[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Rules and Regulations]
[Pages 16413-16416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6390]


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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]
BILLING CODE 4910-15-P