[Federal Register: August 18, 2003 (Volume 68, Number 159)]
[Rules and Regulations]
[Page 49359-49362]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au03-21]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-03-026]
RIN 1625-AA00
Security and Safety Zone; Protection of Large Passenger Vessels,
Puget Sound, WA
AGENCY: Coast Guard, DHS.
ACTION: Temporary 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
will provide for the regulation of vessel traffic in the vicinity of
large passenger vessels in the navigable waters of the United States.
DATES: This rule is effective from August 8, 2003, until February 8,
2004.
ADDRESSES: Documents as indicated in this preamble are available for
inspection or copying at the U.S. Coast Guard Marine Safety Office
Puget Sound, 1519 Alaskan Way South, Building 1, Seattle, Washington
98134. Normal office hours are between 8 a.m. and 4 p.m., Monday
through Friday, except federal holidays.
FOR FURTHER INFORMATION CONTACT: ENS Tyana Thayer c/o Captain of the
Port Puget Sound, (206) 217-6222.
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) and 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for not publishing an NPRM and for
making this rule effective less than 30 days after publication in the
Federal Register. Publishing a NPRM would be contrary to public
interest since immediate action is necessary to continue to safeguard
large passenger vessels from sabotage, other subversive acts, or
accidents. If normal notice and comment procedures were followed, this
rule would not become effective soon enough to provide immediate
protection to large passenger vessels from threats posed by hostile
entities and would compromise the vital national interest in protecting
maritime transportation and commerce. The security and safety zone in
this regulation has been carefully designed to minimally impact the
public while providing a reasonable level of protection for large
passenger vessels. For this reason, following normal rulemaking
procedures in this case would be impracticable and contrary to the
public interest.
Background and Purpose
On March 31, 2003, the Captain of the Port Puget Sound published a
temporary final rule (TFR) (68 FR 15375, CGD13-03-003, 33 CFR 165.T13-
002) establishing security and safety zones for the protection of large
passenger vessels, which expires on August 8, 2003. On June 20, 2003,
the Captain of the Port Puget Sound issued a notice of proposed
rulemaking (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 received regarding
the scope and impact of the original 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 intent behind the rule proposed in the NPRM was 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. However, the original TFR, which was published on March 31,
will expire before the notice and comment period in the NPRM closes. In
other words, a permanent security and safety zone will not become
effective before the original TFR expires.
The Captain of the Port Puget Sound deems it necessary that a
security and safety zone around large passenger vessels continue to be
in effect until such time as a permanent rule is established. Rather
than extend the previous TFR, the Captain of the Port Puget Sound is
issuing this TFR, which is not substantially different from the
proposed rule. To date, the Coast Guard has not received any comments
regarding the rule proposed in the NPRM.
Discussion of Rule
This rule, for security and safety concerns, will control vessel
movement in a regulated area surrounding large passenger vessels. For
the purpose of this rule, a 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. All vessels within 500 yards of large
passenger vessels must operate at the minimum speed necessary to
maintain a safe course, and must proceed as directed by the official
patrol. No vessel, except a public vessel (as defined in 33 CFR
165.T13-017(a)), 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.
Vessels requesting to pass within 100 yards of a large passenger vessel
that is underway or at anchor shall contact the on-scene official
patrol or large passenger vessel master 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
[[Page 49360]]
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 temporary final rule.
Similarly, 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 in the large passenger vessels
security and safety zone unless it is either ordered by, or given
permission by the Captain of the Port, his designated representative or
the on-scene official patrol to do otherwise. Public vessels for the
purpose of this temporary final rule are vessels owned, chartered, or
operated by the United States, or by a State or political subdivision
thereof.
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.
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 paragraph 10e of the regulatory
policies and procedures of DOT is unnecessary.
Although this regulation restricts access to the regulated area,
the effect of this regulation will not be significant because: (i)
Individual large passenger vessel security and safety zones are limited
in size; (ii) the on-scene official 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.
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 may 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 to which this rule applies.
This temporary regulation 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 on-scene official patrol or large
passenger vessel master may authorize access to the large passenger
vessel security and safety zone; (iii) the passenger vessel security
and safety zone for any given transiting large passenger vessel will
affect a given geographic location for a limited time; and (iv) the
Coast Guard will make notifications via maritime advisories so mariners
can adjust their plans accordingly.
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 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 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 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 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 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 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 rule to accommodate the
special needs of mariners in the vicinity of large passenger vessels
and the Coast Guard's
[[Page 49361]]
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
The Coast Guard's preliminary review indicates this 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.
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.
0
2. From August 8, 2003, until February 8, 2004, temporary Sec.
165.T13-017 is added to read as follows:
Sec. 165.T13-017 Security and Safety Zone; Large Passenger Vessel
Protection, Puget Sound and adjacent waters, Washington.
(a) Definitions. The following definitions apply to this section:
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 (k) 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.
(b) 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]
(c) 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.
(d) Navigation Rules applicability. The Navigation Rules shall
apply at all times within a large passenger vessel security and safety
zone.
(e) 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.
(f) 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.
(g) 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.
(h) 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 49362]]
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.
(i) Exemption. Public vessels as defined in paragraph (a) of this
section are exempt from complying with paragraphs (b), (c), (e), (f),
(g), and (h), of this section.
(j) 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.
(k) 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.
(l) 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: August 8, 2003.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 03-21087 Filed 8-15-03; 8:45 am]
BILLING CODE 4910-15-P