[Federal Register Volume 69, Number 105 (Tuesday, June 1, 2004)]
[Rules and Regulations]
[Pages 30828-30831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12319]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-053]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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 and a moving security zone around each 
participating vessel in the 2004 Fleet Week parade. This action is 
necessary to safeguard Naval and Coast Guard vessels, critical port 
infrastructure and coastal facilities from sabotage, subversive acts, 
or other threats. This rule prohibits entry into or movement within 
these security zones without authorization from the Captain of the Port 
New York.

DATES: This rule is effective from 8 a.m., May 24, 2004, until 8 p.m., 
June 2, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket (CGD01-04-

[[Page 30829]]

053) and are 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:

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 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 in making these security zones effective 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 Magnuson Act 
(50 U.S.C. 191 et seq.), that the security of the United States is 
endangered by disturbances in international relations of the 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 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, and 
around all participating vessels in the 2004 Fleet Week. 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 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, encompassed by a line connecting the following 
points: 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 a temporary security zone in all 
waters of the Hudson River within approximately 400 yards of Piers 86, 
88, 90, and 92, encompassed by a line connecting 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.

2004 Fleet Week, Port of New York/New Jersey

    The Coast Guard is establishing a temporary moving security zone in 
all waters of the Port of New York/New Jersey within a 500-yard radius 
of each participating vessel in the 2004 Fleet Week between Ambrose 
Light (LLNR 720) and the George Washington Bridge (river mile 11.0) on 
the Hudson River.
    The zones described above are necessary to protect the Naval and 
Coast Guard vessels participating in Fleet Week 2004, 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 or after a limited wait while the parade column passes their 
location. Additionally, vessels will not be precluded from mooring at 
or getting underway from commercial or recreational piers in the 
vicinity of the zones unless they are required to wait for a limited 
duration while the parade column is transiting by their location.
    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. 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

[[Page 30830]]

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 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 or after a limited wait while the 
parade passes their location.

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 or after waiting for a limited duration 
while the parade column passes their location.
    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 (Pub. L. 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) 
354-4191.

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 an 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 might 
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, 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, 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:

[[Page 30831]]

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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 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.


0
2. From 8 a.m., May 24, 2004, to 8 p.m., June 2, 2004, add temporary 
Sec.  165.T01-053 to read as follows:


Sec.  165.T01-053  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, encompassed by a line connecting 
the following points: 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 
8 a.m. on Monday, May 24, 2004 to 8 p.m. on Wednesday, June 2, 2004.
    (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, 
encompassed by a line connecting 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 
9 a.m. on Tuesday, May 25, 2004 to 8 p.m. on Wednesday, June 2, 2004.
    (3) 2004 Fleet Week, Port of NY/NJ. (i) Location: All waters of the 
Port of New York/New Jersey within a 500-yard radius of each 
participating vessel in the 2004 Fleet Week between Ambrose Light (LLNR 
720) and the George Washington Bridge (river mile 11.0) on the Hudson 
River.
    (ii) Enforcement period. Paragraph (a)(3)(i) will be enforced from 
8 a.m. on Wednesday, May 26, 2004, until 8 p.m. on Wednesday, June 2, 
2004.
    (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.
    (3) 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 24, 2004.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 04-12319 Filed 5-28-04; 8:45 am]
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