[Federal Register Volume 70, Number 135 (Friday, July 15, 2005)]
[Proposed Rules]
[Pages 40944-40946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13958]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD11 05-002]
RIN 1625-AA11


Regulated Navigation Area; San Diego Bay, Mission Bay and Their 
Approaches, California

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to create a Regulated Navigation Area 
(RNA) within San Diego Bay, Mission Bay, and their approaches out to 
the 12 nautical mile limit of the territorial sea. This proposed RNA is 
necessary to provide the COTP a greater situational awareness of 
vessels intending to enter San Diego Bay or Mission Bay, allow the COTP 
to enforce safety and security zones associated with naval vessel 
movements and exercises, and increase awareness of potential threats to 
national security assets within the area. This RNA will ensure the safe 
movement of vessels in the vicinity of San Diego Bay and Mission Bay.

DATES: Comments and related material must reach the Coast Guard on or 
before August 15, 2005.

ADDRESSES: You may mail comments and related material to USCG Sector 
San Diego, 2716 North Harbor Drive, San Diego, CA 92101. Coast Guard 
Sector San Diego maintains the public docket for this rulemaking. 
Comments and material received from the public, as well as documents 
indicated in this preamble as being available in the docket, will 
become part of this docket and will be available for inspection or 
copying at USCG Sector San Diego between 9:30 a.m. and 2 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Chief, Ports and Waterways Division, 
USCG Sector San Diego, telephone number 619-638-6495.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD11 05-
002), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8 by 11 inches, suitable for copying. If you would like to know that 
your submission reached us, please enclose a stamped, self-addressed 
postcard or envelope. We will consider all comments and material 
received during the comment period. We may change this proposed rule in 
view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to USCG Sector San Diego at the 
address under ADDRESSES explaining why one would be beneficial. If we 
determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

Background and Purpose

    This rule is one of a number of measures proposed to reduce 
potential terrorist threats to the Port of San Diego, California. San 
Diego is the homeport of numerous U.S. naval vessels and facilities. 
The proposed RNA would increase the safety and security of naval 
vessels and facilities, commercial vessels, and the public by improving 
enforcement of safety and security zones by providing greater 
situational awareness regarding vessel operations in the area.

Discussion of Proposed Rule

    In this NPRM, the Coast Guard proposes a series of procedures to 
organize the flow and operation of vessels legitimately seeking to 
enter, leave or navigate within San Diego Bay or Mission Bay. These 
procedures would apply to vessels of 100 GT or more, including tug and 
barge combinations of 100 GT or more (combined) intending to enter, 
leave or navigate within San Diego Bay or Mission Bay. The proposed 
regulations do not apply to vessels engaged in innocent passage, force 
majeure or any other entry allowed under principles of international 
law regardless of their presence in the RNA. Vessels operating AIS in 
accordance with the AIS carriage requirements of the Maritime 
Transportation Security Act of 2002 (MTSA) and the International 
Maritime Organization requirements adopted under International 
Convention for the Safety of Life at Sea, 1974, (SOLAS) as amended, are 
also exempt from this regulation. The proposed procedures are as 
follows.
    Vessels intending to cross the COLREGS Demarcation Line (denoted 33 
CFR 80.1104 or 80.1106) and enter San Diego Bay or Mission Bay as part 
of normal operations must obtain permission from the COTP or designated 
representative upon entering into the proposed RNA. Further, vessels of 
100 GT or more that have already crossed the COLREGS Demarcation Line 
and entered San Diego or Mission Bay and intend to depart or move 
within the RNA must request permission from the COTP or designated 
representative. The Coast Guard recommends seeking permission 30 
minutes prior to anticipated entry into the RNA or movement within the 
RNA to avoid delays.
    Upon receiving permission from the COTP or designated 
representative, the vessel may enter, depart, or move within the RNA 
and proceed in accordance with directives provided by the COTP or 
designated representative.

[[Page 40945]]

    Communication with the COTP may be made by telephone at (619) 278-
7033 (select option 2) or via VHF-FM marine band radio on channel 16 
(156.800 Mhz). Coast Guard Information regarding Port Security 
requirements in San Diego and Mission Bay will be conveyed via by 
marine information broadcast on VHF-FM marine band radio, channel 22A 
(157.1 MHz).

Regulatory Evaluation

    This proposed 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).
    This proposed rule would apply only to those vessels of 100 GT or 
more, as described above and not using AIS, that intend on entering, 
departing or moving within San Diego Bay or Mission Bay and is not 
intended to infringe on internationally recognized principles such as 
innocent passage and force majeure. We expect the economic impact of 
this proposed rule to be so minimal that a full Regulatory Evaluation 
under the regulatory policies and procedures of DHS is unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed rule will affect only the 
following entities, some of which may be small entities: Owners and 
operators of commercial vessels of 100 GT or more intending to enter, 
depart or move in San Diego Bay or Mission Bay. Because the number of 
small entities owning/operating commercial vessels of this size is not 
substantial and there is little anticipation of delay when requesting 
entry into San Diego Bay or Mission Bay the economic impact of this 
rule should be minimal.
    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.

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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Chief, Ports and 
Waterways Division, USCG Sector San Diego, 619-683-6495.
    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 proposed rule would call 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 proposed 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 proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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

[[Page 40946]]

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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination 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, we believe that this rule should 
be categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Instruction, from further environmental documentation.
    A preliminary ``Environmental Analysis Check List'' is available in 
the docket where indicated under ADDRESSES. Comments on this section 
will be considered before we make the final decision on whether the 
rule should be categorically excluded from further environmental 
review.

List of Subjects in 33 CFR Part 165

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


    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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; 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.

    2. Add Sec.  165.1122 to read as follows:


Sec.  165.1122  San Diego Bay, Mission Bay and their Approaches--
Regulated navigation area.

    (a) Regulated navigation area. The following area is a regulated 
navigation area (RNA): All waters of San Diego Bay, Mission Bay, and 
their approaches encompassed by a line commencing at Point La Jolla 
(32[deg]51'06'' N, 117[deg]16'42'' W); thence proceeding seaward on a 
line bearing 255[deg] T to the outermost extent of the territorial 
seas; thence proceeding southerly along the outermost extent of the 
territorial seas to the intersection of the maritime boundary with 
Mexico; thence proceeding easterly, along the maritime boundary with 
Mexico to its intersection with the California coast; thence proceeding 
northerly, along the shoreline of the California coast--and including 
the inland waters of San Diego Bay and Mission Bay, California, 
shoreward of the COLREGS Demarcation Line--back to the point of origin. 
All coordinates reference 1983 North American Datum (NAD 83).
    (b) Definitions. As used in this section--
    COLREGS Demarcation Line means the line described at 33 CFR 
Sections 80.1104 or 80.1106.
    Public vessel means a vessel that is owned or demise-(bareboat) 
chartered by the government of the United States, by a State or local 
government, or by the government of a foreign country and that is not 
engaged in commercial service.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water other than a public vessel.
    (c) Applicability. This section applies to all vessels of 100 gross 
tons (GT) or more, including tug and barge combinations of 100 GT or 
more (combined), operating within the RNA, with the exception of public 
vessels, vessels not intending to cross the COLREGS Demarcation Line 
and enter San Diego Bay or Mission Bay, and any vessels exercising 
rights under principles of international law, including innocent 
passage or force majeure, within the area of this RNA. Vessels 
operating properly installed, operational, type approved AIS as denoted 
in 33 CFR 164.46 are exempted from making requests as required from 
this regulation.
    (d) Regulations. (1) Port Security Requirements. No vessel to which 
this rule applies may enter, depart or move within San Diego Bay or 
Mission Bay unless it complies with the following requirements:
    (i) Obtain permission to enter San Diego Bay or Mission Bay from 
the Captain of the Port or designated representative immediately upon 
entering the RNA. However, to avoid potential delays, we recommend 
seeking permission 30 minutes prior to entering the RNA.
    (ii) Follow all instructions issued by the Captain of the Port or 
designated representative.
    (iii) Obtain permission for any departure from or movement within 
the RNA from the Captain of the Port or designated representative prior 
to getting underway.
    (iv) Follow all instructions issued by the Captain of the Port or 
designated representative.
    (v) Reports may be made by telephone at 619-278-7033 (select option 
2) or via VHF-FM radiotelephone on channel 16 (156.800 Mhz). The call 
sign for radiotelephone requests to the Captain of the Port or 
designated representative is ``Coast Guard Sector San Diego.''
    (2) For purposes of the port security requirements in paragraph 
(d)(1) of this section, the Captain of the Port or designated 
representative means any official designated by the Captain of the 
Port, including but not limited to commissioned, warrant, and petty 
officers of the U.S. Coast Guard, and any U.S. Coast Guard patrol 
vessel. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light, or other means, the operator of a vessel shall proceed 
as directed.
    (e) Waivers. (1) The Captain of the Port or designated 
representative may, upon request, waive any regulation in this section.

    Dated: June 16, 2005.
K.J. Eldridge,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 05-13958 Filed 7-14-05; 8:45 am]
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