[Federal Register: November 5, 2004 (Volume 69, Number 214)]
[Proposed Rules]
[Page 64555-64558]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no04-31]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 04-023]
RIN 1625-AA00
Safety Zone; Mission Creek Waterway, China Basin, San Francisco
Bay, CA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is proposing 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 scheduled to last from February 15, 2005 to
December 31, 2005. The safety zone will temporarily prohibit use 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 January 4, 2005.
ADDRESSES: You may mail comments and related material to the Waterways
Management Branch, 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 Doug Ebbers, U.S. Coast
Guard Marine Safety Office San Francisco Bay, at (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 04-023), 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.
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. The three
objectives of the rehabilitation project are to: (1) Seismically
retrofit the structure while not significantly altering the historical
appearance of the bridge; (2) repair the damage to the concrete
approaches and several steel and concrete members of the movable span,
and (3) reinitiate light rail service across the bridge. The Federal
Highway Administration, the State of California and the City of San
Francisco are funding the Fourth Street Bridge Retrofit Project.
The first phase of this project included the removal of the lift
span, which took place between May 1 and July 28, 2003. During that
period, the channel was closed at the Fourth Street Bridge to boating
traffic by a temporary final rule that was published in the Federal
Register on May 13, 2003 (68 FR 25500) and a subsequent change in
effective period temporary final rule that was published on July 9,
2003 (68 FR 40772). Those two rules established a safety zone that
extended 100 yards on either side of the Fourth Street Bridge. The
second phase of the construction project includes rebuilding the north
and south approaches and the new counterweight and its enclosing pit;
but does not require that the waterway be closed to boating traffic.
The safety zone being proposed in this rule is for the last phase of
construction, which includes replacing the lift span and aligning the
bridge to accept the light rail track system. This final phase is
scheduled to begin on February 15, 2005, and end on December 31, 2005.
The proposed safety zone of 100 yards on either side of the Fourth
Street Bridge is needed during this period to protect boating traffic
public from the dangers posed by the construction operations and to
allow the construction operations to be completed.
[[Page 64556]]
There are two major environmental issues that affect the scheduling
of construction in the channel, namely the annual pacific herring
spawning season that runs from December 1st to March 31st, and noise
constraints 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 impacts on these
species.
The Fourth Street Bridge Project is related to 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 many 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 addition, the City of San Francisco advised the Coast Guard
Captain of the Port in January of 2003 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 area boaters and other 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 24 hours a day from February 15, 2005 to
December 31, 2005.
Discussion of Proposed Rule
The Coast Guard proposes to establish a safety zone in a portion of
the navigable waters located near the Fourth Street Bridge in the
Mission Creek Waterway in China Basin, San Francisco, California. The
proposed safety zone would encompass the navigable waters, from the
surface to the sea floor, bounded by 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.
The intent of the proposed safety zone is to affect a waterway
closure during reconstruction of the Fourth Street Bridge and would be
effective 24 hours a day between February 15, 2005 and December 31,
2005. 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.
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 his designated representative. Section 165.23 of Title 33, Code
of Federal Regulations, prohibits any unauthorized person or vessel
from entering or remaining in an established safety zone.
U.S. Coast Guard personnel will enforce this safety zone and may be
assisted by other Federal, State, or local agencies, 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 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, will be punishable by civil penalties (not to exceed $32,500
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.
Regulatory Evaluation
This proposed 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).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
and procedures of DHS is unnecessary. Although this proposed rule
restricts access to the waters encompassed by the safety zone, the
effect of this proposed rule would not be significant because the zone
is temporary in nature, and owners of boats located within Mission
Creek have been advised of the planned waterway closures at several
Mission Bay Citizen Advisory Committee meetings.
The size of the proposed zone is the minimum necessary to provide
adequate protection for the boating public and an adequate distance to
ensure vessel wakes to not interfere with construction operations. The
entities most likely to be affected are pleasure craft engaged in
recreational activities and sightseeing.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities. This proposed rule may affect the following
entities, some of which may be small entities: owners and operators of
private vessels intending to transit the area of the 4th Street Bridge.
The proposed safety zone would not have a significant economic impact
on a substantial number of small entities for the same reasons set
forth in the above Regulatory Evaluation. In addition, 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, and the channel closure will not impact land access to the
houseboats during the proposed waterway closures. However, a small
number of sailboats 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. Small entities and the maritime public would
[[Page 64557]]
be advised of this safety zone via public notice to mariners.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed 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 want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please contact Lieutenant Doug
Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety
Office San Francisco Bay, at (510) 437-3073. 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 proposed 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 proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this proposed rule elsewhere
in this preamble.
Taking of Private Property
This proposed rule would 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 proposed 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 proposed 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 proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
Environment
We have analyzed this proposed rule under Commandant Instruction
M16475.1D, 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 proposed rule is categorically excluded,
under figure 2-1, paragraph (34)(g), of the Instruction, from further
environmental documentation because it would establish a safety zone.
A draft ``Environmental Analysis Check List'' and a draft
``Categorical Exclusion Determination'' (CED) will be available in the
docket where indicated under ADDRESSES. Comments on this section will
be considered before we make the final decision on whether the rule
should be categorically excluded from further environmental review.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping 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. 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.
2. Temporarily add Sec. 165.T11-048 to read as follows:
Sec. 165.T11-048 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 sea floor, bounded by two lines; one line drawn from a point on the
north shore of Mission Creek [37[deg]46'29'' N, 122[deg]23'36''
[[Page 64558]]
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'' [Datum: NAD 83]
(b) Effective Period. The safety zone will be in effect from
February 15, 2005 through December 31, 2005. If the need for this
safety zone ends before the scheduled termination time, the Captain of
the Port will cease enforcement of the safety zone and will announce
that fact via Broadcast Notice to Mariners.
(c) Regulations. (1) 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 specifically
authorized by the Captain of the Port San Francisco Bay, or his
designated representative.
(2) 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: October 27, 2004.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco
Bay, California.
[FR Doc. 04-24684 Filed 11-4-04; 8:45 am]
BILLING CODE 4910-15-P