[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Rules and Regulations]
[Pages 6033-6035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01794]


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DEPARTMENT OF HOMELAND SECURITY

 Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-1088]
RIN 1625-AA00


Safety Zone; MODU KULLUK; Sitkalidak Island to Kiliuda Bay, AK

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
navigable waters, from surface to seabed, around the MODU KULLUK 
currently located near Ocean Bay, Sitkalidak Island, Alaska with 
anticipated movement into Kiliuda Bay, Alaska. The temporary safety 
zone will encompass the navigable waters within a one nautical mile 
radius of the MODU KULLUK while it is aground near Sitkalidak Island 
and will decrease to encompass the navigable waters within 500 yards of 
the MODU KULLUK while it is being towed through and anchored within 
Kiliuda Bay. The purpose of the safety zones is to protect persons and 
vessels from the inherent dangers of salvage, towing and recovery 
operations of the MODU KULLUK. This safety zone in effect continues the 
temporary safety zone that was established immediately following the 
MODU KULLUK grounding and provides a longer effective period in 
anticipation of extended salvage efforts and eventual tow to another 
location.

DATES: This rule is effective with actual notice from January 6, 2013 
until January 29, 2013. This rule is effective in the Federal Register 
from January 29, 2013 until March 31, 2013.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0668 and are available online 
by going to http://www.regulations.gov, inserting USCG-2012-1088 in the 
``Search'' 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 email LCDR John Cashman, U.S. Coast Guard, Seventeenth Coast 
Guard District; telephone 907-463-2058, [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: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and 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 because doing so would be impracticable. The 
MODU KULLUK grounded during severe weather in the vicinity of 
Sitkalidak Island and response, recovery and salvage efforts began 
immediately. A temporary final rule (USCG-2011-0668) was issued on 
January 2, 2013 creating a safety zone one nautical mile around the 
MODU KULLUK. This new temporary final rule is established to cover the 
anticipated time necessary for salvage operations, the towing of MODU 
KULLUK to Kiliuda Bay and the operations necessary to assess and repair 
the vessel.
    For similar reasons, 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 because immediate 
action is needed to minimize potential danger to the public during the 
period of time when there will be unusually high vessel traffic engaged 
in conducting the salvage operations in the vicinity of Ocean Bay, 
Sitkalidak Island, Alaska and during the tow and recovery of MODU 
KULLUK in Kiliuda Bay.

[[Page 6034]]

B. Basis and Purpose

    The MODU KULLUK unexpectedly grounded during severe weather in the 
vicinity of Sitkalidak Island, Alaska, precipitating a salvage and 
recovery operation. The Coast Guard believes a safety zone is needed 
based on the significant number of persons, vessels and activities 
necessary to conduct salvage of the MODU KULLUK, a non-self-propelled 
vessel. The salvage operations are expected to involve a large number 
of vessels, including tow vessels, pollution response vessels and dive 
vessels. The salvage, tow and recovery operations including towing and 
anchoring the vessel, assessment and repair is anticipated to take up 
to 90 days.
    A temporary safety zone is needed to ensure vessels engaged in the 
salvage operation are able to maneuver unimpeded in the vicinity of the 
MODU KULLUK and to keep other mariners a safe distance from heavy 
equipment, large vessels, cables, divers and other activities involved 
in the salvage operations occurring in the vicinity of Ocean Bay and 
Partition Cove on the South side of Sitkalidak Island near Kodiak 
Island, Alaska and during the towing, anchoring, assessment and repairs 
of the MODU KULLUK that will take place within the navigable waters of 
Kiliuda Bay.

C. Discussion of Final Rule

    For the reasons stated above, the Coast Guard is establishing a 
safety zone in the navigable waters, from surface to seabed, within a 
one nautical mile radius of the MODU KULLUK while it is aground near 
Ocean Bay, Sitkalidak Island, and for all navigable waters, from 
surface to seabed, within 500 yards of the MODU KULLUK at all other 
times once it is floating free from the seabed, from January 6, 2013 
through March 31, 2013. If the salvage and recovery operations are 
completed, and the safety zone is determined to be no longer necessary, 
enforcement of the zone will end prior to March 31, 2013.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The rule is not a significant regulatory action due to the minimal 
impact this will have on standard vessel operations within the vicinity 
of Sitkalidak Island and Kiliuda Bay during the winter months and it 
will be enforced for a short duration. The proposed safety zone is 
designed to allow vessels transiting through the area to safely travel 
around the MODU KULLUK salvage operation, towing and recovery areas 
without incurring additional cost or delay.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 
would not have a significant economic impact on a substantial number of 
small entities. This rule would affect the following entities, some of 
which might be small entities: The owners or operators of vessels 
intending to transit through or anchor in the vicinity of Ocean Bay, 
Sitkalidak Island or within Kiliuda Bay in the vicinity of the MODU 
KULLUK from January 6, 2013 to March 31, 2013.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
rule will be effective for a short period of time, enforcement will end 
once the salvage operations are completed and the zone is limited to 
the waters within one nautical mile of the MODU KULLUK while aground 
and within 500 yards of the MODU KULLUK while it is towed or at anchor 
within Kiliuda Bay. Minimal use of the waterway is expected due to the 
winter weather conditions.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for the collection of new information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INTFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 (adjusted for 
inflation) 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.

[[Page 6035]]

8. Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

9. 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.

10. 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 will not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 involves establishing regulations for a safety zone. This 
rule is categorically excluded from further review under paragraph 
34(g) of Figure 2-1 of the Commandant Instruction. An environmental 
analysis checklist supporting this determination and a Categorical 
Exclusion Determination are available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this rule.

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 is 
amending 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. 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. 0171.1.

0
2. Add Sec.  165.T17-1088 to read as follows:


Sec.  165.T17-1088  Safety Zone; MODU KULLUK, Ocean Bay, Sitkalidak 
Island and Shelikof Strait, Alaska.

    (a) Location. The following areas are safety zones: All navigable 
waters, from the surface to the seabed, within one nautical mile of the 
MODU KULLUK, a large ocean-going drill vessel, while it is aground in 
the vicinity of Ocean Bay and Partition Cove, Sitkalidak Island, 
Alaska, in approximate position 57 degrees, 05.4' N; 153 degrees, 06.1' 
W and all navigable waters, from surface to seabed, within 500 yards of 
the MODU KULLUK, once it is floating free from the seabed including 
times that it is under tow and at anchor in the vicinity of Kodiak 
Island and Kiliuda Bay, Alaska.
    (b) Effective date. The safety zone is effective beginning January 
6, 2013, and terminates at 11:59 p.m. on March 31, 2013. Enforcement of 
this safety zone may end earlier if ordered by the Captain of the Port, 
Western Alaska.
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to all vessels operating within the 
areas described in paragraph (a). In addition to the general 
regulations, the following provisions apply to this safety zone:
    (1) All persons and vessels shall comply with the instructions of 
the Captain of the Port (COTP) or designated on-scene representative, 
consisting of commissioned, warrant, and petty officers of the Coast 
Guard. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of a vessel shall proceed 
as directed by the COTP's designated on-scene representative.
    (2) Entry into the safety zone is prohibited unless authorized by 
the COTP or his designated on-scene representative. Any persons 
desiring to enter the safety zone must contact the designated on-scene 
representative on VHF channel 16 (156.800 MHz) and receive permission 
prior to entering.
    (3) If permission is granted to transit within the safety zone, all 
persons and vessels must comply with the instructions of the designated 
on-scene representative.
    (4) The COTP will notify the maritime and general public by marine 
information broadcast during the period of time that the safety zones 
are in force including notification that the MODU KULLUK is free from 
the ocean bottom and the subsequent reduction in size of the safety 
zone by providing notice in accordance with 33 CFR 165.7.
    (d) Penalties. Persons and vessels violating this rule are subject 
to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: January 6, 2013.
P. Mehler, III,
Captain, U.S. Coast Guard, Captain of the Port, Western Alaska.
[FR Doc. 2013-01794 Filed 1-28-13; 8:45 am]
BILLING CODE 9110-04-P