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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [Docket No. USCG-2008-1236] 
          - RIN 1625-AA87 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Temporary final rule. 

# SUMMARY:

The Coast Guard is establishing a temporary moving security zone around steam generators as they transit through and when moored in the Captain of the Port(COTP) zone San Diego. This security zone is needed to prevent vessels from transiting in the vicinity of the generators to help ensure the safety and security of the operation. Entry into this zone will be prohibited unless specifically authorized by the Captain of the Port, San Diego, or his designated representative. 

# DATES:

This rule is effective from 11:59 p.m. on January 2, 2009, to 11:59 p.m on January 22, 2009. 

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-1236 and are available online at                         *http://www.regulations.gov.*                         They are also available for inspection or copying 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,                               ( print page 2374)                            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 Drive, 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 Shane Jackson, USCG, Waterways Management, U.S. Coast Guard Sector San Diego at (619) 278-7267. 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 it was impracticable since the logistical details of the steam generators transit in the Captain of the Port Zone San Diego was not finalized nor presented to the Coast Guard in enough time to draft and publish an NPRM. As such, the event would occur before the rulemaking process was complete. 

                    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**                    . The issuance of the final approval and permitting was so recent that the rule would be made effective less than 30 days after publication.                 

## Background and Purpose 

Steam Generators will be transiting to San Onofre Nuclear Power Plant. Due to the operational significance of the cargo the Captain of the Port is establishing a security zone to prevent vessels from transiting the area and to protect the generators and personnel from potential damage and injury. 

## Discussion of Rule 

The Coast Guard is establishing a temporary moving security zone that will be enforced from 11:59 p.m. on January 2, 2009, to 11:59 p.m on January 22, 2009. The limits of the security zone will include all waters of the Pacific Ocean extending from the surface to the sea floor, within 200 yards ahead, and 100 yards on each side and astern of the steam generators while underway and 100 yards on all sides when moored in the navigable waters of COTP zone San Diego. 

Persons and vessels are prohibited from entering into or transiting through this security zone unless authorized by the Captain of the Port, or his designated representative. By prohibiting all vessel traffic from entering the waters surrounding these generators, the security of the cargo will be enhanced. U.S. Coast Guard personnel will enforce the security zone. 

The Captain of the Port may, in his discretion grant waivers or exemptions to this rule, either on a case-by-case basis or categorically to a particular class of vessel that otherwise is subject to adequate control measures. 

The Coast Guard will issue a Broadcast Notice to Mariners to further ensure the local boating traffic is aware of the security zone and its geographical boundaries. Vessels or persons violating this section will be subject to both criminal and civil penalties. 

The security zone will be effective from 11:59 p.m. on January 2, 2009, to 11:59 p.m on January 22, 2009. A Broadcast Notice to Mariners will notify the public on the specific days of transit. 

## 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 proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This determination is based on the size and location of the security zone. The affected area will be relatively small in size and will only briefly affect the transits of other vessels. 

## 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. 

We anticipate that the security zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would only affect those small portions of the waterways immediately surrounding the military operations within the COTP Zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to users of the waterways so owners and operators can make necessary preparations. Traffic may also be allowed to pass through the security zone with the permission of the Coast Guard patrol commander or COTP. 

                    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 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                           ( print page 2375)                        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

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 

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; 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. Add § 165.T11-132 to read as follows: 

§ 165.T11-132 

                            (a)                             *Location.*                             The security zone will include all waters of the Pacific Ocean extending from the surface to the sea floor, within 200 yards ahead, and 100 yards on each side and astern of the steam generators, while underway and 100 yards on all side when moored in the navigable waters of COTP zone San Diego, as defined in 33 CFR 3.55-15.                         

                            (b)                             *Enforcement Period.*                             This section will be enforced from 11:59 p.m. on January 2, 2009, to 11:59 p.m on January, 22, 2009. If the need for the security zone ends before the scheduled termination time, the Captain of the Port will cease enforcement of this security zone and will announce that fact via Broadcast Notice to Mariners.                         

                            (c)                             *Definitions.*                             The following definition applies to this section:                         

*Designated representative*, means any Commissioned, Warrant, and Petty Officers of the Coast Guard onboard Coast Guard, Coast Guard Auxiliary, or local, state, and federal law enforcement vessels who have been authorized to act on the behalf of the Captain of the Port to assist in enforcement of this section.                         

                            (d)                             *Regulations*. (1) Entry into, transit through or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port of San Diego or his designated on-scene representative.                         

(2) Mariners requesting permission to transit through the safety zone may request authorization to do so from the Sector San Diego Command Center (COMCEN). The COMCEN may be contacted on VHF-FM Channel 16. 

                            (3) All persons and vessels shall comply with the instructions of the                                   ( print page 2376)                                Coast Guard Captain of the Port or the designated representative.                         

(4) Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. 

(5) The Coast Guard may be assisted by other federal, state, or local agencies in the enforcement of this section.

Dated: January 2, 2009. 

T.H. Farris, 

Captain, U.S. Coast Guard, Captain of the Port San Diego.

[FR Doc. E9-849 Filed 1-14-09; 8:45 am] 

BILLING CODE 4910-15-P