[Federal Register Volume 74, Number 172 (Tuesday, September 8, 2009)]
[Rules and Regulations]
[Pages 46011-46014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21570]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0595]
RIN 1625-AA00


Safety Zone; Munitions and Explosives of Concern (MEC); Seal 
Island, ME

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a permanent safety zone around 
Seal Island, Maine from the shoreline out to the 60 foot depth curve. 
This safety zone prohibits persons and vessels from entering the 
designated area around Seal Island unless authorized by the Coast Guard 
Captain of the Port Northern New England. This safety zone is necessary 
to provide for the safety of life on the navigable waters around Seal 
Island by protecting mariners from the hazards of Munitions and 
Explosives of Concern (MEC) found in the area.

DATES: This interim rule is effective September 8, 2009. Comments and 
related material must reach the Coast Guard on or before December 7, 
2009. Requests for public meetings must be received by the Coast Guard 
on or before September 30, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0595 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call or e-mail Chief Petty Officer Randy Bucklin, Coast Guard 
Sector Northern New England, Waterways Management Division; telephone 
207-741-5440, e-mail [email protected]. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0595), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail or hand 
delivery, but please use only one of these means. If you submit a 
comment online via www.regulations.gov, it will be considered received 
by the Coast Guard when you successfully transmit the comment. If you 
fax, hand delivery, or mail your comment, it will be considered as 
having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2009-0595'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8[frac12] by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2009-0595'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy

[[Page 46012]]

Act notice regarding our public dockets in the January 17, 2008, issue 
of the Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before September 30, 2009 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting would be beneficial. If we determine that one would aid 
this rulemaking, we will hold one at a time and place announced by a 
later notice in the Federal Register.

Regulatory Information

    The Coast Guard is issuing this interim 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 ``impractical, 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 a notice and comment period would be 
impractical due to the time needed to conduct a notice and comment 
period is contrary to the immediate need to implement this safety zone 
because of the imminent hazards posed by the Munitions and Explosives 
of Concern (MEC). Further, the expeditious implementation of this rule 
is in the public interest because it will help ensure the safety of 
those anchoring, fishing and other users of the waterway from the 
dangers of the MEC.
    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. As noted above, the Coast Guard 
finds that it is both impractical and contrary to public interest to 
delay the effective date of this rule for 30 days after publication. 
Immediate action is needed in order to ensure the safety of those 
anchoring, fishing, and otherwise using the waterway. In addition to 
publication in the Federal Register, the Coast Guard will announce the 
creation of this safety zone through local notice to mariners, marine 
information broadcasts and outreach to partner agencies in the area.

Background and Purpose

    Seal Island located to the east of Matinicus Island off of the 
coast of Maine was used as an aerial bombing and target range by the 
United States Government. The use as a bombing and target range ceased; 
however, recent exploration of the island and the surrounding waters 
led to the discovery of various munitions and explosives of concern 
that present safety hazards to those who may come in contact with them. 
Some of these MECs are located on Seal Island as well as in the shallow 
water immediately surrounding it. A danger zone currently exists around 
the island however it is only enforced during times of active aerial 
bombing exercises which no longer occur. The regulation for the danger 
zone can be found in 33 CFR 334.10.
    This regulation will establish a fixed safety zone around the 
perimeter of the affected portions of Seal Island out to the 60 foot 
depth curve so as to ensure mariners do not come into close proximity 
with MECs near Seal Island. This safety zone is necessary to protect 
vessels and persons from the hazards associated with MEC.

Discussion of Rule

    This rule creates the following safety zone for: ``Seal Island 
Munitions and Explosives of Concern (MEC).'' The safety zone is for all 
navigable waters of the Gulf of Maine in the vicinity of Seal Island, 
in approximate location latitude 43[deg]53'00'' N, longitude 
068[deg]44[min]00[sec] W, extending from the shoreline out to the 60 
foot depth curve. The 60 foot curve can be found on various nautical 
charts and is readily apparent on NOAA Chart 13303, Approaches to 
Penobscot Bay.
    Entry into these zones by any person or vessel will be prohibited 
unless specifically authorized by the Captain of the Port Northern New 
England, or his designated representatives. Persons desiring to enter 
the safety zone may request permission to enter from the Coast Guard 
Captain of the Port via VHF Channel 16 or by contacting the Sector 
Northern New England Command Center at (207) 741-5465.
    The Coast Guard advises that entry into, transiting, diving, 
dredging, dumping, fishing, trawling, conducting salvage operations, 
remaining within or anchoring in this safety zone is prohibited unless 
authorized by the Captain of the Port Northern New England or his 
designated representatives.
    The ``designated representative'' is any Coast Guard commissioned, 
warrant, or petty officer who has been designated by the Captain of the 
Port Northern New England to act on his behalf.

Regulatory Analyses

    We developed this interim 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.
    The Coast Guard determined that this rule is not a significant 
regulatory action for the following reasons: the safety zone will cover 
only a small portion of the navigable waters around Seal Island 
allowing vessels to operate in all other portions of the approaches to 
Penobscot Bay. In addition, vessels may be authorized to enter the zone 
with permission of the Captain of the Port Northern New England.

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. 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. This rule will affect the following 
entities, some of which may be small entities: the owners or operators 
of vessels intending to transit, fish, dive, or anchor in a portion of 
the Gulf of Maine around Seal Island.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. Vessel 
traffic can pass safely around the safety zone and operate in all other 
portions of the approaches to Penobscot Bay in the Gulf of Maine. 
Before the effective period, we

[[Page 46013]]

will issue maritime advisories widely available to users of the 
waterway transiting in the vicinity of Seal Island.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

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.

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 the establishment of 
safety zones. An environmental analysis checklist and a categorical 
exclusion determination will be available for review 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, and 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. 701, 3306, 3703; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.180 to read as follows:


Sec.  165.180  Safety Zone; Seal Island, Maine

    (a) Location. The following area is a safety zone: All navigable 
waters of the Gulf of Maine in the vicinity of Seal Island, Maine in 
approximate location latitude 43[deg]53'00'' N, longitude 
068[deg]44'00'' W, extending from the shoreline of Seal Island out to 
the 60 foot depth curve as indicated on

[[Page 46014]]

nautical charts. Note that the 60 foot depth curve is readily 
identifiable on NOAA chart 13303 (Approaches to Penobscot Bay).
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) Entry into, transiting, diving, dredging, dumping, fishing, 
trawling, conducting salvage operations, remaining within or anchoring 
in this safety zone is prohibited unless authorized by the Captain of 
the Port Northern New England or his designated representatives.
    (3) The ``designated representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
Captain of the Port Northern New England to act on his behalf.
    (4) Vessel operators desiring to enter or operate within the safety 
zone may contact the Captain of the Port Northern New England or his 
designated representative at the Coast Guard Sector Northern New 
England Command Center via VHF Channel 16 or by phone at (207) 741-5465 
to request permission.
    (5) Vessel operators given permission to enter or operate in the 
safety zones must comply with all directions given to them by the 
Captain of the Port Northern New England or his designated 
representatives.

    Dated: July 15, 2009.
J.B. Mcpherson,
Captain, U. S. Coast Guard, Captain of the Port, Sector Northern New 
England.
[FR Doc. E9-21570 Filed 9-4-09; 8:45 am]
BILLING CODE 4910-15-P