[Federal Register Volume 70, Number 45 (Wednesday, March 9, 2005)]
[Proposed Rules]
[Pages 11595-11598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4598]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD17-05-002]
RIN 1625-AA11 and 1625-AA87


Regulated Navigation Area and Security Zones; High Capacity 
Passenger Vessels in Alaska

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish moving and fixed 
security zones in the navigable waters of Coast Guard District 17 
around and under all high capacity passenger (HCP) vessels. The zones 
would extend 100 yards from HCP vessels while they are underway and 25 
yards from HCP vessels while they are moored or anchored. The Coast 
Guard also proposes to establish a regulated navigation area that would 
require other vessels operating within 250 yards of a HCP vessel be 
subject to speed restrictions. These security zones and regulated 
navigation area are needed to secure and safeguard HCP vessels and 
ports from sabotage, terrorist acts, and other incidents. Entry into 
these security zones would be prohibited, unless specifically 
authorized by the Coast Guard District 17 Commander, cognizant Captain 
of the Port, or the on-scene official patrol.

DATES: Comments and related material must reach the Coast Guard on or 
before April 8, 2005.

ADDRESSES: You may mail comments and related material to District 17 
(MOC), 709 West 9th St., Room 753, Juneau, Alaska 99801. District 17 
(MOC) maintains the public docket for this rulemaking. 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 District 
17 (MOC), 709 West 9th St., Room 753, Juneau, Alaska 99801 between 9 
a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT Matthew York, District 17 (MOC), 
709 West 9th St., Room 753, Juneau, Alaska 99801, (907) 463-2821.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD17-05-
002), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not plan to hold a public meeting. But you may submit a 
request for a meeting by writing to District 17 (MOC) at the address 
under ADDRESSES explaining why one would be beneficial. If we determine 
that one would aid this rulemaking, we will hold one at a time and 
place announced by a separate notice in the Federal Register.

Background and Purpose

    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia and Flight 93, 
the Federal Bureau of Investigation (FBI) has issued several warnings 
concerning the potential for additional terrorist attacks within the 
United States. In addition, the ongoing hostilities in Afghanistan and 
the conflict in Iraq have made it prudent for U.S. ports to be on a 
higher state of alert because Al-Qaeda and other organizations have 
declared an ongoing intention to conduct armed attacks on U.S. 
interests worldwide.
    The threat of maritime attacks is real as evidenced by the attack 
on the USS COLE and the subsequent attack in October 2002 against a 
tank vessel off the coast of Yemen. These threats manifest a continuing 
threat to U.S. assets as described in the President's finding in 
Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 
2002), that the security of the U.S. is endangered by the September 11, 
2001, attacks and that such aggression continues to endanger the 
international relations of the United States. See also Continuation of 
the National Emergency with Respect to Certain Terrorist Attacks (67 FR 
58317, September 13, 2002), and Continuation of the National Emergency 
with Respect to Persons Who Commit, Threaten To Commit, Or Support 
Terrorism (67 FR 59447, September 20, 2002). The U.S. Maritime 
Administration (MARAD) in Advisory 02-07 advised U.S. shipping 
interests to maintain a heightened status of alert against possible 
terrorist attacks. MARAD more recently issued Advisory 03-05 informing 
operators of maritime interests of increased threat possibilities to 
vessels and facilities and a higher risk of terrorist attack to the 
transportation community in the United States.
    In its effort to thwart terrorist activity, the Coast Guard has 
increased security measures on U.S. ports and waterways. As part of the 
Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), 
Congress amended section 7 of the Ports and Waterways Safety Act 
(PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, 
including the establishment of security zones, to prevent or respond to 
acts of terrorism against individuals, vessels, or public or commercial 
structures. The Coast Guard also has authority to establish security 
zones pursuant to the Act of June 15, 1917, as amended by the Magnuson 
Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing 
regulations promulgated by the President in subparts 6.01 and 6.04 of 
part 6 of title 33 of the Code of Federal Regulations.
    Due to increased awareness of the potential for future terrorist 
attacks, the Coast Guard, as lead Federal agency for maritime homeland 
security, has determined that the Coast Guard District Commander and 
Captain of the Port (COTP) must have the means to be aware of, detect, 
deter, intercept, and respond to asymmetric threats, acts of 
aggression, and attacks by terrorists on the American homeland while 
maintaining our freedoms and sustaining the flow of commerce.
    In this particular rulemaking, to address the aforementioned 
security concerns, and to take steps to prevent the catastrophic impact 
that a terrorist attack against a high capacity passenger (HCP) vessel, 
such as a cruise ship, would have on the public interest, the Coast 
Guard is proposing to establish a moving and a fixed security zone in 
the navigable waters of Coast Guard District 17 around and under all 
high capacity passenger (HCP) vessels extending 100 yards from the 
vessels while they are underway and extending 25 yards from the vessels 
while they moored or anchored. The Coast Guard also proposes that other 
vessels operating within 250 yards of a HCP vessel be subject to speed 
restrictions and other orders as necessary to provide the Coast Guard 
with an enhanced ability to manage vessel traffic in the vicinity of 
HCP vessels and deter potential sabotage, terrorist acts, or other 
incidents involving HCP vessels. These security zones are needed to 
secure and safeguard HCP vessels and ports from

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sabotage, terrorist acts, and other incidents. Entry into this security 
zone would be prohibited, unless specifically authorized by the Coast 
Guard District 17 Commander, cognizant COTP, or the on-scene official 
patrol. The proposal also provides that the Coast Guard District 17 
Commander, cognizant COTP, or on-scene official patrol may be assisted 
by other Federal, State, or local government agencies in enforcing 
these security zones.

Discussion of Proposed Rule

    This proposed rule would control vessel movement in a regulated 
area surrounding high capacity passenger (HCP) vessels to address 
security concerns. It would prohibit persons or vessels from entering a 
security zone that extends 100 yards around and under HCP vessels that 
are underway and 25 yards around and under HCP vessels that are 
anchored or moored within the Coast Guard District 17 zone, except as 
noted in this regulation.
    For the purpose of this regulation, HCP vessels are those vessels 
of U.S. or foreign registry, certificated to carry 500 passengers or 
more. Public vessels are vessels owned, chartered, or operated by the 
United States, or by a State or political subdivision thereof. For the 
purpose of this regulation, Alaska Marine Highway vessels are not HCP 
vessels. The passengers and crew of the respective HCP vessel are 
persons not subject to this regulation. Public vessels, vessels working 
on behalf and at the direction of the HCPs (i.e., local transport of 
passengers, tender vessels, etc.), or vessels granted waiver or 
permission by the 17th Coast Guard District Commander, cognizant 
Captain of the Port (COTP), or on-scene official patrol are vessels not 
subject to this regulation.
    Vessels requesting to enter the security zone must contact the 
Coast Guard District 17 Commander, his or her designated 
representatives, the cognizant COTP, or on-scene official patrol on 
VHF-FM channel 16 or 13. The Coast Guard District 17 Commander, the 
cognizant COTP, or on-scene official patrol may permit vessels to enter 
the security zone if it is necessary to ensure a safe passage in 
accordance with the Navigation Rules or for other good cause. 
Similarly, all vessels anchored in a designated anchorage area may be 
permitted to remain at anchor within 100 yards of a passing HCP vessel.
    All vessels operating within 250 yards of a HCP vessel in the RNA 
must proceed at the minimum speed necessary to maintain a safe course, 
unless required to maintain speed by the navigation rules. All persons 
and vessels within 250 yards of a HCP vessel in the RNA must be 
attentive to and comply with the orders of the District Commander, 
cognizant COTP, or designated on-scene official patrol.

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 
Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS 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) The individual HCP vessel security zones are limited in size; (ii) 
the Coast Guard District 17 Commander, his or her designated 
representatives, the cognizant Captain of the Port, or on-scene 
official patrol may permit vessels to enter the security zone if it is 
necessary to ensure a safe passage in accordance with the Navigation 
Rules or for other good cause; (iii) the Coast Guard District 17 
Commander or cognizant Captain of the Port may grant waivers to certain 
vessels or classes of vessels under this proposal; (iv) the HCP vessel 
security zone for any particular transiting HCP vessel will effect a 
given geographical location for a limited time; and, (v) 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 HCP 
vessels in the navigable waters of Alaska.
    This proposed rule would not have a significant economic impact on 
a substantial number of small entities for the following reasons: (i) 
The individual HCP vessel security zones are limited in size; (ii) the 
Coast Guard District 17 Commander, his or her designated 
representatives, the cognizant Captain of the Port, or on-scene 
official patrol may permit vessels to enter the security zone if it is 
necessary to ensure a safe passage in accordance with the Navigation 
Rules or for other good cause; (iii) the Coast Guard District 17 
Commander or cognizant Captain of the Port may grant waivers to certain 
vessels or classes of vessels under this proposal; (iv) the HCP vessel 
security zone for any particular transiting HCP vessel will effect a 
given geographical location for a limited time; and, (v) the Coast 
Guard will make notifications via maritime advisories so mariners can 
adjust their plans accordingly.
    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 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LT Matthew York, 
District 17 (MOC) at (907) 463-2821. 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 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

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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 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 affect 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

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 Commandant Instruction 
M16475.lD, which guides 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 there are no factors in this case 
that would limit the use of a categorical exclusion under section 2.B.2 
of the Instruction. Therefore, we believe that this rule should be 
categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Instruction, from further environmental documentation.
    A preliminary ``Environmental Analysis Check List'' is available in 
the docket where indicated under ADDRESSES. Comments on this section 
will be considered before we make the final decision on whether the 
rule should be categorically excluded from further environmental 
review.

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

    2. Add Sec.  165.1711 to read as follows:


Sec.  165.1711  Regulated Navigation Area and Security Zones; 
Protection of High Capacity Passenger Vessels in Alaska.

    (a) Definitions. As used in this section--
    Cognizant Captain of the Port or cognizant COTP means the Captain 
of the Port (COTP) or his or her designated representatives with 
authority over the relevant body of water. There are three COTPs in the 
District 17: Southeast Alaska, Western Alaska, and Prince William 
Sound. The boundaries for these three COTP zones are described, 
respectively, in 33 CFR 3.85-10, 3.85-15, and 3.85-20.
    District 17 Commander means the Coast Guard District Commander for 
the Coast Guard District 17 or his or her designated representatives. 
The boundaries for the Coast Guard District 17 are described in 33 CFR 
3.85-1.
    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.
    High capacity passenger (HCP) vessel means a passenger vessel 
greater than 100 feet in length that is authorized to carry more than 
500 passengers for hire.
    Navigation rules mean international and inland navigation rules in 
33 CFR chapter I, subchapters D and E.
    Navigable waters of the United States means those waters defined as 
such in 33 CFR part 2.
    Official Patrol means those persons designated by the District 
Commander or cognizant COTP to monitor a HCP vessel security zone, 
permit entry into the zone, give legally enforceable orders to persons 
or vessels within the zone and take other actions authorized by the 
COTP. Persons authorized in paragraph (e) of this section to enforce 
this section are designated as the Official Patrol.

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    State Law Enforcement Officer means any peace officer as defined in 
Alaska Statute Sec.  01.10.060.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water, except public vessels.
    (b) Location. (1) Regulated navigation area. The following area is 
a regulated navigation area (RNA): All navigable waters of United 
States within the boundaries of the Coast Guard District 17(Alaska).
    (2) Security zone. A security zone is established around and under, 
and is centered on, each high capacity passenger (HCP) vessel within 
the RNA described in paragraph (b)(1) of this section, and extends l00 
yards from the vessel while it is underway and 25 yards from the vessel 
while it is moored or anchored. A security zone enforced when a HCP 
vessel enters the RNA and remains enforced until the HCP vessel leaves 
the RNA. This is a moving security zone when the HCP vessel is in 
transit and a fixed zone when the HCP vessel is moored or anchored. A 
security zone will not extend beyond the boundary of the RNA in this 
section.
    (c) Regulations. (1) Under 33 CFR 165.33, no person or vessel may 
enter into the security zones established under this section unless 
authorized by the Coast Guard District 17 Commander, the cognizant 
Captain of the Port, or the on-scene official patrol.
    (2) When a HCP vessel in the RNA approaches within 100 yards of a 
vessel that is moored or anchored in a designated anchorage area, the 
stationary vessel must stay moored or anchored while it remains within 
the HCP vessel's security zone unless it is either ordered by or given 
permission from the Coast Guard District 17 Commander, the cognizant 
Captain of the Port, or the on-scene official patrol to do otherwise.
    (3) The COTP will inform the public of the existence of security 
zone around and under HCP vessels in the RNA by Marine Safety 
Information Broadcasts.
    (4) Vessels that seek to enter a security zone or exceed speed 
limits established in this section, may contact the on-scene official 
patrol (if there is one) or the cognizant COTP to request permission.
    (5) A vessel in the RNA operating within 250 yards of a HCP vessel 
must proceed at the minimum speed necessary to maintain a safe course, 
unless required to maintain speed by the navigation rules. All persons 
and vessels within 250 yards of a HCP vessel in the RNA must be 
attentive to and comply with the orders of the District Commander, 
cognizant COTP, or designated on-scene official patrol.
    (6) When conditions permit, the District Commander, cognizant COTP, 
or designated on-scene official patrol should:
    (i) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to enter the security zone in 
order to ensure a safe passage in accordance with the Navigation Rules; 
and
    (ii) Grant waiver of 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 security, safety, or environmental safety. Applications for 
waiver should be directed initially to the cognizant COTP. To be 
effective, all waivers must be granted in writing by the District 
Commander or cognizant COTP.
    (d) Contact information. (1) Vessels seeking permission under 
paragraphs (c)(2), (c)(4), or (c)(6) of this section should contact the 
cognizant COTP or on-scene official patrol to make a timely request.
    (2) The on-scene official patrol (if there is one) or the cognizant 
COTP or his or her designated representatives may be contacted by the 
following means:
    (i) Channel 13 or 16, VHF-FM.
    (ii) By telephone: Southeast Alaska (907) 957-0150; Prince William 
Sound (907) 835-7205; and Western Alaska (907) 271-6700.
    (3) The District Command Center's 24-hour non-emergency telephone 
number is (907) 463-2001.
    (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 HCP vessel, any 
Federal Law Enforcement Officer or State Law Enforcement Officer may 
enforce the rules contained in this section pursuant to 33 CFR 6.04-11. 
In addition, the District Commander, cognizant COTP, or on-scene 
official patrol may be assisted by other Federal, State or local 
agencies in enforcing this section.
    (f) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.

    Dated: February 7, 2005.
James C. Olson,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard 
District.
[FR Doc. 05-4598 Filed 3-8-05; 8:45 am]
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