[Federal Register Volume 70, Number 88 (Monday, May 9, 2005)]
[Proposed Rules]
[Pages 24344-24347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-9206]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 05-006]
RIN 1625-AA87


Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to revise the perimeter of the 
existing

[[Page 24345]]

security zone that extends approximately 150 feet into the navigable 
waters of the Oakland Estuary, Alameda, California, around the United 
States Coast Guard Island Pier to coincide with the perimeter of a 
floating security barrier. This action is necessary to provide 
continued security for the military service members on board vessels 
moored at the pier and the government property associated with these 
valuable national assets. This security zone would prohibit all persons 
and vessels from entering, transiting through, or anchoring within a 
portion of the Oakland Estuary surrounding the Coast Guard Island Pier 
unless authorized by the Captain of the Port (COTP) or his designated 
representative.

DATES: Comments and related material must reach the Coast Guard on or 
before June 8, 2005.

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, (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 (05-006), 
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

    In its effort to thwart potential 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 Espionage 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.
    On January 29, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; San Francisco Bay, Oakland Estuary, 
Alameda, CA'' in the Federal Register (69 FR 4267) proposing to 
establish a security zone extending approximately 150 feet around the 
Coast Guard Island Pier in the navigable waters of the Oakland Estuary 
in Alameda, California. We received no letters commenting on the 
proposed rule. No public hearing was requested, and none was held. On 
June 7, 2004, we published a final rule (codified as 33 CFR 165.1190) 
with the same title in the Federal Register (69 FR 31737) that 
established a security zone extending approximately 150 feet around the 
Coast Guard Island Pier in the navigable waters of the Oakland Estuary 
in Alameda, California.
    Since that time, the Coast Guard has determined that a floating 
security barrier should also be installed to provide an added level of 
security for the Coast Guard Cutters that moor at the Coast Guard 
Island Pier. Because the navigational channel is less than 150 feet 
from the two ends of the Coast Guard Island Pier, and in order to 
provide approximately 150 feet of maneuvering space for the cutters 
along the entire length of the pier, the barrier would extend into the 
navigational channel approximately 30 to 50 feet at each end.
    In this NPRM, the Coast Guard is proposing to revise the perimeter 
of the existing security zone around the Coast Guard Island pier to 
mirror the perimeter of a proposed floating security barrier. The need 
for the security zone still exits due to heightened security concerns 
and the catastrophic impact a terrorist attack on a Coast Guard Cutter 
would have on the crew on board and surrounding government property.

Discussion of Proposed Rule

    The Coast Guard proposes to revise the existing security zone 
around and under the Coast Guard Island Pier that encompasses all 
waters of the Oakland Estuary, extending from the surface to the sea 
floor, within approximately 150 feet of the pier. The revision to the 
existing security zone would ensure that a proposed floating security 
barrier could be installed and that the perimeter of the security zone 
would provide the necessary maneuvering space for Coast Guard Cutters. 
The perimeter of the proposed security barrier is located along the 
following coordinates: commencing at a point on land approximately 150 
feet northwest of the northwestern end of the Coast Guard Island Pier 
at latitude 37[deg]46'52.73'' N and longitude 122[deg]15'06.99'' W; 
thence to the edge of the navigable channel at latitude 
37[deg]46'51.83'' N and longitude 122[deg]15'07.47'' W; thence to a 
position approximately 30 feet into the charted navigation channel at 
latitude 37[deg]46'51.27'' N and longitude 122[deg]15'07.22'' W; thence 
closely paralleling the edge of the charted navigation channel to 
latitude 37[deg]46'46.75'' N and longitude 122[deg]15'00.21'' W; thence 
closely paralleling the edge of the charted navigation channel to a 
point approximately 50 feet into the charted navigation channel at 
latitude 37[deg]46'42.36'' N and longitude 122[deg]14'51.55'' W; thence 
to a point on land approximately 150 feet southeast of the southeastern 
end of the Coast Guard Island Pier at latitude 37[deg]46'43.94'' N and 
longitude 122[deg]14'49.89'' W; thence northwest along the shoreline 
back to the beginning point.
    The security zone continues to be needed for national security 
reasons to protect Coast Guard Cutters, their crews, the public, 
transiting vessels, and adjacent waterfront facilities from potential 
subversive acts, accidents or other events of a similar nature. Entry 
into the revised security zone would be

[[Page 24346]]

prohibited unless specifically authorized by the Captain of the Port or 
his designated representative.

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 zone, the 
effect of this proposed rule would not be significant for the following 
reasons: (i) Vessel traffic would be able to pass safely around the 
area, (ii) vessels engaged in recreational activities, sightseeing and 
commercial fishing have ample space outside of the proposed security 
zone to engage in these activities, (iii) the perimeter of the proposed 
security zone would only extend 30 to 50 feet into the 500-foot wide 
navigational channel, and (iv) this proposed security zone is only 
slightly larger than the Coast Guard Island security zone that has been 
in place since July 7, 2004.
    The size of the proposed zone is the minimum necessary to provide 
adequate protection for Coast Guard Cutters, their crews, other vessels 
and crews operating in the vicinity, adjoining areas, and the public 
while allowing adequate maneuvering space for the Coast Guard Cutters. 
The entities most likely to be affected are tug and barge companies 
transiting the Oakland Estuary 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. We expect this proposed rule may affect 
owners and operators of private and commercial vessels, some of which 
may be small entities, transiting the Oakland Estuary. The proposed 
security zone would not have a significant economic impact on a 
substantial number of small entities for the following reasons: (i) 
Vessel traffic would be able to pass safely around the area, (ii) 
vessels engaged in recreational activities, sightseeing and commercial 
fishing have ample space outside of the proposed security zone to 
engage in these activities, and (iii) the perimeter of the proposed 
security zone would only extend 30 to 50 feet into the 500-foot wide 
navigational channel. In addition, small entities and the maritime 
public would be advised of this revision to the existing security zone 
via public notice to mariners.
    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, (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 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 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 determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action''

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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 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 because we are establishing a security zone.
    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 to 
categorically exclude this rule 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.  165.1190 to read as follows:


Sec.  165.1190  Security Zone; San Francisco Bay, Oakland Estuary, 
Alameda, CA.

    (a) Location. The following area is a security zone: All navigable 
waters of the Oakland Estuary, California, from the surface to the sea 
floor, approximately 150 feet into the Oakland Estuary surrounding the 
Coast Guard Island Pier. The perimeter of the security zone follows the 
same perimeter as the floating security barrier installed around the 
Coast Guard Island pier. The perimeter of the security barrier is 
located along the following coordinates: Commencing at a point on land 
approximately 150 feet northwest of the northwestern end of the Coast 
Guard Island Pier at latitude 37[deg]46'52.73'' N and longitude 
122[deg]15'06.99'' W; thence to the edge of the navigable channel at 
latitude 37[deg]46'51.83'' N and longitude 122[deg]15'07.47'' W; thence 
to a position approximately 30 feet into the charted navigation channel 
at latitude 37[deg]46'51.27'' N and longitude 122[deg]15'07.22'' W; 
thence closely paralleling the edge of the charted navigation channel 
to latitude 37[deg]46'46.75'' N and longitude 122[deg]15'00.21'' W; 
thence closely paralleling the edge of the charted navigation channel 
to a point approximately 50 feet into the charted navigation channel at 
latitude 37[deg]46'42.36'' N and longitude 122[deg]14'51.55'' W; thence 
to a point on land approximately 150 feet southeast of the southeastern 
end of the Coast Guard Island Pier at latitude 37[deg]46'43.94'' N and 
longitude 122[deg]14'49.89'' W; thence northwest along the shoreline 
back to the beginning point.
    (b) Regulations. (1) Under Sec.  165.33, entry into or remaining in 
this zone is prohibited unless authorized by the Coast Guard Captain of 
the Port, San Francisco Bay, or his designated representative.
    (2) Persons desiring to transit the area of the 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 designated 
representative.
    (c) Enforcement. The Captain of the Port will enforce this security 
zone and may be assisted in the patrol and enforcement of this security 
zone by any Federal, State, county, municipal, or private agency.

    Dated: April 28, 2005.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco 
Bay, California.
[FR Doc. 05-9206 Filed 5-6-05; 8:45 am]
BILLING CODE 4910-15-P