[Federal Register Volume 70, Number 75 (Wednesday, April 20, 2005)]
[Proposed Rules]
[Pages 20493-20495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7902]



[[Page 20493]]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-05-025]
RIN 1625-AA87


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to establish temporary security zones 
in portions of the waters around Stapleton Homeport Pier in Upper New 
York Bay, as well as the New York City Passenger Ship Terminal and 
Intrepid Museum in the Hudson River and around each participating Fleet 
Week vessel. This action is necessary to safeguard Naval vessels, Coast 
Guard vessels, and critical port infrastructure from sabotage, 
subversive act, or other threats. This rule does not apply to any 
vessel engaged in the enforcement of these security zones, other law 
enforcement, port security, or search and rescue activity. This rule 
would prohibit entry into or movement within these security zones 
without authorization from the Captain of the Port of New York.

DATES: Comments and related material must reach the Coast Guard on or 
before May 16, 2005.

ADDRESSES: You may mail comments and related material to Lieutenant 
Junior Grade Scott White, Coast Guard Activities New York Waterways 
Management Division, 212 Coast Guard Drive, room 310, Staten Island, NY 
10301. Coast Guard Activities New York Waterways Management Division 
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 Coast Guard 
Activities New York Waterways Management Division between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Scott White, 
Waterways Management Division, Coast Guard Activities New York at (718) 
354-4228.

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 [CGD01-05-
025], 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 
than8\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 Coast Guard Activities New York 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

    Following the terrorist attacks in New York on September 11, 2001, 
the Ports of New York and New Jersey have been in a heightened state of 
threat awareness and port security readiness. Highly publicized events 
that occur in concentrated areas within the greater New York 
Metropolitan region have resulted in the elevation of Maritime Security 
(MARSEC) conditions and an increase in port security measures to abate 
credible and potential threats against the maritime community and 
public at large.
    Fleet Week 2005 will bring a large composition of U.S. and foreign 
military vessels to the Port of New York for the purpose of promoting 
military and naval heritage. The event allows for public access to 
these vessels as they are moored at the port facilities of the New York 
City Passenger Ship Terminal, Intrepid Museum, and Stapleton Homeport 
Pier. Such a high profile event with large a large number of people 
could present a potential target for terrorist or subversive actions.
    The establishment of these security zones is necessary to protect 
participating vessels, regional infrastructure, and the public from 
waterborne attack and subversive activity.

Discussion of Proposed Rule

    The Coast Guard is proposing the establishment of the following 
temporary security zones: all waters of Upper New York Bay within 
approximately 400 yards of the Stapleton Homeport Pier in Staten 
Island, NY; all waters of the Hudson River within approximately 400 
yards of Piers 86, 88, 90, and 92 at the New York City Passenger Ship 
Terminal and Intrepid Museum, in Manhattan, NY; and a 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 2005 Fleet Week Parade of 
Ships between Ambrose Light (LLNR 720) and the George Washington Bridge 
(river mile 11.0) on the Hudson River. Additionally, these temporary 
moving security zones would be effective during any time that a 
participating Fleet Week 2005 vessel is underway, including, but not 
limited to, outbound transits, shifting of mooring or anchorage 
locations, and special dignitary voyages.
    Hence, with this proposed rule, no vessel or person would be 
allowed within 500 yards of any Fleet Week 2005 participating vessel 
unless authorized by the Captain of the Port or the designated on-
scene-patrol personnel. These personnel comprise commissioned, warrant, 
and petty officers of the Coast Guard.
    The Captain of the Port would also authorize other Federal, State, 
or local law enforcement vessels to enter the security zones that would 
be established by this rule. The Captain of the Port will seek the 
enforcement assistance of other Federal, State, or local law 
enforcement vessels to assist in ensuring the enforcement of this rule.
    Upon being hailed by the U.S. Coast Guard or other designated on-
scene patrol personnel, Federal, State, or local law enforcement vessel 
by siren, radio, flashing light, or other means, the operator of a 
vessel must proceed as directed.
    The zones described above are necessary to protect the Naval, 
foreign flagged, and Coast Guard vessels participating in Fleet Week 
2005, 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.
    This proposed rule would not create a security zone around vessels 
engaged in the enforcement of these security zones, other law 
enforcement, port security, or search and rescue activity. The Captain 
of the Port does not expect

[[Page 20494]]

this rule to interfere with the transit of any vessels through the 
waterways adjacent to each facility.
    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 must 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.
    Any violation of any security zone (established herein) is 
punishable by, among others, civil penalties where each day of a 
continuing violation is a separate violation, criminal penalties, 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.

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 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 conclusion 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 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 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 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 Junior 
Grade Scott White, Waterways Management Division, Coast Guard 
Activities New York at (718) 354-4228. The Coast Guard will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of the Coast Guard.

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 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 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

[[Page 20495]]

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

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.lD, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that there are no factors in this 
case that would limit the use of a categorical exclusion under section 
2.B.2 of the Instruction. Therefore, we believe that this rule should 
be categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Instruction, from further environmental documentation. A preliminary 
``Environmental Analysis Check List'' is available in the docket where 
indicated under ADDRESSES. Comments on this section will be considered 
before we make the final decision on whether the rule should be 
categorically excluded from further environmental review.

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, 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.

    2. From 8 a.m., May 25, 2005, to 8 p.m. June 1, 2005, 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) Location. 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. 
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[min]00.6[sec] N, 074[deg]04[min]22.3[sec] W, thence to 
40[deg]37[min]51.1[sec] N, 074[deg]03[min]46.5[sec] W, thence to 
40[deg]37[min]27.5[sec] N, 074[deg]03[min]54.5[sec] W, thence to 
40[deg]37[min]33.7[sec] N, 074[deg]04[min]20.8[sec] W, (NAD 1983) 
thence along the shoreline to the point of origin.
    (2) New York City Passenger Ship Terminal and Intrepid Museum, 
Hudson River, Manhattan, NY. 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[min]51.3[sec] N, 074[deg]00[min]30.2[sec] W, thence to 
40[deg]46[min]27.7[sec] N, 074[deg]00[min]04.9[sec] W, thence to the 
southeast corner of Pier 97 where it intersects the seawall.
    (3) 2005 Fleet Week Parade of Ships and Navigational Periods, Port 
of New York/New Jersey. All waters of the Port of New York/New Jersey 
within a 500-yard radius of each vessel participating in 2005 Fleet 
Week events while underway between Ambrose Light (LLNR 720) and the 
George Washington Bridge (river mile 11.0) on the Hudson River.
    (b) Enforcement period. This section will be enforced from 8 a.m. 
on Wednesday, May 25, 2005, until 8 p.m. on Wednesday, June 1, 2005.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.33 apply.
    (2) No vessel or person is allowed within 500 yards of a vessel 
protected by the security zone described in Paragraph (a)(3), unless 
authorized by the Captain of the Port or the designated on-scene-patrol 
personnel.
    (3) All persons and vessels must 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, as well as all uniformed Federal, State, 
and local law enforcement personnel assisting with event patrol. Upon 
being hailed by a U.S. Coast Guard or other Federal, State, or local 
law enforcement vessel by siren, radio, flashing light, or other means, 
the operator of a vessel must proceed as directed.

    Dated: April 5, 2005.
Glenn A. Wiltshire,
Captain, U.S. Coast Guard, Captain of the Port, New York.
[FR Doc. 05-7902 Filed 4-19-05; 8:45 am]
BILLING CODE 4910-15-P