2010-29422. Safety Zone; Fleet Week Maritime Festival, Pier 66, Elliot Bay, Seattle, WA

AGENCY:

Coast Guard, DHS.

ACTION:

Supplemental notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to amend its regulation establishing a permanent safety zone extending 100 yards from Pier 66, Elliot Bay, WA to ensure adequate safety during the parade of ships and aerial demonstration for Fleet Week. This supplemental notice of proposed rulemaking introduces revisions to enforcement dates, times and location of this safety zone. This safety zone is necessary in order to restrict vessel movement for participant and spectator safety in the proximity of Pier 66, Elliot Bay, WA to provide unencumbered access for response craft in the event of an emergency during the annual parade of ships and aerial demonstration.

DATES:

Comments and related material must be received by the Coast Guard on or before December 27, 2010.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-0062 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand Delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail LTJG Ashley M. Wanzer, Sector Puget Sound Waterways Management Division, Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-0062), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov,, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2010-0062” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2; by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010-0062” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Background and Purpose

On February 25, 2010 we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Fleet Week Maritime Festival, Pier 66, Elliot Bay, Seattle, WA” (Docket number USCG-2010-0062) in the Federal Register (75 FR 037). This supplemental notice of proposed rulemaking provides simplification of the enforcement dates, times and location for this safety zone. Through this regulation, the U.S. Coast Guard is proposing to establish a permanent safety zone extending 100 yards from Pier 66, Elliot Bay, WA to restrict the movement of vessels for participant and spectator safety prior to, during, and immediately after the annual parade of ships and aerial demonstration thereby providing unencumbered access for response craft in the event of an emergency during this event.

The Fleet Week Parade of Ships has historically resulted in vessel congestion near Pier 66, Elliot 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 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

Seventeen comments stated that this regulation hinders free speech. This regulation establishes a safety zone to ensure safety of the boating public during Naval and aerial spectator events associated with the annual Fleet Week parade of ships. The Coast Guard has narrowed the timeframe that the zone is enforced to include thirty minutes prior to and thirty minutes following the parade of ships and aerial demonstration. The minimal size of this safety zone will enable displays of free speech in visibly accessible areas to take place on adjacent waters and along the pier.

Three comments stated that this regulation does not allow for public comment and one comment requested the public comment be made available and posted. The Coast Guard has taken appropriate action in accordance with the Administrative Procedure Act (APA) to request public comment and publicize this regulation through all required avenues including the Federal Register and http://www.regulations.gov. Additionally, public comment is provided for in four methods: The Federal eRulemaking Portal, fax, mail and hand delivery as described in the Notice of Proposed Rulemaking (75 FR 037). These methods of comment have properly provided ample opportunity to comment on this regulation and the Coast Guard has received 72 comments on this rulemaking via these means.

Ten requests for a public meeting were received. The Coast Guard does not plan to hold a public meeting at this time. The Coast Guard has determined the extended comment period for the notice of proposed rulemaking combined with numerous means available for public comment provide adequate and sufficient time for the public to express their concerns. Additional opportunity for public comment is made available on this supplemental notice of proposed rulemaking.

The Coast Guard received one comment stating that expansion of the safety zone is not warranted. This safety zone is not being expanded based on previous versions, but will merely be permanently established under 33 CFR part 165.

Three comments stated the rulemaking process violates numerous regulations. The Coast Guard has complied with the Administrative Procedure Act in drafting and informing the public of this regulation.

Five comments were received stating that this zone is unnecessary because there is a minimal risk of congestion at Pier 66. This event has historically resulted in vessel congestion near Pier 66 before and after the fleet arrival which compromises participant and spectator safety. This regulation is necessary to ensure the safety of participating vessels by providing unobstructed lanes for the passing of large ships during the fleet arrival and unobstructed access for response craft in the event of an emergency.

Three comments stated that this event takes place without a marine event permit as required by 33 CFR part 100. The purpose and intent of 33 CFR part 100 is to provide effective control over marine events to insure safety of life during the marine event. The Coast Guard is involved in the planning and participation of this event thereby upholding the intent of 33 CFR part 100.

One comment stated this regulation was in violation of Executive Order 12866, Regulatory Planning and Review, section 1(b)(10), which states, “Each agency shall avoid regulations and guidance documents that are inconsistent, incompatible, or duplicative with its other regulations and guidance documents or those of other Federal agencies.” The Coast Guard is not violating this Executive order by not requiring a marine event permit because the purpose and intent of 33 CFR part 100 “is to provide effective control, over regattas and marine parades * * * to ensure safety of life in the regatta or marine parade area”, which we are accomplishing through active participation in planning of the event and this rulemaking.

Two comments stated concern regarding the Coast Guard enforcing its own rules. In accordance with 33 CFR part 165, the Coast Guard is the agency through which limited access areas, including safety and security zones, are established. The establishment of such areas is considered rulemaking, which means that each regulation that establishes a limited access area must first go through the rulemaking process and a multi-level review. In this case, the rulemaking process has provided for public participation during two separate public comment periods. Additionally, this regulation must be reviewed by Congress under the Congressional Review Act. Though the Coast Guard is an enforcer of the rule, it does not act alone in the rulemaking process.

Two comments stated the helicopter demonstration should be included in this regulation. The regulation has been amended to include the helicopter display in the definition of “parade of ships.” One of these comments further stated that the 2009 helicopter demonstration does not comply with Coast Guard policy outlined in COMDINST M5728.2D. COMDINST M5728.2D is the Coast Guard Public Affairs Manual intended to provide non-specific guidelines for public request of Coast Guard assets during events. COMDINST M5728.2D addresses aerial displays stating that (a) Coast Guard aircraft may participate in appropriate public events; (d) Aerial demonstrations must be over open water or suitable open areas of land, where spectators will be safe. The functional capabilities of the Coast Guard helicopter fleet does not preclude involvement in this marine event based on the proximity to Pier 66 as presented by this comment. This safety zone provides a necessary measure of safety by preventing spectator watercraft from interfering or compromising the safety of the rescue swimmer entering the water during the aerial demonstration.

The Coast Guard received three comments stating that the zone is not adequately described. The Coast Guard has amended this proposed regulation in this supplemental notice of proposed rulemaking by modifying the effective period for the zone to 30 minutes prior to and 30 after the conclusion of the parade of ships. In addition, we have specified the effective day by stating that it typically occurs on either the last Wednesday in July or the first Wednesday in August. Lastly, we have provided greater granularity for the geographic coordinates of the safety zone itself.

Four comments stated that this safety zone is unnecessary due to the Naval Vessel Protection Zone (NVPZ). The NVPZ regulation only applies to U.S. naval vessels greater than 100 feet in length overall. The annual Fleet Week parade of ships involves visiting foreign naval vessels and/or Coast Guard vessels which are not protected by the NVPZ. Lastly, the NVPZ does not apply to the aerial demonstration during the parade of ships.

One comment stated that this safety zone is unnecessary for emergency response. This safety zone is necessary to provide an unobstructed traffic lane for response craft during the event. Without this safety zone, response craft would need to maneuver around spectator vessels and in the event of an emergency, these vessels would become hazardous to the response effort.

One comment stated concern for the overall safety of Fleet Week activities based on participation of a U.S. Navy Trident nuclear-powered submarine in 1997 and 2000. This regulation will restrict vessel movement 100 yards from Pier 66, prior to, during and immediately following the parade of ships and aerial demonstration to provide navigational safety for this marine event. This regulation will extend 100 yards from Pier 66 annually regardless of the type of participating vessels in the parade of ships.

One comment stated that the Coast Guard “opts for secrecy” and mentions that the opportunity to comment was not posted in the Local Notice to Mariners or on the District Thirteen Webpage. This regulation was published in accordance with the Administrative Procedure Act (APA) in the Federal Register with a comment period of 90 days in order to allow ample opportunity for public participation in this rulemaking. An opportunity to provide public comments provided in the notice of proposed rulemaking (75 FR 037) was made available via four methods as stated above. Posting regulations in the Local Notice to Mariners or on the District thirteen Web page is not required per the APA.

One comment stated the violation penalty should be mentioned in this regulation. This proposed regulation would be a component of 33 CFR part 165 which provides general and specific information for Regulated Navigation Areas and Limited Access Areas. Under 33 CFR part 165, Subpart A—General, 165.9(b) states, “These zones and areas are created under the Ports and Waterways Safety Act, 33 U.S.C. 1221-1232.” 33 U.S.C. 1232 provides enforcement provisions for civil and criminal penalties for violation of the Ports and Waterways Safety Act.

One comment supported the adoption of less restrictive regulations concerning water-borne peaceful protests referencing Bay Area Peace Navy v. United States. This safety zone is minimal in size and short in duration, thus accommodating all waterway users.

One comment stated this regulation amounts to institutionalized harassment. 33 CFR part 165 authorizes the establishment of safety zones by the Captain of the Port for safety and environmental purposes.

One comment stated the Coast Guard never explained how vessels in Elliot Bay could endanger Navy Officers when the Coast Guard invites the public to both locations. This regulation does not establish security measures, but establishes a safety zone to provide increased safety for the maritime public during this annual event.

One comment stated this regulation does not provide alternative channels for water-borne protestors to convey their message. Due to the small size of the proposed safety zone and short enforcement period, the Coast Guard believes that there is minimal impact on water-borne protestors and other marine activities that can take place outside the safety zone.

Two comments stated that the “12-hour effective period” would prohibit protestors from exercising their right to protest the parade to spectators assembled on the pier. The “effective time” of a regulation includes times of enforcement and non-enforcement. “Enforcement times” of a regulation are the times in which the regulatory action will be enforced, when violators will be subject to corrective direction and/or fines.

One comment stated this proposed rule would burden substantially more speech than is necessary to further the government's legitimate interests. The Coast Guard believes that this proposed safety zone is small enough in size and short enough in duration that it will not substantially hinder protest activities for water-borne protest boats and others may congregate in the vicinity of Pier 66 while spectators are assembling and dispersing from this marine event when this safety zone is not enforced.

One comment stated this regulation fails to provide alternative means for the protest boats to communicate their message. Revisions to this regulation provide additional access to water-borne protest activities by only restricting vessel movement 100 yards from Pier 66 immediately prior to, during and immediately following the parade of ships and aerial display. Also, during times of enforcement, water-borne protestors may congregate on the waters immediately adjacent to this zone.

The Coast Guard received five comments related to the need for protestors to have access to communicate their message to spectators on the pier. Revisions to this regulation provide access for water-borne protest activities, enabling protestors to communicate their message utilizing a water-borne display.

Discussion of Proposed Rule

This proposed regulation establishes vessel restrictions necessary to provide safety for the maritime public during the parade of ships and aerial display. This proposed rule will control the movement of all vessels and persons within the indicated regulated area surrounding Pier 66, Elliot Bay, WA prior to, during and immediately after this marine event. This zone would be delineated by the presence of on-scene patrol craft and enforced immediately prior to, during and immediately after the scheduled annual parade of ships and aerial demonstration for Fleet Week events. This proposed safety zone will also provide unencumbered access for rescue craft in the event of an emergency.

This regulation has been revised as follows: The Coast Guard has narrowed the timeframe that the zone is enforced to include “thirty minutes prior to the beginning and thirty minutes following the conclusion of the parade of ships and aerial demonstration.” The effective time for this regulation has been changed to: “This rule is effective 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.” The location of this safety zone has been changed to “All waters extending 100 yards from Pier 66, Elliot Bay, WA within a box encompassed by the points, 47° 36.719′ N & 122° 21.099′ W, 47° 36.682′ N & 122° 21.149′ W, 47° 36.514′ N & 122° 20.865′ W, and 47° 36.552′ N & 122° 20.814′ W.”

The Coast Guard will provide notice to the public for enforcement of this zone through the Local Notice to Mariners and marine information broadcast on VHF-FM Ch. 16 on the day of the event.

Regulatory Analyses

We developed this proposed 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 proposed 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 proposed rule is not a significant regulatory action because the period of enforcement and size of this safety zone is minimal.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would 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 would 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), we want to assist small entities in understanding this proposed 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 LTJG Ashley M. Wanzer. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

Collection of Information

This proposed rule would call 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 proposed 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 proposed 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 proposed rule would 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 proposed 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 proposed 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

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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.

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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Environment

We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves a safety zone extending 100 yards from Pier 66, Elliot Bay, which will be activated and thus subject to enforcement, 30 minutes prior to and 30 minutes following scheduled annual parade of ships events. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. A preliminary environmental analysis checklist supporting this determination is available in the docket 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 proposes to amend 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; 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.

2. Add § 165.1330 to read as follows:

§ 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, Elliot Bay, WA within a box encompassed by the points, 47° 36.719′ N & 122° 21.099′ W, 47° 36.682′ N & 122° 21.149′ W, 47° 36.514′ N & 122° 20.865′ W, and 47° 36.552′ N & 122° 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 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 [phone]. 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 effective 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: October 26, 2010.

S. J. Ferguson,

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