[Federal Register Volume 74, Number 141 (Friday, July 24, 2009)]
[Rules and Regulations]
[Pages 36608-36610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17746]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0456]
RIN 1625-AA00


Safety Zone; Naval Training August and September, San Clemente 
Island, 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 Pacific Ocean at the north end of San Clemente Island in 
support of Naval Live Fire Training. This safety zone is necessary to 
ensure non-authorized personnel and vessels remain safe by keeping 
clear of the hazardous area during the training activity. Persons and 
vessels are prohibited from entering into, transiting through, or 
anchoring within this safety zone unless authorized by the Captain of 
the Port (COTP) or his designated representative.

DATES: This rule is effective from August 1, 2009 through September 30, 
2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0456 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0456 
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 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Petty Officer Kristen Beer, Waterways 
Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 
619-278-7262, e-mail [email protected]. 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 any live fire training on the dates and times this rule 
will be in effect and delay would be contrary to the public interest.
    For the same reasons, the Coast Guard also finds that good cause 
exists under 5 U.S.C. 553(d)(3) 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 training.

Background and Purpose

    U.S. Naval forces will be conducting intermittent training 
involving live fire exercises throughout August and September 2009. 
This safety zone is necessary to ensure non-authorized personnel and 
vessels remain safe by keeping clear of the hazardous area during the 
training activity.

Discussion of Rule

    The Coast Guard is establishing a safety zone that will be enforced 
from August 1, 2009 through September 30, 2009. The limits of the 
safety zone will be the navigable waters of the Pacific Ocean at the 
north end of San Clemente Island bounded by lines connecting the 
following coordinates: Beginning at 33[deg]01.09[min] N, 
118[deg]36.34[min] W; thence to 32[deg]59.95[min] N, 118[deg]39.77[min] 
W; thence running parallel to the shoreline at a distance of 
approximately 3 NM to 33[deg]02.81[min] N, 118[deg]30.65[min] W; thence 
to 33[deg]01.29[min] N, 118[deg]33.88[min] W; thence along the 
shoreline returning to 33[deg]01.09[min] N, 118[deg]36.34[min] W (NAD 
83).
    This safety zone is necessary to ensure non-authorized personnel 
and vessels remain safe by keeping clear of the hazardous area during 
the training

[[Page 36609]]

activities. 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.

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 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 and 
recreational vessels will not be allowed to transit through the 
designated safety zone during specified times of training.

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 Pacific Ocean on the north end of San 
Clemente Island from August 1, 2009 until September 30, 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 enforced only during naval training exercises. Vessel 
traffic can pass safely around the zone. Traffic will be allowed to 
pass through the zone with the permission of the U.S. Navy or U.S. 
Coast Guard. Before the effective period, the Coast Guard will issue 
broadcast notice to mariners (BNM) alerts.

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

[[Page 36610]]

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 023-01 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 
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 because this rule establishes a safety 
zone.
    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; 
Public Law 107-295; 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add a new temporary section Sec.  165.T11-224 to read as follows:


Sec.  165.T11-224  Safety Zone; Naval Training August and September, 
San Clemente Island, CA.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Pacific Ocean, from surface to bottom, at the north end 
of San Clemente Island bounded by lines connecting the following 
points: Beginning at 33[deg]01.09' N, 118[deg]36.34' W; thence to 
32[deg]59.95' N, 118[deg]39.77' W; thence running parallel to the 
shoreline at a distance of approximately 3 NM to 33[deg]02.81' N, 
118[deg]30.65' W; thence to 33[deg]01.29' N, 118[deg]33.88' W; thence 
along the shoreline returning to 33[deg]01.09' N, 118[deg]36.34' W. 
These coordinates are based on NAD 83.
    (b) Effective Period. This section is effective from August 1, 2009 
through September 30, 2009 during naval training exercises. If training 
is concluded prior to the scheduled termination time, the COTP will 
cease enforcement of this safety zone and will announce that fact via 
Broadcast Notice to Mariners.
    (c) Definitions. The following definitions apply to this section: 
Designated representative, means any Commissioned, Warrant, or Petty 
Officers of the Coast Guard, Coast Guard Auxiliary, or local, state, 
and federal law enforcement vessels who have been authorized to act on 
the behalf of the COTP; non-authorized personnel and vessels, means any 
civilian boats, fishermen, divers, and swimmers.
    (d) Regulations. (1) Entry into, transit through or anchoring 
within this safety zone is prohibited unless authorized by the COTP San 
Diego or his designated representative.
    (2) Non-authorized personnel and vessels requesting permission to 
transit through the safety zone may request authorization to do so from 
the COTP San Diego or his designated representative. They may be 
contacted on VHF-FM Channel 16, or at telephone number (619) 278-7033.
    (3) Naval units involved in the exercise are allowed in confines of 
the established safety zone.
    (4) All persons and vessels shall comply with the instructions of 
the Coast Guard COTP or his designated representative.
    (5) Upon being hailed by U.S. Coast Guard or other official 
personnel by siren, radio, flashing light, or other means, the operator 
of a vessel shall proceed as directed.
    (6) The Coast Guard may be assisted by other federal, state, or 
local agencies including the U.S. Navy.

    Dated: June 15, 2009.
T.H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. E9-17746 Filed 7-23-09; 8:45 am]
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