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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG-2008-0837]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule; request for comments.

# SUMMARY:

The Coast Guard is establishing a temporary safety zone in the waters of Agat Bay and Outer Apra Harbor, Guam. The zone will encompass two distinct areas, each area bounded by a circle with a 300-meter radius on the surface and a 2750-meter radius underwater, centered at 13°23′00″ N and 144°35′00″ E (NAD 1983) and 13°27′42″ N and 144°38′30″ E (NAD 1983) respectively. This safety zone is necessary to protect mariners who would otherwise transit or be within the affected area from possible safety hazards associated with an underwater detonation operation. Entry of persons or vessels into this temporary safety zone is prohibited unless authorized by the Captain of the Port.

# DATES:

This rule is effective beginning September 15, 2008, through September 17, 2008, daily between the hours of 8 a.m. and 11:59 p.m.

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0837 and are available online at                         *www.regulations.gov.*                         They are 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 Guam, Naval Base Guam, between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.                    

# FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, contact Lieutenant Krissy Marlin, U.S. Coast Guard Sector Guam, at (671) 355-4835. If you have questions on viewing the docket, call Renne V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

# SUPPLEMENTARY INFORMATION:

                    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. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.                

## Submitting Comments

                    If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0837), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, and 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. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under                     **ADDRESSES**                    ; but please submit your comments by only one means. If you submit them by mail or 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                           ( print page 53129)                        envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.                

## 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*                     at any time. Enter the docket number for this rulemaking (USCG-2008-0837) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT 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 Coast Guard Sector Guam, Naval Base Guam, between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.                

## Background and Purpose

The Coast Guard expects that, on September 15th, 16th and 17th 2008, the U.S. Navy will conduct an underwater detonation of explosives operation within the Guam Captain of the Port Zone. The Coast Guard has determined that a temporary safety zone, that will encompass two distinct areas in the waters of Agat Bay and outer Apra Harbor, is necessary to protect mariners and divers from hazards associated with the operation. The areas are relatively close together, and both are areas where underwater demolition exercises will occur.

## Discussion of Rule

This temporary safety zone is effective daily between the hours of 8 a.m. to 11:59 p.m. beginning September 15, 2008, through September 17, 2008. The zone is located within the Guam Captain of the Port Zone (See 33 CFR 3.70-15) and covers all waters bounded by a circle with a 300-meter radius on the surface and a 2750-meter radius underwater, centered at 13°23′00″ N and 144°35′00″ E in Agat Bay and 13°27′42″ N and 144°38′30″ E in outer Apra Harbor, from the surface of the water to the ocean floor.

The general regulations governing safety zones contained in 33 CFR 165.23 apply. Entry into, transit through or anchoring within this zone is prohibited unless authorized by the Captain of the Port or a designated representative thereof. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the zone. The Captain of the Port may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime safety. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

## Regulatory Evaluation

This rule is not a “significant regulatory action” under § 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under § 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the short duration of the zone and the limited geographic area affected by it.

## Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 expect that there will be little or no impact to small entities due to the narrowly tailored scope of this safety zone.

## 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 this 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).

## 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 either preempts State law or imposes 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

## Taking of Private Property

This rule will not affect 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                           ( print page 53130)                        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 is 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 Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, 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 limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation because it is a regulation establishing a safety zone.

                    A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under                     **ADDRESSES**                    .                

# List of Subjects 33 CFR Part 165

      - Harbors
      - Marine Safety
      - Navigation (water)
      - Reporting and recordkeeping requirements
      - Security measures, and 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, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T14-173 to read as follows: 

§ 165.T14-173 

                            (a)                             *Location.*                             The following areas, within the Guam Captain of the Port Zone (See 33 CFR 3.70-15), from the surface of the water to the ocean floor, are a safety zone:                        

(1) All waters bounded by a circle with a 300-meter radius on the surface and a 2750-meter radius underwater, centered at 13°23′42″ N and 144°35′00″ E (NAD 1983);

(2) All waters bounded by a circle with a 300-meter radius on the surface and a 2750-meter radius underwater, centered at 13°27′42″ N and 144°38′30″ E.

                            (b)                             *Effective Dates.*                             This rule is effective beginning September 15, 2008, through September 17, 2008, daily between the hours of 8 a.m. and 11:59 p.m.                        

                            (c)                             *Enforcement Period.*                             This rule will be enforced from 8 a.m. through 11:59 p.m., each day, from September 15, 2008, through September 17, 2008.                        

                            (d)                             *Regulations.*                             The general regulations governing safety zones contained in 33 CFR 165.23 apply. Entry into, transit through or anchoring within this zone is prohibited unless authorized by the Captain of the Port or a designated representative thereof.                        

                            (e)                             *Enforcement.*                             Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce this temporary safety zone.                        

                            (f)                             *Waiver.*                             The Captain of the Port may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime security.                        

Dated: September 3, 2008.

T. Sparks,

Captain, U.S. Coast Guard, Captain of the Port Guam.

[FR Doc. E8-21549 Filed 9-11-08; 4:15 pm]

BILLING CODE 4910-15-P