[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Rules and Regulations]
[Pages 2019-2022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-547]


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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: Final rule.

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SUMMARY: The Coast Guard is expanding 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 revised security zone will run adjacent to the navigation 
channel between Piers 14 and Pier 5. From the edge of the navigation 
channel west of Pier 5, the proposed security zone extends to a point 
400 feet opposite of Pier 1. The existing security zone at Naval 
Station San Diego, implemented on April 15, 2003, does not provide 
adequate separation distance between protected vessels and the proposed 
barrier system.

DATES: This rule is effective February 11, 2005.

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 04-019 and are available for inspection or 
copying between 8 a.m. and 3 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: MSTC Todd Taylor at (619) 683-6434.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On September 13, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; San Diego Bay'' in the Federal 
Register (69 FR 55122). We received two letters and one e-mail 
commenting on the proposed rule. No public meeting was requested, and 
none was held. However, the proposal was raised as a point of 
discussion during a previously scheduled San Diego Harbor Safety 
Committee meeting in October 2004. The U.S. Navy and U.S. Coast Guard 
participated in several meetings with the San Diego Bay Pilots 
Association to discuss the impact of this revised security zone and the 
installment of a permanent barrier system.

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Background and Purpose

    On May 12, 2003, the Coast Guard published a final rule (68 FR 
25288) creating a permanent security zone at Naval Station San Diego. 
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 sufficient area to install the permanent 
barrier system or provide adequate minimum separation distance between 
the barrier and protected assets.

Discussion of the Comments and Changes

    The Coast Guard received a total of three written responses 
following publication of the NPRM. San Diego Bay Pilots Association 
(SDBPA) provided a written response dated October 4, 2004. Their letter 
stated the SDBPA appreciated, respected, and supported the U.S. Navy's 
need to protect and secure vital assets in San Diego Bay. It further 
stated that the proposed extension between Pier 8 and Pier 14 was 
reasonable and would result in minimal negative impact on the transit 
of commercial traffic in the area. The SDBPA letter then identified 
concerns regarding the proposed extension between Pier 1 and Pier 8.
    Specifically, SDBPA was concerned that extending the security zone 
and installing a Port Security Barrier would force the existing small 
vessel traffic such as tugs and tows, excursion vessels and general 
recreation vessels to intrude, or move closer to the shipping channel, 
thereby increasing congestion in the channel and raising the potential 
for marine accidents. The letter concluded by stating the SDBPA 
believed the proposed extension between Pier 1 and Pier 8 should not be 
extended farther than 400 feet from the pier heads, approximately 250 
feet closer to shore than proposed in the NPRM.
    Based on the SDBPA letter, the U.S. Coast Guard and U.S. Navy 
initiated several open meetings with the marine pilots to address 
specific concerns and operational plans for using the Port Security 
Barrier. During the course of those meetings, the U.S. Navy agreed to 
revise the coordinates of the mooring buoys at the north end of the 
boom to address the San Diego Marine Pilot's concerns. Accordingly, the 
Coast Guard revised the north western point of the security zone and 
moved it approximately 250 feet southeast, from 32[deg]41'00.0'' N, 
117[deg]08'12.7'' W to 32[deg]40'58.3'' N, 117[deg]08'11.0'' W.
    The U.S. Navy also agreed to revise the manner by which the Port 
Security Barrier would be opened and closed when vessels entered or 
departed the security zone to lessen the impact to the shipping 
channel. Specifically, the U.S. Navy proposed the barrier would be 
opened and moved parallel to the shore rather than out into the 
shipping channel.
    The U.S. Coast Guard concurs with the U.S. Navy and the San Diego 
Marine Pilots Association that the proposed security zone can safely be 
extended approximately 400 feet west of the existing zone. Small vessel 
traffic is relatively light in the area, and most vessels already stay 
well clear of U.S. Navy's current barrier system. The impact to the 
shipping channel will be minimal, and the benefits of providing 
additional separation distance for the barrier system outweighs the 
impact to the shipping channel. Therefore, the Coast Guard changed the 
regulatory text of this proposal to identify a new geographic 
coordinates for Point B at 32[deg]40'58.3'' N, 117[deg]08'11.0'' W.
    The U.S. Coast Guard received one e-mail response from the U.S. 
Navy Engineer in charge of the Port Security Barrier project stating he 
had made a typographical error in the latitude coordinate original 
project description. The Coast Guard had included that incorrect 
coordinate in the regulatory text of the NPRM. Specifically, the NPRM 
identifies the latitude of Point D as ``32[deg]40'27.4'' N'', but it 
should have read ``32[deg]40'17.0'' N''. All charts and diagrams of 
this security zone extension that were provided during the meetings and 
discussions addressed previously had correctly represented the proposed 
extension. Therefore, the Coast Guard has revised the regulatory text 
to correctly identify the correct latitude coordinates for Point D.
    The U.S. Coast Guard received one signed letter from a private 
citizen stating strong support for the U.S. Coast Guard's and the U.S. 
Navy's right and responsibility to demonstrate a strong presence in the 
area as a deterrent to potential terror threats.

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.
    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 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 does 
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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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. No small 
entities requested assistance.
    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 1-888-REG-FAIR 
(1-888-734-3247). The

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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 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 does not result in such 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. 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 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 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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

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.
    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 markers designating the security zones already in the 
waterway. A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' (CED) will be available in the 
docket where indicated under ADDRESSES.

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: 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. 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 the following points: 
Beginning at 32[deg]41'16.5'' N, 117[deg]08'01'' W (Point A); thence 
running southwesterly to 32[deg]40'58.3'' N, 117[deg]08'11.0'' W (Point 
B); to 32[deg]40'36.0'' N 117[deg]07'49.1'' W (Point C); to 
32[deg]40'17.0' 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 place of the beginning. 
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.

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    (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: December 23, 2004.
John E. Long,
Captain, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 05-547 Filed 1-11-05; 8:45 am]
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