[Federal Register Volume 68, Number 93 (Wednesday, May 14, 2003)]
[Rules and Regulations]
[Pages 25818-25821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11988]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD17-03-001]
RIN 1625-AA11


Vessel Movement Reporting System; Prince William Sound, AK

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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[[Page 25819]]

SUMMARY: The Coast Guard is establishing a temporary regulation 
requiring all commercial and fishing vessels, regardless of length, to 
participate in the Vessel Movement Reporting System while operating 
within the Prince William Sound. This action is being taken to 
safeguard vessels, ports and waterfront facilities from sabotage or 
terrorist acts and incidents by providing the Coast Guard with the 
enhanced ability to track vessel traffic in the Prince William Sound. 
This action is necessary to ensure public safety and prevent sabotage, 
terrorist acts or incidents, and to facilitate the efforts of emergency 
services and law enforcement officers responding to terrorist incidents 
or attacks.

DATES: This rule is effective from April 3, 2003, through May 18, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket CGD17-03-001 and are available for 
inspection or copying at U.S. Coast Guard Marine Safety Office, 105 
Clifton Street, Valdez, Alaska 99686 between 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT C.L. Huot, U.S. Coast Guard Marine 
Safety Office, 105 Clifton Street, Valdez, Alaska 99686, (907) 835-
7262.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    Pursuant to 5 U.S.C. 553, we did not publish a notice of proposed 
rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553 (b)(B), the 
Coast Guard finds that good cause exists for not publishing an NPRM. 
The Coast Guard operates under a three-tiered system of Maritime 
Security (MARSEC) conditions that are aligned with the color coded 
Homeland Security Advisory System Conditions (HSAS). The port of Valdez 
has been elevated to the second highest level of alert MARSEC II/HSAS 
ORANGE based on the conflict with Iraq and, as such, vessel control 
measures for the Coast Guard to establish heightened deterrence and 
detection of terrorist activities in the port are necessary.
    Additionally, the Maritime Administration recently issued MARAD 
Advisory 03-01 (071900Z FEB 03) 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. Further, the heightened security posture of the 
country and U.S. maritime interests, described below, continues. The 
publication of an NPRM is contrary to the public interest insofar as 
urgent action is required to address the ongoing threat to U.S. 
maritime transportation interests.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register. The measures 
contemplated by the rule are intended to prevent waterborne acts of 
sabotage or terrorism, which terrorists have demonstrated a capability 
to carry out. Immediate action is needed to defend against and deter 
these terrorist acts. Any delay in the effective date of this rule is 
impracticable and contrary to the public interest.

Background and Purpose

    Terrorist attacks on September 11, 2001, inflicted catastrophic 
human casualties and property damage. These attacks highlighted the 
terrorists' ability and desire to utilize multiple means in different 
geographic areas to increase their opportunities to successfully carry 
out their mission, thereby maximizing destruction using multiple 
terrorist acts.
    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. The threat of maritime attacks is real as evidenced by 
the October 2002 attack on a tank vessel off the coast of Yemen and the 
prior attack on the USS Cole. These attacks 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 disturbances continue 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); 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 state of alert against possible 
terrorist attacks. MARAD more recently issued Advisory 03-01 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. The ongoing hostilities 
in Afghanistan and conflict in Iraq have made it prudent for U.S. ports 
and waterways 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.
    The conflict in Iraq has caused the Attorney General in 
consultation with the Secretary of the Department for Homeland Security 
to elevate the HSAS threat condition to High/Orange and accordingly the 
Coast Guard has established MARSEC II in the port of Valdez. The Coast 
Guard will follow the guidance for the Department of Homeland Security 
and implement the following general measures: Coordinate necessary 
security efforts with Federal, State, and local law enforcement 
agencies or any National Guard or other appropriate armed forces 
organizations; take additional precautions at public events and 
possibly considering alternative venues or even cancellation; and 
restrict threatened facility access to essential personnel only. The 
measures contemplated by this rule are intended to prevent future 
terrorist attacks against critical maritime infrastructure including 
the Trans-Alaska Pipeline System's Valdez Marine Terminal, and the 
shipping lanes leading to and from it. This terminal supplies 
approximately half of the crude oil needs of the U.S. West Coast.
    To address the aforementioned security concerns and to take steps 
to prevent the catastrophic impact that a terrorist attack against a 
major crude oil loading terminal or other critical infrastructure in 
the port of Valdez would have on the public interest, the 17th Coast 
Guard District Commander is establishing vessel movement reporting 
requirements for all commercial and fishing vessels. These amendments 
to the existing rules for the Prince William Sound Regulated Navigation 
Area will help to prevent vessels or persons from engaging in terrorist 
actions against petroleum terminals, petroleum tankers, or other 
critical port facilities by providing the Coast Guard with the enhanced 
ability to track vessel movement in the Prince William Sound.
    The Coast Guard is establishing these vessel movement reporting 
requirements within Prince William Sound, Alaska in order to safeguard 
vessels, ports and waterfront facilities from sabotage or terrorist 
acts or incidents. These requirements apply to commercial and fishing 
vessels operating within the boundaries of the Regulated Navigation 
Area defined in 33 CFR 165.1704. The Regulated Navigation Area is 
coextensive with the VTS Area and consists of the navigable waters of 
the United States north of a

[[Page 25820]]

line drawn from Cape Hinchinbrook Light to Schooner Rock Light, 
comprising that portion of Prince William Sound between 146[deg] 30' W 
and 147[deg] 20' W and includes Valdez Arm, Valdez Narrows, and Port 
Valdez. In accordance with 33 CFR 161.19, at least 15 minutes before 
navigating in a VTS Area, a vessel must report its name and type, 
position, destination and ETA, intended route, time and point of entry, 
and dangerous cargo on board. In accordance with 33 CFR 161.20, vessels 
underway in the VTS Area must report their name and position upon 
entry, at designated reporting points, and upon direction from the 
Coast Guard Vessel Traffic Service. The designated reporting points for 
VTS Prince William Sound are set forth in 33 CFR Table 161.60(d) and in 
the VTS Prince William Sound User's Manual. We will issue Broadcast 
Notices to Mariners to further publicize the reporting requirements and 
any revisions to requirements. This regulation is issued under 
authority contained in 33 U.S.C. 1226 and 50 U.S.C. 191.
    This rule temporarily requires all commercial and fishing vessels 
to participate in the Vessel Movement Reporting System. However, the 
COTP may, in his/her discretion grant waivers or exemptions to this 
rule, either on a case by case basis or categorically to a particular 
class of vessel or facility that otherwise is subject to adequate 
control measures. Vessels may be granted exemptions from the reporting 
requirements when, in the opinion of the Captain of the Port, position 
reporting would impede safe navigation of a vessel or would disclose 
sensitive information which requires protection in the interests of 
national security.

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. These operational restrictions are tailored to provide the 
minimal interruption of vessel operations necessary to provide 
immediate, improved security for the public, vessels, and the port of 
Valdez. Vessels may be exempted from the reporting requirements when, 
in the opinion of the Captain of the Port, reporting would impede safe 
navigation of a vessel or disclose information which requires 
protection in the interests of national security. Recreational vessels 
have been exempted in order to limit the burden on the public. However, 
recreational boaters are still highly encouraged to file float plans.
    Additionally, these reporting requirements are temporary in nature 
and vessels and facilities can appeal to the Captain of the Port for a 
waiver of the reporting requirements. Any hardships experienced by 
persons or vessels are outweighed by the national interest in 
protecting the public, vessels, and vessel crews from the devastating 
consequences of acts of terrorism, and from sabotage or other 
subversive acts, accidents, or other causes of a similar nature.

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 will affect the following entities, some of which 
may be small entities: the owners or operators of commercial and 
fishing vessels intending to operate or transit in the Prince William 
Sound Regulated Navigation Area. This rule will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons: The short duration of the temporary rule does not 
coincide with major fishing openers in the Prince William Sound; 
further, a vessel's ability to transit the Prince William Sound will 
not be significantly impaired by the reporting requirements; finally, 
vessels with compelling interests that outweigh the port's security 
needs may be granted waivers from the reporting requirements.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
wants to assist small entities in understanding this final rule so that 
they can better evaluate its effects on them and participate in the 
rulemaking. If your small business or organization would be affected by 
this final rule 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 
comments 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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will 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

[[Page 25821]]

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 may 
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 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 considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph 34(g) of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation. A ``Categorical Exclusion Determination'' 
is available in the docket for inspection or copying where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Vessels, 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 April 3 through May 18, 2003, in Sec.  165.1704, add temporary 
paragraphs (d), (e), (f) and (g) to read as follows:


Sec.  165.1704  Prince William Sound, Alaska--regulated navigation 
area.

* * * * *
    (d) In addition to the requirements set forth in Sec.  161.13 and 
Sec.  161.60(c) of this chapter, all vessels, regardless of length, 
engaged in commercial service and all fishing vessels navigating or 
intending to navigate in the Prince William Sound VTS Area must 
participate in the Vessel Movement Reporting System as defined in 33 
CFR part 161, subpart B and must make the voice reports required by 33 
CFR 161.19, 33 CFR 161.20, and 33 CFR 161.21.The COTP may waive any of 
the requirements of this rule for any person, vessel or class of vessel 
or waterfront facility upon finding that circumstances are such that 
application of the reporting requirements is unnecessary for national 
or port security, or are contrary to the interests of navigational 
safety. Reports and requests for waivers to the COTP required by this 
section must be made by telephone to (907) 835-7205 or by radio call on 
VHF-FM Channel 13 to U.S. COAST GUARD VALDEZ TRAFFIC. These numbers are 
operational 24 hours a day, 7 days a week.
    (e) The reporting exemptions set forth in 33 CFR 161.16 do not 
apply to this section and this section is applicable to all sizes and 
classes of vessels engaged in commercial service and fishing vessels.
    (f) In this section, consistent with 46 U.S.C. 2101(5), commercial 
service means any type of trade or business involving the 
transportation of goods or individuals, except service performed by a 
combatant vessel.
    (g) In this section, consistent with 46 U.S.C. 2101(11a), fishing 
vessel means a vessel that commercially engages in the catching, 
taking, or harvesting of fish or an activity that can reasonably be 
expected to result in the catching, taking, or harvesting of fish.

    Dated: April 3, 2003.
J.W. Underwood,
Rear Admiral, USCG, Commander, Seventeenth Coast Guard District.
[FR Doc. 03-11988 Filed 5-13-03; 8:45 am]
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