[Federal Register Volume 74, Number 104 (Tuesday, June 2, 2009)]
[Rules and Regulations]
[Pages 26297-26299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12706]


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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 [email protected]. 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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