[Federal Register Volume 78, Number 175 (Tuesday, September 10, 2013)]
[Rules and Regulations]
[Pages 55216-55219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21939]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0692]
RIN 1625-AA00


Safety Zone: Suisun Bay Electromagnetic Scan and Ordnance 
Recovery, Suisun Bay, Concord, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary safety zones in the 
navigable waters of Suisun Bay in support of the Military Ocean 
Terminal Concord (MOTCO) electromagnetic scan and ordnance recovery 
operations. These safety zones are established to ensure the safety of 
the ordnance identification and recovery teams and mariners transiting 
the area. Unauthorized persons or vessels are prohibited from entering 
into, transiting through, or remaining in the safety zones without 
permission of the Captain of the Port or their designated 
representative.

DATES: This rule will be enforced with actual notice from August 26, 
2013 to September 10, 2013. This rule is effective in the Code of 
Federal Regulations from September 10, 2013 through October 25, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2013-0692. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 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 email Lieutenant Junior Grade Joshua Dykman, 
U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585 or 
email at [email protected]. If you have questions on viewing 
the docket, call Program Manager, Docket Operations, telephone 
(202)366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
DoD Department of Defense
FR Federal Register
MMRP Military Munitions Response Program
MOTCO Military Ocean Terminal Concord
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this final rule without prior notice and 
opportunity to comment pursuant to authority under section 4(a) of the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision 
authorizes an agency to issue a rule

[[Page 55217]]

without prior notice and opportunity to comment when the agency for 
good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.''
    Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause 
exists for not publishing a Notice of Proposed Rulemaking (NPRM) with 
respect to this rule because publishing an NPRM would be contrary to 
the public interest. The Military Munitions Response Program (MMRP) 
addresses the safety and environmental hazards presented by munitions 
and explosives. MOTCO recently completed an underwater geophysical 
survey of Suisun Bay whereby they identified 55 locations throughout 
Suisun Bay with ferrous-based objects that may contain ordnance 
deposited as a result of the Port Chicago explosion on July 17, 1944. 
MOTCO notified the Coast Guard on July 10, 2013 that they intend to 
conduct an intrusive electromagnetic scan and ordnance recovery 
operation in selected areas of Suisun Bay with a high probability of 
containing ordnance items, and the operation would occur before the 
rulemaking process would be completed. The safety zone is necessary to 
ensure the safety of the teams conducting ordnance scanning and 
recovery operations as well as provide for the safety of vessels 
transiting the area. For the safety concerns noted, it is in the public 
interest to have these regulations in effect during the event.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. For the reasons stated above, 
delaying the effective date would be contrary to the public interest.

B. Basis and Purpose

    The legal basis for the proposed rule is 33 U.S.C 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, 160.5; Public Law 107-295, 116 Stat. 2064; Department of 
Homeland Security Delegation No. 0170.1, which collectively authorize 
the Coast Guard to establish safety zones.
    MOTCO is sponsoring the Suisun Bay Electromagnetic Scan and 
Ordnance Recovery Safety Zone from August 26, 2103 through October 25, 
2013 in the navigable waters of the Suisun Bay, CA as depicted in 
National Oceanic and Atmospheric Administration (NOAA) Chart 18656. The 
safety zone establishes a 100 foot moving safety zone around a 2-barge 
configuration, flying a red flag, and traveling throughout Suisun Bay 
conducting electromagnetic scan and ordnance recovery operations. A 
temporary safety zone will also be established for emergency ordnance 
detonation between Roe Island and Ryer Island at the following 
location: 38[deg]04'24'' N, 122[deg]0'14'' W (NAD 83) for use only in 
the event that unstable ordnance items are recovered that require 
immediate detonation on site. Until such a time is needed, vessel 
traffic is free to move through the area. A broadcast will be released 
when the zone will be enforced, giving vessel traffic enough time to 
leave the area. These safety zones are necessary to ensure the safety 
of teams conducting electromagnetic scans and ordnance recovery 
operations and to ensure the safety of mariners transiting the area. 
These safety zones will be enforced from August 26, 2013 to October 25, 
2013 between the hours of 7 a.m. and 4 p.m. The safety zones shall 
terminate at the conclusion of the electromagnetic scan and ordnance 
recovery operations.

C. Discussion of the Final Rule

    The Coast Guard will enforce a 100 foot moving safety zone around a 
2-barge configuration, flying a red flag, and traveling throughout 
Suisun Bay conducting electromagnetic scan and ordnance recovery 
operations from August 26, 2013 to October 25, 2013 between the hours 
of 7 a.m. and 4 p.m. To minimize impacts to commerce, the ordnance 
disposal team will cease operations to accommodate commercial vessels 
requiring transit through the navigation channel in vicinity to the 
project location. Commercial vessels will be informed via broadcast and 
local notice to mariners to coordinate passing arrangements with the 
ordnance disposal team prior to transiting the project area.
    A temporary safety zone will be established for emergency ordnance 
detonation between Roe Island and Ryer Island at the following 
location: 38[deg]04'24'' N, 122[deg]0'14'' W (NAD 83) for use only in 
the event that unstable ordnance items are recovered that require 
immediate detonation on site. Until such a time is needed, vessel 
traffic is free to move through the area. A broadcast will be released 
when the zone will be enforced, giving vessel traffic enough time to 
leave the area. At the conclusion of the electromagnetic scan and 
ordnance recovery the safety zones shall terminate.
    The effect of the temporary safety zones will be to restrict 
navigation in the vicinity of the electromagnetic scan and ordnance 
recovery operations. Except for persons or vessels authorized by the 
Coast Guard Patrol Commander, no person or vessel may enter or remain 
in the restricted area.

D. 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 and executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of that Executive Order 12866 
or under section 1 of Executive Order 13563. The Office of Management 
and Budget has not reviewed it under those Orders.
    We expect the economic impact of this rule does not rise to the 
level of necessitating a full Regulatory Evaluation. The safety zone is 
limited in duration, and is limited to a narrowly tailored geographic 
area. In addition, 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 
waterfront facilities, commercial vessels, and pleasure craft engaged 
in recreational activities.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during 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 the following entities, some of which 
may be small entities: Owners and operators of waterfront facilities, 
commercial vessels, and pleasure craft engaged in recreational 
activities and sightseeing, if these facilities or vessels are in the 
vicinity of the safety zone at times when this zone is being enforced. 
This rule will not have a significant economic impact on a substantial 
number of small entities for the following reasons: (i) This rule will 
encompass only a small portion of the waterway for a limited period of 
time, and (ii) the maritime public will be advised in advance of this 
safety zone via Broadcast Notice to Mariners.

[[Page 55218]]

3. 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 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, 
above.
    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.

4. 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).

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. 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 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 involves a safety 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.

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. 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 temporary Sec.  165.T11-588 to read as follows:


Sec.  165.T11-588  Safety zone; Suisun Bay Electromagnetic Scan and 
Ordnance Recovery, Suisun Bay, Concord, CA.

    (a) Location. A temporary 100 foot moving safety zone will be 
established around a 2-barge configuration, flying a red flag, and 
traveling throughout Suisun Bay conducting electromagnetic scan and 
ordnance recovery operations as depicted in National Oceanic and 
Atmospheric Administration (NOAA) Chart 18656. Prior to vessels 
traveling through the navigational channel, notice will be given to the 
barges so that they have ample time to move out of the way and not 
impede traffic. An additional temporary safety zone will be established 
for emergency ordnance detonation between Roe Island and Ryer Island at 
the following location: 38[deg]04'24'' N, 122[deg]01'14'' W (NAD 83) 
for use only in the event that unstable ordnance items are recovered 
that require immediate detonation on site. Until such a time is needed, 
vessel traffic is free to move through the area. A broadcast will be 
released when the zone will be enforced, giving vessel traffic enough 
time to leave the area.

[[Page 55219]]

    (b) Enforcement Period. The zones described in paragraph (a) of 
this section will be in effect from August 26, 2013 through October 25, 
2013 between the hours of 7 a.m. until 4 p.m. The Captain of the Port 
San Francisco (COTP) will notify the maritime community of periods 
during which this zone will be enforced via Broadcast Notice to 
Mariners in accordance with 33 CFR 165.7.
    (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 on a Coast Guard 
vessel or a Federal, State, or local officer designated by or assisting 
the COTP in the enforcement of the safety zone.
    (d) Regulations. (1) Under the general regulations in 33 CFR Part 
165, Subpart C, entry into, transiting or anchoring within this safety 
zone is prohibited unless authorized by the COTP or a designated 
representative.
    (2) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or a designated representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or a designated 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 a designated representative. Persons and vessels 
may request permission to enter the safety zone on VHF-23A or through 
the 24-hour Command Center at telephone (415) 399-3547.

    Dated: August 23, 2013.
Gregory G. Stump,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2013-21939 Filed 9-9-13; 8:45 am]
BILLING CODE 9110-04-P