Safety Zone; DEEPWATER HORIZON Response Staging Area in the Vicinity of Shell Beach, Hopedale, LA

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The New Orleans Captain of the Port (COTP), under the authority of the Ports and Waterways Safety Act, has established a safety zone requiring no wake on the Mississippi River Gulf Outlet (MRGO) at Mile 42 extending the entire width of the MRGO 500 yards above and 500 yards below the response staging area. This safety zone is necessary to protect personnel and vessels at the response staging area at Shell Beach in Hopedale, LA in response to the DEEPWATER HORIZON oil spill. Vessels must travel at a safe speed and distance to maintain a no wake zone in this area.

DATES:

This rule is effective in the CFR from July 27, 2010 until 11:59 p.m. on September 24, 2010. This rule is effective with actual notice for purposes of enforcement beginning June 24, 2010 upon signature. This rule will remain in effect until 11:59 p.m. on September 24, 2010.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0622 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0622 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 Lieutenant Commander (LCDR) Marty Daniels, Sector New Orleans, Coast Guard; telephone 504-565-5044, e-mail William.M.Daniels@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. It would be impracticable to issue an NPRM for this rule, because a safety zone is needed immediately to protect personnel and vessels associate with response operations at the staging area at Shell Beach.

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. Potential safety hazards associated with response activities at this location prohibits regularly issued safety zones.

Basis and Purpose

This response staging area is in support of the DEEPWATER HORIZON oil spill clean-up effort. This safety zone requires that vessels maintain the slowest safe speed to maintain steerage. This rule is needed to protect members of the response effort by creating a no wake zone in the vicinity of the staging area. In addition, the rule is needed to protect mariners transiting in or through the area from the dangers associated with navigating around equipment deployed in support of the clean-up efforts.

Discussion of Rule

The Coast Guard is establishing a safety zone encompassing the coastal areas affected by the DEEPWATER HORIZON oil spill on the Mississippi River Gulf Outlet (MRGO) at Mile 42 at Shell Beach. The safety zone will encompass the entire width of the MRGO, 500 yards above and 500 yards below the response staging area. In accordance with the general regulation in § 165.23 of this part, vessels must transit at the slowest safe speed to allow for steerage to comply with the no wake zone located in (a)(1). Vessels must exercise caution when transiting this area to observe the no wake zone. The Coast Guard will enforce this safety zone from June 24 through September 24, 2010.

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 an emergency regulatory action under section 6(a)(3)(D) of Executive Order 12866, Regulatory Planning and Review, and requires compliance with the ordinary review procedure to the extent practicable. The Office of Management and Budget has not reviewed it under that Order.

This rule has been deemed an emergency regulatory action after consultation with the Eighth Coast Guard District Legal Office, CG-0941 and CG-0943. Although this regulation will restrict access to the area, the effect of the rule will not be significant because the safety zone will only be in place for a limited specified time period and is for a limited size and notice will be provided to the maritime community through Safety Broadcast Notice to Mariners and Marine Safety Information Bulletins. Additionally, persons or vessels requiring deviations from this rule may request permission from the Captain of the Port New Orleans.

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 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 the MRGO at Mile 42 in the vicinity of the DEEPWATER HORIZON oil spill response staging area at Shell Beach and where oil spill response activities are taking place. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the safety zone will only be in place for a limited specified time period and is for a limited size; notice will be provided to the maritime community through Safety Broadcast Notice to Mariners and Marine Safety Information Bulletins; and persons or vessels requiring deviations from this rule may request permission from the Captain of the Port New Orleans. Finally, we note that vessels can transit the area, but merely must do so at reduced speeds.

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 (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.

Taking of Private Property

This rule will not cause 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 establishment of a safety zone.

Under figure 2-1, paragraph (34)(g), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are required for this rule because it concerns a situation of more than 1 week in duration. An environmental analysis checklist and a categorical exclusion determination will be made available in the docket upon publication in the Federal Register.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine Safety
• Navigation (water)
• Reporting and record-keeping 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(g), 6.06-1, 6.05-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T08-0622 to read as follows: