[Federal Register Volume 72, Number 104 (Thursday, May 31, 2007)]
[Rules and Regulations]
[Pages 30270-30272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10503]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 07-019]
RIN 1625-AA00


Safety Zones; Whales Transiting the San Francisco Bay and Delta 
Region, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary, moving safety zones 
on the navigable waters of the San Francisco Bay and Delta Region to 
contribute to the safety of the boating public where whales have been 
sighted swimming up river from the San Francisco Bay. These safety 
zones are established to ensure the safety of persons and vessels from 
hazards, injury, and damage associated with higher-than-normal levels 
of recreational boating traffic on the water as individuals attempt to 
view the whales. Unauthorized persons or vessels are prohibited from 
entering into, transiting through, or remaining in the safety zones 
without permission of the Captain of the Port or his designated 
representative.

DATES: This rule is effective from 12:01 a.m. May 17, 2007, until 11:59 
p.m. June 5, 2007.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of the docket COTP San Francisco Bay 07-019 and 
are available for inspection or copying at 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 
holidays.

FOR FURTHER INFORMATION CONTACT: Ensign Sheral Richardson, U.S. Coast 
Guard Sector San Francisco, at (415) 556-2950 extension 136.

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. The Coast Guard only recently 
learned of whales transiting the bay, river and delta region. Any delay 
in implementing this rule would have been impracticable and contrary to 
the public interest since immediate action was necessary to protect the 
public from hazards associated with the transiting whales.
    For the same reasons listed in the previous paragraph, 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. Any delay in the effective date of this rule would 
expose mariners to the dangers posed by the whales.

Background and Purpose

    On May 14, 2007 the presence of possibly four and at least two 
whales swimming northerly in the Sacramento River was reported to the 
Coast Guard. The presence of these whales was confirmed by the Coast 
Guard and the National Oceanic and Atmospheric Administration. These 
safety zones are established to ensure the safety of persons and 
vessels from hazards, injury, and damage associated with higher-than-
normal levels of recreational boating traffic on the water as 
individuals attempt to view the whales. The Coast Guard has established 
that there are two Humpback whales, and these safety zones will apply 
to each whale individually.

Discussion of Rule

    The Coast Guard is establishing temporary, moving safety zones in 
the navigable waters of the San Francisco Bay and Delta Region wherever 
the whales are located. While the whales are in transit these safety 
zones will apply to the navigable waters around and under each whale 
within a radius of 500 yards. The effect of the temporary, moving 
safety zones will be to restrict general navigation in the vicinity of 
the whales while the whales transit the waters of the bay, and delta. 
Except for persons or vessels authorized by the Coast Guard Patrol 
Commander, no person or vessel may enter or remain in the safety zone. 
These safety zones

[[Page 30271]]

are needed to keep people and vessels a safe distance away from the 
whales to ensure the safety of people and vessels.

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.
    Although this rule restricts access to the waters encompassed by 
the safety zones, the effect of this rule will not be significant 
because the local waterway users will be notified via public broadcast 
notice to mariners to ensure the safety zones will result in minimum 
impact. The entities most likely to be affected are pleasure craft 
engaged in recreational activities and commercial vessels.

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 is 
not expected to have a significant economic impact on a substantial 
number of entities, some of which may be small entities. This rule may 
affect owners and operators of pleasure craft, engaged in recreational 
activities and sightseeing, and commercial vessels. 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 
navigable waters to engage in these activities, (iii) this rule will 
encompass only a small portion of the waterway for a limited period of 
time, and (iv) the maritime public will be advised in advance 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 offered 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 Ensign Sheral Richardson, U.S. Coast Guard Sector San 
Francisco, at (415) 556-2950 extension 136.
    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 calls 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 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 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 alternatives.

[[Page 30272]]

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD 
and Department of Homeland Security Management Directive 5100.1, 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 
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. Paragraph (34)(g) is applicable because this rule 
establishes a safety zone. A final ``Environmental Analysis Check 
List'' and a final ``Categorical Exclusion Determination'' will be 
available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping 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, 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 temporary Sec.  165.T11-192 to read as follows:


Sec.  165.T11-192  Safety Zones; Whales transiting San Francisco Bay 
and Delta Region, CA.

    (a) Location. These temporary, moving safety zones are established 
for the waters of San Francisco Bay and Delta Region surrounding whales 
that are swimming through the area. During the whales' transit these 
safety zones will encompass the navigable waters around and under each 
whale within a radius of 500 yards.
    (b) Enforcement Period. This section will be enforced from 12:01 
a.m. May 17, 2007, to 11:59 p.m. June 5, 2007. If the whales leave the 
area before the scheduled end date, the Coast Guard will cease 
enforcement of these safety zones and will announce that fact via 
Broadcast Notice to Mariners.
    (c) Regulations. In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transit through, or anchoring 
within these safety zones by all vessels and persons is prohibited, 
unless specifically authorized by the Captain of the Port, San 
Francisco, or his designated representative.
    (d) 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 can be comprised of 
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 shall proceed as directed. The U.S. Coast Guard may be 
assisted in the patrol and enforcement of these safety zones by local 
law enforcement as necessary.

    Dated: May 17, 2007.
W. J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco.
[FR Doc. E7-10503 Filed 5-30-07; 8:45 am]
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