[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Rules and Regulations]
[Pages 2019-2022]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-547]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Diego 04-019]
RIN 1625-AA87
Security Zone; San Diego Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is expanding the geographical boundaries of
the permanent security zone at Naval Base San Diego. This action is
required to provide adequate area for the U.S. Navy to install an
upgraded barrier system and provide the minimum required separation
distances between the barrier and protected assets at Naval Station San
Diego. The revised security zone will run adjacent to the navigation
channel between Piers 14 and Pier 5. From the edge of the navigation
channel west of Pier 5, the proposed security zone extends to a point
400 feet opposite of Pier 1. The existing security zone at Naval
Station San Diego, implemented on April 15, 2003, does not provide
adequate separation distance between protected vessels and the proposed
barrier system.
DATES: This rule is effective February 11, 2005.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket SD 04-019 and are available for inspection or
copying between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: MSTC Todd Taylor at (619) 683-6434.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On September 13, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone; San Diego Bay'' in the Federal
Register (69 FR 55122). We received two letters and one e-mail
commenting on the proposed rule. No public meeting was requested, and
none was held. However, the proposal was raised as a point of
discussion during a previously scheduled San Diego Harbor Safety
Committee meeting in October 2004. The U.S. Navy and U.S. Coast Guard
participated in several meetings with the San Diego Bay Pilots
Association to discuss the impact of this revised security zone and the
installment of a permanent barrier system.
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Background and Purpose
On May 12, 2003, the Coast Guard published a final rule (68 FR
25288) creating a permanent security zone at Naval Station San Diego.
This security zone allowed the U.S. Navy to install a small barrier
system to protect critical assets at Naval Station San Diego. The U.S.
Navy now intends to install a permanent waterfront boat barrier to
protect all assets berthed at Naval Station San Diego. The existing
security zone does not provide sufficient area to install the permanent
barrier system or provide adequate minimum separation distance between
the barrier and protected assets.
Discussion of the Comments and Changes
The Coast Guard received a total of three written responses
following publication of the NPRM. San Diego Bay Pilots Association
(SDBPA) provided a written response dated October 4, 2004. Their letter
stated the SDBPA appreciated, respected, and supported the U.S. Navy's
need to protect and secure vital assets in San Diego Bay. It further
stated that the proposed extension between Pier 8 and Pier 14 was
reasonable and would result in minimal negative impact on the transit
of commercial traffic in the area. The SDBPA letter then identified
concerns regarding the proposed extension between Pier 1 and Pier 8.
Specifically, SDBPA was concerned that extending the security zone
and installing a Port Security Barrier would force the existing small
vessel traffic such as tugs and tows, excursion vessels and general
recreation vessels to intrude, or move closer to the shipping channel,
thereby increasing congestion in the channel and raising the potential
for marine accidents. The letter concluded by stating the SDBPA
believed the proposed extension between Pier 1 and Pier 8 should not be
extended farther than 400 feet from the pier heads, approximately 250
feet closer to shore than proposed in the NPRM.
Based on the SDBPA letter, the U.S. Coast Guard and U.S. Navy
initiated several open meetings with the marine pilots to address
specific concerns and operational plans for using the Port Security
Barrier. During the course of those meetings, the U.S. Navy agreed to
revise the coordinates of the mooring buoys at the north end of the
boom to address the San Diego Marine Pilot's concerns. Accordingly, the
Coast Guard revised the north western point of the security zone and
moved it approximately 250 feet southeast, from 32[deg]41'00.0'' N,
117[deg]08'12.7'' W to 32[deg]40'58.3'' N, 117[deg]08'11.0'' W.
The U.S. Navy also agreed to revise the manner by which the Port
Security Barrier would be opened and closed when vessels entered or
departed the security zone to lessen the impact to the shipping
channel. Specifically, the U.S. Navy proposed the barrier would be
opened and moved parallel to the shore rather than out into the
shipping channel.
The U.S. Coast Guard concurs with the U.S. Navy and the San Diego
Marine Pilots Association that the proposed security zone can safely be
extended approximately 400 feet west of the existing zone. Small vessel
traffic is relatively light in the area, and most vessels already stay
well clear of U.S. Navy's current barrier system. The impact to the
shipping channel will be minimal, and the benefits of providing
additional separation distance for the barrier system outweighs the
impact to the shipping channel. Therefore, the Coast Guard changed the
regulatory text of this proposal to identify a new geographic
coordinates for Point B at 32[deg]40'58.3'' N, 117[deg]08'11.0'' W.
The U.S. Coast Guard received one e-mail response from the U.S.
Navy Engineer in charge of the Port Security Barrier project stating he
had made a typographical error in the latitude coordinate original
project description. The Coast Guard had included that incorrect
coordinate in the regulatory text of the NPRM. Specifically, the NPRM
identifies the latitude of Point D as ``32[deg]40'27.4'' N'', but it
should have read ``32[deg]40'17.0'' N''. All charts and diagrams of
this security zone extension that were provided during the meetings and
discussions addressed previously had correctly represented the proposed
extension. Therefore, the Coast Guard has revised the regulatory text
to correctly identify the correct latitude coordinates for Point D.
The U.S. Coast Guard received one signed letter from a private
citizen stating strong support for the U.S. Coast Guard's and the U.S.
Navy's right and responsibility to demonstrate a strong presence in the
area as a deterrent to potential terror threats.
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).
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary.
Due to National Security interests, the implementation of this
security zone is necessary for the protection of the United States and
its people. The size of the zone is the minimum necessary to provide
adequate protection for U.S. Naval vessels, their crews, adjoining
areas, and the public. The entities most likely to be affected, if any,
are pleasure craft engaged in recreational activities and sightseeing.
Any hardships experienced by persons or vessels are considered minimal
compared to the national interest in protecting U.S. Naval vessels,
their crews, and the public.
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 does
not have a significant economic impact on a substantial number of small
entities because the expanded zone will still allow sufficient room for
vessels to transit the channel unimpeded.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. No small
entities requested assistance.
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). The
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Coast Guard will not retaliate against small entities that question or
complain about this rule or any policy or action of the Coast Guard.
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 does not result in such 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. The rule
is not economically significant and would not create an environmental
risk to health or risk to safety that might 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 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 rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that the rule 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 rule has not been designated by the
Administrator of the Office of Information and Regulatory Affairs as
significant energy actions. 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 rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this 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.
The U.S. Navy has separately considered the impact of their
proposed project including the placement of anti-small boat barrier
booms. The Coast Guard's analysis pertains solely to the expanded
placement of the markers designating the security zones already in the
waterway. A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' (CED) will be 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.
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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: 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.
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2. Revise Sec. 165.1101 to read as follows:
Sec. 165.1101 Security Zone: San Diego Bay, CA.
(a) Location. The following area is a security zone: the water area
within Naval Station, San Diego enclosed by the following points:
Beginning at 32[deg]41'16.5'' N, 117[deg]08'01'' W (Point A); thence
running southwesterly to 32[deg]40'58.3'' N, 117[deg]08'11.0'' W (Point
B); to 32[deg]40'36.0'' N 117[deg]07'49.1'' W (Point C); to
32[deg]40'17.0' N, 117[deg]07'34.6'' W (Point D); to 32[deg]39'36.4''
N, 117[deg]07'24.8'' W (Point E); to 32[deg]39'38.5'' N
117[deg]07'06.5'' W, (Point F); thence running generally northwesterly
along the shoreline of the Naval Station to the place of the beginning.
All coordinates referenced use datum: NAD 1983.
(b) Regulations. (1) In accordance with the general regulations in
Sec. 165.33 of this part, entry into the area of this zone is
prohibited unless authorized by the Captain of the Port San Diego;
Commander, Naval Base San Diego; Commander, Navy Region Southwest; or
the Commanding Officer, Naval Station, San Diego.
(2) Persons desiring to transit the area of the security zone may
contact the Captain of the Port at telephone number 619-683-6495 or on
VHF 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.
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(c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the
authority for this section includes 33 U.S.C. 1226.
(d) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of this security zone by the U.S. Navy.
Dated: December 23, 2004.
John E. Long,
Captain, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 05-547 Filed 1-11-05; 8:45 am]
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