1625-0020 Stat/Authority

§ 1223

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

which the United States asserts exclusive fishery management authority; the seabed and
subsoil of the Outer Continental Shelf of the
United States, the resources thereof and the
waters superjacent thereto; and the recreational, economic, and scenic values of such
waters and resources.
(2) ‘‘Secretary’’ means the Secretary of the
department in which the Coast Guard is operating, except that ‘‘Secretary’’ means the Secretary of Transportation with respect to the
application of this chapter to the Saint Lawrence Seaway.
(3) ‘‘State’’ includes each of the several
States of the United States, the District of Columbia, the Commonwealth of Puerto Rico,
the Canal Zone, Guam, American Samoa, the
United States Virgin Islands, the Trust Territories of the Pacific Islands, the Commonwealth of the Northern Marianas, and any
other commonwealth, territory, or possession
of the United States.
(4) ‘‘United States’’, when used in geographical context, means all the States thereof.
(5) ‘‘Navigable waters of the United States’’
includes all waters of the territorial sea of the
United States as described in Presidential
Proclamation No. 5928 of December 27, 1988.
(Pub. L. 92–340, § 3, formerly title I, § 102, July 10,
1972, 86 Stat. 425; renumbered and amended Pub.
L. 95–474, § 2, Oct. 17, 1978, 92 Stat. 1471; Pub. L.
105–383, title III, § 301(a), Nov. 13, 1998, 112 Stat.
3417; Pub. L. 108–293, title III, § 304, Aug. 9, 2004,
118 Stat. 1042.)
REFERENCES IN TEXT
For definition of Canal Zone, referred to in par. (3),
see section 3602(b) of Title 22, Foreign Relations and
Intercourse.
Presidential Proclamation No. 5928, referred to in
par. (5), is set out under section 1331 of Title 43, Public
Lands.
AMENDMENTS
2004—Par. (2). Pub. L. 108–293 inserted ‘‘, except that
‘Secretary’ means the Secretary of Transportation
with respect to the application of this chapter to the
Saint Lawrence Seaway’’ after ‘‘in which the Coast
Guard is operating’’.
1998—Par. (5). Pub. L. 105–383, which directed the
amendment of section 102 of the Ports and Waterways
Safety Act by adding par. (5), was executed to this section, which is section 3 of that act, to reflect the probable intent of Congress and the renumbering of section
102 as section 3 by Pub. L. 95–474.
1978—Pub. L. 95–474 substituted provision relating to
definitions for provision defining ‘‘United States’’, permitting higher State or local safety standards, and providing for consultation with appropriate agencies, the
inapplicability of this chapter to the Panama Canal,
delegation of powers with respect to the Saint Lawrence Seaway, and factors to be considered in issuance
of regulations.
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.

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TERMINATION OF TRUST TERRITORY OF THE PACIFIC
ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title
48, Territories and Insular Possessions.

§ 1223. Vessel operating requirements
(a) In general
Subject to the requirements of section 1224 of
this title, the Secretary—
(1) in any port or place under the jurisdiction of the United States, in the navigable waters of the United States, or in any area covered by an international agreement negotiated
pursuant to section 1230 of this title, may construct, operate, maintain, improve, or expand
vessel traffic services, consisting of measures
for controlling or supervising vessel traffic or
for protecting navigation and the marine environment and may include, but need not be
limited to one or more of the following: reporting and operating requirements, surveillance and communications systems, routing
systems, and fairways;
(2) shall require appropriate vessels which
operate in an area of a vessel traffic service to
utilize or comply with that service;
(3) may require vessels to install and use
specified navigation equipment, communications equipment, electronic relative motion
analyzer equipment, or any electronic or other
device necessary to comply with a vessel traffic service or which is necessary in the interests of vessel safety: Provided, That the Secretary shall not require fishing vessels under
300 gross tons as measured under section 14502
of title 46, or an alternate tonnage measured
under section 14302 of that title as prescribed
by the Secretary under section 14104 of that
title or recreational vessels 65 feet or less to
possess or use the equipment or devices required by this subsection solely under the authority of this chapter;
(4) may control vessel traffic in areas subject to the jurisdiction of the United States
which the Secretary determines to be hazardous, or under conditions of reduced visibility,
adverse weather, vessel congestion, or other
hazardous circumstances by—
(A) specifying times of entry, movement,
or departure;
(B) establishing vessel traffic routing
schemes;
(C) establishing vessel size, speed, draft
limitations and vessel operating conditions;
and
(D) restricting operation, in any hazardous
area or under hazardous conditions, to vessels which have particular operating characteristics or capabilities which he considers
necessary for safe operation under the circumstances;
(5) may require the receipt of prearrival
messages from any vessel, destined for a port
or place subject to the jurisdiction of the
United States, in sufficient time to permit advance vessel traffic planning prior to port
entry, which shall include any information
which is not already a matter of record and
which the Secretary determines necessary for

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TITLE 33—NAVIGATION AND NAVIGABLE WATERS

the control of the vessel and the safety of the
port or the marine environment; and
(6) may prohibit the use on vessels of electronic or other devices that interfere with
communication and navigation equipment, except that such authority shall not apply to
electronic or other devices certified to transmit in the maritime services by the Federal
Communications Commission and used within
the frequency bands 157.1875–157.4375 MHz and
161.7875–162.0375 MHz.
(b) Special powers
The Secretary may order any vessel, in a port
or place subject to the jurisdiction of the United
States or in the navigable waters of the United
States, to operate or anchor in a manner he directs if—
(1) he has reasonable cause to believe such
vessel does not comply with any regulation issued under this chapter or any other applicable law or treaty;
(2) he determines that such vessel does not
satisfy the conditions for port entry set forth
in section 1228 of this title; or
(3) by reason of weather, visibility, sea conditions, port congestion, other hazardous circumstances, or the condition of such vessel, he
is satisfied that such directive is justified in
the interest of safety.
(c) Port access routes
(1) In order to provide safe access routes for
the movement of vessel traffic proceeding to or
from ports or places subject to the jurisdiction
of the United States, and subject to the requirements of paragraph (3) hereof, the Secretary
shall designate necessary fairways and traffic
separation schemes for vessels operating in the
territorial sea of the United States and in high
seas approaches, outside the territorial sea, to
such ports or places. Such a designation shall
recognize, within the designated area, the paramount right of navigation over all other uses.
(2) No designation may be made by the Secretary pursuant to this subsection, if such a designation, as implemented, would deprive any
person of the effective exercise of a right granted by a lease or permit executed or issued under
other applicable provisions of law: Provided,
That such right has become vested prior to the
time of publication of the notice required by
clause (A) of paragraph (3) hereof: Provided further, That the determination as to whether the
designation would so deprive any such person
shall be made by the Secretary, after consultation with the responsible official under whose
authority the lease was executed or the permit
issued.
(3) Prior to making a designation pursuant to
paragraph (1) hereof, and in accordance with the
requirements of section 1224 of this title, the
Secretary shall—
(A) within six months after date of enactment of this Act (and may, from time to time
thereafter), undertake a study of the potential
traffic density and the need for safe access
routes for vessels in any area for which fairways or traffic separation schemes are proposed or which may otherwise be considered
and shall publish notice of such undertaking
in the Federal Register;

§ 1223

(B) in consultation with the Secretary of
State, the Secretary of the Interior, the Secretary of Commerce, the Secretary of the
Army, and the Governors of affected States, as
their responsibilities may require, take into
account all other uses of the area under consideration (including, as appropriate, the exploration for, or exploitation of, oil, gas, or
other mineral resources, the construction or
operation of deepwater ports or other structures on or above the seabed or subsoil of the
submerged lands or the Outer Continental
Shelf of the United States, the establishment
or operation of marine or estuarine sanctuaries, and activities involving recreational
or commercial fishing); and
(C) to the extent practicable, reconcile the
need for safe access routes with the needs of
all other reasonable uses of the area involved.
(4) In carrying out his responsibilities under
paragraph (3), the Secretary shall proceed expeditiously to complete any study undertaken.
Thereafter, he shall promptly issue a notice of
proposed rule-making for the designation contemplated or shall have published in the Federal
Register a notice that no designation is contemplated as a result of the study and the reason for such determination.
(5) In connection with a designation made pursuant to this subsection, the Secretary—
(A) shall issue reasonable rules and regulations governing the use of such designated
areas, including the applicability of rules 9
and 10 of the International Regulations for
Preventing Collisions at Sea, 1972, relating to
narrow channels and traffic separation
schemes, respectively, in waters where such
regulations apply;
(B) to the extent that he finds reasonable
and necessary to effectuate the purposes of the
designation, make the use of designated fairways and traffic separation schemes mandatory for specific types and sizes of vessels, foreign and domestic, operating in the territorial
sea of the United States and for specific types
and sizes of vessels of the United States operating on the high seas beyond the territorial
sea of the United States;
(C) may, from time to time, as necessary,
adjust the location or limits of designated
fairways or traffic separation schemes, in
order to accommodate the needs of other uses
which cannot be reasonably accommodated
otherwise: Provided, That such an adjustment
will not, in the judgement of the Secretary,
unacceptably adversely affect the purpose for
which the existing designation was made and
the need for which continues; and
(D) shall, through appropriate channels, (i)
notify cognizant international organizations
of any designation, or adjustment thereof, and
(ii) take action to seek the cooperation of foreign States in making it mandatory for vessels under their control to use any fairway or
traffic separation scheme designated pursuant
to this subsection in any area of the high seas,
to the same extent as required by the Secretary for vessels of the United States.
(d) Exception
Except pursuant to international treaty, convention, or agreement, to which the United

§ 1223a

TITLE 33—NAVIGATION AND NAVIGABLE WATERS

States is a party, this chapter shall not apply to
any foreign vessel that is not destined for, or departing from, a port or place subject to the jurisdiction of the United States and that is in—
(1) innocent passage through the territorial
sea of the United States, or
(2) transit through the navigable waters of
the United States which form a part of an
international strait.
(e) Cooperative agreements
(1) The Secretary may enter into cooperative
agreements with public or private agencies, authorities, associations, institutions, corporations, organizations, or other persons to carry
out the functions under subsection (a)(1) of this
section.
(2) A nongovernmental entity may not under
this subsection carry out an inherently governmental function.
(3) As used in this paragraph, the term ‘‘inherently governmental function’’ means any activity that is so intimately related to the public interest as to mandate performance by an officer
or employee of the Federal Government, including an activity that requires either the exercise
of discretion in applying the authority of the
Government or the use of judgment in making a
decision for the Government.
(Pub. L. 92–340, § 4, formerly title I, § 103, July 10,
1972, 86 Stat. 426; renumbered and amended Pub.
L. 95–474, § 2, Oct. 17, 1978, 92 Stat. 1472; Pub. L.
101–380, title IV, § 4107(a), Aug. 18, 1990, 104 Stat.
514; Pub. L. 104–324, title VII, § 705, Oct. 19, 1996,
110 Stat. 3934; Pub. L. 108–293, title III, § 302, Aug.
9, 2004, 118 Stat. 1041; Pub. L. 109–241, title IX,
§ 901(d), July 11, 2006, 120 Stat. 564.)
REFERENCES IN TEXT
The date of enactment of this Act, referred to in subsec. (c)(3)(A), probably means the date of enactment of
Pub. L. 95–474, which was approved Oct. 17, 1978.
The International Regulations for Preventing Collisions at Sea, 1972, referred to in subsec. (c)(5)(A), came
into effect pursuant to the Convention on the International Regulations for Preventing Collisions at Sea,
1972. See International Regulations for Preventing Collisions at Sea, 1972 note under section 1602 of this title.
AMENDMENTS
2006—Subsecs. (a)(6), (e). Pub. L. 109–241 amended directory language of Pub. L. 108–293, § 302. See 2004
Amendment note below.
2004—Subsec. (a)(6). Pub. L. 108–293, § 302(1), as amended by Pub. L. 109–241, added par. (6).
Subsec. (e). Pub. L. 108–293, § 302(2), as amended by
Pub. L. 109–241, which directed the addition of subsec.
(e) at the end of subsec. (a) of this section, was executed by adding subsec. (e) at the end of this section.
1996—Subsec. (a)(3). Pub. L. 104–324 inserted ‘‘as measured under section 14502 of title 46, or an alternate tonnage measured under section 14302 of that title as prescribed by the Secretary under section 14104 of that
title’’ after ‘‘300 gross tons’’.
1990—Subsec. (a). Pub. L. 101–380, § 4107(a)(1), substituted ‘‘Secretary—’’ for ‘‘Secretary may—’’.
Subsec. (a)(1). Pub. L. 101–380, § 4107(a)(2), substituted
‘‘may construct, operate, maintain, improve, or expand’’ for ‘‘establish, operate, and maintain’’.
Subsec. (a)(2). Pub. L. 101–380, § 4107(a)(3), substituted
‘‘shall require appropriate’’ for ‘‘require’’.
Subsec. (a)(3). Pub. L. 101–380, § 4107(a)(4), inserted
‘‘may’’ before ‘‘require’’, which was executed by making the insertion before ‘‘require’’ the first place it appeared to reflect the probable intent of Congress.

Page 304

Subsec. (a)(4). Pub. L. 101–380, § 4107(a)(5), inserted
‘‘may’’ before ‘‘control’’.
Subsec. (a)(5). Pub. L. 101–380, § 4107(a)(6), inserted
‘‘may’’ before ‘‘require’’.
1978—Pub. L. 95–474 substituted provision relating to
vessel operating requirements for provision relating to
the investigatory powers of the Secretary, production
of witnesses and documents, and fees and allowances
for witnesses.
EFFECTIVE DATE OF 2006 AMENDMENT
Pub. L. 109–241, title IX, § 901(d), July 11, 2006, 120
Stat. 564, provided in part that the amendment made
by section 901(d) is effective Aug. 9, 2004.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101–380 applicable to incidents
occurring after Aug. 18, 1990, see section 1020 of Pub. L.
101–380, set out as an Effective Date note under section
2701 of this title.
NOTICE OF ARRIVAL FOR FOREIGN VESSELS ON THE
OUTER CONTINENTAL SHELF
Pub. L. 109–347, title I, § 109, Oct. 13, 2006, 120 Stat.
1893, provided that:
‘‘(a) NOTICE OF ARRIVAL.—Not later than 180 days
after the date of the enactment of this Act [Oct. 13,
2006], the Secretary of the department in which the
Coast Guard is operating shall update and finalize the
rulemaking on notice of arrival for foreign vessels on
the Outer Continental Shelf.
‘‘(b) CONTENT OF REGULATIONS.—The regulations promulgated pursuant to subsection (a) shall be consistent
with information required under the Notice of Arrival
under section 160.206 of title 33, Code of Federal Regulations, as in effect on the date of the enactment of this
Act [Oct. 13, 2006].’’
DIRECTION OF VESSEL MOVEMENT STUDY; SUBMITTAL
OF REPORT TO CONGRESS
Section 4107(b) of Pub. L. 101–380 provided that:
‘‘(1) STUDY.—The Secretary shall conduct a study—
‘‘(A) of whether the Secretary should be given additional authority to direct the movement of vessels on
navigable waters and should exercise such authority;
and
‘‘(B) to determine and prioritize the United States
ports and channels that are in need of new, expanded,
or improved vessel traffic service systems, by evaluating—
‘‘(i) the nature, volume, and frequency of vessel
traffic;
‘‘(ii) the risks of collisions, spills, and damages
associated with that traffic;
‘‘(iii) the impact of installation, expansion, or improvement of a vessel traffic service system; and
‘‘(iv) all other relevant costs and data.
‘‘(2) REPORT.—Not later than 1 year after the date of
the enactment of this Act [Aug. 18, 1990], the Secretary
shall submit to the Congress a report on the results of
the study conducted under paragraph (1) and recommendations for implementing the results of that
study.’’
TERRITORIAL SEA OF UNITED STATES
For extension of territorial sea of United States, see
Proc. No. 5928, set out as a note under section 1331 of
Title 43, Public Lands.

§ 1223a. Electronic charts
(a) System requirements
(1) Requirements
Subject to paragraph (2), the following vessels, while operating on the navigable waters
of the United States, shall be equipped with
and operate electronic charts under regula-