[Federal Register: March 31, 2003 (Volume 68, Number 61)]
[Rules and Regulations]
[Page 15372-15375]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr03-24]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-02-018]
RIN 1625-AA00 [Formerly 2115-AA97]
Security Zone: Protection of Tank Ships, Puget Sound, WA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: In order to promptly respond to an increase in the Coast
Guard's maritime security posture, the Coast Guard is establishing
regulations for the security of tank ships in the navigable waters of
Puget Sound and adjacent waters, Washington. This security zone, when
enforced by the Captain of the Port Puget Sound, will provide for the
regulation of vessel traffic in the vicinity of tank ships in the
navigable waters of the United States, Puget Sound and adjacent waters,
WA.
DATES: This section is effective April 15, 2003.
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 CGD13-02-018 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 R. S. Teague, c/o Captain of the
Port Puget Sound, (206) 217-6232.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On December 27, 2002, we published a notice of proposed rulemaking
(NPRM) entitled Security Zone: Protection of Tank Ships, Puget Sound,
WA in the Federal Register (67 FR 79017). We received one letter
commenting on the proposed rule. No public hearing was requested, and
none was held.
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. The Coast Guard promulgated a
temporary final rule (67 FR 66335) establishing security zones around
tank ships in Puget Sound that expires on April 15, 2003. This final
rule does not substantively differ from the temporary final rule. Both
the TFR and this rule were established to increase the Coast Guard's
maritime security posture by providing for the security of tank ships
in the navigable waters of Puget Sound. The Captain of the Port Puget
Sound deems it necessary that the security zone around tank ships
continue to be in effect. Rather than extend the TFR or issue a new TFR
the Coast Guard is making this final rule effective upon publication in
the Federal Register. A notice of enforcement will be simultaneously
published in the Federal Register with this rule.
Background and Purpose
Recent events highlight the fact that there are hostile entities
operating 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)), (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)).
On October 15, 2002, the Captain of the Port Puget Sound issued a
TFR (67 FR 66335, CGD13-02-015, 33 CFR 165.T13-011) establishing
security zones for tank ship protection, which expires on April 15,
2003. The Coast Guard, through this action, will assist tank ships by
establishing a permanent security zone, which when enforced by the
Captain of the Port would exclude persons and vessels from the
immediate vicinity of all tank ships. 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 Comments and Changes
In our NPRM, we stated that the Captain of the Port from time to
time would publish or provide notice of ``activation'' of the proposed
security zone. In this final rule, we have replaced the word
``activation'' with the word ``enforcement'' to clarify what we mean.
Security zones are established by rulemaking procedures, which
necessarily includes notice and
[[Page 15373]]
comment and other required procedures. Notice to the public that a
given security zone has been established through those required
procedures is normally done by the methods set out in 33 CFR 165.7, and
may include broadcasts and publication in the Federal Register.
However, a security zone cannot be legally established only by mere
notice to the public, using the methods described in 33 CFR 165.7.
Because the word ``activation'' may connote ``establishment'' to some
members of the public, for purposes of clarity, we have changed it to
read ``enforcement.'' The result of this change will be that the rule
will operate to legally establish a security zone around all tank
vessels in the Puget Sound area, and the Captain of the Port will keep
the public informed via the methods described in the rule as to when
the Coast Guard will enforce the security zone and when it will not.
The rule provides blanket authorization for all persons and vessels to
enter, transit, and depart the security zone during periods when the
Coast Guard has suspended enforcement thereof. Decisions to enforce or
suspend enforcement of the security zone remain within the discretion
of the Captain of the Port.
We received one letter with two comments. The first comment
concerned the methods of notifying the public when the security zone
was activated. The commenter suggested the notification be located on
the 13th Coast Guard District Web page and possibly obtaining an 800
number. In addition to notifying the public through the Federal
Register, Broadcast Notice to Mariners, Local Notice Mariners, and
press releases, the COTP will also publish the enforcement notice via
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. Given the various other methods the Coast
Guard intends to utilize to notify the public regarding the enforcement
of this rule and the manned telephone lines, the Coast Guard finds that
an additional 800 number would be costly and would not significantly
improve public notification. Accordingly, the Coast Guard does not
intend to purchase a separate 800 number.
The second comment addressed the VHF-FM channels that the tank ship
would be monitoring. The commenter suggested that to avoid unanswered
calls, anyone needing to enter the 100-yard exclusion zone should
contact the on-scene official patrol or tank ship master on channel 13
only. If an on-scene official patrol is enforcing the zone, vessels
should contact the on-scene official patrol on channel 16. In the
absence of an official patrol, the vessel should contact the tank ship
master on channel 13.
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.
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 rule would restrict access to a 500-yard area
surrounding tank ships, the effect of this rule will not be significant
because: (i) Individual tank ship security zones are limited in size;
(ii) the on-scene official patrol or tank ship master may authorize
access to the tank ship security zone; (iii) the tank ship security
zone for any given transiting tank ship 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
would 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 tank ships in the navigable waters of
the United States.
This rule would not have a significant economic impact on a
substantial number of small entities for the following reasons: (i)
Individual tank ship security zones are limited in size; (ii) The on-
scene official patrol or tank ship master may authorize access to the
tank ship security zone; (iii) the tank ship security zone for any
given transiting tank ship 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 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they could better evaluate
its effects on them and participate in the rulemaking.
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 final rule will not result in such an
expenditure, we do discuss the
[[Page 15374]]
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 may
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 tank ships, and the Coast
Guard's commitment to working with the Tribes, we have determined that
tank ship 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.
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. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs 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
conclude that under figure 2-1, paragraph 34(g) of Commandant
Instruction M16475.1D, this rule is categorically excluded from further
environmental documentation. A ``Categorical Exclusion Determination''
is available in the docket for inspection or copying where indicated
under ADDRESSES.
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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation
No. 0170.
0
2. Add Sec. 165.1313 to read as follows:
Sec. 165.1313 Security Zone Regulations, Tank Ship Protection, Puget
Sound and adjacent waters, Washington
(a) Notice of enforcement or suspension of enforcement. The tank
ship security 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 tank ship
security 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 tank ship security zone is suspended.
(b) 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) Navigable waters of the United States means those waters
defined as such in 33 CFR part 2.
(3) Navigation Rules means the Navigation Rules, International-
Inland.
(4) Official patrol means those persons designated by the Captain
of the Port to monitor a tank ship security 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 (k) to enforce this section are
designated as the official patrol.
(5) Public vessel means vessels owned, chartered, or operated by
the United States, or by a State or political subdivision thereof.
(6) Tank ship security zone is a regulated area of water,
established by this section, surrounding tank ships for a 500-yard
radius that is necessary to provide for the security of these vessels.
(7) Tank ship means a self-propelled tank vessel that is
constructed or adapted primarily to carry oil or hazardous material in
bulk as cargo or cargo residue in the cargo spaces. The definition of
tank ship does not include tank barges.
(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 zone: There is established a tank ship security zone
extending for a 500-yard radius around all tank ships located in the
navigable waters of the United States in Puget Sound, WA, east of 123
degrees, 30 minutes West Longitude. [Datum: NAD 1983]
(d) Compliance: The tank ship security zone established by this
section remains in effect around tank ships at all times, whether the
tank ship is underway, anchored, or moored. Upon notice of enforcement
by the Captain of the Port Puget Sound, the Coast Guard will enforce
the tank ship security 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 tank ship security zone, consistent with the
Navigation Rules.
(e) The Navigation Rules shall apply at all times within a tank
ship security zone.
(f) When within a tank ship security zone all vessels shall operate
at the minimum speed necessary to maintain a
[[Page 15375]]
safe course and shall proceed as directed by the on-scene official
patrol or tank ship master. No vessel or person is allowed within 100
yards of a tank ship, unless authorized by the on-scene official patrol
or tank ship master.
(g) To request authorization to operate within 100 yards of a tank
ship, contact the on-scene official patrol or tank ship master on VHF-
FM channel 16 or 13.
(h) When conditions permit, the on-scene official patrol or tank
ship master should:
(1) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to pass within 100 yards of a
tank ship in order to ensure a safe passage in accordance with the
Navigation Rules;
(2) Permit commercial vessels anchored in a designated anchorage
area to remain at anchor when within 100 yards of a passing tank ship;
and
(3) Permit vessels that must transit via a navigable channel or
waterway to pass within 100 yards of a moored or anchored tank ship
with minimal delay consistent with security.
(i) Exemption. Public vessels as defined in paragraph (b) of this
section are exempt from complying with paragraphs (c), (d), (f), (g),
(h), (j), and (k) of this section.
(j) Exception. 33 CFR Part 161 promulgates Vessel Traffic Service
regulations. Measures or directions issued by Vessel Traffic Service
Puget Sound pursuant to 33 CFR Part 161 shall 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 tank ship, any Federal
Law Enforcement Officer or Washington Law Enforcement Officer may
enforce the rules contained in this section pursuant to 33 CFR Sec.
6.04-11. In addition, the Captain of the Port may be assisted by other
federal, state or local agencies in enforcing this section.
Dated: March 20, 2003.
Danny Ellis,
Captain, Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 03-7548 Filed 3-28-03; 8:45 am]
BILLING CODE 4910-15-P