[Federal Register Volume 66, Number 196 (Wednesday, October 10, 2001)]
[Rules and Regulations]
[Pages 51558-51562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25290]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-01-181]
RIN 2115-AE84 and 2115-AA97


Regulated Navigation Area and Safety and Security Zones; New York 
Marine Inspection Zone and Captain of the Port Zone

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing regulated navigation areas and 
safety and security zones for vessels operating within the New York 
Marine Inspection Zone and Captain of the Port Zone. This action is 
necessary to ensure public safety, prevent sabotage or terrorist acts, 
and facilitate the efforts of emergency services and law enforcement 
officers responding to recent terrorist attacks on sites in Manhattan, 
NY. The rule will prohibit vessels from entering certain areas of the 
port and impose restrictions on vessel operations in other areas.

DATES: This rule is effective September 28, 2001 through April 8, 2002. 
Comments and related material must reach the Coast Guard on or before 
December 10, 2001.

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 CGD01-01-181 and are available for inspection or 
copying at Coast Guard Activities New York, 212 Coast Guard Drive, room 
204, Staten Island, New York 10305, between 8 a.m. and 3 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant K. Garza, Waterways 
Oversight Branch, Coast Guard Activities New York (718) 556-4407.

[[Page 51559]]


SUPPLEMENTARY INFORMATION:   

Regulatory Information

    As authorized by 5 U.S.C. 553, we did not publish a notice of 
proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 
553(b)(B), the Coast Guard finds that good cause exists for not 
publishing an NPRM. This rulemaking is urgently required to facilitate 
emergency services responding to terrorist attacks recently perpetrated 
upon the World Trade Center in Manhattan, NY, and to prevent future 
terrorist strikes within and adjacent to the Port of New York/New 
Jersey. The delay inherent in the NPRM process is contrary to the 
public interest insofar as it may impair urgent life-saving efforts by 
emergency personnel or render individuals, vessels and facilities 
within the Port vulnerable to subversive activity, sabotage or 
terrorist attack.
    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. The measures contemplated by the 
rule are intended to facilitate ongoing, emergency response efforts and 
prevent future terrorist attack. Immediate action is needed to 
accomplish these objectives. Any delay in the effective date of this 
rule is impracticable and contrary to the public interest.

Request for Comments

    Although the Coast Guard has good cause to implement this 
regulation without engaging in the Notice of Proposed Rulemaking 
process, we want to afford the maritime community the opportunity to 
participate in this rulemaking by submitting comments and related 
material regarding the size, scope and duration of the Regulated 
Navigation Areas, safety zones and security zones in order to minimize 
unnecessary burdens on waterway users. If you do so, please include 
your name and address, identify the docket number for this rulemaking 
[CGD01-01-181], 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 temporary final 
rule in view of them.

Background and Purpose

    Terrorist attacks against the World Trade Center in Manhattan, New 
York on September 11, 2001 inflicted catastrophic human casualties and 
property damage. Federal, state and local personnel are engaged in 
ongoing efforts to rescue survivors and secure other potential 
terrorist targets from attack. The Coast Guard has established 
regulated navigation areas and safety and security zones within defined 
areas of water in order to facilitate emergency response and rescue 
activities, protect human life, and safeguard vessels and waterfront 
facilities from sabotage or terrorist acts. If a change in conditions 
during the effective period of this rule warrants lifting or mitigating 
any restriction imposed in the rule, the decision to modify or waive 
enforcement of that restriction will be communicated by broadcast 
notice to mariners. These regulations are issued under authority 
contained in 50 U.S.C. 191, 33 U.S.C. 1221, 1223, 1225 and 1226.

Regulated Navigation Area

    The rule establishes a regulated navigation area (RNA) that 
includes portions of the Hudson River, as well as New York Harbor Upper 
and Lower Bays, Sandy Hook Bay, Raritan Bay, Newark Bay, Arthur Kill 
and Kill Van Kull. Deep draft vessels are required to meet certain 
conditions before entering the RNA. The conditions are imposed in order 
to protect the subject vessels from subversive or terrorists acts and 
to prevent their use as platforms for terrorist acts against 
individuals, other vessels, waterfront facilities or adjoining 
population centers.
    In addition, the rule restricts passenger ferry services to 
specific points on Manhattan Island at which they may land to embark or 
disembark passengers. This restriction is intended to prevent undue 
congestion in areas where emergency response and rescue vessels are 
operating and to limit the introduction of pedestrian traffic in 
restricted, hazardous portions of lower Manhattan.
    Any vessel authorized by its Certificate of Inspection to carry 
more than 49 passengers will be required to submit a Vessel Security 
Plan before being allowed to operate within the RNA. While operating 
within the RNA, passenger vessels authorized to carry more than 49 
passengers must employ methods to secure the vessel from hijacking. 
These security requirements will help to ensure that passenger vessels 
operating in close proximity to population centers and waterfront 
facilities cannot be commandeered for use by terrorists or saboteurs.
    Recreational vessels are prohibited from operating within the RNA. 
This restriction is necessary in order to provide security for 
waterfront facilities susceptible to sabotage or terrorist acts, 
alleviate undue vessel traffic congestion and prevent interference with 
law enforcement and emergency response vessels. If circumstances permit 
the resumption of some recreational vessel traffic, the Captain of the 
Port will broadcast the terms and conditions under which recreational 
vessels may resume operation within the RNA.
    Included within the regulated navigation area is a special sector, 
designated ``Area A'', which includes all waters within the RNA 
consisting of the Hudson River south of the Holland Tunnel ventilators; 
thence west of line drawn from the Governor's Island ventilators to the 
western end of the Brooklyn Bridge; thence from the southwest corner of 
Pier Lima on Governor's Island to Liberty Island Gong Buoy 29 (LLNR 
34995) thence to the southeast corner of Pier 7 at Liberty State Park. 
Only emergency response vessels directly assisting with the disaster in 
lower Manhattan may operate in Area A. Commercial vessels assisting 
with the disaster recovery efforts in Area A must contact Vessel 
Traffic Services New York (VTSNY) prior to entering this emergency 
response zone. All vessels operating within Area A must do so at no 
wake speeds, or 10 knots, whichever is less. This restriction is 
imposed in order to prevent interference with emergency response 
personnel and equipment operating on and adjacent to the affected 
shoreline.
    Violations of the regulated navigation areas are punishable by 
civil penalties (not to exceed $25,000 per violation), criminal 
penalties (imprisonment for not more than 6 years and a fine of not 
more than $250,000) and in rem liability against the offending vessel.

Safety and Security Zones

    The rule also establishes six distinct safety and security zones. 
Four of the zones are established by reference to fixed boundaries and 
are intended to protect individuals, other vessels and waterfront 
facilities from subversive or terrorist acts. Two of the zones are 
defined by reference to a fixed radius around vessels capable of 
movement throughout the Port of New York/New Jersey. These zones are 
intended principally to protect the vessels themselves from subversive 
or terrorist acts.

[[Page 51560]]

    No person or vessel may enter or remain in the prescribed safety 
and security zones at any time without the permission of the Captain of 
the Port. Each person or vessel in a safety and security zone shall 
obey any direction or order of the Captain of the Port. The Captain of 
the Port may take possession and control of any vessel in a safety and 
security zone and/or remove any person, vessel, article or thing from a 
security zone. No person may board, take or place any article or thing 
on board any vessel or waterfront facility in a security zone without 
permission of the Captain of the Port.
    Any violation of any safety or security zone described herein, is 
punishable by, among others, civil penalties (not to exceed $25,000 per 
violation, where each day of a continuing violation is a separate 
violation), criminal penalties (imprisonment for not more than 6 years 
and a fine of not more than $250,000), in rem liability against the 
offending vessel, and license sanctions.

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). The sizes of the zones are the 
minimum necessary to provide adequate protection for the public, 
vessels, and vessel crews. Any vessels seeking entry into or movement 
within the safety and security zones must request permission from the 
Captain of the Port or his authorized patrol representative. Any 
hardships experienced by persons or vessels are considered minimal 
compared to the national interest in protecting the public, vessels, 
and vessel crews from the further devastating consequences of the 
aforementioned acts of terrorism, and from potential future sabotage or 
other subversive acts, accidents, or other causes of a similar nature.

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.
    For the reasons addressed under the Regulatory Evaluation above, 
the Coast Guard expects the impact of this regulation to be minimal and 
certifies under section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) that this final rule will not have a significant 
economic impact on a substantial number of small entities. Maritime 
advisories will be initiated by normal methods and means and will be 
widely available to users of the area.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard 
wants to assist small entities in understanding this final rule so that 
they can better evaluate its effects on them and participate in the 
rulemaking. If your small business or organization would be affected by 
this final rule and you have questions concerning its provisions or 
options for compliance, please call LT Kathleen Garza, telephone (718) 
556-4407. 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 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 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. 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 rule and 
concluded that under figure 2-1,

[[Page 51561]]

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 for 
inspection or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), 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

    1. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.

    2. Add temporary Sec. 165.T01-165 to read as follows:


Sec. 165.T01-165  Regulated Navigation Area: New York Marine Inspection 
Zone and Captain of the Port Zone.

    (a) Regulated navigation area. The following waters within the 
boundaries of the New York Marine Inspection Zone and Captain of the 
Port Zone are established as Regulated Navigation Areas:
    (1) All waters of the Hudson River, New York Harbor Upper and Lower 
Bays, Sandy Hook Bay, Raritan Bay, Newark Bay, Arthur Kill and Kill Van 
Kull, within the following boundaries: south of the George Washington 
Bridge on the Hudson River; west of a line drawn from the Governor's 
Island ventilators to the western end of the Brooklyn Bridge; north of 
a line drawn between Rockaway Point, NY and the northern tip of Sandy 
Hook, NJ; south of Leigh-Valley Bridge; and east of the Raritan River 
Cut-off.
    (2) Within the RNA is a smaller sector designated Area A--Lower 
Manhattan: All waters within the RNA consisting of the Hudson River 
south of the Holland Tunnel ventilators; all waters west of a line 
drawn from the Governor's Island ventilators to the western end of the 
Brooklyn Bridge, thence from the southwest corner of Pier Lima on 
Governor's Island to Liberty Island Gong Buoy 29 (LLNR 34995) thence to 
the southeast corner of Pier 7 at Liberty State Park.
    (b) Applicability. This section applies to all vessels operating 
within the Regulated Navigation Area, including naval and public 
vessels, except vessels that are engaged in the following operations:
    (1) Law enforcement;
    (2) Emergency response;
    (3) Servicing aids to navigation; or
    (4) Surveying, maintenance, or improvement of waters in the 
Regulated Navigation Area.
    (c) Effective dates. This section is effective from September 28, 
2001 through April 8, 2002.
    (d) Regulations. (1) Only emergency response vessels directly 
assisting with the disaster in lower Manhattan may operate in the 
sector designated Area A. Commercial vessels assisting with the 
disaster recovery efforts in Area A must contact Vessel Traffic 
Services New York (VTSNY) prior to entering the area. Vessels 
transiting Area A must do so at no wake speed, or speeds not to exceed 
10 knots, whichever is less.
    (2) Passenger ferry services operating within the RNA are not 
authorized to use ferry slips south of 14th Street in Manhattan, 
without receiving express authorization from VTSNY.
    (3) Any passenger ferry operating within the RNA is required to 
contact VTSNY before getting underway to ensure compliance with the 
foregoing requirements in this section and to inform VTSNY of the 
vessel's destination.
    (4) No vessel whose Certificate of Inspection authorizes it to 
carry more than 49 passengers may enter, transit or operate within the 
RNA until Coast Guard Activities New York, Inspection Division, has 
reviewed and approved that vessel's Security Plan. An approved Vessel 
Security Plan submitted in accordance with 33 CFR 120 will satisfy the 
requirements of this section. A Vessel Security Plan shall, at a 
minimum:
    (i) Describe all measures taken to ensure the physical security of 
the vessel and the security, safety and identity of persons on board 
the vessel;
    (ii) Identify those areas and spaces on the vessel that passengers 
are restricted or prohibited from entering or accessing; and
    (iii) Establish a procedure to address and report terrorist or 
hijacking threats.
    (5) Each passenger vessel whose Certificate of Inspection 
authorizes it to carry more than 49 passengers shall keep its pilot 
house door closed and locked while operating within the RNA to ensure 
maximum protection of the passengers and crew.
    (6) All deep draft vessels operating within the RNA must enter the 
Port via Ambrose or Sandy Hook Channels. Before entering the RNA, the 
following conditions must be met:
    (i) The vessel must undergo a port security inspection by the U. S. 
Coast Guard;
    (ii) The vessel's agent must confirm that the vessel's berth is 
ready to receive the ship;
    (iii) The vessel must embark a pilot; and
    (iv) The vessel must be escorted by two tugs when transiting the 
harbor inside of one nautical mile (1 NM) south of the Verrazano 
Narrows Bridge or the Outerbridge Crossing.
    (7) Recreational vessels are prohibited from operating within the 
RNA. If circumstances permit the resumption of some recreational vessel 
traffic during the effective period of this rule, the Captain of the 
Port will broadcast the terms and conditions under which recreational 
vessels may operate within the RNA.

    3. Add temporary Sec. 165.T01-166 to read as follows:


Sec. 165.T01-166  Safety and Security Zones: New York Marine Inspection 
Zone and Captain of the Port Zone.

    (a) Safety and security zones. The following are established as 
safety and security zones:
    (1) Safety and Security Zone A. Indian Point Nuclear Power Plant: 
All waters of the Hudson River within 1000 yards of the Indian Point 
Nuclear Power Station, located south of Peekskill Bay, from Charles 
Point on the north to the overhead power cables to the south.
    (2) Safety and Security Zone B. OEM Emergency Command Post: All 
waters of the Hudson River bound by the following points: from the 
northeast corner of Pier 96, Manhattan, where it intersects the 
seawall; thence to approximate position 40 deg.46'23" N, 073 deg.59'59" 
W; thence to 40 deg.45'56.4" N, 074 deg.00'19.1" W; thence to the 
southeast corner of Pier 84, Manhattan, where it intersects the 
seawall; thence along the shoreline to the point of origin (NAD 83).
    (3) Safety and Security Zone C. Liberty Island. All waters of Upper 
New York Bay bound by the following points: the northeast corner of 
Liberty State Park in approximate position 40 deg.42'20.4" N, 
074 deg.02'06.2" W; thence to Ellis Island Lighted Gong Buoy 31 (LLNR 
35005); thence to Liberty Island Lighted Gong Buoy 29 (LLNR 34995); 
thence to the southeast corner of Pier 7, Liberty State Park, in 
approximate position 40 deg.41'26.2" N, 074 deg.03'17.9" W.
    (4) Safety and Security Zone D. USNS COMFORT: A moving security 
zone including all waters within a 200-yard radius of the USNS COMFORT 
while it is transiting, moored or berthed in any

[[Page 51562]]

portion of the Port of New York/New Jersey.
    (5) Safety and Security Zone E. U.S. Coast Guard vessels: All 
waters within a 100-yard radius of any anchored U.S. Coast Guard 
vessel.
    (6) Safety and Security Zone F. Bridge stanchions: All waters 
within 25 yards of any bridge stanchion in the Port of New York/New 
Jersey including, but not limited to, the following bridges at the 
specified mile markers:
    (i) In the East River: Brooklyn Bridge (Mile 0.8), Manhattan Bridge 
(Mile 1.1), Williamsburg Bridge (Mile 2.3), Queensboro Bridge (Mile 
5.5), Triboro Bridge (Mile 7.8), Whitestone Bridge (Mile 13.8) and 
Throgs Neck Bridge (Mile 15.8);
    (ii) In the Hudson River: George Washington Bridge (Mile 11.8)
    (iii) In the Kill Van Kull: Bayonne Bridge (Mile 1.5);
    (iv) In the Arthur Kill: Outerbridge Crossing (Mile 2.0), Goethals 
Bridge (Mile 11.5) and AK Lift Bridge (Mile 11.6); and
    (v) In New York Harbor: Verrazano Narrows Bridge.
    (b) Effective dates. This section is effective from September 28, 
2001 through April 8, 2002.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.23 and 165.33 apply.
    (2) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port or the designated on-scene-patrol 
personnel. These personnel comprise commissioned, warrant, and petty 
officers of the Coast Guard. Upon being hailed by a U.S. Coast Guard 
vessel by siren, radio, flashing light, or other means, the operator of 
a vessel shall proceed as directed.

    Dated: September 28, 2001.
G.N. Nacarra,
Rear Admiral, U.S. Coast Guard District Commander.
[FR Doc. 01-25290 Filed 10-9-01; 8:45 am]
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