05-11006. Regulated Navigation Area, Security Zone and Drawbridge Operation Regulations; Port Everglades, FL

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary regulated navigation area, temporary security zone and temporary drawbridge regulation during the Organization of American States (OAS) conference. These regulations are needed to provide for public safety and security during the OAS conference. The regulations will control the movement of vessels within the regulated navigation area, restrict access to the security zone, and alter the schedule of the Brooks Memorial Bascule Bridge.

DATES:

This rule is effective from June 4, 2005 until June 8, 2005.

ADDRESSES:

Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD07-05-031] and are available for inspection or copying at U.S. Coast Guard, Sector Miami Prevention Office, 100 MacArthur Causeway, Miami Beach, FL 33139 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Douglas Tindall, Waterways Management Office, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On April 29, 2005, we published a notice of proposed rulemaking (NPRM) entitled Regulated Navigation Area, Security Zone and Drawbridge Operation Regulations; Port Everglades, FL in the Federal Register (70 FR 22287). We did not receive any comments on the proposed rule. No public meeting 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. The regulation is needed to protect the public during the event and a delay would be contrary to the public interest.

Background and Purpose

Incidents of property damage and destruction during previous international conferences such as the September 2003 World Trade Organization (WTO) Ministerial in Cancun, Mexico, the 2003 G-8 Summit in Calgary, Canada, the 2001 G-8 Summit in Genoa, Italy, the 1999 Seattle World Trade Organization (WTO) Ministerial, and the 2003 Free Trade Area of the Americas (FTAA) conference in Miami, Florida indicate the potential for damage and destruction exists at the OAS conference in Ft. Lauderdale. Historically, trade conferences have experienced an influx of protestors and protest groups that oppose free international trade initiatives. Some of these groups have a propensity for violence and engage in seditious acts against conference attendees, conference venues, the general public, businesses, municipal buildings, and law enforcement personnel and equipment. Current information and intelligence indicates that there is a high potential for these groups to attempt similar acts during the OAS conference in Ft. Lauderdale.

Additionally, the Coast Guard has received information from local, state, and Federal law enforcement officials that persons may launch subversive acts from the waters surrounding OAS conference venues. In the past, such subversive acts have included the use of personal watercraft to penetrate physical barriers in an attempt to launch projectiles at conference venues and participants. Certain groups have also used Rigid Hull Inflatable Boats (RHIBs) to facilitate unauthorized boardings of commercial ships. The use of high speed, highly maneuverable low draft watercraft such as personal watercraft and RHIBs poses a significant security threat to OAS venues, participants, Port Everglades and the public.

These regulations are being established to mitigate the above-mentioned threats and are necessary to protect the public, attendees, law enforcement officials and port operations from violent, disruptive and seditious acts.

Discussion of Comments and Changes

No substantive changes to the rule were made although we did change the format of the regulation to comply with the regulatory drafting guide.

Discussion of Rule

The temporary security zone will prohibit all persons and vessels from entering the waters contained within an imaginary line drawn from a point at the southwest corner of the 17th Street Causeway Bridge where it meets the seawall; thence easterly to the western edge of the Intracoastal Waterway Channel; thence southerly along the western edge of the Intracoastal Waterway Channel to a point on the northeast corner of Pier 7, and all waters westward of that imaginary line. This security zone is necessary to ensure the waters surrounding the Broward County Convention Center, which is the primary venue for the OAS conference, are not used by persons attempting subversive acts. The size of the security zone is necessary to provide law enforcement officials with time and space to identify, query and stop vessels and persons suspected of attempting subversive acts against the OAS conference.

The Regulated Navigation Area (RNA) encompasses all waters contained within an imaginary line from a point on the northwestern corner of the 17th Street Causeway Bridge where it meets the seawall; thence northerly to the northeast corner of Pier 6; thence easterly across the Intracoastal Waterway and along and following the SE. 15th Street shoreline to a point on land at the intersection of the SE. 15th Street shoreline and the West Lake Drive Bridge; thence southerly along the West Lake Drive Bridge to the northeast mouth of the unnamed canal leading to Sylvan Lake; thence westerly across the canal and along and following the southern shoreline of the Mercedes River encompassing all waters of the Pier 66 Marina to a point on the northwestern point of the Pier 66 Marina; thence south easterly and easterly along and following the shoreline to a point of land directly north of Day Beacon “6”; thence south to a point of land due south of Day Beacon “7”; thence westerly and southerly along and following the shoreline of John U. Lloyd State Park to a point on the northern corner of the mouth of Whiskey Creek; thence westerly to a point of land on the southern tip of Pier 9; thence northerly along and following the shoreline to the northeast corner of Pier 7; thence northwesterly along the western edge of the Intracoastal Waterway to a point on the seawall at the northwestern corner of the 17th Street Causeway Bridge where it meets the seawall.

The RNA will require all vessels within the regulated area to proceed continuously and at slow speed. Slow speed is defined as the speed at which a vessel proceeds when it is fully off plane, completely settled into the water and not creating excessive wake. In no instance should slow speed be interpreted as a speed less than that required to maintain steerageway. Requiring vessels within the RNA to transit at slow speed will allow law enforcement officials to identify, respond to, query, and stop vessels that are suspected of presenting a threat to the public, Port Everglades, and the OAS conference participants. Additionally, the slow speed requirement will allow the Coast Guard to adequately protect against threats of hostile and violent acts carried out by smaller vessels against commercial vessels transiting within Port Everglades.

Vessels greater than 100 feet shall not enter the RNA until permission to enter is granted by the Maritime Operations Center (MOC) or Designated Representative so that the MOC can better direct traffic flow within the RNA.

The RNA prohibits all personal watercraft (PWCs) from operating within the regulated area. For purposes of this rule, personal watercraft refers to a vessel(s), less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. PWCs are designed to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bowsprits, bumpkins, rudders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches.

The regulation prohibits PWCs from operating within the RNA due to their maneuverability, high speed, and minimal draft which allows them to outrun law enforcement vessels, operate in shallow and restricted areas and hurdle or dive under barriers erected by law enforcement officials. These facts make PWCs the preferred vessel for persons attempting subversive and violent acts against OAS conference attendees, law enforcement officials and the public.

Rigid Hull Inflatable Boats (RHIBs) are also prohibited in the RNA with the exception of RHIBs operated by licensed commercial salvors. For purposes of this rule, Rigid Hull Inflatable Boats refers to a vessel which has an inflatable fabric or rubber collar or a foam collar surrounding the hull of the vessel. A RHIB's collar is normally joined to a fiberglass hull on larger models or a fabric hull on smaller models. Fabric hulls are often also themselves inflatable, or have an inflatable keel and sometimes have a soft or reinforced floor slated with wood or other rigid materials. RHIBs are powered by both outboard and inboard-outboard propulsion and because of their lightweight can easily be powered by oars as well. RHIBs' lightweight, enormous reserve buoyancy, stability, speed, maneuverability, shallow draft and large load-carrying capacity make them a preferred vessel for persons attempting illegal and subversive acts. Additionally, models with inflatable collars can be quickly deflated and stowed in small spaces and even carry bags. The collars are also non-marking, making them the preferred vessel for coming alongside other vessels, piers, docks, or facilities for the purpose of loading or offloading persons and cargo and thus, the preferred vessel for persons attempting unauthorized boarding of commercial vessels and illegal entries into waterfront facilities.

The RNA is necessary to ensure the safety of the public, Port Everglades, and the OAS conference as persons may attempt to board vessels while underway or moored in an effort to interrupt commerce and port operations. Also, persons may attempt unauthorized entry into or upon commercial and government facilities located along the main shipping channels throughout Port Everglades. The RNA, by regulating the movement of vessels, imposing a slow speed zone, and excluding personal watercraft and rigid hull inflatable boats, will assist law enforcement officials in ensuring the safety and security of Port Everglades, the public and the OAS conference participants.

Nothing in the RNA alleviates vessels or operators from complying with all state and local laws in the area, including manatee slow speed zones.

The Brooks Memorial (SE. 17th Street) drawbridge, for which the operational schedule is described in 33 CFR 117.261(ii), will remain closed and only open upon direction of the Coast Guard Captain of the Port Miami or MOC.

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).

We expect 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, because the RNA and security zone will be in effect for a limited time over a limited area.

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 rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Intracoastal waterway and Port Everglades from June 4, 2005 through June 7, 2005. This rule will not have a significant economic impact on a substantial number of small entities, because the rule will only be in effect for a limited time over a limited area. Vessel traffic may transit the Intracoastal waterway at slow speed and travel around the security zone.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small entities may contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding and participating in this rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

Taking of Private Property

This rule does 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 would not create an environmental risk to health or risk to safety that might 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 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.

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 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 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) and (32)(e), of the Instruction, from further environmental documentation because we are establishing a RNA, security zone and suspending a drawbridge operation regulation. Under figure 2-1, paragraph (34)(g) and (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

List of Subjects

33 CFR Part 117

• Bridges

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 amends 33 CFR part 117 and 165 as follows:

PART 117—DRAWBRIDGE OPERATION REGULATIONS

1. The authority citation for part 117 continues to read as follows:

Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under authority of Pub L. 102-587, 106 Stat. 5039.

2. In § 117.261, from June 4, 2005 until June 8, 2005, add paragraph (rr) to read as follows:

§ 117.261

Atlantic Intracoastal Waterway from St. Marys River to Key Largo.

* * * * *

(rr) The draw of the Brooks Memorial (SE. 17th Street) bridge, mile 1065.9 at Fort Lauderdale, shall remain closed unless ordered to open by the COTP.

* * * * *

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

3. 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 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

4. Add new temporary § 165.T07-031 to read as follows:

§ 165.T07-031

Temporary Regulated Navigation Area and temporary security zone, Port Everglades, FL

(a) Locations.

(1) Regulated Navigation Area. The Regulated Navigation Area (RNA) encompasses all waters contained within an imaginary line from a point on the northwestern corner of the 17th Street Causeway Bridge where it meets the seawall at 26°06′02″ N, 080°07′10″ W; thence northerly to the northeast corner of Pier 6 at 26°06′08″ N, 080°07′12″ W; thence easterly across the Intracoastal waterway and along and following the SE. 15th Street southern shoreline to a point on land at the intersection of the SE. 15th Street shoreline and the West Lake Drive Bridge at 26°06′11″ N, 080°06′47″ W; thence southerly along the West Lake Drive Bridge to the northeast mouth of the unnamed canal leading to Sylvan Lake at 26°06′09″ N, 080°06′47″ W; thence westerly across the canal and along and following the southern shoreline of the Mercedes River encompassing all waters of the Pier 66 Marina to a point on the northwestern point of the Pier 66 Marina at 26°06′09″ N, 080°07′06″ W; thence south easterly and easterly along and following the shoreline to a point of land directly north of Day Beacon “6” at 26°05′41″ N, 080°06′31″ W; thence south to a point of land due south of Day Beacon “7” at 26°05′33″ N, 080°06′31″ W; thence westerly and southerly along and following the shoreline of John U. Lloyd State Park to a point on the northern corner of the mouth of Whiskey Creek at 26°04′96″ N, 080°06′78″ W; thence westerly to a point of land on the southern tip of Pier 9 at 26°04′58″ N, 080°06′52″ W; thence northerly along and following the shoreline to the northeast corner of Pier 7 at 26°05′23″ N, 080°06′55″ W; thence northwesterly along the western edge of the Intracoastal Waterway to the transect point on the 17th Street Causeway Bridge thence westerly to where the northwestern corner of the 17th Street Causeway Bridge meets the seawall at 26°06′02″ N, 080°07′07″ W. All coordinates reference datum NAD 1983.

(2) Security Zone. The Security Zone encompasses all waters from surface to bottom contained within an imaginary line drawn from a point at the northwest corner of the 17th Street Causeway Bridge where it meets the seawall at 26°06′02′ N, 080°07′07″ W; thence easterly to the western edge of the Intracoastal Waterway Channel at 26°06′02″ N, 080°07′07″ W; thence southerly along the western edge of the Intracoastal channel to a point on the northeast corner of Pier 7 at 26°05′23″ N, 080°06′54″ W and all waters westward of that imaginary line and adjacent to Port Everglades.

(b) Definitions.

Designated Representative means Coast Guard Patrol Commanders that include commissioned, warrant, petty officers or auxiliary of the Coast Guard, and Federal, State, and local officers that have been designated as such by the Commander, Seventh Coast Guard District, the Captain of the Port, Miami or the Coast Guard Maritime Operations Center (MOC).

Personal Watercraft (PWC) means, for the purposes of this section, vessel(s) less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. PWCs are designed to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bowsprits, bumpkins, rudders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches.

Rigid Hull Inflatable Boat (RHIB) means, for purposes of this section, a vessel that has an inflatable fabric or rubber collar or a foam collar surrounding the hull of the vessel. A RHIB's collar is normally joined to a fiberglass hull on larger models or a fabric hull on smaller models. Fabric hulls are often also themselves inflatable, or have an inflatable keel and sometimes have a soft floor or have a reinforced floor slated with wood or other rigid materials.

Slow Speed means the speed at which a vessel proceeds when it is fully off plane, completely settled into the water and not creating excessive wake. In no instance should slow speed be interpreted as a speed less than that required to maintain steerageway. 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 creating an excessive wake, on a plane or in the process of coming up or coming off plane.

(c) Regulations.

(1) All Vessels transiting the Regulated Navigation Area (RNA) shall proceed continuously and at a slow speed. Nothing in this rule alleviates vessels or operators from complying with all State and local laws in the area, including manatee slow speed zones.

(2) All vessels within the Regulated Navigation Area (RNA) shall comply with the commands and instructions issued by the Designated Representative, the Commander, Seventh Coast Guard District, the Captain of the Port, Miami or the Coast Guard Marine Operations Center (MOC).

(3) Vessels greater than 100 feet in length shall check in directly with on-scene Designated Representative(s) or the MOC, via VHF channel 12 or telephone at [phone] to obtain permission to enter or transit the RNA. All vessels that require the Brooks Memorial (17th Street) bascule bridge to open shall not enter the RNA until permission to open the Brooks Memorial bridge and/or enter the RNA is granted by the MOC or Designated Representative.

(4) No personal watercraft shall be permitted in the Regulated Navigation Area except those operated by law enforcement personnel.

(5) No Rigid Hull Inflatable Boats shall be permitted in the Regulated Navigation Area except those operated by law enforcement personnel or licensed commercial salvage operators.

(6) Entry into or remaining within the Security Zone is prohibited unless authorized by the Designated Representative, the Commander, Seventh Coast Guard District, the Captain of the Port, Miami or the Coast Guard Marine Operations Center (MOC). Persons desiring to enter or transit the areas encompassed by the Security Zone may contact on-scene Designated Representative(s) or the Coast Guard Maritime Operations Center on VHF channel 12 or via telephone at [phone] in order to obtain permission to transit the Security Zone. If permission is granted, all persons and vessels must comply at all times with the instructions of the Designated Representative, the Commander, Seventh Coast Guard District, the Captain of the Port, Miami or the Coast Guard Marine Operations Center (MOC).

(d) Effective dates. This section is effective from 12:01 a.m. on June 4, 2005 until 12 p.m. on June 8, 2005.

Dated: May 26, 2005.

W.E. Justice,

Captain, U.S. Coast Guard, Commander, Seventh Coast Guard District, Acting.