[Federal Register Volume 68, Number 97 (Tuesday, May 20, 2003)]
[Rules and Regulations]
[Pages 27469-27471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12551]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP Western Alaska 03-002]
RIN 1625-AA00


Security Zone: Protection of Alaska Marine Highway System (AMHS) 
Vessel M/V Kennicott in Western 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 
Alaska Marine Highway System (AMHS) vessels in the navigable waters of 
Western Alaska. This security zone will provide for the regulation of 
vessel traffic in the vicinity of AMHS vessels in the navigable waters 
of Western Alaska.

DATES: This temporary rule is effective April 28, 2003, until September 
19, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket COTP Anchorage 03-012 and are available 
for inspection or copying at Marine Safety Office Anchorage, 510 L 
Street, Suite 100, Anchorage, Alaska 99501, between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: CDR Robert Forgit, Marine Safety 
Office Anchorage, 510 L Street, Suite 100, Anchorage, Alaska 99501, 
(907) 271-6771.

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 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, the AMHS vessel is the M/V Kennicott. All 
vessels authorized to be within 100 yards of this vessel 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 subject vessel, unless authorized by the on-
scene official patrol or AMHS vessel master. Vessels requesting to pass 
within 100 yards of this vessel shall contact the on-scene 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 passing this 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

[[Page 27470]]

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 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 
and therefore 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

[[Page 27471]]

rule is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction, from further environmental documentation. A final 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' (CED) will be available in the docket where indicated 
under ADDRESSES.

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 APR 28, 2003, until SEPT 19, 2003, Sec.  165.T17-005 is added 
to read as follows:


Sec.  165.T17-005  Security Zone Regulations, Alaska Marine Highway 
System Vessel Security Zone, Western Alaska, Captain of the Port Zone.

    (a) The following definitions apply to this section:
    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.
    Alaska Marine Highway System High Capacity Passenger Vessel (``AMHS 
vessel'') includes the following vessel; M/V Kennicott.
    AMHS Vessel Security Zone is a regulated area of land and water, 
established by this section, surrounding AMHS vessels for a 100 yard 
radius, that is necessary to provide for the security of these vessels.
    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.
    Navigable waters of the United States means those waters defined as 
such in 33 CFR part 2.05-25 and includes those waters described in 33 
U.S.C. 1222(5) and 50 U.S.C. 195(2).
    Navigation Rules means the Navigation Rules, International-Inland.
    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.
    Public vessel means vessels owned, chartered, or operated by the 
United States, or by a State or political subdivision thereof.
    Western Alaska Captain of the Port Zone means the area of land and 
water described in 33 CFR 3.85-15.
    (b) This section applies to any vessel or person in or adjacent to 
the navigable waters of the United States in or adjacent to the State 
of Alaska west of 148[deg] 26' longitude and within the Western Alaska 
Captain of the Port Zone.
    (c) An AMHS vessel security zone is established and exists for a 
100 yard radius around AMHS vessels at all times when located in the 
navigable waters of the United States in or adjacent to the State of 
Alaska and within the Western Alaska Captain of the Port Zone, 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 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 located in or adjacent to the navigable 
waters of the United States to which this section applies 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 100 yards of an AMHS 
vessel, 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 anchored AMHS vessel 
with minimal delay consistent with security.
    (h) Public vessels as defined in paragraph (a) of this section are 
exempt from complying with paragraphs (b), (c), (e), (f), (g), (i), and 
(j) of this section.
    (i) 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 effect 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 regulation 
pursuant to 33 CFR 6.04-11. In addition, the Captain of the Port may be 
assisted by other federal, state or local agencies in enforcing this 
rule.
    (j) The Captain of the Port Western 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: April 21, 2003.
Ronald J. Morris,
Captain, U.S. Coast Guard, Captain of the Port, Western Alaska.
[FR Doc. 03-12551 Filed 5-19-03; 8:45 am]
BILLING CODE 4910-15-P