05-18935. Security Zones; San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, CA

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish fixed security zones in the waters extending approximately 100 yards around six separate oil refinery piers in the San Francisco Bay area. These security zones are an integral part of the Coast Guard's efforts to protect these facilities and the surrounding areas from destruction or damage due to accidents, subversive acts, or other causes of a similar nature. The proposed security zones would prohibit all persons and vessels from entering, transiting through or anchoring within portions of the designated waters of San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun Bay, unless authorized by the Captain of the Port (“COTP”) or his designated representative. These zones will be subject to discretionary and random patrol and monitoring by Coast Guard, federal, state and local law enforcement assets.

DATES:

Comments and related material must reach the Coast Guard on or before November 21, 2005.

ADDRESSES:

You can mail comments and related material to the Waterways Safety Branch, U.S. Coast Guard Sector San Francisco, Coast Guard Island, Alameda, California 94501. The Waterways Safety 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 Safety Branch between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Ian Callander, U.S. Coast Guard Sector San Francisco, at (510) 437-3401 or the Sector San Francisco Command Center, at (415) 399-3547.

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 05-007), 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 81/2 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 Safety 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.

Background and Purpose

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 Start Printed Page 55608regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

To address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against an oil facility pier would have on the public and the environment, we propose to establish security zones in the waters within approximately 100 yards of six oil refinery piers. These zones are necessary to protect the people, ports, waterways, and properties of San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun Bay areas.

Discussion of Proposed Rule

The Coast Guard proposes to establish a separate fixed security zone around each of six oil refinery piers. The zones will encompass the waters extending from the surface to the sea floor, within an area approximately 100 yards around the selected oil refinery piers located within San Francisco Bay, California. The specific coordinates defining these zones are given in paragraph (a) of proposed 33 CFR 165.1197.

For the Chevron-Texaco oil facility, the proposed security zone would extend approximately 100 yards into the waters of San Francisco Bay around the Chevron Long Wharf, located in Richmond, California.

For the Conoco-Phillips oil facility, the proposed security zone would extend approximately 100 yards into the waters of San Pablo Bay around the Conoco-Philips Wharf, located in Rodeo, California.

For the Shell Martinez oil facility, the proposed security zone would extend approximately 100 yards into the waters of Carquinez Strait around the Shell Terminal, located in Martinez, California.

For the Tesoro-Amorco oil facility, the proposed security zone would extend approximately 100 yards into the waters of Carquinez Strait around the Amorco Pier, located in Martinez, California.

For the Valero oil facility, the proposed security zone would extend approximately 100 yards into the waters of Carquinez Strait around the Valero Pier, located in Benicia, California.

For the Tesoro-Avon oil facility, the proposed security zone would extend approximately 100 yards into the waters of Suisun Bay around the Avon Pier, located in Martinez, California.

These zones will be subject to discretionary and random patrol and monitoring by Coast Guard, federal, state and local law enforcement assets.

In December 2002, the Coast Guard established permanent moving security zones around all tank vessels within San Francisco Bay to enhance security during their transit, mooring and anchorage (67 FR 79854, December 31, 2002). This proposed rule would extend this level of security to oil refinery piers by restricting access to the waters surrounding the piers. Each of these proposed security zones would provide a margin of safety for ongoing operations at the refinery piers.

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 zones described herein, is punishable by civil penalties (not to exceed $32,500 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 may enlist the aid and cooperation of any Federal, State, county, municipal, or private agency to assist in the enforcement of the regulation.

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 small portions of the waterways, (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 are the minimum necessary to provide adequate protection for the oil refinery piers, vessels engaged in operations at the oil facility piers, their crews, other vessels operating in the vicinity, and the public.

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. 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. This proposed rule may affect the following entities, some of which may be small entities: owners and operators of private vessels intending to fish or sightsee near the oil refinery piers.

The proposed security zones would not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic would be able to pass safely around the area, (ii) vessels engaged in recreational activities, sightseeing and commercial fishing would have ample space outside of the security zones to engage in these activities, and (iii) vessels may receive authorization to transit through the zones by the Captain of the Port or his designated representative on a case-by-case basis. In addition to publication in the Federal Register, 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 proposed 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 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on Start Printed Page 55609them 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 Ian Callander, Waterways Safety Branch, U.S. Coast Guard Sector San Francisco, at (510) 437-3701 or the Sector San Francisco Command Center, at (415) 399-3547.

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.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

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 proposed rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it would establish security zones.

A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” (CED) will be 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 No. 0170.1.

2. Add § 165.1197, to read as follows:

§ 165.1197

Security Zones; San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, California.

(a) Locations. The following areas are security zones:

(1) Chevron Long Wharf, San Francisco Bay. This security zone includes all waters extending from the surface to the sea floor within approximately 100 yards of the Chevron Long Wharf, Richmond, CA, and encompasses all waters in San Francisco Bay within a line connecting the following geographical positions—

Latitude	Longitude
37°55′52.2″ N	122°24′04.7″ W
37°55′41.8″ N	122°24′07.1″ W
37°55′26.8″ N	122°24′35.9″ W
37°55′47.1″ N	122°24′55.5″ W
37°55′42.9″ N	122°25′03.5″ W
37°55′11.2″ N	122°24′32.8″ W
37°55′14.4″ N	122°24′27.5″ W
37°55′19.7″ N	122°24′23.7″ W
37°55′22.2″ N	122°24′26.2″ W
37°55′38.5″ N	122°23′56.9″ W
37°55′47.8″ N	122°23′53.3″ W