[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Rules and Regulations]
[Pages 30902-30904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10227]



[[Page 30902]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0344]
RIN 1625-AA00


Safety Zone; SFSU Graduation Fireworks; San Francisco Bay, San 
Francisco, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the San Francisco Bay, outside McCovey Cove, in San 
Francisco, CA in support of a fireworks display on May 26, 2023. The 
safety zone is necessary to protect personnel, vessels, and the marine 
environment from potential hazards created by pyrotechnics. 
Unauthorized persons or vessels are prohibited from entering, 
transiting through, or remaining in the safety zone without the 
permission of the Captain of the Port San Francisco or a designated 
representative.

DATES: This rule is effective from 10 a.m. until 10:10 p.m. on May 26, 
2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0344 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 LT William K. Harris, U.S. Coast Guard Sector San 
Francisco, Waterways Management Division, at 415-399-7443, 
[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. The Coast Guard 
did not receive final details for this event until April 13, 2023. It 
is impracticable to go through the full notice and comment rulemaking 
process because the Coast Guard must establish this safety zone by May 
26, 2023, and lacks sufficient time to provide a reasonable comment 
period and to 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 contrary to public interest because action is 
necessary to protect personnel, vessels and the marine environment from 
the potential safety hazards associated with the fireworks display 
outside McCovey Cove in San Francisco, CA on May 26, 2023.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 46 U.S.C. 
70034. The Captain of the Port (COTP) San Francisco has determined that 
potential hazards associated with the scheduled San Francisco State 
University (SFSU) Graduation Fireworks display on May 26, 2023, will be 
a safety concern for anyone within a 100-foot radius of the fireworks 
vessel during loading and staging, and anyone within a 600-foot radius 
of the fireworks vessel starting 30 minutes before the fireworks 
display is scheduled to commence and ending 30 minutes after the 
conclusion of the fireworks display. For this reason, this temporary 
safety zone is needed to protect personnel, vessels, and the marine 
environment in the navigable waters around the fireworks vessel and 
during the fireworks display.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 10 a.m. until 
10:10 p.m. on May 26, 2023, during the loading, staging, and transit of 
the fireworks vessel from Westar Marine Service Pier 50, San Francisco, 
CA, and until 30 minutes after completion of the fireworks display. 
During the loading, staging, and transit of the fireworks vessel 
scheduled to take place between 10 a.m. and 8 p.m. on May 26, 2023, 
until 30 minutes prior to the start of the fireworks display, the 
safety zone will encompass the navigable waters around and under the 
fireworks vessel, from surface to bottom, within a circle formed by 
connecting all points 100 feet out from the fireworks vessel. The 
fireworks display is scheduled to start at 9:30 p.m. and end 
approximately 9:40 p.m. on May 26, 2023, outside of McCovey Cove within 
the San Francisco Bay in San Francisco, CA.
    At 9 p.m., which is 30 minutes prior to the commencement of the 10-
minute fireworks display, the safety zone will increase in size and 
encompass the navigable waters around and under the fireworks vessel, 
from surface to bottom, within a circle formed by connecting all points 
600 feet from the circle center at approximate position 37[deg]46'36'' 
N, 122[deg]22'56'' W (NAD 83). The safety zone will terminate at 10:10 
p.m. on May 26, 2023, or as announced via Marine Information Broadcast.
    This regulation is necessary to keep persons and vessels away from 
the immediate vicinity of the fireworks loading, staging, transit, and 
display site. Except for persons or vessels authorized by the COTP or 
the COTP's designated representative, no person or vessel may enter or 
remain in a restricted area. A ``designated representative'' means a 
Coast Guard Patrol Commander, including a Coast Guard coxswain, petty 
officer, or other officer operating a Coast Guard vessel, or a Federal, 
State, or local officer designated by or assisting the COTP in the 
enforcement of the Safety Zone. This regulation is necessary to ensure 
the safety of participants, spectators, and transiting vessels.

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 limited 
duration and narrowly tailored geographic area of the safety zone. 
Although this rule restricts

[[Page 30903]]

access to the waters encompassed by the safety zone, the effect of this 
rule will not be significant because the local waterways users will be 
notified to ensure the safety zone will result in minimum impact. The 
vessels desiring to transit through or around the temporary safety zone 
may do so upon express permission from the COTP or the COTP's 
designated representative.

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 
temporary safety zone in the navigable waters around the loading, 
staging, transit, and display of fireworks at Westar Marine Service 
Pier 50 and outside McCovey Cove within San Francisco Bay. It is 
categorically excluded from further 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, 70124; 33 CFR 1.05-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T11-124 to read as follows:


Sec.  165.T11-124   Safety Zone; SFSU Graduation Fireworks; San 
Francisco Bay, San Francisco, CA.

    (a) Locations. The following area is a safety zone: all navigable 
waters of the San Francisco Bay, from surface to bottom, within a 
circle formed by connecting all points 100 feet out from the fireworks 
vessel during loading and staging at Westar Marine Service Pier 50 in 
San Francisco, CA as well as transit and arrival to the display 
location outside McCovey Cove, San Francisco Bay in San Francisco, CA. 
Between 9 p.m. and 10:10 p.m. on May 26, 2023, the safety zone will 
expand to all navigable waters, from surface to bottom, within a circle 
formed by connecting all points 600 feet out from the fireworks vessel 
in approximate position 37[deg]46'36'' N, 122[deg]22'56'' W (NAD 83) or 
as announced by Marine Information Bulletin.
    (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, or a Federal, State, or local officer

[[Page 30904]]

designated by or assisting the Captain of the Port (COTP) San Francisco 
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) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or the COTP's designated representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or the COTP's designated representative to 
obtain permission to do so. Vessel operators given permission to enter 
in the safety zone must comply with all lawful orders or directions 
given to them by the COTP or the COTP's designated representative. 
Persons and vessels may request permission to enter the safety zone on 
VHF-23A or through the 24-hour Command Center at telephone (415) 399-
3547.
    (d) Enforcement period. This section will be enforced from 10 a.m. 
until 10:10 p.m. on May 26, 2023.
    (e) Information broadcasts. The COTP or the COTP's designated 
representative will notify the maritime community of periods during 
which this zone will be enforced, in accordance with 33 CFR 165.7.

    Dated: May 7, 2023.
Taylor Q. Lam,
Captain, U.S. Coast Guard, Captain of the Port, Sector San Francisco.
[FR Doc. 2023-10227 Filed 5-12-23; 8:45 am]
BILLING CODE 9110-04-P


