[Federal Register Volume 74, Number 193 (Wednesday, October 7, 2009)]
[Rules and Regulations]
[Pages 51465-51467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24176]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0811]
RIN 1625-AA00


Safety Zone; Beachfest Fireworks, Pacific Ocean, 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 Pacific Ocean near San Diego in support of the 
Beachfest 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 p.m. to 10 p.m. on October 10, 
2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0811 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0811 in the 
``Keyword'' box, and then clicking ``Search.'' 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 Shane Jackson, Waterways 
Management, U.S. Coast Guard Sector San Diego; 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 any delay in the effective date of 
this rule would expose members of the public to the dangers associated 
with fireworks displays. Immediate action is necessary to ensure the 
safety of vessels, spectators, and other users of the waterway.
    For the same reasons, the Coast Guard also finds under 5 U.S.C. 
553(d)(3) that good cause exists for making this rule effective less 
than 30 days after publication in the Federal Register.

Background and Purpose

    Fireworks & Stage FX Inc is sponsoring the Beachfest Fireworks 
Display, which will include a fireworks presentation from Crystal Pier 
in the Pacific Beach neighborhood of San Diego, California. The safety 
zone will be a 600 foot radius around the end of the pier. This 
temporary safety zone is necessary to provide for the safety of the 
vessels, spectators, and other users of the waterway.

Discussion of Rule

    The Coast Guard is establishing a safety zone that will be enforced 
from 8 p.m. to 10 p.m. on October 10, 2009. The limits of the safety 
zone will be a 600 foot radius around the end of Crystal Pier in the 
Pacific Beach neighborhood of San Diego, California. 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.

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 the affected portion of the Pacific Ocean from 8 p.m. to 
10 p.m. on October 10, 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 in a small area for only two hours late in the 
evening when vessel traffic is low. Commercial vessels will

[[Page 51466]]

not be hindered by the safety zone. Before the effective period, the 
Coast Guard will publish a local notice to mariners and will issue 
broadcast notice to mariners alerts via marine channel VHF 16 before 
the temporary 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 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 the rule involves the establishment 
of 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; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T11-237 to read as follows:


Sec.  165.T11-237  Safety Zone; Beachfest Fireworks, San Diego, CA.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Pacific Ocean, from surface to bottom, within 600 feet of 
the fireworks launching site located at the end of Crystal Pier in San 
Diego, CA.
    (b) Enforcement Period. This section will be enforced from 8 p.m. 
to 10 p.m. on October 10, 2009. If the event

[[Page 51467]]

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: 
As used in this section, designated representative, means any 
commissioned, warrant, or petty officers of the Coast Guard on board 
Coast Guard, Coast Guard Auxiliary, or local, State, or Federal law 
enforcement vessels who have been authorized to act on the behalf of 
the Captain of the Port.
    (d) Regulations. (1) Under the general regulations in Sec.  165.23, 
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 
Communications Center (COMCEN). The COMCEN may be contacted via VHF-FM 
Channel 16 or (619) 278-7033.
    (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 
must proceed as directed.
    (5) The Coast Guard may be assisted by other Federal, State, or 
local agencies.

    Dated: September 21, 2009.
T. H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. E9-24176 Filed 10-6-09; 8:45 am]
BILLING CODE 4910-15-P