[Federal Register Volume 86, Number 175 (Tuesday, September 14, 2021)]
[Rules and Regulations]
[Pages 50998-51000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19901]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0732]
RIN 1625-AA00


Safety Zone; Explosives arc at Military Ocean Terminal Concord, 
Suisun Bay, Concord, 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 the Suisun Bay, off Concord, CA, in support of 
explosive off and on-loading to Military Ocean Terminal Concord 
(MOTCO). This safety zone is necessary to protect personnel, vessels, 
and the marine environment from potential explosion within the 
explosive arc. Unauthorized persons or vessels are prohibited from 
entering into, transiting through, or remaining in the safety zone 
without the permission of the Captain of the Port San Francisco or a 
designated representative.

DATES: This rule is effective without actual notice from September 14, 
2021 through 11:59 p.m. September 18, 2021. For the purposes of 
enforcement, actual notice will be used from September 13, 2021 until 
September 14, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0732 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Junior Grade William Harris, Waterways 
Management, U.S. Coast Guard; telephone (415) 399-7443, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 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 it is impractical. The Coast Guard 
received the initial report of larger explosives arc on September 8, 
2021. It is impractical to go through the full notice and comment rule 
making process because the Coast Guard must establish this temporary 
safety zone by September 13, 2021 and lacks sufficient time to provide 
a reasonable comment period and to consider those comments before 
issuing the rule.
    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. Delaying the effective date of 
this rule would be contrary to public interest because immediate action 
is needed to protect personnel, vessels, and the marine environment in 
the navigable waters around the potentially hazardous explosive off and 
on-loading.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port San 
Francisco (COTP) has determined that potential hazards associated with 
the explosive off and on-loading will exist between September 13, 2021 
and September 18, 2021. There will be a safety concern for anyone 
within a 4,500-foot radius of the explosive off and on-load. For this 
reason, this temporary safety zone is needed to protect personnel, 
vessels, and the marine environment in the navigable waters surrounding 
the potentially hazardous off and on-loading operations.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone in the navigable 
waters around the explosives off and on-loading occurring at MOTCO off 
Concord, CA for a five-day cargo operation period conducted between 
September 13, 2021 and September 18, 2021. The temporary safety zone 
will encompass the navigable waters of Suisun Bay, from surface to 
bottom, within a circle formed by connecting all points 4,500 feet out 
from the location of the explosive material at approximate position 
38[deg]3.54'' N, 122[deg]0.82'' W or as announced via Broadcast Notice 
to Mariners. The projected explosive arc presents the need for a 4,500 
foot radius, which is larger than the safety zone already established 
in 33 CFR 165.1198.
    This regulation is necessary to keep persons and vessels away from 
the immediate vicinity of the explosive materials during cargo 
operations, and to ensure the safety of personnel, vessels, and the 
marine environment. Except for persons or vessels authorized by the 
COTP or the COTP's designated representative, no person or vessel may 
enter or remain in the restricted area. A ``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 designated by or assisting the COTP in 
the enforcement of the safety zone.

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 and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 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. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the limited 
duration and narrowly tailored geographic area of the safety zone. 
Although this rule restricts access to the water encompassed by the 
safety zone, the effect of this rule will not be significant because 
the local waterways users will be notified to ensure the safety zone 
will result in minimum impact. The vessels desiring to transit through 
or around the temporary safety zone may do so upon express permission 
from the COTP or the COTP's designated representative.

[[Page 50999]]

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 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.
    While some owners or operators of vessels intending to transit the 
temporary safety zone may be small entities, for the reasons stated in 
section V.A. above, this rule rule will not have a significant economic 
impact on any vessel owner or operator.
    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 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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 Executive Order 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 Executive Order 
13132.
    Also, 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.

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 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 
temporary safety zone in the navigable waters around the explosives off 
and on-loading occurring at Military Ocean Terminal Concord (MOTCO), 
off Concord, CA. It is categorically excluded from further review under 
paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-
01-001-01, Rev. 1. A Record of Environmental Consideration supporting 
this determination is available in the docket. For instructions on 
locating the docket, see the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T11-066 to read as follows:


Sec.  165.T11-066  Safety Zone; Explosive arc at Military Ocean 
Terminal Concord, Suisun Bay, Concord, CA.

    (a) Location. The following area is a safety zone: All navigable 
waters of Suisun Bay, from surface to bottom, within a circle formed by 
connecting all points 4,500 feet out from the location of the explosive 
material at approximate position 38[deg]3.54'' N, 122[deg]0.82'' W or 
as announced via Broadcast Notice to Mariners.
    (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 designated by or 
assisting the Captain of the Port San Francisco (COTP) in the 
enforcement of the safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section 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 designated representative to 
obtain permission to do so. Vessel operators given permission to enter 
or operate in the safety zone must comply with all lawful orders or 
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-23A or through

[[Page 51000]]

the 24-hour Command Center at telephone (415) 399-3547.
    (d) Enforcement period. This section will be enforced from 
September 13, 2021 at 12:01 a.m. until September 18, 2021 at 11:59 p.m. 
or as announced via marine information broadcast.
    (e) Information broadcasts. The COTP or the COTP's designated 
representative will notify the maritime community of periods during 
which this zone will be enforced in accordance with 33 CFR 165.7.

    Dated: September 9, 2021.
Jordan M. Baldueza,
Captain, U.S. Coast Guard, Alternate Captain of the Port, Sector San 
Francisco.
[FR Doc. 2021-19901 Filed 9-10-21; 4:15 pm]
BILLING CODE 9110-04-P