[Federal Register Volume 72, Number 116 (Monday, June 18, 2007)]
[Rules and Regulations]
[Pages 33388-33391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11637]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP San Francisco Bay 07-025]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a moving temporary safety zone 
in the navigable waters of San Francisco Bay, California, during 
geotechnical borings for a seismic upgrade of the Bay Area Rapid 
Transit (BART) Transbay tube. The borings will require placement of a 
drilling vessel at test sites along the BART Transbay tube. The safety 
zone will surround the vessel and move with the vessel as it conducts 
the tests at eighteen sites along the BART Transbay tube. This safety 
zone is necessary to protect persons and vessels from hazards, injury, 
and damage associated with the geotechnical borings. 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 or his designated representative.

DATES: This rule is effective from May 30, 2007 through June 25, 2007.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket COTP San Francisco Bay 07-025 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

[[Page 33389]]

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 geotechnical 
borings along the Transbay tube were not finalized and presented to the 
Coast Guard in time to draft and publish an NPRM. As such, the borings 
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 finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. The dates for the geotechnical 
borings 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. As such, the borings 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 geotechnical borings.

Background and Purpose

    Bay Area Rapid Transit has contracted Gregg Drilling & Testing, to 
conduct BART marine demonstration tests in support of their earthquake 
safety efforts. They will be conducting geotechnical borings for future 
seismic upgrades of the BART Transbay tube. The scope of the work will 
involve eighteen separate anchor spread locations, required to carry 
out the thirty-four geotechnical borings, located along the BART tube 
in the San Francisco Bay. The scope of work for the entire BART seismic 
upgrade project involves four primary activities carried out on the 
water. These activities include vibro penetration tests, vibro ground 
improvement, drilling, sampling and sonic borings.
    The Gregg Drilling & Testing work will involve the drilling portion 
of the BART seismic upgrade project. Gregg Drilling & Testing will be 
deploying the vessel QUIN DELTA which is 120 feet long and 30 feet 
wide, with a drilling apparatus attached to its hull. The vessel QUIN 
DELTA will be located over the tube alignment to perform drilling. The 
drilling will penetrate the sea floor at a depth of five feet. The 
contents recovered will be collected onto the vessel and further 
analyzed offsite.

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 300-yard radius extending 
from the drilling platform, vessel QUIN DELTA. The vessel QUIN DELTA 
will transit and conduct testing along the BART Transbay tube between 
two points: 37[deg]47'44.55'' N Latitude by 122[deg]23'28.34'' W 
Longitude at the western extreme and 37[deg]48'31.29'' N Latitude by 
122[deg]20'17.12'' W Longitude on the eastern extreme. This area 
between the two points will be used to maneuver and anchor the vessel 
QUIN DELTA as it conducts the geotechnical borings from May 30, 2007 
through June 25, 2007. The BART Project manager coordinated the boring 
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 drilling Barge QUIN DELTA is 
necessary to protect persons and vessels from hazards, injury, and 
damage associated with the geotechnical borings.
    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 may 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.
    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 May 30, 
2007 through June 25, 2007. 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 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 have considered whether this 
rule would have a significant economic impact on a substantial number 
of small entities. We expect this rule may affect owners and operators 
of vessels, some of which may be small entities, intending to fish, 
sightsee, transit, or anchor in the waters affected by this safety 
zone. This safety zone will not have a significant economic impact on a 
substantial number of small entities for several reasons: small vessel 
traffic will be able to pass safely around the area and vessels engaged 
in recreational activities, sightseeing and commercial fishing have 
ample space outside of the safety zone to engage in these activities.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to

[[Page 33390]]

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 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 record 
keeping 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, 195; 33 CFR 1.05-1, 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. Add Sec.  165.T11-197, to read as follows:


Sec.  165.T11-197  Safety Zone; San Francisco Bay, California.

    (a) Location. This safety zone will encompass the navigable waters 
from the surface to the sea floor, in the San Francisco Bay, and its 
limits will encompass a circular safety zone with a radius of 300-yards 
extending from and around the drilling vessel QUIN DELTA. This safety 
zone will move and continue to extend 300-yards from the vessel QUIN 
DELTA while it operates along the charted BART Transbay tube between 
the following two points: 37[deg]47'44.55'' N Latitude by 
122[deg]23'28.34'' W Longitude at the western extreme and 
37[deg]48'31.29'' N Latitude by 122[deg]20'17.12'' W Longitude on the 
eastern extreme.
    (b) Effective dates. This rule is effective from May 30, 2007 
through June 25, 2007. If the need for the safety zone ends prior to 
the scheduled termination time, the Captain of the Port (COTP) 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 COTP San Francisco, or his 
designated representative.
    (d) Enforcement. All persons and vessels shall comply with the

[[Page 33391]]

instructions of the Coast Guard COTP or his designated representative. 
The COTP's designated representative can be comprised 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: May 29, 2007.
W.J. Uberti,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco, 
California.
 [FR Doc. E7-11637 Filed 6-15-07; 8:45 am]
BILLING CODE 4910-15-P