[Federal Register Volume 83, Number 77 (Friday, April 20, 2018)]
[Proposed Rules]
[Pages 17513-17516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08323]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2016-0799]
RIN 1625-AA87
Safety and Security Zones; New York Marine Inspection and Captain
of the Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes to modify the security zone
surrounding the bridge between Liberty State Park and Ellis Island in
order to increase navigational safety in New York Harbor. This security
zone modification would allow certain vessels to transit underneath the
bridge, reducing congestion in the adjacent Anchorage Channel. We
invite your comments on this proposed rulemaking.
DATES: Comments and related material must be received by the Coast
Guard on or before May 21, 2018.
[[Page 17514]]
ADDRESSES: You may submit comments identified by docket number USCG-
2016-0799 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email MST1 Kristina Pundt, Waterways
Management at U.S. Coast Guard Sector New York, telephone 718-354-4352,
email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
ANPRM Advance notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
COTP Captain of the Port
II. Background, Purpose, and Legal Basis
On November 27, 2002, the Coast Guard published a NPRM entitled,
``Safety and Security Zones; New York Marine Inspection and Captain of
the Port Zone'' in the Federal Register (67 FR 70892). The NPRM
proposed to establish a permanent safety and security zone encompassing
all waters within 150 yards of Liberty Island, Ellis Island, and the
bridge between Liberty State Park and Ellis Island. We received no
comments on the proposed rule. No public hearing was requested and none
was held. The current 150-yard permanent security zone around the
bridge between Liberty State Park and Ellis Island became effective in
January 2003 as enacted by a final rule entitled, ``Safety and Security
Zones; New York Marine Inspection Zone and Captain of the Port Zone''
published in the Federal Register (68 FR 2886, January 22, 2003).
On May 6, 2008, the Coast Guard published a NPRM entitled, ``Safety
and Security Zones; New York Marine Inspection Zone and Captain of the
Port'' in the Federal Register (73 FR 24889). The NPRM proposed to
modify several aspects of the permanent safety and security zone
regulations within the New York Captain of the Port Zone. We received
15 comments regarding the proposed rule. A public meeting was requested
to discuss the proposed expansion of the Liberty and Ellis Island
security zone to include all waters within 400 yards of these two
islands and the bridge between Liberty State Park and Ellis Island. On
February 12, 2009, the Coast Guard published a final rule entitled,
``Safety and Security Zones New York Marine Inspection Zone and Captain
of the Port Zone'' in the Federal Register (74 FR 7184). However, based
on the comments received, the Coast Guard did not expand the Liberty
and Ellis Island security zone. As a result, a public meeting was
unnecessary and the security zone remained 150 yards.
On November 3, 2016, the Coast Guard published an ANPRM entitled,
``Safety and Security Zones; New York Marine Inspection and Captain of
the Port Zone'' in the Federal Register (81 FR 76545). The ANPRM
solicited public comments on a potential rulemaking to modify the
existing security zone around the bridge between Liberty State Park and
Ellis Island. We received 125 comments regarding the advance notice of
proposed rulemaking. Out of the 125 comments received, 123 comments
were in support of modifying the existing security zone around the
bridge between Liberty State Park and Ellis Island, almost all of which
emphasized improving navigation safety. The opposed comment, provided
by the National Park Service, expressed security concerns regarding
Ellis and Liberty Islands due to their historical symbolism. The
singular neutral comment received was unclear as to the commenter's
view on the proposed security zone modification. The comment addressed
the federal job hiring process and stated that all security zones
should be eliminated, both of which are outside the purview of this
rulemaking.
The purpose of this rulemaking is to modify the existing security
zone to allow certain vessels to transit underneath the bridge between
Liberty State Park and Ellis Island. This security zone modification
will increase the navigational safety within New York Harbor by
reducing congestion in the adjacent Anchorage Channel. The Coast Guard
proposes this rulemaking under authority in 33 U.S.C. 1231.
III. Discussion of Proposed Rule
The COTP proposes to modify the existing security zone around
Liberty Island and Ellis Island and the bridge between Ellis Island and
Liberty State Park. This does not relinquish the COTP authority to
enforce the full 150 yard security zone around the bridge. Rather, the
modification would allow certain vessels to transit underneath the
Ellis Island Bridge on weekends and Federally Observed Holidays,
beginning on Memorial Day Weekend through October 1, between one hour
after sunrise and one hour before sunset. Vessels making this transit
(a) must be able to safely navigate underneath the bridge, (b) be human
powered watercraft and (c) meet the horizontal and vertical
navigational bridge clearances. The proposed regulatory text appears at
the end of this document.
IV. Regulatory Analyses
The Coast Guard developed this proposed rule after considering
numerous statutes and Executive Orders related to rulemaking. Below is
a summary of our analyses based on a number of these statutes and
Executive Orders and we discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This NPRM has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the NPRM has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the proposed
modification and will allow greater access to a previously restricted
area. Prior to the establishment of the security zone in 2003, small
watercraft routinely transited underneath the Ellis Island Bridge.
Since the enactment of the 2003 security zone, these craft have been
diverted into the busy navigation channel east of Ellis Island.
Although the current regulation allows vessels to transit under the
Ellis Island Bridge with COTP permission, this modification grants
standing COTP approval for certain vessels to transit underneath the
bridge during specific time periods. Thus, this modification would
lessen the regulatory burden on these vessels by allowing transit
through the security zone without needing to seek prior COTP
permission. Moreover, the Coast Guard would make the boating public
aware of this modification through publication in the Local Notice to
Mariners.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider
[[Page 17515]]
the potential impact of regulations on small entities during
rulemaking. 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.
While some owners or operators of vessels intending to transit the
security zone may be small entities, for the reasons stated in section
IV.A. above this proposed rule would not have a significant economic
impact on any vessel owner or operator.
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.
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. 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 the person listed in the FOR FURTHER INFORMATION CONTACT
section. The Coast Guard will not retaliate against small entities that
question or complain about this proposed rule or any policy or action
of the Coast Guard.
C. Collection of Information
This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this proposed rule under that Order and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, 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. If
you believe this proposed rule has implications for federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
E. 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 (adjusted for
inflation) 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.
F. Environment
We have analyzed this proposed rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
a preliminary determination that this action is one of a category of
actions that do not individually or cumulatively have a significant
effect on the human environment. This proposed rule involves the
modification of a security zone surrounding the bridge between Liberty
State Park and Ellis Island. Normally such actions are categorically
excluded from further review under paragraph L60(b) of Appendix A,
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary
Record of Environmental Consideration supporting this determination is
available in the docket where indicated under ADDRESSES. We seek any
comments or information that may lead to the discovery of a significant
environmental impact from this proposed rule.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.
V. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit http://www.regulations.gov/privacyNotice.
Documents mentioned in this NPRM as being available in the docket,
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.
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.
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, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1
0
2. In Sec. 165.169, revise paragraph (a)(4) to read as follows:
[[Page 17516]]
Sec. 165.169 Safety and Security Zones: New York Marine Inspection
Zone and Captain of the Port Zone.
(a) * * *
(4) Liberty and Ellis Islands. (i) Location. All waters within 150
yards of Liberty Island and Ellis Island, and the Ellis Island Bridge.
(ii) Ellis Island Bridge. Vessels may transit underneath the Ellis
Island Bridge, subject to the following conditions:
(A) Dates/Times: On weekends only, to include Federally Observed
Holidays on a Friday or Monday, from Memorial Day Weekend through
October 1 each year, between one hour after sunrise and one hour before
sunset.
(B) Vessel types: Human powered vessels with a maximum length of
sixteen feet. Human powered vessels must be able to safely navigate
under the bridge.
(C) Notification: Human powered vessels desiring to transit shall
contact the United States Park Police Command Center at 212-363-3260
regarding intentions of passage prior to entering the security zone and
transiting under the Ellis Island Bridge.
(D) Route: Transits through the security zone and under the bridge
shall occur only at the designated route marked with lights and
signage.
(E) Passage: Vessels transiting under the Ellis Island Bridge shall
make expeditious passage and not stop or loiter within the security
zone.
(iii) Enforcement period. The security zone described in this
subsection is effective at all times. Although certain vessels have
permission to enter the security zone to transit under the Ellis Island
Bridge subject to the conditions outlined in the preceding paragraphs
(ii)(A)-(E), the security zone is in effect permanently and can be
enforced at any time. When deemed necessary the COTP may rescind the
permission granted in the preceding paragraphs (ii)(A)-(E) for any
period of time.
* * * * *
Dated: April 2, 2018.
M.H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2018-08323 Filed 4-19-18; 8:45 am]
BILLING CODE 9110-04-P