[Federal Register Volume 71, Number 134 (Thursday, July 13, 2006)]
[Rules and Regulations]
[Pages 39567-39570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10980]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco 06-021]
RIN 1625-AA00


Safety Zone; BART Transbay Tube Seismic Upgrade; San Francisco, 
CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a moving temporary safety zone 
in the navigable waters of San Francisco Bay, California during vibro 
penetration testing for a seismic upgrade of the Bay Area Rapid Transit 
(BART) Transbay tube. The testing will require placement of a barge at 
test sites along

[[Page 39568]]

the BART Transbay tube. The safety zone will surround the barge and 
move with the barge as it conducts the tests at seven sites along the 
BART Transbay tube. This safety zone is necessary to protect persons 
and vessels from hazards, injury, and damage associated with the vibro 
penetration testing. Unauthorized persons or vessels are prohibited 
from entering into, transiting through, or remaining in the safety zone 
without permission of the Captain of the Port San Francisco or his 
designated representative.

DATES: This rule is effective from June 26, 2006 through September 24, 
2006.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP San Francisco 06-021 and are 
available for inspection or copying at the Waterways Safety Branch of 
Sector San Francisco, Yerba Buena Island, Bldg. 278, San Francisco, 
California, 94130, between 9 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ensign Erin Bastick, U.S. Coast Guard 
Sector San Francisco, at (415) 556-2950 or Sector San Francisco 24 hour 
Command Center at (415) 399-3547.

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. The dates for the vibro 
penetration testing along the Transbay tube were not finalized and 
presented to the Coast Guard in time to draft and publish an NPRM. 
Consequently, the testing would commence before the rulemaking process 
could be completed. Any delay in implementing this rule is contrary to 
the public interest since immediate action is necessary in order to 
protect the maritime public from the hazards associated with the vibro 
penetration testing.
    Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good 
cause exists for making this rule effective less than 30 days after 
publication in the Federal Register. The dates for the vibro 
penetration testing along the Transbay tube were not finalized and 
presented to the Coast Guard in time to publish this rule 30 days prior 
to its effective date. Consequently, the testing would commence before 
the rulemaking process could be completed. Delay in the effective date 
of this rule would expose the mariners and waterways users to undue 
hazards associated with the vibro penetration testing.

Background and Purpose

    Bay Area Rapid Transit has contracted Hayward Baker, Soletanche, 
Traylor, A Joint Venture, to conduct BART marine demonstration tests in 
support of their earthquake safety efforts. They will be conducting 
vibro penetration tests for future seismic upgrade of the BART Transbay 
tube. The scope of work involves four primary activities carried out on 
the water. These activities include vibro penetration tests, vibro 
ground improvement, drilling, sampling and sonic borings.
    The Joint Venture's work will involve outfitting the barge DOGBONE 
with a crane and vibratory densification equipment and locating it over 
the tube alignment to perform the ground improvement within the test 
areas. At times, there will be an additional barge lashed to the barge 
DOGBONE for material handling. Approximately ten 5-foot tall tripods 
with acoustic transponders will be deployed on the bay bottom to 
determine specific test locations along the BART Transbay. At each 
specified location, the crane-suspended vibrator will be lowered into 
the bay floor and then proceed to densify the granular backfill placed 
around the tubes shortly after they were originally placed into 
position.

Discussion of Rule

    This safety zone will encompass the navigable waters from the 
surface to the sea floor, located in the San Francisco Bay, 
encompassing a circular safety zone with a 750-foot radius extending 
from the Crane Barge DOGBONE. The Barge DOGBONE will transit and 
conduct testing along the BART Transbay tube between two points: 
37[deg]47'50.97'' N Latitude by 122[deg]23'17.01'' W Longitude at the 
western extreme and 37[deg]48'25.65'' N Latitude by 122[deg]21'03.59'' 
W Longitude on the eastern extreme. This area between the two points 
will be used to maneuver and anchor the Barge DOGBONE as it conducts 
the vibro penetration tests from June 26, 2006 through September 24, 
2006. The BART Project manager coordinated the test locations with the 
local Bar Pilots and the Vessel Traffic Service to ensure the testing 
would result in minimum impact to vessel traffic. This moving safety 
zone around the Barge DOGBONE is necessary to protect persons and 
vessels from hazards, injury, and damage associated with the vibro 
penetration testing.
    U.S. Coast Guard personnel will enforce this safety zone. Other 
Federal, State, or local agencies may assist the Coast Guard, 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 both criminal and civil penalties.

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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. Although this rule restricts 
access to the waters encompassed by the safety zone, the effect of this 
rule will not be significant because the local waterway users have been 
contacted to ensure the closure will result in minimum impact. The 
entities most likely to be affected are pleasure craft engaged in 
recreational activities. Not only is the safety zone small in size, but 
there will be ample space to navigate around the safety zone as well.

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 affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor in a portion of the San Francisco Bay from June 26, 
2006 through September 24, 2006. Although this regulation prevents 
traffic from transiting a portion of San Francisco Bay during the 
testing, the effect of this regulation will not be significant because 
small vessels will be able to transit around the regulated area. The 
entities most likely to be affected are pleasure craft engaged in 
recreational activities and sightseeing.
    Small entities and the maritime public will also be advised of this 
safety zone via public broadcast notice to

[[Page 39569]]

mariners. In addition, vessels will be able to pass through the zone on 
a case-by-case basis. Therefore, the economic impact of this waterway 
closure is not expected to be significant.

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 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).

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 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 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 
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 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. Paragraph (34)(g) is applicable because this rule 
establishes a safety zone. A final ``Environmental Analysis Check 
List'' and a final ``Categorical Exclusion Determination'' 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; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Public Law 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T11-110, to read as follows:


Sec.  165.T11-110  Safety Zone; San Francisco Bay, California.

    (a) Location. The following area is a safety zone: All navigable 
waters in the San Francisco Bay, from the surface to the sea floor, 
encompassed by a circle with a radius of 750-feet extending from and 
around the Crane Barge DOGBONE. This safety zone will move and continue 
to extend 750-feet from the Barge DOGBONE while it operates along the 
charted BART Transbay tube between the following two points: 
37[deg]47'50.97''; N Latitude, by 122[deg]23'17.01'' W Longitude at the 
western extreme, and 37[deg]48'25.65'' N

[[Page 39570]]

Latitude by 122[deg]21'03.59'' W Longitude at the eastern extreme.
    (b) Effective Dates. This rule is effective from June 26, 2006 
through September 24, 2006. If the need for the safety zone ends prior 
to the scheduled termination time, the Captain of the Port will cease 
enforcement of the safety zone.
    (c) Regulations. In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transit through, or anchoring 
within this safety zone by all vessels and persons is prohibited, 
unless specifically authorized by the Captain of the Port San 
Francisco, or his designated representative.
    (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 can be comprise of 
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.
    The U.S. Coast Guard may be assisted in the patrol and enforcement 
of these two safety zones by local law enforcement as necessary.

    Dated: June 23, 2006.
W.J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco, 
California.
[FR Doc. E6-10980 Filed 7-12-06; 8:45 am]
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