[Federal Register Volume 67, Number 158 (Thursday, August 15, 2002)]
[Rules and Regulations]
[Pages 53310-53312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20625]


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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; change in effective period.

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SUMMARY: The Coast Guard is extending the effective period of the 
Regulated Navigation Area (RNA) and Safety and Security Zones published 
October 10, 2001. This change will extend the effective period of the 
temporary final rule until December 31, 2002 to allow additional time 
to develop a permanent rule. This rule will continue to prohibit 
vessels from entering certain areas of the port and impose restrictions 
on vessel operations in other areas.

DATES: Secs. 165.T01-165 and 165.T01-166 are amended effective August 
15, 2002, and remain in effect through December 31, 2002.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection and 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 Commander E. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York (718) 354-
4012.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On October 10, 2001, we published a temporary final rule (TFR) 
entitled ``Regulated Navigation Area and Safety and Security Zones; New 
York Marine Inspection Zone and Captain of the Port Zone'' in the 
Federal Register (66 FR 51558-51562). The effective period for this 
rule was from September 28, 2001, through April 8, 2002. Although the 
rule was published without advance notice of proposed rulemaking, an 
opportunity for public comment was provided. The comment period closed 
on December 10, 2001. The Coast Guard received no letters commenting on 
the temporary rule. No public hearing was requested, and none was held.
    Subsequently, the effective period of the rule was extended to 
August 15, 2002 (67 FR 16016-16018, April 4, 2002). We anticipated that 
the extension would provide sufficient time to develop permanent 
security zones within the port by informal rulemaking. Agency 
development of a permanent rule required more time than had been 
estimated and prevented informal notice and comment rulemaking within 
the period originally forecast.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(3), the Coast Guard finds that good 
cause exists for not publishing an NPRM. The original TFR was urgently 
required to facilitate emergency services responding to terrorist 
attacks 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. Those security considerations persist. We have determined 
that the public interest necessitates continued security regulations 
within the port while the

[[Page 53311]]

Coast Guard engages in informal rulemaking.
    We consider additional notice and comment unnecessary for the 
extension of this temporary rule. The regulation imposes minimal, if 
any, burden on the maritime public as evidenced by the lack of response 
to the previous solicitation for comments. It does not interfere with 
the needs of navigation within the port; rather, it simply prevents 
vessels from entering relatively small areas of water adjacent to 
sensitive facilities. Moreover, as part of an ongoing assessment of the 
port security environment, the Captain of the Port relaxes or suspends 
enforcement of some of the restrictions permitted by the regulation. 
Any mitigation in the enforcement posture is broadcast to ensure widest 
dissemination to the maritime public.
    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. This revision preserves the status 
quo within the Port while permanent rules are developed. The present 
TFR has not been burdensome on the maritime public. The public was 
invited to comment upon or suggest modifications to the scope of the 
existing TFR by submitting written comments within 60 days of its 
publication in the Federal Register. None were received. Any delay in 
the effective date of this regulation is unnecessary and contrary to 
the public interest.

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 secure other potential terrorist targets from 
attack. The Coast Guard established RNAs 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 attacks.
    These regulations were designed to provide the Captain of the Port 
of New York with maximum flexibility to respond to emergent threats and 
dangerous conditions. When less stringent security measures are 
required, the Captain of the Port communicates relaxed enforcement 
policies to the public. As a result, the full scope of these 
regulations is rarely imposed. Nevertheless, the flexibility to utilize 
those measures permitted by the TFR and required by the circumstances 
is vital to ensure port security in the present security environment.
    The temporary rule is only effective until August 15, 2002. The 
Coast Guard is extending the effective date of this rule until December 
31, 2002, to allow the establishment of permanent safety and security 
zones by notice and comment rulemaking.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12886, 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 Coast Guard expects the economic impact of this final rule to 
be so minimal that a full Regulatory Evaluation under paragraph 10e of 
the regulatory policies and procedures of DOT is unnecessary. This 
finding is based on 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 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.
    The Coast Guard will be publishing a NPRM to establish permanent 
safety and security zones that are temporarily effective under this 
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.
    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. 601-612) 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 section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Lieutenant Commander E. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York (718) 354-
4012.
    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 requirements 
under the Paperwork Reduction Act (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

    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

[[Page 53312]]

$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.

Environment

    We have considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph 34(g), of Commandant 
Instruction M16475.1D, 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.

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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security Measures, Waterways.

Regulation

    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 and 160.5; 49 CFR 1.46.

    2. Revise temporary Sec. 165.T01-165(c) to read as follows:


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

* * * * *
    (c) Effective dates. This section is effective from September 28, 
2001 through December 31, 2002.
* * * * *
    3. Revise temporary Sec. 165.T01-166(b) to read as follows:


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

* * * * *
    (b) Effective dates. This section is effective from September 28, 
2001 through December 31, 2002.
* * * * *

    Dated: August 8, 2002.
V.S. Crea,
Rear Admiral, Coast Guard, Commander, First Coast Guard District.
[FR Doc. 02-20625 Filed 8-12-02; 3:42 pm]
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