[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 25548-25550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10930]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0324]
RIN 1625-AA00


Safety Zone; Coast Guard Use of Force Training Exercises, San 
Pablo Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard will establish a safety zone in San Pablo Bay 
for Coast Guard Use of Force Training exercises. This safety zone will 
be established to ensure the safety of the public and participating 
crews from potential hazards associated with fast-moving Coast Guard 
small boats and/or helicopters taking part in the exercise. 
Unauthorized persons or vessels will be prohibited from entering into, 
transiting through, or remaining in the safety zone without permission 
of the Captain of the Port or their designated representative.

DATES: This rule is effective June 6, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2009-0324 and are available online by going to 
http://www.regulations.gov, inserting USCG-2009-0324 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 rule, 
call or e-mail Lieutenant Simone Mausz, U.S. Coast Guard Sector San 
Francisco; telephone 415-399-7443, 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

    On November 6, 2009, we published a Notice of Proposed Rulemaking 
(NPRM) entitled Safety Zone; Coast Guard Use of Force Training 
Exercises, San Pablo Bay, CA in the Federal Register (74 FR 214). We 
received four comments on the proposed rule from the San Francisco Bay 
Conservation and Development Commission (BCDC), Audubon California, 
Beth Huning, and San Francisco Joint Venture. No public meetings were 
requested or held as part of this rulemaking.

Basis and Purpose

    The U.S. Coast Guard will establish a safety zone in the navigable 
waters of the San Pablo Bay, California that will apply to the 
navigable waters encompassing an area beginning at position 
38[deg]01'44'' N, 122[deg]27'06'' W; 38[deg]04'36'' N, 122[deg]22'06'' 
W; 38[deg]00'35'' N, 122[deg]26'07'' W; 38[deg]03'00'' N, 
122[deg]20'20'' W (NAD 83) and back to the starting point. U.S. Coast 
Guard Maritime Safety and Security Team (MSST) San Francisco, U.S. 
Coast Guard Air Station San Francisco, and various Coast Guard small 
boat stations will be conducting Use of Force training runs in the 
waters of San Pablo Bay. The exercises are designed to train and test 
Coast Guard personnel in the decision-making processes necessary to 
safely and effectively employ Use of Force from a small boat or 
helicopter during Homeland Security operations. The training will 
generally involve the use of several Coast Guard small boats and/or a 
helicopter to intercept fast-moving, evasive target vessels on the 
water. The small boat and helicopter crews will fire weapons at the 
target vessels 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 restricted area in San Pablo Bay around the 
training site.

Background

    The CG's primary missions include homeland security, search and 
rescue, and drug and environmental enforcement, and it is in the public 
interest for CG personnel to be trained and ready to serve the public 
at all times. Among the homeland security missions is port security 
training to develop the tactical qualifications and expertise necessary 
to fulfill this mission requirement. The small boats that conduct port 
security operations throughout San Francisco Bay are unable to conduct 
such training offshore due to conditions that often exceed the assets' 
operational parameters, frequent visibility restrictions, and 
unsuitability for the offshore environment. The San Pablo Bay safety 
zone provides an ideal location for the Coast Guard to conduct Use of 
Force training since it is at least 1.5 miles away from shore as well 
as a safe distance from shipping lanes, wildlife refuges, water trails 
and access points.

Discussion of Comments and Changes

    The CG conducted Use of Force training at this very same location 
in San Pablo Bay on average twice a month in 2009. The training went on 
as planned, without incidents or interference with public access, 
except for one occasion where the CG rescheduled one of its training 
sessions to avoid potential interference with a San Francisco Flyway 
Festival bird-watching group.
    On July 29, 2009, the CG sent an email to various potentially 
interested parties including BCDC informing those parties of our 
intention to prepare a Notice of Proposed Rulemaking and a Categorical 
Exclusion Determination under NEPA for the establishment of a safety 
zone for Use of Force training in San Pablo Bay. In January 2010, in a 
letter to the CG, the San Francisco Bay Conservation and Development 
Commission raised concerns about the possible ``effect on both 
motorized and non-motorized recreational boat traffic,

[[Page 25549]]

and on wildlife habitat that San Francisco Bay supports, especially the 
habitat of both migratory and non-migratory waterfowl as well as that 
of the wide variety of fish species'' and requested the CG prepare a 
Consistency Determination or Negative Determination. In December and 
January, the CG received comments from the San Francisco Bay Joint 
Venture and Audubon California that addressed possible disturbances to 
waterfowl and referenced a study by the USGS confirming foraging areas 
in San Pablo Bay are used by diving ducks. In the Consistency 
Determination, the USGS was contacted and determined that the proposed 
area is too deep to affect any shorebirds. Additionally, a response 
from FWS reveals that the proposed safety zone is not expected to have 
any impacts on any of the endangered species in the San Pablo Bay that 
are under the jurisdiction of the FWS.
    In December 2010, the CG completed and sent the Consistency 
Determination to BCDC that determined the proposed safety zone and AUF 
training in San Pablo Bay is consistent to the maximum extent 
practicable with the enforceable policies of BCDC's San Francisco Bay 
Plan. BCDC concurred with this determination in December 2010 and 
determined it was ``complete'' and acceptable.

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.

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.

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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM 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.

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 (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.

Taking of Private Property

    This rule will not cause 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 023-01 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 25550]]

have concluded 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 is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction. The rule involves establishing 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, and 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. 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.


0
2. Add Sec.  165.1184 to read as follows:


Sec.  165-1184  Safety Zone; Coast Guard Use of Force Training 
Exercises, San Pablo Bay, CA

    (a) Location. This safety zone will apply to the navigable waters 
in the San Pablo Bay, and will encompass an area beginning at position 
38[deg]01'44'' N, 122[deg]27'06'' W; 38[deg]04'36'' N, 122[deg]22'06'' 
W; 38[deg]00'35'' N, 122[deg]26'07'' W; 38[deg]03'00'' N, 
122[deg]20'20'' W (NAD 83) and back to the starting point.
    (b) Enforcement. The Coast Guard will notify the public via a 
Broadcast Notice to Mariners prior to the activation of this safety 
zone. The safety zone will be activated on average two times per month, 
but could be activated up to six times per month. It will be in effect 
for approximately three hours from 9 a.m. to 11:59 p.m. If the 
exercises conclude prior to the scheduled termination time, the Coast 
Guard will cease enforcement of this safety zone and will announce that 
fact via Broadcast Notice to Mariners. Persons and vessels may also 
contact the Coast Guard to determine the status of the safety zone on 
VHF-16 or the 24-hour Command Center via telephone at (415) 399-3547.
    (c) 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 and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port San Francisco (COTP) in the enforcement of the 
safety zone.
    (d) Regulations. (1) Under the general regulations in Sec.  165.23, 
entry into, transiting, or anchoring within the 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 on VHF-16 or 
the 24-hour Command Center via telephone at (415) 399-3547.

    Dated: March 31, 2011.
Cynthia L. Stowe,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2011-10930 Filed 5-4-11; 8:45 am]
BILLING CODE 9110-04-P