Anchorage Regulation; San Francisco Bay, CA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing 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. Anchorage 8A may also be utilized during any emergency situation. This rule defines its use and location, and establishes procedures for activating the anchorage area and notifying the maritime public.

DATES:

This rule is effective February 25, 2008.

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 CGD11-04-002 and are available for inspection or copying at Waterways Safety Branch, Sector San Francisco, 1 Yerba Buena Island, San Francisco, California 94130, between 8 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 (415) 399-7443.

SUPPLEMENTARY INFORMATION:

Regulatory Information

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. Based on the three comments received, we reduced the size of the originally proposed Anchorage 8A, and the Coast Guard decided to resubmit the proposal to the public for further consideration.

We published a supplemental notice of proposed rulemaking (SNPRM) entitled “Anchorage Regulation; San Francisco Bay, CA” in the Federal Register on October 11, 2007 (72 FR 57901). We received no comments in response to the SNPRM. No public meeting was requested at any time in the rulemaking process, and none was held.

Background and Purpose

Anchorage 8A is necessary due to the trend toward larger ships arriving in San Francisco Bay, the growth of faster Marine Transportation Systems, increased large vessel traffic, and increased use of Anchorages 8 and 9 in San Francisco Bay. 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.

Discussion of Comments and Changes

The Coast Guard received the following comments in response to the NPRM. The San Francisco Bay Conservation and Development Commission (BCDC) requested that a consistency determination be submitted evaluating the proposal in relation to BCDC Coastal Zone Management Policies. A 15 CFR 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.

Based on those comments, we reduced the size of proposed Anchorage 8A. The NPRM originally proposed that Anchorage 8A be bounded by the following lines: Beginning at 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.

The SNPRM proposed 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). The Coast Guard received no comments in response to the SNPRM.

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.

The effect of this regulation will not be significant because the anchorage will only be used when unusual circumstances 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 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. This rule will not have a significant economic impact on a substantial number of small entities for the reasons discussed in the Regulatory Evaluation above.

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.

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). 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 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 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. 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 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)(f), of the Instruction, from further environmental documentation because it establishes an anchorage ground.

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 110

• Anchorage grounds

Words of Issuance and Regulatory Text

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

PART 110—ANCHORAGE REGULATIONS

1. Revise the authority citation for part 110 to read as follows:

Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

2. In § 110.224-

a. In paragraph (d), amend Table 110.224(D)(1) by adding an entry for “8A” and adding a new paragraph “n” to the Notes section immediately following the table, and;

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