[Federal Register: December 27, 2002 (Volume 67, Number 249)]
[Proposed Rules]
[Page 79017-79020]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de02-35]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD13-02-018]
RIN 2115-AA97
Security Zone: Protection of Tank Ships, Puget Sound, WA
AGENCY: Coast Guard, DOT.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: In order to promptly respond to an increase in the Coast
Guard's maritime security posture, the Coast Guard proposes to
establish regulations for the safety or security of tank ships in the
navigable waters of Puget Sound and adjacent waters, Washington. This
proposed security zone, when activated 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.
DATES: Comments and related material must reach the Coast Guard on or
before February 25, 2003.
ADDRESSES: You may mail comments and related material to Commanding
Officer, Marine Safety Office Puget Sound, 1519 Alaskan Way South,
Seattle, Washington 98134. Comments and material received from the
public, as well as documents indicated in this preamble as being
available in the docket, will become part of this docket and will be
available for inspection or copying at 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: LT A. L. Praskovich, c/o Captain of
the Port Puget Sound, (206) 217-6232.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names, addresses,
identify this rulemaking (CGD13-02-018) and the specific section of
this proposal to which each comment applies, and give the reason for
each comment. Please submit two copies of all comments and attachments
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. Persons wanting acknowledgement of
receipt of comments should enclose stamped, self-addressed postcards or
envelopes.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to the Marine Safety Office at the address
under ADDRESSES. The request should include the reasons why a hearing
would be beneficial. If it is determined that the opportunity for oral
presentations will aid this rulemaking, the Coast Guard will hold a
public hearing at a time and place to be announced by a later notice in
the Federal Register
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 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. 13273, 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 section 165.T13-011)
establishing tank ship protection zones, which expires on April 15,
2003. The Coast Guard, through this action, intends to assist tank
ships by establishing a permanent security zone that upon activation by
[[Page 79018]]
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 Rule
This proposed rule, for safety and security concerns, would control
vessel movement in a regulated area surrounding tank ships. This
proposed rule would be activated from time to time by the Captain of
the Port Puget Sound for such time as he deems necessary to prevent
damage or injury to any vessel or waterfront facility, to safeguard
ports, harbors, territories, or waters of the United States or to
secure the observance of the rights and obligations of the United
States. The Captain of the Port Puget Sound will cause notice of the
activation of this security zone to be made by all appropriate means to
effect the widest publicity among the affected segments of the public.
For the purpose of this regulation, a tank ship means a self-propelled
tank vessel 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. All vessels
within 500 yards of a tank ship shall operate at the minimum speed
necessary to maintain a safe course, and shall proceed as directed by
the official patrol. No vessel, except a public vessel (defined below),
is allowed within 100 yards of a tank ship, unless authorized by the
official patrol or tank ship master. Vessels requesting to pass within
100 yards of a tank ship shall contact the official patrol on VHF-FM
channel 16 or 13. The official patrol or tank ship master may permit
vessels that can only operate safely in a navigable channel to pass
within 100 yards of a tank ship 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
proposed rule. Similarly, commercial vessels anchored in a designated
anchorage area may be permitted to remain at anchor within 100 yards of
passing tank ships. Public vessels for the purpose of this Rule are
vessels owned, chartered, or operated by the United States, or by a
State or political subdivision thereof.
Regulatory Evaluation
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. It is not ``significant''
under the regulatory policies and procedures of the Department of
Transportation (DOT) (44 FR 11040, February 26, 1979).
We expect the economic impact of this proposed 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 proposed rule would restrict access to the regulated
area, the effect of this proposed rule will not be significant because:
(i) Individual tank ship security zones are limited in size; (ii) the
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 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 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 proposed 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
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 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 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 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This proposed 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 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 or more in any
one year. Though this proposed rule will not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
[[Page 79019]]
Taking of Private Property
This proposed 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 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 proposed 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 proposed 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
Proposed 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 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. 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
The Coast Guard's preliminary review indicates this proposed rule
is categorically excluded from further environmental documentation
under figure 2-1, 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 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; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. Add Sec. 165.1313 to read as follows:
Sec. 165.1313 Security Zone Regulations, Tank Ship Protection Zone,
Puget Sound and adjacent waters, Washington
(a) General. The tank ship protection zone established by this
section will be effective only upon activation by the Captain of the
Port Puget Sound. Captain of the Port Puget Sound will cause notice of
the activation of the tank ship protection 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
announcement 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 the tank ship protection zone is
deactivated.
(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 protection 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) of this section to enforce this
section are designated as the Official Patrol.
(5) Public vessels means vessels owned, chartered, or operated by
the United States, or by a State or political subdivision thereof.
(6) Tank Ship Protection Zone is a 500-yard regulated area of water
surrounding tank ships that is necessary to provide for the safety or
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) This section applies to any vessel or person in the navigable
waters of the United States east of 123 degrees, 30 minutes West
Longitude. [Datum: NAD 1983]
(d) Upon activation by the Captain of the Port Puget Sound, a tank
ship protection zone exists around tank ships at all times in the
navigable waters of the United States to which this section applies,
whether the tank ship is underway, anchored, or moored.
(e) The Navigation Rules shall apply at all times within a tank
ship protection zone.
(f) When within a tank ship protection zone all vessels shall
operate at the minimum speed necessary to maintain a safe course and
shall proceed as directed by the official patrol or tank ship master.
No vessel or person is allowed within 100 yards of a tank ship, unless
authorized by the official patrol or tank ship master.
(g) To request authorization to operate within 100 yards of a tank
ship, contact the official patrol or tank ship master on VHF-FM channel
16 or 13.
[[Page 79020]]
(h) When conditions permit, the official patrol or tank shipmaster
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) above are
exempt from complying with 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 Sec.
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: December 9, 2002.
D. Ellis,
Captain, Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 02-32721 Filed 12-26-02; 8:45 am]
BILLING CODE 4910-15-P