[Federal Register Volume 74, Number 99 (Tuesday, May 26, 2009)]
[Rules and Regulations]
[Pages 24699-24701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12064]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0300]
RIN 1625-AA00


Safety Zone; Use of Force Training Flights, San Pablo Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters of San Pablo Bay, California for training purposes. 
This safety zone is established to ensure the safety of the public and 
participating crews from potential hazards associated with fast-moving 
Coast Guard small boats taking part in the exercises. Blank ammunition 
will be used during these exercises. Unauthorized persons or vessels 
are prohibited from entering into, transiting through, or remaining in 
the safety zone without permission of the Captain of the Port San 
Francisco or his designated representative.

DATES: This safety zone is effective from May 5, 2009, to December 31, 
2009. See Supplementary Information section for dates of actual 
training events.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0300 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0300 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are also available for inspection or copying 
at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant Junior Grade Simone Mausz 
U.S. Coast Guard Sector San Francisco; telephone (415) 399-7442, e-
mail, [email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. The Coast Guard is establishing this safety zone to conduct 
mission-essential training directly related to military operations and 
national security. Accordingly, based on the military function 
exception to the Administrative Procedure Act, 5 U.S.C. 553(a)(1), 
notice and comment rulemaking under 5 U.S.C. 553(b) and an effective 
date of 30 days after publication under 5 U.S.C. 553(d) are not 
required for this rule.
    Even if the Coast Guard were required to comply with the notice and 
comment provisions of the Administrative Procedure Act, under 5 U.S.C. 
553(b)(B), we find that good cause exists for not publishing an NPRM. 
This exercise is necessary to train and qualify Coast Guard personnel 
in the use of weapons. This training is necessary to ensure that Coast 
Guard personnel are properly trained and qualified to conduct military 
and national security operations to secure ports and waterways. Failure 
to conduct this required training at this time will result in a lapse 
in personnel qualifications and, consequently, impair the ability of 
Coast Guard personnel to carry out important national security 
functions at any time. It is impracticable, unnecessary, and contrary 
to the public interest to delay the issuance of this rule. Further, any 
delay in the effective date of this rule would expose mariners to the 
potential hazards posed by the exercises.
    For the same reasons, the Coast Guard also finds under 5 U.S.C. 
553(d)(3) that good cause exists for making this rule effective less 
than 30 days after publication in the Federal Register.

Background and Purpose

    U.S. Coast Guard Air Station San Francisco will be conducting 
airborne use of force training flights on May 5, 8, 19, 22; June 9, 11, 
30; July 2, 14, 17, 28, 31; and every Tuesday, Thursday, and Friday 
from August 1, 2009 to December 31, 2009 in the waters of San Pablo 
Bay, California. The exercises are designed to train and test Coast 
Guard personnel in the judgment and decision-making processes necessary 
to safely and effectively employ use of force during homeland security 
incidents. The training will generally involve the use of Coast Guard 
helicopters to intercept fast-moving, evasive small boats on the water. 
The helicopter crews will fire weapons at the small boats using blank 
ammunition and catch bags to ensure that cartridges and other debris do 
not fall to the water. This safety zone is issued to establish a 
temporary restricted area in San Pablo Bay around the training site.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone in the 
navigable waters of San Pablo Bay, California. During the exercises, 
the safety zone applies to the waters, from the surface to the 
seafloor, enclosed within lines connecting the following points: 
Beginning at 38[deg]05'11'' N, 122[deg]22'10'' W; thence to 
38[deg]03'44'' N, 122[deg]20'12'' W; thence to 38[deg]00'41'' N, 
122[deg]25'28'' W; thence to 38[deg]01'45'' N, 122[deg]26'38'' W; 
thence back to 38[deg]05'11'' N, 122[deg]22'10'' W (NAD 83).
    The effect of the temporary safety zone will be to restrict 
navigation in the vicinity of the exercises. Except for persons or 
vessels authorized by the Coast Guard Patrol Commander, no person or 
vessel may enter or remain in the restricted area. These regulations 
are intended to keep the public a safe distance away from the 
participating small boats and to ensure the safety of transiting 
vessels.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

[[Page 24700]]

Regulatory Planning and Review

    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.
    Although this rule restricts access to the waters encompassed by 
the safety zone, the effect of this rule will not be significant 
because the local waterway users will be notified via public Broadcast 
Notice to Mariners to ensure the safety zone will result in minimum 
impact. The entities most likely to be affected are pleasure craft 
engaged in recreational activities.

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 will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule may affect owners and operators of pleasure craft engaged 
in recreational activities and sightseeing. This rule will not have a 
significant economic impact on a substantial number of small entities 
for several reasons: (i) Vessel traffic can pass safely around the 
area; (ii) vessels engaged in recreational activities and sightseeing 
have ample space outside of the effected portion of San Pablo Bay to 
engage in these activities; (iii) this rule will encompass only a small 
portion of the waterway for a limited period of time; and, (iv) the 
maritime public will be advised in advance of this safety zone via 
Broadcast Notice to Mariners.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

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

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 0023.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and

[[Page 24701]]

have concluded this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation because this rule establishes a safety zone.
    An environmental analysis checklist and a categorical exclusion 
determination are 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.

0
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. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T11-194 to read as follows:


Sec.  165.T11-194  Safety Zone; Coast Guard Air Station San Francisco 
Airborne Use of Force Judgmental Training Flights.

    (a) Location. The following area is a safety zone: All waters of 
San Pablo Bay, California from surface to bottom, encompassed by lines 
connecting the following points: Beginning at 38[deg]05'11'' N, 
122[deg]22'10'' W; thence to 38[deg]03'44'' N, 122[deg]20'12'' W; 
thence to 38[deg]00'41'' N, 122[deg]25'28'' W; thence to 38[deg]01'45'' 
N, 122[deg]26'38'' W; thence back to 38[deg]05'11'' N, 122[deg]22'10'' 
W (NAD 83).
    (b) Definitions. As used in this section, ``designated 
representative'' means a Coast Guard Patrol Commander, including a 
Coast Guard coxswain, petty officer, or other officer operating a Coast 
Guard vessel or a Federal, State, or local officer assisting the 
Captain of the Port (COTP) San Francisco in the enforcement of the 
safety zone.
    (c) Regulations. (1) Under the general regulations in Sec.  165.23 
of this title, entry into, transiting, or anchoring within this safety 
zone is prohibited unless authorized by the COTP or the COTP's 
designated representative.
    (2) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or the COTP's designated representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or the COTP's representative to obtain 
permission to do so. Vessel operators given permission to enter or 
operate in the safety zone must comply with all directions given to 
them by the COTP or the COTP's designated representative. Persons and 
vessels may request permission to enter the safety zone by contacting 
the Patrol Commander on VHF-16 or through the Coast Guard Command 
Center at telephone (415) 399-3547.
    (d) Effective period. This section is effective from 9 a.m. to 11 
p.m., each day, May 5, 8, 19, 22; June 9, 11, 30; July 2, 14, 17, 28, 
31; and every Tuesday, Thursday, and Friday from August 1, 2009 to 
December 31, 2009.

    Dated: May 1, 2009.
P.M. Gugg,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. E9-12064 Filed 5-22-09; 8:45 am]
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