[Federal Register Volume 63, Number 58 (Thursday, March 26, 1998)]
[Rules and Regulations]
[Pages 14621-14623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7911]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP San Diego; 98-007]
RIN 2115-AA97


Safety Zone; San Diego Bay and Adjacent Waters, San Diego, CA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: In conjunction with the release of `JJ' the gray whale by Sea 
World of California, the Coast Guard is establishing a temporary, 
moving safety zone around the USCGC CONIFER from 1:00 p.m. (PST) on 
March 23, 1998 until 6:00 p.m. (PST) on March 30, 1998. The safety zone 
will encompass all navigable waters within 250 yards of the USCGC 
CONIFER while it transits from Naval Station 32nd Street to lighted 
buoys 5 and 6. The safety zone will expand to 500 yards at lighted 
buoys 5 and 6, and the safety zone will remain at 500 yards while the 
USCGC CONIFER transits any/all navigable waters located within the 
territorial sea of the United States.
    This temporary regulation is established to serve three purposes: 
to protect and facilitate the continued development of the gray whale 
being released by Sea World of California on behalf of the National 
Marine Fisheries Service (NMFS) (pursuant to a grant of authority 
signed by NMFS on November 17, 1995, authorizing Sea World of 
California to rescue and rehabilitate marine mammals as a member of the 
California Mammal Stranding Network) to ensure the safety of the 
vessels and personnel involved in the release, including the USCGC 
CONIFER and its crew; and, to ensure the safety of any spectator 
vessels and persons. Entry into, transit through, or anchoring within 
this moving safety zone is prohibited unless authorized by the Captain 
of the Port.
    In order to ensure maximum safety and environmental protection, to 
the extent that the USCGC CONIFER navigates to any point located beyond 
3 nautical miles from the baseline from which the territorial sea is 
measured to release `JJ' the gray whale during the dates and times that 
this temporary safety zone is in effect, the Coast Guard is also 
establishing a temporary, nonobligatory moving exclusionary area 
encompassing all waters within 500 yards of the USCGC CONIFER. Entry 
into this nonobligatory exclusionary area by any mariner constitutes a 
risk to navigational safety and a risk to the marine mammal being 
released, and it may prevent the release of `JJ' the gray whale. It may 
also constitute a factor to be considered in determining whether a 
person has operated a vessel in a negligent manner in violation of 46 
USC Sec. 2302, or has engaged in activities in violation of the MMPA 
and its implementing regulations.

EFFECTIVE DATES: This regulation becomes effective at 1:00 p.m. (PST) 
on March 23, 1998, and continues until 6:00 p.m. (PST) on March 30, 
1998.

ADDRESSES: Marine Safety Office San Diego, 2716 N. Harbor Drive, San 
Diego, CA 92101-1064.

FOR FURTHER INFORMATION CONTACT: LT Mike Arguelles, U.S. Coast Guard

[[Page 14622]]

Marine Safety Office San Diego at (619) 683-6484.
SUPPLEMENTARY INFORMATION:

Regulatory Information

    In accordance with 5 U.S.C. 553, a notice of proposed rulemaking 
was not published for this temporary regulation and good cause exists 
for making it effective prior to, or in less than 30 days after, 
Federal Register publication. Publication of a notice of proposed 
rulemaking and delay of its effective date would be contrary to public 
interest because the precise location of the release of `JJ' the gray 
whale, and other logistical details surrounding the release, were not 
finalized until a date fewer than 30 days prior to the scheduled 
release dates.

Background and Purpose

    The release of `JJ' the gray whale requiring promulgation of this 
temporary, moving safety zone is scheduled to take place in the 
navigable waters of San Diego Bay at a point approximately located 3 
miles off Point Loma, sometime between March 23-28, 1998; however, the 
actual release of `JJ' the gray whale may occur at a point located 
somewhere further off the coast of Point Loma. The precise release 
date, time, and location are dependent upon variable northbound marine 
mammal migratory patterns in the Pacific Ocean.
    Territorial sea, as defined in 33 CFR 2.05-5, means all waters 
within the belt, 3 nautical miles wide, that is adjacent to the coast 
of the United States and seaward of the territorial sea baseline. The 
``territorial sea baseline'' is defined in 33 CFR 2.05-10. To the 
extent that the USCGC CONIFER navigates to any point located beyond 3 
nautical miles off the coast of Point Loma to release `JJ' the gray 
whale during the dates and times that this temporary safety zone is in 
effect, the Coast Guard is also establishing a temporary, nonobligatory 
moving exclusionary area encompassing all waters within 500 yards of 
the USCGC CONIFER. Entry into this nonobligatory exclusionary area by 
any mariner may pose such a danger to the safety of all parties 
involved that it might prevent the release of `JJ' the gray whale; it 
may also constitute a factor to be considered in determining whether a 
person has operated a vessel in a negligent manner in violation of 46 
U.S.C. 2302, or has engaged in activities in violation of the MMPA and 
its implementing regulations.

Discussion of Regulation

    Gray whales are a protected species under the Marine Mammal 
Protection Act (16 U.S.C. 1362(6); 50 CFR 216.3), and all federal 
agencies are required to cooperate with the Commerce Department in 
carrying out the purposes of the Marine Mammal Protection Act (16 
U.S.C. 1382(b)). Sea World is releasing `JJ' the gray whale on behalf 
of NMFS, pursuant to a grant of authority signed by NMFS on November 
17, 1995, authorizing Sea World of California to rescue and 
rehabilitate marine mammals as a member of the California Mammal 
Stranding Network. This temporary regulation is established to serve 
three purposes: (1) To protect and facilitate the continued development 
of the gray whale being released by Sea World of California on behalf 
of NMFS (pursuant to a grant of authority signed by NMFS on November 
17, 1995, authorizing Sea World of California to rescue and 
rehabilitate marine mammals as a member of the California Mammal 
Stranding Network), (2) to ensure the safety of the vessels and 
personnel involved in the release, including the USCGC CONIFER and its 
crew; and (3) to ensure the safety of any spectator vessels and 
persons. Entry into, transit through, or anchoring within this moving 
safety zone is prohibited unless authorized by the Captain of the Port.

Regulatory Evaluation

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that order. It 
has been exempted from review by the Office of Management and Budget 
under that order. It is not significant under the regulatory policies 
and procedures of the Department of Transportation (44 FR 11040; 
February 26, 1979). Due to the short duration and limited scope of the 
safety zone the Coast Guard expects the economic impact of this 
proposal to be so minimal that a full Regulatory Evaluation under 
paragraph 10(e) of the regulatory policies and procedures of Department 
of Transportation is unnecessary.

Collection of Information

    This rule contains no collection of information requirements under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this regulation under the principles 
and criteria contained in Executive Order 12612, and has determined 
that this regulation does not have sufficient federalism implications 
to warrant the preparation of a Federalism Assessment.

Environmental Assessment

    The Coast Guard has considered the environmental impact of this 
regulation and concluded that under section 2.B.2. of Commandant 
Instruction M16475.1B, it will have no significant environmental 
impact, including no adverse effect on species or habitats protected by 
the Endangered Species Act, and it is categorically excluded from 
further environmental documentation. A Categorical Exclusion 
Determination and Environmental Analysis Checklist will be available 
for inspection and copying in the docket to be maintained at the 
address listed in ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

Regulation

    In consideration of the foregoing, Subpart F of Part 165 of Title 
33, Code of Federal Regulations, is amended as follows:
    1. The authority citation for 33 CFR Part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

    2. A new Sec. 165.T11-047 is added to read as follows:


Sec. 165.T11-049  Moving Safety Zone: San Diego Bay and Adjacent 
Waters, San Diego, CA.

    (a) Location. The safety zone will encompass all navigable waters 
within 250 yards of the USCGC CONIFER while it transits from Naval 
Station 32nd Street to lighted buoys 5 and 6. The safety zone will 
expand to 500 yards at lighted buoys 5 and 6, and the safety zone will 
remain at 500 yards while the USCGC CONIFER transits any/all navigable 
waters located within the territorial sea of the United States. 
``Territorial sea,'' as defined in 33 CFR 2.05-5, means all waters 
within the belt, 3 nautical miles wide, that is adjacent to the coast 
of the United States and seaward of the territorial sea baseline. The 
``territorial sea baseline'' is defined in 33 CFR 2.05-10.

    Note: Nonobiligatory Exclusionary Area. In order to ensure 
maximum safety and environmental protection, to the extent that the 
USCGC CONIFER navigates to any point located beyond 3 nautical miles 
from the baseline from which the territorial sea is measured to 
release ``JJ'' the gray whale during the dates and times that this 
temporary safety zone is in effect, the Coast Guard is also 
establishing a temporary, nonobligatory moving exclusionary area

[[Page 14623]]

encompassing all waters within 500 yards of the USCGC CONIFER. Entry 
into this nonobligatory exclusionary area by any mariner constitutes 
a risk to navigational safety and a risk to the marine mammal being 
released, and it may prevent the release of ``JJ'' the gray whale. 
It may also constitute a factor to be considered in determining 
whether a person has operated a vessel in a negligent manner in 
violation of 46 USC Sec. 2302, or has engaged in activities in 
violation of the MMPA and its implementing regulations.

    (b) Effective Dates. This regulation becomes effective at 1:00 p.m. 
(PST) on March 23, 1998, and continues until 6:00 p.m. (PST) on March 
30, 1998, unless canceled earlier by the Captain of the Port.
    (c) Regulations. In accordance with the general regulations in 
Sec. 165.23 of this part, entry into, transit through, or anchoring 
within this zone is prohibited unless authorized by the Captain of the 
Port.

    Dated: March 16, 1998.
J.A. Watson,
Commander, U.S. Coast Guard, Captain of the Port, San Diego, 
California.
[FR Doc. 98-7911 Filed 3-25-98; 8:45 am]
BILLING CODE 4910-15-M