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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

CFR Citation: 33 CFR Part 165

RIN ID: RIN 1625-AA00

CGD ID: [CGD13-03-026]

NOTICE: RULES

ACTION: Ports and waterways safety:

DOCUMENT ACTION: Temporary final rule.

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

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

DOCUMENT 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.

SUMMARY: Puget Sound, WA—; Large passenger vessels protection; security and safety zone,

SUPPLEMENTAL 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, CGD1303003, 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.T13017(a)), is allowed within 100 yards of a large passenger vessel that is underway or at anchor, unless authorized by the onscene 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 onscene official patrol or large passenger vessel master on VHFFM channel 16 or 13. The onscene 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 onscene 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) 2176200 or (800) 6886664 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 onscene 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. 601612), 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, notforprofit 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 onscene 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 104121), 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 1888REGFAIR (18887343247).

Collection of Information

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 35013520).

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. 15311538) 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
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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 21, 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.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
PART 165REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 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 1.051(g), 6.041, 6.046, and 160.5; Pub. L. 107295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.
2. From August 8, 2003, until February 8, 2004, temporary Sec. 165.T13017 is added to read as follows:
Sec. 165.T13017 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 500yard 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, InternationalInland.

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 500yard 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 onscene 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 onscene 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 onscene official patrol or large passenger vessel master on VHFFM channel 16 or 13.
(g) Maneuverrestricted 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
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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 onscene 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 6.0411. 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. 0321087 Filed 81503; 8:45 am]
BILLING CODE 491015P

FOR FURTHER INFORMATION CONTACT ENS Tyana Thayer c/o Captain of the Port Puget Sound, (206) 2176222.