[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Rules and Regulations]
[Pages 5717-5720]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01635]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-1008]
RIN 1625-AA00


Safety Zone; Military Ocean Terminal Concord Safety Zone, Suisun 
Bay, Military Ocean Terminal Concord, CA

AGENCY: Coast Guard, DHS.

ACTION: Interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing a safety zone in the navigable 
waters of Suisun Bay near Military Ocean Terminal Concord, CA in 
support of military onload and offload operations. This safety zone is 
established to enhance the safety of mariners transiting the area in 
the unlikely event of an ordnance related mishap. All persons or 
vessels are prohibited from anchoring or otherwise loitering in the 
safety zone during military onloads and offloads without permission of 
the Captain of the Port or their designated representative.

DATES: This rule is effective with actual notice from January 2, 2013 
until January 28, 2013. This rule is effective in the Code of Federal 
Regulations on January 28, 2013. Comments and related materials must be 
received by the Coast Guard on or before April 29, 2013.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2012-1008. 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.
    You may submit comments identified by docket number using any one 
of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329.

See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for further instructions on 
submitting comments. To avoid duplication, please use only one of these 
three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Junior Grade William Hawn, U.S. Coast Guard 
Sector San Francisco; telephone (415) 399-7442 or email at D11-PF-MarineEvents@uscg.mil. If you have questions on viewing or submitting 
material to the docket, call Docket Operations, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
MOTCO Military Ocean Terminal Concord
NPRM Notice of Proposed Rulemaking

A. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov, or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered as

[[Page 5718]]

having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an email address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8-1/2 by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as 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.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before December 20, 2012, using one of the 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting would be beneficial. If we determine that one would aid 
this rulemaking, we will hold one at a time and place announced by a 
later notice in the Federal Register.

B. Regulatory History and Information

    This interim rule will regulate the waters of Suisun Bay in 
vicinity of the Military Ocean Terminal Concord (MOTCO) in Concord, 
California. This rule will be enforced in conjunction with the MOTCO 
security zone, established in 33 CFR Sec.  165.1199, which restricts 
vessel traffic during military onloads and offloads at MOTCO.
    The Coast Guard is issuing this 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 an NPRM with respect to this rule 
because to do so would be impracticable. Due to the fact that military 
loading operations are ongoing, there is a need to begin enforcement of 
a no-loitering zone immediately, and a notice and comment period would 
expose the public to additional dangers.
    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 because to do otherwise would be 
impracticable, as immediate prevention measures are needed to protect 
the maritime public during military onload and offload operations.

C. Basis and Purpose

    The legal basis for the proposed rule is the Ports and Waterways 
Safety Act which authorizes the Coast Guard to establish safety zones 
(33 U.S.C 1221 et seq.).
    The U.S. Army's 834th Transportation Battalion requested that the 
U.S. Coast Guard develop a no-loitering area around the piers at 
Military Ocean Terminal Concord, CA during military onloads and 
offloads. In the unlikely event of an explosion due to military loading 
operations, a no-loitering zone is needed to minimize the likelihood of 
public presence in the projected blast zone, to protect persons and 
vessels from the dangers associated with military onload and offload 
operations.
    A safety zone is necessary in the vicinity of MOTCO to prevent 
persons and vessels from anchoring or otherwise loitering in the zone 
between 500 yards of MOTCO Pier 2 in position 38[deg]03'30'' N, 
122[deg]01'14'' W (NAD 83) as depicted in National Oceanic and 
Atmospheric Administration (NOAA) Chart 18656 (the perimeter of the 
existing security zone) and 3,000 yards of the pier.

D. Discussion of Proposed Rule

    The Coast Guard is establishing a safety zone in Suisun Bay near 
MOTCO in Concord California during military onloads and offloads. Given 
the potentially devastating impact of an ordnance mishap, the Coast 
Guard is implementing a safety zone around the MOTCO piers during 
military onloads and offloads. This rule will create a no-loitering 
area in the zone between 500 yards of MOTCO Pier 2 in position 
38[deg]03'30'' N, 122[deg]01'14'' W (NAD 83) as depicted in National 
Oceanic and Atmospheric Administration (NOAA) Chart 18656 (the 
perimeter of the existing security zone) and 3,000 yards of the pier. 
The purpose of this safety zone is to prevent persons or vessels from 
anchoring or loitering within the potential blast zone around the MOTCO 
piers during military onloads and offloads. This safety zone will be 
effective for the entire duration of onload and offload operations.

E. 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.

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 Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The safety zone is limited in duration, and is limited to a 
narrowly tailored geographic area. In addition, although this rule 
restricts anchoring and/or loitering in the waters encompassed by the 
safety zone, the effect of this rule will not be significant because 
the local waterway users will have access to the waterway for 
transitory purposes. The entities most likely to be affected by this 
rule are owners and operators of commercial vessels, and pleasure craft 
engaged in recreational activities and sightseeing.

[[Page 5719]]

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 owners and operators of commercial vessels, 
and pleasure craft engaged in recreational activities and sightseeing. 
This safety zone would not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
safety zone would be activated, and thus subject to enforcement, for a 
limited duration. The safety zone does not restrict transitory use of 
the waterways and is in place to prevent anchoring and loitering within 
the blast zone. The maritime public will be advised via actual notice 
during the enforcement of this safety zone.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

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 will not call for a 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 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 determined 
that this rule 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 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 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:


[[Page 5720]]


    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.  165.1198 to read as follows:


Sec.  165.1198  Safety zone; Military Ocean Terminal Concord Safety 
Zone, Suisun Bay, Military Ocean Terminal Concord, CA.

    (a) Location. This safety zone is established in the navigable 
waters of Suisun Bay near Military Ocean Terminal Concord, CA (MOTCO) 
as depicted in National Oceanic and Atmospheric Administration (NOAA) 
Chart 18656. Upon commencement of military onloads and offloads, the 
safety zone will encompass the navigable waters in the area between 500 
yards of MOTCO Pier 2 in position 38[deg]03'30'' N, 122[deg]01'14'' W 
(NAD 83) as depicted in National Oceanic and Atmospheric Administration 
(NOAA) Chart 18656 (the perimeter of the existing security zone) and 
3,000 yards of the pier.
    (b) Enforcement period. The zone described in paragraph (a) of this 
section will be enforced during all military onload and offload 
operations. The Captain of the Port San Francisco (COTP) will notify 
the maritime community of periods during which this zone will be 
enforced via actual notice on-scene during military onloads and 
offloads.
    (c) Regulations. (1) The safety zone is open to all persons and 
vessels for transitory use.
    (2) Persons and vessels operating within the safety zone may not 
anchor or otherwise loiter within the safety zone.
    (3) Vessel operators desiring to anchor or otherwise loiter within 
the safety zone must contact Sector San Francisco Vessel Traffic 
Service at (415) 556-2760 or VHF Channel 14 to obtain permission.
    (4) All persons and vessels transiting through or operating within 
the safety zone must comply with all directions given to them by the 
COTP or a designated representative.
    (5) The public can contact Sector San Francisco Bay at (415) 399-
3530 to obtain information concerning enforcement of this rule.
    (d) Enforcement. All persons and vessels must comply with the 
instructions of the COTP 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. The U.S. Coast Guard may be 
assisted in the patrol and enforcement of the safety zone by local law 
enforcement and the MOTCO police as necessary. 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.

    Dated: January 2, 2013.
Cynthia L. Stowe,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2013-01635 Filed 1-25-13; 8:45 am]
BILLING CODE 9110-04-P