[Federal Register Volume 74, Number 76 (Wednesday, April 22, 2009)]
[Rules and Regulations]
[Pages 18293-18295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9167]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0278]
RIN 1625-AA00


Safety Zone; Waters Surrounding Berth 7 at the Port of Oakland, 
San Francisco Bay, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters of the San Francisco Bay, CA at Berth 7 at the Port of 
Oakland during the offloading of the ZHEN HUA 18. Unauthorized persons 
or vessels are prohibited from entering into, transiting through, or 
remaining in the safety zone without the permission of the Captain of 
the Port or his designated representative.

DATES: This rule is effective from noon on April 14, 2009, through 
11:59 p.m. on April 24, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0278 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0278 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are 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 
temporary rule, call Lieutenant Junior Grade Simone Mausz, U.S. Coast 
Guard Sector San Francisco, at (415) 399-7442. 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 the event would occur before the 
rulemaking process would be completed. Because of the dangers posed by 
the offloading of heavy equipment onboard this vessel, the safety zone 
is necessary to provide for the safety of other vessels transiting the 
area. For the safety concerns noted, it is in the public interest to 
have these regulations in effect during the offload.
    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 Coast Guard was only recently 
notified of the safety concerns, and any delay in the effective date of 
this rule would expose mariners to the dangers posed by the equipment 
being offloaded.

Background and Purpose

    The M/V ZHEN HUA 18 will be delivering heavy equipment and 
materials for use in the construction of the San Francisco-Oakland Bay 
Bridge project. This rule is necessary for the safety of the public and 
vessels transiting to other berths during the offload of this cargo. 
This rule prohibits entry of any vessel or person inside the safety 
zone without specific authorization from the Captain of the Port or his 
designated representative.

Discussion of Rule

    This safety zone will remain in effect from noon on April 14, 2009, 
through 11:59 p.m. April 24, 2009, and includes all waters extending 
from the surface area to the sea floor within approximately 50 yards 
seaward from the moored vessel and encompasses all waters in San 
Francisco Bay within an area created by connecting the following 
geographical positions: From latitude 37[deg]49'08'' N and longitude 
122[deg]19'07'' W; thence to latitude 37[deg]49'05'' N and longitude 
122[deg]19'30'' W; thence to latitude 37[deg]49'15'' N and longitude 
122[deg]18'52'' W; thence to latitude 37[deg]49'18'' N and longitude 
122[deg]18'56'' W; thence along the shoreline back to the beginning 
point.
    The effect of the temporary safety zone will be to restrict 
navigation in the vicinity of the berth while the equipment is 
offloaded. Except for persons or vessels authorized by the Coast Guard 
Patrol Commander, no person or vessel may enter or remain in the 
restricted area.

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.
    Although this rule restricts access to the waters encompassed by 
the safety zone, the effect of this rule will not be significant 
because vessels will be able to safely transit around the area and the 
local waterway users will be notified via public Broadcast Notice to 
Mariners to ensure the safety zone 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.
    This rule may affect owners and operators of pleasure craft engaged 
in

[[Page 18294]]

recreational activities and sightseeing. This rule will not have a 
significant economic impact on a substantial number of small entities 
for several reasons: (i) Vessel traffic can pass safely around the 
area, (ii) vessels engaged in recreational activities and sightseeing 
have ample space outside of the affected portion of the San Francisco 
Bay to engage in these activities, (iii) this rule will encompass only 
a small portion of the waterway for a limited period of time, and (iv) 
the maritime public will be advised in advance of this safety zone via 
Broadcast Notice to Mariners.

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 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 0023.1 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 
this action is one of a category of actions which 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 establishing a safety 
zone. An environmental analysis checklist and a 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, and 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, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add temporary Sec.  165.T11-183 to read as follows:


Sec.  165.T11-183  Safety Zone; Waters surrounding Berth 7 at the Port 
of Oakland, San Francisco Bay, California.

    (a) Location. This temporary safety zone is established for the 
waters of the San Francisco Bay. It includes all waters

[[Page 18295]]

extending from the surface area to the sea floor within approximately 
50 yards seaward from the moored vessel M/V ZHEN HUA 18 and encompasses 
all waters in an area created by connecting the following geographical 
positions:

Latitude                             Longitude
 
37[deg]49'08'' N                     122[deg]19'07'' W
37[deg]49'05'' N                     122[deg]19'30'' W
37[deg]49'15'' N                     122[deg]18'52'' W
37[deg]49'18'' N                     122[deg]18'56'' W
 


and along the shoreline back to the beginning point. These coordinates 
are based upon NAD 83.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port San Francisco (COTP) in the enforcement of the 
safety zone.
    (c) Regulations. (1) Under the general regulations in Sec.  165.23, 
entry into, transiting, or anchoring within this safety zone is 
prohibited unless authorized by the COTP or the COTP's designated 
representative.
    (2) The safety zone is closed to all vessel traffic, except as may 
be permitted by the COTP or the COTP's designated representative.
    (3) Vessel operators desiring to enter or operate within the safety 
zone must contact the COTP or the COTP's designated representative to 
obtain permission to do so. Vessel operators given permission to enter 
or operate in the safety zone must comply with all directions given to 
them by the COTP or the COTP's designated representative. Persons and 
vessels may request permission to enter the safety zone on VHF-16 or 
through the 24-hour Command Center at telephone (415) 399-3547.
    (d) Effective period. This section is effective from 12 p.m. on 
April 14, 2009, through 11:59 p.m. on April 24, 2009.

    Dated: April 13, 2009.
P.M. Gugg,
Captain, U.S. Coast Guard, Captain of the Port San Francisco.
[FR Doc. E9-9167 Filed 04-21-09; 8:45 am]
BILLING CODE 4910-15-P