[Federal Register: November 25, 2003 (Volume 68, Number 227)]
[Proposed Rules]               
[Page 66064-66067]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no03-21]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 03-029]
RIN 1625-AA00

 
Security Zones; San Francisco Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish fixed 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, in 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 would be 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: Comments and related material must reach the Coast Guard on or 
before January 26, 2004.

ADDRESSES: You may mail comments and related material to the Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, Coast Guard Island, Alameda, California 94501. The Waterways 
Management Branch maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket and will be available for inspection or 
copying at the Waterways Management Branch between 9 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Doug Ebbers, Waterways 
Management Branch, U.S. Coast Guard Marine Safety Office San Francisco 
Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (COTP San 
Francisco Bay 03-029), indicate the specific section of this document 
to which each comment applies, and give the reason for each comment. 
Please submit all comments and related material in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying. If you would 
like to know that your submission reached us, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Management Branch at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

[[Page 66065]]

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 Al-Qaeda and other 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 proposed rulemaking, to address the 
aforementioned security concerns and to take steps to prevent the 
catastrophic impact that a terrorist attack against the Golden Gate or 
San Francisco-Oakland Bay bridge would have on the public, the Coast 
Guard is proposing to establish fixed security zones extending 25 yards 
in the U.S. navigable waters around all piers, abutments, fenders and 
pilings. Theses security zones would help the Coast Guard to prevent 
vessels or persons from engaging in terrorist actions against these two 
bridges. Due to these heightened security concerns, and the 
catastrophic impact a terrorist attack on one of these bridges would 
have on the public, the transportation system, and surrounding areas 
and communities, security zones are prudent for these structures.
    On February 13, 2003, we issued a rule under docket COTP San 
Francisco Bay 03-003 and published that rule in the Federal Register 
(68 FR 13228, March 19, 2003) creating temporary Sec.  165.T11-078 of 
Title 33 of the Code of Federal Regulations (CFR). Under temporary 
Sec.  165.T11-078, which expired at 11:59 p.m. PDT on September 30, 
2003, the Coast Guard established 25-yard fixed security zones around 
all piers, abutments, fenders and pilings of the Golden Gate Bridge and 
the San Francisco-Oakland Bay Bridge, San Francisco Bay, California.
    On September 8, 2003, a change in effective period temporary rule 
was issued, under docket COTP San Francisco Bay 03-003 and was 
published in the Federal Register (68 FR 55312, September 25, 2003), 
under the same previous temporary section 165.T11-078, extending the 
rule to 11:59 p.m. PST on March 31, 2004. The Captain of the Port has 
determined there is a need for continued security regulations.
    We propose to create permanent security zones in the same areas 
currently protected by temporary security zones under Sec.  165.T11-
078. Our proposed rule would add Sec.  165.1185, Security Zones; Golden 
Gate Bridge and the San Francisco-Oakland Bay Bridge, San Francisco 
Bay, California. The Coast Guard will utilize the extended effective 
period of the Sec.  165.T11-078 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.

Discussion of Proposed Rule

    The Coast Guard proposes to establish fixed security zones 
extending 25 yards in the U.S. navigable waters around all piers, 
abutments, fenders and pilings of the Golden Gate and San Francisco-
Oakland Bay bridges. In addition to restricting access to critical 
parts of bridge structures, these security zones would provide 
necessary standoff distance for blast and collision, a surveillance and 
detection perimeter, and a margin of response time for security 
personnel. This proposed rule, for security reasons, would prohibit 
entry of any vessel or person inside the security zone without specific 
authorization from the Captain of the Port or his designated 
representative.
    Vessels or persons violating this section would 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 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 would 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 proposed 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 economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. Although this proposed rule 
restricts access to the waters encompassed by the security zones, the 
effect of this proposed rule would not be significant because: (i) The 
zones would encompass only a small portion of the waterway; (ii) 
vessels would 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 size of the proposed zones is the minimum necessary to provide 
adequate protection for the bridges. 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 proposed rule would have a significant economic 
impact on a substantial number of small entities.

[[Page 66066]]

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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. We expect this proposed rule may affect 
owners and operators of private vessels, some of which may be small 
entities, intending to fish or sightsee near bridge pilings or 
abutments affected by these security zones. The proposed security zones 
would not have a significant economic impact on a substantial number of 
small entities for several reasons: small vessel traffic would be able 
to pass safely around the area and vessels engaged in recreational 
activities, sightseeing and commercial fishing would have ample space 
outside of the security zones to engage in these activities. Small 
entities and the maritime public would be advised of these security 
zones via public notice to mariners.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant Doug 
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety 
Office San Francisco Bay, at (510) 437-3073.

Collection of Information

    This proposed 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed 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 draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' (CED) are available in the 
docket where indicated under ADDRESSES. Comments on this section will 
be considered before we make the final decision on whether the rule 
should be categorically excluded from further environmental review.

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 proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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 N


    o. 0170.1.2. Add Sec.  165.1185, to read as follows:


165.1185  Security Zones; Golden Gate Bridge and the San Francisco-
Oakland Bay Bridge, San Francisco Bay, California.

    (a) Location. All waters, extending from the surface to the sea 
floor, within 25 yards of all piers, abutments, fenders and pilings of 
the Golden Gate Bridge and the San Francisco-Oakland Bay Bridge, in San 
Francisco Bay, California.

[[Page 66067]]

    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33 of this part, 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.
    (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 or her 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.

    Dated: November 4, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-29387 Filed 11-24-03; 8:45 am]

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