[Federal Register: June 2, 2009 (Volume 74, Number 104)]
[Rules and Regulations]
[Page 26297-26299]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn09-12]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2009-0424]
RIN 1625-AA00
Safety Zone: F/V PATRIOT, Massachusetts Bay, MA
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is creating a temporary safety zone
surrounding the sunken fishing vessel PATRIOT located approximately 17
miles northeast of Scituate, Massachusetts in Massachusetts Bay. The
safety zone is in effect while the vessel remains on the sea floor and
subsequently re-floated during salvage operations. The safety zone will
then move with the vessel until the PATRIOT is safely moored. This
action is necessary to ensure that vessels are not endangered by
conducting dredging, diving, anchoring, fishing or other activities
while the PATRIOT sits on the sea floor. This action is also necessary
to assist in providing a safe work environment for those conducting the
salvage operation. This temporary rulemaking is needed to protect the
environment, the commercial fishing industry, salvage operators and the
general public from potential hazards associated with the sunken vessel
and from potential hazards associated with the salvage of the vessel.
DATES: This rule is effective from May 20, 2009 through June 10, 2009.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2009-0424 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-2009-0424
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
at the following location: 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, U.S. 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, located in approximately 95 feet of water 17 miles
northeast of Scituate, Massachusetts. This rule replaces the existing
safety zone set to May 20, 2009, to ensure, to the extent practicable,
the immediate, continued protections for the environment, the
commercial fishing industry, salvage operators and the general public
from the potential hazards associated with the salvage of the F/V
PATRIOT. The loss of the F/V PATRIOT created significant interest in
the local fishing community and considerable media interest. Salvage of
the F/V PATRIOT has the potential of attracting a variety of on-lookers
who may be searching for unanswered questions or are just curious;
operations also have the potential of generating considerable media
interest. An uncontrolled gathering of vessels surrounding the location
of salvage operations has the potential of creating an unsafe work
environment during salvage operations. It would be contrary to the
public interest for the existing safety zone to lapse on the eve of
such operations.
For the same reason, 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.
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
[[Page 26298]]
have an estimated 5,000 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[min]27.34[sec] N.,
70[deg]27[min]17.23[sec] W.
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. The Coast Guard is implementing this safety zone to
surround the F/V PATRIOT and the salvage equipment transporting it from
its current resting place to its future berth.
Discussion of Rule
This regulation creates a temporary safety zone around the F/V
PATRIOT currently located in Massachusetts Bay, Massachusetts, 17 miles
northeast of Scituate, Massachusetts. The safety zone will protect the
vessel until it is salvaged and subsequently transported to the shore,
at which time the safety zone will no longer be enforced. This
regulation is necessary to allow the owners of the F/V PATRIOT to
safely conduct salvage operations and transport the vessel to shore.
This safety zone is in place to protect the public from the hazards
associated with a salvage operation. The zone extends for 500 yards, in
all directions, from the F/V PATRIOT, currently in approximate position
42[deg]24[min]27.34[sec] N, 70[deg]27[min]17.23[sec] W. Once F/V
PATRIOT has been re-floated, the safety zone shall remain in effect,
reduce in size to 50 yards and move with the vessel until the vessel is
safely moored.
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 will be made
through broadcast and local notice to mariners. Marine traffic may
transit safely in surrounding areas, 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.
This regulation is not significant regulatory action as it
encompasses a sunken fishing vessel and the immediate area surrounding
it.
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 waterway 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.
[[Page 26299]]
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 Department of Homeland Security
Management Directive 023-01 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 a temporary safety
zone which may last longer than a week and is not an emergency
situation. An environmental analysis checklist and a 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; 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. Add temporary Sec. 165.T01-0424, to read as follows:
Sec. 165.T01-0424 Safety Zone: F/V PATRIOT, 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 the F/V PATRIOT while located in its currently approximate
position of 42[deg]24'27'' N, 070[deg]27'17'' W. When the vessel is re-
floated during salvage operations, the safety zone will reduce to a 50-
yard radius and move with the F/V PATRIOT until safely moored.
(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 or designated
representative 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 May 20,
2009, until midnight June 10, 2009.
Dated: May 20, 2009.
John N. Healey,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. E9-12706 Filed 6-1-09; 8:45 am]
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