
[Federal Register: May 15, 2009 (Volume 74, Number 93)]
[Rules and Regulations]               
[Page 22828-22830]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my09-8]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1272]
RIN 1625-AA00

 
Safety Zone; Underwater Object, Massachusetts Bay, MA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is extending the duration of a temporary 
safety zone surrounding the location of the sunken fishing vessel 
PATRIOT located approximately 17 miles northeast of Scituate, 
Massachusetts in Massachusetts Bay. This action is necessary to ensure 
that vessels are not endangered by conducting dredging, diving, 
anchoring, fishing or other activities in this area. This temporary 
rulemaking is needed to protect the environment, the commercial fishing 
industry, and the general public from potential hazards associated with 
the underwater object and from the hazards associated with planned 
salvage of the vessel.

DATES: This rule is effective from 11:59 p.m. March 14, 2009 through 
midnight May 20, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-1272 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2008-1272 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are also available for inspection or copying 
two locations: the Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Chief Eldridge McFadden, United States 
Coast Guard, Sector Boston, Waterways Management Division; telephone 
617-223-5160, e-mail Eldridge.C.McFadden@uscg.mil. If you have 
questions on viewing the docket, call Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because initial immediate action was needed 
to protect the public from the hazards posed by an unknown underwater 
object located in Massachusetts Bay. This object was later identified 
as the F/V Patriot. The F/V PATRIOT is located in approximately 95 feet 
of water 17 miles northeast of Scituate, Massachusetts. This rule 
extends the duration of the existing safety zone, which would have 
expired on May 6, 2009, to ensure, to the extent practicable, the 
immediate, continued protections for the environment, the commercial 
fishing industry, and the general public from the hazards associated 
with the F/V PATRIOT, while investigative efforts continue, risk 
mitigation strategies are further explored and implemented, and salvage 
efforts are conducted. Specifically, this rule is being extended to 
facilitate and protect planned commercial salvage operations, which 
were unable to be completed during the prior extension. It would be 
contrary to the public interest for the existing safety zone to lapse 
on the eve of such operations.
    For the same reasons, 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.

Background and Purpose

    On January 3, 2009, the F/V PATRIOT, a 54-foot steel-hull boat, 
sank with the loss of two crewmembers onboard. The vessel was reported 
to have an estimated 5000 gallons of fuel onboard. There were no 
survivors and the exact position of the vessel was not immediately 
known. On January 8, 2009, the Coast Guard established a temporary 
safety zone around a reported underwater object believed to be the F/V 
PATRIOT, located in Massachusetts Bay approximately 17 miles northeast 
of Scituate, Massachusetts, in position 42[deg]24'27.34'' N, 
70[deg]27'17.23'' W. This underwater object created an immediate and 
significant danger to the environment, the commercial fishing industry, 
and the general maritime public, as mariners unaware of its presence 
could make contact with the object and cause damage to their vessel, 
equipment below the water or fishing gear. On January 14, 2009, the 
Coast Guard extended the temporary safety zone until March 14, 2009, 
while investigative efforts continued and risk mitigation strategies 
were further explored.
    On January 23, 2009, underwater exploratory operations with 
photographic equipment confirmed that the object was the F/V PATRIOT. 
The owners of the vessel intend to conduct dive and salvage operations 
on the vessel. On April 14, 2009, the Coast Guard received a request to 
extend the safety zone until May 6, 2009 in order to conduct a salvage 
operation for the vessel. On May 6, 2009, the Coast Guard received an 
additional request to extend the safety zone as the operations had not 
yet been started. The Coast Guard has agreed to this extension of this 
zone, which will help ensure the planned dive and salvage operations 
can be conducted safely.

[[Page 22829]]

Discussion of Rule

    This regulation extends the duration of the temporary safety zone 
on the navigable waters of Massachusetts Bay, Massachusetts, 17 miles 
northeast of Scituate, Massachusetts. This extension is necessary to 
allow the owners of the F/V PATRIOT to conduct salvage operations. The 
first safety zone, on this matter, was effective from January 8, 
through January 14, 2009. On January 14, 2009, the duration of the zone 
was extended until March 14, 2009 (74 FR 7817). A second extension was 
authorized on March 6, 2009 and published in the Federal Register (74 
FR 14729) extending the duration of the safety zone from March 14, 2009 
through April 28, 2009. A third extension was authorized on April 24, 
2009 extending the duration of the safety zone through midnight, May 6, 
2009. This regulation extends the duration of the safety zone until 
midnight May 20, 2009. This safety zone is in place to protect the 
public from the hazards associated with a salvage operation that was 
planned for, but unable to be completed in the last extension. The zone 
extends for 500 yards, in all directions, from the F/V PATRIOT in 
approximate position 42[deg]24'27.34'' N, 70[deg]27'17.23'' W. The 
position of the safety zone has been modified slightly from the prior 
safety zones so as to better identify its location.
    This action is intended to prohibit vessels and persons from 
entering, transiting, anchoring, diving, dredging, dumping, fishing, 
trawling, laying cable, or conducting salvage operations in this zone 
except as authorized by the Coast Guard Captain of the Port Boston, 
Massachusetts. Public notifications about this safety zone have been 
and will continue to be made through broadcast and local notice to 
mariners. Marine traffic may transit safely in surrounding areas of 
Massachusetts Bay, but are restricted from entering the area delineated 
above.
    The Captain of the Port anticipates minimal negative impact on 
vessel traffic due to the limited area and duration covered by this 
safety zone.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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.

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 may affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to 
transit, anchor, or fish in a portion of the Massachusetts Bay covered 
by the safety zone. This rule will not have a significant impact on a 
substantial number of small entities for the following reasons: The 
area this rule is affecting is very small and there is plenty of water 
in the area for vessels to transit around.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can 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.

[[Page 22830]]

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 Department of Homeland Security 
Management Directive 0023-01 and Commandant Instruction M16475.lD, 
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 this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction. This rule involves pertains to a 
temporary safety zone established and extended to address an emergency 
situation lasting more than one week.
    An environmental analysis checklist and a categorical exclusion 
determination are 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; 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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. Revise temporary Sec.  165.T01-1272, to read as follows:


Sec.  165.T01-1272  Safety Zone: Underwater Object, Massachusetts Bay, 
MA.

    (a) Location. The following area is a safety zone: All navigable 
waters, from surface to bottom, of Massachusetts Bay within a 500 yard 
radius of underwater object, in approximate position 42[deg]24'27.34'' 
N, 70[deg] 27'17.23'' W.
    (b) Definitions. The following definition applies to this section: 
Designated representative means any commissioned, warrant, and petty 
officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, state, and federal law enforcement vessels who 
have been authorized to act on the behalf of the Captain of the Port 
Boston.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) In accordance with the general regulations in Sec.  165.23 of 
this part, all vessels and persons are prohibited from entering the 
safety zone without permission from the Captain of the Port Boston. In 
addition, all vessels and persons are prohibited from anchoring, 
diving, dredging, dumping, fishing, trawling, laying cable, or 
conducting salvage operations in this zone except as authorized by the 
Coast Guard Captain of the Port Boston.
    (3) All persons and vessels shall comply with the Coast Guard 
Captain of the Port Boston or designated representative.
    (4) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of the vessel shall proceed 
as directed.
    (5) Persons desiring to enter the safety zone may request 
permission from the Captain of the Port Boston via VHF Channel 16 or 
via telephone at (617) 223-3201.
    (d) Enforcement Period. This rule will be enforced from 11 p.m. 
January 8, 2009, until midnight May 20, 2009.

    Dated: May 6, 2009.
Gail P. Kulisch,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. E9-11325 Filed 5-14-09; 8:45 am]

BILLING CODE 4910-15-P
