[Federal Register Volume 66, Number 184 (Friday, September 21, 2001)]
[Rules and Regulations]
[Pages 48782-48784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23706]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[PAC 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 temporary rule is effective from September 14, 2001, to 
June 15, 2002.

ADDRESSES: You may mail comments and related material to Commander 
(Poft/Pmt), Coast Guard Pacific Area, Coast Guard Island, Alameda, CA 
94501. 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 PAC AREA 01-001 and are available for inspection or 
copying at Commander (Poft/Pmt), Coast Guard Island, Alameda, CA, 
between 9 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: CDR Joe Billy, Commander (Poft), or 
CDR Steve Danscuk, Commander (Pmt), Coast Guard Pacific Area, Coast 
Guard Island, Alameda, CA 94501; telephone numbers (510) 437-3505 and 
(510) 437-2943 respectively.

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. The zones established by these regulations control the 
movement and anchorage of vessels near U.S. naval vessels, and are 
intended to prevent an attack on a U.S. naval vessel, like what 
happened to USS COLE in Aden, Yemen on October 12, 2000.

Discussion of Rule

    This rule, for safety and security concerns, controls vessel 
movement in a regulated area surrounding U.S. naval

[[Page 48783]]

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. Any person who 
violates this regulation, using a dangerous weapon, or who engages in 
conduct that causes bodily injury or fear of imminent bodily injury to 
any officer authorized to enforce this regulation, also faces 
imprisonment up to 12 years (class C felony).

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 
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

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination

[[Page 48784]]

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.lD. 
As an emergency action, the environmental analysis, requisite 
regulatory consultations, 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

Subpart G--Protection of Naval Vessels

    1. The authority citation for part 165 subpart G continues to read 
as follows:

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

    2. Add Sec. 165.2030 to read as follows:


Sec. 165.2030  Pacific 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 Pacific Area, which includes the Eleventh, Thirteenth, 
Fourteenth, and Seventeenth U.S. Coast Guard Districts.


    Note to paragraph (a): The boundaries of the U.S. Coast Guard 
Pacific Area and the Eleventh, Thirteenth, Fourteenth, and 
Seventeenth 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.
E. R. Riutta,
Vice Admiral, U.S. Coast Guard, Commander, Pacific Area.
[FR Doc. 01-23706 Filed 9-19-01; 8:45 am]
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