[Federal Register Volume 81, Number 112 (Friday, June 10, 2016)]
[Rules and Regulations]
[Pages 37514-37517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13781]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2015-0330]
RIN 1625-AA87


Security Zone; Military Ocean Terminal Concord (MOTCO); Concord, 
California

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising the existing conditional security 
zone regulation currently in place in the navigable waters of Suisun 
Bay, California, near Concord, California around each of the three 
piers at the Military Ocean Terminal Concord (MOTCO), California 
(formerly United States Naval Weapons Center Concord, California). This 
action is intended to clarify responsibilities and authorities for 
enforcement of the security zone.

DATES: This rule is effective from July 11, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2015-0330 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Marcia Medina, Sector San Francisco, U.S. 
Coast Guard; telephone (415) 399-7443, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port San Francisco
DHS Department of Homeland Security
E.O. Executive Order
FR Federal Register
MOTCO Military Ocean Terminal Concord
NPRM Notice of Proposed Rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On August 27, 1996, the Department of the Army, Corps of Engineers 
published a final rule in the Federal Register (61 FR 43969) 
establishing a restricted area \1\ around the MOTCO

[[Page 37515]]

piers (33 CFR 334.1110). Although the restricted area prohibits public 
access to the piers at all times, it lacks a conditional boundary 
extension to be enforced during the presence of munitions laden vessels 
and/or military onload/offload activities. Prior to January 24, 2005, 
the Coast Guard would address this lack of a conditional boundary by 
publishing a temporary security zone of sufficient size in the area for 
each operation at MOTCO (see e.g., 68 FR 33382).
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    \1\ A ``restricted area'' is defined in Sec.  334.2 as a defined 
water area for the purpose of prohibiting or limiting public access 
to the area that generally provides security for Government property 
and/or protection to the public from the risks of damage or injury 
arising from the Government's use of that area.
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    On January 24, 2005, to address this issue on a more permanent 
basis, the Coast Guard published a final rule in the Federal Register 
(70 FR 3299) establishing a conditional 500-yard security zone around 
MOTCO's piers to be enforced during military onload/offload operations 
(33 CFR 165.1199). The security zone provides necessary security for 
military operations by providing a standoff distance for blast and 
collision, a surveillance and detection perimeter, and a margin of 
response time for security personnel.
    On July 1, 2015, the Coast Guard published a NPRM (80 FR 48787), 
with proposed changes to clarify responsibilities and authorities for 
enforcement of the security zone. There we stated why we issued the 
NPRM, and invited comments on our proposed regulatory action related to 
this security zone. During the comment period that ended on September 
14, 2015, we received 0 comments.

III. Legal Authority and Need for Rule

    The legal basis for this rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 
CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1, which collectively authorize the Coast Guard to 
establish security zones. This authority is separate from the 
Department of the Army, Corps of Engineers authority to provide 
appropriate security in defense of their waterfront facilities and for 
vessels moored thereto in accordance with the restricted area in 33 CFR 
334.1110.
    The purpose of this rulemaking is to advance the Coast Guard's 
efforts to thwart potential terrorist activity through security 
measures on U.S. ports and waterways.

IV. Discussion of Comments, Changes, and the Rule

    The current regulation at Sec.  165.1199 contains several items 
that are the subject of the revisions in this FR. The revisions to 
Sec.  165.1199 will clarify the regulations in a concise, 
understandable format.
    First, the Coast Guard revises Sec.  165.1199(c) by clarifying the 
Coast Guard's enforcement role during active loading operations, and 
the ability of the COTP to designate other representatives as having 
authority to enforce the security zone. The Coast Guard proposes to 
replace the existing term ``patrol personnel,'' in favor of a more 
appropriate term, ``designated representative,'' which includes 
federal, state and local officials designated by the COTP. This 
revision clarifies that the COTP may designate law enforcement 
officials other than Coast Guard personnel to patrol and enforce the 
security zone.
    The Coast Guard also revises the security zone so that it is 
enforceable at any time a vessel loaded with munitions is present at a 
pier (in addition to during military onload/offload operations). 
Without this revision, the existing security zone is enforceable during 
military onload or offload operations only.
    Additionally, the Coast Guard proposes to remove the existing 
provision regarding ``Local Notice to Mariners'' as a means of 
notifying the public that the security zone will be enforced. The 
security concern related to providing advance notification of the 
presence of an explosive load at a military base outweighs the benefit 
of advance notice of the security zone. Instead, the Coast Guard would 
notify the public of security zone enforcement (and suspensions of 
enforcement) via Broadcast Notice to Mariners and/or actual notice on-
scene during military onloads or offloads. This revision would better 
align the notification method of this security zone with the 
notification method for the existing safety zone in the area (see Sec.  
165.1198).
    No changes in the regulatory text of the rule in the NPRM.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes or executive orders.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, it has not been 
reviewed by the Office of Management and Budget.
    Security zone enforcement would be limited in duration, and limited 
to a narrowly tailored geographic area. In addition, although this rule 
would restrict access to the waters encompassed by the security zone, 
the effect of this rule would not be significant because the local 
waterway users will be notified via Broadcast Notice to Mariners and/or 
actual notice on-scene during military onloads or offloads. The 
entities most likely to be affected are waterfront facilities, 
commercial vessels, and pleasure craft engaged in recreational 
activities.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 received 0 comments from the Small Business 
Administration on this rulemaking. 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.
    This rule may affect owners and operators of waterfront facilities, 
commercial vessels, and pleasure craft engaged in recreational 
activities and sightseeing. The security zone would not have a 
significant economic impact on a substantial number of small entities 
for the following reasons. The security zone would be activated, and 
thus subject to patrol and enforcement, for a limited duration. When 
the security zone is activated, vessel traffic would be directed to 
pass safety around the security zone. The maritime public would be 
advised when transiting near the activated zone.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

[[Page 37516]]

    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 Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 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. If you believe this rule has 
implications for federalism or Indian tribes, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section above.

E. 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 (adjusted for 
inflation) 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.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule involves a security zone of limited size and duration. This rule 
is categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist supporting this determination and a Categorical Exclusion 
Determination are available in the docket where indicated under 
ADDRESSES. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

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 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Revise Sec.  165.1199 to read as follows:


Sec.  165.1199  Security Zones; Military Ocean Terminal Concord 
(MOTCO), Concord, California.

    (a) Location. The security zone(s) reside(s) within the navigable 
waters of Suisun Bay, California, extending from the surface to the sea 
floor, within 500 yards of the three Military Ocean Terminal Concord 
(MOTCO) piers in Concord, California.
    (b) Definitions. As used in this section, ``designated 
representative'' means any Coast Guard commissioned, warrant, or petty 
officer or any Federal, state, or local law enforcement officer who has 
been designated by the Captain of the Port San Francisco (COTP) to act 
on the COTP's behalf. The COTP's representative may be on a Coast Guard 
vessel, a Coast Guard Auxiliary vessel, a Federal, state, or local law 
enforcement vessel, or a location on shore.
    (c) Regulations. (1) The security zone(s) described in paragraph 
(a) of this section will be in force during active military onloading 
and/or offloading operations and at any time a vessel loaded with 
munitions is present at a pier.
    (2) When one or more piers are involved in onload or offload 
operations at the same time, there will be a 500-yard security zone for 
each involved pier.
    (3) Under the general regulations in subpart D of this part, entry 
into, transiting or anchoring within the security zone(s) described in 
paragraph (a) of this section is prohibited during times of enforcement 
unless authorized by the COTP or a designated representative.
    (4) Vessel operators desiring to enter or operate within the 
security zone(s) during times of enforcement must contact the COTP or a 
designated representative on VHF-16 or through the 24-hour Command 
Center at telephone (415) 399-3547 to obtain permission to do so. 
Vessel operators given permission to enter or operate in the security 
zone(s) must comply with all directions given to them by the COTP or a 
designated representative.
    (5) Upon being hailed by the COTP or designated representative by 
siren, radio, flashing light, or other means, the operator of a vessel 
approaching the security zone(s) must proceed as directed to avoid 
entering the security zone(s).
    (d) Notice of enforcement or suspension of enforcement of security 
zone(s). During periods that one or more security zones are enforced, 
the COTP or a designated representative will issue a Broadcast Notice 
to Mariners and/or notify mariners via actual notice on-scene. In 
addition, COTP maintains a telephone line that is maintained 24 hours a 
day, 7 days a week. The public can contact COTP at (415) 399-3547 to 
obtain information concerning enforcement of this section. When the

[[Page 37517]]

security zones are no longer needed, the COTP or designated 
representative will cease enforcement of the security zones. Upon 
suspension of enforcement, all persons and vessels are granted general 
permissions to enter, move within, and exit the security zones, but 
should remain cognizant of the applicable restricted area designated in 
33 CFR 334.1110.

    Dated: May 20, 2016.
Gregory G. Stump,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2016-13781 Filed 6-9-16; 8:45 am]
 BILLING CODE 9110-04-P