03-7548. Security Zone: Protection of Tank Ships, Puget Sound, WA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

In order to promptly respond to an increase in the Coast Guard's maritime security posture, the Coast Guard is establishing regulations for the security of tank ships in the navigable waters of Puget Sound and adjacent waters, Washington. This security zone, when enforced by the Captain of the Port Puget Sound, will provide for the regulation of vessel traffic in the vicinity of tank ships in the navigable waters of the United States, Puget Sound and adjacent waters, WA.

DATES:

This section is effective April 15, 2003.

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 CGD13-02-018 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 R. S. Teague, c/o Captain of the Port Puget Sound, [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On December 27, 2002, we published a notice of proposed rulemaking (NPRM) entitled Security Zone: Protection of Tank Ships, Puget Sound, WA in the Federal Register (67 FR 79017). We received one letter commenting on the proposed rule. No public hearing was requested, and none was held.

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. The Coast Guard promulgated a temporary final rule (67 FR 66335) establishing security zones around tank ships in Puget Sound that expires on April 15, 2003. This final rule does not substantively differ from the temporary final rule. Both the TFR and this rule were established to increase the Coast Guard's maritime security posture by providing for the security of tank ships in the navigable waters of Puget Sound. The Captain of the Port Puget Sound deems it necessary that the security zone around tank ships continue to be in effect. Rather than extend the TFR or issue a new TFR the Coast Guard is making this final rule effective upon publication in the Federal Register. A notice of enforcement will be simultaneously published in the Federal Register with this rule.

Background and Purpose

Recent events highlight the fact that there are hostile entities operating with the intent to harm U.S. National Security. 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)). The President also has found pursuant to law, including the Act of June 15, 1917, as amended August 9, 1950, by 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)).

On October 15, 2002, the Captain of the Port Puget Sound issued a TFR (67 FR 66335, CGD13-02-015, 33 CFR 165.T13-011) establishing security zones for tank ship protection, which expires on April 15, 2003. The Coast Guard, through this action, will assist tank ships by establishing a permanent security zone, which when enforced by the Captain of the Port would exclude persons and vessels from the immediate vicinity of all tank ships. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his designee. The Captain of the Port may be assisted by other federal, state, or local agencies.

Discussion of Comments and Changes

In our NPRM, we stated that the Captain of the Port from time to time would publish or provide notice of “activation” of the proposed security zone. In this final rule, we have replaced the word “activation” with the word “enforcement” to clarify what we mean. Security zones are established by rulemaking procedures, which necessarily includes notice and comment and other required procedures. Notice to the public that a given security zone has been established through those required procedures is normally done by the methods set out in 33 CFR 165.7, and may include broadcasts and publication in the Federal Register. However, a security zone cannot be legally established only by mere notice to the public, using the methods described in 33 CFR 165.7. Because the word “activation” may connote “establishment” to some members of the public, for purposes of clarity, we have changed it to read “enforcement.” The result of this change will be that the rule will operate to legally establish a security zone around all tank vessels in the Puget Sound area, and the Captain of the Port will keep the public informed via the methods described in the rule as to when the Coast Guard will enforce the security zone and when it will not. The rule provides blanket authorization for all persons and vessels to enter, transit, and depart the security zone during periods when the Coast Guard has suspended enforcement thereof. Decisions to enforce or suspend enforcement of the security zone remain within the discretion of the Captain of the Port.

We received one letter with two comments. The first comment concerned the methods of notifying the public when the security zone was activated. The commenter suggested the notification be located on the 13th Coast Guard District Web page and possibly obtaining an 800 number. In addition to notifying the public through the Federal Register, Broadcast Notice to Mariners, Local Notice Mariners, and press releases, the COTP will also publish the enforcement notice via Marine Safety Office Puget Sound's internet web page located at http://www.uscg.mil/​d13/​units/​msopuget/​. In addition, 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 [phone] or [phone] to obtain information concerning enforcement of this rule. Given the various other methods the Coast Guard intends to utilize to notify the public regarding the enforcement of this rule and the manned telephone lines, the Coast Guard finds that an additional 800 number would be costly and would not significantly improve public notification. Accordingly, the Coast Guard does not intend to purchase a separate 800 number.

The second comment addressed the VHF-FM channels that the tank ship would be monitoring. The commenter suggested that to avoid unanswered calls, anyone needing to enter the 100-yard exclusion zone should contact the on-scene official patrol or tank ship master on channel 13 only. If an on-scene official patrol is enforcing the zone, vessels should contact the on-scene official patrol on channel 16. In the absence of an official patrol, the vessel should contact the tank ship master on channel 13.

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.

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 rule would restrict access to a 500-yard area surrounding tank ships, the effect of this rule will not be significant because: (i) Individual tank ship security zones are limited in size; (ii) the on-scene official patrol or tank ship master may authorize access to the tank ship security zone; (iii) the tank ship security zone for any given transiting tank ship 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. 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 would 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 tank ships 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) Individual tank ship security zones are limited in size; (ii) The on-scene official patrol or tank ship master may authorize access to the tank ship security zone; (iii) the tank ship security zone for any given transiting tank ship 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 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking.

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 final 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

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 tank ships, and the Coast Guard's commitment to working with the Tribes, we have determined that tank ship 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.

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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs 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 conclude that under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or 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

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

1. The authority citation for Part 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation No. 0170.

2. Add § 165.1313 to read as follows:

§ 165.1313

Security Zone Regulations, Tank Ship Protection, Puget Sound and adjacent waters, Washington

(a) Notice of enforcement or suspension of enforcement. The tank ship security 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 tank ship security 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 tank ship security zone is suspended.

(b) The following definitions apply to this section:

(1) 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.

(2) Navigable waters of the United States means those waters defined as such in 33 CFR part 2.

(3) Navigation Rules means the Navigation Rules, International-Inland.

(4) Official patrol means those persons designated by the Captain of the Port to monitor a tank ship security zone, permit entry into the zone, give legally enforceable orders to persons or vessels with in 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.

(5) Public vessel means vessels owned, chartered, or operated by the United States, or by a State or political subdivision thereof.

(6) Tank ship security zone is a regulated area of water, established by this section, surrounding tank ships for a 500-yard radius that is necessary to provide for the security of these vessels.

(7) Tank ship means a self-propelled tank vessel that is constructed or adapted primarily to carry oil or hazardous material in bulk as cargo or cargo residue in the cargo spaces. The definition of tank ship does not include tank barges.

(8) 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 zone: There is established a tank ship security zone extending for a 500-yard radius around all tank ships located in the navigable waters of the United States in Puget Sound, WA, east of 123 degrees, 30 minutes West Longitude. [Datum: NAD 1983]

(d) Compliance: The tank ship security zone established by this section remains in effect around tank ships at all times, whether the tank ship is underway, anchored, or moored. Upon notice of enforcement by the Captain of the Port Puget Sound, the Coast Guard will enforce the tank ship security 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 tank ship security zone, consistent with the Navigation Rules.

(e) The Navigation Rules shall apply at all times within a tank ship security zone.

(f) When within a tank ship security zone all vessels shall operate at the minimum speed necessary to maintain a safe course and shall proceed as directed by the on-scene official patrol or tank ship master. No vessel or person is allowed within 100 yards of a tank ship, unless authorized by the on-scene official patrol or tank ship master.

(g) To request authorization to operate within 100 yards of a tank ship, contact the on-scene official patrol or tank ship master on VHF-FM channel 16 or 13.

(h) When conditions permit, the on-scene official patrol or tank ship master should:

(1) Permit vessels constrained by their navigational draft or restricted in their ability to maneuver to pass within 100 yards of a tank ship in order to ensure a safe passage in accordance with the Navigation Rules;

(2) Permit commercial vessels anchored in a designated anchorage area to remain at anchor when within 100 yards of a passing tank ship; and

(3) Permit vessels that must transit via a navigable channel or waterway to pass within 100 yards of a moored or anchored tank ship with minimal delay consistent with security.

(i) Exemption. Public vessels as defined in paragraph (b) of this section are exempt from complying with paragraphs (c), (d), (f), (g), (h), (j), and (k) of this section.

(j) Exception. 33 CFR Part 161 promulgates Vessel Traffic Service regulations. Measures or directions issued by Vessel Traffic Service Puget Sound pursuant to 33 CFR Part 161 shall 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 tank ship, 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.

Dated: March 20, 2003.

Danny Ellis,

Captain, Coast Guard, Captain of the Port, Puget Sound.