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

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is adopting the subject interim rule published in the Federal Register August 20, 2009, as a final rule without change. 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 rule is effective January 8, 2010.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2009-0331 and are available online by going to http://www.regulations.gov,, inserting USCG-2009-0331 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call or e-mail LTJG Ian Hanna, Sector Seattle, Waterways Management Division, Coast Guard; telephone 206-217-6045, e-mail Ian.S.Hanna@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

On August 20, 2009, we published an interim rule with request for comment entitled Security and Safety Zone; Cruise Ship Protection, Elliott Bay and Pier-91, Seattle, Washington in the Federal Register (Volume 74, Number 160, Page 42026-42028). We received no comments on the interim rule. No parties requested a public meeting, and no meeting was held. We are adopting the interim rule as final without change.

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 and the boating public. The Coast Guard conducted a safety and security risk assessment of the Cruise Terminal at Pier 91 (at 47°37.58′ N/122°23.0′ W), Seattle Washington, and the surrounding waterways. As a result of this assessment, the Captain of the Port found sufficient cause to require these safety and security zones. 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. Therefore, in order to protect these vessels, the safety and security 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 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. 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, and 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.

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.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could 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 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 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 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.

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

For the reasons discussed in the preamble, under authority of 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; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, the Coast Guard adopts the interim rule amending 33 CFR part 165 that was published at 74 FR 42028 on August 20, 2009, as a final rule without change.