[Federal Register Volume 71, Number 39 (Tuesday, February 28, 2006)]
[Proposed Rules]
[Pages 9984-9987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-2614]



[[Page 9984]]

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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: Second supplemental notice of proposed rulemaking; request for 
comments.

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SUMMARY: The Coast Guard is revising its first supplemental notice of 
proposed rule rulemaking published October 31, 2005, establishing 
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 to exempt from the provisions 
of this rule all commercial fishing vessels, as defined by applicable 
United States Code, only while actively engaged in fishing.

DATES: Comments and related material must reach the Coast Guard on or 
before March 30, 2006.

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.
    Additionally, we published a Supplemental Notice of Proposed 
Rulemaking (SNPRM) entitled ``Security Zone; High Capacity Passenger 
Vessels and Alaska Marine Highway System Vessels in Alaska'' in the 
Federal Register (70 FR 62261, October 31, 2005), docket number CGD17-
05-002 which removed those three provisions from the proposed rule. 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 the SNPRM. These permanent 
security zones have been carefully designed to minimally impact the 
public while providing protections for HCPV and AMHS vessels.
    This Second Supplemental Notice of Proposed Rulemaking (SSNPRM) 
exempts all commercial fishing vessels, as defined by 46 U.S.C. 
2101(11a), only while actively engaged in fishing.

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 March 30, 2006. 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.

Discussion of Comments and Changes

    For the supplemental notice of proposed rulemaking dated 31 October 
2005, the Coast Guard received 2 documents containing comments to the 
proposed rule. Both documents were from parties representing the 
commercial fishing vessel trolling fleet. Their comments requested that 
commercial fishing vessels, while engaged in trolling, be exempt from 
the

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rule because they also claim to have restricted maneuverability as any 
other `vessel engaged in fishing' as defined by the Convention on the 
International Regulations for Preventing Collisions at Sea, 1972 
(72COLREGS), Rule 3. Our responses to these comments are discussed in 
the following paragraphs.
    The Coast Guard does not agree that all vessels engaged in trolling 
are necessarily restricted in their ability to maneuver so as to avoid 
collision as required under Rule 8 of the COLREGS. However, after 
careful consideration and research, the Coast Guard does accept the 
notion that a vessel engaged in commercial trolling does not pose any 
greater security risk than any other commercial fishing vessel engaged 
in fishing. Therefore, the Coast Guard has redefined the rule to exempt 
`all commercial fishing vessels' as defined by 46 U.S.C. 2101(11a) 
while actively engaged in fishing. This includes any vessel that 
commercially engages in the catching, taking or harvesting of fish or 
an activity that can reasonably be expected to result in the catching, 
taking or harvesting of fish. Therefore, all commercial fishing vessels 
while actively engaged in fishing within the meaning of 46 U.S.C. 
2101(11a) are exempted from the provisions of this rule.
    One commenter expressed fear that the 25-yard moored and 100-yard 
in-transit restriction would be more harmful to the fishing industry 
than preventing someone from actually causing harm to a HCPV. We 
believe these concerns were raised and adequately addressed in the 
Small Entities section of the SNPRM (70 FR 62263 (October 31, 2005)) 
where we certified under 5 U.S.C. 605(b) that this rule would not have 
a significant economic impact on a substantial number of small 
entities, and in the Discussion of Comments and Changes section of the 
SNPRM (70 FR 62262 (October 31, 2005)) where we disagreed based upon 
clear policy guidance designed to prepare Coast Guard members on how to 
react appropriately when confronted with a use of force situation. We 
do not believe there is a need to be more prescriptive in this area.
    Additionally, this commenter expressed concern on the practicality 
of knowing when the security zone would actually goes into effect. We 
believe this concern was raised and adequately addressed in the 
Discussion of Comments and Changes section of the SNPRM (70 FR 62262 
(October 31, 2005)) where we described the security zone going into 
effect only when there is a Coast Guard asset on-scene, and in the 
Regulatory Text of the SNPRM (70 FR 62264 (October 31, 2005)) where we 
described that 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. We do not 
believe there is a need to be more prescriptive in this area.
    Finally, the commenter requested clarification regarding vessel 
speeds, what is necessary in order gain permission to enter the 
security zone, and regulation enforcement and penalties. We believe 
these concerns were raised and adequately addressed in the Discussion 
of Comments and Changes section of the SNPRM (70 FR 62262 (October 31, 
2005)) where we described that 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. We also addressed this issue in the 
Discussion of Proposed Rule section of the SNPRM (70 FR 62263 (October 
31, 2005)) where we described that persons desiring to transit within 
100 yards of an escorted HCPV or AHMS vessel must first contact the 
designated on-scene representative on VHF channel 16 or 13 and obtain 
permission. Finally, in the Discussion of Comments and Changes section 
of the SNPRM (70 FR 62262-62263 (October 31, 2005)), we described the 
possibility of the Coast Guard seeking both criminal penalties, civil 
penalties, or both against violators of the HCPV and AMHC security 
zones. The specific penalties are in 33 CFR part 6, 33 U.S.C. 1221 et 
seq., and 50 U.S.C 191 et seq. We do not believe there is a need to be 
more prescriptive in this area.

Discussion of Proposed Rule

    The Coast Guard is revising its first supplemental notice of 
proposed rule rulemaking exempt from the provisions of this rule all 
commercial fishing vessels, as defined by applicable United States 
Code, only while actively engaged in fishing. 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 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.

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.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed 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

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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 (Public Law 104-121), we offered to assist small 
entities in understanding this proposed rule so that they could better 
evaluate its effects on them and participate in the rulemaking process. 
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 (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 proposed 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 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 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

    This proposed 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 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 proposed 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 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.

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 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--
    (1) 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.
    (2) Alaska Marine Highway System vessel (``AMHS vessel'') means any 
vessel owned or operated by the Alaska Marine Highway System, 
including, but not limited to: 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.
    (3) Designated on Scene Representative means any U.S. Coast

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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 Officers designated by the 
COTP.
    (4) 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:
    (i) Coast Guard surface or air asset displaying the Coast Guard 
insignia.
    (ii) State, Federal or local law enforcement assets displaying the 
applicable agency markings and or equipment associated with the agency.
    (5) State Law Enforcement Officer means any State or local 
government law enforcement officer who has authority to enforce State 
or local criminal laws.
    (6) Federal Law Enforcement Officer means any Federal government 
law enforcement officer who has authority to enforce Federal 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) or 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.
    (6) All commercial fishing vessels as defined by 46 U.S.C. 
2101(11a) while actively engaged in fishing are exempted from the 
provisions of this rule.

    Dated: February 10, 2006.
James C. Olson,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard 
District.
[FR Doc. E6-2614 Filed 2-27-06; 8:45 am]
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