[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.
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(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