
[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
