[Federal Register Volume 70, Number 161 (Monday, August 22, 2005)]
[Rules and Regulations]
[Pages 48872-48874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16515]


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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: Final rule.

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SUMMARY: The Coast Guard is revising the perimeter of the existing 
security zone that extends approximately 50 yards 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 prohibits 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: This rule is effective starting at 12:01 a.m. on September 21, 
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 COTP 05-006 and are available for inspection or 
copying at the Waterways Branch of the Marine Safety Office San 
Francisco Bay, Coast Guard Island, Alameda, California, 94501, between 
9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Ian Callander, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, (510) 437-3401.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    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 50 yards around the 
Coast Guard Island Pier in the navigable waters of the Oakland Estuary 
in Alameda, California. We received one letter 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) 
entitled ``Security Zone; San Francisco Bay, Oakland Estuary, Alameda, 
CA'' in the Federal Register (69 FR 31737) that established a security 
zone extending approximately 50 yards around the Coast Guard Island 
Pier in the navigable waters of the Oakland Estuary in Alameda, 
California.
    Since that time, the Coast Guard 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 50 yards 
from the two ends of the Coast Guard Island Pier, and in order to 
provide approximately 50 yards of maneuvering space for the cutters 
along the entire length of the pier, the barrier needed to extend into 
the navigational channel approximately 10 to 20 yards at each end. 
Since the previously published security zone did not extend into the 
navigational channel, we published another NPRM entitled ``Security 
Zone; San Francisco Bay, Oakland Estuary, Alameda, CA'' in the Federal 
Register on May 9, 2005 (70 FR 24344) proposing to revise the perimeter 
of the existing security zone around the Coast Guard Island pier to 
mirror the perimeter of the floating security barrier. We received two 
comments on the proposed rule. No public hearing was requested, and 
none was held.
    Vessels or persons violating this section are 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 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 will enforce this security zone and may 
enlist the aid and cooperation of any Federal, State, county, 
municipal, or private agency to assist in the enforcement of the 
regulation.

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.
    In this particular rulemaking, the Coast Guard is revising the 
perimeter of the existing security zone around the Coast Guard Island 
pier to mirror the perimeter of the floating security barrier. The need 
for the security zone still exists 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.
    This security zone is needed for national security reasons to 
protect Coast Guard Cutters, their crews, the public, transiting 
vessels, and adjacent waterfront facilities from potential

[[Page 48873]]

subversive acts, accidents or other events of a similar nature. This 
rule prohibits the entry of any vessel or person inside the security 
zone without specific authorization from the Captain of the Port, or 
his designated representative. Due to heightened security concerns and 
the catastrophic impact a terrorist attack on one of these vessels 
would have, having a security zone around the Coast Guard Island Pier 
remains a prudent and necessary action.

Discussion of Comments and Changes

    We received two comments on the proposed rule. No public hearing 
was requested, and none was held. The first comment we received noted 
that the two geographical positions provided in the NPRM that were 
intended to be located on the shore of Coast Guard Island actually 
plotted slightly offshore from Coast Guard Island. The two positions 
have been corrected in this final rule. The second comment we received 
requested that we use yards as the unit of measurement to describe the 
security zone instead of feet in order to be consistent with other 
security zones in the San Francisco Bay Area. As a result, we have used 
yards as the unit of measurement to describe the security zone in this 
final rule. Because neither of these two changes have a substantive 
impact on the regulation, we feel that making these changes does not 
warrant an extension to the public comment period provided by the NPRM.

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).
    Although this rule restricts access to the waters encompassed by 
the security zone, the effects of this rule are not significant for the 
following reasons: (i) Vessel traffic is able to pass safely around the 
area, (ii) vessels engaged in recreational activities, sightseeing and 
commercial fishing have ample space outside of the security zone to 
engage in these activities, (iii) the perimeter of the security zone 
only extends 10 to 20 yards into the approximately 170-yard wide 
navigational channel, and (iv) this security zone is only slightly 
larger than the Coast Guard Island security zone that has been in place 
since July 7, 2004.

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 will 
not have a significant economic impact on a substantial number of small 
entities. The small entities most likely to be affected are tug and 
barge companies transiting the Oakland Estuary. This regulation will 
not have a significant economic impact on these small entities for 
several reasons: (i) Vessel traffic is able to pass safely around the 
area, (ii) vessels engaged in commercial towing have ample space 
outside of the security zone to engage in towing activities, (iii) the 
perimeter of the security zone only extends approximately 10 to 20 
yards into the approximately 170-yard wide navigational channel, and 
(iv) this security zone is only slightly larger than the Coast Guard 
Island security zone that has been in place since July 7, 2004. Small 
entities and the maritime public would be advised of this security zone 
via broadcast notice to mariners, and/or local 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 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.
    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 1-800-REG-FAIR 
(1-888-734-3247).

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 will not result in such an 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. This rule 
is not an economically significant rule and does 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 does 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

[[Page 48874]]

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.

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 because it establishes a security zone.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' (CED) are 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: 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.  165.1190 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 50 yards 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 50 yards northwest of the northwestern end of the Coast 
Guard Island Pier at latitude 37[deg]46'53.60'' N and longitude 
122[deg]15'06.10'' 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 10 yards 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 20 yards 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 
50 yards southeast of the southeastern end of the Coast Guard Island 
Pier at latitude 37[deg]46'44.80'' N and longitude 122[deg]14'48.80'' 
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: August 3, 2005.
W.J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 05-16515 Filed 8-19-05; 8:45 am]
BILLING CODE 4910-15-P