[Federal Register: March 31, 2005 (Volume 70, Number 61)]
[Rules and Regulations]
[Page 16413-16416]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr05-11]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 05-003]
RIN 1625-AA00
Safety Zone; Mission Creek Waterway, China Basin, 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 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
[[Page 16414]]
from hazards associated with bridge construction activities. The safety
zone temporarily prohibits use of the Mission Creek Waterway
surrounding the Fourth Street Bridge during construction unless
authorized by the Captain of the Port, or his designated
representative.
DATES: This rule is effective from 12:01 a.m. on May 4, 2005 to 11:59
p.m. on December 31, 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 COTP 05-003 and are available for inspection or
copying at the Waterways Branch of the Marine Safety Office San
Francisco Bay, Coast Guard Island, Alameda, California, 94501, 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:
Regulatory Information
On November 5, 2004, we published a notice of proposed rulemaking
(NPRM) in the Federal Register (69 FR 64555) 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. We received no letters
commenting on the proposed rule. No public hearing was requested, and
none was held.
Penalties for Violating a Safety Zone
Vessels or persons violating this safety zone will be subject to
the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant
to 33 U.S.C. 1232, any violation of the safety zone described herein,
is 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. Vessels or persons violating this section
are also subject to the penalties set forth in 50 U.S.C. 192: seizure
and forfeiture of the vessel to the United States, a maximum criminal
fine of $10,000, and imprisonment up to 10 years.
The Captain of the Port will enforce this zone and may enlist the
aid and cooperation of any Federal, State, county, or municipal agency
to assist in the enforcement of the regulation.
Background and Purpose
The San Francisco Department of Public Works requested a temporary
closure of the Mission Creek waterway 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, and 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 included rebuilding the north
and south approaches and the new counterweight and its enclosing pit;
but did not require that the waterway be closed to boating traffic.
The safety zone established 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 May 4, 2005, and end on December 31, 2005. A
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.
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.
Discussion of Comments and Changes
We received no letters commenting on the proposed rule. No public
hearing was requested, and none was held. The only change incorporated
in this Final Rule is a later start date than was indicated in the
NPRM. The NPRM indicated that this final phase of construction would
commence on February 15, 2005, but due to delays, the construction will
not commence until May 4, 2005. The scheduled completion date remains
December 31, 2005.
[[Page 16415]]
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).
Although this rule restricts access to the waters encompassed by
the safety zone, the effect of this rule is not significant because:
(1) Owners of boats located within Mission Creek have been advised of
the planned waterway closures at several Mission Bay Citizen Advisory
Committee meetings, (2) the San Francisco Department of Public Works
and the Port of San Francisco have consulted with the Mission Creek
Harbor Association to address the impacts of temporarily closing the
channel to local boaters, (3) the Department of Public works has made
arrangements to accommodate the requests of owners that have asked to
temporarily moor their house boats or pleasure boats at the head of the
channel, (4) the channel closure will not impact land access to the
houseboats west of the bridge during the waterway closure and (5) the
zone is not permanent.
The size of the 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 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. The effect of this rule on small entities is not expected to
be significant because: (1) Owners of boats located within Mission
Creek have been advised of the planned waterway closures at several
Mission Bay Citizen Advisory Committee meetings, (2) the San Francisco
Department of Public Works and the Port of San Francisco have consulted
with the Mission Creek Harbor Association to address the impacts of
temporarily closing the channel to local boaters, (3) the Department of
Public works has made arrangements to accommodate the requests of
owners that have asked to temporarily moor their house boats or
pleasure boats at the head of the channel, (4) the channel closure will
not impact land access to the houseboats west of the bridge during the
waterway closure and (5) the zone is not permanent. However, a small
number of sailboats that moor in the harbor may be impacted. Small
entities and the maritime public will be advised of this safety zone
via public notice to mariners.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 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.
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 1-800-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 does not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule does 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 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.
[[Page 16416]]
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 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.
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, 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. From May 4, 2005 through December 31, 2005 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'' 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) 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 specifically
authorized by the Captain of the Port San Francisco Bay, or his
designated representative.
(c) Effective Period. The safety zone will be in effect from 12:01
a.m. on May 4, 2005 to 11:59 p.m. on 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.
(d) Enforcement. The Captain of the Port will enforce this zone and
may enlist the aid and cooperation of any Federal, State, county, or
municipal agency to assist in the enforcement of the regulation. 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, Federal,
State, and local 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: March 23, 2005.
Gordon A. Loebl,
Commander, U.S. Coast Guard, Acting Captain of the Port, San Francisco
Bay, California.
[FR Doc. 05-6390 Filed 3-30-05; 8:45 am]
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