[Federal Register: January 14, 2004 (Volume 69, Number 9)]
[Rules and Regulations]
[Page 2066-2069]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja04-5]
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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: Final rule.
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SUMMARY: The Coast Guard is establishing regulations for the security
and safety of large passenger vessels in the navigable waters of Puget
Sound and adjacent waters, Washington. This security and safety zone,
when enforced by the Captain of the Port Puget Sound, provides for the
regulation of vessel traffic in the vicinity of large passenger vessels
in the navigable waters of the United States, Puget Sound and adjacent
waters, WA.
DATES: This rule is effective February 8, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket CGD13-03-018 and are available for inspection or
copying at Commanding Officer, Marine Safety Office Puget Sound, 1519
Alaskan Way South, Seattle, Washington 98134 between 8 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LTjg T. Thayer, c/o Captain of the
Port Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 217-
6232.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On July 15, 2003, we published a notice of proposed rulemaking
(NPRM)
[[Page 2067]]
entitled Security and Safety Zone; Protection of Large Passenger
Vessels, Puget Sound, WA in the Federal Register (68 FR 41764). We
received no comments on the proposed rule. A public hearing was not
requested and none was held.
The Coast Guard finds that good cause exists to make this rule
effective less than 30 days after publication. This final rule
continues regulations that were established in a temporary final rule
(68 FR 49359), which ends on February 7, 2004. The requirements are
necessary to ensure the safety and security of large passenger vessels
in Puget Sound, and need to be continuous to be effective.
Background and Purpose
On March 31, 2003, the Captain of the Port Puget Sound published a
Temporary Final Rule (TFR) (68 FR 15375, CGD 13-03-003, 33 CFR Sec.
165.T13-002) establishing security and safety zones for the protection
of large passenger vessels, which expired on August 8, 2003. The TFR
also requested public comment. On June 20, 2003, the Captain of the
Port Puget Sound issued a Notice of Proposed Rule Making (NPRM)
entitled Security and Safety Zone; Protection of Large Passenger
Vessels, Puget Sound, WA. This NPRM was published in the Federal
Register on July 15, 2003 (68 FR 41764). In drafting the proposed rule,
the Coast Guard considered comments it received in response to the TFR.
In general, the comments concerned the scope and impact of the TFR.
See, Discussion of Proposed Rule, 68 FR at 41765. In response to these
comments, the Coast Guard modified the definition of large passenger
vessel by excluding small passenger vessels (vessels inspected and
certificated under 46 CFR Chapter I, Subchapter T) thereby decreasing
the number of vessels with security and safety zones around them. In
addition, the Coast Guard reduced the size of the exclusionary zone
from 100 yards to 25 yards for a large passenger vessel that is moored.
The original TFR, expired before the notice and comment period in
the NPRM closed. Rather than extend the original TFR, the Captain of
the Port Puget Sound published a second TFR on August 18, 2003, which
was substantially the same as the proposed rule (68 FR 49359, CGD 13-
03-026, 33 CFR 165.T13-017). There were no comments received regarding
the second TFR.
This final rule will 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 certain large passenger vessels. Hostile entities continue
to operate with the intent to harm U.S. National Security by attacking
or sabotaging national security assets. 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)); 67 FR 59447 ((Sept. 20,
2002) continuing national emergency with respect to persons who commit,
threaten to commit or support terrorism)); 68 FR 55189 ((Sept. 22, 2003
(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
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). Moreover, the ongoing hostilities
in Afghanistan and Iraq make 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.
Discussion of Comments and Changes
No comments were received by the Coast Guard as a result of the
request for comments in our NPRM. However, as discussed above, the
Coast Guard considered comments received regarding the scope and impact
of the original TFR in drafting the proposed rule. See, Discussion of
Proposed Rule, 68 FR at 41765.
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 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 rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary.
Although this rule restricts access to the regulated area, the
effect of this rule will not be 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 rule as a result of comments received in response to
the original 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 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 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 operate
near or anchor in the vicinity of large passenger vessels in the
navigable waters of the United States.
This rule will 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; (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 rule as a result of comments
[[Page 2068]]
received in response to the original 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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
received no requests for assistance.
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 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 would 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 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 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 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 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 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.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraph (34) of Commandant
Instruction M16475.lD, that this rule is categorically excluded from
further environmental documentation. This rule fits this categorical
exclusion because it is a security and safety zone. A Categorical
Exclusion Determination is available in the docket for inspection and
copying where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
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
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; 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.
0
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:
[[Page 2069]]
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.
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.
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.
Navigable waters of the United States means those waters defined as
such in 33 CFR part 2.
Navigation Rules means the Navigation Rules, International--Inland.
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 within the zone and take other actions authorized by the
Captain of the Port. Persons authorized in paragraph (l) to enforce
this section are designated as the Official Patrol.
Public vessel means vessels owned, chartered, or operated by the
United States, or by a State or political subdivision thereof.
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) The Navigation Rules shall apply at all times within a large
passenger vessel security and safety zone.
(f) 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) 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) 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) 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 remains within 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. When measures or directions issued by Vessel Traffic
Service Puget Sound pursuant to 33 CFR part 161 also apply, the
regulations govern rather than 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: December 10, 2003.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 04-747 Filed 1-13-04; 8:45 am]
BILLING CODE 4910-15-P