[Federal Register Volume 83, Number 124 (Wednesday, June 27, 2018)]
[Rules and Regulations]
[Pages 30041-30044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13863]


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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: Final rule.

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SUMMARY: The Coast Guard is modifying the safety and security zone 
surrounding the bridge between Liberty State Park and Ellis Island in 
order to increase navigational safety in New York Harbor. This 
modification authorizes certain vessels to transit underneath the 
bridge, reducing vessel congestion in the adjacent Anchorage Channel. 
All other persons and vessels continue to be prohibited from accessing 
the zone unless authorized by the Captain of the Port New York or a 
designated representative.

DATES: This rule is effective on June 27, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0799 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
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
NPS National Park Service

II. Background Information and Regulatory History

    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 safety and 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 
safety and 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 safety and security zone. As a result, a 
public meeting was unnecessary and the 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 safety and security zone around the bridge between Liberty 
State Park and Ellis Island. In response to public requests, the 
comment period was reopened for an additional 60 day period on February 
14, 2017 (82 FR 10558). We received 125 comments

[[Page 30042]]

regarding the advance notice of proposed rulemaking. Out of the 125 
comments received, 123 comments were in support of modifying the 
existing safety and security zone around the bridge between Liberty 
State Park and Ellis Island, almost all of which emphasized improving 
navigation safety. The sole comment opposing modification of the zone, 
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 safety and 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.
    In response to the comments received on the above mentioned ANPRM, 
on April 20, 2018, 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 (83 FR 17513). The NPRM solicited public 
comments on our proposed regulatory action related to the safety and 
security zone modification. During the comment period that ended May 
21, 2018, we received 40 comments.
    Under 5 U.S.C. 553(d)(1), the Coast Guard finds that an exception 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. This safety and security zone 
modification allows greater access to a previously restricted area. 
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 lessens 
the regulatory burden on these vessels by allowing transit through the 
safety and security zone without needing to seek prior COTP permission. 
As this rule relieves a restriction, the Coast Guard finds that 
delaying the effective date of this rule is unnecessary.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP New York has determined that the vessel congestion in 
the Anchorage Channel presents a hazard to mariners within New York 
Harbor. The purpose of this safety and security zone modification is to 
increase navigational safety within New York Harbor. By permitting 
greater access for human powered vessels to transit underneath the 
bridge between Ellis Island and Liberty State Park, the vessel 
congestion in the adjacent Anchorage Channel will be reduced.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received 40 comments on our NPRM published April 
20, 2018. Of the 40 comments received, 39 were in support of modifying 
the existing safety and security zone to allow transit underneath the 
Ellis Island Bridge, stating navigational safety will improve. The sole 
neutral comment addressed the United States' trade relations with China 
and is outside the purview of this rulemaking.
    We received 25 comments recommending the 16 foot vessel length 
either be eliminated or increased. 10 comments noted that many kayaks 
are greater than 16 feet in length, with some of these comments 
specifically noting that many sea kayaks are 18 feet or longer. 4 
comments discussed that many canoes or row gigs navigating this area 
are longer than 16 feet, ranging between 25 to 35 feet. We received 
other comments stating human powered vessels in New York Harbor can 
exceed 45 feet. Based on these comments, we are changing the regulatory 
text of the NPRM to reflect that human powered vessels with a length 
equal to or less than 25 feet may transit the zone. Increasing the 
permissible length to equal to or less than 25 feet balances the need 
for ensuring navigational safety and providing adequate security for 
Ellis and Liberty Islands. In addition, mariners with human powered 
vessels greater than 25 feet in length may request COTP permission to 
transit the zone and these requests will be evaluated on a case-by-case 
basis.
    We received 15 comments regarding access to the safety and security 
zone during weekdays and throughout the year. These comments noted that 
the congestion in the Anchorage Channel poses a navigational safety 
concern to human powered vessels regardless of the day of the week or 
season of the year. Commenters further stated that many human powered 
vessel trips are based upon favorable tides and weather.
    Due to agency resource constraints, pre-approved access to the zone 
cannot be extended to encompass all weekdays without compromising the 
required security posture necessary to protect these national symbols. 
Similarly, extending pre-approved access beyond the summer boating 
season poses an unacceptable risk due to the lack of sufficient 
resources to adequately maintain the required security presence such 
access demands. Vessel congestion in New York Harbor is greatest on 
weekend days during the summer months. Limiting pre-approval to certain 
vessels transiting the zone on weekends during the peak summer boating 
season, will help ensure adequate security for Ellis and Liberty 
Islands and well as increase navigational safety. Mariners may request 
COTP authorization to access the zone on weekdays and throughout the 
year and each request will be evaluated on a case-by-case basis.
    We received 11 comments requesting an expansion of the time of day 
vessels are permitted to access the zone. Commenters requested vessels 
be permitted to transit from sunrise to sunset, one hour before sunrise 
and one hour after sunset, and 24 hour access to the zone. Commenters 
noted that many human powered vessel trips are based upon favorable 
tides, which do not necessary align with the times specified in the 
NRPM. The Coast Guard believes that security concerns warrant the need 
to limit the duration of time that transit is permissible. Visibility 
is greatly reduced outside of the times specified in the NPRM. Where 
there is reduced visibility the security threat is enhanced and 
necessitates limiting the pre-approved access of the zone during 
daylight hours. Also, due to Coast Guard and NPS resource constraints, 
adequate security is unable to be provided at all times. The most 
congested time of day in New York harbor is during the daytime. 
Providing pre-approved COTP access to the zone during the busiest time 
of day allows the Coast Guard to balance the navigational safety 
concerns faced by human powered vessel users with the security concerns 
of these historical landmarks.
    We received 3 comments recommending there be a way to contact the 
agencies through use of a VHF radio, in addition to the phone number 
contact. The Coast Guard is changing the regulatory text of the NPRM to 
add VHF Channel 13 as an additional notification method.
    Additional changes to the regulatory text between the NPRM and the 
Final Rule are incorporated below to improve understanding of the 
modification imposed by this rule. Based on the comments addressing 
concerns with the restriction on vessel length, weekday transit, and 
duration of time that transit is permissible, 33 CFR 165.169(b) 
provides that any person or vessel may request COTP authorization to 
access the zone throughout the year and each request will be evaluated 
on a case-by-case basis. The text in the NPRM referred to the zone as a 
``security

[[Page 30043]]

zone.'' Per 33 CFR 165.169, it remains both a safety and security zone. 
Both the preamble and the regulatory text now reflect this fact.
    This rule modifies an existing safety and security zone. The 
modification allows certain vessels to transit underneath the Ellis 
Island Bridge on weekends and Federally Observed Holidays on a Friday 
or Monday, 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 vessels with a length equal to or less than 25 feet 
and (c) meet the horizontal and vertical navigational bridge 
clearances. This rule allows for pre-approved COTP permission to 
transit the zone when meeting the conditions listed in the regulatory 
text. In accordance with 33 CFR 165.169(b), any person or vessel may 
still request COTP permission to access the Ellis Island Bridge 
security zone at any time and each request will be considered on a 
case-by-case basis. The modified regulatory text is at the end of this 
document.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize 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 rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule 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 modification 
allowing increased access to a previously restricted area. While the 
current regulation allows vessels to transit under the Ellis Island 
Bridge with COTP authorization, this modification grants standing COTP 
approval for certain vessels to transit underneath the bridge during 
specific time periods. Thus, this modification lessens the regulatory 
burden on these vessels by allowing transit through the security zone 
without needing to seek prior COTP permission. Moreover, the Coast 
Guard will make the boating public aware of this modification through 
publication in the Local Notice to Mariners, enhancing public notice of 
the reduction of the regulatory burden on certain vessels.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider 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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
security zone may be small entities, for the reasons stated in section 
V.A. above, this rule will not have a significant economic impact on 
any vessel owner or operator.
    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 rule. If the rule will 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.
    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 
Enforcement Ombudsman and the Regional Small Business 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). 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.

C. Collection of Information

    This rule will 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 rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive 
Order13132.
    Also, 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. If 
you believe this 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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.1D, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969(42 U.S.C. 4321-4370f), and have determined 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 rule modifies a 
security zone surrounding the bridge between Liberty State Park and 
Ellis Island in order to permit greater vessel access. It is 
categorically excluded from

[[Page 30044]]

further review under paragraph L60(b) of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental 
Consideration supporting this determination is available in the docket 
where indicated under ADDRESSES.

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.

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 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. 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:


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. In addition to any person or vessel 
authorized pursuant to paragraph (b) of this section, 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 equal to or less than 
twenty five 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 or 
VHF CH 13 regarding intentions of passage prior to entering the safety 
and security zone and transiting under the Ellis Island Bridge.
    (D) Route: Transits through the safety and 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 safety and 
security zone.
    (iii) Enforcement period. The safety and security zone described in 
this subsection is effective at all times. Although certain vessels 
have permission to enter the safety and security zone to transit under 
the Ellis Island Bridge subject to the conditions outlined in 
paragraphs (a)(4)(ii)(A)-(E) of this section, the safety and security 
zone is in effect permanently and can be enforced at any time. When 
deemed necessary the COTP may rescind the permission granted in 
paragraphs (a)(4)(ii)(A)-(E) of this section for any period of time.
* * * * *

    Dated: June 4, 2018.
M. H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2018-13863 Filed 6-26-18; 8:45 am]
 BILLING CODE 9110-04-P