[Federal Register: October 31, 2005 (Volume 70, Number 209)]
[Proposed Rules]
[Page 62261-62264]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc05-13]
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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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