11 February 2009

[Federal Register: February 11, 2009 (Volume 74, Number 27)]
[Proposed Rules]
[Page 6842-6844]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe09-13]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1016]
RIN 1625-AA87


Security Zone; Naval Base Point Loma; San Diego Bay, San Diego,
CA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes the expansion of a naval security
zone. This action would expand an existing security zone, which in
doing so would encompass a nearby security zone in its entirety. The
subsumed security zone would be removed. This action also proposes the
installation of water barriers within the expanded security zone. These
water borne barriers will provide a line of demarcation and a defensive
measure as a safeguard from destruction, loss, or injury from sabotage
or other subversive acts, accidents, or other causes of a similar
nature. No persons or vessel may enter or remain in the security zone
without the permission of the Captain of the Port, the Commander of
Naval Base Point Loma, the Commander of Naval Region Southwest, or a
designated representative of those individuals.

DATES: Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before March 13,
2009 or reach the Docket Management Facility by that date.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-1016 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. For
instructions on submitting comments, see the ``Public Participation and
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section
below.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call Lieutenant Commander Mike Dolan, USCG, Waterways Management,
U.S. Coast Guard Sector San Diego at 619-278-7261. If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2008-1016), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail, or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
    To submit your comment online, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2008-1016'' in the Docket ID box, press Enter,
and then click on the balloon shape in the Actions column. If you
submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period and may change the rule
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert USCG-2008-1016 in the Docket ID box, press Enter, and
then click on the item in the Docket ID column. You may also visit
either the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC, 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays; or the U.S. Coast Guard
Sector San Diego, 2710 N. Harbor Drive, San Diego, CA 92101 between 8
a.m. and 3 p.m., Monday through Friday, except Federal holidays. We
have an agreement with the Department of Transportation to use the
Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a
request

[[Page 6843]]

for one to the Docket Management Facility at the address under
ADDRESSES explaining why one would be beneficial. If we determine that
one would aid this rulemaking, we will hold one at a time and place
announced by a later notice in the Federal Register.

Background and Purpose

    The U.S. Navy is requesting an expansion of an existing security
zone. The new zone will allow for installation of water barriers to
provide a line of demarcation and defensive measure as a safeguard from
destruction, loss, or injury from sabotage or other subversive acts,
accidents, or other causes of similar nature. The expanded security
zone would entirely subsume a nearby existing security zone, which
would be removed.

Discussion of Proposed Rule

    The Coast Guard proposes an expansion of an existing security zone
in the San Diego Bay for U.S. Navy. The limits of the security zone
would be as follows: The water adjacent to Naval Base Point Loma, San
Diego, California, enclosed by the following coordinates:
    Beginning at 32[deg]42.48' N, 117[deg]14.21' W (Point A);
32[deg]42.48' N, 117[deg]14.17' W (Point B); 32[deg]42.17' N,
117[deg]14.00' W (Point C); 32[deg]41.73' N, 117[deg]14.21' W (Point
D); 32[deg]41.53' N, 117[deg]14.23' W (Point E); 32[deg]41.55' N,
117[deg]14.02' W (Point F); 32[deg]41.17' N, 117[deg]13.95' W (Point
G); 32[deg]41.04' N, 117[deg]14.14' W (Point H); thence running
generally north along the shoreline to the place of beginning (Point
A).
    This security zone is necessary to provide as a safeguard against
destruction, loss, or injury from sabotage or other subversive acts,
accidents, or other causes of a similar nature. No persons or vessel
may enter or remain in the security zone without the permission of the
Commander, Naval Base Point Loma; Commander, Naval Region Southwest;
the Captain of the Port, or their respective designated
representatives.
    This proposed security zone would entirely overlap the existing
security zone at 33 CFR 165.1103, which would be removed.

Regulatory Analyses

    We developed this proposed 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 proposed 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.
    This determination is based on the size and location of the
security zone. Vessels do not routinely operate for commercial purposes
within the area proposed by the security zone expansion, which is
currently within a charted restricted area (33 CFR 334.870).
Additionally, vessel traffic may pass safely around the security zone.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities.
    This proposed rule would affect the following entities, some of
which might be small entities: The owners or operators of vessels
intending to transit or anchor in a portion of the San Diego Bay.
    This security zone would not have a significant economic impact on
a substantial number of small entities because vessel traffic may pass
safely around the security zone.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.

Assistance for Small Entities

    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 proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact Lieutenant Commander Mike Dolan,
USCG, Waterways Management, U.S. Coast Guard Sector San Diego at 619-
278-7233. The Coast Guard will not retaliate against small entities
that question or complain about this proposed rule or any policy or
action of the Coast Guard.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.

[[Page 6844]]

Indian Tribal Governments

    This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination under the Instruction that this
action is not likely to have a significant effect on the human
environment. An environmental analysis checklist supporting this
preliminary determination is available in the docket where indicated
under ADDRESSES. We seek any comments or information that may lead to
the discovery of a significant environmental impact from this proposed
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    1. The authority citation for part 165 continues to read as
follows:

    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.

    2. Revise Sec.  165.1102 to read as follows:


Sec.  165.1102  Security Zone; Naval Base Point Loma; San Diego Bay,
San Diego, CA.

    (a) Location. The following area is a security zone: The water
adjacent to the Naval Base Point Loma, San Diego, CA, enclosed by the
following coordinates:
    Beginning at 32[deg]42.48[min] N, 117[deg]14.21[min] W (Point A);
32[deg]42.48[min] N, 117[deg]14.17[min] W (Point B); 32[deg]42.17[min]
N, 117[deg]14.00[min] W (Point C); 32[deg]41.73[min] N,
117[deg]14.21[min] W (Point D); 32[deg]41.53[min] N, 117[deg]14.23[min]
W (Point E); 32[deg]41.55[min] N, 117[deg]14.02[min] W (Point F);
32[deg]41.17[min] N, 117[deg]13.95[min] W (Point G); 32[deg]41.04[min]
N, 117[deg]14.14[min] W (Point H); thence running generally north along
the shoreline to the place of beginning (Point A).
    (b) Regulations. (1) The general regulations governing security
zones found in 33 CFR 165.33 apply to the security zone described in
paragraph (a) of this section.
    (2) Entry into, or remaining in, the area of this zone is
prohibited unless authorized by the Captain of the Port San Diego;
Commanding Officer, Naval Base Point Loma; or Commander, Navy Region
Southwest.
    (3) Persons desiring to transit the area of the security zone may
request permission from the Captain of the Port San Diego at telephone
number (619) 278-7033 or on VHF channel 16 (156.8 MHz) or from either
the Commanding Officer, Naval Base Point Loma or the Commander, Navy
Region Southwest by calling the Navy Port Operation Dispatch at
telephone number (619) 556-1433 or on VHF-FM channels 16 or 12. If
permission is granted, all persons and vessels must comply with the
instructions of the Captain of the Port San Diego or his or her
designated representative.
    (c) Definitions. For purposes of this section:
    Captain of the Port San Diego means the Commanding Office of the
Coast Guard Sector San Diego.
    Commander, Navy Region Southwest means Navy Region Commander
responsible for the Southwest Region.
    Commanding Officer, Naval Base Point Loma means the Installation
Commander of the naval base located on Point Loma, San Diego,
California.
    Designated Representative means any U.S. Coast Guard commissioned,
warrant, or petty officer who has been designated by the Captain of the
Port San Diego to assist in the enforcement of the security zone
described in paragraph (a) of this section.
    Enforcement. The U.S. Coast Guard may be assisted in the patrol and
enforcement of the security zone described in paragraph (a) of this
section by the U.S. Navy and local law enforcement agencies.
    3. Remove Sec.  165.1103.

    Dated: December 22, 2008.
T.H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
 [FR Doc. E9-2879 Filed 2-10-09; 8:45 am]

BILLING CODE 4910-15-P