[Federal Register Volume 68, Number 159 (Monday, August 18, 2003)]
[Rules and Regulations]
[Pages 49359-49362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21087]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-03-026]
RIN 1625-AA00


Security and Safety Zone; Protection of Large Passenger Vessels, 
Puget Sound, WA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing regulations for the security 
and safety of large passenger vessels in the navigable waters of Puget 
Sound and adjacent waters, Washington. This security and safety zone 
will provide for the regulation of vessel traffic in the vicinity of 
large passenger vessels in the navigable waters of the United States.

DATES: This rule is effective from August 8, 2003, until February 8, 
2004.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at the U.S. Coast Guard Marine Safety Office 
Puget Sound, 1519 Alaskan Way South, Building 1, Seattle, Washington 
98134. Normal office hours are between 8 a.m. and 4 p.m., Monday 
through Friday, except federal holidays.

FOR FURTHER INFORMATION CONTACT: ENS Tyana Thayer c/o Captain of the 
Port Puget Sound, (206) 217-6222.

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

Background and Purpose

    On March 31, 2003, the Captain of the Port Puget Sound published a 
temporary final rule (TFR) (68 FR 15375, CGD13-03-003, 33 CFR 165.T13-
002) establishing security and safety zones for the protection of large 
passenger vessels, which expires on August 8, 2003. On June 20, 2003, 
the Captain of the Port Puget Sound issued a notice of proposed 
rulemaking (NPRM) entitled ``Security and Safety Zone; Protection of 
Large Passenger Vessels, Puget Sound, WA''. This NPRM was published in 
the Federal Register on July 15, 2003 (68 FR 41764). In drafting the 
proposed rule, the Coast Guard considered comments received regarding 
the scope and impact of the original TFR. See, Discussion of Proposed 
Rule, 68 FR at 41765. In response to these comments, the Coast Guard 
modified the definition of large passenger vessel by excluding small 
passenger vessels (vessels inspected and certificated under 46 CFR 
chapter I, subchapter T) thereby decreasing the number of vessels with 
security and safety zones around them. In addition, the Coast Guard 
reduced the size of the exclusionary zone from 100 yards to 25 yards 
for a large passenger vessel that is moored.
    The intent behind the rule proposed in the NPRM was to continue to 
assist large passenger vessels by establishing a permanent security and 
safety zone that when enforced by the Captain of the Port would exclude 
persons and vessels from the immediate vicinity of all large passenger 
vessels. However, the original TFR, which was published on March 31, 
will expire before the notice and comment period in the NPRM closes. In 
other words, a permanent security and safety zone will not become 
effective before the original TFR expires.
    The Captain of the Port Puget Sound deems it necessary that a 
security and safety zone around large passenger vessels continue to be 
in effect until such time as a permanent rule is established. Rather 
than extend the previous TFR, the Captain of the Port Puget Sound is 
issuing this TFR, which is not substantially different from the 
proposed rule. To date, the Coast Guard has not received any comments 
regarding the rule proposed in the NPRM.

Discussion of Rule

    This rule, for security and safety concerns, will control vessel 
movement in a regulated area surrounding large passenger vessels. For 
the purpose of this rule, a large passenger vessel means any cruise 
ship over 100 feet in length carrying passengers for hire and any auto 
ferries and passenger ferries over 100 feet in length carrying 
passengers for hire such as the Washington State Ferries, M/V COHO and 
Alaskan Marine Highway Ferries. All vessels within 500 yards of large 
passenger vessels must operate at the minimum speed necessary to 
maintain a safe course, and must proceed as directed by the official 
patrol. No vessel, except a public vessel (as defined in 33 CFR 
165.T13-017(a)), is allowed within 100 yards of a large passenger 
vessel that is underway or at anchor, unless authorized by the on-scene 
official patrol or large passenger vessel master. No vessel or person 
is allowed within 25 yards of a large passenger vessel that is moored. 
Vessels requesting to pass within 100 yards of a large passenger vessel 
that is underway or at anchor shall contact the on-scene official 
patrol or large passenger vessel master on VHF-FM channel 16 or 13. The 
on-scene official patrol or large passenger vessel master may permit 
vessels that can only operate safely in a navigable channel to pass 
within 100 yards of a large passenger vessel that is underway or at

[[Page 49360]]

anchor 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 temporary final rule. 
Similarly, when a large passenger vessel approaches within 100 yards of 
any vessel that is moored or anchored, the stationary vessel must stay 
moored or anchored while it remains in the large passenger vessels 
security and safety zone unless it is either ordered by, or given 
permission by the Captain of the Port, his designated representative or 
the on-scene official patrol to do otherwise. 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.
    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.

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 (DHS).
    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 regulation restricts access to the regulated area, 
the effect of this regulation will not be significant because: (i) 
Individual large passenger vessel security and safety zones are limited 
in size; (ii) the on-scene official patrol or large passenger vessel 
master may authorize access to the large passenger vessel security and 
safety zone; (iii) the large passenger vessel security and safety zone 
for any given transiting large passenger vessel 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 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 large passenger vessels in the 
navigable waters of the United States to which this rule applies.
    This temporary regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: (i) Individual large passenger vessel security and safety 
zones are limited in size; (ii) the on-scene official patrol or large 
passenger vessel master may authorize access to the large passenger 
vessel security and safety zone; (iii) the passenger vessel security 
and safety zone for any given transiting large passenger vessel 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 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 would call 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 would not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would 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 would not create an 
environmental risk to health or risk to safety that might 
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 large passenger vessels 
and the Coast Guard's

[[Page 49361]]

commitment to working with the Tribes, we have determined that 
passenger vessel 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. Nevertheless, Indian Tribes that have 
questions concerning the provisions of this 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. 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

    The Coast Guard's preliminary review indicates this 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.

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.


0
2. From August 8, 2003, until February 8, 2004, temporary Sec.  
165.T13-017 is added to read as follows:


Sec.  165.T13-017  Security and Safety Zone; Large Passenger Vessel 
Protection, Puget Sound and adjacent waters, Washington.

    (a) Definitions. The following definitions apply to this section:
    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.
    Large Passenger Vessel means any cruise ship over 100 feet in 
length carrying passengers for hire, and any auto ferries and passenger 
ferries over 100 feet in length carrying passengers for hire such as 
the Washington State Ferries, M/V COHO and Alaskan Marine Highway 
Ferries. Large Passenger Vessel does not include vessels inspected and 
certificated under 46 CFR chapter I, subchapter T, such as excursion 
vessels, sight seeing vessels, dinner cruise vessels, and whale 
watching vessels.
    Large Passenger Vessel Security and Safety Zone is a regulated area 
of water established by this section, surrounding large passenger 
vessels for a 500-yard radius to provide for the security and safety of 
these vessels.
    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 large passenger vessel security and safety zone, 
permit entry into the zone, give legally enforceable orders to persons 
or vessels within 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.
    Public vessel means vessels owned, chartered, or operated by the 
United States, or by a State or political subdivision thereof.
    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) Security and safety zone. There is established a large 
passenger vessel security and safety zone extending for a 500-yard 
radius around all large passenger vessels located in the navigable 
waters of the United States in Puget Sound, WA, east of 123[deg]30' 
West Longitude. [Datum: NAD 1983]
    (c) Compliance. The large passenger vessel security and safety zone 
established by this section remains in effect around large passenger 
vessels at all times, whether the large passenger vessel is underway, 
anchored, or moored.
    (d) Navigation Rules applicability. The Navigation Rules shall 
apply at all times within a large passenger vessel security and safety 
zone.
    (e) Restrictions based on distance from large passenger vessel. 
When within a large passenger vessel security and safety zone all 
vessels must operate at the minimum speed necessary to maintain a safe 
course and must proceed as directed by the on-scene official patrol or 
large passenger vessel master. No vessel or person is allowed within 
100 yards of a large passenger vessel that is underway or at anchor, 
unless authorized by the on-scene official patrol or large passenger 
vessel master. No vessel or person is allowed within 25 yards of a 
large passenger vessel that is moored.
    (f) Requesting authorization to operate within 100 yards of large 
passenger vessel. To request authorization to operate within 100 yards 
of a large passenger vessel that is underway or at anchor, contact the 
on-scene official patrol or large passenger vessel master on VHF-FM 
channel 16 or 13.
    (g) Maneuver-restricted vessels. When conditions permit, the on-
scene official patrol or large passenger vessel master should:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within 100 yards of a 
large passenger vessel in order to ensure a safe passage in accordance 
with the Navigation Rules; and
    (2) Permit vessels that must transit via a navigable channel or 
waterway to pass within 100 yards of an anchored large passenger vessel 
or within 25 yards of a moored large passenger vessel with minimal 
delay consistent with security.
    (h) Stationary vessels. When a large passenger vessel approaches 
within 100 yards of any vessel that is moored or anchored, the 
stationary vessel must stay moored or anchored while it

[[Page 49362]]

remains with in the large passenger vessel's security and safety zone 
unless it is either ordered by, or given permission by the Captain of 
the Port Puget Sound, his designated representative or the on-scene 
official patrol to do otherwise.
    (i) Exemption. Public vessels as defined in paragraph (a) of this 
section are exempt from complying with paragraphs (b), (c), (e), (f), 
(g), and (h), of this section.
    (j) Exception. 33 CFR part 161 contains Vessel Traffic Service 
regulations. Measures or directions issued by Vessel Traffic Service 
Puget Sound pursuant to 33 CFR part 161 will 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 large passenger 
vessel, any Federal Law Enforcement Officer or Washington Law 
Enforcement Officer may enforce the rules contained in this section 
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 
section.
    (l) Waiver. The Captain of the Port Puget Sound may waive any of 
the requirements of this section for any vessel or class of vessels 
upon finding that a vessel or class of vessels, operational conditions 
or other circumstances are such that application of this section is 
unnecessary or impractical for the purpose of port security, safety or 
environmental safety.

    Dated: August 8, 2003.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 03-21087 Filed 8-15-03; 8:45 am]
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