[Federal Register Volume 68, Number 132 (Thursday, July 10, 2003)]
[Rules and Regulations]
[Pages 41078-41081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17463]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP-PWS-03-003]
RIN 1625-AA00


Security Zone: Protection of High Capacity Passenger Vessels in 
Prince William Sound, Alaska

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary regulations for the 
security of high capacity passenger (HCP) vessels in the navigable 
waters of Prince William Sound, Alaska. This security zone will provide 
for the regulation of vessel traffic in the vicinity of high capacity 
passenger vessels in the navigable waters of the Captain of the Port, 
Prince William Sound zone. This action is being taken to safeguard 
vessels and ports from sabotage or terrorist acts and incidents by 
providing the Coast Guard with the enhanced ability to manage vessel 
traffic in the vicinity of high capacity passenger vessels. This action 
is necessary to ensure public safety and prevent sabotage, terrorist 
acts or incidents involving high capacity passenger vessels.

DATES: This temporary rule is effective June 17, 2003, until September 
22, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket COTP-PWS-03-003 and are available for 
inspection or copying at Marine Safety Office Valdez, 105 Clifton 
Drive, Valdez, Alaska 99686, between 8 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LT Catherine L. Huot, Marine Safety 
Office Valdez, 105 Clifton Drive, Valdez, Alaska 99686, (907) 835-7262.

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 high capacity 
passenger (HCP) 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 HCP 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 high capacity passenger 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 rule, intends to assist HCP vessels 
by establishing a security zone to exclude persons and vessels from 
their 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 prohibits vessels from entering security zones 
surrounding HCP vessels that are underway, anchored, or moored. For the 
purpose of this regulation, HCP vessels are those vessels or U.S. or 
foreign registry certificated to carry 500 passengers or more. All 
vessels authorized to be within 100 yards of HCP vessels shall operate 
at the minimum speed necessary to maintain a safe course, and shall 
proceed as directed by the on-

[[Page 41079]]

scene official patrol or HCP vessel master.
    No vessel, except a public vessel, is allowed within 100 yards of 
the HCP vessels, unless authorized by the on-scene official patrol or 
HCP vessel master. 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.
    Vessels requesting to pass within 100 yards of HCP vessels must 
contact the on-scene official patrol or HCP vessel master on VHF-FM 
channel 16 or 13. The on-scene official patrol or HCP vessel master may 
permit vessels that need to be in a navigable channel to operate safely 
to pass within 100 yards of the HCP 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 HCP vessel.

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 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 vessel security zones are limited in size; (ii) the on-scene 
official patrol or HCP vessel master may authorize access to the 
vessel's security zone; (iii) the HCP vessel security zone for any 
given transiting 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 HCP vessels in the navigable waters 
of Prince William Sound.
    This temporary regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: (i) Individual vessel security zones are limited in size; (ii) 
the on-scene official patrol or HCP vessel master may authorize access 
to the vessel security zone; (iii) the HCP vessel security zone for any 
given transiting 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 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 vessels and the Coast Guard's 
commitment to working with the Tribes, we have determined that 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

[[Page 41080]]

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 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 final ``Environmental Analysis Check 
List'' and a final ``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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.


0
2. From June 17, 2003, until September 22, 2003, temporary Sec.  
165.T17-019 is added to read as follows:


Sec.  165.T17-019  Security Zone Regulations, High Capacity Passenger 
Vessel Protection Zone, Prince William Sound, Alaska, Captain of the 
Port Zone.

    (a) Definitions. 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.
    Captain of the Port, Prince William Sound Zone means the area of 
land and water as defined in 33 CFR 3.85-20, which comprises the area 
within a boundary which starts at Cape Puget at 148[deg]26' W. 
longitude, 59[deg]56.06' N. latitude, and proceeds northerly to 
61[deg]30' N. latitude; thence easterly to the United States-Canadian 
boundary; thence southerly along the United States-Canadian boundary to 
60[deg]18.7' N. latitude; thence southwesterly to the sea at 
60[deg]01.3' N. latitude, 142[deg]00' W. longitude; thence southerly 
along 142[deg]00' W. longitude to the outermost boundary of the EEZ; 
thence along the outermost boundary of the EEZ to 148[deg]26' N. 
longitude; thence northerly along 148[deg]26' W. longitude to the place 
of origin at Cape Puget at 59[deg]56.06' N. latitude.
    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 vessel of U.S. or 
foreign registry certificated to carry 500 or more passengers for hire.
    High capacity passenger (HCP) vessel security zone is a regulated 
area of land and water, established by this section, surrounding for a 
100 yard radius HCP vessels, that is necessary to provide for the 
security of these vessels.
    Navigable waters of the United States means those waters defined as 
such in 33 CFR part 2 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 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 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.
    (b) Applicability. This section applies to any vessel or person in 
or adjacent to the navigable waters of the United States within the 
Captain of the Port, Prince William Sound Zone.
    (c) Location. A HCP security zone is established and extends for a 
100-yard radius around all HCP vessels when those vessels are located 
in the navigable waters of the United States and within the Captain of 
the Port, Prince William Sound Zone, whether the HCP vessel is 
underway, anchored, or moored.
    (d) Navigation Rules. The Navigation Rules shall apply at all times 
within a HCP vessel security zone.
    (e) Regulations. All vessels authorized to be within a HCP 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 HCP vessel master. No vessel or person is allowed within 100 
yards of a HCP vessel, unless authorized by the on-scene official 
patrol or HCP vessel master.
    (f) Requests to enter. To request authorization to operate within a 
HCP vessel security zone, contact the on-scene official patrol or HCP 
vessel master on VHF-FM channel 16 or 13.
    (g) Authorization. When conditions permit, the on-scene official 
patrol or HCP vessel master should:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within 100 yards of a 
HCP 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 HCP vessel; and
    (3) Permit vessels that must transit via a navigable channel or 
waterway to pass within 100 yards of a moored or anchored HCP 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 a HCP vessel, any Federal

[[Page 41081]]

Law Enforcement Officer or Alaska Law Enforcement Officer may enforce 
the rules contained in this section 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 section.
    (j) Waiver. The Captain of the Port, Prince William Sound, 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: June 17, 2003.
M.A. Swanson,
Commander, U.S. Coast Guard, Captain of the Port, Prince William Sound, 
Alaska.
[FR Doc. 03-17463 Filed 7-9-03; 8:45 am]
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