[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Rules and Regulations]
[Pages 32364-32366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13486]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-060]
RIN 1625-AA00


Security Zones; New York Marine Inspection Zone and Captain of 
the Port Zone

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is establishing temporary security zones in 
portions of the waters around Stapleton Homeport Pier in Upper New York 
Bay, and the New York City Passenger Ship Terminal and Intrepid Museum 
in the Hudson River. This action is necessary to safeguard Naval and 
Coast Guard vessels, critical port infrastructure and coastal 
facilities from sabotage, subversive acts, or other threats. The zones 
will prohibit entry into or movement within these areas without 
authorization from the Captain of the Port New York.

DATES: This rule is effective from 4 p.m., May 20, 2003, until 8 p.m. 
May, 28, 2003.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket (CGD01-03-060) and are available for 
inspection or copying at room 204, Coast Guard Activities New York, 
between 8 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander W. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York at (718) 
354-4012.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD01-03-
060), 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 
81/2 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 rule in view of them.

Regulatory Information

    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 Captain of the Port 
conducts an ongoing assessment of the maritime domain security needs 
within the port and has determined that the temporary safety and 
security zones established by this rule are necessary to provide for 
the protection of Naval and Coast Guard vessels, critical port 
infrastructure and coastal facilities. This determination was reached 
after due consideration of various warnings publicly disseminated by 
the Federal Bureau of Investigation and other law enforcement agencies, 
and threatening statements attributed to the al Qaeda organization. In 
view of the urgent need to adequately safeguard Naval and Coast Guard 
vessels, critical coastal facilities and infrastructure from potential 
terrorist attack, any delay encountered by normal notice and comment 
rulemaking procedures would be contrary to the public interest.
    For the same reasons, the Coast Guard further finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register pursuant to 5 U.S.C. 553(d)(3).

Background and Purpose

    On September 11, 2001 three commercial aircraft were hijacked and 
flown into the World Trade Center in New York City, and the Pentagon, 
inflicting catastrophic human casualties and property damage. National 
security and intelligence officials warn that future terrorist attacks 
are likely. The President has continued the national emergencies he 
declared following the September 11, 2001 terrorist attacks. See, 
Continuation of the National Emergency with Respect to Certain 
Terrorist Attacks, 67 FR 58317 (September 13, 2002); Continuation of 
the National Emergency With Respect To Persons Who Commit, Threaten To 
Commit, Or Support Terrorism, 67 FR 59447 (September 20, 2002). The 
President also has found pursuant to law, including the Act of June 15, 
1917, as amended August 9, 1950, by the Magnuson Act (50 U.S.C. 191 et 
seq.), that the security of the United States is endangered by 
disturbances in international relations of United States that have 
existed since the terrorist attacks on the United States and such 
disturbances continue to endanger such relations. Executive Order 13273 
of

[[Page 32365]]

August 21, 2002, Further Amending Executive Order 10173, as Amended, 
Prescribing Regulations Relating to the Safeguarding of Vessels, 
Harbors, Ports, and Waterfront Facilities of the United States, 67 FR 
56215 (September 3, 2002).
    Since the September 11, 2001 terrorist attacks, the Federal Bureau 
of Investigation has issued several warnings concerning the potential 
for additional attacks within the United States. In addition, the 
ongoing hostilities in Afghanistan and growing tensions within Iraq 
have made it prudent for U.S. ports and properties of national 
significance to be on a higher state of alert because the al Qaeda 
organization and other similar organizations have declared an ongoing 
intention to conduct armed attacks on U.S. interests worldwide.
    The Coast Guard is establishing temporary security zones around the 
Stapleton Homeport Pier in Upper New York Bay, the New York City 
Passenger Ship Terminal and Intrepid Museum in the Hudson River. These 
security zones are necessary to provide for the security of the port 
and to ensure that vessels and facilities, are not used as targets of, 
or platforms for, terrorist attacks. These zones would restrict entry 
into or movement within portions of the New York Marine Inspection and 
Captain of the Port Zones.

Discussion of Temporary Rule

    This rule establishes the following temporary security zones:

Stapleton Homeport Pier, Upper New York Bay, Staten Island, NY

    The Coast Guard is establishing a temporary security zone in all 
waters of Upper New York Bay within approximately 400 yards of the 
Stapleton Homeport Pier bound by the following approximate positions: 
40[deg]38'00.6'' N, 074[deg]04'22.3'' W, thence to 40[deg]37'51.1'' N, 
074[deg]03'46.5'' W, thence to 40[deg]37'27.5'' N, 074[deg]03'54.5'' W, 
thence to 40[deg]37'33.7'' N, 074[deg]04'20.8'' W, (NAD 1983) thence 
along the shoreline to the point of origin.

New York City Passenger Ship Terminal and Intrepid Museum, Hudson 
River, Manhattan, NY

    The Coast Guard is establishing temporary security zones in all 
waters of the Hudson River within approximately 400 yards of Piers 86, 
88, 90, and 92 bound by the following points: from the northeast corner 
of Pier 81 where it intersects the seawall, thence to approximate 
position 40[deg]45'51.3'' N, 074[deg]00'30.2'' W, thence to 
40[deg]46'27.7'' N, 074[deg]00'04.9'' W, thence to the southeast corner 
of Pier 97 where it intersects the seawall.
    The zones described above are necessary to protect the Naval and 
Coast Guard vessels participating in Fleet Week 2003, the Stapleton 
Homeport Pier, the New York City Passenger Ship Terminal; the Intrepid 
Museum, others in the maritime community, and the surrounding 
communities from subversive or terrorist attack against the vessels and 
piers that could potentially cause serious negative impact to vessels, 
the port, or the environment and result in numerous casualties. The 
Captain of the Port does not expect this rule to interfere with the 
transit of any vessels through the waterways adjacent to each facility. 
Vessels will still be able to transit around the security zones at all 
times. Additionally, vessels will not be precluded from mooring at or 
getting underway from commercial or recreational piers in the vicinity 
of the zones.
    Any violation of any security zone herein is punishable by, among 
others, civil penalties (not to exceed $27,500 per violation, where 
each day of a continuing violation is a separate violation), criminal 
penalties (imprisonment for not more than 10 years and a fine of not 
more than $100,000), in rem liability against the offending vessel, and 
license sanctions. This regulation is established under the authority 
contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.
    No person or vessel may enter or remain in a prescribed security 
zone at any time without the permission of the Captain of the Port, New 
York. Each person or vessel in a 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 security zone and/or remove 
any person, vessel, article or thing from a security zone.

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 Homeland 
Security (DHS).
    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 DHS is unnecessary. This finding is based on 
the fact that: the zones are temporary in nature; the zones implicate 
relatively small portions of the waterway; and vessels will be able to 
transit around the security zones at all times.

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 
might be small entities: the owners or operators of vessels intending 
to transit or anchor in a portion of Upper New York Bay and the Hudson 
River in which entry will be prohibited by these security zones.
    These security zones will not have a significant economic impact on 
a substantial number of small entities for the following reasons: the 
zones are temporary in nature; the zones implicate relatively small 
portions of the waterways; and vessels will be able to transit around 
the security zones at all times.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining 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 (Public Law 104-121), we want to assist small 
entities in understanding this temporary rule so that we 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 contact Lieutenant Commander W. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York at (718) 
354-4012.

Collection of Information

    This temporary rule would call for no new collection of information 
under the

[[Page 32366]]

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 temporary 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 temporary 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 temporary 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 temporary 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 temporary rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This temporary rule is not an economically significant rule and 
does not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

Indian Tribal Governments

    This temporary 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, 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 temporary 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 temporary 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. This rule fits paragraph 34(g) as it 
establishes security zones. A ``Categorical Exclusion Determination'' 
is 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.


0
2. From 4 p.m. May 20, 2003, to 8 p.m. May 28, 2003, add temporary 
Sec.  165.T01-060 to read as follows:


Sec.  165.T01-060  Security Zones; New York Marine Inspection Zone and 
Captain of the Port Zone.

    (a) Security zones. The following waters within the New York Marine 
Inspection Zone and Captain of the Port Zone are security zones:
    (1) Stapleton Homeport Pier, Upper New York Bay, Staten Island, NY. 
(i) Location: All waters of Upper New York Bay within approximately 400 
yards of the Stapleton Homeport Pier bound by the following approximate 
positions: 40[deg]38'00.6'' N, 074[deg]04'22.3'' W, thence to 
40[deg]37'51.1'' N, 074[deg]03'46.5'' W, thence to 40[deg]37'27.5'' N, 
074[deg]03'54.5'' W, thence to 40[deg]37'33.7'' N, 074[deg]04'20.8'' W, 
(NAD 1983) thence along the shoreline to the point of origin.
    (ii) Enforcement period. Paragraph (a)(1)(i) will be enforced from 
4 p.m. on Tuesday, May 20, 2003 to 8 p.m. on Wednesday, May 28, 2003.
    (2) New York City Passenger Ship Terminal and Intrepid Museum, 
Hudson River, Manhattan, NY. (i) Location: All waters of the Hudson 
River within approximately 400 yards of Piers 86, 88, 90, and 92 bound 
by the following points: from the northeast corner of Pier 81 where it 
intersects the seawall, thence to approximate position 40[deg]45'51.3'' 
N, 074[deg]00'30.2'' W, thence to 40[deg]46'27.7'' N, 074[deg]00'04.9'' 
W, thence to the southeast corner of Pier 97 where it intersects the 
seawall.
    (ii) Enforcement period. Paragraph (a)(2)(i) will be enforced from 
4 p.m. on Tuesday, May 20, 2003 to 8 p.m. on Wednesday, May 28, 2003.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
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: May 20, 2003.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 03-13486 Filed 5-29-03; 8:45 am]
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