[Federal Register: April 30, 2004 (Volume 69, Number 84)]
[Rules and Regulations]
[Page 23653-23655]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap04-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD09-04-012]
RIN 1625-AA00
Security and Safety Zone; M/V Spirit of Ontario, Lake Ontario, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule; request for comments.
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SUMMARY: The Coast Guard is establishing a temporary security and
safety zone for the M/V Spirit of Ontario, the new high-speed ferry
that will regularly be transiting the navigable waters of Lake Ontario
and the Genesee River, New York. This zone is necessary to protect
smaller vessels from the effects of this large passenger vessel's
propulsion and maneuvering systems, reduce the risk of collisions, and
to protect the M/V Spirit of Ontario from possible terrorist attacks.
This security and safety zone is intended to restrict vessels from a
portion of Lake Ontario and the Genesee River, NY.
DATES: This rule is effective April 20, 2004, until April 20, 2005.
Comments and related material must be received on or before July 1,
2004.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket CGD09-04-012 and are available for
inspection or copying at Commanding Officer, Marine Safety Office
Buffalo, 1 Fuhrmann Blvd., Buffalo, New York 14203 between 8 a.m. and 4
p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lt. Craig A. Wyatt, MSO Buffalo, (716)
843-9570.
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 safeguard vessels and
spectators from a new high-speed ferry operating out of Rochester, New
York. This is the first high-speed ferry of its kind on the Great
Lakes. As such, the general boating public will be unfamiliar with the
handling characteristics of such a large high-speed vessel in the area.
The Captain of the Port Buffalo has determined that immediate temporary
regulations are required to ensure the safety of vessels and spectators
in this new environment.
In addition, immediate implementation of this rule is necessary to
ensure the protection of the M/V Spirit of Ontario from threats posed
by hostile entities and help protect maritime transportation and
commerce. The events of September 11, 2001, as well as what has
occurred since then, highlight the fact that additional security steps
must be taken to protect the public from possible acts of terrorism.
This security and safety zone is designed to minimally impact the
public while providing a reasonable level of protection and safety.
In addition, after the Coast Guard becomes more familiar during
daily operations of the high-speed ferry, the Coast Guard will pursue a
permanent rule through normal notice and comment procedures. This will
allow the public to give more valuable input after they have the
opportunity to see first-hand the impact of hazards such as wake and
jet-wash from the high-speed ferry. Furthermore, this temporary rule
also allows the public to comment regarding the immediate impact of
these
[[Page 23654]]
regulations. These comments may also aid in the development of
permanent regulations.
Background and Purpose
This temporary final rule is being established to ensure that
precautions are taken prior to the initial arrival and initial
operations of the M/V Spirit of Ontario in late May, 2004. This safety
and security zone will consist of two different exclusionary zones
depending on the location of the high-speed ferry. In the Genesee
River, the zone will consist of all navigable waters and adjacent
shoreline within 25 yards of the vessel. On Lake Ontario, the zone will
consist of all navigable waters within 100 yards of the high-speed
ferry.
Vessels constrained by their draft are permitted to enter the
exclusionary zone for the purposes of safe navigation. When vessels
enter the zone under these circumstances, they should only maintain the
minimum speed and course necessary for safe navigation.
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. It has not been reviewed by the Office of
Management and Budget 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 a portion of Lake Ontario
and the Genesee River, the effect of this rule will not be significant
because: (i) the zone is limited in size such that other vessels may
pass safety outside the zone; (ii) the Captain of the Port, or the
Captain of the Port's designated representative, which is the on-scene
patrol commander may authorize vessels to pass within the exclusionary
zone on a case by case basis.
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.
This rule does not require a general notice of proposed rulemaking and,
therefore, is exempt from the requirements of the Regulatory
Flexibility Act. Although this rule is exempt, we have reviewed it for
potential economic impact on small entities.
Therefore, 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 would affect the following entities, some of which may be
small entities: The owners or operators of vessels intending to operate
in the vicinity of the M/V Spirit of Ontario 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) The security and safety zones are limited in size and
vessels may safely pass outside the zone; (ii) the Captain of the Port,
or the Captain of the Port's designated representative, which is the
on-scene patrol commander may authorize vessels to pass within the
exclusionary zone on a case by case basis.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule will have a
significant economic impact on it, please submit a comment to the
Docket Management Facility at the address under ADDRESSES. In your
comment, explain 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 (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 will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not 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
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
[[Page 23655]]
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have considered the environmental impact of this rule and
concluded that under figure 2-1, paragraph (34)(g) 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 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. 0170.1.
0
2. From April 20, 2004, until April 20, 2005, add Sec. 165.T09-012 to
read as follows:
Sec. 165.T09-012 Security and Safety Zone; M/V Spirit of Ontario,
Lake Ontario and adjacent waters, New York.
(a) Location. (1) Genesee River. The following area is designated
as a security and safety zone: all navigable waters 25 yards in all
directions of the M/V Spirit of Ontario once the vessel is in the
Genesee River upstream of line drawn between the Rochester Harbor Light
and the East Pier Light.
(2) Lake Ontario. The following area is designated as a security
and safety zone: all U.S. navigable waters of Lake Ontario 100 yards in
all directions of the M/V Spirit of Ontario once the vessel is lake-
side (in Lake Ontario) of line drawn between the Rochester Harbor Light
and the East Pier Light.
(b) Definition. As used in this section, Captain of the Port means
the Captain of the Port Buffalo. The Captain of the Port may authorize
or designate any Coast Guard commissioned officer, warrant, or petty
officer to act on his behalf as his representative.
(c) Regulations. In accordance with the general regulations in
Sec. 165.33 of this part:
(1) No person or vessel may enter or remain in this zone without
the permission of the District Commander or Captain of the Port.
(2) All persons within this zone must obey any direction or order
of the District Commander or the Captain of the Port, or the Captain of
the Port's designated representative, which will be the on-scene patrol
commander.
(3) Vessels constrained by their draft such that they are required
to enter the security and safety zone should only operate at the
minimum speed necessary to maintain a safe course and must proceed as
directed by the on-scene patrol commander or the master of the M/V
Spirit of Ontario.
(4) When the M/V Spirit of Ontario approaches within 25 yards of
any vessel, on the Genesee River, that is moored or anchored, the
stationary vessel must stay moored or anchored while it remains within
the security and safety zone unless it is either ordered by, or given
permission by the Captain of the Port Buffalo or the on-scene patrol
commander to do otherwise.
Dated: April 20, 2004.
P.M. Gugg,
Captain, U.S. Coast Guard, Captain of the Port, Buffalo.
[FR Doc. 04-9774 Filed 4-29-04; 8:45 am]
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