[Federal Register Volume 69, Number 114 (Tuesday, June 15, 2004)]
[Rules and Regulations]
[Pages 33304-33307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13470]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing 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.

[[Page 33305]]


DATES: This rule is effective July 15, 2004.

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 (CGD01-03-020) and are available for inspection or 
copying at room 203, Coast Guard Activities New York, 212 Coast Guard 
Drive, room 203, Staten Island, NY 10305 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

    On November 20, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled ``Safety and Security Zones; New York Marine Inspection 
Zone and Captain of the Port Zone'' in the Federal Register (68 FR 
65427). We received one letter commenting on the proposed rule. No 
public hearing was requested, and none was held.

Background and Purpose

    The Coast Guard is establishing 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[min]29.9[sec] N, 
073[deg]44[min]41.0[sec] W, thence to 40[deg]21[min]04.5[sec] N, 
073[deg]45[min]31.4[sec] W, thence to 40[deg]15[min]28.3[sec] N, 
073[deg]44[min]13.8[sec] W, thence to 40[deg]15[min]35.4[sec] N, 
073[deg]43[min]29.8[sec] W, thence to 40[deg]19[min]21.2[sec] N, 
073[deg]42[min]53.0[sec] W, (NAD 1983) thence to the point of origin. 
The security zone will 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 security zone while the vessel is inspected 
and cleared for a safe transit.
    The security zone will 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 will still be able to transit around the security zone when it 
is subject to enforcement via already established traffic separation 
schemes. In cases of emergency, vessels transiting in the traffic 
separation scheme traffic lanes adjacent to the security zone will 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 security zone.
    The Coast Guard does not know when the security zone will be 
enforced as the zone will be used only on an as needed basis. 
Establishing a permanent security zone by notice and comment rulemaking 
provided the public the opportunity to comment on the zone, location 
and size. Coast Guard Activities New York will 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 
rule has been discussed with the Sandy Hook Pilots Association and they 
do not feel this zone will interfere with the New York Traffic 
Separation Scheme. Notifications will 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.

Discussion of Comments and Changes

    The Coast Guard received one letter commenting on the proposed 
rulemaking. The comment recommended that the Coast Guard establish a 
standardized means for vessels which security zones have been 
established to transmit the existence of such security zones on their 
Automatic Identification System (AIS), if installed. The comment also 
recommended that patrol craft enforcing security zones should transmit 
information on the security zone on their AIS. This request is beyond 
the scope of this rulemaking, but we have sent a copy of this letter to 
the Coast Guard program office responsible for AIS and note that the 
docket for an AIS request for comments (68 FR 39369, July 1, 2003; 
Docket number USCG-2003-14878) contains a similar recommendation (see 
item 50) from the same commenter.
    We did make one technical change. The wrong paragraph designator 
was used in the NPRM. It should have been Sec.  165.169(a)(12) instead 
of Sec.  165.169(a)(7). This final rule contains the correct paragraph 
designator--33 CFR 165.169(a)(12). Other than the paragraph designator, 
the regulatory text remains the same as in the proposed rule.

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 minimal time that vessels will 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 will be authorized to enter the adjacent 
separation zone to avoid immediate danger. This rule has been discussed 
with the Sandy Hook Pilots Association. The Pilot's Association does 
not feel that activation of this zone will interfere with the New York 
Traffic Separation Scheme. Notifications of when the zone will be in 
effect will 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 rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit

[[Page 33306]]

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, including 
commercial fisherman, intending to transit, engage in fishing, or 
anchor in a portion of the Atlantic Ocean during the times this zone is 
activated.
    This security zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: 
Commercial Vessel traffic will continue to transit through the New York 
Traffic Separation Scheme. Recreational, fishing and small commercial 
vessels will still be able transit around the security zone. 
Additionally, the periods of time when the zone will 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 will 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 will 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 rule will 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 will 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 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. We 
received no further requests for assistance from small entities.
    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 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 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.

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. 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 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 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.


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. 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.


0
2. In Sec.  165.169, add a new paragraph (a)(12), 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) * * *

[[Page 33307]]

    (12) 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, 
(NAD 1983) 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)(12) 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)(12) of this section during 
periods when that security zone is not being enforced.
    (c) Enforcement. Enforcement periods for the zone in paragraph 
(a)(12) 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: May 14, 2004.
C.E. Bone,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 04-13470 Filed 6-14-04; 8:45 am]
BILLING CODE 4910-15-P