02-20625. Regulated Navigation Area and Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary final rule; change in effective period.

SUMMARY:

The Coast Guard is extending the effective period of the Regulated Navigation Area (RNA) and Safety and Security Zones published October 10, 2001. This change will extend the effective period of the temporary final rule until December 31, 2002 to allow additional time to develop a permanent rule. This rule will continue to prohibit vessels from entering certain areas of the port and impose restrictions on vessel operations in other areas.

DATES:

§§ 165.T01-165 and 165.T01-166 are amended effective August 15, 2002, and remain in effect through December 31, 2002.

ADDRESSES:

Documents as indicated in this preamble are available for inspection and copying at Coast Guard Activities New York, 212 Coast Guard Drive, room 204, Staten Island, New York 10305, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander E. Morton, Waterways Oversight Branch, Coast Guard Activities New York [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On October 10, 2001, we published a temporary final rule (TFR) entitled “Regulated Navigation Area and Safety and Security Zones; New York Marine Inspection Zone and Captain of the Port Zone” in the Federal Register (66 FR 51558-51562). The effective period for this rule was from September 28, 2001, through April 8, 2002. Although the rule was published without advance notice of proposed rulemaking, an opportunity for public comment was provided. The comment period closed on December 10, 2001. The Coast Guard received no letters commenting on the temporary rule. No public hearing was requested, and none was held.

Subsequently, the effective period of the rule was extended to August 15, 2002 (67 FR 16016-16018, April 4, 2002). We anticipated that the extension would provide sufficient time to develop permanent security zones within the port by informal rulemaking. Agency development of a permanent rule required more time than had been estimated and prevented informal notice and comment rulemaking within the period originally forecast.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3), the Coast Guard finds that good cause exists for not publishing an NPRM. The original TFR was urgently required to facilitate emergency services responding to terrorist attacks upon the World Trade Center in Manhattan, NY, and to prevent future terrorist strikes within and adjacent to the Port of New York/New Jersey. Those security considerations persist. We have determined that the public interest necessitates continued security regulations within the port while the Coast Guard engages in informal rulemaking.

We consider additional notice and comment unnecessary for the extension of this temporary rule. The regulation imposes minimal, if any, burden on the maritime public as evidenced by the lack of response to the previous solicitation for comments. It does not interfere with the needs of navigation within the port; rather, it simply prevents vessels from entering relatively small areas of water adjacent to sensitive facilities. Moreover, as part of an ongoing assessment of the port security environment, the Captain of the Port relaxes or suspends enforcement of some of the restrictions permitted by the regulation. Any mitigation in the enforcement posture is broadcast to ensure widest dissemination to the maritime public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. This revision preserves the status quo within the Port while permanent rules are developed. The present TFR has not been burdensome on the maritime public. The public was invited to comment upon or suggest modifications to the scope of the existing TFR by submitting written comments within 60 days of its publication in the Federal Register. None were received. Any delay in the effective date of this regulation is unnecessary and contrary to the public interest.

Background and Purpose

Terrorist attacks against the World Trade Center in Manhattan, New York on September 11, 2001 inflicted catastrophic human casualties and property damage. Federal, state and local personnel are engaged in ongoing efforts to secure other potential terrorist targets from attack. The Coast Guard established RNAs and safety and security zones within defined areas of water in order to facilitate emergency response and rescue activities, protect human life, and safeguard vessels and waterfront facilities from sabotage or terrorist attacks.

These regulations were designed to provide the Captain of the Port of New York with maximum flexibility to respond to emergent threats and dangerous conditions. When less stringent security measures are required, the Captain of the Port communicates relaxed enforcement policies to the public. As a result, the full scope of these regulations is rarely imposed. Nevertheless, the flexibility to utilize those measures permitted by the TFR and required by the circumstances is vital to ensure port security in the present security environment.

The temporary rule is only effective until August 15, 2002. The Coast Guard is extending the effective date of this rule until December 31, 2002, to allow the establishment of permanent safety and security zones by notice and comment rulemaking.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12886, 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 Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This finding is based on the sizes of the zones are the minimum necessary to provide adequate protection for the public, vessels, and vessel crews. Any vessels seeking entry into or movement within the safety and security zones must request permission from the Captain of the Port or his authorized patrol representative. Any hardships experienced by persons or vessels are considered minimal compared to the national interest protecting the public, vessels, and vessel crews from the further devastating consequences of the aforementioned acts of terrorism, and from potential future sabotage or other subversive acts, accidents, or other causes of a similar nature.

The Coast Guard will be publishing a NPRM to establish permanent safety and security zones that are temporarily effective under this rule.

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.

For the reasons addressed under the Regulatory Evaluation above, the Coast Guard expects the impact of this regulation to be minimal and certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this final rule will not have a significant economic impact on a substantial number of small entities. Maritime advisories will be initiated by normal methods and means and will be widely available to users of the area.

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. 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 Lieutenant Commander E. Morton, Waterways Oversight Branch, Coast Guard Activities New York [phone].

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).

Collection of Information

This rule calls for no new collection of information requirements under the Paperwork Reduction Act (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

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.

Environment

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security Measures
• Waterways

Regulation

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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.

2. Revise temporary § 165.T01-165(c) to read as follows:

§ 165.T01-165

Regulated Navigation Area: New York Marine Inspection Zone and Captain of the Port Zone.

* * * * *

(c) Effective dates. This section is effective from September 28, 2001 through December 31, 2002.

* * * * *

3. Revise temporary § 165.T01-166(b) to read as follows:

§ 165.T01-166

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

* * * * *

(b) Effective dates. This section is effective from September 28, 2001 through December 31, 2002.

* * * * *

Dated: August 8, 2002.

V.S. Crea,

Rear Admiral, Coast Guard, Commander, First Coast Guard District.