
[Federal Register: February 13, 2009 (Volume 74, Number 29)]
[Rules and Regulations]               
[Page 7184-7193]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe09-5]                         

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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: Final rule.

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SUMMARY: This final rule modifies several aspects of the permanent 
safety and security zones within the New York Captain of the Port Zone. 
This action modifies existing safety and security zones, consolidates 
and modifies safety and security zones currently found in separate 
regulations, and removes certain safety and security zones so as to 
better meet the safety and security needs of the New York and New 
Jersey port community.

DATES: This rule is effective March 16, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2007-0074 and are available online by going to 
http://www.regulations.gov, selecting the Advanced Docket Search option 
on the right side of the screen, inserting USCG-2007-0074 in the Docket 
ID box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is also available for inspection or copying at 
two locations: the 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, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays and 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call LT Edward Munoz, Waterways Management Division, Coast Guard Sector 
New York, 718-354-2353. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

[[Page 7185]]

Regulatory Information

    On May 6, 2008, 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 (73 FR 24889). We 
received 15 letters commenting on the proposed rule. A public meeting 
was requested to discuss the proposed changes to the security zones 
around Liberty and Ellis Island. As discussed below, the proposed 
changes to the Liberty and Ellis Island security zones have been 
removed from this rulemaking therefore there was no longer a need to 
hold a public meeting.

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 and intelligence officials warn that future terrorist attacks 
are likely. President Bush 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 (73 FR 51211, August 28, 2008); Continuation of the 
National Emergency With Respect To Persons Who Commit, Threaten To 
Commit, Or Support Terrorism (73 FR 54489, September 18, 2008). 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 11, 2001 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.
    In the NPRM associated with this final rule, the Coast Guard (USCG) 
proposed 11 distinct changes to the current safety and security zone 
regulations in 33 CFR part 165 to improve maritime security and reduce 
unnecessary burdens imposed by current security zones. The proposals 
are as follows:
    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. The NPRM proposed, and this final 
rule revises and relocates 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. This regulatory 
change will 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'' 
(see, 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

[[Page 7186]]

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 are revising the language governing facility 
safety and security zones to remove the broad definition currently 
contained 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

[[Page 7187]]

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 explaining how 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 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 proposed 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.
    Following publication of the NPRM, written comments were received 
regarding the proposed expansion of the Liberty and Ellis Island 
security zones and concern was expressed as to the impact on 
recreational boaters and the effects that the expanded zones would have 
on navigation safety. Based on comments received we are withdrawing our 
proposed expansion of the Ellis and Liberty Island security zones as 
outlined in the Discussion of Comments and Changes section and have 
removed the Liberty and Ellis Island Security Zone expansion provision 
from this final rule. The current Liberty and Ellis Island security 
zone remains in effect.
    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 
approximately 250 yards from portions of the facility. However, this 
zone is only enforced when cruise ships are present.
    In the interest of protecting this high-interest facility, we are 
revising 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 are significantly 
reduced to reflect the current protection needs of the Passenger Ship 
Terminal.
    The revision reduces the zone size to extend up to 150 yards into 
the waterway. The northern boundary of the zone is being moved 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 is being 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 also allows 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 are moving these regulations with revisions to the 
regulations found at 33 CFR 165.169. Revisions are made to provide a 
detailed definition of ``LHG Vessel,'' and to ensure greater 
standardization of and compliance with the regulations. The language 
regarding LHG Facilities is being 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 are incorporating 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 rule 
defines the term ``cruise

[[Page 7188]]

ship'' so as to include that class of vessel readily identifiable to 
the regulated public as such. This rule also renders 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 
change decreases 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 Manhattan enroute 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 are revising these regulations and 
moving them to 33 CFR 165.169(a)(15). The regulation will 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 are removing the existing language regarding 
Designated Vessels as being certificated to carry 500 or more 
passengers as these types of vessels will be covered in the regulation 
for Cruise Ships. These Designated Vessels are 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 flag) from the outermost halyard 
(above the pilot house) where it can most easily be seen. The Captain 
of the Port will also notify the maritime community of periods during 
which this zone is being enforced by methods in accordance with 33 CFR 
165.7. Similar to the rule for cruise ships, these safety and security 
zones will 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 are creating a specific 25-
yard security zone surrounding the 134th Street Pipeline Metering and 
Regulating Station Pier. There is currently a security zone around this 
location that was established under a regulation for commercial 
waterfront facilities found in 33 CFR 165.169(a)(3). Under a change 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 security zone establishes 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 are modifying 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 are tailoring 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 are being 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 are being removed.
    Waterfront Heliports: Additionally, although not specifically 
regulated under MTSA 2002, we are establishing 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 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 
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

[[Page 7189]]

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 security zone will 
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 Comments and Changes

    The National Oceanic and Atmospheric Administration (NOAA) 
submitted two recommended navigation chart corrections. One correction 
is to one position of the Ellis Island security zone that is not 
changing in this Final Rule. The original Coast Guard security zone at 
Ellis Island was published in the Code of Federal Regulations as being 
within 150 yards of the island with no listed positions. NOAA published 
this security zone on the respective charts using their more accurate 
charting software. Due in part to the public comments received we are 
withdrawing the expansion of the Ellis and Liberty Islands security 
zones from this rulemaking for further consideration. The second chart 
correction submitted by NOAA was for the Naval Weapons Station Earle, 
NJ security zone in Sandy Hook Bay. We are revising our final rule to 
list the same positions published by the U.S. Army Corps of Engineers 
(ACOE) in 33 CFR 334.102 as our intention was always to have the 
security zone correspond to the ACOE charted Restricted Area.
    One commenter supported the establishment of the 25-yard security 
zones around the waterfront heliports.
    One commenter requested that the 100-yard security zones around 
Liquefied Hazardous Gas (LHG) vessels, Cruise Ships, and Designated 
Vessels be revised to allow for vessels constrained by their draft to 
be authorized to transit through the security zone as long as they 
remain within the navigable channel, maintain the maximum safe distance 
from the vessel and do not stop or loiter within the zone unless the 
security zone is broadcast over VHF radio and is accompanied by a 
patrol vessel displaying a flashing blue light as required by 33 CFR 
88.11. The commenter noted that this is currently authorized for 
vessels transiting past 33 CFR Part 105 Facilities and Bridge Piers and 
Abutments within the Coast Guard Sector New York area of 
responsibility. Similar conditions also apply to the Naval Vessel 
Protection Zones codified at 33 CFR 165.2025.
    We currently issue a marine broadcast by VHF radio for all LHG 
vessel transits, provide Coast Guard escort vessels for the LHG vessel, 
and do not authorize vessels to transit through the security zone due 
to the nature of the product carried and the extensive damage to the 
port that could be caused by an attack on the vessel. This has been the 
Coast Guard's policy and procedures since before the 9/11 terrorist 
attacks and we will not further relax these conditions at this time. 
The width of the Federal Channels and waterways that cruise ships 
currently transit through are 1,000 feet wide in Buttermilk Channel, 
2,000 feet wide in Anchorage Channel, and 2,700 feet wide in the Hudson 
River. There is sufficient distance for the commenter's smaller vessels 
to transit around the cruise ships in these channels or to transit 
around Governors Island for vessels that do not want to transit through 
Buttermilk Channel when cruise ships are transiting through, or are 
docked, at the adjacent Brooklyn Cruise Terminal. Vessels that are 
constrained by their draft from transiting outside of these channels 
will still be required to maintain a distance of 100 yards from all 
cruise ships and should check in with VTS NY on VHF CH 11, 12, or 14 
for current restrictions if they are not already Vessel Movement 
Reporting Users.
    The Coast Guard agrees with this comment in regards to Designated 
Vessels (33 CFR 165.169(a)(15)). The final rule is changed from the 
NPRM to state that vessels that are constrained by their draft from 
leaving the channel may transit through the zone for the sole purpose 
of direct and expeditious transit through the zone so long as they 
remain within the navigable channel, maintain the maximum safe distance 
from the Designated Vessel, and do not stop or loiter within the zone.
    This transit waiver was inadvertently deleted from the revised Part 
105 Facilities regulation in 33 CFR 165.169(a)(3) in this Notice of 
Proposed Rulemaking. This was not the Coast Guard's intention and the 
waiver for vessels to transit through the 25-yard security zone 
surrounding Part 105 facilities is being inserted in the final rule as 
33 CFR 165.169(a)(3)(iii)(C).
    We received nine comments from Human Powered Vessel (HPV--Canoes 
and Kayaks) organizations and individuals and two comments from yacht 
clubs and individuals regarding the expansion of the security zones 
around Ellis and Liberty Islands. The comments raised the concerns of 
HPVs and sailboats being forced to increase the amount of time they 
navigate in the Federal Anchorage Channel due to the security zone 
expansion. This would create increased interactions between these 
recreational boaters in Anchorage Channel with ships, tugs and barges, 
the Staten Island Ferry and other commuter ferries. Additionally, the 
HPV comments were concerned with not being able to transit between 
Ellis and Liberty Islands or along the Liberty State Park shoreline. 
They stated these are protected waters where they often rest prior to 
re-crossing Anchorage Channel. Many of the comments also questioned the 
need for the current 150-yard security zone 7 years after the terrorist 
attacks. In light of the public comments received we are changing the 
final rule from the NPRM by withdrawing the expansion of the Ellis and 
Liberty Islands security zones from this rulemaking. If changes to the 
current Ellis and Liberty Islands 150-yard security zones are proposed 
in the future, a new Notice of Proposed Rulemaking will be published in 
the Federal Register.
    Lastly, pending further review, we have removed the portions of 
this rule which proposed that individuals submit specific information 
to the Coast Guard Captain of the Port, a designated representative or 
designated on-scene patrol personnel as a method of obtaining entry 
into the safety and security zones identified in Sec.  165.169. 
Individuals requesting entry into the safety and security zones 
identified in Sec.  165.169 will still be required to gain 
authorization for entry into the zones prior to entering the same, and 
as such they should ensure that they comply with this final rule. After 
completing review we may amend this final rule in a manner that will 
identify the specific information required to gain entry into the 
safety and security zones in Sec.  165.169.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary.

[[Page 7190]]

This finding is based on the following facts. Access to all zones 
modified within the regulation may be granted through coordination with 
the Captain of the Port. With regard to the changes to the Commercial 
Waterfront Facilities, this rule reduces the number of safety and 
security zones around commercial waterfront facilities, thereby 
reducing the level of regulatory impact. The proposed expansion of the 
Ellis and Liberty Islands security zones in the NPRM has been withdrawn 
in this Final Rule. With regard to the changes for the New York City 
Passenger Ship Terminal safety and security zone, the rule reduces the 
size of the regulated area. With regard to the changes for the 
inclusion of LHG Vessels, the regulation implements less restrictive 
regulations for those currently in effect. With regard to the addition 
of regulations relating to cruise ships, the rule relocates the current 
regulation regarding cruise ships contained in 33 CFR part 169.160 to 
the new section with modifications to the definition. This change does 
not create a new type of security zone; rather, it moves an existing 
regulation to another section of the regulations, thereby creating no 
significant change for regulated entities. With regard to the changes 
for the inclusion of the 134th Street Pipeline Metering and Regulating 
Station pier, vessels will be able to transit around the zone with 
little to no increase in transit time. With regard to the changes for 
the modification to the Security Zone at Naval Weapons Station Earle, 
Sandy Hook Bay, New Jersey, this regulation only aligns 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 rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule may 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 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 Planning and Review section above.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). 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 rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

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

[[Page 7191]]

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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 5100.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
under the Instruction that there are no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation. This regulation changes current safety and 
security zones and disestablishes other safety and security zones; 
therefore, paragraph (34)(g) of the instruction applies.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR Part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 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.


0
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]27'28.5'' N, 074[deg]02'10.4'' W; thence to 40[deg]26'29.5'' N, 
074[deg]02'51.2'' W; thence to 40[deg]26'31.4'' N, 074[deg]02'55.4'' W; 
thence to 40[deg]25'27.1'' N, 074[deg]03'39.7'' W; thence northwest 
along the shoreline to the beginning point.
* * * * *


Sec.  165.160  [Removed]

0
3. Remove Sec.  165.160.


Sec.  165.169  [Amended]

0
4. In Sec.  165.169--
0
a. Revise paragraphs (a)(3), (a)(6), and (a)(12) to read as follows;
0
b. Add paragraphs (a)(13) through (a)(17) to read as follows; and
0
c. Remove paragraphs (b)(3) through (b)(5), and (c):


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.
    (C) Vessels may transit through any portion of the zone that 
extends into the navigable channel for the sole purpose of direct and 
expeditious transit so long as they remain within the navigable 
channel, maintain the maximum safe distance from the Part 105 facility, 
and do not stop or loiter within the zone.
* * * * *
    (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.
* * * * *

[[Page 7192]]

    (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 flag under Pub. 102, 
International Code of Signals) 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 
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 flag under 
Pub 102, International Code of Signals from the outermost halyard 
(above the pilot house) where it can most easily be seen. Vessels that 
are constrained by their draft from leaving the channel may transit 
through the zone for the sole purpose of direct and expeditious transit 
so long as they remain within the navigable channel, maintain the 
maximum possible safe distance from the Designated Vessel, and do not 
stop or loiter within the zone. 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.
    (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

[[Page 7193]]

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.
    (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: November 3, 2008.
Robert R. O'Brien, Jr.,
Captain, U.S. Coast Guard, Captain of the Port, New York.

    Editorial Note: This document was received in the Office of the 
Federal Register on Tuesday, February 10, 2009.

[FR Doc. E9-3162 Filed 2-12-09; 8:45 am]

BILLING CODE 4910-15-P
