[Federal Register Volume 68, Number 218 (Wednesday, November 12, 2003)]
[Rules and Regulations]
[Pages 63988-63991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28330]


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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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