Safety and Security Zones; New York Marine Inspection and Captain of the Port Zone, 30041-30044 [2018-13863]
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Federal Register / Vol. 83, No. 124 / Wednesday, June 27, 2018 / Rules and Regulations
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:
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
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.
Safety and Security Zones; New York
Marine Inspection and Captain of the
Port Zone
Coast Guard, DHS.
Final rule.
AGENCY:
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 https://
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 Kristina.H.Pundt@uscg.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
§ 165.T09–0467 Safety Zone; Lakewood
Independence Day Fireworks; Lake Erie,
Lakewood, OH.
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[Docket Number USCG–2016–0799]
ACTION:
2. Add § 165.T09–0467 to read as
follows:
■
(a) Location. This zone will
encompass all U.S waterways within a
420-foot radius of the fireworks launch
site located at position 41°29′50″ N,
081°47′52″ W, Lakewood, OH (NAD 83).
(b) Enforcement period. This
regulation is effective and will be
enforced from 9:45 p.m. until 10:45 p.m.
on July 4, 2018.
(c) Regulations. (1) In accordance with
the general regulations in § 165.23 of
this part, entry into, transiting, or
anchoring within this safety zone is
prohibited unless authorized by the
Captain of the Port Buffalo or his
designated on-scene representative.
(2) This safety zone is closed to all
vessel traffic, except as may be
permitted by the Captain of the Port
Buffalo or his designated on-scene
representative.
(3) The ‘‘on-scene representative’’ of
the Captain of the Port Buffalo is any
Coast Guard commissioned, warrant or
petty officer who has been designated
by the Captain of the Port Buffalo to act
on his behalf.
(4) Vessel operators desiring to enter
or operate within the safety zone shall
contact the Captain of the Port Buffalo
or his on-scene representative to obtain
permission to do so. The Captain of the
Port Buffalo or his on-scene
representative may be contacted via
VHF Channel 16. Vessel operators given
permission to enter or operate in the
safety zone must comply with all
directions given to them by the Captain
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33 CFR Part 165
RIN 1625–AA87
1. The authority citation for part 165
continues to read as follows:
■
14:30 Jun 26, 2018
Dated: June 21, 2018.
Joseph S. Dufresne,
Captain, U.S. Coast Guard, Captain of the
Port Buffalo.
[FR Doc. 2018–13747 Filed 6–26–18; 8:45 am]
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
VerDate Sep<11>2014
of the Port Buffalo, or his on-scene
representative.
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
§ Section
U.S.C. United States Code
COTP Captain of the Port
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NPS
30041
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
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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
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14:30 Jun 26, 2018
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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
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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 preapproved 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-bycase basis. The text in the NPRM
referred to the zone as a ‘‘security
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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.
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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
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14:30 Jun 26, 2018
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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.
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30043
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
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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.
1. The authority citation for part 165
continues to read as follows:
■
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]
■
2. In § 165.169, revise paragraph (a)(4)
to read as follows:
DEPARTMENT OF HOMELAND
SECURITY
§ 165.169 Safety and Security Zones: New
York Marine Inspection Zone and Captain of
the Port Zone.
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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.
Coast Guard
(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
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BILLING CODE 9110–04–P
33 CFR Part 165
[Docket Number USCG–2018–0595]
RIN 1625–AA00
Safety Zone; Town of Hamburg July
3rd Party, Lake Erie, Blasdell, NY
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
navigable waters within a 420-foot
radius of the launch site located at
Woodlawn Beach, Lake Erie, Blasdell,
NY. This safety zone is intended to
restrict vessels from portions of Lake
Erie during Town of Hamburg July 3rd
Party. This temporary safety zone is
necessary to protect mariners and
vessels from the navigational hazards
associated with a fireworks display.
Entry of vessels or persons into this
zone is prohibited unless specifically
authorized by the Captain of the Port
Buffalo.
SUMMARY:
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This rule is effective from 9:45
p.m. until 10:45 p.m. on July 3, 2018.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2018–
0595 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 LT Michael Collet, Chief
Waterways Management Division, U.S.
Coast Guard; telephone 716–843–9322,
email D09-SMB-SECBuffalo-WWM@
uscg.mil.
DATES:
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because the
event sponsor did not submit notice to
the Coast Guard with sufficient time
remaining before the event to publish an
NPRM. Delaying the effective date of
this rule to wait for a comment period
to run would be impracticable and
contrary to the public interest by
inhibiting the Coast Guard’s ability to
protect spectators and vessels form the
hazards associated with a fireworks
display.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register because doing so would be
impracticable and contrary to the public
interest. Delaying the effective date
would be contrary to the rule’s
objectives of ensuring safety of life on
the navigable waters and protection of
persons and vessels in vicinity of the
fireworks display.
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Agencies
[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]
-----------------------------------------------------------------------
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 https://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]
BILLING CODE 9110-04-P