[Federal Register: July 15, 2003 (Volume 68, Number 135)]
[Proposed Rules]
[Page 41764-41768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy03-25]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-03-018]
RIN 1625-AA00
Security and Safety Zone; Protection of Large Passenger Vessels,
Puget Sound, WA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes to establish regulations for the
security and safety of large passenger vessels in the navigable waters
of Puget Sound and adjacent waters, Washington. This proposed security
and safety zone, when enforced by the Captain of the Port Puget Sound,
would provide for the regulation of vessel traffic in the vicinity of
large passenger vessels in the navigable waters of the United States.
DATES: Comments and related material must reach the Coast Guard on or
before August 14, 2003.
ADDRESSES: You may mail comments and related material to Commanding
Officer, Marine Safety Office Puget Sound, 1519 Alaskan Way South,
Seattle, Washington 98134. Marine Safety Office Puget Sound maintains
the public docket [CGD13-03-018] for this rulemaking. Comments and
material received from the public, as well as documents indicated in
this preamble as being available in the docket, will become part of
this docket and will be available for inspection or copying at Marine
Safety Office Puget Sound between 8 a.m. and 4 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LT J. Morgan, c/o Captain of the Port
Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 217-6232.
For specific information concerning enforcement of this rule, call
Marine Safety Office Puget Sound at (206) 217-6200 or (800) 688-6664.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (CGD13-03-
018), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to Marine Safety Office Puget Sound at
the address under ADDRESSES explaining why one would be beneficial. If
we determine that one would aid this rulemaking, we will hold one at a
time and place announced by a separate notice in the Federal Register.
Background and Purpose
Hostile entities continue to operate with the intent to harm U.S.
National Security. The President has continued the national emergencies
he declared following the September 11, 2001 terrorist attacks (67 FR
58317, Sept. 13, 2002) (continuing national emergency with respect to
terrorist attacks)), and (67 FR 59447, Sept. 20, 2002) (continuing
national emergency with respect to persons who commit, threaten to
commit or support terrorism). The President also has found pursuant to
law, including the Act of June 15, 1917, as amended August 9, 1950, by
the Magnuson Act (50 U.S.C. 191 et seq.), that the security of the
United States is and continues to be endangered following the attacks
(E.O. 13,273, 67 FR 56215, Sept. 3, 2002) (security endangered by
disturbances in international relations of U.S. and such disturbances
continue to endanger such relations).
The ongoing hostilities in Afghanistan and Iraq have made it
prudent for U.S. ports and waterways to be on a higher state of alert
because the al Qaeda organization and other similar organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide. On February 8, 2003, the Captain of the Port Puget
Sound issued a temporary final rule (TFR) (68 FR 15375, March 31, 2003;
CGD13-03-003, 33 CFR 165.T13-002) establishing a large passenger vessel
security and safety zone, which expires on August 8, 2003. The Coast
Guard, through this action, intends to continue to assist large
passenger vessels by establishing a permanent security and safety zone
that when enforced by the Captain of the Port would exclude persons and
vessels from the immediate vicinity of all large passenger vessels.
[[Page 41765]]
Entry into this zone will be prohibited unless authorized by the
Captain of the Port or his designee. The Captain of the Port may be
assisted by other federal, state, or local agencies.
Discussion of Proposed Rule
This proposed rule, for security and safety concerns, would control
vessel movement in a regulated area surrounding large passenger
vessels. As a result of the request for comments in our TFR creating
Sec. 165.T13-002 , the Coast Guard received several comments regarding
the scope and impact of the TFR. We have considered these comments in
drafting this proposed rule. The following is a summary of the comments
the Coast Guard received.
One letter voiced concerns that the security and safety zone
established in the TFR denied the use of the commercial and
recreational facilities at Bell Harbor Marina, Shilshole Bay Marina,
Fisherman's Terminal and the Maritime Industrial Center when the
security and safety zone was enforced. In both the TFR and this
proposed rule, the Coast Guard is attempting to balance adequate
security around large passenger vessels against the impacts these
security and safety zones have on waterway users. In response to this
comment, the Coast Guard has made two changes to this propose rule.
First, the definition of Large Passenger Vessel in paragraph (b)(2) of
this proposed rule was modified and now excludes small passenger
vessels (vessels inspected and certificated under 46 CFR Subchapter T).
In other words, the number of vessels with security and safety zones
around them will decrease. Second, when a large passenger vessel is
moored, the exclusionary zone in this proposed rule will shrink from
100 yards to 25 yards.
The Coast Guard received one comment regarding the ``rules of the
road.'' The commenter stated that they believed that the TFR deviated
from specific navigation rules, which apply to the ``stand-on'' vessel.
The Coast Guard disagrees. Like the TFR, this proposed rule
specifically states that the Navigation Rules shall apply at all times
within a large passenger vessel security and safety zone. The duties of
a stand-on vessel are in part to keep her course and speed. Both the
TFR and this proposed rule require vessels operating within the large
passenger security and safety zone to operate at the minimum speed
necessary to maintain a safe course. Hence, if a vessel is within the
large passenger security and safety zone and is a stand-on vessel, the
requirements of the navigation rules and this proposed rule are the
same--to maintain course and speed unless action to avoid a collision
is necessary.
We also received comments in reference to the non-compliance or
inability for some vessels without VHF radios to communicate as
required with the large passenger vessel master and/or official patrol.
The commenters also noted that required communication with large
passenger vessels entering and exiting marinas rarely occurred and
caused a distraction for the large passenger vessels during critical
evolutions. Commenters also stated the required radio communications
were unnecessary and would clutter an important working channel. A
vessel is only required to contact the large passenger vessel master if
it desires to operate within 100 yards of a large passenger vessel that
is underway or at anchor. Vessels desiring to operate within 100 yards
of a large passenger vessel that is underway or at anchor should first
contact the on-scene official patrol. Once moored the exclusionary zone
around large passenger vessels will shrink from 100 yards to 25 yards.
Many comments discuss the need for greater public education and
awareness efforts. The Coast Guard intends to continue its practice of
notifying the public by a variety of means, including Broadcast Notice
to Mariners, Local Notice to Mariners, posting on Marine Safety Office
Puget Sound's Web site, press releases, and a telephone line manned 24
hours a day to answer questions.
This proposed rule would be enforced from time to time by the
Captain of the Port Puget Sound for such time as he deems necessary to
prevent damage or injury to any vessel or waterfront facility, to
safeguard ports, harbors, territories, or waters of the United States
or to secure the observance of the rights and obligations of the United
States. The Captain of the Port Puget Sound will cause notice of the
activation of this security and safety zone to be made by all
appropriate means to effect the widest publicity among the affected
segments of the public, including Marine Safety Office Puget Sound's
Internet web page located at http://www.uscg.mil/d13/units/msopuget. In
addition, Marine Safety Office Puget Sound maintains a telephone line
that is manned 24 hours a day, 7 days a week. The public can contact
Marine Safety Office Puget Sound at (206) 217-6200 or (800) 688-6664 to
obtain information concerning enforcement of this rule. For the purpose
of this regulation, a large passenger vessel means (i) any cruise ship
over 100 feet in length carrying passengers for hire, and (ii) any auto
ferries and passenger ferries over 100 feet in length carrying
passengers for hire such as the Washington State Ferries, M/V COHO and
Alaskan Marine Highway Ferries. Large Passenger Vessel does not include
vessels inspected and certificated under 46 CFR Subchapter T such as
excursion vessels, sight seeing vessels, dinner cruise vessels, and
whale watching vessels.
All vessels within 500 yards of a large passenger vessel shall
operate at the minimum speed necessary to maintain a safe course, and
shall proceed as directed by the official patrol. No vessel, except a
public vessel as defined in paragraph (b)(7), is allowed within 100
yards of a large passenger vessel that is underway or at anchor, unless
authorized by the official patrol or large passenger vessel master. No
vessel or person is allowed within 25 yards of a large passenger vessel
that is moored. Vessels requesting to pass within 100 yards of a large
passenger vessel that is underway or at anchor must contact the
official patrol on VHF-FM channel 16 or 13. The on-scene official
patrol or large passenger vessel master may permit vessels that can
only operate safely in a navigable channel to pass within 100 yards of
a large passenger vessel that is underway or at anchor in order to
ensure a safe passage in accordance with the Navigation Rules. In
addition, measures or directions issued by Vessel Traffic Service Puget
Sound pursuant to 33 CFR Part 161 shall take precedence over the
regulations in this proposed rule. Similarly, vessels at anchor may be
permitted to remain at anchor within 100 yards of passing large
passenger vessel. Public vessels for the purpose of this Rule are
vessels owned, chartered, or operated by the United States, or by a
State or political subdivision thereof.
Regulatory Evaluation
This proposed 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. It is not ``significant''
under the regulatory policies and procedures of the Department of
Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
and procedures of DHS is unnecessary.
Although this proposed rule would restrict access to the regulated
area, the effect of this proposed rule will not be
[[Page 41766]]
significant because: (i) Individual large passenger vessel security and
safety zones are limited in size; (ii) the official on-scene patrol or
large passenger vessel master may authorize access to the large
passenger vessel security and safety zone; (iii) the large passenger
vessel security and safety zone for any given transiting large
passenger vessel will effect a given geographical location for a
limited time; (iv) the Coast Guard will make notifications via maritime
advisories so mariners can adjust their plans accordingly; (v) the
reduction in the number and types of vessels covered by this proposed
rule as a result of comments received in response to the Large
Passenger Vessel Security Zone TFR; and (vi) the size of the
exclusionary zone was reduced from 100 yards to 25 yards for large
passenger vessels that are moored.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities.
This proposed rule would affect the following entities, some of
which may be small entities: The owners or operators of vessels
intending to operate near or anchor in the vicinity of large passenger
vessels in the navigable waters of the United States.
This proposed rule would not have a significant economic impact on
a substantial number of small entities for the following reasons: (i)
Individual large passenger vessel security and safety zones are limited
in size; (ii) the official on-scene patrol or large passenger vessel
master may authorize access to the large passenger vessel security and
safety zone; (iii) the large passenger vessel security and safety zone
for any given transiting large passenger vessel will effect a given
geographical location for a limited time; and (iv) the Coast Guard will
make notifications via maritime advisories so mariners can adjust their
plans accordingly.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. 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 one of the points of contact
listed under FOR FURTHER INFORMATION CONTACT.
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).
Collection of Information
This proposed rule would call 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 proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
The Coast Guard recognizes the rights of Native American Tribes
under the Stevens Treaties. Moreover, the Coast Guard is committed to
working with Tribal Governments to implement local policies to mitigate
tribal concerns. Given the flexibility of this proposed rule to
accommodate the special needs of mariners in the vicinity of large
passenger vessels and the Coast Guard's commitment to working with the
Tribes, we have determined that passenger vessel security and fishing
rights protection need not be incompatible and therefore have
determined that this proposed 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.
Nevertheless, Indian Tribes that have questions concerning the
provisions of this proposed rule or options for compliance are
encouraged to contact the point of contact listed under FOR FURTHER
INFORMATION CONTACT.
Energy Effects
We have analyzed this proposed 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
[[Page 41767]]
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.
Environment
The Coast Guard's preliminary review indicates this proposed rule
is categorically excluded from further environmental documentation
under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D.
The environmental analysis and Categorical Exclusion Determination will
be prepared and be available in the docket for inspection and copying
where indicated under ADDRESSES. All standard environmental measures
remain in effect.
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 proposes
to amend 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; 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. Add Sec. 165.1317 to read as follows:
Sec. 165.1317 Security and Safety Zone; Large Passenger Vessel
Protection, Puget Sound and adjacent waters, Washington
(a) Notice of enforcement or suspension of enforcement. The large
passenger vessel security and safety zone established by this section
will be enforced only upon notice by the Captain of the Port Puget
Sound. Captain of the Port Puget Sound will cause notice of the
enforcement of the large passenger vessel security and safety zone to
be made by all appropriate means to effect the widest publicity among
the affected segments of the public including publication in the
Federal Register as practicable, in accordance with 33 CFR 165.7(a).
Such means of notification may also include but are not limited to,
Broadcast Notice to Mariners or Local Notice to Mariners. The Captain
of the Port Puget Sound will issue a Broadcast Notice to Mariners and
Local Notice to Mariners notifying the public when enforcement of the
large passenger vessel security and safety zone is suspended.
(b) Definitions. The following definitions apply to this section:
(1) Federal Law Enforcement Officer means any employee or agent of
the United States government who has the authority to carry firearms
and make warrantless arrests and whose duties involve the enforcement
of criminal laws of the United States.
(2) Large Passenger Vessel means any cruise ship over 100 feet in
length carrying passengers for hire, and any auto ferries and passenger
ferries over 100 feet in length carrying passengers for hire such as
the Washington State Ferries, M/V COHO and Alaskan Marine Highway
Ferries. Large Passenger Vessel does not include vessels inspected and
certificated under 46 CFR chapter I, subchapter T such as excursion
vessels, sight seeing vessels, dinner cruise vessels, and whale
watching vessels.
(3) Large Passenger Vessel Security and Safety Zone is a regulated
area of water established by this section, surrounding large passenger
vessels for a 500-yard radius to provide for the security and safety of
these vessels.
(4) Navigation Rules means the Navigation Rules, International-
Inland.
(5) Navigable waters of the United States means those waters
defined as such in 33 CFR Part 2.
(6) Official Patrol means those persons designated by the Captain
of the Port to monitor a large passenger vessel security and safety
zone, permit entry into the zone, give legally enforceable orders to
persons or vessels with in the zone and take other actions authorized
by the Captain of the Port. Persons authorized in paragraph (l) of this
section to enforce this section are designated as the Official Patrol.
(7) Public vessel means vessels owned, chartered, or operated by
the United States, or by a State or political subdivision thereof.
(8) Washington Law Enforcement Officer means any General Authority
Washington Peace Officer, Limited Authority Washington Peace Officer,
or Specially Commissioned Washington Peace Officer as defined in
Revised Code of Washington section 10.93.020.
(c) Security and safety zone. There is established a large
passenger vessel security and safety zone extending for a 500-yard
radius around all large passenger vessels located in the navigable
waters of the United States in Puget Sound, WA, east of 123[deg]30'
West Longitude. [Datum: NAD 1983]
(d) Compliance. The large passenger vessel security and safety zone
established by this section remains in effect around large passenger
vessels at all times, whether the large passenger vessel is underway,
anchored, or moored. Upon notice of enforcement by the Captain of the
Port Puget Sound, the Coast Guard will enforce the large passenger
vessel security and safety zone in accordance with rules set out in
this section. Upon notice of suspension of enforcement by the Captain
of the Port Puget Sound, all persons and vessels are authorized to
enter, transit, and exit the large passenger vessel security and safety
zone, consistent with the Navigation Rules.
(e) Navigation Rules. The Navigation Rules shall apply at all times
within a large passenger vessel security and safety zone.
(f) Restrictions based on distance from large passenger vessel.
When within a large passenger vessel security and safety zone all
vessels must operate at the minimum speed necessary to maintain a safe
course and must proceed as directed by the on-scene official patrol or
large passenger vessel master. No vessel or person is allowed within
100 yards of a large passenger vessel that is underway or at anchor,
unless authorized by the on-scene official patrol or large passenger
vessel master. No vessel or person is allowed within 25 yards of a
large passenger vessel that is moored.
(g) Requesting authorization to operate within 100 yards of large
passenger vessel. To request authorization to operate within 100 yards
of a large passenger vessel that is underway or at anchor, contact the
on-scene official patrol or large passenger vessel master on VHF-FM
channel 16 or 13.
(h) Maneuver-restricted vessels. When conditions permit, the on-
scene official patrol or large passenger vessel master should:
(1) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to pass within 100 yards of a
large passenger vessel in order to ensure a safe passage in accordance
with the Navigation Rules; and
(2) Permit vessels that must transit via a navigable channel or
waterway to pass within 100 yards of an anchored large passenger vessel
or within 25 yards of a moored large passenger vessel with minimal
delay consistent with security.
(i) Stationary vessels. When a large passenger vessel approaches
within 100 yards of any vessel that is moored or anchored, the
stationary vessel must stay moored or anchored while it
[[Page 41768]]
remains with in the large passenger vessel's security and safety zone
unless it is either ordered by, or given permission by the Captain of
the Port Puget Sound, his designated representative or the on-scene
official patrol to do otherwise.
(j) Exemption. Public vessels as defined in paragraph (b) of this
section are exempt from complying with paragraphs (c), (d), (f), (g),
(h), and (i), of this section.
(k) Exception. 33 CFR part 161 contains Vessel Traffic Service
regulations. Measures or directions issued by Vessel Traffic Service
Puget Sound pursuant to 33 CFR part 161 will take precedence over the
regulations in this section.
(l) Enforcement. Any Coast Guard commissioned, warrant or petty
officer may enforce the rules in this section. In the navigable waters
of the United States to which this section applies, when immediate
action is required and representatives of the Coast Guard are not
present or not present in sufficient force to provide effective
enforcement of this section in the vicinity of a large passenger
vessel, any Federal Law Enforcement Officer or Washington Law
Enforcement Officer may enforce the rules contained in this section
pursuant to 33 CFR 6.04-11. In addition, the Captain of the Port may be
assisted by other federal, state or local agencies in enforcing this
section.
(m) Waiver. The Captain of the Port Puget Sound may waive any of
the requirements of this section for any vessel or class of vessels
upon finding that a vessel or class of vessels, operational conditions
or other circumstances are such that application of this section is
unnecessary or impractical for the purpose of port security, safety or
environmental safety.
Dated: June 20, 2003.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 03-17723 Filed 7-14-03; 8:45 am]
BILLING CODE 4910-15-P