[Federal Register Volume 74, Number 66 (Wednesday, April 8, 2009)]
[Rules and Regulations]
[Pages 15854-15856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7985]


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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.

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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

[[Page 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

[[Page 15856]]

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.

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.777 to read as follows:


Sec.  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[deg]24'57.88'' N, 
080[deg]37'25.69'' W to 28[deg]24'37.48'' N, 080[deg]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]
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