[Federal Register Volume 61, Number 229 (Tuesday, November 26, 1996)]
[Rules and Regulations]
[Pages 60030-60032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30228]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD01-95-141]
RIN 2115-AA97
Safety Zone: Sunken Vessel EMPIRE KNIGHT, Boon Island, Maine
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is amending the regulations to establish a
permanent safety zone. This action is necessary to ensure that the
stern portion of the sunken M/V EMPIRE KNIGHT, and its cargo of
mercury, is not disturbed by dredging, diving, salvage, anchoring,
fishing, or other activity. This rulemaking is needed to protect the
environment, the commercial fishery, and the general public from any
adverse effects of contamination from mercury which could result from
the disturbance of the stern section of the wreck.
EFFECTIVE DATE: This final rule is effective August 23, 1996.
ADDRESSES: Unless otherwise indicated, documents referenced in this
preamble are available for inspection or copying at the office of the
Chief, Response & Planning Department, U.S. Coast Guard Marine Safety
Office, 312 Fore Street, Portland, Maine between 7:30 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays. The telephone number is
(207) 780-3251, extension 114.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Jeff Gafkjen, Response & Planning Department, U.S. Coast
Guard Marine Safety Office, P.O. Box 108, Portland, Maine 04112-0108 at
(207) 780-3251, extension 114.
SUPPLEMENTARY INFORMATION:
Background and Purpose
In February of 1944, the M/V EMPIRE KNIGHT, a 428 foot British
freight ship ran aground on Boon Island Ledge, Maine, and later broke
into two sections. The stern section, which includes the ship's cargo
holds, sank in approximately 260 feet of water, one and one-half miles
from Boon Island Ledge. In August of 1990, the Coast Guard Captain of
the Port, Portland, Maine (COTP) became aware of the existence of a
``Proposed'' Plan of Stowage for the wreck of the M/V EMPIRE KNIGHT
which indicated that 221 flasks containing mercury may have been loaded
into cargo hold number 5. The COTP issued a Captain of the Port Order
to a company then conducting salvage operations, requiring them to
refrain from further salvage activity until the situation could be more
thoroughly assessed.
Over the next year, the COTP convened an Incident Specific Regional
Response Team (RPT) consisting of representatives from the Maine
Department of Environmental Protection, the New Hampshire Department of
Environmental Services, the Maine Department of Marine Resources, the
New Hampshire Department of Fish and Game, the U.S. Environmental
Protection Agency, the U.S. National Oceanic and Atmospheric
Administration, and the U.S. Coast Guard to gather information about
the M/V EMPIRE KNIGHT and its cargo, and to identify possible courses
of action.
During the summer of 1991, the Maine Department of Marine Resources
collected samples of bottom sediment around the stern portion of the
EMPIRE KNIGHT to determine if mercury was present and, if so, to what
extent. Laboratory analyses of the samples revealed levels of mercury
consistent with background levels with some exceptions, rendering them
inconclusive on whether mercury had been on board the M/V EMPIRE KNIGHT
at the time of its sinking.
In the spring of 1993, the COTP, in consultation with the RRT,
determined that the possible presence of mercury on board the M/V
EMPIRE KNIGHT constituted an imminent and substantial threat to the
environment. The RRT agreed that an on site assessment of the stern
section of the EMPIRE KNIGHT was necessary to determine the presence of
the mercury, and to assess whether it would be necessary, feasible, and
safe to remove it if on board.
In August, 1993, the COTP, as the Federal On Scene Coordinator,
initiated a $6.8 million emergency site assessment and removal
operation. The presence of mercury on board was quickly confirmed. All
221 manifested mercury flasks were located in cargo hold number 5 and
subsequently recovered, but they were found in badly deteriorated
condition and were nearly empty. Loose mercury was discovered
throughout cargo hold number 5, and approximately 1,230 pounds were
recovered. Nearly 2,200 pounds of mercury-contaminated debris and cargo
residue were also recovered.
Extensive sampling and analysis was conducted throughout the
operation. Samples included bottom sediments in the vicinity of the
stern section of the wreck and various species of fish and shellfish
from the area around the vessel. From within cargo hold number 5,
samples of the sediment, scrapings off the cargo, and fish and
shellfish were taken.
In October, 1993, the operation was suspended due to deteriorating
weather conditions. At that time, an estimated 15,000 pounds of mercury
remained unaccounted for and is believed to have settled into the
sediment, and may have come to rest at a low point of cargo hold number
5.
In February, 1994, the RRT was reconvened by the COTP to consider
the results of the sample analyses and to determine the best course of
action. The sample analysis results showed that concentrations of
mercury were elevated inside cargo hold number 5, but dropped off
quickly to background levels in the bottom sediments outside the hold.
No contamination of fish or shellfish was identified with the exception
of those specimens collected from within cargo hold number 5. The key
issue then became the long term fate of mercury in a marine
environment. The RRT decided to submit the sample results to NOAA and
an independent scientist with a request for an analysis of the
available data and scientific literature and to develop a forecast of
the long term behavior of the mercury on site.
In August, 1994, a commercial salvage company that had remained
prohibited from conducting salvage operations by the Captain of the
Port Order, submitted to the COTP a request to lift the order. The
company also submitted a request to conduct salvage operations on the
wreck of the EMPIRE KNIGHT.
In September, 1994, the RRT was reconvened to consider the reports
submitted by NOAA and the independent scientist. While the reports
differed in details, they both concluded that the site was currently
stable and that the mercury did not pose a substantial threat to the
environment. Both reports were written, however, under the presumption
that the wreck of the EMPIRE KNIGHT would remain essentially
undisturbed with the exception of its gradual decomposition from
natural forces. Both reports further agreed that the probability of a
catastrophic release of mercury to the environment as a result of
activity on or near the EMPIRE KNIGHT was low. The RRT reached the
conclusion that the
[[Page 60031]]
wreck of the EMPIRE KNIGHT did not meet the condition of ``imminent and
substantial'' threat under CERCLA and that additional emergency
response operations would not be conducted. The RRT further agreed to
develop a plan for long-term monitoring of the site with the intent of
detecting any changing conditions.
In August, 1995, the RRT reconvened to discuss the issue of
allowing any type of activity on or near the wreck of the EMPIRE
KNIGHT. Consensus was reached that all information currently before the
RRT indicated that the predictable risk of activity on the wreck
resulting in mercury contamination of the environment was low. It was
further agreed that, although the risk of a release was low, the
foreseeable consequences of that release could be devastating to the
local environment, the public health, and the economy of the region's
fisheries. The unanimous recommendation of the RRT was to prohibit any
activity on or near the stern section of the wreck of the EMPIRE
KNIGHT. The establishment of the safety zone is a result of that
meeting.
Regulatory History
On November 13, 1995, the Coast Guard published a notice of
proposed rulemaking (NPRM) entitled ``SAFETY ZONE: Sunken Vessel EMPIRE
KNIGHT, Boon Island, Maine'' in the Federal Register (60 FR 56968).
This NPRM proposed the establishment of a Safety Zone in the waters of
the State of Maine prohibiting all vessels and persons from anchoring,
diving, dredging, dumping, fishing, trawling, laying cable, or
conducting salvage operations within a 1000 yard radius of the stern
portion of the wreck of the M/V EMPIRE KNIGHT except as authorized by
the Captain of the Port, Portland, Maine. The NPRM included a request
for comments from interested parties. Comments were received and are
discussed below. The final rule does not differ from the NPRM.
Good cause exists for providing for this rule to become effective
in less than 30 days after Federal Register publication. Any delay
encountered in making this rule would be contrary to the public
interest as the rule is needed to protect the environment, the
commercial fishery, and the general public from any adverse effects of
contamination from mercury which could result from the disturbance of
the stern section of the wreck. It is in the public interest that this
final rule is being made effective in less than 30 days after
publication.
Discussion of Comments and Changes
The Coast Guard received four letters in response to the NPRM.
Three of the letters were comments in support of the rulemaking. Two of
these supportive comments were from State of Maine intermediaries
stating that any activity which would alter conditions of the M/V
EMPIRE KNIGHT and which could consequently increase the threat of the
spread of the mercury cargo on board should be prevented. The third
comment, submitted by a salvage company, expressed concern that the
rule did not address future long-term monitoring of the M/V EMPIRE
KNIGHT site. Their concurrence with the rule is contingent upon the
establishment of a long-term regular sampling program to monitor the
inevitable changes over time to conditions at the site and their effect
on the containment of the mercury. The Coast Guard agrees that
conditions at the site will change over time and that there is a need
to monitor those changes and their effect on the fate of the mercury.
Accordingly, a sampling and monitoring program has been developed for
the site and is in the process of being implemented.
The only objection to the rule, submitted by a salvage company,
raised the following issues:
One comment suggested the reports the Coast Guard reviewed provided
no scientific basis in support of a permanent safety zone. The Coast
Guard disagrees. The scientific reports concluded that for now, the
site was stable and the mercury ``did not pose a substantial threat''
to the environment. The scientific conclusions were based on the
presumption that the wreck of the M/V EMPIRE KNIGHT would remain
undisturbed with the exception of its gradual decomposition from
natural forces. In addition to the scientific reports, the Coast Guard
also considered the negative effects on the local economy if consumer
confidence in the safety of the area's fisheries was lost. As a result,
access to the vessel needs to be regulated. In addition, the injuries
that may result from unrestricted recreational and commercial diving in
the area due to the attractive nuisance of a copper-laden sunken vessel
present a significant safety concern. The Coast Guard has determined a
safety zone is necessary to protest the general public from the
potential hazards and restrict access to the area.
Therefore, the United States Coast Guard, in consultation with the
Incident Specific Regional Response Team, has determined that, although
the current level of threat from the mercury cargo is low, any
disturbance of the wreck site, intentional or unintentional, poses an
unacceptable risk to the public health, New England area fisheries,
actual or perceptual, and the local environment.
Second, the salvage company stated that establishing a permanent
safety zone around the wreck of the M/V EMPIRE KNIGHT would case
irreparable harm to the firm by prohibiting them from conducting any
future salvage. While the Coast Guard recognizes that its action may
impede the ability of this company to conduct salvage, it was necessary
to balance that against the potential risk to the environment, human
health, and the local economy. The safety zone will continue in force
until rescinded by the Captain of the Port (COTP), Portland, Maine.
Regulatory Evaluation
This rulemaking is a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rulemaking to be so minimal that a full Regulatory Evaluation under
paragraph 10(e) of the regulatory policies and procedures of DOT is
unnecessary. This conclusion is based on the fact that the rulemaking
has no significant effect on shipping as it is not located in a
shipping channel, and its impact on fishing is minimal because it
restricts less than one square mile of the available fishing grounds.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities if a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For the reasons addressed under the Regulatory Evaluation above,
the Coast Guard finds that this rule will not have significant impact
on a substantial number of small entities.
[[Page 60032]]
Collection of Information
This rulemaking contains no collection-of-information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612, and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
rulemaking and concluded that, under paragraph 2.B.2.(e) of Commandant
Instruction M16474.1B, (as revised by 59 FR 38654, July 29, 1994), this
rule is categorically excluded from further environmental
documentation. A Categorical Exclusion Determination and an
Environmental Analysis Checklist are available in the docket.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water) Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons set out in the preamble, the Coast Guard proposes
to amend 33 CFR Part 165 as follows:
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. A new section 165.141 is added to read as follows:
Sec. 165.141 Safety Zone: Sunken vessel EMPIRE KNIGHT, Boon Island,
ME.
(a) Location. The following area is a safety zone: All waters of
the Atlantic Ocean within a 1,000 yard radius of the stern section of
the sunken vessel EMPIRE KNIGHT, in approximate position 43 deg.06'19''
N, 70 deg.27'09'' W, (NAD 1983) and extending from the water's surface
to the seabed floor.
(b) Effective date. This section is effective on August 23, 1996,
twenty-four hours a day, seven days a week.
(c) Regulations.
(1) The general regulations contained in 33 CFR 165.23 apply.
(2) 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, Portland, Maine. Innocent transit through the area
within the safety zone is not affected by this regulation and does not
require the authorization of the Captain of the Port.
(3) All persons and vessels shall comply with the instructions of
the COTP or the designated on scene patrol personnel. U.S. Coast Guard
patrol personnel include commissioned, warrant, and petty officers of
the Coast Guard. Upon being hailed by a U.S. Coast Guard vessel via
siren, radio, flashing light, or other means, the operator of a vessel
shall proceed as directed.
Dated: August 23, 1996.
Burton S. Russell,
Commander U.S. Coast Guard, Captain of the Port, Portland, Maine.
[FR Doc. 96-30228 Filed 11-25-96; 8:45 am]
BILLING CODE 4910-14-M
