[Federal Register: November 12, 2003 (Volume 68, Number 218)]
[Rules and Regulations]
[Page 63988-63991]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no03-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD07-03-069]
RIN 1625-AA11
Regulated Navigation Area; Port Everglades Harbor, Fort
Lauderdale, FL
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard has established a regulated navigation area in
Port Everglades Harbor, Fort Lauderdale, Florida to promote national
security and the safety and security of the harbor by enhancing law
enforcement officer's opportunity to better protect high-risk vessels
and facilities in Port Everglades Harbor. This rule establishes a slow
speed zone in the harbor for vessels less than 150 meters in length.
DATES: This rule is effective November 12, 2003.
ADDRESSES: Comments and material received from the public, as well as
[[Page 63989]]
documents indicated in this preamble as being available in the docket,
are part of docket [CGD07-03-069] and are available for inspection or
copying at U.S. Coast Guard, Marine Safety Office, 100 MacArthur
Causeway, Miami, Florida 33139 between 8 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LT Douglas Tindall, Coast Guard Marine
Safety Office Miami, Waterways Management at (305) 535-8701.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On April 25, 2003, the Coast Guard issued a temporary final rule
entitled ``Regulated Navigation Area; Port Everglades Harbor, Fort
Lauderdale, FL'' (68 FR 25498, May 13, 2003) creating a temporary
regulated navigation area within Port Everglades Harbor. On June 6,
2003, we published a notice of proposed rulemaking (NPRM) entitled
``Regulated Navigation Area; Port Everglades Harbor, Fort Lauderdale,
FL'' in the Federal Register (68 FR 33896).
We received four letters commenting on the proposed rule. No public
hearing was requested, and none was held. 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. This rule
is an important enforcement tool that assists law enforcement officials
in responding to port security threats, protecting public safety, and
ensuring the security of the Port and waterways. Therefore, delay of
the effective date of this rule is contrary to public interest.
Background and Purpose
The terrorist attacks of September 2001 killed thousands of people
and heightened the need for development of various security measures
throughout the seaports of the United States. The President declared
national emergencies following the September 11, 2001 terrorist attacks
and has continued them, specifically: The Continuation of the National
Emergency with Respect to Certain Terrorist Attacks (67 FR 58317, Sep.
13, 2002); and the Continuation of the National Emergency With Respect
to Persons Who Commit, Threaten to Commit, or Support Terrorism (67 FR
59447, Sep. 20, 2002). In Executive Order 13273, the President
published a finding that, pursuant to law, including the Magnuson Act
(50 U.S.C. 191 et seq.), the security of the United States is
endangered because of the September 11, 2001 terrorist attacks on the
United States (67 FR 56215, Aug. 21, 2002). Following the September
2001 attacks, national security and intelligence officials warned that
future terrorist attacks are likely.
The Captain of the Port (COTP) Miami has determined that there is
an increased risk that subversive activity could be launched by vessels
or persons in close proximity to Port Everglades because of the
numerous high-capacity passenger vessels, vessels carrying hazardous
cargo, critical infrastructure facilities including propane and
petroleum processing facilities, and U.S. military vessels that use the
port. This regulated navigation area will aid law enforcement officials
in monitoring vessel traffic, because vessels not complying with the
slow speed zone will quickly draw attention, giving law enforcement
officials more time to assess the situation and take appropriate action
to protect vessels within the port and port facilities.
The temporary final rule the Coast Guard issued April 25, 2003,
entitled ``Regulated Navigation Area; Port Everglades Harbor, Fort
Lauderdale, Florida'' (68 FR 25498) created a temporary regulated
navigation area that encompassed a larger area of the port than this
final rule encompasses. That temporary final rule expired at 12:01 a.m.
on September 1, 2003. Prior to the creation of that temporary final
rule, vessels were able to enter the harbor from sea at a high rate of
speed and maintain that high rate of speed in the harbor until coming
in close proximity of high capacity passenger vessels, vessels carrying
hazardous cargo, critical infrastructure facilities and U.S. military
vessels that are often moored within an existing security zone or naval
vessel protection zone. Law enforcement officials did not have
sufficient time to react to vessels that failed to slow their speed
prior to reaching the limits of the existing security zone or naval
vessel protection zone. This regulated navigation area is necessary to
protect the public, port, law enforcement officials, and waterways of
the United States from potential subversive acts.
Nothing in this final rule relieves vessels or operators from
complying with all state and local laws in the regulated area,
including manatee slow speed zones.
Discussion of Comments and Changes
We received four letters offering comments on the proposed rule.
Generally, the comments were in opposition to the proposed rule.
Comments addressed the following areas:
[sbull] Overall effectiveness of the speed restrictions;
[sbull] Smaller vessels impeding larger vessels within the channel;
[sbull] Economic effects; and
[sbull] Rules of the road conflicts.
As a result of these comments, we made the following changes: In
paragraph (a) the original eastern RNA boundaries in Bar Cut were moved
west approximately 1300 feet removing the narrowest portion of Bar Cut
from the zone, and the RNA westerly boundaries were moved east to
coincide with existing state and local slow speed zones; and in
paragraph (b) a reference to construing this rule as consistent with
the Inland Navigation Rules' safe speed requirement was added. Each
comment is discussed in more detail in the following four paragraphs.
Overall effectiveness. Two comments questioned the overall
effectiveness of the speed restrictions. They opined that any terrorist
focused on causing destruction to the port will maneuver his vessel at
the posted speed so as not to call attention to himself, approach his
target and complete his goal. While this rule is not a panacea for port
security, we disagree that it is ineffective. This rule will assist law
enforcement officials in protecting the Port by enabling law
enforcement officials to discriminate suspect vessels from legitimate
marine traffic and will provide law enforcement officials with more
time to investigate suspect vessels. The slow speed restriction makes
vessels traveling at high speeds, vessels that rapidly increase speed,
and vessels that are on headings toward critical infrastructure, high
capacity passenger vessels, vessels carrying hazardous cargo, etc. more
easily identifiable to law enforcement officials.
Smaller vessels impeding larger vessels. Two comments expressed
concern about recreational boaters impeding commercial vessels due to
their inability to move swiftly in the channel. The comments stated
that since the implementation of the temporary rule, there has been a
dramatic increase in the number of close quarter's situations. The
comment suggested that if this rule is implemented, in the interest of
safe navigation, the Inner Bar Cut should be closed to all recreational
vessels when commercial traffic is transiting the channel. The Coast
Guard agrees with the potential for smaller vessels to impede larger
commercial vessels. However, the Coast Guard disagrees that closing the
channel to recreational vessels when commercial traffic is transiting
is an appropriate way to prevent close quarters situations. The
[[Page 63990]]
Coast Guard believes that by moving the boundaries of the RNA, which
reduces the area within the channel covered by the RNA, the potential
for smaller vessels to impede larger commercial vessels is minimized.
Economic effects. One comment expressed a fear that this rule would
be overly burdensome or nonsensical and it will cause recreational
boaters to seek other hobbies. The comment expressed a fear that with
less boaters operating, service providers, restaurants, fuel docks,
marinas, repair facilities and assistance companies who depend on
boating traffic will suffer negative economic impacts. The Coast Guard
disagrees. Local and federal law enforcement officials on scene
observed no decrease in vessel traffic from the period prior to the
temporary rule going into effect and during the time the temporary rule
was in effect.
Conflicts with the Rules of the Road. One comment expressed a
concern that the rule will directly conflict with the Inland Rules of
the Road. Rule 6 of the Inland Navigation Rules contained in the Inland
Navigational Rules Act of 1980 (33 U.S.C. 2001 et. seq.) requires every
vessel to proceed at a safe speed at all times so as to avoid collision
and to stop within an appropriate distance given prevailing
circumstances and conditions. (33 U.S.C. 2006, and see 33 CFR 89.23).
The comment states that the area of the channel to which the proposed
slow speed zone applies is the very area in which large commercial
traffic is either accelerating to overcome the effects of cross wind
and current or reducing speed prior to entering the confines of the
port. The Coast Guard agrees that larger vessels may have to adjust
their acceleration to overcome the effects of cross wind and current.
As a result, the Coast Guard has moved the boundaries of the RNA,
effectively reducing the area within the channel covered by the RNA,
giving large vessels more area to slow down and speed up, to overcome
the wind and current affects. Additionally, the Coast Guard is not
subjecting vessels 150 meters or greater to the RNA's slow speed
requirement. Finally, reducing the size of the RNA within the channel
has removed the narrowest portion of the Inner Bar Cut from the RNA
thus further minimizing the potential for smaller vessels to impede
larger vessels operating within the channel.
Regulatory Evaluation
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). The Coast Guard expects the economic impact of this
rule to be so minimal that a full regulatory evaluation under the
regulatory policies and procedures of DHS is unnecessary. The regulated
navigation area is narrowly tailored to protect the public, ports and
waterways of the United States. Vessels may transit through the
regulated navigation area but must proceed at a slow speed.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
includes 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. The regulated navigation area is narrowly tailored to protect
the public, port and waterways of the United States in Port Everglades,
Florida. Vessels may transit through the regulated navigation area but
must proceed at a slow speed.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.
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).
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. Although this rule will not result in such 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.
[[Page 63991]]
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.
Environment
We have analyzed this rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have
concluded 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)(g), of the Instruction, from further environmental
documentation. A final ``Environmental Analysis Check List'' and a
final ``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; 50 U.S.C.
191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 106.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.765 to read as follows:
Sec. 165.765 Regulated Navigation Area; Port Everglades Harbor, Fort
Lauderdale, Florida.
(a) Location. The following area in Port Everglades harbor is a
regulated navigation area: all waters of Port Everglades harbor, from
shore to shore, encompassed by a line commencing at the south mid-point
tip of Harbor Heights approximately 26[deg]05.687' N, 080[deg]06.684'
W; thence south across Bar Cut to a point north of the Nova University
Marina approximately 26[deg]05.552' N, 080[deg]06.682' W, thence
southwesterly to a point near the center of Lake Mabel approximately
26[deg]05.482' N, 080[deg]06.793' W, thence northwesterly to a point
near the Quick Flashing Red 12 approximately 26[deg]05.666' N,
080[deg]06.947' W, thence east to south mid-point tip of Harbor Heights
(starting point) approximately 26[deg]05.687' N, 080[deg]06.684' W.
(b) Regulations. Vessels less than 150 meters entering and
transiting through the regulated navigation area shall proceed at a
slow speed. Nothing in this section alleviates vessels or operators
from complying with all state and local laws in the area including
manatee slow speed zones. Nor should anything in this section be
construed as conflicting with the requirement to operate at safe speed
under the Inland Navigation Rules, 33 U.S.C. 2001 et seq.
(c) Definition. As used in this section, slow speed means the speed
at which a vessel proceeds when it is fully off plane, completely
settled in the water and not creating excessive wake. Due to the
different speeds at which vessels of different sizes and configurations
may travel while in compliance with this definition, no specific speed
is assigned to slow speed. A vessel is not proceeding at slow speed if
it is:
(1) On a plane;
(2) In the process of coming up on or coming off of plane; or
(3) Creating an excessive wake.
Dated: October 31, 2003.
H.E. Johnson, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 03-28330 Filed 11-10-03; 8:45 am]
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