[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Rules and Regulations]
[Pages 7818-7820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3670]


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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 an underwater object located approximately 17 
miles northeast of Scituate, Massachusetts in Massachusetts Bay. This 
action is necessary to ensure that vessels are not endangered by 
dredging, diving, salvage, 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.

DATES: This rule extends the current temporary regulation, docket 
number USCG-2008-1272, Safety Zone; Underwater Object, Massachusetts 
Bay, MA which has been in effect since 11 p.m. January 8, 2009, until 
11:59 p.m. January 14, 2009. This current rule will be in effect from 
12 a.m. January 15, 2009, until 11:59 p.m. March 14, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-1272 and will be available 
online at http://www.regulations.gov. They will also be available for 
inspection or copying in 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, and United States Coast Guard Sector Boston, 427 Commercial 
St., Boston, MA 02109 between 7 a.m. and 3 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Chief Eldridge McFadden, Waterways Management, at 
617-223-3000. If you have questions on viewing the docket, call Renee 
V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

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 a notice of proposed rulemaking (NPRM) 
with respect to this rule because immediate action is needed to protect 
the public from the hazards posed by an unknown underwater object 
located in Massachusetts Bay. This object is located in approximately 
95 feet of water 17 miles northeast of Scituate, Massachusetts. This 
rule extends the existing safety zone, which expired on January 14, 
2009, so as to protect the environment, the commercial fishing 
industry, and the general public, to the extent practicable, from the 
hazards associated with this unknown object, while investigative 
efforts continue and risk mitigation strategies are further explored 
and implemented.
    For the same reasons, 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.

[[Page 7819]]

Background and Purpose

    On January 3, 2009, the vessel PATRIOT, a 54 foot steel-hull boat 
was involved in an accident, which resulted in the presumed sinking of 
the vessel with the loss of two crewmembers onboard. The F/V PATRIOT 
was reported to have an estimated 5000 gallons of fuel onboard. In the 
days following the accident, the position of the vessel remained 
unknown, but several vessels reported catching their nets on an unknown 
object on the bottom of the ocean. On January 8, 2009, the Coast Guard 
established a temporary safety zone around this reported underwater 
object located in Massachusetts Bay approximately 17 miles northeast 
from Scituate, Massachusetts, in position 42[deg]24'27'' N, 
70[deg]27'14'' 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. While investigative efforts 
continue, and risk mitigation strategies are further explored it is 
necessary to extend the duration of the safety zone.

Discussion of Rule

    This regulation extends the duration of the temporary safety zone 
on the navigable waters of Massachusetts Bay, Massachusetts, 17 miles 
northeast from Scituate, Massachusetts. The temporary safety zone 
extends for 500 yards in all directions from an underwater object 
located in approximate position 42[deg]24'27'' N, 70[deg]27'14'' W.
    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. This rule extends the current temporary Safety Zone; 
Underwater Object, Massachusetts Bay, through 11:59 p.m. March 14, 
2009. Once the object can be properly identified and the potential 
hazards fully assessed and mitigated, the Coast Guard will cease 
enforcement of the safety zone and mariners will be able to transit 
through the area. Public notifications will be made of this safety zone 
through broadcast notice to mariners. Marine traffic may transit safely 
in all other 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.
    We expect the economic impact of this rule will be so minimal that 
a full Regulatory Evaluation under the regulatory policies and 
procedures of DHS is unnecessary. This regulation may have some impact 
on the public. This impact, however, is outweighed by the safety risks 
mitigated by the enactment of this zone. Further, the safety zone 
covers an area that is so small that mariners will be able to transit 
around the zone.

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 vessels may transit 
around the safety zone.

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

[[Page 7820]]

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 Department of Homeland Security 
Management Directive 0023.1 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 
under the Instruction 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 as the rule extends a temporary safety 
zone. Under figure 2-1, paragraph (34)(g), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are required for this rule because it concerns a safety 
zone for an emergency situation of longer than 1 week in duration. 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; 3306, 
3703; 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 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'' N, 
70[deg]24'14'' 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 
Sec.  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 12:00 a.m. 
January 15, 2009, until 11:59 p.m. March 14, 2009.

    Dated: January 14, 2009.
G.P. Kulisch,
Captain, U.S. Coast Guard, Captain of the Port Boston.
[FR Doc. E9-3670 Filed 2-19-09; 8:45 am]
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