[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Rules and Regulations]
[Pages 30014-30018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12675]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0062]
RIN 1625-AA00


Safety Zone; Fleet Week Maritime Festival, Pier 66, Elliott Bay, 
Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone 
extending 100 yards from Pier 66, Elliott Bay, WA to ensure adequate 
safety during the annual parade of ships and aerial demonstration for 
Fleet Week. This safety zone is necessary to promote safety on 
navigable waters and will do so by enforcing vessel movement 
restrictions in the immediate vicinity of Pier 66, Elliott Bay, WA, 
immediately prior to, during and immediately following this annual 
event. Entry into, transit through, mooring, or anchoring within these 
zones is prohibited unless authorized by the Captain of the Port, Puget 
Sound or Designated Representative.

DATES: This rule is effective June 23, 2011. This rule is enforced 
annually during the parade of ships which typically occurs on a 
Wednesday during the last week of July or the first week in August from 
8 a.m. until 8 p.m; however, it will only be enforced thirty minutes 
prior to, during, and thirty minutes after the annual parade of ships 
and aerial demonstration.

ADDRESSES: Comments and material received from the public, as well as

[[Page 30015]]

documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-0062 and are available online by going to 
http://www.regulations.gov, inserting USCG USCG-2010-0062 in the 
``Keyword'' box, and then clicking ``Search.'' This material is also 
available for inspection or copying at the Docket Management Facility 
(M-30), U.S. Department of Transportation, West Building Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail LTJG Ian S. Hanna, Sector Puget Sound Waterways 
Management Division, Coast Guard; telephone 206-217-6045, e-mail 
[email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On February 25, 2010 we published a notice of proposed rulemaking 
(NPRM) entitled ``Safety Zone; Fleet Week Maritime Festival, Pier 66, 
Elliott Bay, Seattle, WA'' in the Federal Register (75 FR 037). We 
received 72 comments on the proposed rule. We made changes based on 
those comments, and on November 24, 2010 we published a supplemental 
notice of proposed rulemaking (SNPRM) with the same title in the 
Federal Register (75 FR 226). We received 110 comments on the SNPRM. 
Seven comments requested a public meeting. We did not hold a public 
meeting on this rule.

Basis and Purpose

    The U.S. Coast Guard is establishing a permanent safety zone 
extending 100 yards from Pier 66, Elliott Bay, WA to restrict the 
movement of vessels, thirty minutes prior to, during, and thirty 
minutes following the annual parade of ships and aerial demonstration, 
thereby ensuring participant and spectator safety.

Background

    The Fleet Week Parade of Ships has historically resulted in vessel 
congestion near Pier 66, Elliott Bay, WA which adversely compromises 
participant and spectator safety. This safety zone is necessary to 
direct the movement of vessels in the vicinity of Pier 66 establishing 
unobstructed traffic lanes for response craft in the event of an 
emergency and ensuring participant, spectator and maritime safety. The 
Captain of the Port, Puget Sound may be assisted by other Federal and 
local agencies in the enforcement of this safety zone.

Discussion of Comments and Changes

    The regulatory text of this Final Rule is the same as the 
regulatory text of the Supplemental Notice of Proposed Rulemaking; no 
changes have been made to this regulation since the SNPRM. Twenty-four 
comments received were outside of the scope of this rulemaking.
    Seven requests for a public meeting were received. The Coast Guard 
does not plan to hold a public meeting. Public comment on proposed 
rules is an essential component of the notice-and-comment rulemaking 
process established by the Administrative Procedures Act (APA). An 
opportunity for oral presentations at public meetings may be offered 
but is not required. The Coast Guard has determined the two comment 
periods for this rule combined with numerous means available for public 
comment has provided adequate and sufficient time for the public to 
express their concerns without necessitating a public meeting. The 
original NPRM received over 70 comments, which were received, 
considered and resulted in changes to the regulation as reflected in 
the SNPRM. The SNPRM further allowed for public comment on this rule 
and received 110 comments.
    Ten comments articulated reasons to hold a public meeting. The 
purpose of a public meeting is to provide the public the opportunity to 
provide comment on complex and technical issues that are difficult to 
articulate in written public comment. Public meetings do not include an 
argumentative dialogue on proposed regulations. Many of the reasons 
submitted ask for this kind of dialogue that the government is not 
allowed to engage in at a public meeting. All the comments received 
have been direct and easily understood. Therefore there would be no 
added benefit in holding a public meeting.
    One comment stated that the Coast Guard could not have chosen a 
worse time for public comment as it occurred during a time of major 
U.S. holidays. The Coast Guard received 110 comments on this SNPRM and 
72 comments on the NPRM for this rule. The Coast Guard has determined 
that these methods of comment have properly provided ample opportunity 
and sufficient time for the public to comment on this regulation. 
Operational demands and rulemaking procedures dictated the timeline of 
publication of this rulemaking. The abundance of comments indicates the 
target audience has been notified and given the opportunity to comment.
    Six comments stated opposition to this regulation. The Coast Guard 
appreciates the reasons behind the opposition of this rule. However, 
this regulation is necessary to uphold agency responsibilities of 
promoting safety of life on navigable waters.
    Ten comments stated that this regulation infringes on First 
Amendment rights to free speech. This regulation establishes a safety 
zone to promote safety of life on navigable waters. The Coast Guard is 
authorized to create safety zones in accordance with 33 CFR 165.20 for 
safety purposes. The Captain of the Port has identified a potential 
navigation safety problem between spectator craft and participants of 
the Fleet Week Parade of Ships, and this zone is designed to address 
that safety problem. The minimal size of this safety zone will enable 
displays of free speech in visibly accessible areas to take place 
immediately north and south of the zone along the pier. Typically 
spectators gather at the parade viewing area at piers 66 and 63 well 
before the parade. In years past, any on water protest activities have 
had the full attention of the spectators prior to the parade. The Coast 
Guard believes that this proposed safety zone is small enough in size 
and short enough in duration that it will not hinder or impact 
demonstrations of free speech. Protest, spectator, and other vessels 
may congregate in the vicinity of Pier 66 while spectators are 
assembling and dispersing from this event and this safety zone is not 
enforced. Furthermore, an alternate protest area is available outside 
of this safety zone in places which are visually and audibly accessible 
to spectators during the parade and aerial demonstration while this 
safety zone is being enforced. This includes the area directly to the 
south of the safety zone in front of the public Pier 63 where many of 
the event spectators are gathered. Pictures posted to the docket 
clearly show protesters in this area which is visible not only to the 
people gathered at Pier 63 but also clearly visible from the review 
stand at Pier 66.
    Eleven comments stated the effect of this regulation is to deny the 
public the opportunity to provide a visual protest to the Navy war 
ships at SeaFair, in the place and during the time that the protest is 
most visible. The Coast Guard believes that this safety zone is small 
enough in size and short in duration that it will not hinder protest 
activities. Small boats may congregate in the vicinity of Pier 66 while 
spectators are

[[Page 30016]]

assembling and dispersing from the parade of ships while this safety 
zone is not enforced. During this time much of the audience is already 
gathered. Alternative channels for expression during the parade include 
the area immediately north and south of this zone where protestors will 
remain visible and audible to other spectators watching from Pier 66. 
Additionally, any place on the pier is open to protest activities.
    Eight comments stated that safety is not an issue during the 
parade, and state that they believe the zone is a no protest zone. The 
Captain of the Port, Puget Sound has a legitimate safety concern with 
the converging of large vessels participating in the Parade of Ships 
and smaller vessels that gather for the event. The vessels in the 
parade of ships that approach Pier 66 during the parade create large 
wakes and some even shoot water from fire monitors, both of which pose 
a significant threat to any small vessels that may be gathered in front 
of Pier 66. Additionally, the aerial demonstration following the parade 
requires a clear area for the safety of the demonstrators and the small 
vessels gathered for the parade. Also, were an accident to occur during 
the parade, emergency response craft would need to transit quickly into 
the area. Small vessels gathered in front of Pier 66 pose a threat to 
event participants and themselves if they gather in certain spots. This 
zone is meant to delineate to all parties involved where the danger 
area is during the parade event and keep people clear of it.
    Seven comments, including three photographs, state that there has 
not been any vessel congestion near Pier 66 during this event. Vessel 
congestion does not necessarily mean that many vessels are gathered. 
When one or more small spectator vessels are gathered in front of Pier 
66 and significantly larger parade participant vessels approach close 
to the pier, the area would become congested and unsafe. This is 
because the larger vessels have limited maneuverability when they are 
near the pier, and the smaller vessels may be too underpowered to 
maneuver quickly to be able to get themselves out of harm's way. Also 
historically, more vessels have gathered for the parade than did in 
2010 and it is reasonable to plan for the gathering of more vessels.
    Five comments stated the revisions to the enforcement times are 
ambiguous. The effective period for this rule is larger than the 
enforcement period to allow for slight yearly fluctuations in 
scheduling for this annual event while enabling opportunity for public 
comment, providing ample public notice, and codifying this regulation. 
Yearly announcements indicating the exact date and time of the Parade 
of Ships will be published in the Local Notice to Mariners. One comment 
requested clarification on what ``thirty minutes prior to the 
beginning, during and thirty minutes following the conclusion of the 
parade of ships'' means. This regulation will be enforced beginning 
thirty minutes before ships arrive at Pier 66 for the review portion of 
the parade, during the review, and, if needed, thirty minutes following 
the completion of the parade of ships review, which may include an 
aerial demonstration. For the purposes of this regulation, the 
beginning of the Parade of Ships is identified by the first participant 
vessel approaching Pier 66.
    Nine comments stated an increase in size of 40% from the safety 
zone described in the NPRM. The safety zone described as extending 100 
yards from Pier 66, is the same as in the NPRM. Any slight increase in 
size is due to increased accuracy in GPS coordinates to assist in 
technical plotting of this data. The practical application of the 
physical description of this zone is not affected by these changes 
since the description has remained unchanged.
    Two comments stated the Coast Guard usually enforces a ``no-protest 
zone'' to keep demonstrators approximately 450 yards from Pier 66. The 
Coast Guard would like to clarify any confusion regarding this 
regulation and previous years' regulations by emphasizing that the 
safety zone in this regulation extends only 100 yards from Pier 66, 
enforced 30 minutes prior to, during and 30 minutes following the 
parade of ships and aerial demonstration. The evolution of the safety 
zone for this annual event has resulted in smaller safety zones to 
better accommodate all waterway users while promoting safety on 
navigable waters. In addition, during this event each Navy ship has a 
Naval Vessel Protection Zone (NVPZ; 33 CFR 165 Subpart G) surrounding 
it. The NVPZ is a moving zone around each Navy ship that establishes a 
100 yard no entry zone and 500 yard no wake zone. This may result in a 
combined exclusion area of the NVPZ and the 100 yard safety zone during 
times of a close approach and departure from the pier. The coupling of 
these zones could result in the appearance of a larger zone being 
enforced; however, they are two separate zones. Similarly, another 
comment stated that the proposed zone was enforced for five days in 
2010 instead of the published few hours. The zone that was enforced for 
multiple days in 2010 was the NVPZ around the USS KIDD that was moored 
at Pier 66 for the duration of Fleet Week. The 100 yard safety zone 
which will be permanently established by this Final Rule will only be 
enforced for a few hours on the day of the Parade of Ships.
    One comment stated if the public is genuinely at risk, then the 
fleet should conduct its naval celebration somewhere else. The public 
is only at risk if located within this safety zone while this event is 
taking place; therefore it is reasonable to place temporary vessel 
movement restrictions in this area for this short period of time to 
ensure maritime safety.
    One comment stated the revised proposed rule is essentially the 
same as the first proposed rule. The Coast Guard introduced changes to 
this regulation in the SNPRM to include revisions to the enforcement 
dates, times and location for this safety zone in response to the 70 
comments received on the NPRM. The reasons for issuance and the safety 
concerns mitigated by this rule remain unchanged.
    One comment requested acknowledgement of their comment be sent via 
mail to the sender. The Coast Guard understands and empathizes with 
your concern; however, public comments made via regulations.gov are 
posted, publicly accessible and result in a tracking number, thereby 
providing notice of receipt of your comment. Additionally, the Coast 
Guard cannot accept the administrative burden associated with 
notification of individual receipt of comments, especially when 
notification has already been provided via this Web site.
    Two comments stated that the www.regulations.gov Web site would not 
accept the video file format desired for submission of videotape 
footage. Comments may be submitted in numerous ways. Although 
regulations.gov did not support the file format for the video comment, 
other means remained available to submit the video to the docket. Four 
methods for submitting comments have been detailed in both the NPRM and 
the SNPRM: the Federal eRulemaking Portal, fax, mail and hand delivery.
    One comment stated that mailing videos to the address provided in 
the proposed rule does not necessarily mean the videos would be entered 
into the record. The APA requires all received public comments and 
documents to be entered into the docket and responded to via subsequent 
rulemaking documents in the regulatory process.
    One comment stated the Coast Guard failed to follow-through on 
personally contacting a citizen to notify them of publication of this 
regulation. The Coast

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Guard has complied with the APA in drafting and informing the public of 
this regulation. We exceeded these requirements by issuing a press 
release to notify and solicit public participation and comment on the 
SNPRM.
    Two comments stated the proposed rule was not narrowly tailored to 
meet a legitimate government interest. The revisions made in the SNPRM 
including refinement to limit the time of enforcement of this safety 
zone has resulted in the most minimal zone in size and duration to 
adequately provide safety for all waterway users during this event. 
Additional narrowing of the zone would adversely affect efficient 
staging of the on-scene patrol vessels to enforce this safety zone 
thereby decreasing the effectiveness of this zone to ensure safety.

Initial Enforcement

    The Coast Guard will enforce the safety zone in 33 CFR 165.1330 on 
August 3, 2011. The zone will be active from 8 a.m. until 8 p.m. and be 
enforced thirty minutes prior to, during, and thirty minutes following 
the Parade of Ships which will occur at approximately 2 p.m.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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. This rule is not a significant regulatory 
action because it is short in duration and minimal in size.

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 
might be small entities: The owners or operators of vessels intending 
to transit the safety zone during times of annual enforcement. This 
safety zone will not have a significant impact on a substantial number 
of small entities for the following reasons. This safety zone will be 
activated and thus subject to enforcement for a short duration and is 
minimal in size.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining 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), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.
    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). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such expenditure, we do discuss the effects of this rule elsewhere in 
this preamble.

Taking of Private Property

    This rule will not cause 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 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

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require a Statement of Energy Effects under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(g.), 
of the Instruction. This rule involves a safety zone extending 100 
yards from Pier 66, Elliott Bay, WA which will be activated and thus 
subject to enforcement, 30 minutes prior to and 30 minutes following 
scheduled annual parade of ships events. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    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; 46 U.S.C. Chapters 701; 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Section 165.1330 is added to read as follows:


Sec.  165.1330  Safety Zone; Fleet Week Maritime Festival, Pier 66, 
Elliott Bay, Seattle, Washington.

    (a) Location. The following area is a safety zone: All waters 
extending 100 yards from Pier 66, Elliott Bay, WA within a box 
encompassed by the points, 47[deg]36.719' N, 122[deg]21.099' W; 
47[deg]36.682' N, 122[deg]21.149' W; 47[deg]36.514' N, 122[deg]20.865' 
W; and 47[deg]36.552' N, 122[deg]20.814' W.
    (b) Regulations. In accordance with the general regulations in 33 
CFR Part 165, Subpart C, no vessel operator may enter, transit, moor, 
or anchor within this safety zone, except for vessels authorized by the 
Captain of the Port or Designated Representative, thirty minutes prior 
to the beginning, during and thirty minutes following the conclusion of 
the Parade of Ships. For the purpose of this rule, the Parade of Ships 
includes both the pass and review of the ships near Pier 66 and the 
aerial demonstrations immediately following the pass and review. The 
Captain of the Port may be assisted by other federal, state, or local 
agencies as needed.
    (c) Authorization. In order to transit through this safety zone, 
authorization must be granted by the Captain of the Port, Puget Sound, 
or their Designated Representative. All vessel operators desiring entry 
into this safety zone shall gain authorization by contacting either the 
on-scene U.S. Coast Guard patrol craft on VHF Ch 13 or Ch 16, or Coast 
Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) via 
telephone at (206) 217-6002. Requests shall indicate the reason why 
movement within the safety zone is necessary and the vessel's arrival 
and/or departure facility name, pier and/or berth. Vessel operators 
granted permission to enter this safety zone will be escorted by the 
on-scene patrol until no longer within the safety zone.
    (d) Enforcement Period. This rule is enforced annually during the 
parade of ships which typically occurs on a Wednesday during the last 
week of July or the first week in August from 8 a.m. until 8 p.m. 
unless cancelled sooner by the Captain of the Port.

    Dated: May 9, 2011.
S.J. Ferguson,
Captain, U. S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 2011-12675 Filed 5-23-11; 8:45 am]
BILLING CODE 9110-04-P