[Federal Register: May 13, 2003 (Volume 68, Number 92)]
[Rules and Regulations]
[Page 25500-25503]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my03-22]
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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