[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]


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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.

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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