[Federal Register: September 25, 2003 (Volume 68, Number 186)]
[Rules and Regulations]
[Page 55312-55314]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25se03-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-003]
RIN 1625-AA00
Security Zones; San Francisco Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule; change in effective period.
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SUMMARY: The Coast Guard is revising the effective period of the
temporary security zones extending 25 yards in the U.S. navigable
waters around all piers, abutments, fenders and pilings of the Golden
Gate Bridge and the San Francisco-Oakland Bay Bridge, San Francisco
Bay, California. These security zones are needed for national security
reasons to protect the public and ports from potential subversive acts.
Entry into these security zones is prohibited, unless doing so is
necessary for safe navigation, to conduct official business such as
scheduled maintenance or retrofit operations, or unless specifically
authorized by the Captain of the Port San Francisco Bay, or his
designated representative.
DATES: The amendment to 33 CFR 165.T11-078(f) in this rule is effective
September 30, 2003. Section 165.T11-078, added at 68 FR 13230, March
19, 2003, effective from 11 a.m. PST on February 13, 2003, to 11:59
p.m. PDT on September 30, 2003, as amended in this rule, is extended in
effect to 11:59 p.m. PST on March 31, 2004.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket [COTP San Francisco Bay 03-003] 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, Waterways
Branch U.S. Coast Guard Marine Safety Office San Francisco Bay, at
(510) 437-3073.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On March 19, 2003, we published a temporary final rule (TFR) for
the Golden Gate and San Francisco-Oakland Bay bridges entitled
``Security Zones; San Francisco Bay, CA'' in the Federal Register (68
FR 13228) under 33 CFR 165.T11-078. It has been in effect since
February 13, 2003, and is set to expire 11:59 p.m. PDT on September 30,
2003.
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 an NPRM. In addition, 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, for the following reasons. The threat of maritime attacks is
real as evidenced by the October 2002 attack of a tank vessel off the
coast of Yemen and the continuing threat to U.S. assets as described in
the President's finding, found at Executive Order 13273 of August 21,
2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is
endangered as evidenced by the September, 11, 2001 attacks and that
such disturbances continue 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); Continuation of the National Emergency With Respect To Persons
Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447,
September 20, 2002). Additionally, a Maritime Advisory was issued to:
Operators of U.S. Flag and Effective U.S. controlled Vessels and other
Maritime Interests, detailing the current threat of attack, MARAD 02-07
(October 10, 2002). Consequently, a heightened level of security has
been established around all high visibility targets in San Francisco
Bay and Delta ports. The measures contemplated by this rule are
intended to prevent future terrorist attacks against individuals and
facilities on or adjacent to the Golden Gate or San Francisco-Oakland
Bay bridges. Any delay in the effective date of this TFR is impractical
and contrary to the public interest.
The original temporary final rule was urgently required to prevent
possible terrorist strikes against the United States and more
specifically the people, waterways, and properties on and near the
Golden Gate or San Francisco-Oakland Bay bridges. It was anticipated
that we would assess the security environment at the end of the
enforcement period to determine whether continuing security precautions
were required and, if so, propose regulations responsive to existing
conditions. We have determined that the need for continued security
regulations exists.
The measures contemplated by this extension to the original
temporary final rule are intended to facilitate ongoing response
efforts and prevent future terrorist attack. The Coast Guard will
utilize the extended enforcement period created by this TFR to confer
with the bridge owners to determine if permanent fixed security zones
around all piers, abutments, fenders and pilings of the Golden Gate
Bridge and the San Francisco-Oakland Bay Bridge are appropriate. If a
threat assessment confirms the need for permanent zones, we will
publish a notice of proposed rulemaking (NPRM) that will allow for a
public comment period and develop permanent regulations tailored to the
present and foreseeable security environment with the Captain of the
Port (COTP) San Francisco Bay. This
[[Page 55313]]
revision preserves the status quo within the Ports while threat
assessments are conducted and--if it is determined they are necessary--
permanent regulations are developed.
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
Iraq have made it prudent for U.S. ports to be on a higher state of
alert because the Al-Qaeda organization and other similar organizations
have declared an 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 and to take steps to prevent the catastrophic impact
that a terrorist attack against the Golden Gate Bridge or the San
Francisco-Oakland Bay Bridge would have on the public, the Coast Guard
is revising the enforcement period of the temporary security zones
extending 25 yards in the U.S. navigable waters around all piers,
abutments, fenders and pilings of the Golden Gate Bridge and the San
Francisco-Oakland Bay Bridge, San Francisco Bay, California. These
security zones help the Coast Guard to prevent vessels or persons from
engaging in terrorist actions against these two bridges.
As of today, the need for security zones around the Golden Gate
Bridge and the San Francisco-Oakland Bay Bridge still exists. This
temporary final rule will extend the enforcement period of security
zones that were set to expire September 30, 2003, for and additional 6
months. The amended effective dates will be from September 30, 2003, to
March 31, 2004. This period will allow the bridge owners to conduct a
threat assessment to determine if permanent security zones are
appropriate. In addition, if permanent security zones are deemed
appropriate, this period will allow the Coast Guard time to publish a
notice of proposed rulemaking (NPRM) in the Federal Register, which
will include a public comment period, and for a final rule to be put
into effect without there being an interruption in the protection
provided by these security zones.
Discussion of Rule
On March 19, 2003, we published the temporary final rule [COTP San
Francisco Bay 03-003] titled ``Security Zones; San Francisco Bay, CA''
in the Federal Register (68 FR 13228). That rule established fixed
security zones extending from the surface to the sea floor, 25 yards in
the waters around all piers, abutments, fenders and pilings of the
Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, San
Francisco Bay, California.
The Coast Guard will utilize the extended enforcement period of
these security zones to work with bridge owners to determine if
permanent security zones are appropriate and, if so, to engage in
notice-and-comment rulemaking to develop permanent regulations tailored
to the present and foreseeable security environment with the Captain of
the Port (COTP) San Francisco Bay.
In this regulation, the Coast Guard is extending the enforcement
period of the current security zones for the Golden Gate Bridge and the
San Francisco-Oakland Bay Bridge, San Francisco Bay, California. These
security zones will encompass all waters, extending from the surface to
the sea floor, within 25 yards around all piers, abutments, fenders and
pilings of the two bridges. Vessels and people may be allowed to enter
an established security zone on a case-by-case basis with authorization
from the Captain of the Port.
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 as well as a
civil penalty of not more than $25,000 for each day of a continuing
violation.
The Captain of the Port will enforce these zones 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 the zones, the effect
of this regulation will not be significant because: (i) The zones will
encompass only a small portion of the waterway; (ii) vessels will be
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 sizes of the zones are the minimum necessary to provide
adequate protection for the bridges and the nearby public. The entities
most likely to be affected are commercial vessels transiting the main
ship channel en route to the San Francisco Bay and Delta ports 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
[[Page 55314]]
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 or operators of vessels intending to
transit or anchor near the Golden Gate Bridge or the San Francisco-
Oakland Bay Bridge. The security zones will not have a significant
economic impact on a substantial number of small entities for several
reasons: small vessel traffic can pass safely around the area and
vessels engaged in recreational activities, sightseeing and commercial
fishing have ample space outside of the security 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 (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 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 M16475.1D,
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 ``Categorical
Exclusion Determination'' is 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; 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 paragraph (f) of temporary Sec. 165.T11-078, to read as
follows:
Sec. 165.T11-078 Security Zones; Golden Gate Bridge and the San
Francisco-Oakland Bay Bridge, San Francisco Bay, California.
* * * * *
(f) Effective period. This section is effective at 11 a.m. PST on
February 13, 2003, and will terminate at 11:59 p.m. PST on March 31,
2004.
Dated: September 8, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay,
California.
[FR Doc. 03-23771 Filed 9-24-03; 8:45 am]
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