[Federal Register: June 15, 2004 (Volume 69, Number 114)]
[Rules and Regulations]
[Page 33304-33307]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn04-9]
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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]
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