[Federal Register Volume 67, Number 249 (Friday, December 27, 2002)]
[Proposed Rules]
[Pages 79017-79020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32721]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD13-02-018]
RIN 2115-AA97


Security Zone: Protection of Tank Ships, Puget Sound, WA

AGENCY: Coast Guard, DOT.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: In order to promptly respond to an increase in the Coast 
Guard's maritime security posture, the Coast Guard proposes to 
establish regulations for the safety or security of tank ships in the 
navigable waters of Puget Sound and adjacent waters, Washington. This 
proposed security zone, when activated 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.

DATES: Comments and related material must reach the Coast Guard on or 
before February 25, 2003.

ADDRESSES: You may mail comments and related material to Commanding 
Officer, Marine Safety Office Puget Sound, 1519 Alaskan Way South, 
Seattle, Washington 98134. Comments and material received from the 
public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
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, (206) 217-6232.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names, addresses, 
identify this rulemaking (CGD13-02-018) and the specific section of 
this proposal to which each comment applies, and give the reason for 
each comment. Please submit two copies of all comments and attachments 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. Persons wanting acknowledgement of 
receipt of comments should enclose stamped, self-addressed postcards or 
envelopes.
    The Coast Guard will consider all comments received during the 
comment period. It may change this proposal in view of the comments.
    The Coast Guard plans no public hearing. Persons may request a 
public hearing by writing to the Marine Safety Office at the address 
under ADDRESSES. The request should include the reasons why a hearing 
would be beneficial. If it is determined that the opportunity for oral 
presentations will aid this rulemaking, the Coast Guard will hold a 
public hearing at a time and place to be announced by a later notice in 
the Federal Register

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 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. 13273, 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 section 165.T13-011) 
establishing tank ship protection zones, which expires on April 15, 
2003. The Coast Guard, through this action, intends to assist tank 
ships by establishing a permanent security zone that upon activation by

[[Page 79018]]

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 Rule

    This proposed rule, for safety and security concerns, would control 
vessel movement in a regulated area surrounding tank ships. This 
proposed rule would be activated from time to time by the Captain of 
the Port Puget Sound for such time as he deems necessary to prevent 
damage or injury to any vessel or waterfront facility, to safeguard 
ports, harbors, territories, or waters of the United States or to 
secure the observance of the rights and obligations of the United 
States. The Captain of the Port Puget Sound will cause notice of the 
activation of this security zone to be made by all appropriate means to 
effect the widest publicity among the affected segments of the public. 
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 a 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 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. 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 
proposed rule. 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 Rule are 
vessels owned, chartered, or operated by the United States, or by a 
State or political subdivision thereof.

Regulatory Evaluation

    This proposed 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 proposed rule would restrict access to the regulated 
area, the effect of this proposed rule 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 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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would 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 proposed 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 
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 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 proposed 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 proposed 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 proposed rule will not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

[[Page 79019]]

Taking of Private Property

    This proposed 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed 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 proposed 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 
Proposed 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 proposed 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 proposed 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.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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. Add Sec.  165.1313 to read as follows:


Sec.  165.1313  Security Zone Regulations, Tank Ship Protection Zone, 
Puget Sound and adjacent waters, Washington

    (a) General. The tank ship protection zone established by this 
section will be effective only upon activation by the Captain of the 
Port Puget Sound. Captain of the Port Puget Sound will cause notice of 
the activation of the tank ship protection 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 
announcement 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 the tank ship protection zone is 
deactivated.
    (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 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 in paragraph (k) of this section to enforce this 
section are designated as the Official Patrol.
    (5) Public vessels means vessels owned, chartered, or operated by 
the United States, or by a State or political subdivision thereof.
    (6) 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.
    (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) 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]
    (d) Upon activation by the Captain of the Port Puget Sound, a tank 
ship protection zone exists around tank ships at all times in the 
navigable waters of the United States to which this section applies, 
whether the tank ship is underway, anchored, or moored.
    (e) The Navigation Rules shall apply at all times within a tank 
ship protection zone.
    (f) When within a tank ship protection zone all vessels 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 is allowed within 100 yards of a tank ship, unless 
authorized by the official patrol or tank ship master.
    (g) 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.

[[Page 79020]]

    (h) When conditions permit, the official patrol or tank shipmaster 
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) above are 
exempt from complying with 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: December 9, 2002.
D. Ellis,
Captain, Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 02-32721 Filed 12-26-02; 8:45 am]
BILLING CODE 4910-15-P