[Federal Register Volume 69, Number 123 (Monday, June 28, 2004)]
[Rules and Regulations]
[Pages 36012-36014]
From the Federal Register Online via the Government Printing 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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