[Federal Register Volume 69, Number 123 (Monday, June 28, 2004)]
[Rules and Regulations]
[Pages 36012-36014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14563]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 04-013]
RIN 1625-AA00


Safety Zone; Middle River, San Joaquin County, 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 Middle River, San Joaquin County due to ongoing 
repair operations to a break in the Upper Jones Tract Levee that 
resulted in the flooding of the Upper Jones Tract. The safety zone is 
located within the area bounded on the north by the Santa Fe Cut Canal, 
on the south by the entrance of the Woodward Cut Canal, on the east by 
the Upper Jones Tract, and on the west by the eastern edge of Woodward 
Island. This temporary safety zone is necessary to ensure the safety of 
the personnel and vessels involved in response operations, as well as 
other personnel, vessels and property from the associated flooding 
hazards. Persons and vessels are prohibited from entering into or 
transiting through the safety zone, unless authorized by the Captain of 
the Port or his designated representative.

DATES: This rule is effective from 12:30 p.m. (PDT) on June 12, 2004, 
until 5 p.m. (PDT) on July 12, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP San Francisco Bay 04-013 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: Ensign John Bannon, U.S. Coast Guard 
Marine Safety Office San Francisco Bay, at (510) 437-3082.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Due to the urgency in 
responding to the levee damage, the Coast Guard determined that 
drafting and publishing a NPRM would cause unnecessary delay in 
implementation of this rule and would act contrary to the public's 
interest in seeking continued response to this emergency situation.
    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. Given the urgency of the levee 
damage and the strong public interest served in immediate response and 
repair of the levee, good cause exists in making the rule effective 
less than 30 days after publication in the Federal Register.

Background and Purpose

    On June 3, 2004, the Coast Guard was notified that a section of the 
Upper Jones Tract Levee had collapsed in the vicinity of the Middle 
River in San Joaquin County, California. Coast Guard personnel from 
Station Rio Vista responded and observed an estimated 200-foot section 
of the levee destroyed and subsequent flooding of the agricultural land 
within the Upper Jones Tract. Initial response efforts included 
personnel from the Coast Guard, the California Department of Fish and 
Game, and the San Joaquin County Sheriff. A temporary safety zone was 
established for one week to limit access to the waterway and assist 
with the safety of repair operations to the levee and restore it to a 
working condition.
    On June 12, 2004 the San Joaquin County Sheriff Marine Patrol 
requested that the Coast Guard reestablish a safety zone in the 
vicinity of the Upper Jones Tract Levee break due to recreational 
vessel traffic disrupting repair operations. The previous safety zone 
expired on June 10, 2004. The Coast Guard has determined that a safety 
zone remains necessary and this temporary safety zone is established 
for a period of 30 days.

Discussion of Rule

    This safety zone is necessary to protect the personnel involved in 
the response operations, and all other personnel, vessels and property 
from the associated river hazards resulting from the levee break. Entry 
into, transit through or anchoring within this safety zone is 
prohibited, unless authorized by the Captain of the Port, or his 
designated representative.
    U.S. Coast Guard personnel and San Joaquin County Sheriff Marine 
Patrol 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.
    Once the Coast Guard concludes that the safety zone is no longer 
required or response operations will involve a smaller area of the 
navigable waterway than is described by this safety zone, the Captain 
of the Port will announce the end of enforcement or reduction in size 
of this safety zone via broadcast notice to mariners.

[[Page 36013]]

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).
    Despite restricting boating traffic within a portion of the Middle 
River, the effect of this regulation is not significant, as the 
waterway included within this area is not heavily transited and 
accessible only to small recreational and commercial boats.

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 safety zone may affect small entities such as the owners 
and operators of pleasure craft engaged in recreational activities and 
sightseeing. The safety zone will not have a significant economic 
impact on a substantial number of small entities as the area 
encompassed by the safety zone is not heavily transited and vessels 
engaged in recreational activities and sightseeing have alternative 
routes outside of the safety zone to engage in these activities. The 
maritime public will be advised of the 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 (Pub. L. 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. Any 
small business or organization may address further questions concerning 
the rule's provisions, options for compliance, or in assistance in 
understanding this rule by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    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 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 will not result in such 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. 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.

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 an emergency safety zone that 
will last for a short duration.

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 proposes to 
amend 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

[[Page 36014]]

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. Temporarily add Sec.  165.T11-021 to read as follows:


Sec.  165.T11-021  Safety Zone: Middle River, San Joaquin County, 
California.

    (a) Location. The navigable waters of the Middle River, located 
within the area bounded on the north by the Santa Fe Cut Canal, on the 
south by the entrance of the Woodward Cut Canal, on the east by the 
Upper Jones Tract, and on the west by the eastern edge of Woodward 
Island.
    (b) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transit through, or anchoring 
within this zone is prohibited unless authorized by the Captain of the 
Port or his designated representative.
    (2) Persons desiring to transit the area of a safety zone may 
contact the Captain of the Port at telephone number 415-399-3547 or his 
designated representative on VHF-FM channel 16 (156.8 MHz) to seek 
permission to transit the area. If permission is granted, all persons 
and vessels must comply with the instructions of the Captain of the 
Port or his designated representative.
    (c) Enforcement. U.S. Coast Guard personnel and San Joaquin County 
Sheriff personnel will enforce this safety zone and may be assisted by 
other Federal, State, or local agencies, including the Coast Guard 
Auxiliary. All persons and vessels shall comply with the instructions 
of the Coast Guard Captain of the Port or his designated 
representatives. Upon being hailed by enforcement personnel by siren, 
radio, flashing light, or other means, the operator of a vessel shall 
proceed as directed.
    (d) Effective period. This safety zone is effective from 12:30 p.m. 
(PDT) on June 12, 2004, until 5 p.m. (PDT) on July 12, 2004.

    Dated: June 12, 2004.
Gerald M. Swanson,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco Bay.
[FR Doc. 04-14563 Filed 6-25-04; 8:45 am]
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