[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82243-82246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32914]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1129]
RIN 1625-AA87


Security Zones; Moored Cruise Ships, Port of San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary security zone 
regulation from December 21, 2010, through June 20, 2011. The security 
zones created by this rule will encompass all navigable waters 
extending from the surface to the sea floor, within a 100 yard radius 
around any cruise ship that is moored at any berth within the San Diego 
port area inside the sea buoys bounding the Port of San Diego. This 
temporary final rule is necessary to provide for the safety of the 
cruise ship, vessels, and users of the waterway. Entry into these 
security zones will be prohibited unless specifically authorized by the 
Captain of the Port (COTP) San Diego, or his or her designated 
representative. This rule will also suspend paragraph (b)(2) of 33 CFR 
165.1108, a related regulation.

DATES: This rule is effective from December 21, 2010, through June 20, 
2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-1129 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-1129 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 Commander Michael B. Dolan, Prevention, 
Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7261, 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:

[[Page 82244]]

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 is contrary to the public interest 
not to issue a rule that is effective by December 21, 2010. Good cause 
exists to issue a temporary rule amending Section 165.1108, due to the 
opening of the Broadway cruise ship terminal and the anticipated 
arrival of cruise ships immediately thereafter, including on December 
22, 2010. It is in the public interest to avoid the potential 
disruption that could be caused to major roadways just onshore. 
Moreover, security interests can continue to be maintained during the 
ensuing notice and comment rulemaking to amend Section 165.1108(b)(2). 
In addition, this rule will relieve an unnecessary burden imposed by 
varying interpretations of 33 CFR 165.1108(b)(2) while providing an 
effective security zone regulation in its place during a notice-and-
comment rulemaking to amend Sec.  165.1108(b)(2). As noted in the 
Discussion of the Rule section below, the Coast Guard will initiate a 
separate, notice-and-comment rulemaking proposing to amend 33 CFR 
165.1108(b)(2) while this temporary rule is in effect.
    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 because it is contrary to the 
public interest not to suspend 33 CFR 165.1108(b)(2) and issue an 
effective temporary rule for moored cruise ships in San Diego Harbor by 
December 21, 2010.

Background and Purpose

    Based on experience with actual security zone enforcement 
operations, the COTP San Diego has concluded that a security zone 
encompassing all navigable waters, extending from the surface to the 
sea floor, within a 100 yard radius around any cruise ship that is 
moored at any berth within the San Diego port area inside the sea buoys 
bounding the Port of San Diego would provide for the safety of the 
cruise ship, vessels, and users of the waterway.

Discussion of Rule

    The Coast Guard is establishing a temporary security zone 
regulation from December 21, 2010, through June 20, 2011. The security 
zones created by this temporary final rule will encompass all navigable 
waters, extending from the surface to the sea floor, within a 100 yard 
radius around any cruise ship that is moored at any berth within the 
San Diego port area inside the sea buoys bounding the Port of San 
Diego. These security zones are necessary to provide for the safety of 
the cruise ship, vessels, and users of the waterway. Entry into these 
zones will be prohibited unless specifically authorized by the Captain 
of the Port (COTP) San Diego, or his or her designated representative.
    This temporary rule also suspends paragraph (b)(2) of 33 CFR 
165.1108. The Coast Guard will initiate a separate, notice-and-comment 
rulemaking, to amend Sec.  165.1108(b)(2) and clarify what is meant by 
its reference to ``shore area.'' The COTP has determined the security 
zones for moored cruise ships in San Diego Harbor need not include any 
land.

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.
    It is not ``significant'' under the regulatory policies and 
procedures of the Department of Homeland Security (DHS). We expect the 
economic impact of this rule to be so minimal that full Regulatory 
Evaluation is unnecessary. Most of the entities likely to be affected 
are pleasure craft engaged in recreational activities and sightseeing. 
In addition, due to National Security interests, the implementation of 
this temporary security zone regulation is necessary for the protection 
of the United States and its people. The size of the zones is the 
minimum necessary to provide adequate protection for cruise ships.

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 San Diego Bay within a 100-yard radius of cruise ships 
covered by this temporary final rule while it is effective from 
December 21, 2010 through June 20, 2011.
    This security zone regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. Vessel traffic can pass safely around the zones. Before the 
arrival of any cruise ship that would activate a security zone under 
this temporary final rule, the Coast Guard will issue local notice to 
mariners (LNM) and broadcast notice to mariners (BNM) alerts via VHF-FM 
marine channel 16 before the security 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.

[[Page 82245]]

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. This rule involves the establishment of 
security zones.
    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. 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.


Sec.  165.1108  [Amended]

0
2. From December 21, 2010, through June 20, 2011, temporarily suspend 
Sec.  165.1108(b)(2).

0
3. From December 21, 2010, through June 20, 2011, temporarily add Sec.  
165.T11-386 to read as follows:


Sec.  165.T11-386  Temporary Security Zones; Moored Cruise Ships, Port 
of San Diego, California.

    (a) Definition. Cruise ship as used in this section means a 
passenger vessel, except for a ferry, 100 gross tons or more, 
authorized to carry more than 12 passengers for hire; capable of making 
international voyages lasting more than 24 hours, any part of which is 
on the high seas; and for which passengers are embarked, disembarked or 
at a port of call in the San Diego port.
    (b) Location. The following areas are security zones: All navigable 
waters, extending from the surface to the sea floor, within a 100 yard 
radius around any cruise ship that is moored at any berth within the 
San Diego port area inside the sea buoys bounding the Port of San 
Diego.
    (c) Regulations. Under regulations in 33 CFR part 165, subpart D, 
entry into or remaining in the security zones created by this section 
is prohibited unless authorized by the Coast Guard Captain of the Port, 
San Diego or his designated representative. Persons desiring to transit 
the area of the security zones may contact the Captain of the Port at 
telephone number (619) 683-6495 or on VHF-FM channel 16 (156.8 MHz) to 
seek permission to transit the area. If permission is granted, all 
persons and vessels must comply with the instructions of the Captain of 
the Port or his or her designated representative.
    (d) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.

[[Page 82246]]

    (e) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the security zones by the San Diego Harbor Police.

    Dated: December 20, 2010.
P.J. Hill,
Commander, U.S. Coast Guard, Acting Captain of the Port San Diego, CA.
[FR Doc. 2010-32914 Filed 12-28-10; 11:15 am]
BILLING CODE 9110-04-P