[Federal Register Volume 69, Number 84 (Friday, April 30, 2004)]
[Rules and Regulations]
[Pages 23653-23655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9774]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-04-012]
RIN 1625-AA00


Security and Safety Zone; M/V Spirit of Ontario, Lake Ontario, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is establishing a temporary security and 
safety zone for the M/V Spirit of Ontario, the new high-speed ferry 
that will regularly be transiting the navigable waters of Lake Ontario 
and the Genesee River, New York. This zone is necessary to protect 
smaller vessels from the effects of this large passenger vessel's 
propulsion and maneuvering systems, reduce the risk of collisions, and 
to protect the M/V Spirit of Ontario from possible terrorist attacks. 
This security and safety zone is intended to restrict vessels from a 
portion of Lake Ontario and the Genesee River, NY.

DATES: This rule is effective April 20, 2004, until April 20, 2005. 
Comments and related material must be received on or before July 1, 
2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD09-04-012 and are available for 
inspection or copying at Commanding Officer, Marine Safety Office 
Buffalo, 1 Fuhrmann Blvd., Buffalo, New York 14203 between 8 a.m. and 4 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lt. Craig A. Wyatt, MSO Buffalo, (716) 
843-9570.

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 vessels and 
spectators from a new high-speed ferry operating out of Rochester, New 
York. This is the first high-speed ferry of its kind on the Great 
Lakes. As such, the general boating public will be unfamiliar with the 
handling characteristics of such a large high-speed vessel in the area. 
The Captain of the Port Buffalo has determined that immediate temporary 
regulations are required to ensure the safety of vessels and spectators 
in this new environment.
    In addition, immediate implementation of this rule is necessary to 
ensure the protection of the M/V Spirit of Ontario from threats posed 
by hostile entities and help protect maritime transportation and 
commerce. The events of September 11, 2001, as well as what has 
occurred since then, highlight the fact that additional security steps 
must be taken to protect the public from possible acts of terrorism. 
This security and safety zone is designed to minimally impact the 
public while providing a reasonable level of protection and safety.
    In addition, after the Coast Guard becomes more familiar during 
daily operations of the high-speed ferry, the Coast Guard will pursue a 
permanent rule through normal notice and comment procedures. This will 
allow the public to give more valuable input after they have the 
opportunity to see first-hand the impact of hazards such as wake and 
jet-wash from the high-speed ferry. Furthermore, this temporary rule 
also allows the public to comment regarding the immediate impact of 
these

[[Page 23654]]

regulations. These comments may also aid in the development of 
permanent regulations.

Background and Purpose

    This temporary final rule is being established to ensure that 
precautions are taken prior to the initial arrival and initial 
operations of the M/V Spirit of Ontario in late May, 2004. This safety 
and security zone will consist of two different exclusionary zones 
depending on the location of the high-speed ferry. In the Genesee 
River, the zone will consist of all navigable waters and adjacent 
shoreline within 25 yards of the vessel. On Lake Ontario, the zone will 
consist of all navigable waters within 100 yards of the high-speed 
ferry.
    Vessels constrained by their draft are permitted to enter the 
exclusionary zone for the purposes of safe navigation. When vessels 
enter the zone under these circumstances, they should only maintain the 
minimum speed and course necessary for safe navigation.

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. It has not been reviewed by the Office of 
Management and Budget 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 a portion of Lake Ontario 
and the Genesee River, the effect of this rule will not be significant 
because: (i) the zone is limited in size such that other vessels may 
pass safety outside the zone; (ii) the Captain of the Port, or the 
Captain of the Port's designated representative, which is the on-scene 
patrol commander may authorize vessels to pass within the exclusionary 
zone on a case by case basis.

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. 
This rule does not require a general notice of proposed rulemaking and, 
therefore, is exempt from the requirements of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
potential economic impact on small entities.
    Therefore, 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 would affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to operate 
in the vicinity of the M/V Spirit of Ontario 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) The security and safety zones are limited in size and 
vessels may safely pass outside the zone; (ii) the Captain of the Port, 
or the Captain of the Port's designated representative, which is the 
on-scene patrol commander may authorize vessels to pass within the 
exclusionary zone on a case by case basis.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would economically affect it.

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 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 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

    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

[[Page 23655]]

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. 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)(g) 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 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. 0170.1.


0
2. From April 20, 2004, until April 20, 2005, add Sec.  165.T09-012 to 
read as follows:


Sec.  165.T09-012  Security and Safety Zone; M/V Spirit of Ontario, 
Lake Ontario and adjacent waters, New York.

    (a) Location. (1) Genesee River. The following area is designated 
as a security and safety zone: all navigable waters 25 yards in all 
directions of the M/V Spirit of Ontario once the vessel is in the 
Genesee River upstream of line drawn between the Rochester Harbor Light 
and the East Pier Light.
    (2) Lake Ontario. The following area is designated as a security 
and safety zone: all U.S. navigable waters of Lake Ontario 100 yards in 
all directions of the M/V Spirit of Ontario once the vessel is lake-
side (in Lake Ontario) of line drawn between the Rochester Harbor Light 
and the East Pier Light.
    (b) Definition. As used in this section, Captain of the Port means 
the Captain of the Port Buffalo. The Captain of the Port may authorize 
or designate any Coast Guard commissioned officer, warrant, or petty 
officer to act on his behalf as his representative.
    (c) Regulations. In accordance with the general regulations in 
Sec.  165.33 of this part:
    (1) No person or vessel may enter or remain in this zone without 
the permission of the District Commander or Captain of the Port.
    (2) All persons within this zone must obey any direction or order 
of the District Commander or the Captain of the Port, or the Captain of 
the Port's designated representative, which will be the on-scene patrol 
commander.
    (3) Vessels constrained by their draft such that they are required 
to enter the security and safety zone should only operate at the 
minimum speed necessary to maintain a safe course and must proceed as 
directed by the on-scene patrol commander or the master of the M/V 
Spirit of Ontario.
    (4) When the M/V Spirit of Ontario approaches within 25 yards of 
any vessel, on the Genesee River, that is moored or anchored, the 
stationary vessel must stay moored or anchored while it remains within 
the security and safety zone unless it is either ordered by, or given 
permission by the Captain of the Port Buffalo or the on-scene patrol 
commander to do otherwise.

    Dated: April 20, 2004.
P.M. Gugg,
Captain, U.S. Coast Guard, Captain of the Port, Buffalo.
[FR Doc. 04-9774 Filed 4-29-04; 8:45 am]
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