04-13470. Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

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.

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 [phone].

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°21′29.9″ N, 073°44′41.0″ W, thence to 40°21′04.5″ N, 073°45′31.4″ W, thence to 40°15′28.3″ N, 073°44′13.8″ W, thence to 40°15′35.4″ N, 073°43′29.8″ W, thence to 40°19′21.2″ N, 073°42′53.0″ 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 § 165.169(a)(12) instead of § 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 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

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

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.

2. In § 165.169, add a new paragraph (a)(12), revise paragraph (b), and add new paragraph (c) to read as follows:

§ 165.169

Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone

(a) * * *

(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°21′29.9″ N, 073°44′41.0″ W, thence to 40°21′04.5″ N, 073°45′31.4″ W, thence to 40°15′28.3″ N, 073°44′13.8″ W, thence to 40°15′35.4″ N, 073°43′29.8″ W, thence to 40°19′21.2″ N, 073°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.