[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30345-30348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13899]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0105]
RIN 1625-AA87


Security Zone; Seattle's Seafair Fleet Week Moving Vessels, Puget 
Sound, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is amending its Seattle Seafair Fleet Week 
Moving Vessel Security Zone regulation. In response to public comment, 
we are not finalizing our proposal to remove existing language about a 
published notice identifying the designated participating vessels. 
However, last minute changes to the participating vessels in the Parade 
of Ships during Fleet Week may cause the published notice to become 
outdated after publication. In that case the Coast Guard will use 
actual notice to enforce a security zone around participating vessels, 
as well as other methods of informing the public about changes, and we 
have amended the regulation to reflect the possibility of changes.

DATES: This rule is effective July 30, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0105 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Petty Officer Zachary Spence, Sector Puget Sound 
Waterways Management Branch, U.S. Coast Guard; telephone 206-217-6051, 
email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On July 10, 2012 (77 FR 40521), the Coast Guard Captain of the 
Port, Sector Puget Sound, published a final rule that became effective 
Aug. 1, 2012; the Seattle's Seafair Fleet Week Moving Vessels security 
zone. On April 6, 2018, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled Security Zone; Seattle's Seafair Fleet Week 
Moving Vessels, Puget Sound, WA (83 FR 14801) in which we proposed to 
amend the current final rule. There we stated why we issued the NPRM, 
and invited comments on our proposed regulatory action. During the 
comment period that ended May 21, 2018, we received three written 
submissions.

III. Legal Authority and Need for Rule

    The Coast Guard is amending its Seattle Seafair Fleet Week Moving 
Vessel Security Zone regulation, 33 CFR 165.1333, under authority in 33 
U.S.C. 1231. In past years, some of the designated participating 
vessels which required the security zone have been rescheduled at the 
last moment due to operational needs, and as a result, the changes 
precluded the Coast Guard from providing sufficient notice of which 
vessels are participating in the parade of ships in the Federal 
Register. The amended regulation will allow the Coast Guard to publish 
dates and times of the Parade of Ships in the Federal Register and 
Local Notice to Mariners, and of the designated participating vessels 
it is aware of at the time it issues the notice, and provide that 
actual notice will be used to enforce the security zone around any 
vessels designated after the notice has been issued. Further, for the 
reasons discussed above, the amended regulation will require that the 
Coast Guard publish the above information before the beginning of the 
Parade of Ships instead of the three days currently provided for in the 
regulation. The names of the designated vessels will also be published 
in a Broadcast Notice to Mariners.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received three written submissions on our NPRM 
published April 6, 2018. The first commenter requested to stop the 
Russian and Chinese fishing ships from fishing within the U.S. 
Exclusive Economic Zone. As this comment does not relate to this 
rulemaking, no response is required. The second commenter requested the 
Agency stop

[[Page 30346]]

wasting water from several of the Snake River hydroelectric dams that 
provide power and water for the navigation of vessel traffic for the 
region. This comment also does not relate the subject matter of this 
rulemaking and no response is required.
    The third commenter provided a number of different concerns, each 
of which we address in turn as follows.
    First, the commenter provided that the Thirteenth Coast Guard 
District failed to contact ``interested community groups'' as 
recommended by the Office for Civil Rights and Civil Liberties, U.S. 
Department of Homeland Security, prior to implementation of exclusion 
zones. As noted by the commenter, the Coast Guard published a notice of 
proposed rulemaking in the Federal Register, providing notice of a 
proposed change of the notice of an annual security zone.
    Second, the commenter provided that the Parade of Ships fails to 
comply with 33 CFR 100.15, which details the procedures for submission 
of a marine event permit, and that the event had never been conducted 
in a lawful manner. The Coast Guard has determined that in light of the 
existing regulations in place, such as the Naval Vessel Protection Zone 
in 33 CFR 165.2030, and the subject regulation, 33 CFR 165.1333, the 
Parade of Ships will not introduce extra or unusual hazards to the 
safety of life on the navigable waters of the United States such that a 
marine event permit would be required under 33 CFR 100.15. The 
commenter provided a discussion on the information required in a marine 
event permit application. As the discussion on what is required in a 
marine event permit does not relate to the proposed amendments to 33 
CFR 165.1333, no further response is required.
    Third, the commenter provided that proposed revisions to 33 CFR 
165.1333 are actually due to previous Coast Guard errors instead of 
changing schedules, because it appears from prior correspondence with 
the Coast Guard that the Coast Guard may have mistakenly left out U.S. 
Navy vessels from the applicability of this zone. Naval Vessel 
Protection Zones under 33 CFR 165.2030 apply to large U.S. Navy 
vessels, which have historically participated in the Parade of Ships. 
As stated in the NPRM for the regulatory change we proposed, the reason 
why this rule is being amended is due to last minute changes in the 
vessels participating in the Parade of Ships due to operational needs. 
Based on this comment, however, we have decided to make a change from 
our proposed amendment to Sec.  165.1333. We are amending Sec.  
165.1333(a) to explain that the Coast Guard may use actual notice to 
enforce security zones around participating vessels not included in the 
notice, in situations when due to operational needs there is a change 
after the notice has been issued and the COTP needs to add a vessel to 
the list of designated participating vessels. In those situations the 
Coast Guard will also announce any such changes in the Local Notice to 
Mariners. The reference to actual notice reflects existing authorities 
and enforcement practices, but we hope that stating it in the Code of 
Federal Regulations will be helpful. The change is within the scope of 
the proposed rule, which envisioned using actual notice for security 
zones around all participating vessels.
    The COTP does not designate large U.S. Navy vessels--those more 
than 100 feet in length overall--that participate in the parade as 
designated participating vessels because persons who violate the naval 
vessel protection zone around those vessels, which are issued under 14 
U.S.C. 91 authority, are already subject to penalties under 33 U.S.C. 
1232. Whether a large U.S. Navy vessels is in Parade of Ships or not, 
it will be surrounded by a naval vessel protection zone and persons 
should comply with the provisions of that regulation.
    Fourth, the commenter provided that Broadcast Notice to Mariners 
before and during the event is insufficient notice. The proposed 
regulatory change provides that the security zones will be enforced 
with actual notice which meets the standard set in 5 U.S.C. 552(a)(1). 
The Coast Guard considered the commenter's concerns about receiving 
Broadcast Notice to Mariners and, in response we revised the regulatory 
text to include an email and a phone number which members of the public 
can contact the Captain of the Port to receive an updated list of 
participating vessels. Furthermore, the Coast Guard actively conducts 
outreach to those participating in planned First Amendment activities 
related to the Parade of Ships so as to ensure the safety of all 
participants, and that participants of such activities are aware of all 
means to obtain the names of the vessels to which regulations apply.
    Fifth, the commenter provided that an accurate list of vessels in 
the Parade of Ships is essential for vessel operators engaged in First 
Amendment activities. The Coast Guard concurs with this comment, but 
has pointed to the problem of last-minute changes making this objective 
difficult to achieve. Instead of eliminating the notice identifying 
participating vessels, as proposed, we will use actual notice to 
enforce security zones around vessels designated after the notice has 
been issued. In addition to actual notice, the Coast Guard will 
broadcast the names of the vessels to which the security zone applies 
using a Broadcast Notice to Mariners.
    Sixth, the commenter provided that the Coast Guard's fear of free 
speech activities is irrational. The Coast Guard's rule amends the 
manner in which notice will be provided as to which vessels will have a 
security zone during the annual Parade of Ships during Fleet Week. The 
Coast Guard strives to ensure that free speech activities are respected 
and accommodated.
    Seventh, the commenter provided that the Coast Guard should require 
an application for the maritime event, pursuant to 33 CFR 100.15, as it 
might allow for citizens to comment on the entire event in a meaningful 
way. The Coast Guard's position with respect to marine event permits 
can be found in the response to this commenter's second comment. 
Citizens may comment on the event in any way that is provided for under 
the protections of the First Amendment.
    Eighth, the commenter provided that proposed revisions to 33 CFR 
165.1333 expand restricted zones in Elliot Bay. The proposed amendment 
to 33 CFR 165.1333 did not expand the geographic size nor timeframe of 
the security zone.
    After considering all the foregoing comments, the Coast Guard 
amended paragraph (a) of the regulatory text to maintain the notice 
while adding a provision providing for the Coast Guard to use actual 
notice for any vessels designated as participating vessels after the 
notice is issued. This maintains the notice but clarifies that we can 
address last minute changes to participating vessels because of 
operational needs. We also amended paragraph (e) to reflect additional 
methods of obtaining an up to date list of participating vessels, and 
we included both the date and times of the period that the regulation 
will be enforced, as opposed to just the date.
    This rule amends the way in which the Coast Guard informs the 
public of the Seattle Seafair Fleet Week Parade. In order to provide 
notice to the public regarding the vessels requiring the security 
zones, the Coast Guard will continue to publish a notice in the Federal 
Register identifying designated participating vessels. We will also 
list in those notices the times, in addition to the dates, that the 
security zones will be enforced. We will use actual notice to make 
persons aware of changes to the notice identifying designated 
participating vessels and we will

[[Page 30347]]

identify all designated participating vessels, included those added 
late, in both Local Notice to Mariners and Broadcast Notice to 
Mariners.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the fact that this 
rule only changes the means by which the public will be notified about 
the security zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive 
Order13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

E. 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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.1D, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969 (42 U.S.C. 4321-4370f), and have determined 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 rule involves 
amending the way in which the Coast Guard will notify the public which 
vessels are designated participants in Seattle's Seafair Fleet Week. It 
is categorically excluded from further review under paragraph L60(a) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A 
Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping 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

0
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, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Amend Sec.  165.1333 by revising paragraphs (a) and (e) to read as 
follows:

[[Page 30348]]

Sec.  165.1333   Security Zones, Seattle's Seafair Fleet Week moving 
vessels, Puget Sound, WA.

    (a) Location. The following areas are security zones: All navigable 
waters within 500 yards of each designated participating vessel in the 
Parade of Ships while each such vessel is in the Sector Puget Sound 
Captain of the Port (COTP) zone, as defined in 33 CFR 3.65-10, during a 
time specified in paragraph (e) of this section. The Coast Guard will 
publish a notice in the Federal Register each year before the start of 
the Seattle Seafair Fleet Week to identify the designated participating 
vessels for that year. Should information in the notice change after 
publication, as it may for operational reasons, the Coast Guard will 
use actual notice to enforce security zones around participating 
vessels not in the published notice. The Coast Guard will also provide 
this information in the Local Notice to Mariners.
* * * * *
    (e) Annual enforcement period. The security zones described in 
paragraph (a) of this section will be enforced during Seattle Seafair 
Fleet Week each year for a period of up to 1 week. The Seattle Seafair 
Fleet Week will occur annually sometime between July 25 and August 14. 
The annual notice published in the Federal Register identifying the 
designated participating vessels will contain the dates and times that 
this section will be enforced. The Coast Guard will issue a Broadcast 
Notice to Mariners before the start of the Seattle Seafair Fleet Week 
to identify the designated participating vessels for that year. In 
addition, members of the public may contact the Sector Puget Sound COTP 
at (206) 217-6002 for a list of participating vessels.

    Dated: June 22, 2018.
M.M. Balding,
Captain, U.S. Coast Guard, Acting Captain of the Port Puget Sound.
[FR Doc. 2018-13899 Filed 6-27-18; 8:45 am]
 BILLING CODE 9110-04-P


