[Federal Register Volume 68, Number 224 (Thursday, November 20, 2003)]
[Proposed Rules]
[Pages 65427-65429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29026]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-020]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a permanent security 
zone in the Atlantic Ocean west of the Ambrose to Hudson Canyon Traffic 
Lane for high interest vessels during emergency situations. This action 
is necessary to protect the Port of New York/New Jersey against 
terrorism, sabotage or other subversive acts and incidents of a similar 
nature during emergency situations onboard high interest vessels. This 
action is intended to restrict vessel traffic in a portion of the 
Atlantic Ocean.

DATES: Comments and related material must reach the Coast Guard on or 
before January 20, 2004.

ADDRESSES: You may mail comments and related material to Waterways 
Oversight Branch (CGD01-03-020), Coast Guard Activities New York, 212 
Coast Guard Drive, room 203, Staten Island, NY 10305. The Waterways 
Oversight Branch of Coast Guard Activities New York maintains the 
public docket for this rulemaking. Comments and material received from 
the public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
available for inspection or copying at room 203, 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) 
354-4191.

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-
020), 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 
that your submission 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 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Oversight Branch at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

Background and Purpose

    The Coast Guard proposes to establish a permanent security zone 
between the Ambrose to Hudson Canyon Traffic Lane and the Barnegat to 
Ambrose Traffic Lane bound by the following points: 40[deg]21'29.9'' N, 
073[deg]44'41.0'' W, thence to 40[deg]21'04.5'' N, 073[deg]45'31.4'' W, 
thence to 40[deg]15'28.3'' N, 073[deg]44'13.8'' W, thence to 
40[deg]15'35.4'' N, 073[deg]43'29.8'' W, thence to 40[deg]19'21.2'' N, 
073[deg]42'53.0'' W, thence to the point of origin. The security zone 
would only be used for high interest vessels due to emergency 
situations onboard the vessel.
    On January 31, 2002, a release of MTBE (methyl tertiary-butyl 
ether) onboard the M/V LEADER required the closure of Anchorage Grounds 
No. 23-A, 23-B, and 24 in the Narrows. Additionally, from September 11, 
to September 13, 2002, a radiological anomaly was discovered onboard 
the M/V PALERMO SENATOR during a vessel boarding. As a result, the 
vessel was ordered to depart the Port of New York/New Jersey and remain 
at anchorage for further investigation. To maximize safety, the Captain 
of the Port New York established a security zone around the anchored 
vessel.
    While these incidents had uneventful conclusions they each posed a 
significant threat to port infrastructure and the local population. The 
Coast Guard intends to minimize risk to the Port of New York/New Jersey 
and the area population by requiring vessels in similar emergency 
situations to anchor in the proposed security zone while the vessel is 
inspected and cleared for a safe transit.

Discussion of Proposed Rule

    The proposed security zone includes all waters of the Atlantic 
Ocean between the Ambrose to Hudson Canyon Traffic Lane and the 
Barnegat to Ambrose Traffic Lane bound by the following points: 
40[deg]21'29.9'' N, 073[deg]44'41.0'' W, thence to 40[deg]21'04.5'' N, 
073[deg]45'31.4'' W, thence to 40[deg]15'28.3'' N, 073[deg]44'13.8'' W, 
thence to 40[deg]15'35.4'' N, 073[deg]43'29.8'' W, thence to 
40[deg]19'21.2'' N, 073[deg]42'53.0'' W, thence to the point of origin. 
The proposed security zone would prevent vessels from transiting a 
portion of the Atlantic Ocean and is needed to protect vessel operators 
from the hazards associated with emergency situations onboard vessels 
that are not authorized within the Port of New York/New Jersey due to 
conditions that may be dangerous to the Port and the local population. 
Marine traffic would still be able to transit around the security zone 
when it is activated via already established traffic separation 
schemes. In cases of emergency, vessels transiting in the traffic 
separation scheme traffic lanes adjacent to the security zone would be 
authorized to enter the adjacent separation zone between traffic lanes 
to avoid immediate danger. The Captain of the Port does not anticipate 
any negative impact on vessel traffic due to this proposed security 
zone.
    The Coast Guard does not know when the security zone would be 
enforced as the zone would be used only on an as needed basis. 
Establishing a permanent security zone by notice and comment rulemaking 
provides the public the opportunity to comment on the proposed zone, 
location and size. Coast Guard Activities New York would give notice of 
the enforcement of the security zone by all appropriate means to 
provide the widest publicity among the affected segments of the public. 
This proposed rule has been discussed with the Sandy Hook Pilots 
Association and they do not feel this zone would interfere with the New 
York Traffic Separation Scheme. Notifications would be made to the 
local maritime community by the Vessel Traffic Service New York, 
facsimile, marine information and electronic mail broadcasts, and on 
the Internet at http://www.harborops.com.

Regulatory Evaluation

    This proposed 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

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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 proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    This finding is based on the minimal time that vessels would be 
restricted from the zone, and the zone is in an area where the Coast 
Guard expects insignificant adverse impact on all mariners during 
periods when the zone is in effect. Vessels may also still transit 
through all Traffic Lanes to, and from, the Port of New York/New 
Jersey. As stated above, in cases of emergency, vessels transiting in 
the adjacent traffic lanes would be authorized to enter the adjacent 
separation zone to avoid immediate danger. This proposed rule has been 
discussed with the Sandy Hook Pilots Association. The Pilot's 
Association does not feel that activation of this proposed zone would 
interfere with the New York Traffic Separation Scheme. Notifications of 
when the zone would be in effect would also be made to the local 
maritime community by the Vessel Traffic Service New York, facsimile, 
marine information and electronic mail broadcasts, and on the Internet 
at http://www.harborops.com.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which might be small entities: the owners or operators of vessels, 
including commercial fisherman, intending to transit, engage in 
fishing, or anchor in a portion of the Atlantic Ocean during the times 
this proposed zone is activated.
    This security zone would not have a significant economic impact on 
a substantial number of small entities for the following reasons: 
Commercial Vessel traffic would continue to transit through the New 
York Traffic Separation Scheme. Recreational, fishing and small 
commercial vessels would still be able to transit around the security 
zone. Additionally, the periods of time when the zone would be 
effective are expected to be short and nothing more than minimal 
interference with commercial fishing operations is expected. The Sandy 
Hook Pilots Association agrees that activating the zone would not 
interfere with the traffic separation scheme. In the event that the 
zone is activated, maritime advisories widely available to users of the 
Port of New York/New Jersey would be issued by the Vessel Traffic 
Service New York, facsimile, marine information and electronic mail 
broadcasts, and on the Internet at http://www.harborops.com.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed 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 proposed rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed 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) 354-4191.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

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

Indian Tribal Governments

    This proposed 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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

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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. The Administrator of the Office 
of Information and Regulatory Affairs has not designated it 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 proposed rule 
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation because it establishes a security zone. 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.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.

    2. In Sec.  165.169, add a new paragraph (a)(7), revise paragraph 
(b), and add new paragraph (c) to read as follows:


Sec.  165.169  Safety and Security Zones; New York Marine Inspection 
Zone and Captain of the Port Zone.

    (a) * * *
    (7) Approaches to New York, Atlantic Ocean. The following area is a 
security zone: All waters of the Atlantic Ocean between the Ambrose to 
Hudson Canyon Traffic Lane and the Barnegat to Ambrose Traffic Lane 
bound by the following points: 40[deg]21'29.9'' N, 073[deg]44'41.0'' W, 
thence to 40[deg]21'04.5'' N, 073[deg]45'31.4'' W, thence to 
40[deg]15'28.3'' N, 073[deg]44'13.8'' W, thence to 40[deg]15'35.4'' N, 
073[deg]43'29.8'' W, thence to 40[deg]19'21.2'' N, 073[deg]42'53.0'' W, 
thence to the point of origin.
    (b) Regulations. (1) Entry into or remaining in a safety or 
security zone is prohibited unless authorized by the Coast Guard 
Captain of the Port, New York.
    (2) Persons desiring to transit the area of a safety or security 
zone may contact the Captain of the Port at telephone number 718-354-
4088 or on VHF channel 14 (156.7 MHz) or VHF channel 16 (156.8 MHz) to 
seek permission to transit the area. If permission is granted, all 
persons and vessels must comply with the instructions of the Captain of 
the Port or his or her designated representative.
    (3) Vessels not actively engaged in authorized vessel to facility 
transfer operations shall not stop or loiter within that part of a 
commercial waterfront facility safety and security zone extending into 
the navigable channel, described in paragraph (a)(3) of this section, 
without the express permission of the Coast Guard Captain of the Port 
or his or her designated representative, including on-scene patrol 
personnel.
    (4) The zone described in paragraph (a)(7) of this section is not a 
Federal Anchorage Ground. Only vessels directed by the Captain of the 
Port or his or her designated representative to enter this zone are 
authorized to anchor here.
    (5) Vessels do not need permission from the Captain of the Port to 
transit the area described in paragraph (a)(7) of this section during 
periods when that security zone is not being enforced.
    (c) Enforcement. Enforcement periods for the zone in paragraph 
(a)(7) of this section will be announced through marine information 
broadcast or other appropriate method of communication. The Coast Guard 
is enforcing the zone whenever a vessel is anchored in the security 
zone or a Coast Guard patrol vessel is on-scene.

    Dated: November 12, 2003.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 03-29026 Filed 11-19-03; 8:45 am]
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