[Federal Register: April 8, 2009 (Volume 74, Number 66)]
[Rules and Regulations]
[Page 15854-15856]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ap09-9]
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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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