[Federal Register Volume 70, Number 183 (Thursday, September 22, 2005)]
[Proposed Rules]
[Pages 55607-55610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18935]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 05-007]
RIN 1625-AA87


Security Zones; San Francisco Bay, San Pablo Bay, Carquinez 
Strait, Suisun Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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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 
8\1/2\ 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

[[Page 55608]]

regulations 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

[[Page 55609]]

them 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 Sec.  165.1197, to read as follows:


Sec.  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[deg]55[min]52.2[sec] N            122[deg]24[min]04.7[sec] W
37[deg]55[min]41.8[sec] N            122[deg]24[min]07.1[sec] W
37[deg]55[min]26.8[sec] N            122[deg]24[min]35.9[sec] W
37[deg]55[min]47.1[sec] N            122[deg]24[min]55.5[sec] W
37[deg]55[min]42.9[sec] N            122[deg]25[min]03.5[sec] W
37[deg]55[min]11.2[sec] N            122[deg]24[min]32.8[sec] W
37[deg]55[min]14.4[sec] N            122[deg]24[min]27.5[sec] W
37[deg]55[min]19.7[sec] N            122[deg]24[min]23.7[sec] W
37[deg]55[min]22.2[sec] N            122[deg]24[min]26.2[sec] W
37[deg]55[min]38.5[sec] N            122[deg]23[min]56.9[sec] W
37[deg]55[min]47.8[sec] N            122[deg]23[min]53.3[sec] W
 



and along the shoreline back to the beginning point.
    (2) Conoco-Phillips Wharf, San Pablo Bay. This security zone 
includes all waters extending from the surface to the

[[Page 55610]]

sea floor within approximately 100 yards of the Conoco-Phillips Wharf, 
Rodeo, CA, and encompasses all waters in San Pablo Bay within a line 
connecting the following geographical positions--


Latitude                             Longitude
 
38[deg]03[min]06.0[sec] N            122[deg]15[min]32.4[sec] W
38[deg]03[min]20.7[sec] N            122[deg]15[min]35.8[sec] W
38[deg]03[min]21.8[sec] N            122[deg]15[min]29.8[sec] W
38[deg]03[min]29.1[sec] N            122[deg]15[min]31.8[sec] W
38[deg]03[min]23.8[sec] N            122[deg]15[min]55.8[sec] W
38[deg]03[min]16.8[sec] N            122[deg]15[min]53.2[sec] W
38[deg]03[min]18.6[sec] N            122[deg]15[min]45.2[sec] W
38[deg]03[min]04.0[sec] N            122[deg]15[min]42.0[sec] W
 



and along the shoreline back to the beginning point.
    (3) Shell Terminal, Carquinez Strait. This security zone includes 
all waters extending from the surface to the sea floor within 
approximately 100 yards of the Shell Terminal, Martinez, CA, and 
encompasses all waters in San Pablo Bay within a line connecting the 
following geographical position--


Latitude                             Longitude
 
38[deg]01[min]39.8[sec] N            122[deg]07[min]40.3[sec] W
38[deg]01[min]54.0[sec] N            122[deg]07[min]43.0[sec] W
38[deg]01[min]56.9[sec] N            122[deg]07[min]37.9[sec] W
38[deg]02[min]02.7[sec] N            122[deg]07[min]42.6[sec] W
38[deg]01[min]49.5[sec] N            122[deg]08[min]08.7[sec] W
38[deg]01[min]43.7[sec] N            122[deg]08[min]04.2[sec] W
38[deg]01[min]50.1[sec] N            122[deg]07[min]50.5[sec] W
38[deg]01[min]36.3[sec] N            122[deg]07[min]47.6[sec] W
 



and along the shoreline back to the beginning point.
    (4) Amorco Pier, Carquinez Strait. This security zone includes all 
waters extending from the surface to the sea floor within approximately 
100 yards of the Amorco Pier, Martinez, CA, and encompasses all waters 
in the Carquinez Strait within a line connecting the following 
geographical positions--


Latitude                             Longitude
 
38[deg]02'03.1'' N                   122[deg]07'11.9'' W
38[deg]02'05.6'' N                   122[deg]07'18.9'' W
38[deg]02'07.9'' N                   122[deg]07'14.9'' W
38[deg]02'13.0'' N                   122[deg]07'19.4'' W
38[deg]02'05.7'' N                   122[deg]07'35.9'' W
38[deg]02'00.5'' N                   122[deg]07'31.1'' W
38[deg]02'01.8'' N                   122[deg]07'27.3'' W
38[deg]01'55.0'' N                   122[deg]07'11.0'' W
 



and along the shoreline back to the beginning point.
    (5) Valero Pier, Carquinez Strait. This security zone includes all 
waters extending from the surface to the sea floor within approximately 
100 yards of the Valero Pier, Benicia, CA, and encompasses all waters 
in the Carquinez Strait within a line connecting the following 
geographical positions--

Latitude                             Longitude
 
38[deg]02'37.6'' N                   122[deg]07'51.5'' W
38[deg]02'34.7'' N                   122[deg]07'48.9'' W
38[deg]02'44.1'' N                   122[deg]07'34.9'' W
38[deg]02'48.0'' N                   122[deg]07'37.9'' W
38[deg]02'47.7'' N                   122[deg]07'42.1'' W
 



and along the shoreline back to the beginning point.
    (6) Avon Pier, Suisun Bay. This security zone includes all waters 
extending from the surface to the sea floor within approximately 100 
yards of the Avon Pier, Martinez, CA, and encompasses all waters in 
Suisun Bay within a line connecting the following geographical 
positions--

Latitude                             Longitude
 
38[deg]02'24.6'' N                   122[deg]04'52.9'' W
38[deg]02'54.0'' N                   122[deg]05'19.5'' W
38[deg]02'55.8'' N                   122[deg]05'16.1'' W
38[deg]03'02.1'' N                   122[deg]05'19.4'' W
38[deg]02'55.1'' N                   122[deg]05'42.6'' W
38[deg]02'48.8'' N                   122[deg]05'39.2'' W
38[deg]02'52.4'' N                   122[deg]05'27.7'' W
38[deg]02'46.5'' N                   122[deg]05'22.4'' W
 



and along the shoreline back to the beginning point.

    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.33, entry into the security zones described in paragraph (a) 
of this section is prohibited, unless specifically authorized by the 
Captain of the Port San Francisco Bay, or his designated 
representative.
    (2) Persons desiring to transit the area of a security zone may 
contact the Captain of the Port at telephone number (415) 399-3547 or 
on VHF-FM 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 designated 
representative.
    (c) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of these security zones by federal, state and local law 
enforcement assets.

    Dated: September 9, 2005.
W.J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 05-18935 Filed 9-21-05; 8:45 am]
BILLING CODE 4910-15-P