E9-12064. Safety Zone; Use of Force Training Flights, San Pablo Bay, CA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

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 [phone], e-mail, [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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°05′11″ N, 122°22′10″ W; thence to 38°03′44″ N, 122°20′12″ W; thence to 38°00′41″ N, 122°25′28″ W; thence to 38°01′45″ N, 122°26′38″ W; thence back to 38°05′11″ N, 122°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.

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 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

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

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.

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

§ 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°05′11″ N, 122°22′10″ W; thence to 38°03′44″ N, 122°20′12″ W; thence to 38°00′41″ N, 122°25′28″ W; thence to 38°01′45″ N, 122°26′38″ W; thence back to 38°05′11″ N, 122°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 § 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 [phone].

(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.