[Federal Register Volume 68, Number 92 (Tuesday, May 13, 2003)]
[Rules and Regulations]
[Pages 25500-25503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11809]


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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: 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 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: This rule is effective from 1 a.m. (PDT) on May 1, 2003, to 1 
a.m. (PDT) on September 1, 2004.

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 the docket [COTP San Francisco Bay 03-004] and are 
available for inspection or copying at Coast Guard 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 Diana J. Cranston, U.S. 
Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On March 19, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled Safety Zone; Mission Creek Waterway, China Basin, San 
Francisco Bay, California in the Federal Register (68 FR 13244). The 
effective date for the safety zone for the first phase of this project 
was published as commencing on April 15, 2003, and lasting for 6 weeks. 
Due to a project delay, the safety zone for the first phase of this 
project will now commence on May 1, 2003, lasting for an 8-week period. 
The second

[[Page 25501]]

phase of this project remains as previously published, commencing April 
1, 2004, lasting for a 5-month period. Both periods will be enforced 24 
hours a day. We received one letter commenting on the rule which will 
be discussed further in the section of Discussion of Comments and 
Changes. No public hearing was requested, and none was held. 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. Details regarding this project were not finalized in 
time to allow for this rule to be published a full 30 days prior to 
making this rule effective. The rulemaking process began in March 2003 
which allowed enough time to publish an NPRM and allow for a public 
comment period. Accordingly, since timely rehabilitation to the bridge 
(as discussed in the Background and Purpose section) is crucial to the 
safety of this bridge, the channel closures must begin on May 1, 2003, 
less than 30 days after the publication of this rule.

Background and Purpose

    The San Francisco Department of Public Works requested 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 8 weeks, scheduled to begin May 1, 
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 delays or deferrals in construction will impact the 
secured funding for the project.
    There are two major environmental issues that restricts 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 temporary safety zone in the navigable waters of Mission Creek 
surrounding the construction site of the Fourth Street Bridge will be 
enforced during the course of an 8-week period, starting May 1, 2003 
and again for a 5-month period, starting April 1, 2004.

Discussion of Comments and Changes

    We received one letter commenting on this rule. The Mission Creek 
Harbor Association, an organization of boaters that have both permanent 
and temporary moorings at Mission Creek Harbor, are in favor of the 
first closure as it is relatively short in duration and all affected 
boaters have been provided alternate moorings outside of the affected 
closure area by the city. The association is concerned about the second 
closure that will commence on April 1, 2004 and last for 5 months. This 
closure is much longer than the first closure and will last the full 
duration of the boating season in 2004. The Mission Creek Harbor 
Association and city officials have resolved their issue for the first 
closure and they are currently working on resolving this issue for the 
closure in 2004. The Mission Creek Harbor Association is pleased with 
this form of resolution and understands that no changes will be made to 
this rule as a result of their comments.
    A discussed before, a minor change to the effective date for the 
safety zone has changed since the NPRM was published on March 19, 2003, 
entitled ``Safety Zone; Mission Creek Waterway, China Basin, San 
Francisco Bay, CA'' in the Federal Register (68 FR 13244). The first 
phase of this project was published as commencing on April 15, 2003, 
and lasting for 6 weeks. Due to a project delay, the safety zone for 
the first phase of this project will now commence on May 1, 2003, 
lasting for an 8-week period. The second phase of this project remains 
as previously published, commencing April 1, 2004, lasting for a 5-
month period.

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).

[[Page 25502]]

    Although this safety zone does restrict boating traffic past the 
fourth street bridge, the effect of this regulation will not be 
significant as this waterway is very small with limited boating 
traffic.

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.
    This safety zone will not have a significant impact on a 
substantial number of small entities for the following reasons. 
Although the channel closure will restrict water access to a small 
number of boats, including houseboats who have moorings in Mission 
Creek Harbor, the channel closure will not impact land access to these 
houseboats during the bridge closures. The City of San Francisco, 
Department of Public Works and the Port of San Francisco have been in 
close consultation with the Mission Creek Harbor Association to assist 
boat owners affected by this project. As a result, the Mission Creek 
Harbor Association has a lease agreement with the Port of San Francisco 
for both houseboats and pleasure boats to moor outside of the affected 
closure area for the duration of the first channel closure that 
commences on May 1, 2003. Similar resolutions are being discussed for 
the second closure that is scheduled to commence on April 1, 2004.

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 rule 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 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 we are establishing a safety zone.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reports and record 
keeping requirements, Security measures, Waterways.


0
For the reasons discussed in the preamble, the Coast Guard proposes to 
amend 33 CFR part 165 as follows:

[[Page 25503]]

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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.


0
2. From 1 a.m. (PDT) on May 1, 2003, to 1 a.m. (PDT) on September 1, 
2004 add a new temporary 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 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) Dates. (1) This section is effective from 1 a.m. (PDT) on May 
1, 2003, to 1 a.m. (PDT) on September 1, 2004.
    (2) The zone in paragraph (a) of this section will be enforced from 
1 a.m. (PDT) on May 1, 2003, to 1 a.m. (PDT) on June 28, 2003, and from 
1 a.m. (PST) on April 1, 2004 to 1 a.m. (PDT) on September 1, 2004.
    (3) If the need for enforcement of the safety zone ends, the 
Captain of the Port may cease enforcement of the safety zone and 
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: April 25, 2003.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay, 
California.
[FR Doc. 03-11809 Filed 5-12-03; 8:45 am]
BILLING CODE 4910-15-P