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9 March 2009

[Federal Register: March 9, 2009 (Volume 74, Number 44)]
[Rules and Regulations]               
[Page 9956-9958]
From the Federal Register Online via GPO Access []



Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0063]
RIN 1625-AA00

Safety Zone; Coast Guard Air Station San Francisco Airborne Use 
of Force Judgmental Training Flights

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.


SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters of the San Pablo Bay, CA 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 smallboats taking part in the exercise. 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 9 a.m. on February 10, 2009, 
until 10 p.m. on March 20, 2009.

ADDRESSES: Comments and materials received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket USCG-2009-0063 and are available online at http://, selecting the Advanced Docket Search option on the 
right side of the screen, inserting USCG-2009-0063 in the Docket ID 
box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is also available for inspection or copying at 
two locations: 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, and Coast Guard Sector 
San Francisco, 1 Yerba Buena Island, San Francisco, California 94130, 
between 9 a.m. and 4 p.m., Monday through Friday, except Federal 

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Lieutenant Junior Grade Megan Clifford, U.S. Coast 
Guard Sector San Francisco, at (415) 399-7436. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.


Regulatory Information

    Due to the dynamic availability of Coast Guard assets to conduct 
this training, the Coast Guard is issuing this final rule without prior 
notice and opportunity to comment pursuant to authority under section 
(a)(1) of the Administrative Procedure Act (APA) (5 U.S.C. 553). This 
provision creates a military function exception to the advance 
publication requirements. Because of the potential hazards posed by 
this exercise, the safety zone is necessary to provide for the safety 
of the public, participating vessels and crews, and other 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(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 any delay in the effective date of this 
rule would expose mariners to the potential hazards posed by the 
exercises. For the same reasons as above, 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.

Background and Purpose

    U.S. Coast Guard Air Station San Francisco will be conducting 
airborne use of force judgmental training flights with observers from 
the Coast Guard Aviation Training Center and Coast Guard Headquarters, 
on February 10, and March 5 through 20, 2009 (excluding Saturdays and 
Sundays), in the waters of San Pablo Bay. The exercises are designed to 
train and test Coast Guard aviation personnel in the judgmental 
decision-making process necessary to safely and effectively employ use 
of force from a helicopter

[[Page 9957]]

during homeland security incidents. The training will generally involve 
the use of Coast Guard helicopters to intercept fast-moving, evasive 
smallboats on the water. The helicopter crews will fire weapons at the 
smallboats 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. During the exercises the safety zone 
applies to the navigable waters, from the surface to the seafloor, 
defined by enclosing an area between the following points: 
38[deg]05'11'' N, 122[deg]22'10'' W; 38[deg]03'44'' N, 122[deg]20'12'' 
W; 38[deg]00'41'' N, 122[deg]25'28'' W; and 38[deg]01'45'' N, 
122[deg]26'38'' W (NAD 83).
    The effect of the temporary safety zone will be to restrict 
navigation in the vicinity of the exercise.
    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 smallboats 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 the rule will not be significant because 
the safety zone is in an area of San Pablo Bay not heavily used by 
commercial traffic and because local waterway users will be notified 
via Broadcast Notice to Mariners to ensure minimum impact. The entities 
most likely to be affected are pleasure craft engaged in recreational 

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 
    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 the San Pablo Bay 
to engage in these activities, (iii) this rule will encompass only a 
small portion of the waterway for limited periods of time, and (iv) the 
maritime public will be advised in advance of and during the 
enforcement 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).


    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 

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 

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

[[Page 9958]]

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.


    We have analyzed this rule under Department of Homeland Security 
Management Directive 5100.1 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 
under the Instruction that there are no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation because this temporary rule establishes a 
safety zone.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 

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:


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 Sec.  165-T11-149 to read as follows:

Sec.  165-T11-149  Safety Zone; Coast Guard Air Station San Francisco 
Airborne Use of Force Judgmental Training Flights.

    (a) Location. This temporary safety zone is established for the 
navigable waters of the San Pablo Bay, from the surface to the 
seafloor, defined by enclosing an area between the following points: 
38[deg]05'11'' N, 122[deg]22'10'' W; 38[deg]03'44'' N, 122[deg]20'12'' 
W; 38[deg]00'41'' N, 122[deg]25'28'' W; and 38[deg]01'45'' N, 
122[deg]26'38'' 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) Enforcement period. This temporary rule will be enforced from 9 
a.m. to 5 p.m. on February 10, 2009, and from 10 a.m. to 10 p.m. on 
March 5-6, 9-13, and 16-20, 2009.

    Dated: February 9, 2009.
P.M. Gugg,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco.
[FR Doc. E9-4894 Filed 3-6-09; 8:45 am]