[Federal Register Volume 67, Number 211 (Thursday, October 31, 2002)]
[Rules and Regulations]
[Pages 66335-66338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27723]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD13-02-015]
RIN 2115-AA97


Security Zones; Protection of Tank Ships, Puget Sound, WA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: Increases in the Coast Guard's maritime security posture 
necessitate establishing temporary regulations for the safety or 
security of tank ships in the navigable waters of Puget Sound and 
adjacent waters, Washington. This security zone will provide for the 
regulation of vessel traffic in the vicinity of tank ships in the 
navigable waters of the United States.

DATES: This temporary rule is effective from October 15, 2002 until 
April 15, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket CGD 13-02-015 and are available for 
inspection or copying at 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: LT A. L. Praskovich, c/o Captain of 
the Port Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 
217-6232.

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 tank ships 
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 tank ships 
from the threats posed by hostile entities and would compromise the 
vital national interest in protecting maritime transportation and 
commerce. The security zone in this regulation has been carefully 
designed to minimally impact the public while providing a reasonable 
level of protection for tank ships. For these reasons, following normal 
rulemaking procedures in this case would be impracticable, unnecessary, 
and contrary to the public interest.

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

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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).
    The Coast Guard, through this action, intends to assist tank ships 
by establishing a security zone to 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 Rule

    This rule, for safety and security concerns, controls vessel 
movement in a regulated area surrounding tank ships. For the purpose of 
this regulation, a tank ship means a self-propelled tank vessel 
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. All vessels within 500 yards of 
tank ship 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 (defined below), is allowed within 100 
yards of a tank ship, unless authorized by the official patrol or tank 
ship master. Vessels requesting to pass within 100 yards of a tank ship 
shall contact the official patrol or tank ship master on VHF-FM channel 
16 or 13. The official patrol or tank ship master may permit vessels 
that can only operate safely in a navigable channel to pass within 100 
yards of a tank ship in order to ensure a safe passage in accordance 
with the Navigation Rules. Similarly, commercial vessels anchored in a 
designated anchorage area may be permitted to remain at anchor within 
100 yards of passing tank ships. 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.

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 Transportation 
(DOT) (44 FR 11040, February 26, 1979).
    We expect the economic impact of this proposed 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 affect of this regulation will not be significant because: (i) 
Individual tank ship security zones are limited in size; (ii) the 
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 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 tank ships in the navigable waters of 
the United States.
    This temporary regulation will 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 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 (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 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

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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 the Temporary Final 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 Temporary 
Final 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 Temporary 
Final 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. 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

    The Coast Guard's preliminary review indicates this temporary rule 
is categorically excluded from further environmental documentation 
under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lD. 
As an emergency action, the Environmental Analysis, requisite 
regulatory consultations, and Categorical Exclusion Determination will 
be prepared and submitted after establishment of this temporary tank 
ship security zone, and will be available in the docket. This temporary 
rule ensures the safety and security of tank ships. All standard 
environmental measures remain in effect. The Categorical Exclusion 
Determination will be made 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 
recordkeeping requirements, Security measures, Waterways.

    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

    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; 49 CFR 1.46.

    2. From October 15, 2002, until April 15, 2003, temporary Sec.  
165.T13-011 is added to read as follows:


Sec.  165.T13-011  Security Zone Regulations; Tank Ship Protection 
Zone, Puget Sound and adjacent waters, Washington.

    (a) The following definitions apply to this regulation:
    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.
    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 tank ship protection 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 to enforce this Temporary Final Rule 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.
    Tank Ship means a self-propelled tank vessel 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.
    Tank Ship Protection Zone is a 500-yard regulated area of water 
surrounding tank ships that is necessary to provide for the safety or 
security of these vessels.
    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) This section applies to any vessel or person in the navigable 
waters of the United States east of 123 degrees, 30 minutes West 
Longitude. (Datum: NAD 1983.)
    (c) A tank ship protection zone exists around tank ships at all 
times in the navigable waters of the United States, whether the tank 
ship is underway, anchored, or moored.
    (d) The Navigation Rules shall apply at all times within a tank 
ship protection zone.
    (e) All vessels within a tank ship protection zone shall operate at 
the minimum speed necessary to maintain a safe course and shall proceed 
as directed by the official patrol or tank ship master. No vessel or 
person located in the navigable waters of the United States is allowed 
within 100 yards of a tank ship, unless authorized by the official 
patrol or tank ship master.
    (f) To request authorization to operate within 100 yards of a tank 
ship, contact the official patrol or tank ship master on VHF-FM channel 
16 or 13.
    (g) When conditions permit, the 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; and
    (2) Permit commercial vessels anchored in a designated anchorage 
area to remain at anchor within 100 yards of passing a 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.
    (h) Exemption. Public vessels as defined in paragraph (a) above are

[[Page 66338]]

exempt from complying with this regulation.
    (i) Enforcement. Any Coast Guard commissioned, warrant or petty 
officer may enforce the rules in this regulation. In the navigable 
waters of the United States, when immediate action is required and 
representatives of the Coast Guard are not present or not present in 
sufficient force to exercise effect control in the vicinity of a tank 
ship, any Federal Law Enforcement Officer or Washington Law Enforcement 
Officer may enforce the rules contained in this regulation 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 rule.

    Dated: October 15, 2002.
D. Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 02-27723 Filed 10-30-02; 8:45 am]
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