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6 May 2008
[Federal Register: May 6, 2008 (Volume 73, Number 88)]
[Proposed Rules]
[Page 24889-24899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my08-25]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2007-0074]
RIN 1625-AA87
Safety and Security Zones: New York Marine Inspection Zone 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 several aspects of the
permanent safety and security zones within the New York Captain of the
Port Zone. This action is necessary to consolidate, clarify, and
otherwise modify safety and security zone regulations to eliminate
unnecessary regulations and better meet the safety and security needs
of the New York and New Jersey port community. This action would modify
existing safety and security zones, consolidate and modify safety and
security zones currently found in separate regulations, and remove
certain safety and security zones.
DATES: Comments and related material must reach the Docket Management
Facility on or before July 7, 2008. Comments sent to the Office of
Management and Budget (OMB) on collection of information must reach OMB
on or before July 7, 2008.
ADDRESSES: You may submit comments identified by Coast Guard docket
number USCG-2007-0074 to the Docket Management Facility at the U.S.
Department of Transportation. To avoid duplication, please use only one
of the following methods:
(1) Online: http://www.regulations.gov.
(2) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
(3) Hand delivery: Room W12-140 on the Ground Floor of the West
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
(4) Fax: 202-493-2251.
You must also send comments on collection of information to the
Office of Information and Regulatory Affairs, Office of Management and
Budget. To ensure that the comments are received on time, the preferred
method is by e-mail at nlesser@omb.eop.gov or fax at 202-395-6566. An
alternate, though slower, method is by U.S. mail to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, ATTN: Desk Officer, U.S.
Coast Guard.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call Lieutenant Commander Mike McBrady, Waterways Management
Division, Coast Guard Sector New York (718) 354-2353. If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone (202) 366-
9826.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information that you have provided. We have an agreement with
the Department of Transportation (DOT) to use the Docket Management
Facility. Please see DOT's ``Privacy Act'' paragraph below.
Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2007-0074), indicate the specific section of this
document to which each comment applies, and give the reason for each
comment. We recommend that you include your name and a mailing address,
an e-mail address, or a phone number in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means, mail,
fax, or delivery to the Docket Management Facility at the address under
ADDRESSES; but please submit your comments and material by only one
means. If you submit them by mail or delivery, please submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov at
any time. Enter the docket number for this rulemaking (USCG-2007-0074)
in the Search box, and click ``Go >>.'' You may also visit either the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays; or the Waterways Management Division, Coast Guard Sector New
York, 212 Coast Guard Drive, Staten Island, NY 10305 between 9 a.m. and
3 p.m., Monday through Friday, except Federal holidays.
Privacy Act
Anyone can search the electronic form of all comments received into
any of our dockets by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review the Department of
Transportation's Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477), or you may visit http://
DocketsInfo.dot.gov.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the Docket Management Facility at the address under
ADDRESSES explaining why one would be beneficial. If we determine that
one would aid this rulemaking, we will hold one at a time and place
announced by a later notice in the Federal Register.
Background and Purpose
On September 11, 2001, three commercial aircraft were hijacked and
flown into the World Trade Center in New York City, and the Pentagon,
inflicting catastrophic human casualties and property damage. National
security
[[Page 24890]]
and intelligence officials warn that future terrorist attacks are
likely. The President has continued the national emergencies he
declared following the September 11, 2001 terrorist attacks. See,
Continuation of the National Emergency with Respect to Certain
Terrorist Attacks (72 FR 52465, September 13, 2007); Continuation of
the National Emergency With Respect To Persons Who Commit, Threaten To
Commit, Or Support Terrorism (72 FR 54205, September 21, 2007). The
President also has found pursuant to law, including the Magnuson Act
(50 U.S.C. 191 et seq.), that the security of the United States is
endangered by disturbances in international relations that have existed
since the 2001 terrorist attacks and such disturbances continue to
endanger such relations. Executive Order 13273 of August 21, 2002,
Further Amending Executive Order 10173, as Amended, Prescribing
Regulations Relating to the Safeguarding of Vessels, Harbors, Ports,
and Waterfront Facilities of the United States (67 FR 56215, September
3, 2002).
Following the September 11th attacks, we published a temporary
final rule (66 FR 51558, October 10, 2001) that established a temporary
regulated navigation area, and safety and security zones in the New
York Marine Inspection and Captain of the Port New York Zones. These
measures were taken to safeguard human life, vessels and waterfront
facilities from sabotage or terrorist acts. That temporary final rule
was subsequently revised (67 FR 16016, April 4, 2002; 67 FR 53310,
August 15, 2002) to extend its effective period through December 31,
2002.
On November 27, 2002, 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 (67 FR
70892). The NPRM proposed to revise safety and security zones around
designated vessels to include specific regulations for Liquefied
Hazardous Gas (LHG) vessels and Designated Vessels and to establish
Safety and Security Zones at Indian Point Nuclear Power Station, U.S.
Coast Guard Cutters and Shore Facilities, commercial waterfront
facilities, Liberty and Ellis Islands, bridge piers and abutments,
overhead power cable towers, tunnel ventilator and the New York City
Passenger Ship Terminal, Hudson River, NY. We received no letters
commenting on the proposed rule. No public hearing was requested and
none was held. On January 22, 2003, we published a final rule entitled
``Safety and Security Zones; New York Marine Inspection Zone and
Captain of the Port Zone'' in the Federal Register (68 FR 2886). That
rule established permanent safety and security zones at the locations
above.
The Coast Guard (USCG) proposes to make 11 distinct changes to
current safety and security zone regulations in 33 CFR part 165 to
improve maritime security and reduce unnecessary burdens imposed by
current security zones.
Disestablishment of 33 CFR 165.160: Safety and security zones
around LHG Vessels, LHG Facilities, and Designated Vessels are
currently codified in 33 CFR 165.160. This proposed rule would revise
and relocate each of these Sec. 165.160 provisions to a single New
York Marine Inspection Zone and Captain of the Port safety and security
zone regulation found at 33 CFR 165.169, rendering the current
regulations found at 33 CFR 165.160 unnecessary. This regulatory change
is proposed to consolidate similar regulations for the benefit of
enforcement authorities and the regulated public.
Commercial Waterfront Facilities: As discussed earlier in this
preamble, the safety and security zones around commercial waterfront
facilities were made permanent by publication of a final rule in the
Federal Register on January 22, 2003. This measure provides safety and
security zones for, ``* * * all piers, wharves, docks and similar
structures to which barge, ferry or other commercial vessels may be
secured * * *'' (33 CFR 165.169(a) (3)) These measures were deemed
appropriate based on the threat and risk analyses available to the
Captain of the Port at the time. The notice of proposed rulemaking for
that regulatory action was published in the Federal Register on
November 27, 2002 (67 FR 70892), in preparation for the expiration of
the temporary safety and security zone regulations on December 31,
2002.
On November 25, 2002, President George W. Bush signed into effect
Public Law 107-295, the Maritime Transportation Security Act (MTSA) of
2002, which required the Secretary of the Department in which the Coast
Guard is operating to issue an interim rule as a temporary regulation
to implement the Port Security Section of the Act. To meet this
requirement, on July 1, 2003, the Coast Guard published six interim
rules in the Federal Register (68 FR 39240, 39284, 39292, 39315, 39338,
and 39353). To determine the applicability of these regulations to
waterfront facilities, the Coast Guard conducted an exhaustive, multi-
tiered risk analysis. The details of this assessment can be found in
the ``Applicability of National Maritime Security Initiatives'' section
of the interim rule titled ``Implementation of National Maritime
Security Initiatives'' (68 FR 39240, July 1, 2003).
On October 22, 2003 the Coast Guard published a final rule,
entitled ``Facility Security'' in the Federal Register (68 FR 60515),
establishing permanent regulations for facility security at 33 CFR part
105. These MTSA regulations included specific measures for security at
a particular group of waterfront facilities, based on the comprehensive
risk-based assessment referenced above. Section 105.200 of 33 CFR
requires owners or operators of these facilities to, among other
things, designate Facility Security Officers (FSO) for facilities,
develop Facility Security Plans (FSP) based on security assessments and
surveys, implement security measures specific to the facility's
operations, and comply with Maritime Security Levels. Additionally, 33
CFR 105.275 mandates that facilities subject to the MTSA must have the
capability to continuously monitor, among other things, the facility's
approaches on land and water, and vessels at the facility and areas
surrounding the vessels.
A large number of areas that currently fall within the definition
of Commercial Waterfront Facility under 33 CFR 165.169 and are thereby
protected by a Coast Guard safety and security zone, are areas proposed
for or currently designed to provide recreational and public waterway
access. A great variety of piers, wharves, docks, and bulkheads,
designed and utilized primarily as recreational areas are capable of
accepting commercial vessels as currently defined in regulation, even
though such operations rarely, if ever, occur. Safety and security
zones in these areas unduly restrict the general public's access, cause
confusion as to which areas are regulated, and create significant,
unwarranted enforcement burdens on Coast Guard and local law
enforcement resources. Furthermore, Resolution 05-01 of the U.S. Coast
Guard Commandant's Navigation Safety Advisory Council (NAVSAC),
contained in the September 2005 NAVSAC Meeting Summary (available
online at http://homeport.uscg.mil), recommended that the Coast Guard
conduct a review of safety and security zones to ensure modification or
removal of zones that unduly restrict commercial vessel operations or
are no longer needed following enactment of the MTSA, 2002 regulations.
For these reasons, we propose to revise the language governing
facility safety and security zones to remove the broad definition
currently contained
[[Page 24891]]
within the regulations, largely replacing it with the class of
facilities determined to require additional security measures by the
MTSA regulations developed for this purpose. This tailored class of
commercial waterfront facilities would only include those facilities
regulated by the MTSA facility security regulations codified in 33 CFR
part 105 and those facilities designated as a ``public access
facility'' under that definition in 33 CFR 101.105. For public
identification purposes, all of these facilities are required to have
signs posted along the shoreline, facing the water, indicating that
there is a 25-yard waterfront security zone surrounding the facilities.
Liberty and Ellis Islands: The current 150-yard security zones
around Liberty and Ellis Islands became effective on January 1, 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 October 1,
2003, the United States Department of the Interior's National Park
Service requested the 150-yard security zones around Liberty and Ellis
Islands, currently found in 33 CFR 165.169(a)(4), be expanded to 400
yards. Additionally, they requested that all recreational vessels and
other watercraft be prohibited from anchoring in the area surrounding
Liberty and Ellis Islands or at least be restricted to anchoring no
closer than 1,000 yards from the islands. They reported that the high
volume of boat traffic still authorized to operate in close proximity
of the two islands made it difficult to provide a secure environment
for these historic sites and the public that routinely visits them.
This request was submitted via the U.S. Park Police (USPP) who is
responsible for security at the two islands.
On November 25, 2003, the Coast Guard met representatives from the
USPP to discuss their proposal. The Coast Guard and USPP agreed upon
the following conditions for the proposed expansion of the boundary of
the safety/security zone from 150 yards to 400 yards:
Marine events that have normally been held within 400
yards of either island would be allowed to continue after the marine
event application is approved by the Captain of the Port New York.
No new marine events would be authorized without
collaborative approval of both the USCG and USPP.
The USPP would provide unclassified information regarding
their blast radius data and security information for public
dissemination.
The USPP would share technology links with the Coast Guard
Vessel Traffic Center New York to enhance security.
An additional meeting would be scheduled with annual event
sponsors and sailing schools to discuss these issues and to provide
alternative locations for their vessels and events.
On December 4, 2003, the Coast Guard met with the USPP, Manhattan
Sailing Club, Manhattan Sailing School, and the Sandy Hook Bay
Catamaran Club. The Jersey City Office of Cultural Affairs and the
Liberty World Challenge sponsor were invited but could not attend. Over
50 marine events are held each year within the proposed expanded
security zone. Six event sponsors hold most of these events and the
majority of these are sponsored by the Manhattan Yacht Club in the form
of weekly sailing regattas.
The USPP reiterated their request for the zone expansion to 400
yards due to a threat assessment conducted by the U.S. Department of
Defense's Defense Threat Reduction Agency. The analysis concluded that
an explosion from a vessel within close proximity to Liberty or Ellis
Island would result in loss of life and injury to visitors and staff on
the islands as well as severe structural damage to the Statue of
Liberty and numerous historic buildings on Ellis Island. These include
the American Family Immigration History Center containing manifests of
25 million immigrants, passengers, and crew members who entered New
York Harbor between 1892 and 1924 and 30 other remaining buildings
planned for reuse. The plan is available online at: http://
parkplanning.nps.gov/projectHome.cfm?parkID=277&projectId=18591.
Information from the Defense Threat Reduction Agency assessment is
available in the docket available at the location under ADDRESSES. The
proposed expanded security zone would greatly reduce the potential
impacts of such a blast and improve the USPP's response capability to
incursions of the security zone.
The Coast Guard and USPP agreed to the following conditions pending
establishment of the proposed expanded security zone:
Annual events would be authorized upon review, and
approval of, the sponsor's marine event application. This review would
additionally include a review of all personnel and equipment
participating within the zone using the measures for granting security
zone access at all other security zones within the Captain of the Port
Zone.
Only new events with a regional or national significance
would be authorized and only after both the Coast Guard and USPP
approve the request.
The Statue of Liberty Race, sponsored by the Sandy Hook
Bay Catamaran Club, would be required to place buoys at the site of the
current 150-yard security zone to help participants maintain a distance
of 150 yards from the Islands during the race.
At the December 4, 2003, meeting, and in a follow-up letter dated
December 8, 2003, the Manhattan Sailing Club Commodore questioned the
effectiveness of the proposed zone in a realistic threat situation. He
believed the current 150-yard security zones were to be temporary
measures and was adamantly opposed to their expansion. He stated that
the protected cove north of Ellis Island is critical to all local
sailing school operations as it provided the only waters in the harbor
out of the commercial shipping lanes with enough depth and protection
from the current. He stated that the proposed expanded zone would force
recreational vessels into the shipping channels and ``significantly
impact the quality of life'' of NYC recreational sailors. He also
stated that security measures had been reduced at the Holland Tunnel
and the AT&T Building while heavy barriers at the New York Stock
Exchange had been replaced with attractive iron railings and that there
had been no new justification to put forth any expansion of the
security zones in New York Harbor. Additionally, he asked why there is
any security zone around Ellis Island as it is not the same target
threat and does not have the same security needs.
In a subsequent follow-up letter dated December 18, 2003, the
Commodore stated that the sailing club held an emergency Board of
Directors meeting on December 15, 2003. It was the Board's opinion that
the security zones should not be increased as they had not seen any
evidence why an increase would be in the best interests of the harbor.
Along with the previously stated remarks they also stated the club had
invested more than $500,000 in their mooring barge to the north of
Ellis Island for club activities and that any expansion of the security
zone or rescinding of the Federally Designated Anchorages would make it
no longer feasible to moor their sailing barge in the cove and would
jeopardize their ability to generate income to repay construction
loans.
On December 29, 2003, the USCG responded to the two letters
submitted by the Manhattan Sailing Club. The Coast Guard stated that
the disestablishment of the current 150-yard security zones around
Liberty and Ellis
[[Page 24892]]
Islands were not feasible at that time and would likely remain in
effect for an undetermined time.
On January 14, 2004, the USCG notified the USPP, in consultation
with the First Coast Guard District Homeland Security Office, that the
USCG would propose the security zones be expanded around Liberty and
Ellis Islands out to 400-yards, with the exception that the northern
boundary of Ellis Island would only extend 250 yards, being that from a
maritime Homeland Security perspective Ellis Island is not as great a
security risk as is the Statue of Liberty. The increase of 100 yards on
the north side of Ellis Island would allow for the continued
recreational use of the Manhattan Sailing Club barge by the sailing
community.
On January 27, 2004, the USPP submitted a letter to the USCG
reiterating their request for a 400-yard security zone around Liberty
and Ellis Islands due to the Blast Analysis discussed above. The USPP
also confirmed they would notify the USCG regarding special events that
involve either Liberty or Ellis Island when additional ferries would be
in use.
On February 24, 2004, the Coast Guard received another letter from
the USPP. The letter stated that although the 400-yard zone around both
islands was preferred, the USPP felt the 250-yard zone north of Ellis
Island was acceptable and would hopefully satisfy the concerns of all
interested parties. The USPP agreed to host a public meeting with
interested members of the maritime community to discuss the security
zone expansion around Liberty and Ellis Island, and provide the Coast
Guard with final recommendations following that meeting. Subsequently,
the USPP became involved in extensive shore side security improvements
surrounding the reopening of Liberty Island to visitors, and the public
meeting concerning waterside security enhancements was postponed
pending final resolution of those more immediate security concerns.
In September 2005, presentations concerning proposed changes to the
current security zones were given to the New York/New Jersey Area
Maritime Security Committee and the Harbor Safety, Navigation and
Operations Committee. Other stakeholders in the maritime community were
also reengaged. Following a meeting between the Coast Guard, the USPP,
and the Department of Defense (DoD) Threat Reduction Agency, new
security zone dimensions were developed that balanced the security
requirements of the USPP with the desires of the maritime community.
As an outcome of these discussions, the Coast Guard proposes to
merge the existing Liberty and Ellis Island security zones, concurrent
to an expansion of the Liberty Island Zone, in order to provide the
minimum distances required to ensure the protection of these national
monuments.
NYC Passenger Ship Terminal: The NYC Passenger Ship Terminal safety
and security zones are currently codified at 33 CFR 165.169(a)(6). The
area covered by the current safety and security zone extends over 250
yards from the facility. However, this zone is only enforced when
cruise ships are present.
In the interest of protecting this high-interest facility, we
propose to revise the regulation to make this zone subject to
enforcement at all times. In so doing, and to provide for the safe use
of the waterway by all parties, the dimensions of this permanent zone
would be significantly reduced to reflect the current protection needs
of the Passenger Ship Terminal.
The proposed revision will reduce the zone size to extend up to 150
yards into the waterway. The northern boundary of the proposed zone
would move from Pier 96 south to approximately 50 yards north of Pier
92, opening a 50-yard band of waterway for public access to the south
face of Pier 94. The southern boundary would be moved north from Pier
84 to include a 25-yard perimeter south of the Intrepid Sea, Air, and
Space Museum, opening a 50-yard band of waterway for public access
north of Pier 84.
A permanently activated zone in this area is necessary, in part,
due to the varied mooring configurations of cruise ships parallel to
and inside the Passenger Ship Terminal Piers. Vessels transiting on the
Hudson River cannot always easily judge whether ships are berthed, and
thereby whether the current safety and security zone is activated and
therefore subject to enforcement. This fact also justifies the
maintenance of a zone greater than the 25-yard MTSA Facility zone,
sufficient for other cruise ship berthing facilities at times where no
cruise ship is present. A permanent zone would also allow the FSO at
the Passenger Ship Terminal to work with the Captain of the Port to
remove suspicious vessels, even when no cruise ship is at berth.
LHG Vessels: Safety and security zones for LHG Vessels are
currently codified in 33 CFR 165.160. For reasons discussed elsewhere
in this preamble, we propose to move these regulations with revisions
to the regulations found at 33 CFR 165.169. Revisions are also proposed
to provide a detailed definition of ``LHG Vessel,'' and to ensure the
regulation conforms to enforcement practices. The language regarding
LHG Facilities will be removed, as these facilities will continue to be
protected by safety and security zones contained in 33 CFR part 105
(MTSA, 2002 regulations).
Cruise Ships: Though no specific regulation exists within the New
York Captain of the Port Zone for cruise ships, 33 CFR 165.160 does
have provisions for Designated Vessels, among which are vessels with a
passenger capacity of over 500. Following many other Captains of the
Port throughout the Nation, we propose to incorporate specific language
for the protection of the many cruise ships and high-capacity passenger
vessels that visit the Port of New York and New Jersey.
The current Designated Vessel safety and security zones require the
Captain of the Port to specifically designate a particular vessel to be
covered by a Designated Vessel safety and security zone. This proposed
rule would define the term ``cruise ship'' so as to include that class
of vessel readily identifiable to the regulated public as such. This
proposed rule would also render the safety and security zones activated
and subject to enforcement at all times when such a vessel is within
the navigable waters of the United States (see 33 CFR 2.36(a) to
include the 12 NM territorial sea) in the New York Captain of the Port
Zone (33 CFR 3.05-30). This safety and security zone is necessary to
provide security protection for cruise ships at berth in locations
where full, permanent security zones around the facilities would be
overly restrictive when no cruise ship is present, and thereby not
justified in the interest of the Port as a whole. This proposed change
would decrease the size of the security zone around the NY Passenger
Ship Terminal when passenger ships are not docked there as a reduced
zone is sufficient to provide the necessary facility security. The
reduced size of the zone allows for greater movement of vessels in a
highly congested area. Similarly, the provision of a security zone
around cruise ships within the New York Captain of the Port Zone
removes the need to maintain a security zone around the Brooklyn Cruise
Terminal on Buttermilk Channel when cruise ships are not present.
Otherwise, to establish a similar permanent security zone around the
Brooklyn Cruise Terminal on Buttermilk Channel would effectively close
down 75 percent of the 500-foot-wide 40-foot project channel. This
would force deeper draft vessels to transit between Governors Island
and The Battery in
[[Page 24893]]
Manhattan en route to facilities on the East River and create numerous
close quarters passing situations between the ships and commuter ferry
operations in the vicinity of The Battery. Additionally, vessels
calling on the Red Hook Container Terminal, adjacent to the Brooklyn
Cruise Terminal, would then need to navigate around Dimond Reef which
is not considered a safe navigational practice for deep draft vessels
by any federal or state licensed pilot organization.
Designated Vessels: Currently, under the regulations found at 33
CFR 165.160, the Captain of the Port may designate certain vessels to
receive a 100-yard safety and security zone. For reasons discussed
elsewhere in this preamble, we propose to revise these regulations and
move them to 33 CFR 165.169(a)(15). The proposed regulation would limit
the type of vessels that may be so designated to small passenger
vessels (authorized to carry more than 400 passengers and less than 200
feet in length), vessels carrying foreign dignitaries or government
officials requiring protection, vessels carrying petroleum products,
chemicals or other hazardous cargo, including, but not limited to,
cargo ships and barges carrying bridge spans and large shore side
container cranes that significantly increase the length or beam of the
vessel and decrease its maneuverability. We propose to remove the
existing language regarding Designated Vessels as being certificated to
carry 500 or more passengers as these types of vessels would be covered
in the proposed regulation for Cruise Ships. These proposed Designated
Vessels would be readily recognizable either by the large crane or
bridge structures onboard or, for the vessels carrying flammable or
hazardous cargo, by the flying of the Bravo flag (red international
signal pennant) from the outermost halyard (above the pilot house)
where it can most easily be seen. The Captain of the Port would also
notify the maritime community of periods during which this zone would
be enforced by methods in accordance with 33 CFR 165.7. Similar to the
proposed rule for cruise ships, these safety and security zones would
be activated and subject to enforcement at all times when such a vessel
is within the navigable waters of the United States in the New York
Captain of the Port Zone.
134th Street Pipeline Metering and Regulating Station: Although not
specifically regulated under MTSA 2002, we propose to establish a 25-
yard security zone surrounding the 134th Street Pipeline Metering and
Regulating Station Pier. This security zone is currently established
under a regulation for commercial waterfront facilities found in 33 CFR
165.169(a)(3). Under a change proposed to that regulation discussed
earlier in this preamble, that coverage would be terminated as this
pipeline station does not currently fall under the provisions of 33 CFR
part 105 (MTSA Facilities). A security zone at this facility, which is
primarily regulated by the Federal Energy Regulatory Commission, is
necessary to ensure the continued safety and security of navigation and
the large number of industrial, commercial, and residential customers
that would be affected by damage to this pipeline.
The Captain of the Port will be assisted in monitoring the safety
and security zone by the pipeline operating company and the New York
City Police Department. The proposed security zone would establish
unambiguous Federal regulation to allow the Captain of the Port to
assist pipeline security personnel and NYPD in preventing unauthorized
waterside access to this facility.
Naval Weapons Station Earle: The Coast Guard first established a
Security Zone restriction in this location on July 1, 1972 (under 33
CFR 127.301, 37 FR 16675, Aug. 18, 1972). This regulation was
subsequently re-designated by the Coast Guard on June 30, 1982 (33 CFR
165.301, 47 FR 29659, July 8, 1982) and, again on July 6, 1987 (52 FR
25216). This security zone is currently codified at 33 CFR 165.130.
On July 28, 2003, the United States Army Corps of Engineers created
a Restricted Area around this Naval installation, published at 33 CFR
334.102 (68 FR 37970, June 26, 2003). The Army Corps of Engineers'
Restricted Area covers a portion of the waterway slightly larger than
the current Coast Guard Security Zone. We propose to modify the Coast
Guard Security Zone found at 33 CFR 165.130 to align with that of the
Army Corps of Engineers to provide unambiguous concurrent enforcement
capability for both Coast Guard and DoD patrol craft.
Additional Consistency Modifications: We propose to tailor the
scope of specific safety and security zones to optimize effective
enforcement and to harmonize these zones with the assessment of
facilities covered by 33 CFR part 105 (MTSA Regulations) that warrant
increased security protection. In addition, the safety and security
zones described in 33 CFR 165.160 would be revised and moved into 33
CFR 165.169 to consolidate similar safety and security zone-related
regulations within one New York Marine Inspection and Captain of the
Port Zone safety and security zone regulation. Once consolidated, the
existing regulations in 33 CFR 165.160 would be removed.
Waterfront Heliports: Additionally, although not specifically
regulated under MTSA 2002, we propose to establish 25-yard security
zones surrounding the four waterfront heliports currently operating at
Manhattan Island and Jersey City, New Jersey by creating a separate
regulation for these heliports in 33 CFR 165.169(a)(17). These security
zones are currently covered under regulations for commercial waterfront
facilities in 33 CFR 165.169(a)(3). However, under the proposed changes
to that regulation discussed above, the coverage would inadvertently be
terminated because not all heliports currently fall under the
provisions of 33 CFR part 105 (MTSA Facilities). Therefore, this
proposed section is necessary to ensure security zones for these
facilities remain in place as although the waterfront heliports are
primarily regulated by the Transportation Security Administration, the
security zones are necessary to ensure the continued safety and
security of both general aviation as well as recently-approved and
planned commuter flight services.
The Captain of the Port will be assisted in monitoring the safety
and security zones around these heliports by the FSO or other person
responsible for security at each facility. The proposed security zone
would establish unambiguous Federal regulation to allow the Captain of
the Port to assist facility security personnel in preventing
unauthorized waterside access to these facilities.
Discussion of Proposed Rule
We have discussed the nature of the proposed rule above in our
discussion of the background and purpose section. This section
describes the specific revisions that would be made by the proposed
regulatory text that appears at the end of this document.
Disestablishment of 33 CFR 165.160: The Liquefied Hazardous Gas
vessel or LHG facility, and Designated Vessels regulations in 33 CFR
165.160 would be revised and modified and moved into 33 CFR
165.169(a)(13) through (a)(15). The specific changes to be reflected in
the new proposed regulations are discussed in the LHG Vessels, Cruise
ships, and Designated vessels sections below.
Commercial Waterfront Facilities: Under this proposed regulation,
we would revise 33 CFR 165.169(a)(3) to allow certain vessels to enter
the security zones around Commercial Waterfront Facilities with the
authorization of the Facility Security
[[Page 24894]]
Officer (FSO). Such authorization from the FSO would allow entry into
the security zone without requiring express Captain of the Port
approval. Active participation in authorized vessel-to-facility
transfer operations, authorized vessel docking or undocking operations,
authorized vessel to vessel transfer operations, and other routine
waterfront operations specified in the Captain of the Port approved
Facility Security Plan would all be permitted without individual
vetting and approval of the Captain of the Port. It would be a
violation of this safety and security zone regulation for any of these
activities to occur within the safety and security zone without FSO
authorization. For all other activities that vessels or personnel would
require access to the safety and security zone, the Captain of the Port
would require confirmation from the FSO that the personnel and vessels
intending to occupy the safety and security zone have been screened
according to the previously established measures for granting facility
access. Such measures for granting facility access must be approved by
the Coast Guard as part of the facility's Facility Security Plan (FSP)
and be appropriate to the given Maritime Security Level.
Liberty and Ellis Islands: Liberty and Ellis Island are currently
provided a safety and security zone extending 150 yards around each
island in 33 CFR 165.169(a)(4). We propose to revise that regulation
and merge the two separate zones into a single zone while expanding the
size of the security zone around Liberty Island. The resultant security
zone would maintain current boundaries north and east of Ellis Island
and increase the security zone size east and south of Liberty Island,
to include: waters up to 400 yards east of Liberty Island; the
connecting waters between Ellis and Liberty Island; all waters north of
the National Dock Channel; and all waters between Liberty and Ellis
Islands and Liberty State Park, New Jersey.
The proposed safety and security zone is necessary to protect each
Island, the bridge between Liberty State Park and Ellis Island,
authorized sightseeing vessels operating at each island, others in the
maritime community, and the surrounding communities from subversive or
terrorist attack against the islands that could potentially cause
serious negative impact to vessels, the port, or the environment.
Annual marine events and fireworks displays within approved firework
zones will continue to be permitted through the Coast Guard marine
event permitting process, however all event participants and equipment
will be subject to Captain of the Port and or U. S. Park Police review
for security zone access. New events for which access to this area is
necessary will be considered in consultation with the USPP, and an
application for a Coast Guard marine event permit may be denied for
security reasons as a result of such consultation. Vessels would not be
precluded from mooring at or getting underway from commercial or
recreational piers in the vicinity, but outside of the zone.
NYC Passenger Ship Terminal: Currently, the Passenger Ship Terminal
safety and security zone found at 33 CFR 165.169(a)(6) extends
approximately 280 yards into the Hudson River from Pier 96 to Pier 84
and is activated only when a cruise ship is present at berth or when
the Intrepid Sea, Air and Space Museum is being utilized as an
Emergency Operations Center. To eliminate undue restrictions on
commercial and recreational navigation, we propose to reduce the zone
to extend to only a maximum of 150 yards into the Hudson River from
approximately 50 yards north of Pier 92 south to approximately 50 yards
south of Pier 86, including a 25 yard perimeter around the Intrepid
Sea, Air, and Space Museum. We further propose removing the activation
criteria so that the zone is permanently enforceable. This change is
proposed to offer an unchanging zone, which would enhance compliance by
the regulated public and eliminate ambiguity for enforcement personnel.
LHG Vessels: Safety and security zone regulations for LHG Vessels
and Facilities are currently found at 33 CFR 165.160. We propose to
relocate these regulations to 33 CFR 165.169(a)(13). Additionally, the
current regulation establishes a 200-yard security zone around all LHG
Vessels and Facilities. This proposed revision would limit the security
zone around moored LHG Vessels to 100-yards due to the constraints on
vessel traffic movement around such facilities, and in keeping with
current enforcement practice. Language incorporating the LHG facility
itself will be removed, as these facilities will be protected when no
LHG Vessel is present, by the MTSA Facility safety and security zone
discussed earlier in this preamble.
The enforcement period for the proposed revised regulation would be
at all times while the LHG vessel is within the navigable waters of the
United States (see 33 CFR 2.36(a) to include the 12 NM territorial sea)
in the New York Captain of the Port Zone (33 CFR 3.05-30), and notice
will continue to be made in accordance with 33 CFR 165.7. These tank
vessels are readily identifiable to the public by the requirement that
they fly the Bravo flag (red international signal pennant) from an
outermost halyard above the pilothouse where it can most easily be
seen.
Cruise Ships: There is currently no specific regulation in the New
York Captain of the Port Zone for safety and security around cruise
ships. Current safety and security zone regulations for Designated
Vessels in 33 CFR 165.160 include vessels certificated to carry 500 or
more passengers. We propose to create specific regulations for cruise
ships, to fall under 33 CFR 165.169.
We propose to define a ``cruise ship'' as a passenger vessel (as
defined in 46 U.S.C. 2101(22)) that is authorized to carry more than
400 passengers for hire and is 200 feet or more in length. This
definition of ``cruise ship'' will include ferries (as defined in 46
CFR 2.10-25) that are authorized to carry more than 400 passengers for
hire and are 200 feet or more in length. Similar to the LHG Vessel
zone, this proposed zone would be activated and subject to enforcement
at all times a cruise ship is underway, anchored or moored within the
navigable waters of the United States in the New York Captain of the
Port Zone.
Designated Vessels: Safety and security zone regulations for
Designated Vessels are currently found in 33 CFR 165.160. We propose to
revise and relocate these regulations to 33 CFR 165.169(a)(15). The
current regulation limits the application of Designated Vessel status
to vessels certificated to carry 500 or more passengers; vessels
carrying government officials or dignitaries requiring protection by
the U.S. Secret Service, or other Federal, State or local law
enforcement agency; and barges or ships carrying petroleum products,
chemicals, or other hazardous cargo. The proposed changes to this
regulation would remove the language regarding vessels certificated to
carry 500 or more passengers as this would be covered elsewhere in the
regulations for Cruise Ships, and add passenger vessels authorized to
carry more than 400 passengers and are less than 200 feet in length. In
addition, the proposed change would clarify that ships and barges
carrying petroleum products, chemicals or other hazardous cargo would
be identifiable to the public by the requirement that the vessel fly
the Bravo flag (red international signal pennant) from an outermost
halyard above the pilot house where it can most easily be seen. Vessels
carrying government officials, dignitaries requiring protection, or
passenger vessels as defined in 46 U.S.C. 2101(22), that are authorized
to carry more than 400 passengers and are less than 200 feet in length,
will be recognizable to the public as the vessel will be escorted by
[[Page 24895]]
a federal, state or local law enforcement vessel identifiable by
flashing light, siren, special markings or other means that identify
the vessel as engaged in law enforcement or security operations.
134th Street Pipeline Metering and Regulating Station: Although not
specifically regulated under MTSA 2002, we propose to retain the 25-
yard security zone surrounding the 134th Street Pipeline Metering and
Regulating Station Pier. This security zone is currently covered under
regulation pertaining to commercial waterfront facilities found in 33
CFR 165.169(a)(3). Under a change proposed to that regulation discussed
earlier in this preamble, that coverage would be terminated because
this pipeline station does not currently fall under the provisions of
33 CFR part 105 (MTSA Facilities). A security zone at this facility,
which is primarily regulated by the Federal Energy Regulatory
Commission, is necessary to ensure the continued safety and security of
navigation and the large number of industrial, commercial, and
residential customers that would be affected by an attack on this
pipeline.
The Captain of the Port will be assisted in monitoring the safety
and security zone by the pipeline operating company and the New York
City Police Department. The proposed security zone would establish
unambiguous Federal regulation to allow the Captain of the Port to
assist pipeline security personnel and NYPD in preventing unauthorized
waterside access to this facility.
Naval Weapons Station Earle: Modifications to the security zone
found at 33 CFR 165.130(a) are necessary to align that zone's
dimensions with those of the Restricted Area Regulations found in 33
CFR 334.102. This alignment would provide unambiguous concurrent
enforcement capability for both Coast Guard and Department of Defense
(DoD) patrol craft assigned waterside security responsibilities in this
area. Specifically the boundaries of the security zone would be altered
to include all navigable waters of Sandy Hook Bay within 750 yards of
all Naval Weapons Station Earle piers and within Terminal Channel
leading to the pier at Naval Weapons Station Earle, New Jersey.
Additional Consistency Modifications Within 33 CFR 165.169: We
propose to make certain changes to increase the clarity of 33 CFR
165.169. Paragraph (b)(3) of that section applies solely to the safety
and security zone codified in 33 CFR 165.169(a)(3). Paragraph (b)(3)
would be removed in light of the proposed revisions to paragraph
(a)(3). Paragraphs (b)(4) and (b)(5) of 33 CFR 165.169, both of which
apply solely to the safety and security zone codified at 33 CFR
165.169(a)(12), would become part of paragraph (a)(12). Paragraph
165.169(c) would similarly be moved to become part of 33 CFR
165.169(a)(12).
Waterfront Heliports: Finally, although not specifically regulated
under MTSA 2002, we propose to retain the 25-yard security zones
surrounding the four waterfront heliports currently operating at
Manhattan Island and Jersey City, New Jersey. These security zones are
currently covered under regulation pertaining to commercial waterfront
facilities found in 33 CFR 165.169(a)(3). Security zones at these
facilities, which are primarily regulated by the Transportation
Security Administration, are necessary to ensure the continued safety
and security of both general aviation as well as recently-approved and
currently-considered commuter flight services. Consultation with the
Transportation Security Administration and the Port Authority of New
York and New Jersey indicated that retention of the current 25-yard
security zones is warranted.
The Captain of the Port will be assisted in monitoring the safety
and security zones around these heliports by the FSO or other person
responsible for security at each facility. The proposed security zone
would establish unambiguous Federal regulation to allow the Captain of
the Port to assist facility security personnel in preventing
unauthorized waterside access to these facilities.
Regulatory Evaluation
We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analysis based on 13 of these statutes or executive orders.
Executive Order 12866
This proposed 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.
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation is unnecessary. This finding
is based on the following facts. Access to all zones modified within
the proposed regulation may be granted through coordination with the
Captain of the Port. With regard to the changes to the Commercial
Waterfront Facilities, this proposed rule would reduce the number of
safety and security zones around commercial waterfront facilities,
thereby reducing the level of regulatory impact. With regard to the
expansion of the zone at Liberty and Ellis Islands, this proposed rule
would not infringe on any Federal channel and procedures would be
enacted to provide regulated public access to those areas. With regard
to the changes proposed for the New York City Passenger Ship Terminal
safety and security zone, the proposed rule would reduce the size of
the regulated area. With regard to the changes proposed for the
inclusion of LHG Vessels, the proposed regulation would substitute less
restrictive regulations for those currently in effect. With regard to
the addition of regulations relating to cruise ships, the proposed rule
would in effect move the current regulation regarding cruise ships
currently contained in 33 CFR part 169.160 to the new section with
modifications to the definition. In effect, the rule does not create a
new type of security zone, rather, it moves an existing regulation to
another section of the code, thereby creating no significant change to
the security zone requirements. With regard to the changes proposed for
the inclusion of the 134th Street Pipeline Metering and Regulating
Station pier, vessels will be able to transit around the zone. With
regard to the changes proposed for the modification to the Security
Zone at Naval Weapons Station Earle, Sandy Hook Bay, New Jersey, this
regulation proposes only to align restrictions applying to a portion of
the waterway already restricted by other Federal regulation.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities.
This proposed rule would affect the following entities, some of
which might be small entities: the owners or operators of vessels
intending to transit or anchor in portions of the New York Captain of
the Port Zone deemed by the Captain of the Port to present an
[[Page 24896]]
unacceptable level of risk to the safety and security of the general
public. However, these safety and security zones would not have a
significant economic impact on a substantial number of small entities
for the reasons discussed in the Regulatory Evaluation section above.
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.
Assistance for Small Entities
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 so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed 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 M. McBrady, Waterways Management Division, Coast Guard Sector
New York (718) 354-2353. 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.
Collection of Information
This proposed rule would call for a collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined
in 5 CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the information collections, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
Title: Safety and Security Zones: New York Marine Inspection Zone
and Captain of the Port Zone.
Summary of the Collection of Information: This information
collection provides the basis for the Captain of the Port to asses the
security risks posed by allowing a vessel to enter the security zones
established for the Part 105 Facilities, New York City Passenger Ship
Terminal, the 134th Street Pipeline Metering and Regulation Station and
the Waterfront Heliports. This risk assessment guides the COTP in
deciding whether or not to authorize entry to the requesting person or
vessel.
Need for Information: In accordance with 33 U.S.C. 1226, the U.S.
Coast Guard may establish security and safety zones and control access
to such zones. The information collection allows the Captain of the
Port to assess security risks of allowing persons or vessels to access
an established zone.
Proposed Use of Information: The information collection will be
used to monitor what vessels and numbers of individuals are within an
established security zone.
Description of the Respondents: Respondents will be vessel owners
or operators, and contractors.
Number of Respondents: Eighty.
Frequency of Response: Two times per week.
Burden of Response: Approximately 5 minutes per response. Vessel
owners or operators and contractors report that they are entering the
security zone to Coast Guard Sector New York by VHF Marine Radio or
telephone at the beginning of their project. The information collected
includes name of caller and contact information, name and description
of vessel, location of the security zone, number of persons entering
the security zone, reason for entering the security zone, and the
expected amount of time within the security zone. There is no
instruction review necessary for this report. Gathering and maintaining
data would be conducted by the reporting source on the way to the
security zone. It is expected that gathering this information would
require minimal effort and no extra financial resources.
Estimate of Total Annual Burden: Nine hours.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this proposed rule to the Office
of Management and Budget (OMB) for its review of the collection of
information.
We ask for public comment on the proposed collection of information
to help us determine how useful the information is; whether it can help
us perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Before the
requirements for this collection of information become effective, we
will publish notice in the Federal Register of OMB's decision to
approve, modify, or disapprove the collection.
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 proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
[[Page 24897]]
Indian Tribal Governments
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. We
invite your comments on how this proposed rule might impact tribal
governments, even if that impact may not constitute a ``tribal
implication'' under the Order.
Energy Effects
We have analyzed this proposed 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.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
Environment
We have analyzed this proposed rule under Commandant Instruction
M16475.1D which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have made a preliminary determination that this action is not likely to
have a significant effect on the human environment. A preliminary
``Environmental Analysis Check List'' supporting this preliminary
determination is available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery or a significant environmental impact from this proposed
rule.
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
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, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public
Law 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
2. In Sec. 165.130, revise paragraph (a) to read as follows:
Sec. 165.130 Sandy Hook Bay, New Jersey--security zone.
(a) Naval Ammunition Depot Piers. The navigable waters within the
following boundaries are a security zone: A line beginning on the shore
at 40[deg]25'55.6'' N, 074[deg]04'31.4'' W; thence to 40[deg]26'54.0''
N, 074[deg]03'53.0'' W; thence to 40[deg]26'58.0'' N, 074[deg]04'03.0''
W; thence to 40[deg]27'56.0'' N, 074[deg]03'24.0'' W; thence to
40[deg]27'28.3'' N, 074[deg]02'12.4'' W; thence to 40[deg]26'29.2'' N,
074[deg]02'53'' W; thence to 40[deg]26'31.1'' N, 074[deg]02'57.2'' W;
thence to 40[deg]25'27.3'' N, 074[deg]03'41'' W; thence northwest along
the shoreline to the beginning point.
* * * * *
Sec. 165.160 [Removed]
3. Remove Sec. 165.160.
4. Amend Sec. 165.169 as follows: revise paragraphs (a)(3),
(a)(4), (a)(6), and (a)(12); add paragraphs (a)(13) through (a)(17);
and remove paragraphs (b)(3) through (b)(5), and (c), to read as
follows:
Sec. 165.169 Safety and Security Zones: New York Marine Inspection
Zone and New York Captain of the Port Zone.
(a) * * *
(3) Part 105 Facilities. (i) Definition. For the purposes of this
section, Part 105 Facility means any facility subject to the
regulations contained in 33 CFR part 105, including those designated as
``Public Access Facilities'' as defined in 33 CFR 101.105. For public
identification purposes, all of these facilities are required to have
signs posted along the shoreline, facing the water, indicating that
there is a 25 yard waterfront security zone surrounding the facilities.
(ii) Location. All waters within 25 yards of each Part 105
Facility. When a barge, ferry, or other commercial vessel is conducting
transfer operations at a Part 105 Facility, the 25-yard zone is
measured from the outboard side of the commercial vessel.
(iii) Regulations. (A) Vessels not actively engaged in passenger,
cargo, provision, facility maintenance or inspection, bunker transfer
operations, or docking or undocking operations, authorized in advance
by the Facility Security Plan, Facility Security Officer or designated
representative, must not enter within any part of a zone described in
paragraph (a)(3) of this section without the express permission of the
Coast Guard Captain of the Port, a designated representative or
designated on-scene patrol personnel.
(B) Persons seeking Captain of the Port permission to enter within
a particular zone for official business other than authorized
passenger, cargo, provision, facility maintenance or inspection, bunker
transfer operations or authorized docking or undocking operations may
request such authorization by contacting: Commander Coast Guard Sector
New York, via the Sector Command Center (SCC), at: 212 Coast Guard
Drive, Staten Island, NY 10305, or via fax to (718) 354-4125 or by
contacting the Sector Command Center Duty Officer by phone at: (718)
354-4353. Before authorization to enter the zone, the Coast Guard will
evaluate available information, which may vary depending on on-scene
and operational conditions. Vessels requesting permission to enter the
zone should be prepared to communicate with the Coast Guard while this
evaluation process occurs. Information the Coast Guard will evaluate in
making its determination may include the manifest of all equipment and
personnel to be granted access to the area, dates and times of access,
the purpose for which access is requested, and on-scene contact
information for personnel or equipment that will occupy the zone.
(4) Liberty and Ellis Islands. All waters of Upper New York Bay
bound by the following points: 40[deg]41'25.9'' N, 074[deg]03'17.8'' W;
thence along the northern edge of National Dock Channel passing through
National Dock Channel Buoy 6 in approximate position 40[deg]41'20.2''
N, 074[deg]02'58.2'' W; thence to
[[Page 24898]]
National Dock Channel Buoy 4 in approximate position 40[deg]41'15.6''
N, 074[deg]02'50.3'' W; thence to National Dock Channel Buoy 2 in
approximate position 40[deg]41'09.4'' N, 074[deg]02'39.9'' W; thence to
40[deg]41'11.3'' N, 074[deg]02'25.2'' W; thence to 40[deg]41'26.9'' N,
074[deg]02'21.2'' W; thence to 40[deg]41'39.2'' N, 074[deg]02'33.2'' W;
thence to 40[deg]41'49.6'' N, 074[deg]02'18.4'' W; thence to
40[deg]41'50.6'' N, 074[deg]02'13.8'' W; thence to 40[deg]41'54.3'' N,
074[deg]02'11.7'' W; thence to 40[deg]41'57.2'' N, 074[deg]02'07.6'' W;
thence to 40[deg]42'09.5'' N, 074[deg]02'23.8'' W; thence to
40[deg]42'06.7'' N, 074[deg]02'28.0'' W; thence to 40[deg]42'11.6'' N,
074[deg]02'37.6'' W; (NAD 83) thence southwest along the shoreline to
the point of origin.
* * * * *
(6) New York City Passenger Ship Terminal, Hudson River, NY.--(i)
Location. All navigable waters of the Hudson River bound by the
following points: From the point 40[deg]46'09'' N, 073[deg]59'48.7'' W
on the seawall midway between Pier 92 and 94, thence northwest to
approximate position 40[deg]46'14'' N, 074[deg]00'00.9'' W,
approximately 125 yards northwest of Pier 92, thence southwest to
approximate position 40[deg]45'56.7'' N, 074[deg]00'15.3'' W,
approximately 150 yards west of Pier 86, thence east to the seawall
between Pier 84 and Pier 86 at approximate position 40[deg]45'49.6'' N,
073[deg]59'58.1'' W (NAD 1983), thence northeast along the shoreline to
the point of origin.
(ii) Regulations. Vessels not actively engaged in passenger, cargo,
provision, facility maintenance or inspection, bunker transfer
operations, or docking or undocking operations, authorized in advance
by the Facility Security Plan, Facility Security Officer or designated
representative, must not enter within any part of a zone described in
paragraph (a)(6) of this section without the express permission of the
Coast Guard Captain of the Port, a designated representative or
designated on-scene patrol personnel. Persons seeking Captain of the
Port permission to enter within the zone described in paragraph (a)(6)
of this section for official business other than authorized passenger,
cargo, provision, facility maintenance or inspection, bunker transfer
operations or authorized docking or undocking operations may request
such authorization by contacting: Commander Coast Guard Sector New
York, via the Sector Command Center (SCC), at: 212 Coast Guard Drive,
Staten Island, NY 10305, or via fax to (718) 354-4125 or by contacting
the Sector Command Center Duty Officer by phone at: (718) 354-4353.
Before authorization to enter the zone, the Coast Guard will evaluate
available information, which may vary depending on on-scene and
operational conditions. Vessels requesting permission to enter the zone
should be prepared to communicate with the Coast Guard while this
evaluation process occurs. Information the Coast Guard will evaluate in
making its determination may include the manifest of all equipment and
personnel to be granted access to the area, dates and times of access,
the purpose for which access is requested, and on-scene contact
information for personnel or equipment that will occupy the zone.
* * * * *
(12) Approaches to New York, Atlantic Ocean. (i) Location: 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.
(ii) Enforcement period. 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 and
the zone is activated whenever a vessel is anchored in the area
described in paragraph (a)(12)(i) or a Coast Guard patrol vessel is on-
scene.
(iii) Regulations. (A) The area 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.
(B) 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.
(13) Liquefied Hazardous Gas (LHG) Vessels.--(i) Definitions. For
the purposes of this section, LHG Vessel means any vessel constructed
or converted to carry, in bulk, any of the flammable or toxic products
listed in 33 CFR 127.005, Table 127.005.
(ii) Location. All waters within a 200-yard radius of any LHG
Vessel that is underway and all waters within a 100-yard radius of any
LHG Vessel that is moored or at anchor.
(iii) Enforcement period. The zone described in paragraph (a)(13)
of this section will be activated upon entry of a LHG Vessel into the
navigable waters of the United States (see 33 CFR 2.36(a) to include
the 12 NM territorial sea) in the New York Captain of the Port Zone (33
CFR 3.05-30). The LHG Vessel will be identifiable by the requirement to
fly the Bravo flag (red international signal pennant) from the
outermost halyard (above the pilot house) where it can most easily be
seen. In addition to visual identification of the LHG Vessel, the
Captain of the Port will notify the maritime community of periods
during which this zone will be enforced by methods in accordance with
33 CFR 165.7.
(14) Cruise Ships.--(i) Definition. For the purposes of this
section, cruise ship means a passenger vessel as defined in 46 U.S.C.
2101(22), that is authorized to carry more than 400 passengers and is
200 or more feet in length. A cruise ship under this section will also
include ferries as defined in 46 CFR 2.10-25 that are authorized to
carry more than 400 passengers and are 200 feet or more in length.
(ii) Location. All waters within a 100-yard radius of any Cruise
ship whether underway, anchored, or at berth.
(iii) Enforcement period. The zone described in paragraph (a)(14)
of this section will be activated upon entry of any cruise ship into
the navigable waters of the United States (see 33 CFR 2.36(a) to
include the 12 NM territorial sea) in the New York Captain of the Port
Zone (33 CFR 3.05-30). This zone will remain activated at all times
while the cruise ship is within the navigable waters of the United
States in the New York Captain of the Port Zone.
(15) Designated Vessels.--(i) Definition. For the purposes of this
section, Designated Vessels are vessels carrying government officials,
dignitaries, or other passengers requiring protection by the U.S.
Secret Service, or other Federal, State or local law enforcement
agency; barges or ships carrying petroleum products, chemicals, or
other hazardous cargo; and passenger vessels (as defined in 46 U.S.C.
2101(22)), that are authorized to carry more than 400 passengers and
are less than 200 feet in length.
(ii) Location. All waters within a 100-yard radius of any
Designated Vessel.
(iii) Enforcement period. The zone described in paragraph (a)(15)
of this section will be activated upon entry of any Designated Vessel
into the navigable waters of the United States (see 33 CFR 2.36(a) to
include the 12 NM territorial sea) in the New York Captain of the Port
Zone (33 CFR 3.05-30). This zone will remain activated at all times
while the Designated Vessel is within the navigable waters of the
United States in the New York Captain of the Port Zone. The Designated
[[Page 24899]]
Vessels, including ships and barges carrying petroleum products,
chemicals, or other hazardous cargo will be recognized by the
requirement to fly the Bravo flag (red international signal pennant)
from the outermost halyard (above the pilot house) where it can most
easily be seen. Designated Vessels carrying government officials,
dignitaries, or other passengers requiring protection, and passenger
vessels authorized to carry more than 400 passengers and are less than
200 feet in length will be recognizable by their being escorted by a
federal, state or local law enforcement or security vessel. The law
enforcement or security vessel will be identifiable by flashing light,
siren, flags, markings and/or through other means that clearly identify
the vessel as engaged in law enforcement or security operations.
(16) 134th Street Pipeline Metering and Regulating Station.--(i)
Location. All waters of the Hudson River within 25 yards of the 134th
Street Pipeline Metering and Regulating Station.
(ii) Regulations. (A) Vessels not actively engaged in facility
maintenance or inspection operations authorized in advance by the
Pipeline Security Officer or designated representative, or authorized
docking or undocking operations, must not enter within any part of a
zone described in paragraph (a)(16) of this section without the express
permission of the Coast Guard Captain of the Port, a designated
representative or designated on-scene patrol personnel.
(B) Persons seeking Captain of the Port permission to enter within
a particular zone for official business other than authorized
passenger, cargo, provision, facility maintenance or inspection, bunker
transfer operations or authorized docking or undocking operations may
request such authorization by contacting: Commander Coast Guard Sector
New York, via the Sector Command Center (SCC), at: 212 Coast Guard
Drive, Staten Island, NY 10305, or via fax to (718) 354-4125 or by
contacting the Sector Command Center Duty Officer by phone at: (718)
354-4353. Before authorization to enter the zone, the Coast Guard will
evaluate available information, which may vary depending on on-scene
and operational conditions. Vessels requesting permission to enter the
zone should be prepared to communicate with the Coast Guard while this
evaluation process occurs. Information the Coast Guard will evaluate in
making its determination may include the manifest of all equipment and
personnel to be granted access to the area, dates and times of access,
the purpose for which access is requested, and on-scene contact
information for personnel or equipment that will occupy the zone.
(17) Waterfront Heliports.--(i) Location. All waters of the East
River within 25 yards of the East 34th Street and Wall Street
Heliports, and all waters of the Hudson River within 25 yards of the
West 30th Street Heliport and the Jersey City/Newport Helistop, areas
of land or water under and in immediate proximity to them; buildings on
such structures or contiguous to them; and equipment and materials on
such structures and in such buildings. When a barge, ferry, or other
commercial vessel is conducting transfer operations at a waterfront
heliport, the 25-yard zone is measured from the outboard side of the
commercial vessel.
(ii) Regulations. (A) Vessels not actively engaged in passenger,
cargo, provision, facility maintenance or inspection, bunker transfer
operations, or docking or undocking operations, authorized in advance
by the Facility Security Plan, Facility Security Officer or designated
representative, must not enter within any part of a zone described in
paragraph (a)(17) of this section without the express permission of the
Coast Guard Captain of the Port, a designated representative, or
designated on-scene patrol personnel.
(B) Persons seeking Captain of the Port permission to enter within
a particular zone for official business other than authorized
passenger, cargo, provision, facility maintenance or inspection, bunker
transfer operations or authorized docking or undocking operations may
request such authorization by contacting: Commander Coast Guard Sector
New York, via the Sector Command Center (SCC), at: 212 Coast Guard
Drive, Staten Island, NY 10305, or via fax to (718) 354-4125 or by
contacting the Sector Command Center Duty Officer by phone at: (718)
354-4353. Before authorization to enter the zone, the Coast Guard will
evaluate available information, which may vary depending on on-scene
and operational conditions. Vessels requesting permission to enter the
zone should be prepared to communicate with the Coast Guard while this
evaluation process occurs. Information the Coast Guard will evaluate in
making its determination may include the manifest of all equipment and
personnel to be granted access to the area, dates and times of access,
the purpose for which access is requested, and on-scene contact
information for personnel or equipment that will occupy the zone.
(C) Vessels entering or departing the marina north of the Newport
Helistop are authorized to transit through the safety/security zone
around the Newport Helistop during their transit, provided that
helicopters are not taking off or landing. No loitering or unnecessary
delay is authorized during these transits.
* * * * *
Dated: April 25, 2008.
Michael S. Gardiner,
Captain, U.S. Coast Guard, Acting Captain of the Port, New York.
[FR Doc. E8-10000 Filed 5-5-08; 8:45 am]
BILLING CODE 4910-15-P