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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG-2009-0644]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing two temporary safety zones extending 500 meters in all directions from each of the two submerged turret-loading buoys and accompanying systems that are part of GDF Suez Energy's Neptune Deepwater Port located in the Atlantic Ocean off of Boston, Massachusetts. The purpose of these temporary safety zones is to protect vessels and mariners from the potential safety hazards associated with construction of the deepwater port facilities and the large sub-surface turret buoys, and to protect the deepwater port infrastructure. All vessels, with the exception of deepwater port support vessels, are prohibited from entering into, remaining or moving within either of the safety zones.

# DATES:

This rule is effective from July 31, 2009 through February 16, 2010.

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2009-0644 and are available online by going to                         *http://www.regulations.gov,*                         inserting USCG-2009-0644 in the “Keyword” box, and then clicking “Search.” They are 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 temporary rule, call or e-mail Ensign Marie Haywood, United States Coast Guard, Sector Boston, Waterways Management; telephone 617-223-5160, e-mail                         *Michele.M.Haywood@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. The deepwater port facilities discussed elsewhere in this rule are in the final stages of completion and present a potential safety hazard to vessels, especially fishing vessels, operating in the vicinity of submerged structures associated with the deepwater port facility.

These safety zones are needed pending implementation of a final regulatory scheme to protect vessels from the hazards posed by the presence of the currently uncharted, submerged deepwater infrastructure. Final regulations are being developed and are expected to be proposed in a notice of proposed rulemaking in a separate rulemaking docket, USCG-2009-0589. In the mean time, immediate action is necessary to protect vessels currently operating in the area from uncharted submerged hazards. Further, a delay or cancellation of this portion of the construction is contrary to the public's interest in the timely completion of this project.

                    For the same reasons given above, the Coast Guard also finds under 5 U.S.C. 553(d)(3) that good cause exists for making this rule effective less than 30 days after publication in the                     **Federal Register.**

## Background and Purpose

On March 23, 2007, the Maritime Administration (MARAD), in accordance with the Deepwater Port Act of 1974, as amended, issued a license to Suez Energy to own, construct, and operate a natural gas deepwater port named “Neptune”. Neptune Deepwater Port (NEPTUNE) is located in the Atlantic Ocean, approximately eight nautical miles South-southeast of Gloucester, Massachusetts, in Federal waters.

                    The Neptune Deepwater Port can accommodate the mooring, connecting, and offloading of two liquefied natural gas carriers (LNGCs) at one time. The Neptune Deepwater Port operator plans to offload LNGCs by regasifying the liquefied natural gas (LNG) on board the vessels. The regasified natural gas is then transferred through two submerged turret loading buoys, via a flexible riser                           ( print page 41335)                        leading to a seabed pipeline that ties into the existing Algonquin Gas Transmission Pipeline for transfer to shore. GDF Suez recently completed installation of the submerged turret loading (STL) buoys and associated sub-surface infrastructure, which includes, among other things, a significant sub-surface sea anchor and mooring system.                

The temporary zones created by this rule ensure there is no gap in safety regulations, and protects the safety of persons and vessels operating around the submerged deepwater port infrastructure while public comments on an NPRM creating permanent regulations around the Neptune Deepwater Port facility are analyzed and that rulemaking project is completed.

## Discussion of Rule

The Coast Guard is establishing two temporary safety zones, each of which extends in a radius of 500 meters around the Neptune Deepwater Port STL buoys to protect vessels from submerged hazards. The approximate coordinates of the two STL buoys are: STL Buoy A: Latitude 42°29′12.3″ N, Longitude 070°36′29.7″ W; and, STL Buoy B: Latitude 42°27′20.5″ N, Longitude 070°36′07.3″ W. The location of each buoy is indicated on the ocean surface above it by several small, white buoys labeled LNG with red flags and radar-reflected buoys known as Hi Flyers.

All vessels, other than Liquefied Natural Gas carriers and associated support vessels are prohibited from entering into, remaining or moving within the safety and security zones.

## 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 regulation to be so minimal that a full Regulatory Evaluation is unnecessary. Extensive outreach has been conducted by the company, GDF Suez Energy, with the local boating and fishing community so as to minimize impacts. In addition, the company has stationed a vessel at the location of the Neptune project to notify vessels potentially conducting underwater operations of the local dangers.

## 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 fishing and recreational vessels intending to transit or anchor in a portion of the Atlantic Ocean and Massachusetts Bay area covered by this rule. These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons. These two safety zones only extend for 500 meters from each of the STL buoys allowing navigation in all other areas of Massachusetts Bay, and public notification of the safety and the inherent dangers of the STL buoys and underwater equipment will continue to be made by the Coast Guard as well as Neptune personnel.

## 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                           ( print page 41336)                        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 because the rule creates two safety zones around submerged buoys and their associated infrastructure. 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

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

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.

2. Add temporary § 165.T01-0644 to read as follows: 

§ 165.T01-0644 

                            (a)                             *Location.*                             The following areas are safety zones: All navigable waters of the United States within a 500-meter radius of each of the two submerged turret loading buoys of the Neptune Deepwater Port, which are located at approximately 42°23′38″ N, 070°35′31″ W and 42°23′56″ N, 070°37′00″ W (NAD83). The location of the two submerged turret loading buoys is marked on the surface of the water by several small, white buoys labeled LNG with red flags and radar-reflected buoys known as “Hi Flyers.”                        

                            (b)                             *Definitions.*                             As used in this section:                             *Authorized representative*                             means a Coast Guard commissioned, warrant, or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port Boston (COTP).                        

*Deepwater port*                             means any facility or structure meeting the definition of deepwater port in 33 CFR 148.5.                        

*Support vessel*                             means any vessel meeting the definition of support vessel in 33 CFR 148.5.                        

                            (c)                             *Regulations.*

(1) The general regulations contained in 33 CFR 165.23 apply.

(2) In accordance with the general regulations, entry into or movement within these safety zones is prohibited unless authorized by the Captain of the Port Boston. Liquefied Natural Gas Carrier vessels and related Support Vessels calling on the Neptune Deepwater Port are authorized to enter and move within the safety zones of this section in the normal course of their operations.

(3) All persons and vessels must comply with the Coast Guard Captain of the Port or authorized representative.

(4) Upon being hailed by an authorized representative by siren, radio, flashing light or other means, the operator of the vessel must proceed as directed.

(5) Persons and vessels may contact the Coast Guard to request permission to enter the zone on VHF-FM Channel 16 or via phone at 617-223-5761.

Dated: July 31, 2009.

John N. Healey,

Captain, U.S. Coast Guard, Captain of the Port Boston.

[FR Doc. E9-19547 Filed 8-14-09; 8:45 am]

BILLING CODE 4910-15-P