[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Rules and Regulations]
[Pages 37650-37652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16093]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0370]
RIN 1625-AA00


Safety Zone; 4th of July Festival Berkeley Marina Fireworks 
Display Berkeley, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters of San Francisco Bay, off of the Berkeley Pier, 
Berkeley, CA in support of the 4th of July Festival Berkeley Marina 
Fireworks Display. Unauthorized persons or vessels are prohibited from 
entering into, transiting through, or remaining in the safety zone 
without permission of the Captain of the Port or a designated 
representative.

DATES: This rule is effective from 12 p.m. through 9:55 p.m. on July 4, 
2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0370 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0370 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 Lieutenant Junior Grade Liezl Nicholas at (415) 
399-7442, or 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)

[[Page 37651]]

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 the event would occur before the 
rulemaking process would be completed. Because of the dangers posed by 
the pyrotechnics used in these fireworks displays, the safety zones are 
necessary to provide for the safety of event participants, spectators, 
spectator craft, and other vessels transiting the event area. For the 
safety concerns noted, it is in the public interest to have these 
regulations in effect during the event.
    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.

Background and Purpose

    The City of Berkeley Marina will sponsor the 4th of July Festival 
Berkeley Marina Fireworks Display on July 4, 2011, on the navigable 
waters of San Francisco Bay, off of the Berkeley Pier, Berkeley, CA. 
The fireworks display is meant for entertainment purposes. This safety 
zone establishes a temporary restricted area on the waters surrounding 
the fireworks launch site during the fireworks display. This restricted 
area around the launch site is necessary to protect spectators, 
vessels, and other property from the hazards associated with the 
pyrotechnics over the water. The Coast Guard has granted the event 
sponsor a marine event permit for the fireworks display.

Discussion of Rule

    From 12 p.m. until 9:30 p.m. on July 4, 2011, the temporary safety 
zone will extend 100 feet while pyrotechnics are loaded and maintained 
on the Berkeley Pier at position 37[deg]51'40.34'' N, 
122[deg]19'19.59'' W (NAD 83). The fireworks display will occur from 
9:30 p.m. until 9:55 p.m., during which the safety zone will extend 
1,000 feet from the Berkeley Pier at position 37[deg]51'40.34'' N, 
122[deg]19'19.59'' W (NAD 83). At 9:55 p.m., the safety zone shall 
terminate.
    The effect of the temporary safety zones will be to restrict 
navigation in the vicinity of the fireworks sites while the fireworks 
are set up, and until the conclusion of the scheduled displays. Except 
for persons or vessels authorized by the Coast Guard Patrol Commander, 
no person or vessel may enter or remain in the restricted area. These 
regulations are needed to keep spectators and vessels a safe distance 
away from the launch site to ensure the safety of participants, 
spectators, and transiting vessels.

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.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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.
    Although this rule restricts access to the waters encompassed by 
the safety zone, the effect of this rule will not be significant. The 
entities most likely to be affected are pleasure craft engaged in 
recreational activities. In addition, the rule will only restrict 
access for a limited time. Finally, the Public Broadcast Notice to 
Mariners will notify the users of local waterway to ensure that the 
safety zone will result in minimum impact.

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.
    Although this rule may affect owners and operators of pleasure 
craft engaged in recreational activities and sightseeing, it will not 
have a significant economic impact on a substantial number of small 
entities for several reasons: (i) This rule will encompass only a small 
portion of the waterway for a limited period of time; (ii) vessel 
traffic can pass safely around the area; (iii) vessels engaged in 
recreational activities and sightseeing have ample space outside of the 
affected areas of San Francisco Bay, CA to engage in these activities; 
and (iv) the maritime public will be advised in advance of this safety 
zone via Broadcast Notice to Mariners.

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

[[Page 37652]]

an expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

Taking of Private Property

    This rule will not cause 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, paragraphs 
(34)(g) and (35)(b), of the Instruction. This rule involves 
establishing, disestablishing, or changing Regulated Navigation Areas 
and security or safety 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, and Waterways.

    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, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T11-421 to read as follows:


Sec.  165.T11-421  Safety Zone; 4th of July Festival Berkeley Marina 
Fireworks Display Berkeley, CA

    (a) Location. This temporary safety zone is established for the 
navigable waters of San Francisco Bay, off of the Berkeley Pier, 
Berkeley, CA. The fireworks launch site will be located in position: 
37[deg]51'40.34'' N, 122[deg]19'19.59'' W (NAD 83). From 12 p.m. until 
9:30 p.m., the temporary safety zone will extend 100 feet while 
pyrotechnics are loaded onto the Berkeley Pier. From 9:30 p.m. until 
9:55 p.m. the area to which the temporary safety zone applies will 
encompass the navigable waters around the fireworks launch site off of 
the Berkeley Pier within a radius of 1,000 feet. At 9:55 p.m., the 
safety zone shall terminate.
    (b) Definitions. As used in this section, ``designated 
representative'' means a Coast Guard Patrol Commander, including a 
Coast Guard coxswain, petty officer, or other officer operating a Coast 
Guard vessel and a Federal, State, and local officer designated by or 
assisting the Captain of the Port San Francisco (COTP) in the 
enforcement of the safety zone.
    (c) Regulations. (1) Under the general regulations in Sec.  165.23, 
entry into, transiting, or anchoring within this safety zone is 
prohibited unless authorized by the COTP or the COTP's designated 
representative.
    (2) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or a designated representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or a designated representative to obtain 
permission to do so. Vessel operators given permission to enter or 
operate in the safety zone must comply with all directions given to 
them by the COTP or the designated representative. Persons and vessels 
may request permission to enter the safety zones on VHF-16 or through 
the 24-hour Command Center at telephone (415) 399-3547.
    (d) Effective period. This section is effective from 12 p.m. 
through 9:55 p.m. on July 4, 2011.

    Dated: June 16, 2011.
Cynthia L. Stowe,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. 2011-16093 Filed 6-27-11; 8:45 am]
BILLING CODE 9110-04-P