[Federal Register: March 19, 2003 (Volume 68, Number 53)]
[Proposed Rules]
[Page 13244-13247]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr03-25]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 03-004]
RIN 1625-AA00
Safety Zone; Mission Creek Waterway, China Basin, San Francisco
Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish a temporary safety zone
in the navigable waters of the Mission Creek Waterway in China Basin
surrounding the construction site of the Fourth Street Bridge, San
Francisco, California. This temporary safety zone is necessary to
protect persons and vessels from hazards associated with bridge
construction activities. The safety zone will temporarily prohibit
usage of the Mission Creek Waterway surrounding the Fourth Street
Bridge; specifically, no persons or vessels will be permitted to come
within 100 yards of either side of the bridge or pass beneath the
bridge during construction, unless authorized by the Captain of the
Port, or his designated representative.
DATES: Comments and related material must reach the Coast Guard on or
before April 7, 2003.
ADDRESSES: You may mail comments and related material to U.S. Coast
Guard Marine Safety Office San Francisco Bay, Coast Guard Island,
Alameda, California 94501. The Waterways Management Branch maintains
the public docket for this rulemaking. Comments and material received
from the public, as well as documents indicated in this preamble as
being available in the docket, will become part of this docket and will
be available for inspection or copying at the Waterways Management
Branch between 9 a.m. and 4 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Diana Cranston, Chief,
Waterways Management Branch U.S. Coast Guard Marine Safety Office San
Francisco Bay, (510) 437-3073.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (COTP San
Francisco Bay 03-004), indicate the specific section of this document
to which each comment applies, and give the reason for each comment.
Please submit all comments and related material in an unbound format,
no larger than 8 1/2 by 11 inches, suitable for copying. If you would
like to know that your submission reached us, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
In our final rule, we will include a concise general statement of
the comments received and identify any changes from the proposed rule
based on the comments. If as we anticipate, we make the final rule
effective less than 30 days after publication in the Federal Register,
we will explain our good cause
[[Page 13245]]
for doing so as required by 5 U.S.C. 553(d)(3).
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to the Waterways Management Branch at
the address under ADDRESSES explaining why one would be beneficial. If
we determine that one would aid this rulemaking, we will hold one at a
time and place announced by a separate notice in the Federal Register.
Background and Purpose
The San Francisco Department of Public Works is requesting a
waterway closure on Mission Creek for the purpose of performing
significant work to the Fourth Street Bridge. The Fourth Street Bridge
was erected across the Mission Creek Waterway at the China Basin in
1917, and was determined eligible for listing in the National Register
of Historic Places in 1985 as part of the California Department of
Transportation (Caltrans) Historic Bridge Inventory. Caltrans, Division
of Structures, evaluated the Fourth Street Bridge and recommended that
the bridge be brought up to current seismic safety standards. In view
of extensive corrosion to the steel components and concrete approaches
of the bridge, Caltrans has also placed traffic load limitations over
this bridge. Three primary objectives are to be met in rehabilitating
the Fourth Street Bridge: (i) Seismically retrofit the structure while
not significantly altering the historical appearance of the bridge;
(ii) repair the damage to the concrete approaches and several steel and
concrete members of the movable span, and (iii) reinitiate light rail
service across the bridge.
The first phase of this project will entail the removal of the lift
span, which will take approximately 6 weeks, scheduled to begin April
15, 2003. During this period, the channel will be closed at the Fourth
Street Bridge to boating traffic. The second phase of this project will
entail the construction of the north and south approaches, the new
counterweight and its enclosing pit; but for the most part, boating
traffic will not be affected during this phase. The last phase of this
project will entail the replacement of the lift span and aligning the
bridge to accept the light rail track system, which will take
approximately five months, scheduled to begin April 1, 2004. During
this period, the channel will be closed at the Fourth Street Bridge to
boating traffic.
The Fourth Street Bridge Project is funded by Federal Highway
Administration and State of California. The state funding restricts the
construction to a start date before August 2003 and completion by
September 2005. Any additional delays or deferrals in start of
construction will impact the secured funding for the project.
There are two major environmental issues that restrict the
construction in the channel, namely the annual pacific hearing-spawning
season that runs from December 1st to March 31st and noise constraint
in the water for steelhead from December 1st to June 1st. Any
demolition, pile driving and excavation in the water during those time
periods will be monitored and restricted for possible impact on the
fish.
The Fourth Street Bridge Project is part of the larger Third Street
Light Rail Project and many public presentations on the project's
components, channel closure schedules, impacts to surrounding uses and
project duration have been made by the City and Port of San Francisco.
The Third Street Light Rail Advisory Group was created as a forum to
keep the public informed on the progress being made on the Third Street
Light rail project. Also, this project has been presented at several
Mission Bay Citizen Advisory Committee meetings. At these meetings, the
public was notified of the project components, impacts and the need to
temporarily close the waterway. Specific to the Fourth Street Bridge
project, an Environmental Assessment, required by the Federal Highway
Administration and Caltrans, (under the National Environmental
Protection Act) was conducted by the City of San Francisco. A public
hearing regarding the Environmental Assessment was held on January 17,
2002, at San Francisco Arts College, Timken Lecture Hall, 1111 8th
Street in San Francisco, California, and was well attended.
In January 2003, the City of San Francisco advised the Coast Guard
Captain of the Port that two channel closures would be necessary in
order to accomplish the Fourth Street Bridge project. The Coast Guard
met with various City and Port officials to ensure that there would be
minimal impacts on involved and potentially involved entities.
This proposed temporary safety zone in the navigable waters of
Mission Creek surrounding the construction site of the Fourth Street
Bridge would be in effect during the course of a 6-week period,
starting April 15, 2003, and again for a 5-month period, starting April
1, 2004. Both periods would be effective 24 hours a day.
Discussion of Rule
The Coast Guard proposes to establish a safety zone that consists
of a portion of the navigable waters located at the Fourth Street
Bridge in the Mission Creek Waterway in China Basin, San Francisco,
California. The proposed safety zone is to affect a waterway closure
during periods of demolition and reconstruction of the Fourth Street
Bridge and would be effective 24 hours a day between April 15, 2003,
and May 27, 2003, and again between April 1, 2004, and September 1,
2004.
The proposed safety zone is necessary to protect persons and
vessels from hazards, injury and damage associated with bridge
construction activities. No vessel or person may come within 100 yards
of either side of the bridge, or pass beneath the bridge during
construction.
The proposed safety zone would encompass the navigable waters, from
the surface to the bottom, within two lines; one line drawn from a
point on the north shore of Mission Creek extending southeast to a
point on the opposite shore, 100 yards west of the bridge, and the
other line drawn from a point on the north shore of Mission Creek
extending southeast to a point on the opposite shore, 100 yards east of
the bridge.
Vessels and people may be allowed to enter an established safety
zone on a case-by-case basis with authorization from the Captain of the
Port or a designated representative thereof. Section 165.23 of title
33, Code of Federal Regulations, prohibits any unauthorized person or
vessel from entering or remaining in this Safety Zone.
Vessels or persons violating this section will be subject to the
penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, any
violation of the safety zone described herein, is punishable by civil
penalties (not to exceed $27,500 per violation, where each day of a
continuing violation is a separate violation), criminal penalties
(imprisonment up to 6 years and a maximum fine of $250,000), and in rem
liability against the offending vessel. Any person who violates this
section, using a dangerous weapon, or who engages in conduct that
causes bodily injury or fear of imminent bodily injury to any officer
authorized to enforce this regulation, also faces imprisonment up to 12
years.
Coast Guard personnel will enforce this regulation and the Captain
of the Port may be assisted by other Federal, State, or local agencies
in the patrol and enforcement of the regulation.
[[Page 13246]]
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 Transportation
(DOT) (44 FR 11040, February 26, 1979). Due to the limited scope of the
safety zone, the Coast Guard expects the economic impact of this rule
to be so minimal that full regulatory evaluation under paragraph 10 (e)
of the regulatory policies and procedures of DOT is unnecessary.
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.
For the same reasons set forth in the above Regulatory Evaluation, the
Coast Guard certifies under 5 U.S.C. 605(b) that this rule is not
expected to have a significant economic impact on any substantial
number of entities, regardless of their size.
The Mission Creek Harbor Association has a lease agreement with the
Port of San Francisco for both houseboats and pleasure boats to moor at
the head of the channel. The channel closure will not impact land
access to the houseboats during the bridge closures, however during the
two channel closures, a small number of sail boats that moor in the
harbor may be impacted. The Department of Public Works and the Port of
San Francisco are in consultation with the Mission Creek Harbor
Association to assess the temporary impacts to the boaters on closing
the channel for this needed work.
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 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 the person listed under FOR
FURTHER INFORMATION CONTACT for assistance in understanding this rule.
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 regulation contains no collection of information requirements
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. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraph (34)(g), of Commandant
Instruction M16475.lD, this rule is categorically excluded from further
environmental documentation because we are establishing a safety zone.
A ``Categorical Exclusion Determination'' is available in the docket
for inspection or copying where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reports and record
keeping
[[Page 13247]]
requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. Add Sec. 165.T11-079 to read as follows:
Sec. 165.T11-079 Safety Zone; Mission Creek Waterway, China Basin,
San Francisco Bay, California.
(a) Location. One hundred yards to either water-side of the Fourth
Street Bridge, encompassing the navigable waters, from the surface to
the bottom, within two lines; one line drawn from a point on the north
shore of Mission Creek [37[deg]46'29'' N, 122[deg]23'36'' W] extending
southeast to a point on the opposite shore [37[deg]46'28'' N,
122[deg]23'34'' W], and the other line drawn from a point on the north
shore of Mission Creek [37[deg]46'34'' N, 122[deg]23'30'' W] extending
southeast to a point on the opposite shore [37[deg]46'33'' N,
122[deg]23'28'' W]. [Datum: NAD 83].
(b) Effective dates. The safety zone will be in effect from 11:59
p.m. (PDT) on April 14, 2003 to 11:59 p.m. (PDT) on May 27, 2003 and
from 11:59 p.m. (PST) on March 31, 2004 to 11:59 p.m. (PDT) on
September 1, 2004. If the need for either of the safety zones ends
before the scheduled termination time, the Captain of the Port will
cease enforcement of the safety zone(s) and will announce that fact via
Broadcast Notice to Mariners.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23 of this part, entry into, transit through, or anchoring
within this zone by all vessels is prohibited, unless authorized by the
Captain of the Port, or a designated representative thereof.
(d) Enforcement. 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 comprise 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.
Dated: February 28, 2003.
S.J. Boyle,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco
Bay, California.
[FR Doc. 03-6641 Filed 3-18-03; 8:45 am]
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