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15 September 2006
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[Federal Register: September 15, 2006 (Volume 71, Number 179)]
[Rules and Regulations]
[Page 54418-54421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se06-10]
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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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