[Federal Register Volume 69, Number 9 (Wednesday, January 14, 2004)]
[Rules and Regulations]
[Pages 2066-2069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-747]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-03-018]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: 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, 
when enforced by the Captain of the Port Puget Sound, provides for the 
regulation of vessel traffic in the vicinity of large passenger vessels 
in the navigable waters of the United States, Puget Sound and adjacent 
waters, WA.

DATES: This rule is effective February 8, 2004.

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 CGD13-03-018 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 T. Thayer, c/o Captain of the 
Port Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 217-
6232.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On July 15, 2003, we published a notice of proposed rulemaking 
(NPRM)

[[Page 2067]]

entitled Security and Safety Zone; Protection of Large Passenger 
Vessels, Puget Sound, WA in the Federal Register (68 FR 41764). We 
received no comments on the proposed rule. A public hearing was not 
requested and none was held.
    The Coast Guard finds that good cause exists to make this rule 
effective less than 30 days after publication. This final rule 
continues regulations that were established in a temporary final rule 
(68 FR 49359), which ends on February 7, 2004. The requirements are 
necessary to ensure the safety and security of large passenger vessels 
in Puget Sound, and need to be continuous to be effective.

Background and Purpose

    On March 31, 2003, the Captain of the Port Puget Sound published a 
Temporary Final Rule (TFR) (68 FR 15375, CGD 13-03-003, 33 CFR Sec.  
165.T13-002) establishing security and safety zones for the protection 
of large passenger vessels, which expired on August 8, 2003. The TFR 
also requested public comment. On June 20, 2003, the Captain of the 
Port Puget Sound issued a Notice of Proposed Rule Making (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 it received in response to the TFR. 
In general, the comments concerned the scope and impact of the 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 original TFR, expired before the notice and comment period in 
the NPRM closed. Rather than extend the original TFR, the Captain of 
the Port Puget Sound published a second TFR on August 18, 2003, which 
was substantially the same as the proposed rule (68 FR 49359, CGD 13-
03-026, 33 CFR 165.T13-017). There were no comments received regarding 
the second TFR.
    This final rule will 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 certain large passenger vessels. Hostile entities continue 
to operate with the intent to harm U.S. National Security by attacking 
or sabotaging national security assets. 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)); 68 FR 55189 ((Sept. 22, 2003 
(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. 
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). Moreover, the ongoing hostilities 
in Afghanistan and Iraq make it prudent for U.S. ports and waterways to 
be on a higher state of alert because the al Qaeda organization and 
other similar organizations have declared an ongoing intention to 
conduct armed attacks on U.S. interests worldwide.

Discussion of Comments and Changes

    No comments were received by the Coast Guard as a result of the 
request for comments in our NPRM. However, as discussed above, the 
Coast Guard considered comments received regarding the scope and impact 
of the original TFR in drafting the proposed rule. See, Discussion of 
Proposed Rule, 68 FR at 41765.

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 the regulatory policies and procedures 
of DHS is unnecessary.
    Although this rule restricts access to the regulated area, the 
effect of this rule will not be significant because: (i) Individual 
large passenger vessel security and safety zones are limited in size; 
(ii) the official on-scene 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; (iv) the Coast Guard will 
make notifications via maritime advisories so mariners can adjust their 
plans accordingly; (v) the reduction in the number and types of vessels 
covered by this rule as a result of comments received in response to 
the original Large Passenger Vessel Security Zone TFR; and (vi) the 
size of the exclusionary zone was reduced from 100 yards to 25 yards 
for large passenger vessels that are moored.

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 will 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.
    This rule 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 official on-scene 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; (iv) the Coast Guard will 
make notifications via maritime advisories so mariners can adjust their 
plans accordingly; (v) the reduction in the number and types of vessels 
covered by this rule as a result of comments

[[Page 2068]]

received in response to the original Large Passenger Vessel Security 
Zone TFR; and (vi) the size of the exclusionary zone was reduced from 
100 yards to 25 yards for large passenger vessels that are moored.

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 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 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 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 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

    We have considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph (34) 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 
recordkeeping 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. Add Sec.  165.1317 to read as follows:


Sec.  165.1317  Security and Safety Zone; Large Passenger Vessel 
Protection, Puget Sound and adjacent waters, Washington.

    (a) Notice of enforcement or suspension of enforcement. The large 
passenger vessel security and safety 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 large passenger vessel security and safety 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 
large passenger vessel security and safety zone is suspended.
    (b) Definitions. The following definitions apply to this section:

[[Page 2069]]

    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 (l) 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.
    (c) 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].
    (d) 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. Upon notice of enforcement by the Captain of the 
Port Puget Sound, the Coast Guard will enforce the large passenger 
vessel security and safety 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 large passenger vessel security and safety 
zone, consistent with the Navigation Rules.
    (e) The Navigation Rules shall apply at all times within a large 
passenger vessel security and safety zone.
    (f) 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.
    (g) 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.
    (h) 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.
    (i) 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 within 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.
    (j) Exemption. Public vessels as defined in paragraph (b) of this 
section are exempt from complying with paragraphs (c), (d), (f), (g), 
(h), and (i), of this section.
    (k) Exception. 33 CFR part 161 contains Vessel Traffic Service 
regulations. When measures or directions issued by Vessel Traffic 
Service Puget Sound pursuant to 33 CFR part 161 also apply, the 
regulations govern rather than the regulations in this section.
    (l) 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.
    (m) 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: December 10, 2003.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 04-747 Filed 1-13-04; 8:45 am]
BILLING CODE 4910-15-P