
[Federal Register: February 23, 2009 (Volume 74, Number 34)]
[Rules and Regulations]               
[Page 8007-8009]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23fe09-7]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0046]
RIN 1625-AA00

 
Safety Zone; Naval Underwater Detonation; Northwest Harbor, San 
Clemente Island, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone on the navigable 
waters of the Northwest Harbor of San Clemente Island in support of the 
Naval Underwater Detonation. This safety zone is necessary to ensure 
non-authorized personnel and vessels remain safe by keeping clear of 
the hazardous area during the training activity. Persons and vessels 
are prohibited from entering into, transiting through, or anchoring 
within this safety zone unless authorized by the Captain of the Port 
(COTP) or his designated representative.

DATES: This rule is effective from February 1, 2009 through April 1, 
2009.

ADDRESSES: Comments and materials received from the public, as well as 
documents mentioned in this preamble as being available in the docket 
are part of docket USCG-2009-0046 and are available online by going to 
http://www.regulations.gov, selecting the Advanced Docket Search option 
on the right side of the screen, inserting USCG-2009-0046 in the Docket 
ID box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is also available for inspection or copying at 
two locations: 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, and the U.S. Coast 
Guard Sector San Diego, 2710 N. Harbor Dr., San Diego, CA 92101 between 
8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Petty Officer Kristen Beer, USCG, Waterways 
Management, U.S. Coast Guard Sector San Diego at (619) 278-7262. 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) 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 immediate action is necessary to 
ensure the safety of commercial and recreational vehicles in the 
vicinity of the Naval Underwater Detonation on the dates and times this 
rule will be in effect and delay would be contrary to the public 
interest.
    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 would 
be contrary to the public interest, since immediate action is needed to 
ensure the public's safety. Any delay in the effective date of this 
rule would expose mariners to the dangers posed by the detonation of 
underwater explosives.

Background and Purpose

    The Officer in Charge (OIC) of the Southern California Offshore 
Range will be conducting intermittent training involving the detonation 
of military grade explosives underwater throughout February and March 
2009. This safety zone is necessary to ensure non-authorized personnel 
and vessels remain safe by keeping clear of the hazardous area during 
the training activity.

Discussion of Rule

    The Coast Guard is establishing a safety zone that will be enforced 
from February 1, 2009 through April 1, 2009. The limits of the safety 
zone will be the navigable waters of the Northwest Harbor of San 
Clemente Island bounded by the following coordinates: 33[deg]02'06'' N, 
118[deg]35'36'' W; 33[deg]02'00'' N, 118[deg]34'36'' W; thence along 
San Clemente shoreline to 33[deg]02'06'' N, 118[deg]35'36'' W. This 
safety zone is necessary to ensure non-authorized personnel and vessels 
remain safe by keeping clear of the hazardous area during the training 
activities. 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.

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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. This determination is based 
on the size and location of the safety zone. Recreational vessels will 
not be allowed to transit through the designated safety zone during the 
specified times while training is being conducted.

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

[[Page 8008]]

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 in a portion of the Northwest Harbor of San Clemente 
Island from February 1, 2009 through August 1, 2009.
    This safety zone 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 safety zone. Although the safety 
zone will apply to the harbor, traffic will be allowed to pass through 
the zone with the permission of the Coast Guard patrol commander. 
Before the effective period, the Coast Guard will issue a broadcast 
notice to mariners (BNM) alerts.

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 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 5100.1 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 
under the Instruction that there are no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation.
    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:


[[Page 8009]]


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


0
2. Add a new temporary Sec.  165.T11-148 to read as follows:


Sec.  165.T11-148  Safety Zone; Naval Underwater Detonation; Northwest 
Harbor, San Clemente Island, CA.

    (a) Location. The limits of the safety zone will include the 
navigable waters of the Northwest Harbor of San Clemente Island bounded 
by the following coordinates: 33[deg]02'06'' N, 118[deg]35'36'' W; 
33[deg]02'00'' N, 118[deg]34'36'' W; thence along the coast of San 
Clemente Island to 33[deg]02'06'' N, 118[deg]35'36'' W.
    (b) Enforcement Period. This section will be enforced from February 
1, 2009 through April 1, 2009. If the training is concluded prior to 
the scheduled termination time, the COTP will cease enforcement of this 
safety zone and will announce that fact via Broadcast Notice to 
Mariners.
    (c) Definitions. The following definitions apply to this section: 
designated representative, means any Commissioned, Warrant, or Petty 
Officers of the Coast Guard, Coast Guard Auxiliary, or local, state, 
and federal law enforcement vessels who have been authorized to act on 
the behalf of the COTP; non-authorized personnel and vessels, means any 
civilian boats, fishermen, divers, and swimmers.
    (d) Regulations. (1) Entry into, transit through or anchoring 
within this safety zone is prohibited unless authorized by the COTP San 
Diego or his designated representative.
    (2) Non-authorized personnel and vessels requesting permission to 
transit through the safety zone may request authorization to do so from 
the COTP San Diego or his designated representative. They may be 
contacted on VHF-FM Channel 16, or at telephone number (619) 278-7033.
    (3) Naval units involved in the exercise are allowed in confines of 
the established safety zone.
    (4) All persons and vessels shall comply with the instructions of 
the Coast Guard COTP or his designated representative.
    (5) Upon being hailed by U.S. Coast Guard or other official 
personnel by siren, radio, flashing light, or other means, the operator 
of a vessel shall proceed as directed.
    (6) The Coast Guard may be assisted by other federal, state, or 
local agencies and the U.S. Navy.

    Dated: February 3, 2009.
T.H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. E9-3764 Filed 2-20-09; 8:45 am]

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