[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Proposed Rules]
[Pages 62235-62237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24808]



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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a security zone 
encompassing the navigable waters of the West Basin, Port Canaveral 
Harbor, Cape Canaveral, Florida. This security zone would 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 would remain activated until the departure of all 
cruise ships from the West Basin.

DATES: Comments and related material must reach the Coast Guard on or 
before December 19, 2008.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2008-0752 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call Lieutenant Commander Mark Gibbs at Coast Guard Sector 
Jacksonville Prevention Department. Contact telephone is 904-564-7563. 
If you have questions on viewing or submitting material to the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0752), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and a mailing address, 
an e-mail address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov at 
any time. Enter the docket number for this rulemaking (USCG-2008-0752) 
in the Search Documents box, and click ``Go >>.'' You may also visit 
either the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays; or the Coast Guard 
Sector Jacksonville Prevention Department, 4200 Ocean St., Atlantic 
Beach, FL 32233-2416 between 7:30 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

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, Maritime Security (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

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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 Proposed Rule

    The security zone area includes all waters of the West Basin, Port 
Canaveral Harbor, Cape Canaveral, FL northwest of an imaginary line 
between two points: 28[deg]24[min]57.88[sec] N, 
080[deg]37[min]25.69[sec] W to 28[deg]24[min]37.48[sec] N, 
080[deg]37[min]34.03[sec] W. When the security zone is activated, and 
thus subject to enforcement, entry is prohibited unless specifically 
authorized by the Captain of the Port Jacksonville or his designated 
representative.
    This security zone would be activated 4 hours before the scheduled 
arrival of a cruise ship at the West Basin. It is only enforceable 
during MARSEC Levels 2 and 3 or when the COTP determines there is a 
specific credible threat during MARSEC Level 1. This security zone 
would remain activated until the departure of all cruise ships from the 
West Basin or when the credible threat no longer exists. The 
restriction of vessel movements within this security zone is intended 
to prohibit the movement of all vessels not operated by a local, State, 
or Federal law enforcement organization unless specifically authorized 
by the Captain of the Port, or his designated representative. The 
public would be notified when the security zone is activated by the 
display of a red flag on a 50-foot pole located at the east end of 
Cruise Ship terminal 10 that is visible from all approaches to the 
zone.

Regulatory Analyses

    We developed this proposed 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 proposed 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 a significant action because this security zone would 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 not 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 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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This security zone would 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. 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.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact Lieutenant 
Commander Mark Gibbs at Coast Guard Sector Jacksonville Prevention 
Department. Contact telephone is 904-564-7563. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045,

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Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination under the Instruction that this 
action is not likely to have a significant effect on the human 
environment. An environmental analysis checklist supporting this 
preliminary determination is available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this proposed 
rule.

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 proposes 
to amend 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; 50 
U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 
116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.

    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 Captain 
of the Port Jacksonville (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 flag on a 50-foot pole located at the east end 
of Cruise Ship terminal 10. This red flag will be lowered when the 
security zone is deactivated.
    (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: September 29, 2008.
Paul F. Thomas,
Captain, U.S. Coast Guard, Captain of the Port Jacksonville.
[FR Doc. E8-24808 Filed 10-17-08; 8:45 am]
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