05-657. Safety Zone; Bering Sea, Aleutian Islands, Unalaska Island, AK

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone in the Bering Sea, west of and including Makushkin Bay, Unalaska Island, Alaska. The zone is needed to facilitate oil spill recovery operations related to the grounding of the merchant vessel (M/V) SELENDANG AYU, and to mitigate damage to the environment during oil spill recovery operations. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Commander, Seventeenth Coast Guard District, the Coast Guard Captain of the Port, Western Alaska, or their on-scene representative.

DATES:

This rule is effective from December 11, 2004 through June 11, 2005.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are available for inspection and copying at Coast Guard Marine Safety Office Anchorage, 510 “L” Street, Suite 100, Anchorage, AK 99501. Normal Office hours are 7:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

LT Meredith Gillman, Marine Safety Office Anchorage, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Any delay encountered in this regulation's effective date would be contrary to public interest because immediate action is needed to prevent unauthorized vessel traffic from hindering oil spill recovery operations.

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. The Safety Zone is being implemented in response to the unplanned grounding of the M/V SELENDANG AYU. Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest, since immediate action is needed to mitigate damage to the environment during oil spill recovery operations. The Coast Guard will terminate the zone when oil recovery operations are complete and the area adjacent to the grounded vessel is considered safe to vessel traffic.

Background and Purpose

The M/V SELENDANG AYU ran aground at a position of 53.634° N, 167.125° W on December 9, 2004. The vessel then broke in half and began discharging its fuel into the water. The safety zone is necessary to prevent unauthorized vessels from transiting through the oiled waters or otherwise impeding oil recovery operations.

Discussion of Rule

The Unified Command, which is responding to the grounding of the M/V Selendang Ayu, identified the likely oil trajectory based on the geography of the region, as well as possible wind and weather scenarios. The safety zone was established in the area that is likely to become oiled, and where subsequent oil recovery operations will be taking place. This area is defined by a point at the western tip of Cape Kovrizhka, Unalaska Island, located at 53°51.0′ N, 167°9.5′ W, then west 10 nautical miles to a point located at 53°51.0′ N, 167°26′ W, then south to the northern tip of Wedge Point, Unalaska Island, located at 53°27′ N, 167°24′ W. All coordinates reference Datum: NAD 1983.

Regulatory Evaluation

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 cost and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 or anchor in the area defined by a point at the western tip of Cape Kovrizhka, Unalaska Island, located at 53°51.0′ N, 167°9.5′ W, then west 10 nautical miles to a point located at 53°51.0′ N, 167°26′ W, then south to the northern tip of Wedge Point, Unalaska Island, located at 53°27′ N, 167°24′ W.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Vessel traffic transiting from the north to south side of Unalaska Island can pass safely around the safety zone. We will terminate the safety zone once oil recovery operations are complete and the area adjacent to the grounded vessel is considered safe for vessel traffic.

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 Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). A final “Environmental Analysis Check List” and a final “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 set out in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

PART 165—[AMENDED]

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; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. From December 11, 2004 to June 11, 2005, add temporary § 165.T17-010 to read as follows:

§ 165.T17-010

Safety Zone; Bering Sea, Aleutian Islands, Unalaska Island, AK.

(a) Description. The safety zone is defined by a point at the western tip of Cape Kovrizhka, Unalaska Island, located at 53°51.0′ N, 167°9.5′ W, then west 10 nautical miles to a point located at 53°51.0′ N, 167°26′ W, then south to the northern tip of Wedge Point, Unalaska Island, located at 53°27′ N, 167°24′ W. All coordinates reference Datum: NAD 1983.

(b) Enforcement period. The safety zones in this section will be enforced from December 11, 2004 through June 11, 2005.

(c) Regulations. (1) The Captain of the Port and the Duty Officer at Marine Safety Office, Anchorage, Alaska can be contacted at telephone number [phone].

(2) The Captain of the Port may authorize and designate any Coast Guard commissioned, warrant, or petty officer to act on his behalf in enforcing the safety zone.

(3) The general regulations governing safety zones contained in § 165.23 apply. No person or vessel may enter or remain in this safety zone, with the exception of attending vessels, without first obtaining permission from the Captain of the Port or his on-scene representative

Dated: December 21, 2004.

R.J. Morris,

Captain, U.S. Coast Guard, Captain of the Port, Western Alaska.