02-16753. Security Zones; San Francisco Bay, San Francisco, CA and Oakland, CA

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing two temporary security zones in areas of the San Francisco Bay adjacent to San Francisco International Airport and Oakland International Airport. These actions are necessary to ensure public safety and prevent sabotage or terrorist acts at these airports. Persons and vessels are prohibited from entering into or remaining in these security zones without permission of the Captain of the Port, or his designated representative.

DATES:

This rule is effective from 5 p.m. (PDT) on June 21, 2002 to 4:59 p.m. (PST) on December 21, 2002.

ADDRESSES:

U.S. Coast Guard Marine Safety Office, San Francisco Bay, Coast Guard Island, Building 14, Alameda, CA 94501-5100.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Ross Sargent, U.S. Coast Guard Marine Safety Office San Francisco Bay, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On October 30, 2001, we published COTP San Francisco Bay 01-009, a temporary final rule and request for comments, titled “Security Zones; San Francisco Bay, San Francisco, CA and Oakland, CA,” in the Federal Register (66 FR 54663) under 33 CFR 165.T11-095. That rule was similar to the one being enacted herein as it established security zones around both San Francisco and Oakland International airports.

On February 6, 2002, we published COTP San Francisco Bay 01-011, a temporary final rule and request for comments, titled “Security Zones; San Francisco Bay, San Francisco, CA and Oakland, CA” in the Federal Register (67 FR 5482) under 33 CFR 165.T11-097. Similar to its predecessor and the rule being enacted herein, that rule also established security zones around both San Francisco and Oakland International airports.

On September 11, 2001, two commercial aircraft were hijacked from Logan Airport in Boston, Massachusetts and flown into the World Trade Center in New York, New York inflicting catastrophic human casualties and property damage. On the same day, a similar attack was conducted on the Pentagon in Arlington, Virginia. Also, on the same date, a fourth commercial passenger airplane was hijacked, this one from Newark, New Jersey, and later crashed in Pennsylvania. National security officials warn that future terrorist attacks against civilian targets may be anticipated. A heightened level of security has been established concerning all vessels transiting in the San Francisco Bay, and particularly in waters adjacent to San Francisco International Airport and Oakland International Airport. These security zones are needed to protect the United States and more specifically the people, ports, waterways, and properties of the San Francisco Bay area.

The delay inherent in the NPRM process, and any delay in the effective date of this rule, is contrary to the public interest insofar as it may render individuals and facilities within and adjacent to the San Francisco and Oakland airports vulnerable to subversive activity, sabotage or terrorist attack. The measures contemplated by this rule are intended to prevent future terrorist attacks against individuals and facilities within or adjacent to these west coast airports. Immediate action is required to accomplish these objectives. Any delay in the effective date of this rule is impracticable and contrary to the public interest.

As of today, the need for security zones around San Francisco and Oakland International airports still exists. This new temporary final rule will begin at 5 p.m. (PDT) on June 21, 2002, the exact time that the previous airport security zones cease to be in effect, and is set to expire at 4:59 p.m. on December 21, 2002. We have discussed with San Francisco and Oakland airport representatives the continuing need for security zones and the possibility of making those or similar zones permanent, a process that may require several months to complete.

As authorized by 5 U.S.C. 553, we did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with the requirements of 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM, and that under 5 U.S.C. 553 (d)(3), good cause exists for making this regulation effective less than 30 days after publication in the Federal Register. We have requested public comments when publishing the previous regulations and have incorporated the received comments into the security zones being established by this temporary final rule.

Background and Purpose

On September 11, 2001, terrorists launched attacks on civilian and military targets within the United States killing large numbers of people and damaging properties of national significance. Vessels operating near the airports adjacent to the San Francisco Bay present possible platforms from which individuals may gain unauthorized access to the airports.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended the Ports and Waterways Safety Act (PWSA) 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. 33 U.S.C. 1226. The terrorist acts against the United States on September 11, 2001 have increased the need for safety and security measures on U.S. ports and waterways. In response to these terrorist acts, and in order to prevent similar occurrences, the Coast Guard is establishing two temporary security zones in the navigable waters of the United States surrounding San Francisco International Airport and Oakland International Airport.

On September 21, 2001 we issued a similar temporary final rule under docket COTP San Francisco Bay 01-009, and published that rule in the Federal Register (66 FR 54663, Oct. 30, 2001). Upon further reflection, and after discussion with airport officials and members of the public, we decided to withdraw the temporary section created by that rule (33 CFR 165.T11-095) and issue a new temporary section in Title 33 of the Code of Federal Regulations. That rule (33 CFR 165.T11-097, published in 67 FR 5482, Feb. 6, 2002), which established security zones extending 1000 yards seaward from the San Francisco and Oakland airport shorelines, will expire at 4:59 (LCL) on June 21, 2002.

We received several written comments about the latest rule (33 CFR 165.T11-097) and the 1000-yard security zones. Virtually all of those comments urged a reduction in size of the security zones in order to allow increased public access to San Francisco Bay for fishing, windsurfing and similar uses. We have also discussed with San Francisco and Oakland airport representatives the continuing need for security zones and the possibility of making those or similar zones permanent, a process that may require several months to complete. Upon considering the written comments and discussions regarding the security zones, we have decided to issue a new temporary final rule that will establish temporary security zones around San Francisco International and Oakland International airports extending approximately 200 yards seaward from the shorelines of each airport.

Discussion of Rule

The Coast Guard is establishing two security zones within the navigable waters of San Francisco Bay that will extend 200 yards seaward from the shorelines of the San Francisco International Airport and the Oakland International Airport. This distance from the shoreline is estimated to be an adequate zone size to provide increased security for each airport. The two security zones are designed to provide increased security for the airports, while minimizing the impact to vessel traffic, fishing, windsurfing and other activities upon San Francisco Bay.

These temporary security zones are necessary to provide for the safety and security of the United States of America and the people, ports, waterways and properties within the San Francisco Bay area. These zones will be enforced by the official patrol (Coast Guard commissioned, warrant or petty officers) onboard Coast Guard vessels and patrol craft. The official patrol may also be onboard the patrol craft and resources of any government agency that has agreed to assist the Coast Guard in the performance of its duties. Persons and vessels are prohibited from entering into or remaining in these security zones without permission of the Captain of the Port, or his designated representative. Each person and vessel in a security zone shall obey any direction or order of the COTP. The COTP may remove any person, vessel, article, or thing from a security zone. No person may board, or take or place any article or thing on board, any vessel in a security zone without the permission of the COTP.

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 for not more than 6 years and a fine of not more than $250,000), in rem liability against the offending vessel, and license sanctions. Any person who violates this regulation, 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 for up to 12 years (class C felony).

Regulatory Evaluation

This temporary final 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).

Due to the recent terrorist actions against the United States, the implementation of these security zones is necessary for the protection of the United States and its people. Because these security zones are established in an area of the San Francisco Bay that is seldom used, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10 (e) of the regulatory policies and procedures of DOT is unnecessary.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000.

These security zones will not have a significant impact on a substantial number of small entities because these security zones will not occupy an area of the San Francisco Bay that is frequently transited. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

Assistance For Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers 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 your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Ross Sargent, U.S. Coast Guard Marine Office San Francisco Bay at [phone].

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 and have determined that this rule 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. 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 have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation, because we are establishing security zones. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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 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. Add new § 165.T11-086 to read as follows:

§ 165.T11-086

Security Zones; Waters surrounding San Francisco International Airport and Oakland International Airport, San Francisco Bay, California.

(a) Locations: (1) San Francisco International Airport Security Zone. This security zone extends approximately 200 yards seaward from the shoreline of the San Francisco International Airport and encompasses all waters in San Francisco Bay within an area drawn from the following coordinates beginning at a point latitude 37°36′19″N and longitude 122°22′36″W; thence to 37°36′45″N and 122°22′18″W; thence to 37°36′26″N and 122°21′30″W; thence to 37°36′31″N and 122°21′21″W; thence to 37°36′17″N and 122°20′45″W; thence to 37°36′37″N and 122°20′40″W; thence to 37°36′50″N and 122°21′08″W; thence to 37°37′00″N and 122°21′12″; thence to 37°37′21″N and 122°21′53″W; thence to 37°37′39″N and 122°21′44″W; thence to 37°37′56″N and 122°21′51″W; thence to 37°37′50″N and 122°22′20″W; thence to 37°38′25″N and 122°22′54″W; thence to 37°38′25″N and 122°23′02″W, and along the shoreline back to the beginning point. Also, the lighted platform positioned approximately 1000 yards northeast of the airport shoreline is surrounded by a circular security zone with a radius extending 100 yards from the center point, 37°38′12″N and 122°21′40″W.

(2) Oakland International Airport Security Zone. This security zone extends approximately 200 yards seaward from the shoreline of the Oakland International Airport and encompasses all waters in San Francisco Bay within an area drawn from the following coordinates beginning at a point latitude 37°43′35″N and longitude 122°15′00″W; thence to 37°43′40″N and 122°15′05″W; thence to 37°43′34″N and 122°15′12″W; thence to 37°43′24″N and 122°15′11″W; thence to 37°41′54″N and 122°13′05″W; thence to 37°41′51″N and 122°12′48″W; thence to 37°41′53″N and 122°12′44″W; thence to 37°41′35″N and 122°12′18″W; thence to 37°41′46″N and 122°12′08″W; thence to 37°42′03″N and 122°12′34″W; thence to 37°42′08″N and 122°12′32″W; thence to 37°42′31″N and 122°12′35″W; thence to 37°42′35″N and 122°12′30″W; thence to 37°42′40″N and 122°12′06″W, and along the shoreline back to the beginning point.

(b) Effective period. This section is in effect from 5 p.m. (PDT) on June 21, 2002 to 4:59 p.m. (PST) on December 21, 2002. If the need for these security zones ends before the scheduled termination time, the Captain of the Port will cease enforcement of these security zones and will also announce that fact via Broadcast Notice to Mariners.

(c) Regulations. In accordance with the general regulations in § 165.33 of this part, no person or vessel may enter or remain in either of these security zones established by this temporary section, unless authorized by the Captain of the Port, his designated representative or the official patrol consisting of Coast Guard commissioned, warrant or petty officers onboard vessels and patrol craft of the Coast Guard or of any government agency or entity that has agreed to assist the Coast Guard in the performance of its duties. All other general regulations of § 165.33 of this part apply in the security zones established by this temporary section.

Dated: June 21, 2002.

L.L. Hereth,

Captain, Coast Guard, Captain of the Port, San Francisco Bay, California.