[Federal Register Volume 76, Number 54 (Monday, March 21, 2011)]
[Rules and Regulations]
[Pages 15216-15218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6579]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0038]
RIN 1625-AA87


Security Zones; Cruise Ships, Port of San Diego, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending its regulations for Security 
Zones; Cruise Ships, Port of San Diego, California, by providing a 
common description of all security zones created by this section to 
encompass only navigable waters within a 100 yard radius around any 
cruise ship that is located within the San Diego port area landward of 
the sea buoys bounding the Port of San Diego. This final rule removes a 
reference to shore area that is no longer 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 a COTP 
designated representative.

DATES: This rule is effective April 20, 2011.

ADDRESSES:  The contents of the online docket for this rulemaking, 
USCG-2011-0038, may be viewed by going to http://www.regulations.gov, 
inserting USCG-2011-0038 in the ``Keyword'' box, and then clicking 
``Search.'' This material is 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 
proposed rule, call or e-mail Commander Michael B. Dolan, Prevention, 
Coast Guard Sector San Diego, Coast Guard; telephone 619-278-7261, e-
mail <a href="/cdn-cgi/l/email-protection#dc91b5bfb4bdb9b0f29ef298b3b0bdb29ca9afbfbbf2b1b5b0"><span class="__cf_email__" data-cfemail="c78aaea4afa6a2abe985e983a8aba6a987b2b4a4a0e9aaaeab">[email protected]</span></a>. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

Regulatory Information

    On January 27, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled Security Zones; Cruise Ships, Port of San Diego, 
California in the Federal Register (76 FR 4833). We received no 
comments on the proposed rule, either through the electronic docket 
office, or directly to Coast Guard Sector San Diego. A public meeting 
was not requested, and none were held. The telephone number listed in 
the proposed rule to contact the Captain of the Port listed was 
incorrect. We have corrected it in this final rule.

Basis 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 
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. Therefore, no reference to shore area in 
security zones for moored cruise ships is required.

Background

    The Coast Guard is establishing a permanent security zone 
regulation. 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 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, other vessels and users of the waterway. Entry into these zones 
will be prohibited unless specifically authorized by the

[[Page 15217]]

Captain of the Port (COTP) San Diego, or a COTP designated 
representative.
    Paragraph (b)(2) of the existing 33 CFR 165.1108 includes reference 
to the shore area. The COTP has determined that security zones for 
moored cruise ships in San Diego Harbor need not include any shore 
area, as the shore side passenger terminals used for cruise ship 
operations are regulated under regulations in 33 CFR part 105 issued 
under authority of the Maritime Transportation Security Act of 2002 
(Pub. L. 107-295). These MTSA regulations were published July 1 (68 FR 
39315) and October 22, 2003 (68 FR 60515), months after the final rule 
establishing 33 CFR 165.1108 was published on January 8, 2003 (68 FR 
1005).
    The Coast Guard issued a temporary final rule that suspends Sec.  
165.1108 (b)(2) through June 20, 2011. See 75 FR 82243, December 30, 
2010. With the issuance of this final rule, the temporary final rule of 
December 30, 2010, is no longer needed. This final rule will remove 
that section.
    Further, this rule amends both 33 CFR 165.1108 (b) and (c). In 
addition to clarifying the area covered by security zones created by 
Sec.  165.1108 (b), this rule simplifies the regulation by not 
distinguishing between anchored cruise ships, moored cruise ships and 
cruise ships underway. Also, paragraph (c) is amended to make it 
clearer that persons and vessels may not enter these security zones 
without first obtaining permission of the Captain of the Port San 
Diego.

Discussion of Comments and Changes

    There were no comments submitted to the electronic docket or to 
Coast Guard Sector San Diego. No changes were made from the proposed 
regulation, except to correct the telephone number listed to contact 
the Captain of the Port.

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 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 in San Diego Bay within a 100-yard radius of cruise ships 
covered by this rule.
    This security zone regulation will not have a significant economic 
impact on a substantial number of small entities because vessel traffic 
can pass safely around the zones.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
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 (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.

Taking of Private Property

    This rule will not cause 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

[[Page 15218]]

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 proposed 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 made a determination 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 is categorically excluded, 
under figure 2-1, paragraph (34)(g), of the Instruction. This rule 
involves amending a security zone regulation by removing the reference 
to shore area in security zones for moored cruise ships. 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.

    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.


0
2. In Sec.  165.1108, reinstate temporarily suspended paragraph (b)(2), 
and then revise paragraphs (b) and (c) to read as follows:


Sec.  165.1108  Security Zones; Moored Cruise Ships, Port of San Diego, 
California.

* * * * *
    (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 located within the San Diego port 
area landward of the sea buoys bounding the Port of San Diego.
    (c) Regulations. Under regulations in 33 CFR part 165, subpart D, a 
person or vessel may not enter into or remain in the security zones 
created by this section unless authorized by the Coast Guard Captain of 
the Port, San Diego (COTP) or a COTP designated representative. Persons 
desiring to transit these security zones may contact the COTP at 
telephone number (619) 278-7033 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.
* * * * *


Sec.  165.T11-386  [Removed]

0
3. Remove Sec.  165.T11-386.

    Dated: March 7, 2011.
T.H. Farris,
Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. 2011-6579 Filed 3-16-11; 4:15 pm]
BILLING CODE 9110-04-P


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