[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Rules and Regulations]
[Pages 59807-59809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22511]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 04-024]
RIN 1625-AA00


Safety Zone; San Francisco Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary Final rule.

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SUMMARY: The Coast Guard is establishing a temporary fixed safety zone 
within the navigable waters of San Francisco Bay, CA, for a three-day 
minesweeping exercise called operation ``Lead Shield.'' During the 
exercise, mine-hunting vessels will practice locating 6 dummy mine-
shapes (non-explosive training devices) positioned in the vicinity of 
Anchorage 8. The purpose of the safety zone is to provide for the 
safety of mariners in the vicinity as well as those involved in the 
exercise by allowing only those directly involved in the exercise to 
enter into, transit through, or anchor within the exercise area.

DATES: This rule is effective from 5 a.m. on October 5, 2004 to 8 p.m. 
on October 7, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of the docket [COTP San Francisco Bay 04-024] and are 
available for inspection or copying at Coast Guard Marine Safety Office 
San Francisco Bay, Coast Guard Island, Alameda, California, 94501, 
between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Doug L. Ebbers, U.S. Coast 
Guard Marine Safety Office San Francisco Bay, at (510) 437-2770.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Due to the complex 
coordination involved in planning the event, major planning components 
of the mine-hunting

[[Page 59808]]

exercise were only recently completed, and the logistical details 
surrounding the location and schedule were not finalized and presented 
to the Coast Guard in time to draft and publish an NPRM. As such the 
exercise would occur before the rulemaking process was complete. Any 
delay in implementing this rule would be contrary to the public 
interest since immediate action is necessary to temporarily close the 
area in order to protect the maritime public from the hazards 
associated with the mine-hunting exercise.
    For the same reasons stated 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

    As part of the Navy's efforts to develop and maintain proficiency 
in anti-terrorism and force protection, Operation ``Lead Shield'' 
provides an important training opportunity for several naval vessels to 
hone their mine-hunting skills. The Operation involves the placement of 
6 dummy mine-shapes within Anchorage 8 and the dredged channel 
immediately south of Anchorage 8 in San Francisco Bay. This safety zone 
is necessary to provide for the safety of mariners in the vicinity as 
well as those involved in the exercise by allowing only those directly 
involved in the exercise to enter into, transit through, or anchor 
within the exercise area while mine-hunting operations are being 
conducted.

Discussion of Rule

    The following area will constitute a temporary safety zone: All 
navigable waters of Anchorage 8 and all navigable waters of the channel 
located between Anchorage 8 and Anchorage 9 as bounded by the following 
positions: 37[deg]46'40'' N, 122[deg]21'23'' W; thence to 
37[deg]46'28'' N, 122[deg]21'17'' W; thence to 37[deg]46'22'' N, 
122[deg]19'07'' W; thence to 37[deg]46'05'' N, 122[deg]18'31'' W; 
thence to 37[deg]46'18'' N, 122[deg]17'55'' W; thence to 37[deg]46'32'' 
N, 122[deg]17'59'' W; thence returning to the point of origin. Entry 
into, transit through or anchoring within the safety zone is 
prohibited, unless authorized by the Captain of the Port, or his 
designated representative.
    U.S. Coast Guard personnel will enforce this safety zone. Other 
Federal, State, or local law enforcement agencies may assist the Coast 
Guard, including the Coast Guard Auxiliary. Section 165.23 of Title 33, 
Code of Federal Regulations, prohibits any unauthorized person or 
vessel from entering or remaining in a safety zone. Vessels or persons 
violating this section may be subject to the penalties set forth in 33 
U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any 
violation of the security zone described herein, is punishable by civil 
penalties (not to exceed $32,500 per violation, where each day of a 
continuing violation is a separate violation), criminal penalties 
(imprisonment from 5 to 10 years and a maximum fine of $250,000) and in 
rem liability against the offending vessel. Any person who violates 
this section using a dangerous weapon, or who engages in conduct that 
causes bodily injury or fear of imminent bodily injury to any officer 
authorized to enforce this regulation also faces imprisonment from 10 
to 25 years. Vessels or persons violating this section may also be 
subject to the penalties set forth in 50 U.S.C. 192: Seizure and 
forfeiture of the vessel to the United States, a maximum criminal fine 
of $10,000, and imprisonment up to 10 years, and a maximum civil 
penalty of $25,000 for each day of a continuing violation.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    Although this safety zone will restrict boating traffic within the 
vicinity of Anchorage 8 in San Francisco Bay, the effect of this 
regulation will not be significant for several reasons: vessel traffic 
can pass safely around the area, vessels engaged in recreational 
activities and sightseeing have ample space outside of the safety zone 
to engage in these activities, and this zone will encompass only a 
small portion of the waterway for a limited period of time. The 
entities most likely to be affected are pleasure craft engaged in 
recreational activities and sightseeing.

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.
    For the same reasons set forth in the above Regulatory Evaluation, 
the Coast Guard certifies under 5 U.S.C. Sec.  605(b) that this rule is 
not expected to have a significant economic impact on any substantial 
number of entities, regardless of their size.

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 could better evaluate 
its effects on them and participate in the rulemaking process. If the 
rule will affect your small business, organization, or government 
jurisdiction and you have questions concerning its provisions, options 
for compliance, or assistance in understanding this rule, please 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
    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).

Collection of Information

    This rule contains no new collection of information requirements 
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.

[[Page 59809]]

Though this rule will not result in such 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 Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded 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 we are establishing a safety zone.
    A final ``Environmental Analysis Checklist'' and a final 
``Categorical Exclusion Determination'' will be available for review in 
the docket indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and record 
keeping requirements, Security measures, Waterways.


0
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.T11-042 to read as follows:


Sec.  165.T11-042  Safety Zone: San Francisco Bay, CA.

    (a) Location. The following area is designated as a safety zone: 
All of Anchorage 8 as described in 33 CFR Sec.  110.224(e)(5) as well 
as the channel between Anchorage 8 and Anchorage 9 as bounded by the 
following positions: 37[deg]46[min]40[sec] N, 122[deg]21[min]23[sec] W; 
thence to 37[deg]46[min]28[sec] N, 122[deg]21[min]17[sec] W; thence to 
37[deg]46[min]22[sec] N, 122[deg]19[min]07[sec] W; thence to 
37[deg]46[min]05[sec] N, 122[deg]18[min]31[sec] W; thence to 
37[deg]46[min]18[sec] N, 122[deg]17[min]55[sec] W; thence to 
37[deg]46[min]32[sec] N, 122[deg]17[min]59[sec] W; thence returning to 
the point of origin. [NAD 83]
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transit through, or anchoring 
within this zone by all vessels is prohibited unless authorized by the 
Captain of the Port or his designated representative.
    (2) Persons desiring to transit the area of the safety zone may 
contact the Captain of the Port at telephone number 415-399-3547 or on 
VHF-FM channel 16 (156.8 Mhz) to seek permission to transit the area. 
If permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his designated 
representative.
    (c) Enforcement. All persons and vessels shall comply with the 
instructions of the Coast Guard Captain of the Port or the designated 
on-scene patrol personnel. Patrol personnel comprise commissioned, 
warrant, and petty officers of the Coast Guard onboard Coast Guard, 
Coast Guard Auxiliary, local, state, and federal law enforcement 
vessels. Upon being hailed by U.S. Coast Guard patrol personnel by 
siren, radio, flashing light, or other means, the operator of a vessel 
must proceed as directed.
    (d) Effective Dates. This safety zone will be in effect from 5 a.m. 
on October 5, 2004 to 8 p.m. on October 7, 2004. If the event concludes 
prior to the scheduled termination time, the Captain of the Port will 
cease enforcement of the safety zone and will announce that fact via 
Broadcast Notice to Mariners.

    Dated: September 27, 2004.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco 
Bay, California.
[FR Doc. 04-22511 Filed 10-5-04; 8:45 am]
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