[Federal Register: December 29, 2003 (Volume 68, Number 248)]
[Rules and Regulations]
[Page 74863-74866]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de03-10]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-030]
RIN 1625-AA00
Security Zone; Suisun Bay, Concord, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary security zone in
the navigable waters of the United States adjacent to the Military
Ocean Terminal Concord (MOTCO), California (formerly United States
Naval Weapons Center Concord, California). In light of recent terrorist
actions against the United States, the security zone is necessary to
ensure the safe onloading and offloading of military equipment and to
ensure the safety of the nearby public from potential subversive acts.
The security zone will prohibit all persons and vessels from entering,
transiting through or anchoring within a portion of the Suisun Bay
surrounding the MOTCO unless authorized by the Captain of the Port
(COTP) or his designated representative.
DATES: This rule is effective from 7 a.m. PST on December 21, 2003, to
11:59 p.m. PST on January 3, 2004.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket [COTP San Francisco Bay 03-030] and are
available for inspection or copying at Coast Guard 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 Doug Ebbers, U.S. Coast
Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.
SUPPLEMENTARY INFORMATION:
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a NPRM. Additionally, 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 as the schedule and other logistical details were not known
until a date fewer than 30 days prior to the start date of the military
operation. Publishing a NPRM and delaying this rule's effective date
would be contrary to the public interest since the safety and security
of the people, ports, waterways, and properties of the Port Chicago and
Suisun Bay areas would be jeopardized without the protection afforded
by this security zone. Any delay in implementing this rule would be
contrary to the public interest since immediate action is necessary to
ensure the protection of all cargo vessels, their crews, the public and
national security.
Background and Purpose
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. In addition, the ongoing hostilities in Afghanistan and
the conflict in Iraq have made it prudent for U.S. ports to be on a
higher state of alert because Al-Qaeda and other organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide.
The threat of maritime attacks is real as evidenced by the attack
on the USS Cole and the subsequent attack in October 2002 against a
tank vessel off the coast of Yemen. These threats manifest a continuing
threat to U.S. assets as described in the President's finding in
Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3,
2002) that the security of the U.S. is endangered by the September 11,
2001 attacks and that such aggression continues to endanger the
international relations of the United States. See also Continuation of
the National Emergency with Respect to Certain Terrorist Attacks (67 FR
58317, September 13, 2002), and Continuation of the National Emergency
with Respect to Persons Who Commit, Threaten To Commit, Or Support
Terrorism (67 FR 59447, September 20, 2002). The U.S. Maritime
Administration (MARAD) in Advisory 02-07 advised U.S. shipping
interests to maintain a heightened status of alert against possible
terrorist attacks. MARAD more recently issued Advisory 03-05 informing
operators of maritime interests of increased threat possibilities to
vessels and facilities and a higher risk of terrorist attack to the
transportation
[[Page 74864]]
community in the United States. The ongoing foreign hostilities have
made it prudent for U.S. ports and waterways to be on a higher state of
alert because the Al-Qaeda organization and other similar organizations
have declared and ongoing intention to conduct armed attacks on U.S.
interests worldwide.
In its effort to thwart 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 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, to address the aforementioned
security concerns, United States Army officials have requested that the
Captain of the Port, San Francisco Bay, California, establish a
temporary security zone in the navigable waters of the United States
surrounding the Military Ocean Terminal Concord (MOTCO), California, to
safeguard vessels, cargo and crew engaged in military operations. This
temporary security zone is necessary to safeguard the MOTCO terminal
and the surrounding property from sabotage or other subversive acts,
accidents or criminal acts. This zone is also necessary to protect
military operations from compromise and interference and to
specifically protect the people, ports, waterways, and properties of
the Port Chicago and Suisun Bay areas.
Discussion of Rule
In this temporary rule, the Coast Guard is establishing a fixed
security zone around Military Ocean Terminal Concord (MOTCO),
California, encompassing the navigable waters, extending from the
surface to the sea floor, within a line connecting the following
coordinates: latitude 38[deg]03'07'' N and longitude 122[deg]03'00'' W;
thence to latitude 38[deg]03'15'' N and longitude 122[deg]03'04'' W;
thence to latitude 38[deg]03'30'' N and longitude 122[deg]02'35'' W;
thence to latitude 38[deg]03'50'' N and longitude 122[deg]01'15'' W;
thence to latitude 38[deg]03'41'' N and longitude 122[deg]00'03'' W;
thence to latitude 38[deg]03'18'' N and longitude 121[deg]59'31'' W,
and along the shoreline back to the beginning point. The area
encompassed by these connecting points includes the Seal Island
Channel, all of the Port Chicago Reach section of the deepwater
channel, and a small portion of both the Roe Island Channel and Middle
Ground West Reach sections of the deepwater channel. Persons and
vessels are prohibited from entering, transiting through or anchoring
within the security zone unless authorized by the Captain of the Port
(COTP) or his designated representative.
Vessels or persons violating this section 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 $27,500 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, will also
face 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 will enforce this zone and may
enlist the aid and cooperation of any Federal, State, county,
municipal, and private agency to assist in the enforcement of the
regulation. This regulation is proposed under the authority of 33
U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and
33 U.S.C. 1231.
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 regulation restricts access to portions of navigable
waters, the effect of this regulation will not be significant because
the zone will encompass only a small portion of the waterway for a
short duration. Vessels and persons 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 zone is the minimum necessary to provide adequate
protection for MOTCO, vessels engaged in operations at MOTCO, their
crews, other vessels operating in the vicinity, and the public. The
entities most likely to be affected are commercial vessels transiting
to or from Suisun Bay via the Port Chicago Reach section of the
channel.
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. This rule will affect the following entities, some of which
may be small entities: the owners and operators of vessels intending to
anchor or transit to or from Suisun Bay via the Port Chicago Reach
section of the channel. Although the security zone will occupy a
section of the navigable channel (Port Chicago Reach) adjacent to the
Marine Ocean Terminal Concord (MOTCO), vessels may receive
authorization to transit through the zone by the Captain of the Port or
his designated representative on a case-by-case basis. Additionally,
vessels engaged in recreational activities, sightseeing and commercial
fishing will have ample space outside of the security zone to engage in
these activities. Small entities and the maritime public will be
advised of this security zone via public 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 offer to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. If the
rule will affect your small business, organization, or government
jurisdiction and you have questions
[[Page 74865]]
concerning its provisions or options for compliance, please contact the
person listed under FOR FURTHER INFORMATION CONTACT for assistance in
understanding this rule.
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.
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.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where located 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 Sec. 165.T11-099 to read as follows:
Sec. 165.T11-099 Security Zone; Navigable Waters of the United States
Surrounding Military Ocean Terminal Concord (MOTCO), Concord,
California.
(a) Location. The security zone, which will be marked by lighted
buoys, will encompass the navigable waters, extending from the surface
to the sea floor, surrounding the Military Ocean Terminal Concord,
Concord, California, within a line connecting the following
coordinates: latitude 38[deg]03'07'' N and longitude 122[deg]03'00'' W;
thence to latitude 38[deg]03'15'' N and longitude 122[deg]03'04'' W;
thence to latitude 38[deg]03'30'' N and longitude 122[deg]02'35'' W;
thence to latitude 38[deg]03'50'' N and longitude 122[deg]01'15'' W;
thence to latitude 38[deg]03'41'' N and longitude 122[deg]00'03'' W;
thence to latitude 38[deg]03'18'' N and longitude 121[deg]59'31'' W,
and along the shoreline back to the beginning point.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entering, transiting through or anchoring 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 Patrol Commander on scene on VHF-FM channel 13 or 16 or the
Captain of the Port at telephone number 415-399-3547 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.
(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 the security zone by local law enforcement and the
MOTCO police as necessary.
(e) Effective period. This section becomes effective at 7 a.m. PST
on December 21, 2003, and terminates at 11:59 p.m. PST on January 3,
2004.
[[Page 74866]]
Dated: December 17, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 03-31892 Filed 12-24-03; 8:45 am]
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