[Federal Register Volume 73, Number 121 (Monday, June 23, 2008)]
[Rules and Regulations]
[Pages 35342-35344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14045]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0399]
RIN 1625-AA00


Safety Zone; San Diego Symphony Orchestra; San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone, on the 
navigable waters of the San Diego Bay in support of the San Diego 
Symphony Opera fireworks display series. This temporary safety zone is 
necessary to provide for the safety of the crew, spectators, and other 
vessels and users of the waterway. Persons and vessels are prohibited 
from entering into, transiting through, or anchoring within this safety 
zone unless authorized by the Captain of the Port, or his designated 
representative.

DATES: This rule is effective from 9 p.m. on June 14, 2008 through 10 
p.m. on August 31, 2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-0399 and are available online 
at http://www.regulations.gov. They are also available for inspection 
or copying two locations: The 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, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays, and the U.S. 
Coast Guard Sector San Diego, 2710 N. Harbor Drive, San Diego, CA 92101 
between 8 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Petty Officer Kristen Beer, USCG, Waterways 
Management, U.S. Coast Guard Sector San Diego at (619) 278-7233. If you 
have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

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 logistical details of the 
fireworks show were not finalized nor presented to the Coast Guard in 
enough time to draft and publish an NPRM. As such, the event would 
occur before the rulemaking process was complete.
    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. The issuance of the final approval 
and permitting was so recent that the rule would be made effective less 
than 30 days after publication. In addition, it would be contrary to 
the public interest not to publish this rule due to protection from 
inherent dangers to the crew and public that are present from a 
fireworks display.

Background and Purpose

    The San Diego Symphony Orchestra and Copley Symphony Hall is 
sponsoring the San Diego Symphony Orchestra, which will include a 
fireworks presentation from a barge in the San Diego Bay. The barge 
will be located near the maritime navigational channel in the vicinity 
of North Embarcadero. The safety zone will be a 150 yard radius around 
the anchored firing barge. The sponsor will provide a chase boat to 
patrol the safety zone and inform vessels of the safety zone. This 
temporary safety zone is necessary to provide for the safety of the 
crew, spectators, and other vessels and users of the waterway.

Discussion of Rule

    The Coast Guard is establishing a safety zone that would be 
effective from 9 p.m. to 10 p.m. on June 14, June 27-28, July 4-6, July 
11-13, July 18-20, July 24-26, August 1-3, August 8-10, August 15-16, 
August 21-23, and August 29-31, 2008. The limits of the safety zone 
would be a 150 yard radius around the anchored firing barge located at 
approximately 32[deg]42'12'' N, 117[deg]10'01'' W.
    The safety zone is necessary to provide for the safety of the 
crews, spectators, and other vessels and users of the waterway. Persons 
and vessels will be prohibited from entering into, transiting through, 
or anchoring within this safety zone unless authorized by the Captain 
of the Port, or his designated representative.

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

[[Page 35343]]

Budget has not reviewed it under that Order.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation is unnecessary.
    This determination is based on the size and location of the safety 
zone. Commercial vessels will not be hindered by the safety zone. 
Recreational vessels will not be allowed to transit through the 
designated safety zone during the specified times.

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 will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
or anchor in a portion of the San Diego Bay from 9 p.m. to 10 p.m. on 
June 14, June 27-28, July 4-6, July 11-13, July 18-20, July 24-26, 
August 1-3, August 8-10, August 15-16, August 21-23, and August 29-31, 
2008.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule will be in effect for only 1 hour late in the evening when vessel 
traffic is low. Vessel traffic can pass safely around the safety zone. 
Before the effective period, the Coast Guard will publish a local 
notice to mariners (LNM) and will issue broadcast notice to mariners 
(BNM) alerts via marine channel 16 VHF before the safety zone is 
enforced.

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 can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

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 an 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

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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. A final ``Environmental Analysis 
Check List'' and a final ``Categorical Exclusion Determination'' are 
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, and Waterways.

Words of Issuance and Regulatory Text

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 ACCES AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1225, 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.

    2. A new temporary Sec.  165.T11-036 to read as follows:


Sec.  165.T11-036  Safety Zone; San Diego Symphony Orchestra; San 
Diego, CA.

    (a) Location. The limits of the temporary safety zone would include 
a 150 radius around the anchored firing barge located at approximately 
32[deg]42'12'' N., 117[deg]10'01'' W.
    (b) Enforcement Period. This section will be enforced from 9 p.m. 
to 10 p.m. on each of the following days: June 14, June 27-28, July 4-
6, July 11-13, July 18-20, July 24-26, August 1-3, August 8-10, August 
15-16, August 21-23, and August 29-31, 2008. If the need for the safety 
zone ends before the scheduled termination time, the Captain of the 
Port will cease enforcement of this safety zone.
    (c) Definitions. The following definition applies to this section: 
Designated representative means any commissioned, warrant, and petty 
officer of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, 
and local, state, and federal law enforcement vessels who has been 
authorized to act on the behalf of the Captain of the Port.
    (d) 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 San Diego or his designated representative.
    (2) Mariners requesting permission to transit through the safety 
zone may request authorization to do so from the Patrol Commander 
(PATCOM). The PATCOM may be contacted on VHF-FM Channel 16.
    (3) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port or his designated representative.
    (4) 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.
    (5) The Coast Guard may be assisted by other federal, state, or 
local agencies.

    Dated: June 6, 2008.
D.L. LeBlanc,
Commander, U.S. Coast Guard, Acting Captain of the Port San Diego.
[FR Doc. E8-14045 Filed 6-20-08; 8:45 am]
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