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Federal Register / Vol. 70, No.

45 / Wednesday, March 9, 2005 / Proposed Rules 11595

DEPARTMENT OF HOMELAND address, identify the docket number for interests to maintain a heightened status
SECURITY this rulemaking (CGD17–05–002), of alert against possible terrorist attacks.
indicate the specific section of this MARAD more recently issued Advisory
Coast Guard document to which each comment 03–05 informing operators of maritime
applies, and give the reason for each interests of increased threat possibilities
33 CFR Part 165 comment. Please submit all comments to vessels and facilities and a higher risk
[CGD17–05–002]
and related material in an unbound of terrorist attack to the transportation
format, no larger than 81⁄2 by 11 inches, community in the United States.
RIN 1625–AA11 and 1625–AA87 suitable for copying. If you would like In its effort to thwart terrorist activity,
to know that your submission reached the Coast Guard has increased security
Regulated Navigation Area and us, please enclose a stamped, self- measures on U.S. ports and waterways.
Security Zones; High Capacity addressed postcard or envelope. We will As part of the Diplomatic Security and
Passenger Vessels in Alaska consider all comments and material Antiterrorism Act of 1986 (Pub. L. 99–
AGENCY: Coast Guard, DHS. received during the comment period. 399), Congress amended section 7 of the
ACTION: Notice of proposed rulemaking. We may change this proposed rule in Ports and Waterways Safety Act
view of them. (PWSA), 33 U.S.C. 1226, to allow the
SUMMARY: The Coast Guard proposes to Coast Guard to take actions, including
Public Meeting the establishment of security zones, to
establish moving and fixed security
zones in the navigable waters of Coast We do not plan to hold a public prevent or respond to acts of terrorism
Guard District 17 around and under all meeting. But you may submit a request against individuals, vessels, or public or
high capacity passenger (HCP) vessels. for a meeting by writing to District 17 commercial structures. The Coast Guard
The zones would extend 100 yards from (MOC) at the address under ADDRESSES also has authority to establish security
HCP vessels while they are underway explaining why one would be zones pursuant to the Act of June 15,
and 25 yards from HCP vessels while beneficial. If we determine that one 1917, as amended by the Magnuson Act
they are moored or anchored. The Coast would aid this rulemaking, we will hold of August 9, 1950 (50 U.S.C. 191 et seq.)
Guard also proposes to establish a one at a time and place announced by and implementing regulations
regulated navigation area that would a separate notice in the Federal promulgated by the President in
require other vessels operating within Register. subparts 6.01 and 6.04 of part 6 of title
250 yards of a HCP vessel be subject to Background and Purpose 33 of the Code of Federal Regulations.
speed restrictions. These security zones Due to increased awareness of the
Since the September 11, 2001 terrorist potential for future terrorist attacks, the
and regulated navigation area are
attacks on the World Trade Center in Coast Guard, as lead Federal agency for
needed to secure and safeguard HCP
New York, the Pentagon in Arlington, maritime homeland security, has
vessels and ports from sabotage, terrorist
Virginia and Flight 93, the Federal determined that the Coast Guard District
acts, and other incidents. Entry into
Bureau of Investigation (FBI) has issued Commander and Captain of the Port
these security zones would be several warnings concerning the
prohibited, unless specifically (COTP) must have the means to be
potential for additional terrorist attacks aware of, detect, deter, intercept, and
authorized by the Coast Guard District within the United States. In addition,
17 Commander, cognizant Captain of respond to asymmetric threats, acts of
the ongoing hostilities in Afghanistan aggression, and attacks by terrorists on
the Port, or the on-scene official patrol. and the conflict in Iraq have made it the American homeland while
DATES: Comments and related material prudent for U.S. ports to be on a higher maintaining our freedoms and
must reach the Coast Guard on or before state of alert because Al-Qaeda and sustaining the flow of commerce.
April 8, 2005. other organizations have declared an In this particular rulemaking, to
ADDRESSES: You may mail comments ongoing intention to conduct armed address the aforementioned security
and related material to District 17 attacks on U.S. interests worldwide. concerns, and to take steps to prevent
(MOC), 709 West 9th St., Room 753, The threat of maritime attacks is real the catastrophic impact that a terrorist
Juneau, Alaska 99801. District 17 (MOC) as evidenced by the attack on the USS attack against a high capacity passenger
maintains the public docket for this COLE and the subsequent attack in (HCP) vessel, such as a cruise ship,
rulemaking. Comments and material October 2002 against a tank vessel off would have on the public interest, the
received from the public, as well as the coast of Yemen. These threats Coast Guard is proposing to establish a
documents indicated in this preamble as manifest a continuing threat to U.S. moving and a fixed security zone in the
being available in the docket, will assets as described in the President’s navigable waters of Coast Guard District
become part of this docket and will be finding in Executive Order 13273 of 17 around and under all high capacity
available for inspection or copying at August 21, 2002 (67 FR 56215, passenger (HCP) vessels extending 100
District 17 (MOC), 709 West 9th St., September 3, 2002), that the security of yards from the vessels while they are
Room 753, Juneau, Alaska 99801 the U.S. is endangered by the September underway and extending 25 yards from
between 9 a.m. and 4 p.m., Monday 11, 2001, attacks and that such the vessels while they moored or
through Friday, except Federal holidays. aggression continues to endanger the anchored. The Coast Guard also
FOR FURTHER INFORMATION CONTACT: LT international relations of the United proposes that other vessels operating
Matthew York, District 17 (MOC), 709 States. See also Continuation of the within 250 yards of a HCP vessel be
West 9th St., Room 753, Juneau, Alaska National Emergency with Respect to subject to speed restrictions and other
99801, (907) 463–2821. Certain Terrorist Attacks (67 FR 58317, orders as necessary to provide the Coast
SUPPLEMENTARY INFORMATION: September 13, 2002), and Continuation Guard with an enhanced ability to
of the National Emergency with Respect manage vessel traffic in the vicinity of
Request for Comments to Persons Who Commit, Threaten To HCP vessels and deter potential
We encourage you to participate in Commit, Or Support Terrorism (67 FR sabotage, terrorist acts, or other
this rulemaking by submitting 59447, September 20, 2002). The U.S. incidents involving HCP vessels. These
comments and related material. If you Maritime Administration (MARAD) in security zones are needed to secure and
do so, please include your name and Advisory 02–07 advised U.S. shipping safeguard HCP vessels and ports from

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11596 Federal Register / Vol. 70, No. 45 / Wednesday, March 9, 2005 / Proposed Rules

sabotage, terrorist acts, and other the navigation rules. All persons and the following entities, some of which
incidents. Entry into this security zone vessels within 250 yards of a HCP vessel may be small entities: The owners or
would be prohibited, unless specifically in the RNA must be attentive to and operators of vessels intending to operate
authorized by the Coast Guard District comply with the orders of the District near or anchor in the vicinity of HCP
17 Commander, cognizant COTP, or the Commander, cognizant COTP, or vessels in the navigable waters of
on-scene official patrol. The proposal designated on-scene official patrol. Alaska.
also provides that the Coast Guard This proposed rule would not have a
Regulatory Evaluation significant economic impact on a
District 17 Commander, cognizant
COTP, or on-scene official patrol may be This proposed rule is not a substantial number of small entities for
assisted by other Federal, State, or local ‘‘significant regulatory action’’ under the following reasons: (i) The individual
government agencies in enforcing these section 3(f) of Executive Order 12866, HCP vessel security zones are limited in
security zones. Regulatory Planning and Review, and size; (ii) the Coast Guard District 17
does not require an assessment of Commander, his or her designated
Discussion of Proposed Rule potential costs and benefits under representatives, the cognizant Captain of
This proposed rule would control section 6(a)(3) of that Order. The Office the Port, or on-scene official patrol may
vessel movement in a regulated area of Management and Budget has not permit vessels to enter the security zone
surrounding high capacity passenger reviewed it under that Order. It is not if it is necessary to ensure a safe passage
(HCP) vessels to address security ‘‘significant’’ under the regulatory in accordance with the Navigation Rules
concerns. It would prohibit persons or policies and procedures of the or for other good cause; (iii) the Coast
vessels from entering a security zone Department of Homeland Security Guard District 17 Commander or
that extends 100 yards around and (DHS). cognizant Captain of the Port may grant
under HCP vessels that are underway We expect the economic impact of waivers to certain vessels or classes of
and 25 yards around and under HCP this proposed rule to be so minimal that vessels under this proposal; (iv) the HCP
vessels that are anchored or moored a full Regulatory Evaluation under the vessel security zone for any particular
within the Coast Guard District 17 zone, regulatory policies and procedures of transiting HCP vessel will effect a given
except as noted in this regulation. DHS is unnecessary. geographical location for a limited time;
For the purpose of this regulation, Although this proposed rule would and, (v) the Coast Guard will make
HCP vessels are those vessels of U.S. or restrict access to the regulated area, the notifications via maritime advisories so
foreign registry, certificated to carry 500 effect of this proposed rule will not be mariners can adjust their plans
passengers or more. Public vessels are significant because: (i) The individual accordingly.
vessels owned, chartered, or operated by HCP vessel security zones are limited in If you think that your business,
the United States, or by a State or size; (ii) the Coast Guard District 17 organization, or governmental
political subdivision thereof. For the Commander, his or her designated jurisdiction qualifies as a small entity
purpose of this regulation, Alaska representatives, the cognizant Captain of and that this rule would have a
Marine Highway vessels are not HCP the Port, or on-scene official patrol may significant economic impact on it,
vessels. The passengers and crew of the permit vessels to enter the security zone please submit a comment (see
respective HCP vessel are persons not if it is necessary to ensure a safe passage ADDRESSES) explaining why you think it
subject to this regulation. Public vessels, in accordance with the Navigation Rules qualifies and how and to what degree
vessels working on behalf and at the or for other good cause; (iii) the Coast this rule would economically affect it.
direction of the HCPs (i.e., local Guard District 17 Commander or
transport of passengers, tender vessels, cognizant Captain of the Port may grant Assistance for Small Entities
etc.), or vessels granted waiver or waivers to certain vessels or classes of Under section 213(a) of the Small
permission by the 17th Coast Guard vessels under this proposal; (iv) the HCP Business Regulatory Enforcement
District Commander, cognizant Captain vessel security zone for any particular Fairness Act of 1996 (Pub. L. 104–121),
of the Port (COTP), or on-scene official transiting HCP vessel will effect a given we want to assist small entities in
patrol are vessels not subject to this geographical location for a limited time; understanding this proposed rule so that
regulation. and, (v) the Coast Guard will make they can better evaluate its effects on
Vessels requesting to enter the notifications via maritime advisories so them and participate in the rulemaking.
security zone must contact the Coast mariners can adjust their plans If the proposed rule would affect your
Guard District 17 Commander, his or accordingly. small business, organization, or
her designated representatives, the governmental jurisdiction and you have
cognizant COTP, or on-scene official Small Entities
questions concerning its provisions or
patrol on VHF-FM channel 16 or 13. Under the Regulatory Flexibility Act options for compliance, please contact
The Coast Guard District 17 (5 U.S.C. 601–612), we have considered LT Matthew York, District 17 (MOC) at
Commander, the cognizant COTP, or on- whether this proposed rule would have (907) 463–2821. The Coast Guard will
scene official patrol may permit vessels a significant economic impact on a not retaliate against small entities that
to enter the security zone if it is substantial number of small entities. question or complain about this rule or
necessary to ensure a safe passage in The term ‘‘small entities’’ comprises any policy or action of the Coast Guard.
accordance with the Navigation Rules or small businesses, not-for-profit
for other good cause. Similarly, all organizations that are independently Collection of Information
vessels anchored in a designated owned and operated and are not This proposed rule would call for no
anchorage area may be permitted to dominant in their fields, and new collection of information under the
remain at anchor within 100 yards of a governmental jurisdictions with Paperwork Reduction Act of 1995 (44
passing HCP vessel. populations of less than 50,000. U.S.C. 3501–3520).
All vessels operating within 250 yards The Coast Guard certifies under 5
of a HCP vessel in the RNA must U.S.C. 605(b) that this proposed rule Federalism
proceed at the minimum speed would not have a significant economic A rule has implications for federalism
necessary to maintain a safe course, impact on a substantial number of small under Executive Order 13132,
unless required to maintain speed by entities. This proposed rule would affect Federalism, if it has a substantial direct

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Federal Register / Vol. 70, No. 45 / Wednesday, March 9, 2005 / Proposed Rules 11597

effect on State or local governments and Energy Effects List of Subjects in 33 CFR Part 165
would either preempt State law or Harbors, Marine safety, Navigation
impose a substantial direct cost of We have analyzed this proposed rule
under Executive Order 13211, Actions (water), Reporting and recordkeeping
compliance on them. We have analyzed requirements, Security measures,
this proposed rule under that Order and Concerning Regulations That
Significantly Affect Energy Supply, Waterways.
have determined that it does not have For the reasons discussed in the
implications for federalism. Distribution, or Use. We have
determined that it is not a ‘‘significant preamble, the Coast Guard proposes to
Unfunded Mandates Reform Act energy action’’ under that order because amend 33 CFR part 165 as follows:

The Unfunded Mandates Reform Act it is not a ‘‘significant regulatory action’’ PART 165—REGULATED NAVIGATION
of 1995 (2 U.S.C. 1531–1538) requires under Executive Order 12866 and is not AREAS AND LIMITED ACCESS AREAS
Federal agencies to assess the effects of likely to have a significant adverse effect
on the supply, distribution, or use of 1. The authority citation for part 165
their discretionary regulatory actions. In continues to read as follows:
particular, the Act addresses actions energy. The Administrator of the Office
that may result in the expenditure by a of Information and Regulatory Affairs Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
State, local, or tribal government, in the has not designated it as a significant Chapter 701; 50 U.S.C. 191, 195; 33 CFR
energy action. Therefore, it does not 1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L.
aggregate, or by the private sector of 107–295, 116 Stat. 2064; Department of
$100,000,000 or more in any one year. require a Statement of Energy Effects
under Executive Order 13211. Homeland Security Delegation No. 0170.1.
Though this proposed rule would not
result in such an expenditure, we do 2. Add § 165.1711 to read as follows:
Technical Standards
discuss the effects of this rule elsewhere § 165.1711 Regulated Navigation Area and
in this preamble. The National Technology Transfer Security Zones; Protection of High Capacity
and Advancement Act (NTTAA) (15 Passenger Vessels in Alaska.
Taking of Private Property U.S.C. 272 note) directs agencies to use (a) Definitions. As used in this
This proposed rule would not affect a voluntary consensus standards in their section—
taking of private property or otherwise regulatory activities unless the agency Cognizant Captain of the Port or
have taking implications under provides Congress, through the Office of cognizant COTP means the Captain of
Executive Order 12630, Governmental Management and Budget, with an the Port (COTP) or his or her designated
Actions and Interference with explanation of why using these representatives with authority over the
Constitutionally Protected Property standards would be inconsistent with relevant body of water. There are three
Rights. applicable law or otherwise impractical. COTPs in the District 17: Southeast
Voluntary consensus standards are Alaska, Western Alaska, and Prince
Civil Justice Reform technical standards (e.g., specifications William Sound. The boundaries for
This proposed rule meets applicable of materials, performance, design, or these three COTP zones are described,
standards in sections 3(a) and 3(b)(2) of operation; test methods; sampling respectively, in 33 CFR 3.85–10, 3.85–
Executive Order 12988, Civil Justice procedures; and related management 15, and 3.85–20.
Reform, to minimize litigation, systems practices) that are developed or District 17 Commander means the
eliminate ambiguity, and reduce adopted by voluntary consensus Coast Guard District Commander for the
burden. standards bodies. Coast Guard District 17 or his or her
This proposed rule does not use designated representatives. The
Protection of Children technical standards. Therefore, we did boundaries for the Coast Guard District
We have analyzed this proposed rule not consider the use of voluntary 17 are described in 33 CFR 3.85–1.
consensus standards. Federal Law Enforcement Officer
under Executive Order 13045,
means any employee or agent of the
Protection of Children from Environment United States government who has the
Environmental Health Risks and Safety
We have analyzed this proposed rule authority to carry firearms and make
Risks. This rule is not an economically
under Commandant Instruction warrantless arrests and whose duties
significant rule and would not create an
M16475.lD, which guides the Coast involve the enforcement of criminal
environmental risk to health or risk to
Guard in complying with the National laws of the United States.
safety that might disproportionately High capacity passenger (HCP) vessel
affect children. Environmental Policy Act of 1969
means a passenger vessel greater than
(NEPA)(42 U.S.C. 4321–4370f), and
Indian Tribal Governments 100 feet in length that is authorized to
have made a preliminary determination
carry more than 500 passengers for hire.
This proposed rule does not have that there are no factors in this case that Navigation rules mean international
tribal implications under Executive would limit the use of a categorical and inland navigation rules in 33 CFR
Order 13175, Consultation and exclusion under section 2.B.2 of the chapter I, subchapters D and E.
Coordination with Indian Tribal Instruction. Therefore, we believe that Navigable waters of the United States
Governments, because it would not have this rule should be categorically means those waters defined as such in
a substantial direct effect on one or excluded, under figure 2–1, paragraph 33 CFR part 2.
more Indian tribes, on the relationship (34)(g), of the Instruction, from further Official Patrol means those persons
between the Federal Government and environmental documentation. designated by the District Commander
Indian tribes, or on the distribution of A preliminary ‘‘Environmental or cognizant COTP to monitor a HCP
power and responsibilities between the Analysis Check List’’ is available in the vessel security zone, permit entry into
Federal Government and Indian tribes. docket where indicated under the zone, give legally enforceable orders
We invite your comments on how this ADDRESSES. Comments on this section to persons or vessels within the zone
proposed rule might impact tribal will be considered before we make the and take other actions authorized by the
governments, even if that impact may final decision on whether the rule COTP. Persons authorized in paragraph
not constitute a ‘‘tribal implication’’ should be categorically excluded from (e) of this section to enforce this section
under the Order. further environmental review. are designated as the Official Patrol.

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11598 Federal Register / Vol. 70, No. 45 / Wednesday, March 9, 2005 / Proposed Rules

State Law Enforcement Officer means Commander, cognizant COTP, or Dated: February 7, 2005.
any peace officer as defined in Alaska designated on-scene official patrol. James C. Olson,
Statute § 01.10.060. (6) When conditions permit, the Rear Admiral, U.S. Coast Guard, Commander,
Vessel means every description of District Commander, cognizant COTP, Seventeenth Coast Guard District.
watercraft or other artificial contrivance or designated on-scene official patrol [FR Doc. 05–4598 Filed 3–8–05; 8:45 am]
used, or capable of being used, as a should: BILLING CODE 4910–15–P
means of transportation on water, (i) Permit vessels constrained by their
except public vessels. navigational draft or restricted in their
(b) Location. (1) Regulated navigation DEPARTMENT OF HOMELAND
ability to maneuver to enter the security
area. The following area is a regulated SECURITY
zone in order to ensure a safe passage
navigation area (RNA): All navigable
in accordance with the Navigation
waters of United States within the Coast Guard
Rules; and
boundaries of the Coast Guard District
17(Alaska). (ii) Grant waiver of any of the
33 CFR Part 165
(2) Security zone. A security zone is requirements of this section for any
established around and under, and is vessel or class of vessels upon finding [CGD05–05–010]
centered on, each high capacity that a vessel or class of vessels, RIN 1625–AA00 and 1625–AA87
passenger (HCP) vessel within the RNA operational conditions or other
described in paragraph (b)(1) of this circumstances are such that application Safety and Security Zones; Fifth Coast
section, and extends l00 yards from the of this section is unnecessary or Guard District
vessel while it is underway and 25 impractical for the purpose of security,
safety, or environmental safety. AGENCY: Coast Guard, DHS.
yards from the vessel while it is moored
or anchored. A security zone enforced Applications for waiver should be ACTION: Notice of proposed rulemaking.
when a HCP vessel enters the RNA and directed initially to the cognizant COTP.
SUMMARY: The Coast Guard proposes to
remains enforced until the HCP vessel To be effective, all waivers must be
remove three established safety/security
leaves the RNA. This is a moving granted in writing by the District
zone regulations for Chesapeake Bay,
security zone when the HCP vessel is in Commander or cognizant COTP.
Maryland, Captain of the Port Hampton
transit and a fixed zone when the HCP (d) Contact information. (1) Vessels Roads and Atlantic Ocean, Chesapeake
vessel is moored or anchored. A security seeking permission under paragraphs and Delaware Canal, Delaware Bay,
zone will not extend beyond the (c)(2), (c)(4), or (c)(6) of this section Delaware River and its tributaries. The
boundary of the RNA in this section. should contact the cognizant COTP or Commander of the Fifth Coast Guard
(c) Regulations. (1) Under 33 CFR on-scene official patrol to make a timely District recently issued a District-wide
165.33, no person or vessel may enter request. security zone regulation for escorted
into the security zones established (2) The on-scene official patrol (if vessels that will make these three
under this section unless authorized by there is one) or the cognizant COTP or previously established safety/security
the Coast Guard District 17 Commander, his or her designated representatives zone regulations unnecessary. This
the cognizant Captain of the Port, or the may be contacted by the following proposed rule would eliminate any
on-scene official patrol. means: duplication between the three
(2) When a HCP vessel in the RNA (i) Channel 13 or 16, VHF–FM. established safety/security zone
approaches within 100 yards of a vessel (ii) By telephone: Southeast Alaska regulations and the recently established
that is moored or anchored in a (907) 957–0150; Prince William Sound District-wide security zone regulation
designated anchorage area, the (907) 835–7205; and Western Alaska for escorted vessels.
stationary vessel must stay moored or (907) 271–6700. DATES: Comments and related material
anchored while it remains within the
(3) The District Command Center’s 24- must reach the Coast Guard on or before
HCP vessel’s security zone unless it is
hour non-emergency telephone number April 8, 2005.
either ordered by or given permission
is (907) 463–2001. ADDRESSES: Comments and material
from the Coast Guard District 17
Commander, the cognizant Captain of (e) Enforcement. Any Coast Guard received from the public, as well as
the Port, or the on-scene official patrol commissioned, warrant or petty officer documents indicated in this preamble as
to do otherwise. may enforce the rules in this section. In being available in the docket, are part of
(3) The COTP will inform the public the navigable waters of the United docket CGD05–05–010 and are available
of the existence of security zone around States to which this section applies, for inspection or copying at the Fifth
and under HCP vessels in the RNA by when immediate action is required and Coast Guard District, Marine Safety
Marine Safety Information Broadcasts. representatives of the Coast Guard are Division, 431 Crawford Street,
(4) Vessels that seek to enter a not present or not present in sufficient Portsmouth, Virginia, 23704 between 8
security zone or exceed speed limits force to provide effective enforcement of a.m. and 4 p.m., Monday through
established in this section, may contact this section in the vicinity of a HCP Friday, except Federal holidays.
the on-scene official patrol (if there is vessel, any Federal Law Enforcement FOR FURTHER INFORMATION CONTACT:
one) or the cognizant COTP to request Officer or State Law Enforcement Lieutenant E.J. Terminella, Fifth Coast
permission. Officer may enforce the rules contained Guard District, at (757) 398–7783.
(5) A vessel in the RNA operating in this section pursuant to 33 CFR 6.04– SUPPLEMENTARY INFORMATION:
within 250 yards of a HCP vessel must 11. In addition, the District Commander,
proceed at the minimum speed cognizant COTP, or on-scene official Request for Comments
necessary to maintain a safe course, patrol may be assisted by other Federal, We encourage you to participate in
unless required to maintain speed by State or local agencies in enforcing this this rulemaking by submitting
the navigation rules. All persons and section. comments and related material. If you
vessels within 250 yards of a HCP vessel (f) Authority. In addition to 33 U.S.C. do so, please include your name and
in the RNA must be attentive to and 1231 and 50 U.S.C. 191, the authority address, identify the docket number for
comply with the orders of the District for this section includes 33 U.S.C. 1226. this rulemaking [CGD05–05–010],

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