[Federal Register Volume 69, Number 214 (Friday, November 5, 2004)]
[Proposed Rules]
[Pages 64555-64558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24684]


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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.

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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