[Federal Register: May 14, 2003 (Volume 68, Number 93)]
[Rules and Regulations]
[Page 25818-25821]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my03-7]
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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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