02-2358. Security Zone; San Diego Bay

AGENCY:

Coast Guard, DOT.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is expanding the geographical boundaries of the permanent security zone at Naval Base, San Diego, California, at the request of the U.S. Navy. The proposed security zone will expand across the mouth of Chollas Creek. The modification and expansion of this security zone is needed to ensure the physical protection of naval vessels moored at Naval Base, San Diego.

DATES:

This rule becomes effective December 17, 2001.

ADDRESSES:

Documents as indicated in this preamble are available for inspection or copying at the Coast Guard Marine Safety Office, 2716 North Harbor Drive, San Diego, CA 92101-1064 between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Christopher Hochschild, Vessel Traffic Management Section, 11th Coast Guard District, telephone [phone]; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Regulatory History

On April 23, 2001, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Security Zone; San Diego Bay in the Federal Register (66 FR 20412) to amend § 165.1102 in Title 33 of the Code of Federal Regulations (CFR). Two months later, technical amendments were made to Title 33 of the CFR, including a redesignation of § 165.1102 as 165.1101 (66 FR 33637, 33642, June 25, 2001). The Coast Guard did not receive any letters commenting on the proposed rule. No public hearing was requested, and none was held.

In keeping with the requirements of 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this regulation effective immediately. The Coast Guard balanced the necessity for immediate implementation against the principles of fundamental fairness which require that all effected persons be afforded a reasonable time to prepare for the effective date of the rule. In light of the events of September 11, 2001, the Coast Guard believes it is in the national interest to immediately implement the rule to avoid any gap in security zone coverage.

The Coast Guard further believes that it has provided the public adequate notice and time to adapt to the security zone's implementation through the NPRM. In addition, the California Coastal Commission, in its Coast Zone Management Act Determination of October 16, 2001 discussed the minimal impact the zone will have on the public: “These areas [including the subject security zone] are not typically used for recreational or commercial boating, and the restrictions will not adversely affect navigation or boating in San Diego Bay.”

The Coast Guard was delayed slightly in implementing this final rule because the attacks on the World Trade Center in New York and the Pentagon in Washington, DC caused the Coast Guard and the Navy to re-examine the whole scheme of security zones contemplated for San Diego to ensure they adequately met force protection and national defense needs.

Background and Purpose

The Coast Guard is modifying the security zone, enlarging it by approximately 300 square yards to enclose the mouth of Chollas Creek so that unauthorized vessels or persons cannot transit into Chollas Creek.

The modification and expansion of this security zone is needed to ensure the physical protection of naval vessels moored in the area. The modification and expansion of this security zone will also prevent recreational and commercial craft from interfering with military operations involving all naval vessels home-ported at Naval Base, San Diego and it will protect transiting recreational and commercial vessels, and their respective crews, from the navigational hazards posed by such military operations. The Navy has been reviewing all aspects of its anti-terrorism and force protection posture in response to the attack on the USS COLE.

The attacks of September 11, 2001 and the heightened state of military alert resulting therefrom add substantial urgency to the creation of this security zone. The modification and expansion of this security zone will safeguard vessels and waterside facilities from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature. Entry into, transit through, or anchoring within this security zone is prohibited unless authorized by the Captain of the Port or the Commander, Navy Region Southwest.

Vessels or persons violating this section would be subject to the penalties set forth in 50 U.S.C. 192 and 18 U.S.C. 3571: seizure and forfeiture of the vessel, a monetary penalty of not more than $250,000, and imprisonment for not more than 10 years.

The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.

Discussion of Comments and Changes

No comments were received during the NPRM comment period.

To reflect a naming change resulting from the Navy's 1998 regionalization process, the Coast Guard has made the following minor technical amendment to the final rule which did not appear in the NPRM: In paragraph (a) of the final rule, Naval Station, San Diego has been re-named as Naval Base, San Diego. In paragraph (b) of the final rule, Commander, Naval Base San Diego has been re-named as Commander, Navy Region Southwest. Also in paragraph (b), Commanding Officer, Naval Station, San Diego has been deleted.

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 Transportation (DOT)(44 FR 11040, February 26, 1979). This rule will have minimal additional impact on vessel traffic because it is only a slight modification and expansion of the existing security zone codified at 33 CFR 165.1102.

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.

Collection of Information

This final rule calls for no new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Federalism

The Coast Guard has analyzed this final rule under Executive Order 13132 and has 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) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs.

Taking of Private Property

This final rule will not affect 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 final rule meets the 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

The Coast Guard has analyzed this final 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 final 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. This rule is only a slight expansion of an area which already has the same restrictions discussed in the rule, and it does not alter any physical state of the surrounding waters. A Categorical Exclusion Determination and an Environmental Analysis Checklist are available in the docket at the location specified under the ADDRESSES portion of this rulemaking.

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

1. The authority citation for 33 CFR Part 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g) 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

2. In § 165.1101, revise paragraphs (a) and (b) and add a new paragraph (c) to read as follows:

§ 165.1101

Security Zone: San Diego Bay, California.

(a) Location. The following area is a security zone: the water area within Naval Base, San Diego enclosed by the following points: Beginning at 32°41′16.5″ N, 117°08′01″ W (Point A); thence running southwesterly to 32°41′06″ N, 117°08′09.3″ W (Point B); thence running southeasterly along the U.S. Pierhead Line to 32°39′36.9″ N, 117°07′23.5″ W (Point C); thence running easterly to 32°39′38.5″ N, 117°07′06.5″ W (Point D); thence running generally northwesterly along the shoreline of the Naval Base to the place of beginning.

(b) In accordance with the general regulations in § 165.33 of this part, entry into the area of this zone is prohibited unless authorized by the Captain of the Port or the Commander, Navy Region Southwest. Section 165.33 also contains other general requirements.

(c) The U.S. Coast Guard may be assisted in the patrol and enforcement of this security zone by the U.S. Navy.

Dated: December 17, 2001.

E.R. Riutta,

Vice Admiral, Coast Guard, Commander, Eleventh Coast Guard District.