[Federal Register Volume 68, Number 53 (Wednesday, March 19, 2003)]
[Proposed Rules]
[Pages 13244-13247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6641]


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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]
BILLING CODE 4910-15-P