[Federal Register Volume 66, Number 184 (Friday, September 21, 2001)]
[Rules and Regulations]
[Pages 48780-48782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23705]



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Part IV





Department of Transportation





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Coast Guard



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33 CFR Part 165



Protection of Naval Vessels; Temporary Final Rules

  Federal Register / Vol. 66, No. 184 / Friday, September 21, 2001 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[LANT AREA-01-001]
RIN 2115-AG23


Protection of Naval Vessels

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: Following terrorist attacks in New York and Washington, DC., 
the Coast Guard is establishing temporary regulations for the safety or 
security of U.S. naval vessels in the navigable waters of the United 
States. The regulations are issued under the authority contained in 14 
U.S.C. 91. Naval Vessel Protection Zones will provide for the 
regulation of vessel traffic in the vicinity of U.S. naval vessels in 
the navigable waters of the United States.

DATES: This rule is effective from September 14, 2001 to June 15, 2002.

ADDRESSES: You may mail comments and related material to Commander 
(Amr), Coast Guard Atlantic Area, 431 Crawford Street, Portsmouth, VA 
23704-5004. Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket LANT AREA 01-001 and are available for inspection or 
copying at 431 Crawford Street, Portsmouth, VA, room 416 between 9 a.m. 
and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: CDR Chris Doane, Commander (Amr), 
Coast Guard Atlantic Area, 431 Crawford Street, Portsmouth, VA 23704-
5004; telephone number (757) 398-6372.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    In order to protect the interests of national security, the Coast 
Guard is promulgating temporary regulations to provide for the safety 
and security of U.S. naval vessels in the navigable waters of the 
United States. As a result, the establishment and enforcement of naval 
vessel protection zones is a function directly involved in, and 
necessary to military operations. Accordingly, based on the military 
function exception set forth in the Administrative Procedure Act, 5 
U.S.C. 553(a)(1), notice and comment rule-making and advance 
publication, pursuant to 5 U.S.C. 553(b) and (d), are not required for 
this regulation.
    Also, under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a NPRM. Under 5 U.S.C. 553(d)(3), the 
Coast Guard finds that good cause exists for making this rule effective 
immediately. This temporary regulation of short duration is necessary 
to provide for the immediate security and safety of U.S. naval vessels 
following the terrorist attacks in New York City and Washington, DC. To 
delay the effective date would be impracticable and contrary to the 
public interest.

Background and Purpose

    These zones are necessary to provide for the safety and security of 
United States naval vessels in the navigable waters of the United 
States. The regulations are issued under the authority contained in 14 
U.S.C. 91.

Discussion of Rule

    This rule, for safety and security concerns, controls vessel 
movement in a regulated area surrounding U.S. naval vessels. U.S. naval 
vessel means any vessel owned, operated, chartered, or leased by the 
U.S. Navy; and any vessel under the operational control of the U.S. 
Navy or a unified commander. All vessels within 500 yards of a U.S. 
naval vessel shall operate at the minimum speed necessary to maintain a 
safe course and shall proceed as directed by the official patrol (a 
Coast Guard commissioned, warrant or petty officer; or the Commanding 
Officer of a U.S. naval vessel or his or her designee). No vessel is 
allowed within 100 yards of a U.S. naval vessel, unless authorized by 
the official patrol. Vessels requesting to pass within 100 yards of a 
U.S. naval vessel shall contact the official patrol on VHF-FM channel 
16. The official patrol may permit vessels that can only operate safely 
in a navigable channel to pass within 100 yards of a U.S. naval vessel 
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 
naval vessels.
    Violations of these regulations are punishable as a class D felony 
(imprisonment for not more than 6 years and a fine of not more than 
$250,000) and in rem liability against the 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 Transportation 
(DOT) (44 FR 11040, February 26, 1979).
    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 DOT is unnecessary.
    Although this regulation restricts access to the regulated area, 
the effect of this regulation will not be significant because: (i) 
Individual naval vessel protection zones are limited in size; (ii) The 
official patrol may authorize access to the naval vessel protection 
zone; (iii) the naval vessel protection zone for any given transiting 
naval 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 will 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 U.S. naval 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 naval vessel protection zones are limited in 
size; (ii) The official patrol may authorize access to the naval vessel 
protection zone; (iii) the naval vessel protection zone for any given 
transiting naval 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

[[Page 48781]]

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 the address listed under 
ADDRESSES.
    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

    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

    The Coast Guard's preliminary review indicates this temporary rule 
is categorically excluded from further environmental documentation 
under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lC. 
The environmental analysis and Categorical Exclusion Determination will 
be prepared and submitted after establishment of this temporary naval 
vessel protection zone, and will be available in the docket. This 
temporary rule ensures the safety and security of U.S. naval vessels. 
All standard environmental measures remain in effect. The Categorical 
Exclusion Determination will be made 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), Protection of naval 
vessels, Reporting and recordkeeping requirements, Security measures, 
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 subpart G reads as follows:

    Authority: 14 U.S.C. 91 and 633; 49 CFR 1.45.


    2. Subpart G is added to part 165 to read as follows:

Subpart G--Protection of Naval Vessels

Sec.
165.2000   Purpose.
165.2015   Definitions.
165.2020   Enforcement authority.
165.2025   Atlantic area.

Subpart G--Protection of Naval Vessels


Sec. 165.2000  Purpose.

    This subpart establishes the geographic parameters of naval vessel 
protection zones surrounding U.S. naval vessels in the navigable waters 
of the United States. This subpart also establishes when the U.S. Navy 
will take enforcement action in accordance with the statutory 
guidelines of 14 U.S.C. 91. Nothing in the rules and regulations 
contained in this subpart shall relieve any vessel, including U.S. 
naval vessels, from the observance of the Navigation Rules. The rules 
and regulations contained in this subpart supplement, but do not 
replace or supersede, any other regulation pertaining to the safety or 
security of U.S. naval vessels.


Sec. 165.2015  Definitions.

    The following definitions apply to this subpart:
    Atlantic Area means that area described in 33 CFR 3.04-1 Atlantic 
Area.
    Naval defensive sea area means those areas described in 32 CFR part 
761.
    Naval vessel protection zone is a 500-yard regulated area of water 
surrounding U.S. naval vessels, which is necessary to provide for the 
safety or security of U.S. naval vessels.
    Navigable waters of the United States means those waters as defined 
in 33 CFR 2.05-25.
    Navigation rules means the Navigation Rules, International-Inland.

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    Official patrol means a Coast Guard commissioned, warrant or petty 
officer; or the Commanding Officer of a U.S. naval vessel or his or her 
designee.
    Pacific Area means that area described in 33 CFR 3.04-3 Pacific 
Area.
    Restricted area means those areas set out in 33 CFR part 334.
    U.S. naval vessel means any vessel owned, operated, chartered, or 
leased by the U.S. Navy; and any vessel under the operational control 
of the U.S. Navy or a unified commander.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water, except U.S. Coast Guard or U.S. naval vessels.


Sec. 165.2020  Enforcement authority.

    (a) Coast Guard. Any Coast Guard commissioned, warrant or petty 
officer may enforce the rules and regulations contained in this 
subpart.
    (b) Senior naval officer present in command. In the navigable 
waters of the United States, 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 
United States naval vessels, the senior naval officer present in 
command is responsible for the enforcement of the rules and regulations 
contained in this subpart to ensure the safety and security of his or 
her command.


    Note to paragraph (b): The senior naval officer present in 
command will normally be the Commanding Officer of a U.S. naval 
vessel.

Sec. 165.2025  Atlantic area.

    (a) This section applies to any vessel or person in the navigable 
waters of the United States within the boundaries of the U.S. Coast 
Guard Atlantic Area, which includes the First, Fifth, Seventh, Eighth 
and Ninth U.S. Coast Guard Districts.


    Note to paragraph (a): The boundaries of the U.S. Coast Guard 
Atlantic Area and the First, Fifth, Seventh, Eighth and Ninth U.S. 
Coast Guard Districts are set out in 33 CFR part 3.


    (b) A naval vessel protection zone exists around U.S. naval vessels 
at all times in the navigable waters of the United States, whether the 
U.S. naval vessel is underway, anchored, or moored, except when the 
naval vessel is moored within a restricted area or within a naval 
defensive sea area.
    (c) The Navigation Rules shall apply at all times within a naval 
vessel protection zone.
    (d) When within a naval vessel protection zone all vessels shall 
operate at the minimum speed necessary to maintain a safe course and 
shall proceed as directed by the official patrol. No vessel or person 
is allowed within 100 yards of a U.S. naval vessel, unless authorized 
by the official patrol.
    (e) To request authorization to operate within 100 yards of a U.S. 
naval vessel, contact the official patrol on VHF-FM channel 16.
    (f) When conditions permit, the official patrol may:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within 100 yards of a 
U.S. naval 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 passing naval vessels.

    Dated: September 14, 2001.
Thad W. Allen,
Vice Admiral, U.S. Coast Guard, Commander, Atlantic Area.
[FR Doc. 01-23705 Filed 9-19-01; 8:45 am]
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