15854 Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Rules and Regulations 

Dated: February 19, 2009. 

Fred M. Rosa, Jr., 

Rear Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. E9–7885 Filed 4–7–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–0752] 

RIN 1625–AA87 

Security Zone; West Basin, Port 

Canaveral Harbor, Cape Canaveral, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard has 

established a security zone 

encompassing the navigable waters of 

the West Basin, Port Canaveral Harbor, 

Cape Canaveral, Florida. This security 

zone will be activated 4 hours prior to 

the scheduled arrival of a cruise ship at 

the West Basin. It is only enforceable 

during Maritime Security (MARSEC) 

Levels 2 and 3 or when there is a 

specific credible threat during MARSEC 

Level 1. This security zone will remain 

activated until the departure of all 

cruise ships from the West Basin. 

DATES: This rule is effective May 8, 

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–2008–0752 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– 

2008–0752 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 Coast 

Guard Sector Jacksonville Prevention 

Department, 4200 Ocean Street, Atlantic 

Beach, Florida 32233, between 8 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call 

Lieutenant Commander Mark Gibbs at 

Coast Guard Sector Jacksonville 

Prevention Department, Florida. Contact 

telephone is (904) 564–7563. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On October 20, 2008, we published a 

notice of proposed rulemaking (NPRM) 

entitled Security Zone; West Basin, Port 

Canaveral Harbor, Cape Canaveral, 

Florida in the Federal Register (73 FR 

62235). We received three letters 

commenting on the rule. No public 

meeting was requested, and none was 

held. 

Background and Purpose 

The September 11, 2001, terrorist 

attacks on the World Trade Center 

complex in New York and the Pentagon 

in Arlington, Virginia, proved the 

devastating effects of subversive activity 

on U.S. critical infrastructure. Since that 

time, the Coast Guard has been taking 

action to ensure the security of maritime 

critical infrastructure and key resources 

throughout the country. 

Subversive activity towards cruise 

ships and their associated passengers 

and crew is of paramount concern to the 

Coast Guard. Therefore, in order to 

strengthen security and further control 

access to the West Basin, the Captain of 

the Port Jacksonville has decided, after 

consultation with the Northeast and 

Eastern Central Florida Area Maritime 

Security Committee and in cooperation 

with the Canaveral Port Authority, to 

implement a security zone 

encompassing the West Basin. This 

security zone is only enforceable during 

MARSEC Levels 2 and 3 or when there 

is a specified credible threat during 

MARSEC Level 1. 

As reflected in 33 CFR 101.105, 

MARSEC level means the level set to 

reflect the prevailing threat environment 

to the marine elements of the national 

transportation system, including ports, 

vessels, facilities, and critical assets and 

infrastructure located on or adjacent to 

waters subject to the jurisdiction of the 

U.S. The higher the level number, the 

greater the threat: 

MARSEC Level 1 means the level for which 

minimum appropriate protective security 

measures shall be maintained at all times. 

MARSEC Level 2 means the level for which 

appropriate additional protective security 

measures shall be maintained for a period of 

time as a result of heightened risk of a 

transportation security incident. 

MARSEC Level 3 means the level for which 

further specific protective security measures 

shall be maintained for a limited period of 

time when a transportation security incident 

is probable or imminent, although it may not 

be possible to identify the specific target. 

As specified in 33 CFR 101.300, the 

Captain of the Port will communicate 

any changes in the MARSEC levels 

through a local Broadcast Notice to 

Mariners, an electronic means, if 

available, or as detailed in the Area 

Maritime Security Plan developed 

under 46 U.S.C. 70103(b). 

Discussion of Comments and Changes 

The Coast Guard received three 

comments in response to the NPRM. 

One comment was received from a 

private citizen; one comment was 

received from the Navigation Safety 

Advisory Council (NAVSAC); and one 

comment was received from the Florida 

Fish and Wildlife Conservation 

Commission (FWC). 

The private citizen’s comment 

addressed his displeasure of a security 

zone being used to protect cruise ships 

in the West Basin of Port Canaveral 

Harbor. The commenter felt that cruise 

ships should build private ports and not 

be permitted to dock in public 

waterways. 

The Coast Guard took the individual’s 

comments into consideration; however 

the need to protect cruise ships and 

their passengers and crew is of 

paramount concern to the Coast Guard. 

The Coast Guard feels the best way to 

address this concern is to establish this 

security zone. Since this zone will only 

be active during MARSEC 2 and 3 or 

when there is a specific credible threat 

during MARSEC 1, the Coast Guard has 

determined there will be minimal 

impact on all waterways users. 

The comments from the NAVSAC and 

FWC addressed concerns pertaining to 

the rule’s notification to the public 

when the security zone is activated. 

They are of the opinion that a red flag 

on a 50-foot pole located at the east end 

of Cruise Ship terminal 10 would not be 

an appropriate means of notifying the 

public. The NAVSAC and FWC are 

concerned that the red flag could be 

mistaken as the ‘‘divers down’’ flag or 

the ‘‘bravo’’ flag. They are also of the 

opinion that law enforcement officers 

will be reluctant to enforce the 

regulation against vessel operators who 

claim not to have understood the 

meaning of the red flag. They believe 

the use of a red flag will make it more 

difficult to prosecute violators of the 

security zone because it will be harder 

to prove the element of knowledge. 

They feel prosecutors will be less likely 

to accept these cases and judges will be 

more likely to dismiss the charges. The 

NAVSAC and FWC recommend that a 

regulatory mark be placed at the 


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Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Rules and Regulations 15855 

entrance to the West Basin of Port 

Canaveral Harbor to notify the public 

when the security zone was activated. 

The Coast Guard concurs with the 

NAVSAC and FWC’s concerns over the 

use of a red flag, and will use a red ball 

which is consistent with other security 

zone regulations in the Port Canaveral 

area. A permanent regulatory mark 

would be impracticable due to the need 

to activate the zone quickly. To ensure 

boaters are given sufficient knowledge 

of the security zone, the Coast Guard 

will continuously broadcast the 

activations of the zone and law 

enforcement vessels will be on scene to 

inform boaters that the zone has been 

activated. Vessels encroaching on the 

security zone will be issued a Public 

Notice which clearly states the location 

of the security zone and the times it will 

be enforced. This will be the boater’s 

first warning prior to enforcement 

action being taken. 

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. 

It is not ‘‘significant’’ under the 

regulatory policies and procedures of 

the Department of Homeland Security 

(DHS) because this security zone would 

only be activated 4 hours prior to the 

scheduled arrival of a cruise ship at the 

West Basin. It is only enforceable during 

MARSEC Levels 2 and 3 or when there 

is a specific credible threat during 

MARSEC Level 1. Once activated, this 

security zone would remain activated 

until the departure of all cruise ships 

from the West Basin or when the 

Captain of the Port Jacksonville (COTP) 

determines there is a specific credible 

threat during MARSEC Level 1. This 

security zone would be wholly confined 

within the existing West Basin and 

would not impede traffic transiting from 

the Banana River to the Atlantic Ocean. 

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 security zone will be activated 4 

hours prior to the scheduled arrival of 

a cruise ship at the West Basin. It is only 

enforceable during MARSEC Levels 2 

and 3 or when there is a specific 

credible threat during MARSEC Level 1. 

Once activated, this security zone will 

remain activated until the departure of 

all cruise ships from the West Basin. 

This security zone will be wholly 

confined within the existing West Basin 

and will not impede traffic transiting 

from the Banana River to the Atlantic 

Ocean. 

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. 

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 


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15856 Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Rules and Regulations 

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)(f), of the Instruction, 

from further environmental 

documentation. 

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. 

■ 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: 

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; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.777 to read as follows: 

§ 165.777 Security Zone; West Basin, Port 

Canaveral Harbor, Cape Canaveral, Florida. 

(a) Regulated area. The following area 

is a security zone: All waters of the West 

Basin of Port Canaveral Harbor 

northwest of an imaginary line between 

two points: 28°24′57.88′′ N, 

080°37′25.69′′ W to 28°24′37.48′′ N, 

080°37′34.03′′ W. 

(b) Requirement. (1) This security 

zone will be activated 4 hours prior to 

the scheduled arrival of a cruise ship at 

the West Basin of Port Canaveral Harbor 

during MARSEC Levels 2 and 3 or when 

the COTP determines there is a 

specified credible threat during 

MARSEC Level 1. This security zone 

will not be deactivated until the 

departure of all cruise ships from the 

West Basin. The zone is subject to 

enforcement when it is activated. 

(2) Under general security zone 

regulations of 33 CFR 165.33, no vessel 

or person may enter or navigate within 

the regulated area unless specifically 

authorized by the COTP or the COTP’s 

designated representative. Any person 

or vessel authorized to enter the security 

zone must operate in strict conformance 

with any direction given by the COTP 

or a designated representative and leave 

the security zone immediately if so 

ordered. 

(3) The public will be notified when 

the security zone is activated by the 

display of a red ball on a 50-foot pole 

located at the east end of Cruise Ship 

terminal 10. This red ball will be 

lowered when the security zone is 

deactivated. To ensure boaters are given 

sufficient knowledge of the security 

zone, the Coast Guard will continuously 

broadcast the activations of the zone 

and law enforcement vessels will be on 

scene to inform boaters that the zone 

has been activated. Vessels encroaching 

on the security zone will be issued a 

Public Notice which clearly states the 

location of the security zone and the 

times it will be enforced. This will be 

the boater’s first warning prior to 

enforcement action being taken. 

(c) Definitions. The following 

definition applies to this section: 

Designated representative means 

Coast Guard Patrol Commanders 

including Coast Guard coxswains, petty 

officers and other officers operating 

Coast Guard vessels, and federal, state, 

and local law enforcement officers 

designated by or assisting the COTP in 

the enforcement of the security zone. 

(d) Captain of the Port Contact 

Information. If you have questions about 

this regulation, please contact the Sector 

Command Center at (904) 564–7513. 

(e) Enforcement periods. This section 

will only be subject to enforcement 

when the security zone described in 

paragraph (a) is activated as specified in 

paragraph (b)(1) of this section. 

Dated: March 26, 2009. 

Paul F. Thomas, 

Captain, U.S. Coast Guard, Captain of the 

Port Jacksonville. 

[FR Doc. E9–7985 Filed 4–7–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[FRL–8760–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; Kansas; 

Update to Materials Incorporated by 

Reference 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of 

administrative change. 

SUMMARY: EPA is updating the materials 

submitted by Kansas that are 

incorporated by reference (IBR) into the 

state implementation plan (SIP). The 

regulations affected by this update have 

been previously submitted by the state 

agency and approved by EPA. This 

update affects the SIP materials that are 

available for public inspection at the 

National Archives and Records 

Administration (NARA), the Air and 

Radiation Docket and Information 

Center located at EPA Headquarters in 

Washington, DC, and the Regional 

Office. 

DATES: Effective Date: This action is 

effective April 8, 2009. 

ADDRESSES: SIP materials which are 

incorporated by reference into 40 CFR 

part 52 are available for inspection at 

the following locations: Environmental 

Protection Agency, Region 7, 901 North 

5th Street, Kansas City, Kansas 66101, 

or at http://www.epa.gov/region07/ 

programs/artd/air/rules/fedapprv.htm; 

the Air and Radiation Docket and 

Information Center, EPA Headquarters 

Library, Room Number 3334, EPA West 

Building, 1301 Constitution Avenue, 

NW., Washington, DC 20460, and the 

National Archives and Records 

Administration. If you wish to obtain 

materials from a docket in the EPA 

Headquarters Library, please call the 

Office of Air and Radiation Docket at 

(202) 566–1742. For information on the 

availability of this material at NARA, 

call (202) 741–6030, or go to: http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

FOR FURTHER INFORMATION CONTACT: 

Evelyn VanGoethem at (913) 551–7659, 

or by e-mail at 

vangoethem.evelyn@epa.gov. 

SUPPLEMENTARY INFORMATION: The SIP is 

a living document which the state 

revises as necessary to address the 

unique air pollution problems in the 

state. Therefore, EPA from time to time 

must take action on SIP revisions 


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