[Federal Register Volume 81, Number 112 (Friday, June 10, 2016)]
[Rules and Regulations]
[Pages 37514-37517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13781]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2015-0330]
RIN 1625-AA87
Security Zone; Military Ocean Terminal Concord (MOTCO); Concord,
California
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is revising the existing conditional security
zone regulation currently in place in the navigable waters of Suisun
Bay, California, near Concord, California around each of the three
piers at the Military Ocean Terminal Concord (MOTCO), California
(formerly United States Naval Weapons Center Concord, California). This
action is intended to clarify responsibilities and authorities for
enforcement of the security zone.
DATES: This rule is effective from July 11, 2016.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2015-0330 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Marcia Medina, Sector San Francisco, U.S.
Coast Guard; telephone (415) 399-7443, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port San Francisco
DHS Department of Homeland Security
E.O. Executive Order
FR Federal Register
MOTCO Military Ocean Terminal Concord
NPRM Notice of Proposed Rulemaking
Pub. L. Public Law
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
On August 27, 1996, the Department of the Army, Corps of Engineers
published a final rule in the Federal Register (61 FR 43969)
establishing a restricted area \1\ around the MOTCO
[[Page 37515]]
piers (33 CFR 334.1110). Although the restricted area prohibits public
access to the piers at all times, it lacks a conditional boundary
extension to be enforced during the presence of munitions laden vessels
and/or military onload/offload activities. Prior to January 24, 2005,
the Coast Guard would address this lack of a conditional boundary by
publishing a temporary security zone of sufficient size in the area for
each operation at MOTCO (see e.g., 68 FR 33382).
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\1\ A ``restricted area'' is defined in Sec. 334.2 as a defined
water area for the purpose of prohibiting or limiting public access
to the area that generally provides security for Government property
and/or protection to the public from the risks of damage or injury
arising from the Government's use of that area.
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On January 24, 2005, to address this issue on a more permanent
basis, the Coast Guard published a final rule in the Federal Register
(70 FR 3299) establishing a conditional 500-yard security zone around
MOTCO's piers to be enforced during military onload/offload operations
(33 CFR 165.1199). The security zone provides necessary security for
military operations by providing a standoff distance for blast and
collision, a surveillance and detection perimeter, and a margin of
response time for security personnel.
On July 1, 2015, the Coast Guard published a NPRM (80 FR 48787),
with proposed changes to clarify responsibilities and authorities for
enforcement of the security zone. There we stated why we issued the
NPRM, and invited comments on our proposed regulatory action related to
this security zone. During the comment period that ended on September
14, 2015, we received 0 comments.
III. Legal Authority and Need for Rule
The legal basis for this rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33
CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security
Delegation No. 0170.1, which collectively authorize the Coast Guard to
establish security zones. This authority is separate from the
Department of the Army, Corps of Engineers authority to provide
appropriate security in defense of their waterfront facilities and for
vessels moored thereto in accordance with the restricted area in 33 CFR
334.1110.
The purpose of this rulemaking is to advance the Coast Guard's
efforts to thwart potential terrorist activity through security
measures on U.S. ports and waterways.
IV. Discussion of Comments, Changes, and the Rule
The current regulation at Sec. 165.1199 contains several items
that are the subject of the revisions in this FR. The revisions to
Sec. 165.1199 will clarify the regulations in a concise,
understandable format.
First, the Coast Guard revises Sec. 165.1199(c) by clarifying the
Coast Guard's enforcement role during active loading operations, and
the ability of the COTP to designate other representatives as having
authority to enforce the security zone. The Coast Guard proposes to
replace the existing term ``patrol personnel,'' in favor of a more
appropriate term, ``designated representative,'' which includes
federal, state and local officials designated by the COTP. This
revision clarifies that the COTP may designate law enforcement
officials other than Coast Guard personnel to patrol and enforce the
security zone.
The Coast Guard also revises the security zone so that it is
enforceable at any time a vessel loaded with munitions is present at a
pier (in addition to during military onload/offload operations).
Without this revision, the existing security zone is enforceable during
military onload or offload operations only.
Additionally, the Coast Guard proposes to remove the existing
provision regarding ``Local Notice to Mariners'' as a means of
notifying the public that the security zone will be enforced. The
security concern related to providing advance notification of the
presence of an explosive load at a military base outweighs the benefit
of advance notice of the security zone. Instead, the Coast Guard would
notify the public of security zone enforcement (and suspensions of
enforcement) via Broadcast Notice to Mariners and/or actual notice on-
scene during military onloads or offloads. This revision would better
align the notification method of this security zone with the
notification method for the existing safety zone in the area (see Sec.
165.1198).
No changes in the regulatory text of the rule in the NPRM.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes or executive orders.
A. Regulatory Planning and Review
E.O.s 12866 and 13563 direct agencies to assess the costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits.
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has not been designated a ``significant
regulatory action,'' under E.O. 12866. Accordingly, it has not been
reviewed by the Office of Management and Budget.
Security zone enforcement would be limited in duration, and limited
to a narrowly tailored geographic area. In addition, although this rule
would restrict access to the waters encompassed by the security zone,
the effect of this rule would not be significant because the local
waterway users will be notified via Broadcast Notice to Mariners and/or
actual notice on-scene during military onloads or offloads. The
entities most likely to be affected are waterfront facilities,
commercial vessels, and pleasure craft engaged in recreational
activities.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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 received 0 comments from the Small Business
Administration on this rulemaking. 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.
This rule may affect owners and operators of waterfront facilities,
commercial vessels, and pleasure craft engaged in recreational
activities and sightseeing. The security zone would not have a
significant economic impact on a substantial number of small entities
for the following reasons. The security zone would be activated, and
thus subject to patrol and enforcement, for a limited duration. When
the security zone is activated, vessel traffic would be directed to
pass safety around the security zone. The maritime public would be
advised when transiting near the activated zone.
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 rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
[[Page 37516]]
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 Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under E.O. 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under E.O. 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. If you believe this rule has
implications for federalism or Indian tribes, please contact the person
listed in the FOR FURTHER INFORMATION CONTACT section above.
E. 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 (adjusted for
inflation) 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.
F. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule involves a security zone of limited size and duration. This rule
is categorically excluded from further review under paragraph 34(g) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a Categorical Exclusion
Determination are available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.
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
0
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, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Revise Sec. 165.1199 to read as follows:
Sec. 165.1199 Security Zones; Military Ocean Terminal Concord
(MOTCO), Concord, California.
(a) Location. The security zone(s) reside(s) within the navigable
waters of Suisun Bay, California, extending from the surface to the sea
floor, within 500 yards of the three Military Ocean Terminal Concord
(MOTCO) piers in Concord, California.
(b) Definitions. As used in this section, ``designated
representative'' means any Coast Guard commissioned, warrant, or petty
officer or any Federal, state, or local law enforcement officer who has
been designated by the Captain of the Port San Francisco (COTP) to act
on the COTP's behalf. The COTP's representative may be on a Coast Guard
vessel, a Coast Guard Auxiliary vessel, a Federal, state, or local law
enforcement vessel, or a location on shore.
(c) Regulations. (1) The security zone(s) described in paragraph
(a) of this section will be in force during active military onloading
and/or offloading operations and at any time a vessel loaded with
munitions is present at a pier.
(2) When one or more piers are involved in onload or offload
operations at the same time, there will be a 500-yard security zone for
each involved pier.
(3) Under the general regulations in subpart D of this part, entry
into, transiting or anchoring within the security zone(s) described in
paragraph (a) of this section is prohibited during times of enforcement
unless authorized by the COTP or a designated representative.
(4) Vessel operators desiring to enter or operate within the
security zone(s) during times of enforcement must contact the COTP or a
designated representative on VHF-16 or through the 24-hour Command
Center at telephone (415) 399-3547 to obtain permission to do so.
Vessel operators given permission to enter or operate in the security
zone(s) must comply with all directions given to them by the COTP or a
designated representative.
(5) Upon being hailed by the COTP or designated representative by
siren, radio, flashing light, or other means, the operator of a vessel
approaching the security zone(s) must proceed as directed to avoid
entering the security zone(s).
(d) Notice of enforcement or suspension of enforcement of security
zone(s). During periods that one or more security zones are enforced,
the COTP or a designated representative will issue a Broadcast Notice
to Mariners and/or notify mariners via actual notice on-scene. In
addition, COTP maintains a telephone line that is maintained 24 hours a
day, 7 days a week. The public can contact COTP at (415) 399-3547 to
obtain information concerning enforcement of this section. When the
[[Page 37517]]
security zones are no longer needed, the COTP or designated
representative will cease enforcement of the security zones. Upon
suspension of enforcement, all persons and vessels are granted general
permissions to enter, move within, and exit the security zones, but
should remain cognizant of the applicable restricted area designated in
33 CFR 334.1110.
Dated: May 20, 2016.
Gregory G. Stump,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2016-13781 Filed 6-9-16; 8:45 am]
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