[Federal Register Volume 88, Number 75 (Wednesday, April 19, 2023)]
[Rules and Regulations]
[Pages 24113-24115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08387]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0341]
RIN 1625-AA00


Safety Zone; Hylebos Waterway, Tacoma, WA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters of the Hylebos Waterway in Tacoma, Washington. The 
safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by a firefighting efforts 
onboard the F/V KODIAK ENTERPRISE by emergency response personnel. 
Entry of vessels or persons into this zone is prohibited unless 
specifically authorized by the Captain of the Port Sector Puget Sound.

DATES: This rule is effective without actual notice from April 19, 2023 
through 6 p.m. April 21, 2023. For the purposes of enforcement, actual 
notice will be used from April 14, 2023 until April 19, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0341 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email MST1 Steve Barnett, Sector Puget Sound, Waterways 
Management Division, U.S. Coast Guard; telephone 206-217-6051, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Puget Sound

[[Page 24114]]

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On April 9, 2023, the Coast Guard issued a rulemaking creating a 
temporary safety zone on the navigable waters of the Hylebos Waterway 
in Tacoma, Washington to protect persons and vessels and the marine 
environment from potential hazards created by a firefighting efforts 
onboard the F/V KODIAK ENTERPRISE by emergency response personnel. The 
safety zone was effective from 6 p.m. April 9, 2023 through 6 p.m. 
April 14, 2023. A copy of the rulemaking that ended on April 14, 2023 
is available in the docket USCG-2022-0341, which can be found using 
instructions in the ADDRESSES section. However, additional time is 
needed to maintain safe navigation around response equipment and 
responders while additional firefighting and damage assessment 
operations occur, and, as a result, the Coast Guard is establishing 
through temporary regulations a safety zone that will be in effect 
through April 21, 2023. The Coast Guard is issuing this temporary rule 
without prior notice and opportunity to comment pursuant to authority 
under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 
553(b)). This provision authorizes an agency to issue a rule without 
prior notice and opportunity to comment when the agency for good cause 
finds that those procedures are ``impracticable, unnecessary, or 
contrary to the public interest.'' Under 5 U.S.C. 553(b)(B), the Coast 
Guard finds that good cause exists for not publishing a notice of 
proposed rulemaking (NPRM) with respect to this rule due to the fire 
onboard F/V KODIAK. Firefighting efforts are still ongoing, and several 
dangerous conditions exist because of those firefighting response 
efforts and the state of the vessel. The vessel is currently listing 
with diesel fuel and other pollution hazards onboard. The Coast Guard 
must take continued action to respond to a potential threat to public 
safety in the Hylebos Waterway, Tacoma, WA. The Coast Guard was unable 
to publish an NPRM and hold a reasonable comment period for this 
rulemaking due to the emergent nature to continue response operations.
    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. Delaying the effective date of 
this rule would be impracticable because immediate action is needed to 
respond to the potential safety hazards associated with firefighting 
efforts onboard F/V KODIAK ENTERPRISE.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Puget Sound 
(COTP) has determined that potential safety hazards exist while ongoing 
firefighting is taking place onboard the F/V KODIAK ENTERPRISE in the 
Hylebos Waterway. This rule is needed to protect personnel, vessels, 
and the marine environment in the navigable waters within the safety 
zone while response actions are taking place.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 6 p.m. on April 
14, 2023 until 6 p.m. on April 21, 2023. The safety zone will cover all 
navigable waters within the Hylebos Waterway in Tacoma, WA. The 
duration of the zone is intended to protect personnel, vessels, and the 
marine environment in these navigable waters while firefighting 
operations onboard the F/V KODIAK ENTERPRISE are ongoing. No vessel or 
person will be permitted to enter the safety zone without obtaining 
permission from the COTP or a designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, this 
rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the fact that the 
safety zone created by this rule is limited in size and duration. 
Critical vessel traffic will be able to safely transit through this 
safety zone with permission from the COTP or designee. Moreover, the 
Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM 
marine channel 16 about the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
call or email the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship

[[Page 24115]]

between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
We have analyzed this rule under that Order and have determined that it 
is consistent with the fundamental federalism principles and preemption 
requirements described in Executive Order 13132.
    Also, 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.

E. 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 an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast 
Guard in complying with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321-4370f), and have determined that 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 involves a 
safety zone lasting only as long as necessary for response operations 
that will prohibit entry or departure from the Hylebos Waterway, 
Tacoma, WA. It is categorically excluded from further review under 
paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-
01-001-01, Rev. 1. A Record of Environmental Consideration supporting 
this determination will be available in the docket. For instructions on 
locating the docket, see the ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section to coordinate protest activities so 
that your message can be received without jeopardizing the safety or 
security of people, places or vessels.

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:  46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T13-0341 to read as follows:


Sec.  165.T13-0341  Safety Zone; Hylebos Waterway, Tacoma, WA.

    (a) Location. The following area is a safety zone: from the 
entrance to the Hylebos Waterway to the Turning Basin in Tacoma, WA.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Sector Puget Sound in the enforcement of the safety 
zone.
    (c) Regulations. In accordance with the general regulations in 33 
CFR part 165, subpart C, no persons or vessels may enter or remain in 
the safety zone created in this unless authorized by the Captain of the 
Port or their designated representative. For permission to enter the 
safety zone, contact the on-scene designated representative or Joint 
Harbor Operations Center via VHF CH16 or at 206-217-6002. Those in the 
safety zone must comply with all lawful orders or directions given to 
them by the Captain of the Port or their designated representative.
    (d) Enforcement period. This section will be enforced from 6 p.m. 
April 14, 2023 until 6 p.m. on April 21, 2023, unless an earlier end is 
announced via Broadcast Notice to Mariners on VHF-FM marine channel 16.

    Dated: April 14, 2023.
Y. Moon,
Captain, U.S. Coast Guard, Acting Captain of the Port Sector Puget 
Sound.
[FR Doc. 2023-08387 Filed 4-18-23; 8:45 am]
BILLING CODE 9110-04-P