[Federal Register Volume 83, Number 124 (Wednesday, June 27, 2018)]
[Rules and Regulations]
[Pages 30041-30044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13863]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2016-0799]
RIN 1625-AA87
Safety and Security Zones; New York Marine Inspection and Captain
of the Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is modifying the safety and security zone
surrounding the bridge between Liberty State Park and Ellis Island in
order to increase navigational safety in New York Harbor. This
modification authorizes certain vessels to transit underneath the
bridge, reducing vessel congestion in the adjacent Anchorage Channel.
All other persons and vessels continue to be prohibited from accessing
the zone unless authorized by the Captain of the Port New York or a
designated representative.
DATES: This rule is effective on June 27, 2018.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0799 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email MST1 Kristina Pundt, Waterways Management at U.S. Coast
Guard Sector New York, telephone 718-354-4352, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
ANPRM Advance notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
COTP Captain of the Port
NPS National Park Service
II. Background Information and Regulatory History
On November 27, 2002, the Coast Guard published a NPRM entitled,
``Safety and Security Zones; New York Marine Inspection and Captain of
the Port Zone'' in the Federal Register (67 FR 70892). The NPRM
proposed to establish a permanent safety and security zone encompassing
all waters within 150 yards of Liberty Island, Ellis Island, and the
bridge between Liberty State Park and Ellis Island. We received no
comments on the proposed rule. No public hearing was requested and none
was held. The current 150-yard permanent safety and security zone
around the bridge between Liberty State Park and Ellis Island became
effective in January 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 May 6, 2008, the Coast Guard published a NPRM entitled, ``Safety
and Security Zones; New York Marine Inspection Zone and Captain of the
Port'' in the Federal Register (73 FR 24889). The NPRM proposed to
modify several aspects of the permanent safety and security zone
regulations within the New York Captain of the Port Zone. We received
15 comments regarding the proposed rule. A public meeting was requested
to discuss the proposed expansion of the Liberty and Ellis Island
safety and security zone to include all waters within 400 yards of
these two islands and the bridge between Liberty State Park and Ellis
Island. On February 12, 2009, the Coast Guard published a final rule
entitled, ``Safety and Security Zones New York Marine Inspection Zone
and Captain of the Port Zone'' in the Federal Register (74 FR 7184).
However, based on the comments received, the Coast Guard did not expand
the Liberty and Ellis Island safety and security zone. As a result, a
public meeting was unnecessary and the zone remained 150 yards.
On November 3, 2016, the Coast Guard published an ANPRM entitled,
``Safety and Security Zones; New York Marine Inspection and Captain of
the Port Zone'' in the Federal Register (81 FR 76545). The ANPRM
solicited public comments on a potential rulemaking to modify the
existing safety and security zone around the bridge between Liberty
State Park and Ellis Island. In response to public requests, the
comment period was reopened for an additional 60 day period on February
14, 2017 (82 FR 10558). We received 125 comments
[[Page 30042]]
regarding the advance notice of proposed rulemaking. Out of the 125
comments received, 123 comments were in support of modifying the
existing safety and security zone around the bridge between Liberty
State Park and Ellis Island, almost all of which emphasized improving
navigation safety. The sole comment opposing modification of the zone,
provided by the National Park Service, expressed security concerns
regarding Ellis and Liberty Islands due to their historical symbolism.
The singular neutral comment received was unclear as to the commenter's
view on the proposed safety and security zone modification. The comment
addressed the federal job hiring process and stated that all security
zones should be eliminated, both of which are outside the purview of
this rulemaking.
In response to the comments received on the above mentioned ANPRM,
on April 20, 2018, the Coast Guard published a NPRM entitled, ``Safety
and Security Zones; New York Marine Inspection and Captain of the Port
Zone'' in the Federal Register (83 FR 17513). The NPRM solicited public
comments on our proposed regulatory action related to the safety and
security zone modification. During the comment period that ended May
21, 2018, we received 40 comments.
Under 5 U.S.C. 553(d)(1), the Coast Guard finds that an exception
exists for making this rule effective less than 30 days after
publication in the Federal Register. This safety and security zone
modification allows greater access to a previously restricted area.
Although the current regulation allows vessels to transit under the
Ellis Island Bridge with COTP permission, this modification grants
standing COTP approval for certain vessels to transit underneath the
bridge during specific time periods. Thus, this modification lessens
the regulatory burden on these vessels by allowing transit through the
safety and security zone without needing to seek prior COTP permission.
As this rule relieves a restriction, the Coast Guard finds that
delaying the effective date of this rule is unnecessary.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The COTP New York has determined that the vessel congestion in
the Anchorage Channel presents a hazard to mariners within New York
Harbor. The purpose of this safety and security zone modification is to
increase navigational safety within New York Harbor. By permitting
greater access for human powered vessels to transit underneath the
bridge between Ellis Island and Liberty State Park, the vessel
congestion in the adjacent Anchorage Channel will be reduced.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received 40 comments on our NPRM published April
20, 2018. Of the 40 comments received, 39 were in support of modifying
the existing safety and security zone to allow transit underneath the
Ellis Island Bridge, stating navigational safety will improve. The sole
neutral comment addressed the United States' trade relations with China
and is outside the purview of this rulemaking.
We received 25 comments recommending the 16 foot vessel length
either be eliminated or increased. 10 comments noted that many kayaks
are greater than 16 feet in length, with some of these comments
specifically noting that many sea kayaks are 18 feet or longer. 4
comments discussed that many canoes or row gigs navigating this area
are longer than 16 feet, ranging between 25 to 35 feet. We received
other comments stating human powered vessels in New York Harbor can
exceed 45 feet. Based on these comments, we are changing the regulatory
text of the NPRM to reflect that human powered vessels with a length
equal to or less than 25 feet may transit the zone. Increasing the
permissible length to equal to or less than 25 feet balances the need
for ensuring navigational safety and providing adequate security for
Ellis and Liberty Islands. In addition, mariners with human powered
vessels greater than 25 feet in length may request COTP permission to
transit the zone and these requests will be evaluated on a case-by-case
basis.
We received 15 comments regarding access to the safety and security
zone during weekdays and throughout the year. These comments noted that
the congestion in the Anchorage Channel poses a navigational safety
concern to human powered vessels regardless of the day of the week or
season of the year. Commenters further stated that many human powered
vessel trips are based upon favorable tides and weather.
Due to agency resource constraints, pre-approved access to the zone
cannot be extended to encompass all weekdays without compromising the
required security posture necessary to protect these national symbols.
Similarly, extending pre-approved access beyond the summer boating
season poses an unacceptable risk due to the lack of sufficient
resources to adequately maintain the required security presence such
access demands. Vessel congestion in New York Harbor is greatest on
weekend days during the summer months. Limiting pre-approval to certain
vessels transiting the zone on weekends during the peak summer boating
season, will help ensure adequate security for Ellis and Liberty
Islands and well as increase navigational safety. Mariners may request
COTP authorization to access the zone on weekdays and throughout the
year and each request will be evaluated on a case-by-case basis.
We received 11 comments requesting an expansion of the time of day
vessels are permitted to access the zone. Commenters requested vessels
be permitted to transit from sunrise to sunset, one hour before sunrise
and one hour after sunset, and 24 hour access to the zone. Commenters
noted that many human powered vessel trips are based upon favorable
tides, which do not necessary align with the times specified in the
NRPM. The Coast Guard believes that security concerns warrant the need
to limit the duration of time that transit is permissible. Visibility
is greatly reduced outside of the times specified in the NPRM. Where
there is reduced visibility the security threat is enhanced and
necessitates limiting the pre-approved access of the zone during
daylight hours. Also, due to Coast Guard and NPS resource constraints,
adequate security is unable to be provided at all times. The most
congested time of day in New York harbor is during the daytime.
Providing pre-approved COTP access to the zone during the busiest time
of day allows the Coast Guard to balance the navigational safety
concerns faced by human powered vessel users with the security concerns
of these historical landmarks.
We received 3 comments recommending there be a way to contact the
agencies through use of a VHF radio, in addition to the phone number
contact. The Coast Guard is changing the regulatory text of the NPRM to
add VHF Channel 13 as an additional notification method.
Additional changes to the regulatory text between the NPRM and the
Final Rule are incorporated below to improve understanding of the
modification imposed by this rule. Based on the comments addressing
concerns with the restriction on vessel length, weekday transit, and
duration of time that transit is permissible, 33 CFR 165.169(b)
provides that any person or vessel may request COTP authorization to
access the zone throughout the year and each request will be evaluated
on a case-by-case basis. The text in the NPRM referred to the zone as a
``security
[[Page 30043]]
zone.'' Per 33 CFR 165.169, it remains both a safety and security zone.
Both the preamble and the regulatory text now reflect this fact.
This rule modifies an existing safety and security zone. The
modification allows certain vessels to transit underneath the Ellis
Island Bridge on weekends and Federally Observed Holidays on a Friday
or Monday, beginning on Memorial Day Weekend through October 1, between
one hour after sunrise and one hour before sunset. Vessels making this
transit (a) must be able to safely navigate underneath the bridge, (b)
be human powered vessels with a length equal to or less than 25 feet
and (c) meet the horizontal and vertical navigational bridge
clearances. This rule allows for pre-approved COTP permission to
transit the zone when meeting the conditions listed in the regulatory
text. In accordance with 33 CFR 165.169(b), any person or vessel may
still request COTP permission to access the Ellis Island Bridge
security zone at any time and each request will be considered on a
case-by-case basis. The modified regulatory text is at the end of this
document.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the modification
allowing increased access to a previously restricted area. While the
current regulation allows vessels to transit under the Ellis Island
Bridge with COTP authorization, this modification grants standing COTP
approval for certain vessels to transit underneath the bridge during
specific time periods. Thus, this modification lessens the regulatory
burden on these vessels by allowing transit through the security zone
without needing to seek prior COTP permission. Moreover, the Coast
Guard will make the boating public aware of this modification through
publication in the Local Notice to Mariners, enhancing public notice of
the reduction of the regulatory burden on certain vessels.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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 received no comments from the Small Business
Administration on this rulemaking. 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.
While some owners or operators of vessels intending to transit the
security zone may be small entities, for the reasons stated in section
V.A. above, this rule will not have a significant economic impact on
any vessel owner or operator.
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 rule. If the rule will affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
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.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive
Order13132.
Also, 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
E. 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 (adjusted for
inflation) 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.
F. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Commandant Instruction M16475.1D, which guide the
Coast Guard in complying with the National Environmental Policy Act of
1969(42 U.S.C. 4321-4370f), and have determined that this action is one
of a category of actions that do not individually or cumulatively have
a significant effect on the human environment. This rule modifies a
security zone surrounding the bridge between Liberty State Park and
Ellis Island in order to permit greater vessel access. It is
categorically excluded from
[[Page 30044]]
further review under paragraph L60(b) of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental
Consideration supporting this determination is available in the docket
where indicated under ADDRESSES.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS.
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. In Sec. 165.169, revise paragraph (a)(4) to read as follows:
Sec. 165.169 Safety and Security Zones: New York Marine Inspection
Zone and Captain of the Port Zone.
(a) * * *
(4) Liberty and Ellis Islands--(i) Location. All waters within 150
yards of Liberty Island and Ellis Island, and the Ellis Island Bridge.
(ii) Ellis Island Bridge. In addition to any person or vessel
authorized pursuant to paragraph (b) of this section, vessels may
transit underneath the Ellis Island Bridge subject to the following
conditions:
(A) Dates/Times: On weekends only, to include Federally Observed
Holidays on a Friday or Monday, from Memorial Day Weekend through
October 1 each year, between one hour after sunrise and one hour before
sunset.
(B) Vessel types: Human powered vessels equal to or less than
twenty five feet. Human powered vessels must be able to safely navigate
under the bridge.
(C) Notification: Human powered vessels desiring to transit shall
contact the United States Park Police Command Center at 212-363-3260 or
VHF CH 13 regarding intentions of passage prior to entering the safety
and security zone and transiting under the Ellis Island Bridge.
(D) Route: Transits through the safety and security zone and under
the bridge shall occur only at the designated route marked with lights
and signage.
(E) Passage: Vessels transiting under the Ellis Island Bridge shall
make expeditious passage and not stop or loiter within the safety and
security zone.
(iii) Enforcement period. The safety and security zone described in
this subsection is effective at all times. Although certain vessels
have permission to enter the safety and security zone to transit under
the Ellis Island Bridge subject to the conditions outlined in
paragraphs (a)(4)(ii)(A)-(E) of this section, the safety and security
zone is in effect permanently and can be enforced at any time. When
deemed necessary the COTP may rescind the permission granted in
paragraphs (a)(4)(ii)(A)-(E) of this section for any period of time.
* * * * *
Dated: June 4, 2018.
M. H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2018-13863 Filed 6-26-18; 8:45 am]
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