[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Rules and Regulations]
[Pages 17084-17086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8492]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0044]
RIN 1625-AA00


Safety Zone; San Diego Bay, 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 San Diego Bay in support of the Fireworks Display. This 
safety zone is necessary to provide for the safety of the participants, 
crew, spectators, participating vessels, 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 8:30 p.m. through 9 p.m. on April 
21, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-200-9-0044 and are available online 
by going to www.regulations.gov, selecting the Advanced docket Search 
option on the right side of the screen, inserting USCG-2009-0044 in the 
Docket ID box, pressing Enter, and then clicking on the item in the 
Docket ID column. They are also available for inspection or copying at 
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 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 immediate action is necessary to 
ensure the safety of commercial and recreational vessels in the 
vicinity of the fireworks display on the date and times this rule will 
be in effect and delay would be contrary to the public interest, since 
immediate action is required to ensure the public's safety.
    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 
pyrotechnics used in the fireworks display and delay would be contrary 
to the public interest.

Background and Purpose

    Fireworks & Stage FX America is sponsoring the Tyco Electronics 
Fireworks Display, which will include a fireworks presentation from the 
flight deck of the USS Midway in San Diego Bay. The safety zone will 
encompass the navigable waters extending out 250 feet from all points 
of the USS Midway. This temporary safety zone is necessary to provide 
for the safety of the crew, spectators, and other users and vessels of 
the waterway.

Discussion of Rule

    The Coast Guard is establishing a safety zone that would be 
enforced from 8:30 p.m. to 9 p.m. on April 21, 2009. The limits of the 
safety zone will encompass the navigable waters extending out 250 feet 
from all points of the USS Midway located at approximately 
32[deg]42.52' N, 117[deg]10.35' W.

[[Page 17085]]

    The safety zone is necessary to provide for the safety of the 
crews, spectators, and other users and vessels 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 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 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 8:30 p.m. to 9 p.m. on 
April 21, 2009.
    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 30 minutes 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

[[Page 17086]]

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 0023.1 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 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction. This rule involves the 
establishment of a safety zone for the conduct of a fireworks display 
and is necessary in the interests of safety for mariners, spectators, 
and persons involved in the display.
    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, 3306, 
3703; 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.T11-153 to read as follows:


Sec.  165.T11-153  Safety Zone; Tyco Electronics Fireworks Display; San 
Diego Bay, San Diego, CA.

    (a) Location. The following area is a safety zone: the navigable 
waters extending out 250 feet from all points of the USS Midway located 
at approximately 32[deg]42.52' N, 117[deg]10.35' W.
    (b) Enforcement Period. This section will be enforced from 8:30 
p.m. to 9 p.m. on April 21, 2009. If the event concludes prior to the 
scheduled termination time, the Captain of the Port will cease 
enforcement of this safety 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 on board 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.
    (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. The Command Center 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 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.

    Dated: March 6, 2009.
T.H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. E9-8492 Filed 4-13-09; 8:45 am]
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