[Federal Register Volume 86, Number 203 (Monday, October 25, 2021)]
[Rules and Regulations]
[Pages 58801-58803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23172]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0769]
RIN 1625-AA00


Safety Zone; San Diego Bay, San Diego, CA

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters in the vicinity of the General Dynamics NASSCO 
shipyard in San Diego Bay, San Diego, CA, during the launch of the USNS 
Harvey Milk. The safety zone is needed to protect personnel, vessels, 
and the marine environment from potential hazards associated with the 
launching and subsequent berthing of the USNS Harvey Milk. Entry of 
vessels or persons into this zone is prohibited unless specifically 
authorized by the Captain of the Port San Diego.

DATES: This rule is effective from 9 a.m. through 10:30 a.m., on 
November 6, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0769 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Commander John Santorum, Waterways Management, 
U.S. Coast Guard Sector San Diego, CA; telephone 619-278-7656, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 impracticable to publish an 
NPRM because the Coast Guard must establish this safety zone by 
November 6, 2021. This urgent safety zone is required to protect the 
maritime public and the surrounding waterways from hazards associated 
with the launching of the USNS Harvey Milk. The Coast Guard lacks 
sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule.
    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. Delaying the effective date of 
this rule would be impracticable because this rule is needed to protect 
mariners, commercial and recreational waterway users, and the USNS 
Harvey Milk from dangers associated with the

[[Page 58802]]

launching and berthing of the USNS Harvey Milk on November 6, 2021.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port San Diego 
(COTP) has determined that potential hazards associated with launching 
of the USNS Harvey Milk on November 6, 2021 will be a safety concern 
for anyone in the vicinity of the General Dynamics NASSCO shipyard, San 
Diego Bay, San Diego, CA. This rule is needed to protect personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone while the USNS Harvey Milk is being launched and towed to a 
nearby berth.

IV. Discussion of the Rule

    This rule establishes a safety zone from 9 a.m. until 10:30 a.m., 
on November 6, 2021. The safety zone will cover all navigable waters of 
the San Diego Bay, CA created by connecting the following points: 
Beginning at 32[deg]41.39' N, 117[deg]08.66' W (Point A); thence 
running southwesterly to 32[deg]41.24' N, 117[deg]09.05' W (Point B); 
thence running southeasterly to 32[deg]41.05' N, 117[deg]08.73' W 
(Point C); thence running northeasterly to 32[deg]41.20' N, 
117[deg]08.34' W (Point D); thence running northwesterly to the 
beginning point. The duration of the zone is intended to protect 
personnel, vessels, and the marine environment in these navigable 
waters while the USNS Harvey Milk is being launched, then towed to 
berth. No vessel or person will be permitted to enter the safety zone 
without obtaining permission from the COTP or a designated 
representative.

V. 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, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the size, location 
and limited duration of the safety zone. This safety zone impacts a 
small designated area of the San Diego Bay for a very limited period 
during the weekend when vessel traffic is normally low. Moreover, the 
Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM 
marine channel 16 about the zone, and the rule would allow vessels to 
seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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.

E. 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.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(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 a 
safety zone lasting less than two hours that will prohibit entry within 
certain navigable waters of San Diego Bay, San Diego, CA in the 
vicinity of the General Dynamics NASSCO shipyard. It is categorically 
excluded from further

[[Page 58803]]

review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration 
supporting this determination is available in the docket. For 
instructions on locating the docket, see the ADDRESSES section of this 
preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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.

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: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T11-0077 to read as follows:


Sec.  165.T11-0077  Safety Zone; San Diego Bay, San Diego, CA.

    (a) Location. The following area is a safety zone: All waters of 
San Diego Bay, from surface to bottom, encompassed by a line connecting 
the following points beginning at 32[deg]41.39' N, 117[deg]08.66' W 
(Point A); thence running southwesterly to 32[deg]41.24' N, 
117[deg]09.05' W (Point B); thence running southeasterly to 
32[deg]41.05' N, 117[deg]08.73' W (Point C); thence running 
northeasterly to 32[deg]41.20' N, 117[deg]08.34' W (NAD 83) (Point D); 
thence running northwesterly to the beginning point.
    (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 Diego (COTP) in the enforcement of the safety 
zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by VHF Channel 16. Those in the safety zone must comply 
with all lawful orders or directions given to them by the COTP or the 
COTP's designated representative.
    (d) Enforcement period. This section will be enforced from 9 a.m. 
through 10:30 a.m., on November 6, 2021.

    Dated: October 19, 2021.
T.J. Barelli,
Captain, U.S. Coast Guard, Captain of the Port Sector San Diego.
[FR Doc. 2021-23172 Filed 10-22-21; 8:45 am]
BILLING CODE 9110-04-P