[Federal Register Volume 70, Number 209 (Monday, October 31, 2005)]
[Proposed Rules]
[Pages 62261-62264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21576]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD17-05-002]
RIN 1625-AA87


Security Zone; High Capacity Passenger Vessels and Alaska Marine 
Highway System Vessels in Alaska

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking; request for 
comments.

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SUMMARY: The Coast Guard is revising its proposed rule published March 
9, 2005, to establish permanent moving security zones around all 
escorted High Capacity Passenger Vessels (``HCPV'') and escorted Alaska 
Marine Highway System Vessels (``AMHS vessels'') during their transit 
in the navigable waters of the Seventeenth Coast Guard District. The 
250-yard speed restriction zone, the 25-yard security zone around 
moored and anchored vessels, and the waiver request process in the 
notice of proposed rulemaking (NPRM) have been eliminated. The Coast 
Guard has revised the proposed security zones prohibiting any vessel 
from entering within 100 yards of an escorted HCPV or escorted AMHS 
vessel while in transit. These security zones are necessary to mitigate 
potential terrorist acts and enhance public and maritime safety and 
security. Permission to enter these security zones may be granted by 
the designated on-scene representative.

DATES: Comments and related material must reach the Coast Guard on or 
before December 30, 2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD17-05-002 and are available for 
inspection or copying at United States Coast Guard, District 17 (dpi), 
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 (dpi), 
709 West 9th Street, Juneau, AK 99801, (907) 463-2821.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    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 provisions for a 
250-yard speed restriction zone, a 25-yard security zone around moored 
and anchored vessels, and a waiver request process. We are removing 
those three provisions from the proposed rule in this supplemental 
NPRM.
    The revised proposed security zones are limited to High Capacity 
Passenger Vessels (HCPV) and Alaska Marine Highway System Vessels 
(AMHS) vessels during transit in the waters of the Seventeenth Coast 
Guard District. These security zones will only apply to HCPV and AMHS 
vessels transiting under an escort as defined in this SNPRM. These 
permanent security zones have been carefully designed to minimally 
impact the public while providing protections for HCPV and AMHS 
vessels.

Requests for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their name and addresses, 
identifying this rulemaking (CGD17-05-002) and the specific section of 
this document to which each comment applies, and give the reason for 
each comment. Please submit all comments and attachments in an unbound 
format, no larger than 8\1/2\ by 11 inches, suitable for copying and 
electronic filing. Persons wanting acknowledgment of receipt of comment 
should enclose a stamped, self-addressed postcard or envelope.
    Comments on this supplemental NPRM must reach the Coast Guard on or 
before December 30, 2005. The Coast Guard will consider all comments 
received during the comment period and may change this proposed rule in 
view of the comments.
    The Coast Guard has not scheduled a public hearing at this time. 
You may request a public hearing by writing to the Seventeenth Coast 
Guard District at the address under ADDRESSES. The request should 
include the reasons why a hearing would be beneficial to the 
rulemaking. If it is determined that an opportunity for oral 
presentation will aid this rulemaking, the Coast Guard will schedule a 
public hearing at a time and place announced in a separate notice 
published 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 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 subway bombings 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); and 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, the Coast Guard has determined 
the need for additional security measures during their transit. A 
security zone is a tool available to the Coast Guard that may be used 
to control maritime traffic operating in the vicinity of these vessels. 
The District Commander has made a determination that it is necessary to 
establish a security zone around HCPV and AMHS vessels that are 
escorted to safeguard people, vessels and maritime traffic.

[[Page 62262]]

Discussion of Comments and Changes

    The Coast Guard received a total of 147 documents containing 
comments to the proposed rule. The documents included letters from 
commercial fishermen, commercial fishing organizations, individual 
float plane operators, float plane organizations, harbor masters, 
cruise line agencies, charter vessels, pilot organizations, the Alaska 
Marine Highway System, government officials and other concerned 
mariners. Responses to these comments and changes made in the proposed 
rule are discussed in the following paragraphs.
    Numerous comments suggested that the security zones be in place 
only at heightened Maritime Security (MARSEC) levels. The Coast Guard 
disagrees. MARSEC Level 1 is the level at which minimum, appropriate 
protective security measures shall be maintained. At MARSEC Level 2, 
additional measures shall be maintained as a result of a heightened 
risk. At MARSEC Level 3, a transportation security incident is probable 
or imminent. The Coast Guard maintains that security zones around HCPV 
and AMHS vessels are a minimum appropriate security measure for MARSEC 
Level 1.
    The most frequent comments were focused on the unique geography of 
the tight, constricted waterways and ports in Alaska. One comment 
suggested that the zone be in effect only when a Coast Guard asset is 
on-scene. The NPRM indicated the zone would be in effect at all times 
in the waters of District 17. The Coast Guard recognizes that Alaska's 
waterways are narrow and are shared with a myriad of maritime 
professionals as well as recreational boaters. The Coast Guard has 
revised the proposed rule by having these HCPV and AMHS security zones 
in effect only when there is a Coast Guard asset on-scene.
    Several comments expressed concern for the time associated with 
gaining permission to enter the security zone. Other comments expressed 
concern on who would retain the master lists of ``waiver/exempt'' 
vessels and the difficulty of maintaining an accurate Maritime Domain 
Awareness status of vessels on waivers. Based on these comments, the 
Coast Guard has reassessed its permission-to-enter proposal and has 
decided to revise the proposed rule and amends the rule by removing the 
waiver process and replacing it with the requirement that permission to 
enter the security zone be given by the designated on-scene 
representative on VHF channel 16 or VHF Channel 13 on a case-by-case 
basis.
    Numerous comments addressed the 250-yard speed zone restriction and 
the minimum speed necessary to maintain a safe course. The Coast Guard 
recognizes that in order for float planes to safely take off and land, 
they will likely be at speeds between 40 and 60 knots. Numerous 
Southeast Alaskan ports would also see an increase in maritime traffic 
outside the 250 yard speed restriction zone, particularly Tongass 
Narrows and Gastineau Channel. This increase in traffic would likely 
have a detrimental effect on the safe navigation of maritime traffic. 
Accordingly, the Coast Guard has revised the proposed rule and 
eliminated the 250-yard speed zone restriction.
    Numerous comments addressed certain areas where a 100-yard security 
zone would create navigational situations that result in vessels coming 
into close proximity of HCPV and AMHS vessels in places like Snow Pass, 
Point Arden, Sunny Point, Tongass Narrows and Eastern Channel. While 
the Coast Guard recognizes that these areas are navigationally narrow, 
the Coast Guard will require vessels to remain 100 yards away from HCPV 
or AMHS vessels while those vessels are escorted by the designated on-
scene representative. Speed and course adjustments must be made early 
enough to allow for sufficient sea room for the safe passage of the 
HCPV or AMHS vessels. Additionally, Rule 9 of the International Rules 
of the Road requires vessels less than 20 meters in length to not 
impede the passage of a vessel which can safely navigate only within a 
narrow channel or fairway. Vessels anchored in a designated area will 
be permitted to remain at anchor until the HCPV or AMHS Ferry has 
passed. As noted previously, the Coast Guard has revised the proposed 
rule so that security zones would be in effect only when there is a 
Coast Guard asset or designated representative on-scene.
    Numerous comments opposed the 25-yard security zone around moored 
and anchored vessels. Comments stated the rule would prevent access to 
fuel docks, processing facilities, and other marine-related businesses 
along with access to various Southeast Alaskan small boat harbors such 
as the Hansen, Ryus, Daly floats, Casey Moran float, Thomas Basin, 
Juneau fish processing facilities, Marine Park lightering dock, Juneau 
Intermediate Vessel Float, Skagway Small Boat Harbor, and Whittier 
Small Boat Harbor. Another comment was received about the need for city 
officials to access municipal utilities, water, wastewater, telephone 
and electric utilities located under the pier and the only way to 
access those utilities was taking a skiff on the water and going under 
the pier. Based on these comments, the Coast Guard has revised the 
proposed rule to eliminate the 25-yard security zone for moored and 
anchored vessels. The security concerns for moored and anchored vessels 
will be addressed in a separate notice of proposed rulemaking (NPRM).
    Several comments addressed the applicability of the rule to fishing 
vessels with gear in the water, fishing vessels in transit, and fish 
tenders. For the purposes of clarifying this particular section of the 
NPRM, the Coast Guard proposes revising the security zone by adding 
language to the proposed rule that ``vessels defined as engaged in 
fishing as per COLREGS Rule 3(d), are exempt from this rule. Rule 
(3)(d) states that the term `Vessel engaged in fishing' means any 
vessel fishing with nets, lines, trawls or other fishing apparatus 
which restrict maneuverability, but does not include a vessel fishing 
with trolling lines or other fishing apparatus which do not restrict 
maneuverability.'' Therefore, fish tenders, processors, and trollers 
are not exempt from this rule.
    Some comments addressed the need to have the widest dissemination 
of the final rule as possible, including public service announcements, 
walking the docks, fliers, and Broadcasts Notice to Mariners (BNM). The 
Coast Guard proposes to broadcast the final rule published in the 
Federal Register via BNM, fliers, and announcements.
    Several comments requested a public hearing, and others requested 
that the comment period be extended. The Coast Guard re-opened the 
public comment period and published a second 30-day notice and comment 
period which expired on May 27, 2005 (70 FR 21702, April 27, 2005). The 
Coast Guard may hold a public hearing, if appropriate, prior to 
adoption of a final rule. Based on all the comments received to date, 
there has been an adequate forum and sufficient time for the public to 
express its concerns, and the comment period on the revised proposed 
rule has been re-opened until December 30, 2005.
    One comment was received expressing concern that the availability 
of Search and Rescue (SAR) assets would be jeopardized due to 
enforcement of the security zones. The Coast Guard disagrees. The SAR 
Coordinator for District 17 would retain the ability to direct Coast 
Guard assets to respond to SAR cases and would not decrease the Coast 
Guard's abilities to respond in a safe and efficient manner.
    Some comments were received expressing concern about the potential

[[Page 62263]]

punishment for violators of the security zone. If the proposed rule is 
made effective, the Coast Guard would be able to seek both criminal 
penalties, civil penalties, or both against violators of these HCPV and 
AMHS security zones.
    One comment expressed concern that if the Coast Guard is unwilling 
to back the rule up with deadly force, the rule cannot serve its stated 
purpose and will only serve to restrict the reasonable freedoms of law-
abiding citizens. Another comment expressed concern that a 100-yard 
buffer will not stop a terrorist with explosives from blowing-up a 
cruise ship. The Coast Guard appreciates these comments and concerns 
and disagrees based upon clear policy guidance designed to prepare 
Coast Guard members on how to react appropriately when confronted with 
a use of force situation.

Discussion of Proposed Rule

    This proposed rule would establish permanent 100-yard security 
zones around HCPV and AMHS vessels that are being escorted by a Coast 
Guard surface, air, or by other state or federal law enforcement agency 
designated by the Captain of the Port (COTP) during their transit 
through the Seventeenth Coast Guard District. Persons desiring to 
transit within 100 yards of an escorted HCPV or AHMS vessel 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 HCPV or AMHS vessels. 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.
    Stationary vessels that are moored or anchored must remain moored 
or anchored when an escorted HCPV or AMHS vessel approaches within 100 
yards of the stationary vessel unless the designated on scene 
representative has granted approval for the stationary vessel to do 
otherwise.

Regulatory Evaluation

    Although one public comment stated that this action constitutes a 
significant regulatory action, the Coast Guard disagrees based on the 
relatively small size of the limited access area around each ship and 
the minimal amount of time that vessels will be restricted when the 
zone is being enforced. In addition, vessels that may need to enter the 
zones may request permission on a case-by-case basis from the on scene 
designated representatives. 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. 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.

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.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule, if adopted, will not have a significant economic impact on a 
substantial number of small entities. This permanent security zone only 
applies to HCPV and AMHS vessels that are transiting with an escort. It 
does not apply when the vessels are moored or anchored. 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 
(dpi), 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.

[[Page 62264]]

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, 
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.

    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  Security Zones; Waters of the Seventeenth Coast Guard 
District.

    (a) Definitions. As used in this section--
    Alaska Marine Highway System vessel (``AMHS vessel'') means the M/V 
AURORA, M/V CHENEGA, M/V COLUMBIA, M/V FAIRWEATHER, M/V KENNICOTT, M/V 
LECONTE, M/V LITUYA, M/V MALASPINA, M/V MATANUSKA, M/V TAKU, and the M/
V TUSTUMENA.
    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, or other 
Federal, State or local law enforcement agency personnel designated by 
the COTP.
    Escorted HCPV or AMHS vessel means a HCPV or AMHS 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, Federal or local law enforcement assets displaying the 
applicable agency markings and or equipment associated with the agency.
    Federal Law Enforcement Officer means any federal government law 
enforcement officer who has authority to enforce federal criminal laws.
    High Capacity Passenger Vessel (``HCPV'') means a passenger vessel 
greater than 100 feet in length that is authorized to carry more than 
500 passengers for hire.
    State law enforcement Officer means any State or local government 
law enforcement officer who has authority to enforce State or local 
criminal laws.
    (b) Location. The following areas are security zones: All waters 
within 100 yards around escorted High Capacity Passenger Vessels or 
escorted Alaska Marine Highway System 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 an 
escorted HCPV or escorted AMHS vessel during their transits within the 
navigable waters of the Seventeenth Coast Guard District.
    (2) Moored or anchored vessels that are overtaken by this moving 
zone must remain stationary at their location until the escorted vessel 
maneuvers at least 100 yards away.
    (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 HCPV or AMHS 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) to receive permission.
    (5) If permission is granted to transit within 100 yards of an 
escorted HCPV or AMHS vessel, all persons and vessels must comply with 
the instructions of the designated on scene representative.

    Dated: October 18, 2005.
James C. Olson,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard 
District.
[FR Doc. 05-21576 Filed 10-28-05; 8:45 am]
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