todd Taylor at (619) 683-6495.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in these rulemakings by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (COTP San 
Diego 04-019), indicate the specific section of this document to which 
each comment applies, and give the reason for each comment. Please 
submit all comments

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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 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 these proposed rules 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 Marine Safety Office San Diego at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid these rulemakings, we will hold one at 
a time and place announced by a later notice in the Federal Register.

Background and Purpose

    On May 12, 2003, the Coast Guard published a final rule creating a 
permanent security zone at Naval Station San Diego (68 FR 25288). This 
security zone allowed the U.S. Navy to install a small barrier system 
to protect critical assets at Naval Station San Diego. The U.S. Navy 
now intends to install a permanent waterfront boat barrier to protect 
all assets berthed at Naval Station San Diego. The existing security 
zone does not provide enough area to install the permanent barrier and 
provide the required minimum separation distance between the barrier 
and protected assets.

Discussion of the Proposed Rule

    Existing U.S. Navy Instructions (OPNAVINST 5530.14C Chapter 2) 
identify a minimum separation distance of 400 feet between the Port 
Security Barrier and protected assets. Because the security zone must 
not enter the navigation channel, a 400-foot separation is not 
practical along the south end of the waterfront between Pier 5 and Pier 
13. Between those piers, the Coast Guard proposes extending the 
security zone to the edge of the navigation channel. From Pier 5 north 
to Pier 1, the Coast Guard proposes extending the security zone to a 
point 650 feet opposite the northern end of Pier 1. From that point, 
the security zone would extend to the starting point of the existing 
security zone. From Pier 5 north, the proposed security zone is 
shoreside of the navigation channel.
    The modification and expansion of this security zone will prevent 
recreational and commercial craft from interfering with military 
operations involving all naval vessels home-ported at Naval Base San 
Diego, and it will protect transiting recreational and commercial 
vessels, and their respective crews, from the navigational hazards 
posed by such military operations. It will also safeguard vessels and 
waterside facilities from destruction, loss, or injury from sabotage or 
other subversive acts, accidents, or other causes of a similar nature.
    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.
    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 5-10 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, 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. This 
regulation is proposed under the authority of 33 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.
    Due to National Security interests, the implementation of this 
security zone is necessary for the protection of the United States and 
its people. The size of the zone is the minimum necessary to provide 
adequate protection for U.S. Naval vessels, their crews, adjoining 
areas, and the public. The entities most likely to be affected, if any, 
are pleasure craft engaged in recreational activities and sightseeing. 
Any hardships experienced by persons or vessels are considered minimal 
compared to the national interest in protecting U.S. Naval vessels, 
their crews, and the public.

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 
rules would not have a significant economic impact on a substantial 
number of small entities because the expanded zone will still allow 
sufficient room for vessels to transit the channel unimpeded.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that these rules 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 these rules would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement

[[Page 55124]]

Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding these proposed rules so that they can better 
evaluate its effects on them and participate in the rulemakings. 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 MSTC Todd Taylor, 
Sector San Diego at (619) 683-6495. 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 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 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 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would not affect 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. The rule is not economically significant 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. We 
invite your comments on how these proposed rules might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

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 determined that the rule 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 rule has not been designated by the 
Administrator of the Office of Information and Regulatory Affairs as 
significant energy actions. 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 proposed 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 rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation.
    The U.S. Navy has separately considered the impact of their 
proposed project including the placement of anti-small boat barrier 
booms. The Coast Guard's analysis pertains solely to the expanded 
placement of the small markers designating the security zones already 
in the waterway. A draft ``Environmental Analysis Check List'' and a 
draft ``Categorical Exclusion Determination'' (CED) are 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. Revise Sec.  165.1101 to read as follows:


Sec.  165.1101  Security Zone: San Diego Bay, CA.

    (a) Location. The following area is a security zone: the water area 
within Naval Station, San Diego enclosed by a line connecting the 
following points: Beginning at 32[deg]41'16.5'' N, 117[deg]08'01'' W 
(Point A); thence running southwesterly to 32[deg]41'00.0'' N,

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117[deg]08'12.7'' W (Point B); to 32[deg]40'36.0'' N 117[deg]07'49.1'' 
W (Point C); to 32[deg]40'27.4'' N, 117[deg]07'34.6'' W (Point D); to 
32[deg]39'36.4'' N, 117[deg]07'24.8'' W (Point E); to 32[deg]39'38.5'' 
N 117[deg]07'06.5'' W, (Point F); thence running generally 
northwesterly along the shoreline of the Naval Station to the beginning 
point. All coordinates referenced use datum: NAD 1983.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, entry into the area of this zone is 
prohibited unless authorized by the Captain of the Port San Diego; 
Commander, Naval Base San Diego; Commander, Navy Region Southwest; or 
the Commanding Officer, Naval Station, San Diego.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 619-683-6495 or on 
VHF 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) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of this security zone by the U. S. Navy.

    Dated: August 25, 2004.
John E. Long,
Captain, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 04-20545 Filed 9-10-04; 8:45 am]
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