[Federal Register Volume 71, Number 158 (Wednesday, August 16, 2006)]
[Rules and Regulations]
[Pages 47098-47100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13392]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 06-031]
RIN 1625-AA00


Safety Zone; Old Mormon Slough Sediment Contamination--McCormick 
and Baxter Superfund Site; Stockton, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters of Stockton Deep Water Channel, in the vicinity of the 
Old Mormon Slough. This safety zone is necessary to protect persons and 
vessels, which might otherwise transit near the work site, from the 
hazards associated with the work. Unauthorized persons or vessels are 
prohibited from entering into, transiting through, or remaining in the 
safety zone without permission of the Captain of the Port or his 
designated representative.

DATES: This rule is effective from July 24, 2006 through October 31, 
2006.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP 06-031 and are available for 
inspection or copying at the Waterways Safety Branch of Sector San 
Francisco, Yerba Buena Island, Bldg. 278, San Francisco, California, 
94130, between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Ensign Erin Bastick, U.S. Coast Guard 
Sector San Francisco, at (415) 556-2950 or Sector San Francisco 24 hour 
Command Center at (415) 399-3547.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this

[[Page 47099]]

regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. The dates for the site 
remediation of the Old Mormon Slough were not finalized and presented 
to the Coast Guard in time to draft and publish an NPRM. As such, the 
capping of the Slough would commence before the rulemaking process 
could be completed. Any delay in implementing this rule is contrary to 
the public interest since immediate action is necessary in order to 
protect the maritime public from the hazards associated with the 
remediation.
    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 dates for the site remediation 
of the Old Mormon Slough were not finalized and presented to the Coast 
Guard in time to publish this rule 30 days prior to its effective date. 
As such, the capping of the Slough would commence before the rulemaking 
process could be completed. Delay in the effective date of this rule 
would expose the mariners and waterways users to undue hazards 
associated with the remediation and would therefore be contrary to the 
public interest.

Background and Purpose

    This safety zone is necessary to cap a superfund site, located in 
the Stockton Deep Water Channel, within the Old Mormon Slough. The Army 
Corps of Engineers has contracted Montgomery Watson, with J.E. McAmis 
Inc. being the subcontractor, to implement Phase II of the selected 
remedy for contaminated sediment in the Old Mormon Slough. Phase II 
consists of placing a cap of clean sand on the contaminated portion of 
the Slough. During this process it is imperative that unauthorized 
persons or vessels remain out of the safety zone for safety reasons in 
addition to ensuring proper completion of the project. This will enable 
the EPA to proceed with plans of this Superfund site and contain the 
contaminated sediment.

Discussion of Rule

    This safety zone will encompass the navigable waters from the 
surface to the sea floor, located in the Stockton Deep Water Channel, 
within the Old Mormon Slough, encompassing all waters East of 
37[deg]57'01.25'' N. Latitude by 121[deg]18'48.03'' W. Longitude. 
Within the waters of this safety zone, J.E. McAmis, Inc. will be 
covering the contaminated bottom of the Old Mormon Slough with two feet 
of sand. To control turbidity, a primary and a local silt curtain will 
be installed. The primary silt curtain will be installed at 
37[deg]57'01.25'' N. Latitude by 121[deg]18'48.03'' W. Longitude, 
creating the safety zones outer boundary. JEM intends to place one 
loaded barge of sand (approximately 750/c.y.) each day. The silt 
curtains will be opened and closed each day when a loaded barge is 
switched with an empty barge. After completion of sand placement, the 
primary silt curtain will be removed. A permanent log boom will be 
installed in the same location along with Type 2, Type 3A and Type 3B 
warning signs. This safety zone is necessary to protect persons and 
property from the hazards associated with the work.
    U.S. Coast Guard personnel will enforce this safety zone. Other 
Federal, State, or local agencies may assist the Coast Guard, including 
the Coast Guard Auxiliary. Section 165.23 of Title 33, Code of Federal 
Regulations, prohibits any unauthorized person or vessel from entering 
or remaining in a safety zone. Vessels or persons violating this 
section will be subject to both criminal and civil penalties.

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.
    Although this rule restricts access to the waters encompassed by 
the safety zone, the effect of this rule will not be significant 
because the local waterway users have been contacted to ensure the 
closure will result in minimum impact. The entities most likely to be 
affected are pleasure craft engaged in recreational activities.

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 expect this rule may affect owners and operators of 
vessels, some of which may be small entities, intending to fish, 
sightsee, or anchor in the waters affected by this safety zone. This 
safety zone will not have a significant economic impact on a 
substantial number of small entities because vessels engaged in 
recreational activities, sightseeing and fishing have ample space 
outside of the safety zone to engage in these activities.
    Small entities and the maritime public will also be advised of this 
safety zone via public broadcast notice to mariners. The economic 
impact of this waterway closure is not expected to be significant.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), 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. If the 
rule will affect your small business, organization, or government 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Ensign Erin Bastick, Waterways 
Safety Branch, U.S. Coast Guard Sector San Francisco at (415) 556-2950 
extension 142, or the 24 hour Command Center at (415) 399-3547.
    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 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

[[Page 47100]]

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 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 
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 
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. Paragraph (34)(g) is applicable because this rule 
establishes a safety zone.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' will be 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.


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; 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.T11-127, to read as follows:


Sec.  165.T11-127  Safety Zone; Old Mormon Slough Sediment 
Contamination--McCormick and Baxter Superfund Site; Stockton, 
California.

    (a) Location. This safety zone will encompass the navigable waters 
from the surface to the sea floor, located in the Stockton Deep Water 
Channel, within the Old Mormon Slough, encompassing all waters East of 
37[deg]57'01.25''N Latitude by 121[deg]18'48.03''W Longitude. Within 
the waters of this safety zone, the contaminated bottom of the Old 
Mormon Slough will be covered with two feet of sand. To control 
turbidity, a primary and a local silt curtain will be installed. The 
primary silt curtain will be installed at 37[deg]57'01.25''N Latitude 
by 121[deg]18'48.03''W Longitude, creating the safety zones outer 
boundary.
    (b) Effective Dates. This rule is effective from July 24, 2006 
through October 31, 2006.
    (c) Regulations. In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transit through, or anchoring 
within this safety zone by all vessels and persons is prohibited, 
unless specifically authorized by the Captain of the Port San 
Francisco, or his designated on-scene patrol personnel.
    (d) Enforcement. (1) All persons and vessels shall comply with the 
instructions of the Coast Guard Captain of the Port, or the designated 
on-scene patrol personnel. Patrol personnel can be comprised of 
commissioned, warrant, and petty officers of the Coast Guard onboard 
Coast Guard, Coast Guard Auxiliary, local, state, and Federal law 
enforcement vessels. 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.
    (2) The U.S. Coast Guard may be assisted in the patrol and 
enforcement of these two safety zones by local law enforcement as 
necessary.
    (3) If the need for the safety zone ends prior to the scheduled 
termination time, the Captain of the Port will cease enforcement of the 
safety zone.

    Dated: July 21, 2006.
David Swatland,
Captain, U.S. Coast Guard, Acting Captain of the Port, San Francisco, 
California.
[FR Doc. E6-13392 Filed 8-15-06; 8:45 am]
BILLING CODE 4910-15-P