[Federal Register: June 4, 2002 (Volume 67, Number 107)]
[Rules and Regulations]               
[Page 38391-38394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn02-12]                         

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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[PAC AREA-02-001]
RIN 2115-AG33

 
Protection of Naval Vessels

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing 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: This rule is effective beginning June 15, 2002.

ADDRESSES: 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 U.S. Coast Guard, Pacific Area Marine Transportation 
Branch (Pmt), Coast Guard Island, Bldg. 50-6, Alameda, CA 94501 between 
9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Commander Steve Danscuk, Commander, 
Pacific Area Marine Transportation Branch (Pmt), at telephone number 
(510) 437-2943.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On March 20, 2002, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled Protection of Naval Vessels in the Federal 
Register (67 FR 12940). The Coast Guard received five letters 
commenting on the proposed rule. No public hearing was requested, and 
none was held.
    On February 21, 2002, Coast Guard Commander, Atlantic Area, Marine 
Safety Division, Response Branch (Amr), 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. On May 13, 2002, Atlantic Area's 
final rule was published in the Federal Register (67 FR 31958). The 
general provisions of subpart G are discussed in the preamble to the 
Atlantic Area rule and would apply to Pacific Area naval vessel 
protection zones. This rule, applicable in Coast Guard Pacific Area, 
adds a new Sec. 165.2030, which creates restrictions similar to 
Atlantic Area's Sec. 165.2025.
    Under 5 U.S.C. Sec. 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. Because naval commanders have an 
urgent and critical security need to control the movements of vessels 
in the vicinity of large naval vessels, this rule needs to become 
effective on June 15, 2002. Otherwise, there will be a regulatory gap 
when the temporary final rule (66 FR 48780 and 48782), which is now in 
effect, expires on that date. The Coast Guard believes that its finding 
of good cause in this instance is consistent with the principle of 
fundamental fairness which requires that all affected persons be 
afforded a reasonable time to prepare for the effective date of a 
rulemaking. This is because the temporary final rule, which has been in 
effect since September 21, 2002, is very similar to this rule. The 
Coast Guard believes that the temporary final rule has given the public 
adequate time to adjust to and prepare for naval vessel protection 
zones.

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 48780 and 48782). Before issuing these temporary final 
rules, no regulations existed implementing 14 U.S.C. 91. The temporary 
final rules are in effect until June 15, 2002.
    We have determined that a continuing need exists for the protection 
of naval vessels. Therefore, we are implementing a permanent rule that 
will replace the Pacific Area temporary rule (66 FR 48782) by June 15, 
2002.

Discussion of Comments and Changes

    The Coast Guard received five letters in response to the March 20, 
2002 notice of proposed rulemaking (67 FR 12940). Letters from the 
Suquamish Tribe, the Muckleshoot Indian Tribal Council, the law firm of 
Morisset Schlosser representing the Tulalip Tribe, and the Northwest 
Indian Fisheries Commission expressed concern over the rule's potential 
impact on the treaty fishing rights of federally recognized Indian 
Tribes in Puget Sound, Washington. The Office of Hawaiian Affairs, a 
state agency that represents Native Hawaiian interests, expressed 
concern over the impacts of the proposed rule on ocean activities 
conducted by Native Hawaiians.
    Comment 1. The Puget Sound Tribes stated that they have reserved 
rights of access for fishing in usual and accustomed places. They 
conduct fisheries enforcement patrols, perform fisheries and water 
quality research and harvest shellfish. They stated that such 
activities may bring tribal members and their vessels in proximity to 
naval vessels. The Tribes averred that there is a potential for 
substantial direct effects

[[Page 38392]]

on their activities in the following circumstances: when the naval 
vessel protection zone around a moored or anchored naval vessel 
prevents tribal vessels from fishing in a prime tribal area during peak 
fishing times; when a transiting vessel interrupts a tribal fishing 
activity in progress; and when a tribal vessel, while engaged in 
fishing, drifts into a naval vessel protection zone of a moored or 
anchored naval vessel.
    Response 1. The Coast Guard recognizes the rights of the treaty 
Indian fishers under the Stevens Treaties, as clarified in the well-
known U.S. v. Washington line of cases, beginning with United States v. 
Washington, 384 F.Supp. 312 (W.D. Wash. 1974). We took those rights 
into account during the rulemaking process. The Coast Guard 
acknowledges that there could be some effects if a naval vessel 
protection zone causes a tribal vessel to be displaced. The rule has 
built-in flexibility, however, to address the Tribes' concerns. And, 
based on the Coast Guard's consideration of the comments received, the 
Coast Guard Thirteenth District will continue to facilitate dialogue 
between the Tribes and the Navy to develop local implementation 
policies in Puget Sound designed to minimize the possibility of effects 
on the Tribes, consistent with security concerns.
    Treaty rights are not absolute and must be balanced against the 
rights of the United States. The Justice Department articulated the 
position of the United States as follows: ``The Justice Department 
represents the United States on its own behalf and as a trustee on 
behalf of the affected Indian Tribes who claim fishing rights under the 
Stevens treaties. No claims have been made [in this case, i.e. U.S. v. 
Washington] against the United States. The United States reserves its 
right to assert all available defenses, including but not limited to 
navigational servitude and defense powers.'' Response by the Department 
of Justice to Judicial Interrogatories Posed by the U.S. District 
Court, Western District of Washington, dated 3 November 1992.
    In this instance, the treaty rights must be balanced against the 
United States' inherent right and obligation to safeguard and protect 
its warships and naval vessels from sabotage and attack. Since the 
October 2000 bombing of the U.S.S. COLE in Yemen, which was carried out 
by an explosives-laden small boat, the U.S. military has placed 
increased emphasis on naval force protection. And the terrorist attacks 
of September 11, 2001 proved that the U.S. mainland is not immune from 
attack. Therefore, the Coast Guard has implemented this rule as a force 
protection measure to help Naval commanders within Pacific Area to 
protect their ships and their crews.
    Comment 2. The Tribes commented that naval vessel security and 
Tribal fishing rights protection can both be achieved if there is 
improved communication and coordination, scheduling of port calls and 
routine non-emergency vessel movements to avoid fisheries, and 
placement of Tribal liaison personnel on Coast Guard and Seattle Harbor 
Patrol vessels to assist in the identification of Tribal fishers during 
peak tribal fishing periods. To assist the government, the Tribes can 
provide information about Tribal fishery openings and the names of 
authorized fishers and their vessels. There should be a single 
government point of contact in each geographic area to foster good 
communication so that accidental encroachment incidents can be quickly 
and agreeably resolved.
    Response 2. The Coast Guard agrees that communication and 
coordination between the Tribes, the Coast Guard, and the Navy is vital 
so that any impact of the rule on Tribal treaty fishing rights can be 
minimized. The Coast Guard has already had an informative meeting with 
representatives of the Muckleshoot Tribe, Suquamish Tribe, and the Navy 
on April 25, 2002. The Coast Guard Thirteenth District plans to 
continue to facilitate discussions between potentially affected Tribes 
and the Navy to develop local implementation policies in Puget Sound 
designed to minimize the possibility of effects on the Tribes, 
consistent with security concerns.
    The Coast Guard believes that the Tribes' recommendation to the 
Navy to schedule port calls and routine non-emergency vessel movements 
to avoid impacts on Tribal fishers and fisheries has potential merit, 
when such actions are consistent with naval vessel and national 
security. The Coast Guard has received assurances from the Navy that 
the Navy is willing and able to gather information from the Tribes 
about fishery dates, locations, and expected number of Tribal vessels 
and relay this information to naval commanders in the area. The Navy's 
primary point of contact for gathering this information from the Tribes 
is the Watch Commander, Regional Operations Center, Navy Region 
Northwest, who can be reached 24 hours per day at (360) 315-5123.
    The Coast Guard is committed to working with the Tribes and agrees 
that additional discussions with representatives of potentially 
affected Tribes and the Navy are desirable to establish specific local 
implementation policies to achieve both security and tribal objectives. 
Towards that end, the Coast Guard's point of contact is the Coast Guard 
District Thirteen's Tribal Liaison Office, which can be reached 24 
hours per day via the District Command Center at (206) 220-7001.
    With regard to the Tribes' concern over accidental encroachment 
into naval vessel protection zones, the rule does not distinguish 
between an accidental or intentional violation of the 100-yard 
exclusionary zone. An accidental violation may result in enforcement 
action. But the rule is written to encourage those who may need to come 
within 100 yards of a large naval vessel to request permission from the 
on-scene Coast Guard personnel, senior naval officer present in 
command, or official patrol. In most cases, the commanding officer of 
the naval vessel will be the individual to grant or deny permission to 
enter the 100-yard exclusionary zone because he or she will be in the 
best position to assess the security needs of his or her ship. 
Additional coordination suggestions will be given full consideration 
during a cooperative process to develop practical local implementation 
guidelines.
    Comment 3. The Tribes stated that for local Coast Guard and Navy 
personnel to have the flexibility to accommodate the needs of the 
Tribes, it is important that the final regulation provide direction to 
local Coast Guard and Navy personnel to implement measures that allow 
tribal members access to fishing rights. The Tribes recommended the 
insertion of the following language as a new paragraph (g) to 
Sec. 165.2030: ``The Coast Guard, senior naval officer present in 
command, or the official patrol shall work with affected tribal 
governments to provide treaty Indian fishers access to usual and 
accustomed fishing sites within 100 yards of large U.S. naval 
vessels.''
    Response 3. The Coast Guard believes that adding a new paragraph 
(g) to Sec. 165.2030 of the rule is not necessary or prudent. The rule 
already has built-in flexibility for addressing Tribal issues. In those 
instances where the 100-yard exclusionary zone would exclude Tribal 
fishers from their usual and accustomed grounds, the rule allows Tribal 
fishers to request permission to enter the zone by contacting the Coast 
Guard, senior naval officer present in command or the official patrol 
on VHF-FM Channel 16. After making an on-scene assessment of the naval 
vessel's security situation relative to any perceived threat, the Coast 
Guard, senior naval officer present in command or the official patrol 
would have the

[[Page 38393]]

discretion to allow the requestor within 100 yards.
    Addition of the language would not be prudent from a security 
standpoint because the Coast Guard interprets the proposed paragraph 
(g)'s use of the term ``shall'' as requiring the on-scene Coast Guard 
or Navy commander to notify the Tribes every time a large naval vessel 
transit takes place. The Coast Guard does not believe the rule should 
require coordination when it is not needed or when it would not be 
prudent from a security perspective. By employing language in the rule 
that would limit the on-scene commander's ability to use his or her 
discretion on a case-by-case basis, naval vessels might become 
vulnerable to one of the threats that naval vessel protection zones 
were designed to guard against-small boats intent on attacking naval 
vessels.
    The Coast Guard and the Navy will work with the affected Tribes on 
measures to implement the rule in a way that will allow the Tribes to 
reach their objectives to the fullest extent possible while 
accomplishing naval vessel and national security objectives.
    Comment 4. The Office of Hawaiian Affairs commented that existing 
human use activities such as ocean access and fishing should not be 
restricted spatially or in duration beyond that which is reasonable to 
provide for the security concerns of the proposed rule.
    Response 4. Because this rule does not restrict ocean activities 
permanently in any location and because the duration of any 
restrictions on human use activities would be limited to the time 
period that a large naval vessel is in transit or is anchored or 
moored, the Coast Guard believes the effect of this rule on the public 
is minimized. In addition, the rule has several built-in mitigation 
measures 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. And once security 
concerns permit, the rule encourages the Coast Guard, senior naval 
officer present in command, or the official patrol to publicize in 
advance the movement of the naval 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 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 will restrict access to some areas and 
regulate speed in other areas, the effect of this regulation will not 
be significant because: (1) Individual naval vessel protection zones 
are limited in size; (2) the Coast Guard, senior naval officer present 
in command, or official patrol may authorize access to the naval vessel 
protection zone; (3) the naval vessel protection zone for any given 
transiting naval vessel will only effect a given geographical location 
for a limited time; and (4) 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 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 regulation will not have a significant economic impact on a 
substantial number of small entities for the following reasons: (1) 
Individual naval vessel protection zones are limited in size; (2) the 
official patrol may authorize access to the naval vessel protection 
zone; (3) the naval vessel protection zone for any given transiting 
naval vessel will only affect a given geographic location for a limited 
time; and (4) 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking.
    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 affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and

[[Page 38394]]

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

    The Coast Guard received five letters commenting on the proposed 
rule, three from Indian Tribal Governments in Puget Sound, Washington, 
one from the Northwest Indian Fisheries Commission and one from the 
Office of Hawaiian Affairs. They are discussed under ``Comments and 
Responses.'' The Coast Guard recognizes the Indian Tribes'' rights 
under the Stevens Treaties. And the Coast Guard is committed to working 
with the Navy and the Tribal Governments to implement local policies to 
mitigate the concerns that have been identified. Given the flexibility 
of the rule to accommodate the special needs of mariners in the 
vicinity of large naval vessels and the Coast Guard's commitment to 
working with the Tribes, we have determined that naval vessel security 
and fishing rights protection need not be incompatible and therefore 
have determined that this 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.

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

    We have conducted an analysis for this action according to the 
Coast Guard National Environmental Policy Act Manual, COMDTINST 
M16475.1D, which guides Coast Guard compliance with the National 
Environmental Policy Act of 1969 (NEPA) and have concluded that there 
are no factors present which would limit the use of Coast Guard 
Categorical Exclusion (34)(g). Comments from the public were considered 
prior to approval of a final Categorical Exclusion Determination (CED) 
documenting our decision to exclude this action from further 
environmental review. Refer to Comments and Changes for a summary of 
comments received and the Coast Guard's response. Public comments, an 
environmental checklist and CED for this action are available in the 
docket 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 
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 dry dock, 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;
    (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: May 23, 2002.
E.R. Riutta,
Vice Admiral, U.S. Coast Guard, Commander, Coast Guard Pacific Area.
[FR Doc. 02-13964 Filed 6-3-02; 8:45 am]
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