[Federal Register Volume 68, Number 61 (Monday, March 31, 2003)]
[Rules and Regulations]
[Pages 15372-15375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-7548]


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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