[Federal Register Volume 74, Number 217 (Thursday, November 12, 2009)]
[Rules and Regulations]
[Pages 58211-58213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27131]


-----------------------------------------------------------------------

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: Final rule; removal of interim rule.

-----------------------------------------------------------------------

SUMMARY: This document removes the interim rule published on September 
8, 2009 (74 FR 46011), which announced a permanent safety zone around 
Seal Island, Maine from the shoreline out to the 60 foot depth curve. 
The September 8, 2009 interim rule is being removed because a 
comprehensive survey of Munitions and Explosives of Concern (MEC) in 
the area has not been completed therefore the Coast Guard is unable to 
determine if the risk posed warrants permanent establishment of the 
safety zone. Given the potential negative economic impact of the safety 
zone created by the Interim Rule and the limited reporting of MECs, 
this rule cancels the safety zone by removing it as a regulation.

DATES: This rule is effective November 12, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2009-0595 and are available online by going to 
http://www.regulations.gov, inserting USCG-2009-0595 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at 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 rule, 
call or e-mail Lieutenant Laura VanDerPol, Coast Guard Sector Northern 
New England, Waterways Management Division; telephone 207-741-5421, 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

    On September 8, 2009, we published an Interim Rule in the Federal 
Register (74 FR 46011), which announced a permanent safety zone around 
Seal Island, Maine from the shoreline out to the 60 foot depth curve. 
We received five comments as well as separate congressional 
communications on the interim rule. A public meeting was requested in 
two of the comments; those comments were also opposed to the interim 
rule; therefore, based upon this action removing the interim rule the 
Coast Guard does not now plan to hold a public hearing.
    Due in part to the comments received and congressional inquiries, 
the Safety Zone created by the Interim Rule is being removed by this 
Final Rule. The Coast Guard intends to pursue public education about 
the MEC and conduct further analysis of both the risk to mariners and 
the economic impact of a safety zone around Seal Island.
    The Coast Guard is issuing this 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 the unexpected economic impacts on 
the fishing industry of the safety zone as expressed through the 
comments received on the Interim Rule and the concern expressed through 
the congressional communication indicates that it is in the public's 
interest to remove the safety zone regulation promptly without 
providing notice and an opportunity to comment. Further, as the Coast 
Guard has determined not to enforce the safety zone prior to a final 
rule, it is impractical and unnecessary to conduct a notice and comment 
section prior to issuing this final rule removing the safety zone 
regulation.
    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. This Final Rule removes the 
previously created Interim Rule published in the Federal Register on 
September 8, 2009 (74 FR 46011), effectively cancelling the safety zone 
established around Seal Island. As this rule removes a regulation, the 
Coast Guard finds that a delay in the effective date would be contrary 
to the public's interest in removing the restrictions in the regulation 
as soon as practical. Further, we have determined that a delay in the 
effective date to allow for public notification is unnecessary as the 
regulation created by the Interim Rule is no longer being enforced.

Background and Purpose

    Seal Island is an uninhabited island of approximately 65 acres 
located to the east of Matinicus Island off of the coast of Maine. Seal 
Island was used as an aerial bombing and target range by the United 
States Government until the late 1960s. Seal Island was transferred to 
the U.S. Department of Interior in 1972. In the mid-1980s, Congress 
established the Formerly Used Defense Sites (FUDS) Program to clean up 
properties formerly owned, leased, possessed or used by the military 
services. Seal Island is designated a FUDS due to its prior military 
use. The Department of Defense established the Military Munitions 
Response Program (MMRP) to address DOD sites suspected of containing 
Munitions and Explosives of Concern (MEC). Under the MMRP, the U.S. 
Army Corps of Engineers is conducting environmental response activities 
at designated FUDS locations. As part of the environmental response 
activities of the MMRP, the U.S. Army Corps of Engineers is conducting 
site inspections

[[Page 58212]]

of FUDS. A site inspection (SI) for Seal Island was completed under the 
MMRP, Project No. D01ME003202. This site inspection is not a full scale 
study of the nature and extent of the MECs, rather it is limited to a 
terrestrial surface inspection only for MEC along with samplings in the 
areas most likely to contain munitions constituents. The SI concluded 
that a Remedial Investigation and Feasibility Study be performed at the 
site due to the past discovery of munitions and explosives of concern 
as well as the presence of munitions constituents, particularly heavy 
metals. Past MEC discoveries included an 8-inch live round artillery 
projectile and several 5-inch rocket warheads; additionally there was a 
report of an explosion(s) of MEC during a past brush-fire on the 
island. The Remedial Investigation and Feasibility Study has not been 
conducted, and given the remote location of Seal Island and the control 
of the island by the U.S. Fish and Wildlife Service, who restricts 
access, the additional study and investigation is unlikely to occur any 
time soon.
    A danger zone currently exists around the island, but it is only to 
be 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 Final Rule has no effect on the danger zone regulation.
    In addition to Seal Island being a FUDS and the discovery of MEC on 
the island, in the summer of 2009 a private citizen diving near the 
island's shore reported observing multiple munitions on the sea floor. 
The type, number, and condition of munitions are unknown; however, that 
information along with concerns about the presence of MEC on the island 
led the Coast Guard to establish a safety zone for all of the navigable 
waters surrounding Seal Island out to the 60 foot depth curve. The 
Coast Guard was concerned that anchoring, fishing, trawling, diving or 
any other activity that could disturb the ocean floor might result in 
injury from MEC in the area. Following publication of the Interim Rule 
on September 8, 2009, which created the safety zone, comments were 
received from area commercial fishermen expressing concern over the 
considerable negative economic impact that this rule would have on 
them. Moreover, commercial fishermen expressed concern that the rule 
did not consider the fact they have not experienced any MEC.
    The purpose of this Final Rule is to remove the Safety Zone around 
Seal Island that was created by the Interim Rule, thereby removing the 
restrictions on the public. In recognition that some risk remains, the 
Coast Guard may refocus efforts on public education of the existence of 
MEC on and around Seal Island and will encourage further analysis and 
investigation of Seal Island to better understand the risks involved.

Discussion of Comments and Changes

    Thus far the Coast Guard has received five comments and two 
congressional communications on this Interim Rule. Four of the 
commenters stated that this rule will cause significant financial 
hardship for the lobstermen who make a living fishing the waters around 
Seal Island. One of the four commenters also stated that ``he has 
fished Seal Island now for 35 years; my father fished it before as 
well. He also lived on Seal with my mother and several other members of 
the family 1947-1950 and in the 65 years since it was last used for 
target practice, I know of no one ever finding an [sic] munitions or 
explosives''. A fifth commenter stated: ``Someone should consider 
contacting the Navy if not already done so the Navy can consider 
(stress consider) the proper course of action.'' The Coast Guard has 
considered this course of action and has made this recommendation to 
the FUDS project manager. The congressional communications requested 
that the Coast Guard withdraw this rule due to the fact that there is 
an unsubstantiated level of risk to the mariners and larger than 
expected economic impact on local fishermen. Removing this interim rule 
addresses the concerns raised through the congressional communications. 
The Coast Guard intends to pursue public education while encouraging 
other government agencies to conduct additional study and analysis of 
both the risk to mariners and the economic impact of a 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.
    The Coast Guard determined that this rule is not a significant 
regulatory action for the following reasons: The Coast Guard is 
removing the safety zone which covered a portion of the navigable 
waters around Seal Island, thus, vessels may choose to operate in these 
previously regulated waters. The result of this Final Rule is to reduce 
the regulatory burden placed on the public.

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 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 final rule will not have a significant economic impact on a 
substantial number of small entities, as it removes the previously 
created safety zone that excluded these small entities from a portion 
of the navigable waters around Seal Island. As this rule removes the 
restriction, it will not have a significant effect on the small 
entities.

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.

[[Page 58213]]

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 disestablishment of 
a safety zone. Under figure 2-1, paragraph (34)(g), of the Instruction, 
an environmental analysis checklist and a categorical exclusion 
determination are not required for this rule.

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; Public Law 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


Sec.  165.180  [Removed].

0
2. Remove Sec.  165.180.

    Dated: October 27, 2009.
J.B. McPherson,
Captain, U.S. Coast Guard, Captain of the Port Sector Northern New 
England.
[FR Doc. E9-27131 Filed 11-10-09; 8:45 am]
BILLING CODE 4910-15-P