[Federal Register Volume 71, Number 71 (Thursday, April 13, 2006)]
[Rules and Regulations]
[Pages 19121-19124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3564]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing permanent moving security 
zones around all escorted High Capacity Passenger Vessels (``HCPV'') 
and escorted Alaska Marine Highway System Vessels (``AMHS vessels'') 
during their transits in the navigable waters of the Seventeenth Coast 
Guard District. All commercial fishing vessels, as defined by 
applicable United States Code, are exempt from the provisions of this 
rule only while they are actively engaged in fishing.

DATES: This final rule is effective May 15, 2006.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned 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

    On March 9, 2005, 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), docket number CGD17-05-002. The 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.
    On October 31, 2005, 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), docket number CGD17-05-002. The SNRPM 
removed those three provisions from the proposed rule. The revised 
proposed security zone was then 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. 
The SNRPM proposed the security zones would only apply to HCPV and AMHS 
vessels transiting under an escort as defined in the SNPRM. These 
permanent security zones were carefully designed to minimally impact 
the public while providing protections for HCPV and AMHS vessels.
    On February 28, 2006, the Coast Guard published a Second 
Supplemental Notice of Proposed Rulemaking (SSNPRM) entitled, 
``Security Zone; High Capacity Passenger Vessels and Alaska Marine 
Highway System Vessels in Alaska'' in the Federal Register (71 FR 
9984), docket number CGD17-05-002. The

[[Page 19122]]

SSNPRM exempted all commercial fishing vessels, as defined by 46 U.S.C. 
2101(11a), only while actively engaged in fishing. We did not receive 
any comments on the SSNRPM. No public hearing was requested, and none 
was held.

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

    We did not receive any comments on the Second Supplemental Notice 
of Proposed Rulemaking. Therefore, we are issuing this final rule 
without change from the proposed rule published February 28, 2006, in 
the SSNPRM with the exception of putting the definitions in 
alphabetical order.

Discussion of Rule

    This rule establishes 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 vessels 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

    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 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. 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.

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

[[Page 19123]]

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, 
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.  165.1711 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 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.
    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 Officers 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.

[[Page 19124]]

    (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 section.

    Dated: April 3, 2006.
James C. Olson,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard 
District.
[FR Doc. 06-3564 Filed 4-12-06; 8:45 am]
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