E7-19995. Anchorage Regulation; San Francisco Bay, CA

AGENCY:

Coast Guard, DHS.

ACTION:

Supplemental notice of proposed rulemaking.

SUMMARY:

The Coast Guard is submitting for public consideration this supplemental notice of proposed rulemaking. We propose to create in San Francisco Bay a temporary anchorage area, designated Anchorage 8A, adjacent to existing anchorage 8 that can be activated by Coast Guard Vessel Traffic Services (VTS) when the number of vessels requesting to anchor in Anchorages 8 and 9 exceeds the capacity of these two anchorages. Promulgating a permanent rule to establish the temporary anchorage area allows the Coast Guard to define its use and location, and to establish procedures for activating the anchorage area and notifying the maritime public.

DATES:

Comments and related material must reach the Coast Guard on or before December 10, 2007.

ADDRESSES:

You may mail comments and related material to Waterways Safety Branch, Sector San Francisco, 1 Yerba Buena Island, San Francisco, California 94130. Waterways Safety 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 Safety Branch, Sector San Francisco, 1 Yerba Buena Island, San Francisco, California 94130, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Eric Ramos, U.S. Coast Guard Sector San Francisco, Waterways Safety Branch at telephone [phone].

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 (CGD11 04-002), 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 81/2 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 plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Safety 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.

Regulatory History

We published a notice of proposed rulemaking (NPRM) entitled “Anchorage Regulation; San Francisco Bay, CA” in the Federal Register on April 1, 2004 (69 FR 17119), under docket number CGD11-04-002. Due to the lengthy period of time that has lapsed since April 1, 2004, and the reduction of the size of the proposed new Anchorage 8A, the Coast Guard decided to resubmit this proposal to the public for further consideration. The difference between this supplemental notice of proposed rulemaking and the original notice of proposed rulemaking is the size of proposed anchorage 8A. The size has been reduced based upon public comment to the original notice of proposed rulemaking.

Discussion of Comments

Comments were received from the San Francisco Bay Conservation and Development Commission (BCDC). The BCDC requested that a consistency determination be submitted evaluating the proposal in relation to BCDC Coastal Zone Management Policies. A 15 CFR Part 930.35 Negative Determination was submitted to BCDC on September 18, 2006. In a letter dated October 17, 2006, BCDC suggested that the Coast Guard consult with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) regarding threatened or endangered species. A biological evaluation was submitted to the USFWS and NMFS on November 21, 2006.

On December 4, 2006, USFWS copied the Coast Guard on a 2004 memorandum in which they found that proposed Anchorage 8A could adversely affect the endangered California least tern (Stern antillarum browni). The Coast Guard redefined the size and configuration of the proposed anchorage based on consultation with USFWS. As a result, USFWS concurred with the Coast Guard's determination of “not likely to adversely affect” as described below. BCDC also concurred that the proposed action would be consistent with their Amended Coastal Zone Management Program for San Francisco Bay.

NMFS wrote to the Coast Guard on June 4, 2007, that “based on the best available scientific information, the NMFS has determined that the proposed project is not likely to adversely affect listed salmonids or green sturgeon,” populations which are listed as threatened or endangered under the Endangered Species Act and which may be present in the proposed Anchorage 8A area.

Background and Purpose

Due to the trend toward larger ships arriving in San Francisco Bay, the growth of faster Marine Transportation Systems, and increased large vessel traffic, use of Anchorages 8 and 9 in San Francisco Bay has increased. In addition to more vessels needing to anchor while awaiting the departure of other vessels at berth, periodic labor strikes and disputes have caused delays in the turnaround time of cargo, and filled Anchorages 8 and 9 to capacity.

To address the continuing need to temporarily activate an additional anchorage area, the Coast Guard issued a proposed rule on April 1, 2004 (69 FR 17119) that proposed to formalize temporary anchorage 8A.

The April 1, 2004, NPRM originally proposed that Anchorage 8A be bounded by the following lines: Beginning latitude 37°47′35.5″ N and longitude 122°21′50″ W; thence south-southwesterly to latitude 37°47′05″ N and longitude 122°22′07.5″ W; thence south-southeasterly to latitude 37°46′30″ N and longitude 122°21′56″ W; thence easterly along the northern border of Anchorage 9 to latitude 37°46′21.5″ N and longitude 122°19′07″ W; thence northerly to latitude 37°46′34.5″ N and longitude 122°19′05.5″ W; thence westerly to latitude 37°46′36.5″ N and longitude 122°19′52″ W; thence westerly along the southern border of Anchorage 8 to latitude 37°45′40″ N and longitude 122°21′23″ W; thence northwesterly along the southwestern border of Anchorage 8 back to the beginning point (NAD 83). The proposed perimeter of the original size of Anchorage 8A was approximately six and one-half nautical miles.

Due to the lengthy period of time that has lapsed since April 1, 2004, and the reduction of the size of the proposed new Anchorage 8A, the Coast Guard decided to publish a supplemental notice to allow the public to comment on the reduced size of proposed anchorage 8A.

Discussion of Supplemental Proposed Rule

This SNPRM proposes that the new perimeter of Anchorage 8A be approximately four nautical miles and bounded by the following lines: Beginning at latitude 37°47′35″ N and longitude 122°21′50″ W; thence south-southwesterly to latitude 37°47′07″ N and longitude 122°22′09″ W; thence south-southeasterly to latitude 37°46′30″ N and longitude 122°21′57″ W; thence easterly along the northern border of anchorage 9 to latitude 37°46′26″ N and longitude 122°20′42″ W; thence northerly to latitude 37°46′38″ N and longitude 122°20′42″ W; thence westerly along the southern border of anchorage 8 to latitude 37°46′41″ N and longitude 122°21′23″ W; thence northwesterly along the southwestern border of anchorage 8 back to the beginning point (NAD 83).

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.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The effect of this regulation will not be significant because the anchorage will only be used when unusual circumstance require that it be activated, recreational traffic can still traverse the anchorage area when necessary, and the temporary anchorage area only takes up a small portion of San Francisco Bay. In addition, this temporary anchorage area has been used twice in the past to accommodate vessels during labor disputes that resulted in Anchorages 8 and 9 being filled to capacity.

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 will not have a significant economic impact on a substantial number of small entities. This proposed rule would not have a significant economic impact on a substantial number of small entities for the reasons discussed in the Regulatory Evaluation above.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this 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 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 Eric Ramos, Sector San Francisco, Waterways Safety Branch Chief, 1 Yerba Buena Island, San Francisco, California 94130, [phone].

Collection of Information

This proposed rule would call 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 will 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 affect 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 proposed 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 proposed 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 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 and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination 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)(f), of the Instruction, from further environmental documentation because we are changing an anchorage regulation.

A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” 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 110

• Anchorage grounds

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:

PART 110—ANCHORAGE REGULATIONS

1. The authority citation for part 110 continues to read as follows:

Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, and 2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.

2. In § 110.224—

a. In paragraph (d), revise Table 110.224(D)(1) and add a new paragraph to Notes at the end of the table and;

b. In paragraph (e), redesignate paragraphs (6) through (21) as paragraphs (7) through (22) , and add new paragraph (e)(6) to read as follows:

§ 110.224

San Francisco Bay, San Pablo Bay, Carquinez Strait, Suisun Bay, Sacramento River, San Joaquin River, and connecting waters, CA.

* * * * *

(d)(1) * * *

Table 110.224(D)(1)

Anchorage No.	General location	Purpose	Specific regulations
4	San Francisco Bay	General	Notes a, b.
5	......do	......do	Do.
6	......do	......do	Note a.
7	......do	......do	Notes a, b, c, d, e.
8	......do	......do	Notes a, b, c.
8A	......do	......do	Notes a, b, c, d, e, j, n.
9	......do	......do	Notes a, b, m.
10	......do	Naval	Note a.
12	......do	Explosives	Notes a, f.
13	......do	......do	Notes a, e, g.
14	......do	......do	Notes a, f, h.
18	San Pablo Bay	General.
19	......do	......do	Note b.
20	......do	......do.
21	......do	Naval.
22	Carquinez Strait	General.
23	Benicia	General	Notes c, d, e, l.
24	Carquinez Strait	General	Note j.
26	Suisun Bay	......do	Note k.
27	......do	......do.
28	San Joaquin River	......do.
30	......do	Explosives.
Notes: * * *
n. This temporary anchorage will be activated by VTS San Francisco when Anchorages 8 and 9 are at capacity and additional anchorage capacity in the vicinity of Alameda is required. VTS will notify a vessel that this temporary anchorage is activated and available for use when Anchorages 8 and 9 are full, and a vessel requests permission from VTS to anchor in Anchorage 8 or 9.

(e) Boundaries. * * *

(6) Anchorage No. 8A. In San Francisco Bay bounded by the following lines: Beginning at latitude 37°47′35″ N and longitude 122°21′50″ W; thence south-southwesterly to latitude 37°47′07″ N and longitude 122°22′09″ W; thence south-southeasterly to latitude 37°46′30″ N and longitude 122°21′57″ W; thence easterly along the northern border of anchorage 9 to latitude 37°46′26″ N and longitude 122°20′42″ W; thence northerly to latitude 37°46′38″ N and longitude 122°20′42″ W; thence westerly along the southern border of anchorage 8 to latitude 37°46′41″ N and longitude 122°21′23″ W; thence northwesterly along the southwestern border of anchorage 8 back to the beginning point (NAD 83).

* * * * *

Dated: August 15, 2007.

C.E. Bone,

Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard District.