[Federal Register Volume 68, Number 81 (Monday, April 28, 2003)]
[Rules and Regulations]
[Pages 22298-22301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10292]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Southeast Alaska-03-001]
RIN 1625-AA00


Security Zone: Protection of Alaska Marine Highway System (AMHS) 
Vessels M/V Columbia, M/V Kennicott, M/V Malaspina, and M/V Matanuska, 
in Southeast Alaska Waters

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: Increases in the Coast Guard's maritime security posture 
necessitate establishing temporary regulations for the security of AMHS 
vessels in the navigable waters of Southeast Alaska. This security zone 
will provide for the regulation of vessel traffic in the vicinity of 
AMHS vessels in the navigable waters of Southeast Alaska.

DATES: This temporary rule is effective March 19, 2003, until September 
19, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket COTP Southeast Alaska-03-001 and are 
available for inspection or copying at Marine Safety Office Juneau, 
2760 Sherwood Lane, Suite 2A, Juneau, Alaska 99801, between 8 a.m. and 
4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LTJG Darwin A. Jensen, Marine Safety 
Office Juneau, 2760 Sherwood Lane, Suite 2A, Juneau, Alaska 99801, 
(907) 463-2450.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for not publishing an NPRM and for 
making this rule effective less than 30 days after publication in the 
Federal Register. Publishing a NPRM would be contrary to public 
interest since immediate action is necessary to safeguard AMHS vessels 
from sabotage, other subversive acts, or accidents. If normal notice 
and comment procedures were followed, this rule would not become 
effective soon enough to provide immediate protection to AMHS vessels 
from the threats posed by hostile entities and would compromise the 
vital national interest in protecting maritime transportation and 
commerce. The security zone in this regulation has been carefully 
designed to minimally impact the public while providing a reasonable 
level of protection for AMHS vessels. For these reasons, following 
normal rulemaking procedures in this case would be impracticable, 
unnecessary, and contrary to the public interest.

Background and Purpose

    The Coast Guard, through this action, intends to assist AMHS 
vessels by establishing a security zone to exclude persons and vessels 
from the immediate vicinity. Recent events highlight the fact that 
there are hostile entities operating with the intent to harm U.S. 
National Security. The President has continued the national emergencies 
he declared following the September 11, 2001, terrorist attacks (67 FR 
58317 (Sept. 13, 2002) (Continuing national emergency with respect to 
terrorist attacks), 67 FR 59447 (Sept. 20, 2002) (Continuing national 
emergency with respect to persons who commit, threaten to commit or 
support terrorism)). The President also has found pursuant to law, 
including the Act of June 15, 1917, as amended August 9, 1950, by the 
Magnuson Act (50 U.S.C. 191 et seq.), that the security of the United 
States is and continues to be endangered following the attacks (E.O. 
13,273, 67 FR 56215 (Sept. 3, 2002) (Security

[[Page 22299]]

endangered by disturbances in international relations of U.S. and such 
disturbances continue to endanger such relations)).
    Entry into this zone will be prohibited unless authorized by the 
Captain of the Port or his designee. The Captain of the Port may be 
assisted by other Federal, State, or local agencies.

Discussion of Rule

    This rule controls vessel movement in a regulated area surrounding 
AMHS high capacity passenger vessels that are in service. For the 
purpose of this regulation, AMHS high capacity passenger vessels are M/
V Columbia, M/V Kennicott, M/V Malaspina and M/V Matanuska (``AHMS 
vessels''). All vessels authorized to be within 100 yards of these AMHS 
vessels shall operate at the minimum speed necessary to maintain a safe 
course, and shall proceed as directed by the on-scene official patrol 
or AMHS vessel master. No vessel, except a public vessel (defined 
below), is allowed within 100 yards of the AHMS vessels, unless 
authorized by the on-scene official patrol or AMHS vessel master. 
Vessels requesting to pass within 100 yards of these vessels shall 
contact the official patrol or AMHS vessel master on VHF-FM channel 16 
or 13. The on-scene official patrol or AMHS vessel master may permit 
vessels that can only operate safely in a navigable channel to pass 
within 100 yards of the subject AMHS vessels in order to ensure a safe 
passage in accordance with the Navigation Rules. Similarly, commercial 
vessels anchored in a designated anchorage area may be permitted to 
remain at anchor within 100 yards of a passing AMHS vessel. Public 
vessels for the purpose of this Temporary Final Rule are vessels owned, 
chartered, or operated by the United States, or by a State or political 
subdivision thereof.

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 proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DHS is unnecessary.
    Although this regulation restricts access to the regulated area, 
the effect of this regulation will not be significant because: (i) 
Individual AMHS vessel security zones are limited in size; (ii) the on-
scene official patrol or AMHS vessel master may authorize access to the 
AMHS vessel security zone; (iii) the AMHS vessel security zone for any 
given transiting AMHS vessel will effect a given geographical location 
for a limited time; and (iv) 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 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 rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule may 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 AMHS vessels in the navigable waters 
of the United States.
    This temporary regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: (i) Individual AMHS vessel security zones are limited in size; 
(ii) the on-scene official patrol or AMHS vessel master may authorize 
access to the AMHS vessel security zone; (iii) the AMHS vessel security 
zone for any given transiting AMHS vessel will affect a given 
geographic location for a limited time; and (iv) the Coast Guard will 
make notifications via maritime advisories so mariners can adjust their 
plans accordingly.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact one of the points of contact 
listed under FOR FURTHER INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

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 will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect 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

[[Page 22300]]

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 may disproportionately affect children.

Indian Tribal Governments

    The Coast Guard is committed to working with tribal governments to 
implement local policies to mitigate tribal concerns. Given the 
flexibility of the Temporary Final Rule to accommodate the special 
needs of mariners in the vicinity of AMHS vessels and the Coast Guard's 
commitment to working with the tribes, we have determined that AMHS 
vessel security and fishing rights protection need not be incompatible. 
Therefore, we have determined that this Temporary Final Rule does not 
have tribal implications under Executive Order 13175, Consultation and 
Coordination with Indian Tribal Governments, because it does 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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.lD, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969(NEPA)(42 U.S.C. 4321-4370f), and have 
concluded that there are no factors in this case that would limit the 
use of a categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation.
    A draft ``Environmental Analysis Check List'' and a ``Categorical 
Exclusion Determination'' (CED) are 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 record 
keeping 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.


0
2. From March 19, 2003, until September 19, 2003, temporary Sec.  
165.T17-014 is added to read as follows:


Sec.  165.T17-014  Security Zone Regulations, Alaska Marine Highway 
System High Capacity Passenger Vessel Security Zone, Southeast Alaska, 
Captain of the Port Zone.

    (a) The following definitions apply to this section:
    (1) Alaska Law Enforcement Officer means any General Authority 
Alaska Peace Officer, Limited Authority Alaska Peace Officer, or 
Specially Commissioned Alaska Peace Officer, as defined by Alaska State 
laws.
    (2) Alaska Marine Highway System high capacity passenger vessel 
(``AMHS vessel'') includes the following vessels; M/V Columbia, M/V 
Kennicott, M/V Malaspina and M/V Matanuska.
    (3) AMHS vessel security zone is a regulated area of water, 
established by this section, surrounding an AMHS vessel for a 100-yard 
radius that is necessary to provide for the security of these vessels.
    (4) 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.
    (5) Navigable waters of the United States means those waters 
defined as such in 33 CFR part 2.05-25.
    (6) Navigation Rules means the Navigation Rules, International-
Inland.
    (7) Official Patrol means those persons designated by the Captain 
of the Port to monitor an AMHS 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 Captain of the Port. 
Persons authorized to enforce this section are designated as the 
Official Patrol.
    (8) Public vessel means vessels owned, chartered, or operated by 
the United States, or by a State or political subdivision thereof.
    (b) Location. The following is the Alaska Marine Highway System 
high capacity passenger vessel (``AMHS vessel'') security zone: All 
water and land areas within a 100-yard radius of an AMHS vessel when 
that vessel is located within the navigable waters of the United 
States, starting at 60 01.3' N. latitude, 142 00' W. longitude; thence 
northeasterly to the Canadian border at 60 18.7' N. latitude, 141 00' 
W. longitude; thence southerly and easterly along the United States-
Canadian shoreside boundary to 54 40' N. latitude; thence westerly 
along the United States-Canadian maritime boundary to the outermost 
extent of the United States Exclusive Economic Zone (EEZ); thence 
northerly along the outer boundary of the EEZ to 142 00' W longitude; 
thence due north to the point of origin. [Datum: NAD 1983]
    (c) An AMHS vessel security zone exists around the subject AMHS 
vessels at all times, whether the AMHS vessel is underway, anchored, or 
moored.
    (d) The Navigation Rules shall apply at all times within an AMHS 
vessel security zone.
    (e) All vessels authorized to be within an AMHS vessel security 
zone shall operate at the minimum speed necessary to maintain a safe 
course and shall proceed as directed by the on-scene official patrol or 
AMHS vessel master. No vessel or person is allowed within 100 yards of 
an AMHS vessel, unless authorized by the on-scene official patrol or 
AMHS vessel master.
    (f) To request authorization to operate within an AMHS vessel 
security zone, contact the on-scene official patrol or AMHS vessel 
master on VHF-FM channel 16 or 13.
    (g) When conditions permit, the on-scene official patrol or AMHS 
vessel master should:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within 100 yards of an 
AMHS vessel in order to ensure a safe passage in accordance with the 
Navigation Rules; and
    (2) Permit commercial vessels anchored in a designated anchorage 
area to remain at anchor within 100 yards of a passing AMHS vessel; and
    (3) Permit vessels that must transit via a navigable channel or 
waterway to pass within 100 yards of a moored or

[[Page 22301]]

anchored AMHS vessel with minimal delay consistent with security.
    (h) Exemption. Public vessels as defined in paragraph (a) above are 
exempt from complying with paragraphs (b), (c), (e), (f), (g), (i), and 
(j), of this section.
    (i) Enforcement. Any Coast Guard commissioned, warrant or petty 
officer may enforce the rules in this section. When immediate action is 
required and representatives of the Coast Guard are not present or not 
present in sufficient force to exercise effective control in the 
vicinity of an AMHS vessel, any Federal Law Enforcement Officer or 
Alaska State Law Enforcement Officer may enforce the rules contained in 
this section pursuant to 33 CFR Sec.  6.04-11. In addition, the Captain 
of the Port may be assisted by other federal, state or local agencies 
in enforcing this section.
    (j) Waiver. The Captain of the Port Southeast Alaska may waive any 
of the requirements of this section for any vessel 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 port security, safety or 
environmental safety.

    Dated: March 18, 2003.
S. J. Ohnstad,
Commander, Coast Guard, Captain of the Port, Southeast Alaska.
[FR Doc. 03-10292 Filed 4-25-03; 8:45 am]
BILLING CODE 4910-15-P