[Federal Register Volume 88, Number 200 (Wednesday, October 18, 2023)]
[Rules and Regulations]
[Pages 71755-71756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22910]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket Number USCG-2023-0702]
RIN 1625-AA08


Special Local Regulation; 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 special local regulation for 
the San Diego Sharkfest Swim marine event that will be held on the 
navigable waters of San Diego Bay, San Diego, CA. This action is 
necessary to provide for the safety of life on these navigable waters 
of San Diego Bay during a swim event on October 21, 2023. This rule 
would prohibit spectators from anchoring, blocking, loitering or 
transiting through the event area unless authorized by the Captain of 
the Port San Diego or a designated representative.

DATES: This rule is effective from 9 a.m. to 10 a.m. on October 21, 
2023.

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule, 
call or email Lieutenant Junior Grade Shelley Turner, 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 we must establish this special local 
regulation by October 21, 2023. The Coast Guard was given short notice 
from the event sponsor that the date of the event would differ from the 
existing annual marine event as outlined in 33 CFR 100.1101, Table 1 to 
Sec.  100.1101, Item 7. As such, it is impracticable to publish an NPRM 
because we lack sufficient time to provide a reasonable comment period 
and then consider those comments before issuing the rule in time for 
the new event dates. This regulation is necessary to ensure the safety 
of life on the navigable waters of San Diego Bay during the marine 
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. Delaying the effective date of 
this rule would be contrary to public interest because immediate action 
is needed to ensure the safety of life on the navigable waters of San 
Diego Bay during the marine event on October 21, 2023.

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 Sector San 
Diego (COTP) has determined that a large number of swimmers in San 
Diego Bay associated with the San Diego Sharkfest Swim marine event on 
October 21, 2023, poses a potential safety concern. This rule is needed 
to protect persons, vessels, and the marine environment in the 
navigable waters within San Diego Bay while the event is occurring.

IV. Discussion of the Rule

    This rule establishes a special local regulation from 9 a.m. to 10 
a.m. on October 21, 2023. This special local regulation will cover the 
navigable waters of San Diego Bay encompassed by a line connecting the 
following coordinates beginning at 32[deg]42'14'' N, 117[deg]09'55'' W 
(Point A); thence running southerly to 32[deg]41'49'' N, 
117[deg]09'57'' W (Point B); thence running south, along the shoreline 
to 32[deg]41'19'' N, 117[deg]09'48'' W (Point C); thence running north 
easterly to 32[deg]41'23'' N, 117[deg]09'41'' W (Point D); thence 
running northerly to 32[deg]42'00'' N, 117[deg]09'38'' (Point E); 
thence running northerly, along the shoreline to the beginning point. 
The duration of the zone is intended to ensure the safety of vessels, 
event participants, and these navigable waters during the scheduled 
marine event. No vessel or person would be permitted to enter the 
regulated area without obtaining permission from the COTP or a 
designated representative. The regulatory text appears at the end of 
this document.

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 section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
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, duration, and time-of-day of the regulated area. The affected 
portion of the San Diego Bay will be of a 1 hour limited duration, 
during morning hours when vessel traffic is historically low and is 
necessary for safety of life to participants in the event. Moreover, 
the Coast Guard would make a post in the Local Notice to Mariners with 
details on the regulated area, as well as issue a Safety Marine 
Information Broadcast over Channel 22A.

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

[[Page 71756]]

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 
regulated area that would limit access to certain areas of San Diego 
Bay from 9 a.m. to 10 a.m. It is categorically excluded from further 
review under paragraph L61 of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 1.

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 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Security Measure, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority: 46 U.S.C. 70041; 33 CFR 1.05-1.


0
2. Add Sec.  100.T11-133 to read as follows:


Sec.  100.T11-133  San Diego Sharkfest Swim, San Diego Bay, California.

    (a) Regulated area. The regulations in this section apply to the 
following area: all navigable waters of San Diego Bay encompassed by a 
line connecting the following points beginning at 32[deg]42'14'' N, 
117[deg]09'55'' W (Point A); thence running southerly to 32[deg]41'49'' 
N, 117[deg]09'57'' W (Point B); thence running south, along the 
shoreline to 32[deg]41'19'' N, 117[deg]09'48'' W (Point C); thence 
running north easterly to 32[deg]41'23'' N, 117[deg]09'41'' W (Point 
D); thence running northerly to 32[deg]42'00'' N, 117[deg]09'38'' 
(Point E); thence running northerly, along the shoreline to the 
beginning point. These coordinates are based on the 1984 World Geodetic 
System (WGS 84).
    (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 regulations in this section.
    Participant means all persons and vessels registered with the event 
sponsor as a participants in the race.
    (c) Regulations. (1) All non-participants are prohibited from 
entering, transiting through, anchoring in, or remaining within the 
regulated area described in paragraph (a) of this section unless 
authorized by the Captain of the Port San Diego or their designated 
representative.
    (2) Vessels requiring entry into this regulated area must request 
permission from the COTP or a designated representative. They may be 
contacted on VHF-FM Channel 21A or by telephone at 619-278-7033.
    (3) The COTP will provide notice of the regulated area through 
advanced notice via Local Notice to Mariners and Safety Marine 
Information Broadcasts on Channel 22A.
    (d) Enforcement period. This section will be enforced from 9 a.m. 
to 10 a.m. on October 21, 2023.

    Dated: October 10, 2023.
J.W. Spitler,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. 2023-22910 Filed 10-17-23; 8:45 am]
BILLING CODE 9110-04-P