13 July 2006

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[Federal Register: July 13, 2006 (Volume 71, Number 134)]

[Rules and Regulations]               

[Page 39567-39570]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr13jy06-20]                         



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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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