[Federal Register Volume 74, Number 160 (Thursday, August 20, 2009)]
[Rules and Regulations]
[Pages 42026-42028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19958]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0331]
RIN 1625-AA00


Security and Safety Zone; Cruise Ship Protection, Elliott Bay and 
Pier-91, Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a security and safety zone in 
the waters of Elliot Bay. Due to the physical location of Pier 91, 
Large Passenger Cruise Vessels are required to maneuver near a 
prominent marina frequented by a large recreational vessel community 
and near other numerous large commercial fishing vessels located at 
adjacent piers, posing a high safety and security risk when Large 
Passenger Cruise Vessels are entering and departing the cruise 
terminal. Due to the inherent safety and security risks associated with 
the movement of a cruise ship into or out of this especially tight 
berth at Pier 91, coupled with the large recreational boating community 
and commercial traffic in the area, the Coast Guard Captain of the Port 
Puget Sound finds it necessary to enact these safety and security 
zones.

DATES: This interim rule is effective starting August 20, 2009. 
Comments and related material must reach the Coast Guard on or before 
October 5, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0331 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (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 interim 
rule, call or e-mail LT Steven Stowers, Sector Seattle, Waterways 
Management Division, Coast Guard; telephone 206-217-6045, e-mail 
<a href="/cdn-cgi/l/email-protection#5f0c2b3a293a31711b710c2b30283a2d2c1f2a2c3c3871323633"><span class="__cf_email__" data-cfemail="e6b59283908388c8a2c8b5928991839495a693958581c88b8f8a">[email protected]</span></a>. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

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-2009-0331), 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 
deliver, 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-2009-0331'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8[frac12] 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 this 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-2009-0331'' 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 on or before October 5, 2009 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.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because the rule would not be in effect in 
time for the upcoming cruise ship season, posing high safety and 
security risks to Large

[[Page 42027]]

Passenger Cruise Vessels, causing safety and security vulnerabilities 
while moored and also when maneuvering into and out of the cruise 
terminal.
    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 absence of safety and security 
zones for this area allows for vessels to congregate in the path of 
transiting Large Passenger Cruise Vessels, there in, restricting the 
maneuverability of such large vessels and posing a significant safety 
risk. Additionally, without the establishment of these zones, vessels 
would be able to transit in close proximity to moored Large Passenger 
Cruise Vessels thereby posing a security threat to those vessels.

Background and Purpose

    The Coast Guard is establishing these safety and security zones to 
ensure adequate measures are in place for the safety and security of 
Large Passenger Cruise Vessels. The Coast Guard conducted a safety and 
security risk assessment of the Cruise Terminal at Pier 91 (at 
47[deg]37.58' N/122[deg]23.0' W), Seattle, Washington, and the 
surrounding waterways. As a result of this assessment, the Coast Guard 
Captain of the Port Puget Sound found sufficient cause to require these 
safety and security zones to protect Large Passenger Cruise Vessels as 
well as the boating public. These zones are necessary to ensure the 
safety and security of not only moored Large Passenger Cruise Vessels, 
but also for Large Passenger Cruise Vessels that are in transit while 
entering or departing the Pier 91 cruise terminal at the Port of 
Seattle. Due to the physical location of Pier 91, Large Passenger 
Cruise Vessels are required to maneuver near a prominent marina and 
other numerous large fishing vessels located at adjacent piers when 
entering and departing the cruise terminal. These zones will be 
enforced during the arrival and departure of Large Passenger Cruise 
Vessels and during the presence of moored Large Passenger Cruise 
Vessels at Pier 91, Seattle, Washington.

Regulatory Analyses

    We developed this interim 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 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 rule will be enforced to enhance the 
Security and Safety Zone for the protection of large passenger vessels 
under 33 CFR 165.1317.

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 will not 
have a significant economic impact on a substantial number of small 
entities. The 100 yard security and safety zone around Pier 91 when 
Large Passenger Cruise Vessels are present, allows a large enough area 
for pleasure craft to transit the area unhindered. Additionally, the 
security and safety zone that is in place during the arrival and 
departure of Large Passenger Cruise Vessels in and out of Pier 91 is 
short in duration, such that, it should not adversely affect other 
vessel traffic in the area.
    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 offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

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 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

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination

[[Page 42028]]

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

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 0023.1 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 concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. An environmental analysis checklist and a 
categorical exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

     Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. A new Sec.  165.1324 is added to read as follows:


Sec.  165.1324  Safety and Security Zone; Cruise Ship Protection, 
Elliott Bay and Pier-91, Seattle, Washington.

    (a) Safety and Security Zones. (1) The following area is a safety 
and security zone: All waters within the following points: a rectangle, 
starting at 47[deg]37'53'' N/122[deg]23'07'' W, thence south to 
position 47[deg]37'06'' N/122[deg]23'07'' W, thence east to position 
47[deg]37'06'' N/122[deg]22'43'' W, thence north to position 
47[deg]37'58'' N/122[deg]22'43'' W. This zone will be enforced only 
during the arrival or departure of Large Passenger Cruise Vessels at 
Pier 91, Seattle, Washington.
    (2) The following area is a safety and security zone: All waters 
within 100 yards of Pier 91, Seattle, Washington, at approximate 
position 47[deg]37'35'' N/122[deg]23'00'' W. This zone will be enforced 
only when a Large Passenger Cruise Vessel is moored at Pier 91.
    (b) Regulations. In accordance with the general regulations in 33 
CFR Part 165, Subpart D, no person or vessel may enter or remain in 
either Safety and Security Zone except for vessels authorized by the 
Captain of the Port or Designated Representatives.
    (c) Definitions. The following definitions apply to this section:
    Facility Security Officer means the person designated as 
responsible for the development, implementation, revision and 
maintenance of the facility security plan and for liaison with the COTP 
and Company and Vessel Security Officers.
    Large Passenger Cruise Vessel means any cruise ship over 100 feet 
in length carrying passengers for hire. Large Passenger Cruise 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.
    Official Patrol means those persons designated by the Captain of 
the Port to monitor a Large Passenger Cruise 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 (e) to enforce 
this section are designated as the Official Patrol.
    (d) Authorization. To request authorization to operate within 100 
yards of a Large Passenger Cruise Vessel that is moored at Pier 91, 
contact the on-scene Official Patrol on VHF-FM channel 16 or 13 or the 
Facility Security Officer at (206) 728-3688.
    (e) 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 Cruise 
Vessel, any Federal 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.
    (f) 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: April 24, 2009.
Suzanne E. Englebert,
Captain, U.S. Coast Guard Captain of the Port, Puget Sound.
[FR Doc. E9-19958 Filed 8-19-09; 8:45 am]
BILLING CODE 4910-15-P


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