[Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
[Rules and Regulations]
[Pages 58878-58880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23264]



[[Page 58878]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0786]
RIN 1625-AA00


Safety Zone; San Diego Shark Fest Swim; 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 upon the 
navigable waters of the San Diego Bay, San Diego, CA, in support of San 
Diego Shark Fest Swim. 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 9:15 a.m. to 10:15 a.m. on October 
6, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2013-0786]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 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 rule, 
call or email Petty Officer Bryan Gollogly, Waterways Management, U.S. 
Coast Guard Sector San Diego; telephone (619) 278-7656, email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Barbara Hairston, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and 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 the logistical details of the San 
Diego Shark Fest Swim were not finalized nor presented to the Coast 
Guard in enough time to draft and publish an NPRM. As such, the event 
would occur before the rulemaking process was complete.
    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 impractical and 
contrary to the public interest. The Coast Guard did not have the 
necessary event information in time to provide both a comment period 
and allow for a 30 day delayed effective date. Immediate action is 
required to ensure the safety zone is in place to protect participants, 
crew, spectators, participating vessels, and other vessels and users of 
the waterway during the event.

B. Basis and Purpose

    The legal basis for this temporary rule is the Ports and Waterways 
Safety Act which authorizes the Coast Guard to establish safety zones 
(33 U.S.C 1221 et seq.). The Coast Guard is establishing a temporary 
safety zone on the navigable waters of the San Diego Bay for the 
October 6, 2013 San Diego Shark Fest Swim, consisting of 400 swimmers 
swimming a predetermined course. The sponsor will provide 18 safety 
vessels including boats, paddle boards, and PWCs for this event. This 
safety zone is necessary to provide for the safety of the participants, 
crew, spectators, sponsor vessels, and other users of the waterway.

C. Discussion of the Final Rule

    The Coast Guard is establishing a safety zone that will be enforced 
from 9:15 a.m. to 10:15 a.m. on October 6, 2013. The limits of the 
safety zone will be the navigable waters of the San Diego Bay bounded 
by the following coordinates: 32[deg]42.17' N, 117[deg]09.83' W; 
32[deg]41.66' N, 117[deg]09.88' W; along the shore line to 
32[deg]41.29' N, 117[deg]09.77' W; 32[deg]41.50' N, 117[deg]09.73' W; 
32[deg]42.05' N, 117[deg]09.68' W; along the shore line to 
32[deg]42.17' N, 117[deg]09.83' W.
    This safety zone is necessary to ensure unauthorized personnel and 
vessels remain safe by keeping clear during the San Diego Shark Fest 
Swim. 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.
    Before the effective period, the Coast Guard will publish a Coast 
Guard District Eleven Local Notice to Mariners information on the event 
and associated safety zone. Immediately before and during the swim 
event, Coast Guard Sector San Diego Joint Harbor Operations Center will 
issue Broadcast Notice to Mariners on the location and enforcement of 
the safety zone.
    Vessels will be able to transit the surrounding area and may be 
authorized to transit through the safety zone with the permission of 
the Captain of the Port of the designated representative. Before 
activating the zones, the Coast Guard will notify mariners by 
appropriate means including but not limited to Local Notice to Mariners 
and Broadcast Notice to Mariners.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and executive orders.

1. Regulatory Planning and Review

    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, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. This determination is 
based on the size, duration and location of the safety zone. Commercial 
vessels will not be hindered by the safety zone. Recreational vessels 
may be allowed to transit through the designated safety zone during the 
specified times if they request and obtain authorization from the 
Captain of the Port, or his designated representative. Additionally, 
before the effective period, the Coast Guard will publish a Local 
Notice to Mariners.

[[Page 58879]]

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.
    (1) 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 aforementioned portion of the San Diego Bay 
from October 6, 2013, from 9:15 a.m. to 10:15 a.m.
    (2) This safety zone will not have a significant economic impact on 
a substantial number of small entities for the following reasons: This 
safety zone will only be in effect for one hour in the morning when 
vessel traffic is low. Vessel traffic can transit safely around the 
zone when authorized.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 (adjusted for 
inflation) 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This rule involves the establishment of a safety zone. 
This rule is categorically excluded from further review under paragraph 
34(g) of Figure 2-1 of the Commandant Instruction. An environmental 
analysis checklist supporting this determination 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.

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

0
2. Add temporary Sec.  165.T11-595 to read as follows:

[[Page 58880]]

Sec.  165.T11-595  Safety Zone; San Diego Shark Fest Swim; San Diego 
Bay, San Diego, CA.

    (a) Location. The limits of the safety zone will be the navigable 
waters of the San Diego Bay bounded by the following coordinates: 
32[deg]42.17' N, 117[deg]09.83' W; 32[deg]41.66' N, 117[deg]09.88' W; 
along the shore line to 32[deg]41.29' N, 117[deg]09.77' W; 
32[deg]41.50' N, 117[deg]09.73' W; 32[deg]42.05' N, 117[deg]09.68' W; 
along the shore line to 32[deg]42.17' N, 117[deg]09.83' W.
    (b) Enforcement Period. This section will be enforced from 9:15 
a.m. to 10:15 a.m. on October 6, 2013. 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, or petty 
officer of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, 
and 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 representative.
    (2) Mariners requesting permission to transit through the safety 
zone may request authorization to do so from the Patrol Commander 
(PATCOM). The PATCOM 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: September 6, 2013.
S.M. Mahoney,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. 2013-23264 Filed 9-24-13; 8:45 am]
BILLING CODE 9110-04-P