[Federal Register Volume 71, Number 179 (Friday, September 15, 2006)]
[Rules and Regulations]
[Pages 54418-54421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15295]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2006-25411]
RIN 1625-ZA11


Geographical Extension of Coast Guard Authority to Enforce Naval 
Vessel Protection Zones; Conforming Amendment

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising its informational, geographic-
application regulation for naval vessel protection zones (NVPZs) to 
reflect a recent expansion of the jurisdiction for NVPZs. Section 201 
of the Coast Guard and Maritime Transportation Act of 2006 amended 14 
U.S.C. 91 defines ``navigable waters'' to include the waters 12 
nautical-miles wide, adjacent to the coast of the United States and 
seaward of the territorial sea baseline. As a result of this 
legislation, Naval

[[Page 54419]]

Vessel Protection Zone (NVPZ) regulations are now enforceable in 
navigable waters out to the full extent of the U.S. territorial sea, 12 
nautical miles seaward from the baseline. This conforming amendment to 
our regulation reflects this recently-enacted authority.

DATES: This final rule is effective September 15, 2006.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2006-25411 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. You may also find this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Mr. Brad Kieserman, Office of Maritime and International Law, 
Coast Guard, at telephone 202-372-3798. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-493-0402.

SUPPLEMENTARY INFORMATION:

Regulatory History

    We did not publish a notice of proposed rulemaking (NPRM) for this 
rule. Under both 5 U.S.C. 553(b)(A) and (b)(B), the Coast Guard finds 
that this rule is exempt from notice-and-comment rulemaking 
requirements because this it reflects an interpretation of a recent 
amendment to 14 U.S.C. 91 and good cause exists because it would be 
contrary to public interest to delay the revision of 33 CFR 165.9 (d), 
a paragraph that no longer accurately reflects the geographic 
jurisdiction for NVPZs. For the same reason--the need to correct the 
NVPZ, geographic jurisdiction limits represented in Sec.  165.9 (d), 
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.

Background and Purpose

    The Coast Guard is authorized by 14 U.S.C. 91 to control the 
anchorage and movement of a vessel operating in the vicinity of a U.S. 
naval vessel. The Coast Guard has implemented the provisions of 14 
U.S.C. 91 by establishing and enforcing Naval Vessel Protection Zones 
(NVPZ), 33 CFR part 165, subpart G.
    A NVPZ is a 500-yard regulated area of water surrounding a large 
U.S. naval vessel providing for the safety or security of the vessel. 
33 CFR 165.2015. Section 91 of 14 U.S.C. authorizes the Secretary, 
Department of Homeland Security, to control the anchorage and movement 
of any vessel in the ``navigable waters'' of the United States to 
ensure the safety or security of any U.S. naval vessel in those waters. 
When the Secretary does not exercise this authority, and immediate 
action is required, 14 U.S.C. 91 authorizes the senior naval officer 
present in command to control the anchorage or movement of any vessel 
in the ``navigable waters'' of the United States to ensure the safety 
or security of any U.S. naval vessel under the officer's command.
    We provide the following definitions, among others, in 33 CFR 
165.2015 to identify the persons and vessels involved in the NVPZ 
regulations:
     Large U.S. naval vessel means any U.S. naval vessel 
greater than 100 feet in length overall.
     Senior naval officer present in command is, unless 
otherwise designated by competent authority, the senior line officer of 
the U.S. Navy on active duty, eligible for command at sea, who is 
present and in command of any part of the Department of the Navy in the 
area.
     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.
     U.S. naval vessel means any vessel owned, operated, 
chartered or leased by the U.S. Navy; any pre-commissioned vessel under 
construction for the U.S. Navy, once launched into the water; and any 
vessel under the operational control of the U.S. Navy or Combatant 
Command.
    On July 11, 2006, the Coast Guard and Maritime Transportation Act 
of 2006 (CGMTA), Pub. L. No. 109-241, 120 Stat. 516, was enacted. 
Through its reference to Presidential Proclamation No. 5928 of December 
27, 1988, sec. 201 of CGMTA extends NVPZs (including enforcement by 
Department of Defense assets) out to the full extent of the U.S. 
territorial sea, 12 nautical miles from the baseline.

Discussion of Final Rule

    Sections 165.2025 and 165.2030 of 33 CFR apply NVPZs to any vessel 
or person in the navigable waters of the United States within the 
boundaries of the U.S. Coast Guard's Atlantic Area or Pacific Area. The 
term ``Navigable waters of the United States'' is defined in 33 CFR 
2.36 and includes ``[t]erritorial seas of the United States.'' The 
definition of ``territorial seas of the United States,'' in 33 CFR 2.22 
includes ``the waters, 12 nautical miles wide, adjacent to the coast of 
the United States and seaward of the territorial sea baseline for * * * 
[a]ny other * * * statute, * * * or amendment thereto, interpreted by 
the Coast Guard as incorporating the definition of territorial sea as 
being 12-nautical-miles wide, adjacent to the coast of the United 
States and seaward of the territorial sea baseline''.
    Consistent with 33 CFR 2.22(a)(1)(v), we interpret the amended 14 
U.S.C. 91 as incorporating the appropriate 12-nautical-mile-wide 
definition of territorial sea. Therefore, consistent with 33 CFR 
165.9(a), we are revising paragraph (d) of Sec.  165.9 to reflect this 
legislative change in the geographic application of NVPZs from 3 
nautical miles seaward of the territorial sea baseline to 12 nautical 
miles seaward of the territorial sea baseline.

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. It has not been reviewed by the Office of 
Management and Budget under that Order. We expect the economic impact 
of this rule to be so minimal that a full Regulatory Evaluation is 
unnecessary.
    This rule reflects the expansion of the waters where NVPZs will 
exist based on the amendment of 14 U.S.C. 91 by sec. 201 of the Coast 
Guard and Maritime Transportation Act of 2006. The impact caused by 
this legislative change will not be significant because: (i) Individual 
NVPZs 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; and (iii) the NVPZ for any given 
transiting naval vessel will only effect a given geographical location 
for a limited time.

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

[[Page 54420]]

populations of less than 50,000. This rule does not require a general 
notice of proposed rulemaking and, therefore, is exempt from the 
requirements of the Regulatory Flexibility Act. Although this rule is 
exempt, we have reviewed it for potential economic impact on small 
entities.
    This rule reflects a legislative change in the geographic scope of 
NVPZ that 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 from 3 to 12 miles seaward of the 
territorial sea baseline.
    This regulation will not have a significant economic impact on a 
substantial number of small entities for the following reason: This 
rule merely updates 33 CFR 165.9 to reflect the current navigable 
waters where NVPZs occur. The impact of the legislation expanding the 
waters in which NVPZs occur will be limited because individual NVPZs 
are limited in size; the official patrol may authorize access to NVPZs; 
and the NVPZ for any given transiting naval vessel will only affect a 
given geographic location for a limited time.
    Therefore, 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. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule will have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain 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 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 consult Mr. Brad Kieserman, Office of 
Maritime and International Law, Coast Guard, at telephone 202-372-3798. 
The Coast Guard will not retaliate against small entities that question 
or complain about this rule or any policy or action of the Coast Guard.
    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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.
    If you disagree with our analysis of the voluntary consensus 
standards listed above or are aware of voluntary consensus standards 
that might apply but are not listed, please identify them in a comment 
to the Docket Management Facility at the address under ADDRESSES and 
explain why they should be used.

[[Page 54421]]

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD 
and Department of Homeland Security Management Directive 5100.1, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that there are no factors in this case that would limit the use of a 
categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction, from further environmental 
documentation. This rule is needed to correct the NVPZ, geographic 
jurisdiction limits represented in Sec.  165.9(d) to reflect a recent 
amendment to 14 U.S.C. 91 by section 201 of the Coast Guard and 
Maritime Transportation Act of 2006.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, 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. 1225, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


Sec.  165.9  [Amended]

0
2. In Sec.  165.9, amend paragraph (d) by removing the term ``3 
nautical miles'' and adding, in its place, the term ``12 nautical 
miles''.

    Dated: September 9, 2006.
David Pekoske,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Response.
 [FR Doc. E6-15295 Filed 9-14-06; 8:45 am]
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