[Federal Register: March 9, 2005 (Volume 70, Number 45)]
[Proposed Rules]
[Page 11595-11598]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr05-33]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD17-05-002]
RIN 1625-AA11 and 1625-AA87
Regulated Navigation Area and Security Zones; High Capacity
Passenger Vessels in Alaska
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish moving and fixed
security zones in the navigable waters of Coast Guard District 17
around and under all high capacity passenger (HCP) vessels. The zones
would extend 100 yards from HCP vessels while they are underway and 25
yards from HCP vessels while they are moored or anchored. The Coast
Guard also proposes to establish a regulated navigation area that would
require other vessels operating within 250 yards of a HCP vessel be
subject to speed restrictions. These security zones and regulated
navigation area are needed to secure and safeguard HCP vessels and
ports from sabotage, terrorist acts, and other incidents. Entry into
these security zones would be prohibited, unless specifically
authorized by the Coast Guard District 17 Commander, cognizant Captain
of the Port, or the on-scene official patrol.
DATES: Comments and related material must reach the Coast Guard on or
before April 8, 2005.
ADDRESSES: You may mail comments and related material to District 17
(MOC), 709 West 9th St., Room 753, Juneau, Alaska 99801. District 17
(MOC) maintains the public docket for this rulemaking. Comments and
material received from the public, as well as documents indicated in
this preamble as being available in the docket, will become part of
this docket and will be available for inspection or copying at District
17 (MOC), 709 West 9th St., Room 753, Juneau, Alaska 99801 between 9
a.m. and 4 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LT Matthew York, District 17 (MOC),
709 West 9th St., Room 753, Juneau, Alaska 99801, (907) 463-2821.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (CGD17-05-
002), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Public Meeting
We do not plan to hold a public meeting. But you may submit a
request for a meeting by writing to District 17 (MOC) at the address
under ADDRESSES explaining why one would be beneficial. If we determine
that one would aid this rulemaking, we will hold one at a time and
place announced by a separate notice in the Federal Register.
Background and Purpose
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. In addition, the ongoing hostilities in Afghanistan and
the conflict in Iraq have made it prudent for U.S. ports to be on a
higher state of alert because Al-Qaeda and other organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide.
The threat of maritime attacks is real as evidenced by the attack
on the USS COLE and the subsequent attack in October 2002 against a
tank vessel off the coast of Yemen. These threats manifest a continuing
threat to U.S. assets as described in the President's finding in
Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3,
2002), that the security of the U.S. is endangered by the September 11,
2001, attacks and that such aggression continues to endanger the
international relations of the United States. See also 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). The U.S. Maritime
Administration (MARAD) in Advisory 02-07 advised U.S. shipping
interests to maintain a heightened status of alert against possible
terrorist attacks. MARAD more recently issued Advisory 03-05 informing
operators of maritime interests of increased threat possibilities to
vessels and facilities and a higher risk of terrorist attack to the
transportation community in the United States.
In its effort to thwart terrorist activity, the Coast Guard has
increased security measures on U.S. ports and waterways. As part of the
Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399),
Congress amended section 7 of the Ports and Waterways Safety Act
(PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions,
including the establishment of security zones, to prevent or respond to
acts of terrorism against individuals, vessels, or public or commercial
structures. The Coast Guard also has authority to establish security
zones pursuant to the Act of June 15, 1917, as amended by the Magnuson
Act of August 9, 1950 (50 U.S.C. 191 et seq.) and implementing
regulations promulgated by the President in subparts 6.01 and 6.04 of
part 6 of title 33 of the Code of Federal Regulations.
Due to increased awareness of the potential for future terrorist
attacks, the Coast Guard, as lead Federal agency for maritime homeland
security, has determined that the Coast Guard District Commander and
Captain of the Port (COTP) must have the means to be aware of, detect,
deter, intercept, and respond to asymmetric threats, acts of
aggression, and attacks by terrorists on the American homeland while
maintaining our freedoms and sustaining the flow of commerce.
In this particular rulemaking, to address the aforementioned
security concerns, and to take steps to prevent the catastrophic impact
that a terrorist attack against a high capacity passenger (HCP) vessel,
such as a cruise ship, would have on the public interest, the Coast
Guard is proposing to establish a moving and a fixed security zone in
the navigable waters of Coast Guard District 17 around and under all
high capacity passenger (HCP) vessels extending 100 yards from the
vessels while they are underway and extending 25 yards from the vessels
while they moored or anchored. The Coast Guard also proposes that other
vessels operating within 250 yards of a HCP vessel be subject to speed
restrictions and other orders as necessary to provide the Coast Guard
with an enhanced ability to manage vessel traffic in the vicinity of
HCP vessels and deter potential sabotage, terrorist acts, or other
incidents involving HCP vessels. These security zones are needed to
secure and safeguard HCP vessels and ports from
[[Page 11596]]
sabotage, terrorist acts, and other incidents. Entry into this security
zone would be prohibited, unless specifically authorized by the Coast
Guard District 17 Commander, cognizant COTP, or the on-scene official
patrol. The proposal also provides that the Coast Guard District 17
Commander, cognizant COTP, or on-scene official patrol may be assisted
by other Federal, State, or local government agencies in enforcing
these security zones.
Discussion of Proposed Rule
This proposed rule would control vessel movement in a regulated
area surrounding high capacity passenger (HCP) vessels to address
security concerns. It would prohibit persons or vessels from entering a
security zone that extends 100 yards around and under HCP vessels that
are underway and 25 yards around and under HCP vessels that are
anchored or moored within the Coast Guard District 17 zone, except as
noted in this regulation.
For the purpose of this regulation, HCP vessels are those vessels
of U.S. or foreign registry, certificated to carry 500 passengers or
more. Public vessels are vessels owned, chartered, or operated by the
United States, or by a State or political subdivision thereof. For the
purpose of this regulation, Alaska Marine Highway vessels are not HCP
vessels. The passengers and crew of the respective HCP vessel are
persons not subject to this regulation. Public vessels, vessels working
on behalf and at the direction of the HCPs (i.e., local transport of
passengers, tender vessels, etc.), or vessels granted waiver or
permission by the 17th Coast Guard District Commander, cognizant
Captain of the Port (COTP), or on-scene official patrol are vessels not
subject to this regulation.
Vessels requesting to enter the security zone must contact the
Coast Guard District 17 Commander, his or her designated
representatives, the cognizant COTP, or on-scene official patrol on
VHF-FM channel 16 or 13. The Coast Guard District 17 Commander, the
cognizant COTP, or on-scene official patrol may permit vessels to enter
the security zone if it is necessary to ensure a safe passage in
accordance with the Navigation Rules or for other good cause.
Similarly, all vessels anchored in a designated anchorage area may be
permitted to remain at anchor within 100 yards of a passing HCP vessel.
All vessels operating within 250 yards of a HCP vessel in the RNA
must proceed at the minimum speed necessary to maintain a safe course,
unless required to maintain speed by the navigation rules. All persons
and vessels within 250 yards of a HCP vessel in the RNA must be
attentive to and comply with the orders of the District Commander,
cognizant COTP, or designated on-scene official patrol.
Regulatory Evaluation
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.
Although this proposed rule would restrict access to the regulated
area, the effect of this proposed rule will not be significant because:
(i) The individual HCP vessel security zones are limited in size; (ii)
the Coast Guard District 17 Commander, his or her designated
representatives, the cognizant Captain of the Port, or on-scene
official patrol may permit vessels to enter the security zone if it is
necessary to ensure a safe passage in accordance with the Navigation
Rules or for other good cause; (iii) the Coast Guard District 17
Commander or cognizant Captain of the Port may grant waivers to certain
vessels or classes of vessels under this proposal; (iv) the HCP vessel
security zone for any particular transiting HCP vessel will effect a
given geographical location for a limited time; and, (v) the Coast
Guard will make notifications via maritime advisories so mariners can
adjust their plans accordingly.
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.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed
rule would not have a significant economic impact on a substantial
number of small entities. This proposed rule would affect the following
entities, some of which may be small entities: The owners or operators
of vessels intending to operate near or anchor in the vicinity of HCP
vessels in the navigable waters of Alaska.
This proposed rule would not have a significant economic impact on
a substantial number of small entities for the following reasons: (i)
The individual HCP vessel security zones are limited in size; (ii) the
Coast Guard District 17 Commander, his or her designated
representatives, the cognizant Captain of the Port, or on-scene
official patrol may permit vessels to enter the security zone if it is
necessary to ensure a safe passage in accordance with the Navigation
Rules or for other good cause; (iii) the Coast Guard District 17
Commander or cognizant Captain of the Port may grant waivers to certain
vessels or classes of vessels under this proposal; (iv) the HCP vessel
security zone for any particular transiting HCP vessel will effect a
given geographical location for a limited time; and, (v) the Coast
Guard will make notifications via maritime advisories so mariners can
adjust their plans accordingly.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. 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 (MOC) at (907) 463-2821. 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 would call 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
[[Page 11597]]
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 an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would 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 rule is not an economically significant rule and would 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. We
invite your comments on how this proposed rule might impact tribal
governments, even if that impact may not constitute a ``tribal
implication'' under the Order.
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
made a preliminary determination 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, we believe that this rule should be
categorically excluded, under figure 2-1, paragraph (34)(g), of the
Instruction, from further environmental documentation.
A preliminary ``Environmental Analysis Check List'' is available in
the docket where indicated under ADDRESSES. Comments on this section
will be considered before we make the final decision on whether the
rule should be categorically excluded from further environmental
review.
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 Regulated Navigation Area and Security Zones;
Protection of High Capacity Passenger Vessels in Alaska.
(a) Definitions. As used in this section--
Cognizant Captain of the Port or cognizant COTP means the Captain
of the Port (COTP) or his or her designated representatives with
authority over the relevant body of water. There are three COTPs in the
District 17: Southeast Alaska, Western Alaska, and Prince William
Sound. The boundaries for these three COTP zones are described,
respectively, in 33 CFR 3.85-10, 3.85-15, and 3.85-20.
District 17 Commander means the Coast Guard District Commander for
the Coast Guard District 17 or his or her designated representatives.
The boundaries for the Coast Guard District 17 are described in 33 CFR
3.85-1.
Federal Law Enforcement Officer means any employee or agent of the
United States government who has the authority to carry firearms and
make warrantless arrests and whose duties involve the enforcement of
criminal laws of the United States.
High capacity passenger (HCP) vessel means a passenger vessel
greater than 100 feet in length that is authorized to carry more than
500 passengers for hire.
Navigation rules mean international and inland navigation rules in
33 CFR chapter I, subchapters D and E.
Navigable waters of the United States means those waters defined as
such in 33 CFR part 2.
Official Patrol means those persons designated by the District
Commander or cognizant COTP to monitor a HCP vessel security zone,
permit entry into the zone, give legally enforceable orders to persons
or vessels within the zone and take other actions authorized by the
COTP. Persons authorized in paragraph (e) of this section to enforce
this section are designated as the Official Patrol.
[[Page 11598]]
State Law Enforcement Officer means any peace officer as defined in
Alaska Statute Sec. 01.10.060.
Vessel means every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water, except public vessels.
(b) Location. (1) Regulated navigation area. The following area is
a regulated navigation area (RNA): All navigable waters of United
States within the boundaries of the Coast Guard District 17(Alaska).
(2) Security zone. A security zone is established around and under,
and is centered on, each high capacity passenger (HCP) vessel within
the RNA described in paragraph (b)(1) of this section, and extends l00
yards from the vessel while it is underway and 25 yards from the vessel
while it is moored or anchored. A security zone enforced when a HCP
vessel enters the RNA and remains enforced until the HCP vessel leaves
the RNA. This is a moving security zone when the HCP vessel is in
transit and a fixed zone when the HCP vessel is moored or anchored. A
security zone will not extend beyond the boundary of the RNA in this
section.
(c) Regulations. (1) Under 33 CFR 165.33, no person or vessel may
enter into the security zones established under this section unless
authorized by the Coast Guard District 17 Commander, the cognizant
Captain of the Port, or the on-scene official patrol.
(2) When a HCP vessel in the RNA approaches within 100 yards of a
vessel that is moored or anchored in a designated anchorage area, the
stationary vessel must stay moored or anchored while it remains within
the HCP vessel's security zone unless it is either ordered by or given
permission from the Coast Guard District 17 Commander, the cognizant
Captain of the Port, or the on-scene official patrol to do otherwise.
(3) The COTP will inform the public of the existence of security
zone around and under HCP vessels in the RNA by Marine Safety
Information Broadcasts.
(4) Vessels that seek to enter a security zone or exceed speed
limits established in this section, may contact the on-scene official
patrol (if there is one) or the cognizant COTP to request permission.
(5) A vessel in the RNA operating within 250 yards of a HCP vessel
must proceed at the minimum speed necessary to maintain a safe course,
unless required to maintain speed by the navigation rules. All persons
and vessels within 250 yards of a HCP vessel in the RNA must be
attentive to and comply with the orders of the District Commander,
cognizant COTP, or designated on-scene official patrol.
(6) When conditions permit, the District Commander, cognizant COTP,
or designated on-scene official patrol should:
(i) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to enter the security zone in
order to ensure a safe passage in accordance with the Navigation Rules;
and
(ii) Grant waiver of any of the requirements of this section for
any vessel or class of vessels upon finding that a vessel or class of
vessels, operational conditions or other circumstances are such that
application of this section is unnecessary or impractical for the
purpose of security, safety, or environmental safety. Applications for
waiver should be directed initially to the cognizant COTP. To be
effective, all waivers must be granted in writing by the District
Commander or cognizant COTP.
(d) Contact information. (1) Vessels seeking permission under
paragraphs (c)(2), (c)(4), or (c)(6) of this section should contact the
cognizant COTP or on-scene official patrol to make a timely request.
(2) The on-scene official patrol (if there is one) or the cognizant
COTP or his or her designated representatives may be contacted by the
following means:
(i) Channel 13 or 16, VHF-FM.
(ii) By telephone: Southeast Alaska (907) 957-0150; Prince William
Sound (907) 835-7205; and Western Alaska (907) 271-6700.
(3) The District Command Center's 24-hour non-emergency telephone
number is (907) 463-2001.
(e) Enforcement. Any Coast Guard commissioned, warrant or petty
officer may enforce the rules in this section. In the navigable waters
of the United States to which this section applies, when immediate
action is required and representatives of the Coast Guard are not
present or not present in sufficient force to provide effective
enforcement of this section in the vicinity of a HCP vessel, any
Federal Law Enforcement Officer or State Law Enforcement Officer may
enforce the rules contained in this section pursuant to 33 CFR 6.04-11.
In addition, the District Commander, cognizant COTP, or on-scene
official patrol may be assisted by other Federal, State or local
agencies in enforcing this section.
(f) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the
authority for this section includes 33 U.S.C. 1226.
Dated: February 7, 2005.
James C. Olson,
Rear Admiral, U.S. Coast Guard, Commander, Seventeenth Coast Guard
District.
[FR Doc. 05-4598 Filed 3-8-05; 8:45 am]
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