[Federal Register: November 22, 2005 (Volume 70, Number 224)]
[Rules and Regulations]               
[Page 70493-70496]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22no05-9]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD11-05-002]
RIN 1625-AA11

 
Regulated Navigation Area; San Diego Bay, Mission Bay and Their 
Approaches, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
(RNA) within San Diego Bay, Mission Bay, and their approaches out to 
the 12

[[Page 70494]]

nautical mile limit of the territorial sea. This action is necessary to 
provide the COTP a greater situational awareness of vessels intending 
to enter San Diego Bay or Mission Bay, to allow the COTP to enforce 
safety and security zones associated with naval vessel movements and 
exercises, and increase awareness of potential threats to national 
security assets within the area. This RNA will ensure the safe movement 
of vessels in the vicinity of San Diego Bay and Mission Bay.

DATES: This rule is effective December 22, 2005.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD11 05-002 and are available for inspection or 
copying at USCG Sector San Diego between 9:30 a.m. and 2 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LCDR Andrew Cheney, Chief, Ports and 
Waterways Division, USCG Sector San Diego, telephone number 619-278-
7261.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On July 15, 2005, we published a Notice of Proposed Rulemaking 
(NPRM) entitled, Regulated Navigation Area; San Diego Bay, Mission Bay 
and Their Approaches, California in the Federal Register (70 FR 40944). 
We received no letters commenting on the proposed rule. No public 
meeting was requested, and none was held.

Background and Purpose

    This rule is one of a number of measures to reduce potential 
terrorist threats to the Port of San Diego, California. San Diego is 
the homeport of numerous U.S. naval vessels and facilities. The RNA 
increases the safety and security of naval vessels and facilities, 
commercial vessels, and the public by improving enforcement of safety 
and security zones by providing greater situational awareness regarding 
vessel operations in the area.
    In this rulemaking, the Coast Guard introduces a series of 
procedures to organize the flow and operation of vessels legitimately 
seeking to enter, leave or navigate within San Diego Bay or Mission 
Bay. These procedures apply to vessels of 100 GT or more, including tug 
and barge combinations of 100 GT or more (combined) intending to enter, 
leave or navigate within San Diego Bay or Mission Bay. These 
regulations do not apply to vessels engaged in innocent passage, force 
majeure or any other entry allowed under principles of international 
law regardless of their presence in the RNA. Vessels operating 
Automatic Identification System (AIS) in accordance with the AIS 
carriage requirements of the Maritime Transportation Security Act of 
2002 (MTSA) and the International Maritime Organization requirements 
adopted under International Convention for the Safety of Life at Sea, 
1974, (SOLAS) as amended, are also exempt from this regulation. The 
procedures are as follows:
    Vessels intending to cross the COLREGS Demarcation Line (denoted in 
33 CFR 80.1104 or 80.1106) and enter San Diego Bay or Mission Bay as 
part of normal operations must obtain permission from the COTP or 
designated representative upon entering into the RNA established in 33 
CFR 165.1122. Further, vessels of 100 GT or more that have already 
crossed the COLREGS Demarcation Line and entered San Diego or Mission 
Bay and intend to depart or move within the RNA must request permission 
from the COTP or designated representative. The Coast Guard recommends 
seeking permission 30 minutes prior to anticipated entry into the RNA 
or commencement of movement within the RNA to avoid delays.
    Upon receiving permission from the COTP or designated 
representative, the vessel may enter, depart, or move within the RNA 
and proceed in accordance with directives provided by the COTP or 
designated representative.
    Communication with the COTP may be made by telephone at (619) 278-
7033 (select option 2) or via VHF-FM marine band radio on channel 16 
(156.800 Mhz). Coast Guard Information regarding Port Security 
requirements in San Diego and Mission Bay will be conveyed via marine 
information broadcast on VHF-FM marine band radio, channel 22A (157.1 
MHz).

Discussion of Comments and Changes

    The Coast Guard received no comments on the proposed rule and has 
not changed the regulations from those proposed in the published NPRM.

Regulatory Evaluation

    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).
    This conclusion is based on the fact that this rule applies only to 
vessels of 100 GT or more, as described above, which are not using AIS 
and that intend on entering, departing, or moving within San Diego Bay 
or Mission Bay. This rule is not intended to infringe on 
internationally recognized principles such as innocent passage and 
force majeure. Further, because this rule is designed to manage the 
flow of qualified vessels, we do not anticipate significant delays in 
the movement of vessels through San Diego or Mission Bay.

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 
would not have a significant economic impact on a substantial number of 
small entities.
    This rule will affect only the following entities, some of which 
may be small entities: owners and operators of commercial vessels of 
100 GT or more intending to enter, depart, or move in San Diego Bay or 
Mission Bay. Because the number of small entities owning/operating 
commercial vessels of this size is not substantial and there is little 
anticipation of delay when requesting entry into San Diego Bay or 
Mission Bay the economic impact of this rule should be minimal.

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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking process. If your 
small business, organization, or governmental jurisdiction is affected 
by this rule and you have questions concerning its provisions or 
options for compliance, please contact LCDR Andrew Cheney, Chief, Ports 
and Waterways Division, USCG Sector San Diego, 619-278-7261.
    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

[[Page 70495]]

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 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 would not create an 
environmental risk to health or risk to safety that might 
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 Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded 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 because it establishes a Regulated 
Navigation Area.
    A final ``Environmental Analysis Check List'' and final 
``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, Waterways.

0
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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. Add Sec.  165.1122 to read as follows:


Sec.  165.1122  San Diego Bay, Mission Bay and their Approaches--
Regulated navigation area.

    (a) Regulated navigation area. The following area is a regulated 
navigation area (RNA): All waters of San Diego Bay, Mission Bay, and 
their approaches encompassed by a line commencing at Point La Jolla 
(32[deg]51'06'' N, 117[deg]16'42'' W); thence proceeding seaward on a 
line bearing 255[deg] T to the outermost extent of the territorial 
seas; thence proceeding southerly along the outermost extent of the 
territorial seas to the intersection of the maritime boundary with 
Mexico; thence proceeding easterly, along the maritime boundary with 
Mexico to its intersection with the California coast; thence proceeding 
northerly, along the shoreline of the California coast--and including 
the inland waters of San Diego Bay and Mission Bay, California, 
shoreward of the COLREGS Demarcation Line --back to the point of 
origin. All coordinates reference 1983 North American Datum (NAD 83).
    (b) Definitions. As used in this section--
    COLREGS Demarcation Line means the line described at 33 CFR 80.1104 
or 80.1106.
    Public vessel means a vessel that is owned or demise--(bareboat) 
chartered by the government of the United States, by a State or local 
government, or by the government of a foreign country and that is not 
engaged in commercial service.
    Vessel means every description of watercraft or other artificial 
contrivance

[[Page 70496]]

used, or capable of being used, as a means of transportation on water 
other than a public vessel.
    (c) Applicability. This section applies to all vessels of 100 gross 
tons (GT) or more, including tug and barge combinations of 100 GT or 
more (combined), operating within the RNA, with the exception of public 
vessels, vessels not intending to cross the COLREGS Demarcation Line 
and enter San Diego Bay or Mission Bay, and any vessels exercising 
rights under principles of international law, including innocent 
passage or force majeure, within the area of this RNA. Vessels 
operating properly installed, operational, type approved automatic 
identification system (AIS) as denoted in 33 CFR 164.46 are exempted 
from making requests as required in this regulation.
    (d) Regulations. (1) No vessel to which this rule applies may 
enter, depart or move within San Diego Bay or Mission Bay unless it 
complies with the following requirements:
    (i) Obtain permission to enter San Diego Bay or Mission Bay from 
the Captain of the Port or designated representative immediately upon 
entering the RNA. However, to avoid potential delays, we recommend 
seeking permission 30 minutes prior to entering the RNA.
    (ii) Follow all instructions issued by the Captain of the Port or 
designated representative.
    (iii) Obtain permission for any departure from or movement within 
the RNA from the Captain of the Port or designated representative prior 
to getting underway.
    (iv) Follow all instructions issued by the Captain of the Port or 
designated representative.
    (v) Requests may be made by telephone at 619-278-7033 (select 
option 2) or via VHF-FM radiotelephone on channel 16 (156.800 Mhz). The 
call sign for radiotelephone requests to the Captain of the Port or 
designated representative is ``Coast Guard Sector San Diego.''
    (2) For purposes of the requirements in paragraph (d)(1) of this 
section, the Captain of the Port or designated representative means any 
official designated by the Captain of the Port, including but not 
limited to commissioned, warrant, and petty officers of the U.S. Coast 
Guard, and any U.S. Coast Guard patrol vessel. Upon being hailed by a 
U.S. Coast Guard vessel by siren, radio, flashing light, or other 
means, the operator of a vessel shall proceed as directed.
    (e) Waivers. The Captain of the Port or designated representative 
may, upon request, waive any regulation in this section.

    Dated: November 9, 2005.
K.J. Eldridge,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 05-23030 Filed 11-21-05; 8:45 am]

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