[Federal Register Volume 67, Number 54 (Wednesday, March 20, 2002)]
[Proposed Rules]
[Pages 12940-12943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6766]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[PAC AREA-02-001]
RIN 2115-AG23


Protection of Naval Vessels

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes regulations for the safety and 
security of U.S. naval vessels in the navigable waters of the United 
States. Naval Vessel Protection Zones will provide for the regulation 
of vessel traffic in the vicinity of many U.S. naval vessels in the 
navigable waters of the United States.

DATES: Comments and related material must reach the Coast Guard on or 
before May 6, 2002.

ADDRESSES: You may mail comments and related material to Commander 
(Pmt), Coast Guard Pacific Area, Coast Guard Island, Bldg. 50-6, 
Alameda, CA 94501-5100. Commander (Pmt) maintains the public docket for 
this rulemaking. 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 02-001] and are available for 
inspection or copying at Commander (Pmt), at the address listed above 
between 9 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Commander Steve Danscuk,

[[Page 12941]]

Commander (Pmt), Coast Guard Island, Bldg. 50-6, Alameda, CA 94501-
5100; telephone number (510) 437-2943.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [PAC AREA 
02-001], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Commander (Pmt), Coast Guard 
Pacific Area, at the address under ADDRESSES explaining why one would 
be beneficial. If we determine that one would aid this rulemaking, we 
will hold one at a time and place announced by a later notice in the 
Federal Register.

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. On September 21, 2001, the Coast Guard published temporary 
final rules entitled ``Protection of Naval Vessels'' in the Federal 
Register (66 FR 48779). Prior to issuing this temporary final rule, no 
regulation existed implementing 14 U.S.C. 91. The temporary final rule 
is in effect until June 15, 2002. No public hearing has been requested, 
and none has been held.
    On February 21, 2002, Commander (Amr), Coast Guard Atlantic Area 
published a Notice of Proposed Rulemaking in the Federal Register (67 
FR 7992) proposing to establish a permanent Subpart G to 33 CFR part 
165 and setting out general provisions pertaining to that subpart. The 
general provisions of proposed Subpart G are discussed in the preamble 
to the Atlantic Area proposed rule and would apply to Pacific Area 
NVPZs. Our proposed rule would only add a new Sec. 165.2030 to parallel 
Atlantic Area's proposed Sec. 165.2025.
    We have determined that a continuing need exists for the protection 
of naval vessels. Therefore, we are proposing a permanent rule that 
will replace the temporary rule by June 15, 2002. Based on our 
experience with the temporary final rule, we have made some changes 
that are detailed at length in the ``Discussion'' section of this 
preamble.

Discussion of Proposed Rule

    This proposed rule, for safety and security concerns, controls 
vessel movement in a regulated area surrounding many U.S. naval 
vessels. All vessels within 500 yards of such a U.S. naval vessel shall 
operate at the minimum speed necessary to maintain a safe course, 
unless required by the Navigation Rules to maintain speed, and shall 
always proceed as directed by the Coast Guard, the senior naval officer 
present in command, or the official patrol. No vessel or person is 
allowed within 100 yards of a U.S. naval vessel greater than 100 feet 
in length unless authorized by the Coast Guard, the senior naval 
officer present in command, or the official patrol.
    Only larger U.S. naval vessels are surrounded by a naval vessel 
protection zone to minimize this rule's effect on the public. Only U.S. 
naval vessels over 100 feet in length overall would be ``large U.S. 
naval vessels.''
    The proposed rule contains several additional provisions to limit 
public impact. Vessels that need to pass within 100 yards of a large 
U.S. naval vessel may contact the Coast Guard, the senior naval officer 
present in command, or the official patrol on VHF-FM channel 16 to 
obtain the necessary permission.
    Additionally, the Coast Guard, senior naval officer present in 
command, or the official patrol should permit vessels constrained by 
their navigational draft or restricted in their ability to maneuver to 
pass within 100 yards of a large 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 should be permitted to remain at anchor within 100 yards of a 
passing large U.S. naval vessel when consistent with security 
requirements. As illustrated by the attack on the U.S.S. Cole, all 
vessels are potentially a security threat; therefore, vessels may, at 
times, be required to move. From a pure security perspective, all 
anchored vessels should be required to move. We believe, however, that 
security must be balanced with the burden on mariners and encourage 
enforcement officials to limit the impact on larger vessels, which are 
the most expensive and difficult to move.
    In the proposed rule, we added language to address the situation 
where a naval vessel protection zone around a moored or anchored U.S. 
naval vessel effectively shuts down a narrow waterway. This situation 
could arise when a U.S. naval vessel makes a temporary port visit away 
from its normal homeport. In this situation, the Coast Guard, senior 
naval officer present in command, or the official patrol should permit 
transiting vessels to pass within 100 yards of the moored U.S. naval 
vessel with the minimal delay consistent with security requirements. 
This proposed rule does not intend to block narrow waterways from 
public use for extended periods of time. Mariners should anticipate 
some delay due to security needs. However, by including this new 
language in the regulation text, we want to make it clear that the 
Coast Guard, senior naval officer present in command, or the official 
patrol should, when appropriate, allow transiting vessels within the 
100-yard exclusionary zone as needed to safely pass through a navigable 
channel or waterway. While maintaining security is paramount, avoiding 
extended delays in normal traffic is also very important.
    We also added language that the Coast Guard, senior naval officer 
present in command, or the official patrol should give advance notice 
on VHF-FM channel 16 of all movements by large U.S. naval vessels once 
security concerns permit publicizing the movement. The goal is to give 
as much advance notice as possible. In most cases, however, this notice 
will probably be no more than an hour or two. These notifications 
should, to some extent, help mariners adjust their navigation plans 
accordingly or obtain early permission to enter into a naval vessel 
protection zone.
    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), a civil penalty, and may result in rem liability against the 
vessel.

Regulatory Evaluation

    This proposed 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

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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 proposed regulation restricts access to the regulated 
area, the effect of this proposed regulation will not be significant 
because: (i) Individual naval vessel protection zones are limited in 
size; (ii) the Coast Guard, senior naval officer present in command, or 
official patrol may authorize access to the naval vessel protection 
zone; (iii) the naval vessel protection zone for any given transiting 
naval vessel will only effect a given geographical location for a 
limited time; and (iv) when conditions permit, the Coast Guard, senior 
naval officer present in command, or the official patrol should give 
advance notice of all naval vessel movements on VHF-FM channel 16 so 
mariners can adjust their plans accordingly. Further, the Coast Guard 
received no comments related to economic impact following 
implementation of the temporary final rule.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.
    This proposed 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 proposed 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 only affect a given geographic location 
for a limited time; and (iv) when conditions permit, the Coast Guard, 
senior naval officer present in command, or the official patrol should 
give advance notice of all naval vessel movements on VHF-FM channel 16 
so mariners can adjust their plans accordingly. Further, the Coast 
Guard received no comments related to small entity impact following 
implementation of the temporary final rule.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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.

Collection of Information

    This proposed rule calls for no new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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 proposed 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 proposed 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 proposed 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register (66 FR 36361, July 11, 
2001) requesting comments on how to best carry out the Order. We invite 
your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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 proposed 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 where

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indicated under ADDRESSES. Further, the Coast Guard received no 
comments related to environmental impact following implementation of 
the temporary final rule.

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 proposes 
to amend 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 
greater than 100 feet in length overall at all times in the navigable 
waters of the United States, whether the large U.S. naval vessel is 
underway, anchored, moored, or within a floating drydock, except when 
the large naval vessel is moored or anchored 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, 
unless required to maintain speed by the Navigation Rules, and shall 
proceed as directed by the Coast Guard, the senior naval officer 
present in command, or the official patrol. When within a naval vessel 
protection zone, no vessel or person is allowed within 100 yards of a 
large U.S. naval vessel unless authorized by the Coast Guard, the 
senior naval officer present in command, or official patrol.
    (e) To request authorization to operate within 100 yards of a large 
U.S. naval vessel, contact the Coast Guard, the senior naval officer 
present in command, or the official patrol on VHF-FM channel 16.
    (f) When conditions permit, the Coast Guard, senior naval officer 
present in command, or the official patrol should:
    (1) give advance notice on VHF-FM channel 16 of all large U.S. 
naval vessel movements; and
    (2) permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within 100 yards of a 
large U.S. naval vessel in order to ensure a safe passage in accordance 
with the Navigation Rules; and
    (3) permit commercial vessels anchored in a designated anchorage 
area to remain at anchor when within 100 yards of passing large U.S. 
naval vessels; and
    (4) permit vessels that must transit via a navigable channel or 
waterway to pass within 100 yards of a moored or anchored large U.S. 
naval vessel with minimal delay consistent with security.

    Note to paragraph (f): The listed actions are discretionary and 
do not create any additional right to appeal or otherwise dispute a 
decision of the Coast Guard, the senior naval officer present in 
command, or the official patrol.


    Dated: March 12, 2002.
E.R. Riutta,
Vice Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 02-6766 Filed 3-19-02; 8:45 am]
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