[Federal Register Volume 70, Number 145 (Friday, July 29, 2005)]
[Rules and Regulations]
[Pages 43773-43775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15061]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD17-05-003]
RIN 1625-AA87


Security Zone; High Capacity Passenger Vessels in the Seventeenth 
Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary moving security 
zones around all escorted high capacity passenger vessels during their 
transit in the navigable waters of the Seventeenth Coast Guard 
District. These temporary security zones prohibit any vessel from 
entering within 100 yards of an escorted high capacity passenger vessel 
while in transit. These temporary security zones are necessary to 
mitigate potential terrorist acts and enhance public and maritime 
safety and security.

DATES: This rule is effective from July 21, 2005, to September 29, 
2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD17-05-003 and are available for 
inspection or copying at United States Coast Guard, District 17 (moc), 
709 West 9th Street, Juneau, AK 99801 between 8 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT Matthew York, District 17 (moc), 
709 West 9th Street, Juneau, AK 99801, (907) 463-2821.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    In a different rulemaking, we published a notice of proposed 
rulemaking (NPRM) entitled ``Regulated Navigation Area and Security 
Zones; High Capacity Passenger Vessels in Alaska'' in the Federal 
Register (70 FR 11595, March 9, 2005), docket number CGD17-05-002. That 
NPRM included provision for moored and anchored vessels that are not 
included in these temporary security zones. We received several letters 
in response to that NPRM, which are currently under review and 
consideration. A supplemental NPRM to docket CGD17-05-002 will be 
published, and the public will be given the opportunity to comment on 
the proposed procedures prior to any final rule being established.
    This temporary security zone is limited to high capacity passenger 
vessels during transit in the waters of the Seventeenth Coast Guard 
District and is only effective until September 29, 2005. This is a 
temporary security zone designed specifically to protect high capacity 
passenger vessels during transit through the waters in the Seventeenth 
Coast Guard District until September 29, 2005. This temporary zone will 
only be effective for 70 days and will only apply to high capacity 
passenger vessels transiting under an escort as defined in this 
temporary final rule.
    We did not publish a NPRM for this temporary regulation. Under 5 
U.S.C. 553(b)(B) the Coast Guard finds that good cause exists for not 
publishing an NPRM because this rule is necessary to ensure the safe 
transit of high capacity passenger vessels. Publishing a NPRM would be 
contrary to public interest since immediate action is necessary to 
safeguard high capacity passenger vessels from sabotage and other 
subversive acts or accidents. This temporary security zone has been 
carefully designed to minimally impact the public while providing 
protections for high capacity passenger vessels. For the same reasons, 
the Coast Guard finds that good cause exists under 5 U.S.C. 553(d)(3) 
for making this rule effective less than 30 days after publication in 
the Federal Register.

Background and Purpose

    Due to increased awareness that future terrorist attacks are 
possible, the Coast Guard, as Lead Federal Agency for maritime homeland 
security, has determined that the District Commander and the Captain of 
the Port 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. Terrorists have demonstrated both 
desire and ability to utilize multiple means in different geographic 
areas to successfully carry out their terrorist missions, highlighted 
by the recent events in London.
    During the past 3 years, the Federal Bureau of Investigation has 
issued several advisories to the public concerning the potential for 
terrorist attacks within the United States. The October 2002 attack on 
a tank vessel, M/V LIMBURG, off the coast of Yemen and the prior attack 
on the USS COLE demonstrate a continuing threat to U.S. maritime assets 
as described in the President's finding in Executive Order 13273 of 
August 21, 2002 (67 FR 56215, September 3, 2002) and Continuation of 
the National Emergency with Respect to Certain Terrorist Attacks, (67 
FR 58317, September 13, 2002); Continuation of the National Emergency 
With Respect To Persons Who Commit, Threaten To Commit, Or Support 
Terrorism, (67 FR 59447, September 20, 2002). Furthermore, the ongoing 
hostilities in Afghanistan and Iraq have made it prudent for U.S. port 
and waterway users to be on a higher state of alert because the Al 
Qaeda organization and other similar organizations have declared an 
ongoing intention to conduct armed attacks on U.S. interests worldwide.
    In addition to escorting vessels, a security zone is a tool 
available to the Coast Guard that may be used to control maritime 
traffic operating in the vicinity of vessels, which the Coast Guard has 
determined need additional security measures during their transit. The 
District Commander has made a determination that it is necessary to 
establish a security zone around vessels that are escorted. This 
temporary regulation establishes security zones around escorted high 
capacity passenger vessels to protect these vessels, but also to 
safeguard the port, harbors or waterfront facilities they visit.

Discussion of Rule

    This temporary security zone places a 100-yard security zone around 
high capacity passenger vessels that are being escorted by a Coast 
Guard surface, air or Coast Guard Auxiliary asset, or by a State law 
enforcement agency during their transit through the Seventeenth Coast 
Guard District. Persons desiring to transit within 100 yards of an 
escorted cruise ship transiting in the Seventeenth Coast Guard District 
must contact the designated on scene representative on VHF channel 16 
(156.800 MHz) or VHF channel 13 (156.650 MHz) and obtain permission to 
transit within 100 yards of the escorted vessel. The boundaries of the 
Seventeenth Coast Guard District are defined in 33 CFR 3.85-1(b). This 
includes territorial waters 12 nautical miles from the territorial sea 
baseline as defined in 33 CFR part 2 subpart B.

[[Page 43774]]

    Stationary vessels that are moored or anchored must remain moored 
or anchored when an escorted high capacity passenger vessels approaches 
within 100 yards of the stationary vessel unless the designated on 
scene representative has granted entry approval.

Regulatory Evaluation

    This temporary 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 rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary.
    This finding is based on the relatively small size of the limited 
access area around each ship, the minimal amount of time that vessels 
will be restricted when the zone is being enforced and the short 
duration this temporary rule will be in effect. In addition, vessels 
that may need to enter the zones may request permission on a case-by-
case basis from the District Commander, Captain of the Port or their 
designated representatives.

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. This temporary security zone only applies to high capacity 
passenger vessels that are transiting with an escort. It does not apply 
when the vessels are moored or anchored in port. Furthermore, vessels 
desiring to enter the security zone may contact the designated on scene 
representative and request permission to enter the zone.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding this rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. 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 LT Matthew York, District 17 
(MOC), 709 West 9th St, Room 753, Juneau, Alaska 99801. 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 would not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule does 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 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 might 
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 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.

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 Commandant Instruction M16475.lD,

[[Page 43775]]

which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded 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, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. Under figure 2-1, paragraph (34)(g) of the 
Instruction, an ``Environmental Analysis Check List'' 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; 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.


0
2. Add Sec.  165.T17-003 to read as follows:


Sec.  165.T17-003  Security Zone; Waters of the Seventeenth Coast Guard 
District.

    (a) Definitions. As used in this section--
    Designated on Scene Representative means any U.S. Coast Guard 
commissioned, warrant or petty officer who has been authorized by the 
District Commander or local Captain of the Port (COTP), as defined in 
33 CFR part 3, subpart 3.85, to act on his or her behalf.
    Escorted high capacity passenger vessel means a high capacity 
passenger vessel that is accompanied by one or more Coast Guard assets 
or Federal, State or local law enforcement agency assets as listed 
below:
    (1) Coast Guard surface or air asset displaying the Coast Guard 
insignia.
    (2) State law enforcement asset displaying the applicable agency 
markings and or equipment associated with the agency.
    State law enforcement officers means any State government law 
enforcement officer who has authority to enforce State criminal laws.
    High Capacity Passenger Vessel means a passenger vessel greater 
than 100 feet in length that is authorized to carry more than 500 
passengers for hire.
    (b) Location. The following area is a security zone: 100-yard 
radius around escorted high capacity passenger vessels in the navigable 
waters of the Seventeenth Coast Guard District as defined in 33 CFR 
3.85-1, from surface to bottom.
    (c) Regulations. (1) No vessel may approach within 100 yards of a 
moving, escorted high capacity passenger vessel within the navigable 
waters of the Seventeenth Coast Guard District, unless traveling at the 
minimum speed necessary to navigate safely.
    (2) Moored or anchored vessels, which are overtaken by this moving 
zone, must remain stationary at their location until the escorted 
vessel maneuvers at least 100 yards past.
    (3) The local Captain of the Port may notify the maritime and 
general public by marine information broadcast of the periods during 
which individual security zones have been activated by providing notice 
in accordance with 33 CFR 165.7.
    (4) Persons desiring to transit within 100 yards of a moving, 
escorted high capacity passenger vessel in the Seventeenth Coast Guard 
District must contact the designated on scene representative on VHF 
channel 16 (156.800 MHz), VHF channel 13 (156.650 MHz).
    (5) If permission is granted to transit within 100 yards of an 
escorted high capacity passenger vessel, all persons and vessels must 
comply with the instructions of the District Commander, Captain of the 
Port or his or her designated representative.

    Dated: July 21, 2005.
James C. Olson,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard 
District.
[FR Doc. 05-15061 Filed 7-28-05; 8:45 am]
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