[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2373-2376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-849]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1236]
RIN 1625-AA87


Security Zone; Steam Generator Transit, Captain of the Port Zone 
San Diego; San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary moving security 
zone around steam generators as they transit through and when moored in 
the Captain of the Port(COTP) zone San Diego. This security zone is 
needed to prevent vessels from transiting in the vicinity of the 
generators to help ensure the safety and security of the operation. 
Entry into this zone will be prohibited unless specifically authorized 
by the Captain of the Port, San Diego, or his designated 
representative.

DATES: This rule is effective from 11:59 p.m. on January 2, 2009, to 
11:59 p.m on January 22, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-1236 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,

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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 Shane Jackson, USCG, Waterways 
Management, U.S. Coast Guard Sector San Diego at (619) 278-7267. If you 
have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final 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 a notice of proposed rulemaking (NPRM) 
with respect to this rule because it was impracticable since the 
logistical details of the steam generators transit in the Captain of 
the Port Zone San Diego was 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.

Background and Purpose

    Steam Generators will be transiting to San Onofre Nuclear Power 
Plant. Due to the operational significance of the cargo the Captain of 
the Port is establishing a security zone to prevent vessels from 
transiting the area and to protect the generators and personnel from 
potential damage and injury.

Discussion of Rule

    The Coast Guard is establishing a temporary moving security zone 
that will be enforced from 11:59 p.m. on January 2, 2009, to 11:59 p.m 
on January 22, 2009. The limits of the security zone will include all 
waters of the Pacific Ocean extending from the surface to the sea 
floor, within 200 yards ahead, and 100 yards on each side and astern of 
the steam generators while underway and 100 yards on all sides when 
moored in the navigable waters of COTP zone San Diego.
    Persons and vessels are prohibited from entering into or transiting 
through this security zone unless authorized by the Captain of the 
Port, or his designated representative. By prohibiting all vessel 
traffic from entering the waters surrounding these generators, the 
security of the cargo will be enhanced. U.S. Coast Guard personnel will 
enforce the security zone.
    The Captain of the Port may, in his discretion grant waivers or 
exemptions to this rule, either on a case-by-case basis or 
categorically to a particular class of vessel that otherwise is subject 
to adequate control measures.
    The Coast Guard will issue a Broadcast Notice to Mariners to 
further ensure the local boating traffic is aware of the security zone 
and its geographical boundaries. Vessels or persons violating this 
section will be subject to both criminal and civil penalties.
    The security zone will be effective from 11:59 p.m. on January 2, 
2009, to 11:59 p.m on January 22, 2009. A Broadcast Notice to Mariners 
will notify the public on the specific days of transit.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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.
    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 security zone. 
The affected area will be relatively small in size and will only 
briefly affect the transits of other 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 will 
not have a significant economic impact on a substantial number of small 
entities.
    We anticipate that the security zone would not have a significant 
economic impact on a substantial number of small entities for the 
following reasons. This rule would only affect those small portions of 
the waterways immediately surrounding the military operations within 
the COTP Zone. Before the effective period, the Coast Guard will issue 
maritime advisories widely available to users of the waterways so 
owners and operators can make necessary preparations. Traffic may also 
be allowed to pass through the security zone with the permission of the 
Coast Guard patrol commander or COTP.
    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 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

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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 Department of Homeland Security 
Management Directive 5100.1 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 concluded 
under the Instruction 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.
    An environmental analysis checklist and a 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, 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 Sec.  165.T11-132 to read as follows:


Sec.  165.T11-132  Security zone; Steam generator transit, Captain of 
the port zone San Diego; San Diego, California.

    (a) Location. The security zone will include all waters of the 
Pacific Ocean extending from the surface to the sea floor, within 200 
yards ahead, and 100 yards on each side and astern of the steam 
generators, while underway and 100 yards on all side when moored in the 
navigable waters of COTP zone San Diego, as defined in 33 CFR 3.55-15.
    (b) Enforcement Period. This section will be enforced from 11:59 
p.m. on January 2, 2009, to 11:59 p.m on January, 22, 2009. If the need 
for the security zone ends before the scheduled termination time, the 
Captain of the Port will cease enforcement of this security zone and 
will announce that fact via Broadcast Notice to Mariners.
    (c) Definitions. The following definition applies to this section:
    Designated representative, means any Commissioned, Warrant, and 
Petty Officers of the Coast Guard onboard Coast Guard, Coast Guard 
Auxiliary, or local, state, and federal law enforcement vessels who 
have been authorized to act on the behalf of the Captain of the Port to 
assist in enforcement of this section.
    (d) Regulations. (1) Entry into, transit through or anchoring 
within this safety zone is prohibited unless authorized by the Captain 
of the Port of San Diego or his designated on-scene representative.
    (2) Mariners requesting permission to transit through the safety 
zone may request authorization to do so from the Sector San Diego 
Command Center (COMCEN). The COMCEN may be contacted on VHF-FM Channel 
16.
    (3) All persons and vessels shall comply with the instructions of 
the

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Coast Guard Captain of the Port or the 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 in the enforcement of this section.

    Dated: January 2, 2009.
T.H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. E9-849 Filed 1-14-09; 8:45 am]
BILLING CODE 4910-15-P