03-11988. Vessel Movement Reporting System; Prince William Sound, AK

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

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, [phone].

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 line drawn from Cape Hinchinbrook Light to Schooner Rock Light, comprising that portion of Prince William Sound between 146° 30′ W and 147° 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 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

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

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.

2. From April 3 through May 18, 2003, in § 165.1704, add temporary paragraphs (d), (e), (f) and (g) to read as follows:

§ 165.1704

Prince William Sound, Alaska—regulated navigation area.

* * * * *

(d) In addition to the requirements set forth in § 161.13 and § 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 [phone] 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.