[Federal Register Volume 70, Number 183 (Thursday, September 22, 2005)]
[Rules and Regulations]
[Pages 55536-55539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18936]



[[Page 55536]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 05-008]
RIN 1625-AA87


Security Zones; San Francisco Bay, San Pablo Bay, Carquinez 
Strait, Suisun Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary fixed security zones 
in the waters extending approximately 100 yards around six separate oil 
refinery piers in the San Francisco Bay area. These security zones are 
an integral part of the Coast Guard's efforts to protect these 
facilities and the surrounding areas from destruction or damage due to 
accidents, subversive acts, or other causes of a similar nature. Entry 
into the zones is prohibited, unless specifically authorized by the 
Captain of the Port (COTP) San Francisco Bay, or his designated 
representative. These zones will be subject to discretionary and random 
patrol and monitoring by Coast Guard, Federal, state and local law 
enforcement assets.

DATES: This rule is effective from 11:59 p.m. PDT on September 9, 2005, 
to 11:59 p.m. PST on March 31, 2006.

ADDRESSES: Documents indicated in this preamble, as being available in 
the docket, are part of docket COTP 05-008 and are available for 
inspection or copying at the Waterways Safety Branch between 9 a.m. and 
4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Ian Callander, Waterways 
Safety Branch, U.S. Coast Guard Sector San Francisco, (510) 437-3401 or 
the Sector San Francisco Command Center, at (415) 399-3547.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that 
good cause exists for not publishing an NPRM because the threat to U.S. 
assets and the public currently exists and is ongoing and any delay in 
the effective date of this temporary final rule (TFR) is impractical 
and contrary to the public interest.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register.
    Elsewhere in this issue of the Federal Register we have published a 
notice of proposed rulemaking (NPRM) under docket COTP San Francisco 
Bay 05-007, in which we will propose to make permanent these six 
temporary security zones. This TFR will provide security around the 
marine oil refinery facilities during the notice-and-comment rulemaking 
that proposes to make the security zones in these same locations 
permanent.

Background and Purpose

    In its effort to manage the threat posed by terrorist activity, the 
Coast Guard has increased safety and security measures on U.S. ports 
and waterways. The measures contemplated by this rule are intended to 
assist the Coast Guard in protecting vessels and facilities within or 
adjacent to the six marine oil terminals in San Francisco Bay. 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.
    To address the aforementioned security concerns, and to take steps 
to prevent the catastrophic impact that a terrorist attack against 
marine oil terminals within San Francisco Bay would have on the public 
interest, the Coast Guard is establishing temporary fixed security 
zones in the waters extending approximately 100 yards around six 
separate oil refinery piers in the San Francisco Bay, California. These 
security zones help the Coast Guard to prevent vessels or persons from 
engaging in terrorist actions against these facilities. Due to 
heightened security concerns, and due to the catastrophic impact a 
terrorist attack on a marine oil terminal would have on the surrounding 
waterways, area, and community, security zones are prudent for these 
facilities.

Discussion of Rule

    In this temporary final rule, the Coast Guard is establishing 
temporary fixed security zones in the waters extending from the surface 
to the sea floor and approximately 100 yards around six separate oil 
refinery piers in the San Francisco Bay Area. The specific coordinates 
defining these zones are given in paragraph (a) of temporary section 33 
CFR 165.T11-039.
    For the Chevron-Texaco oil facility, the proposed security zone 
would extend approximately 100 yards into the waters of San Francisco 
Bay around the Chevron Long Wharf, located in Richmond, California.
    For the Conoco-Phillips oil facility, the proposed security zone 
would extend approximately 100 yards into the waters of San Pablo Bay 
around the Conoco-Philips Wharf, located in Rodeo, California.
    For the Shell Martinez oil facility, the proposed security zone 
would extend approximately 100 yards into the waters of Carquinez 
Strait around the Shell Terminal, located in Martinez, California.
    For the Tesoro-Amorco oil facility, the proposed security zone 
would extend approximately 100 yards into the waters of Carquinez 
Strait around the Amorco Pier, located in Martinez, California.
    For the Valero oil facility, the proposed security zone would 
extend approximately 100 yards into the waters of Carquinez Strait 
around the Valero Pier, located in Benicia, California.
    For the Tesoro-Avon oil facility, the proposed security zone would 
extend approximately 100 yards into the waters of Suisun Bay around the 
Avon Pier, located in Martinez, California.
    These zones will be subject to discretionary and random patrol and 
monitoring by Coast Guard, Federal, State and local law enforcement 
assets. Vessels and people may be allowed to enter these security zones 
on a case-by-case basis with authorization from the COTP or his 
designated representative.
    Vessels or persons violating this rule 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 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

[[Page 55537]]

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 may enlist the aid and cooperation of any 
Federal, State, county, municipal, or private agency to assist in the 
enforcement of the regulation.

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 impact of this rule to be so minimal that a full 
regulatory evaluation under the regulatory policies and procedures of 
DHS is unnecessary. Although this rule restricts access to the waters 
encompassed by the security zones, the effect of this rule is not 
significant because: (i) The zones encompass only small portions of the 
waterways; (ii) vessels are able to pass safely around the zones; and 
(iii) 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 size of the zones is the minimum necessary to provide adequate 
protection for all of the six marine oil facilities. The entities most 
likely to be affected are fishing vessels 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 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. We expect this rule may affect owners and operators of 
vessels, some of which may be small entities, intending to fish, 
sightsee, transit, or anchor in the waters affected by these security 
zones. These security zones will not have a significant economic impact 
on a substantial number of small entities for several reasons: small 
vessel traffic will be able to pass safely around the security zones 
and vessels engaged in recreational activities, sightseeing and 
commercial fishing have space outside of the zones to engage in these 
activities. Small entities and the maritime public will be advised of 
these security zones via public notice to mariners.

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.
    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).

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 may 
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 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

[[Page 55538]]

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 we are establishing a security 
zone.
    An ``Environmental Analysis Check List'' and a ``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: 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. Add temporary Sec.  165.T11-039, to read as follows:


Sec.  165.T11-039  Security Zones; San Francisco Bay, San Pablo Bay, 
Carquinez Strait, Suisun Bay, California.

    (a) Locations. The following areas are security zones:
    (1) Chevron Richmond Long Wharf, San Francisco Bay. This security 
zone includes all waters extending from the surface to the sea floor 
within approximately 100 yards of the Chevron Richmond Long Wharf and 
encompasses all waters in San Francisco Bay within a line connecting 
the following geographical positions--

Latitude                             Longitude
 
37[deg]55'52.2'' N                   122[deg]24'04.7'' W
37[deg]55'41.8'' N                   122[deg]24'07.1'' W
37[deg]55'26.8'' N                   122[deg]24'35.9'' W
37[deg]55'47.1'' N                   122[deg]24'55.5'' W
37[deg]55'42.9'' N                   122[deg]25'03.5'' W
37[deg]55'11.2'' N                   122[deg]24'32.8'' W
37[deg]55'14.4'' N                   122[deg]24'27.5'' W
37[deg]55'19.7'' N                   122[deg]24'23.7'' W
37[deg]55'22.2'' N                   122[deg]24'26.2'' W
37[deg]55'38.5'' N                   122[deg]23'56.9'' W
37[deg]55'47.8'' N                   122[deg]23'53.3'' W
 



and along the shoreline back to the beginning point.
    (2) Conoco-Phillips, San Pablo Bay. This security zone includes all 
waters extending from the surface to the sea floor within approximately 
100 yards of the Conoco-Phillips Rodeo Terminal and encompasses all 
waters in San Pablo Bay within a line connecting the following 
geographical positions--


Latitude                             Longitude
 
38[deg]03'06.0'' N                   122[deg]15'32.4'' W
38[deg]03'20.7'' N                   122[deg]15'35.8'' W
38[deg]03'21.8'' N                   122[deg]15'29.8'' W
38[deg]03'29.1'' N                   122[deg]15'31.8'' W
38[deg]03'23.8'' N                   122[deg]15'55.8'' W
38[deg]03'16.8'' N                   122[deg]15'53.2'' W
38[deg]03'18.6'' N                   122[deg]15'45.2'' W
38[deg]03'04.0'' N                   122[deg]15'42.0'' W
 



and along the shoreline back to the beginning point.
    (3) Shell Martinez, Carquinez Strait. This security zone includes 
all waters extending from the surface to the sea floor within 
approximately 100 yards of the Shell Martinez Terminal and encompasses 
all waters in San Pablo Bay within a line connecting the following 
geographical positions--


Latitude                             Longitude
 
38[deg]01'39.8'' N                   122[deg]07'40.3'' W
38[deg]01'54.0'' N                   122[deg]07'43.0'' W
38[deg]01'56.9'' N                   122[deg]07'37.9'' W
38[deg]02'02.7'' N                   122[deg]07'42.6'' W
38[deg]01'49.5'' N                   122[deg]08'08.7'' W
38[deg]01'43.7'' N                   122[deg]08'04.2'' W
38[deg]01'50.1'' N                   122[deg]07'50.5'' W
38[deg]01'36.3'' N                   122[deg]07'47.6'' W
 



and along the shoreline back to the beginning point.
    (4) Tesoro-Amorco, Carquinez Strait. This security zone includes 
all waters extending from the surface to the sea floor within 
approximately 100 yards of the Tesoro-Amorco oil terminal wharf and 
encompasses all waters in the Carquinez Strait within a line connecting 
the following geographical positions--


Latitude                             Longitude
 
38[deg]02'03.1'' N                   122[deg]07'11.9'' W
38[deg]02'05.6'' N                   122[deg]07'18.9'' W
38[deg]02'07.9'' N                   122[deg]07'14.9'' W
38[deg]02'13.0'' N                   122[deg]07'19.4'' W
38[deg]02'05.7'' N                   122[deg]07'35.9'' W
38[deg]02'00.5'' N                   122[deg]07'31.1'' W
38[deg]02'01.8'' N                   122[deg]07'27.3'' W
38[deg]01'55.0'' N                   122[deg]07'11.0'' W
 



and along the shoreline back to the beginning point.
    (5) Valero, Carquinez Strait. This security zone includes all 
waters extending from the surface to the sea floor within approximately 
100 yards of the Valero Benicia Pier and encompasses all waters in the 
Carquinez Strait within a line connecting the following geographical 
positions--


Latitude                             Longitude
 
38[deg]02'37.6'' N                   122[deg]07'51.5'' W
38[deg]02'34.7'' N                   122[deg]07'48.9'' W
38[deg]02'44.1'' N                   122[deg]07'34.9'' W
38[deg]02'48.0'' N                   122[deg]07'37.9'' W
38[deg]02'47.7'' N                   122[deg]07'42.1'' W
 



and along the shoreline back to the beginning point.
    (6) Tesoro-Avon, Suisun Bay. This security zone includes all waters 
extending from the surface to the sea floor within approximately 100 
yards of the Tesoro-Avon Wharf and encompasses all waters in Suisun Bay 
within a line connecting the following geographical positions--


Latitude                             Longitude
 
38[deg]02'24.6'' N                   122[deg]04'52.9'' W
38[deg]02'54.0' N                    122[deg]05'19.5'' W
38[deg]02'55.8'' N                   122[deg]05'16.1'' W
38[deg]03'02.1'' N                   122[deg]05'19.4'' W
38[deg]02'55.1'' N                   122[deg]05'42.6'' W
38[deg]02'48.8'' N                   122[deg]05'39.2'' W
38[deg]02'52.4'' N                   122[deg]05'27.7'' W
38[deg]02'46.5'' N                   122[deg]05'22.4'' W
 



and along the shoreline back to the beginning point.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33, entry into the security zones described in paragraph (a) 
of this section is prohibited, unless specifically authorized by the 
Captain of the Port San Francisco Bay, or his designated 
representative.
    (2) Persons desiring to transit the area of a 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

[[Page 55539]]

the Port 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. 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.
    The U.S. Coast Guard may be assisted in the patrol and enforcement 
of these security zones by local law enforcement as necessary.
    (d) Effective period. This section becomes effective at 11:59 p.m. 
PDT on September 9, 2005, and will terminate at 11:59 p.m. PST on March 
31, 2006.

    Dated: September 9, 2005.
W.J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 05-18936 Filed 9-21-05; 8:45 am]
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