[Federal Register Volume 69, Number 233 (Monday, December 6, 2004)]
[Rules and Regulations]
[Pages 70374-70377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26748]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD07-04-146]
RIN 1625-AA11


Regulated Navigation Area; San Carlos Bay, FL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is establishing a temporary regulated 
navigation area on the waters of San Carlos Bay, Florida. The regulated 
navigation area is needed to minimize the risk of potential bridge 
allisions by vessels utilizing the main channel under span ``A'' 
(bascule portion) of the Sanibel Island Causeway Bridge and enhance the 
safety of vessels transiting the area and vehicles crossing over the 
bridge. Vessels transiting the regulated navigation area must comply 
with all the regulations of the temporary section; however the Coast 
Guard may change this rule based on comments received.

DATES: This rule is effective from 11:59 p.m. on November 28, 2004 
until 8 a.m. on November 28, 2005. Comments must be received by January 
29, 2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD07-04-146 and are available for 
inspection or copying at the Seventh Coast Guard District Marine Safety 
Division, 8th Floor, 909 SE., 1st Ave., Miami, FL 33131-3050 between 
7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
    You may send comments and related materials to Commander (M) 
Seventh Coast Guard District Marine Safety Division, 8th Floor, 909 SE. 
1st Ave., Miami, FL 33131-3050.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Steven Lang, 
Project Officer, Seventh Coast Guard District, Marine Safety Branch at 
305-415-6865.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. Information concerning the 
unchanged condition of the Sanibel Island Bridge was not received until 
November 2, 2004. The Bridge continues to pose a safety hazard to 
vessel and vehicle traffic transiting the area. Therefore, publishing 
an NPRM and delaying its effective date would be contrary to the public 
interest because immediate action is needed to minimize the risk of 
potential bridge allisions by vessels utilizing the main channel under 
span ``A'' (bascule portion) of the bridge and to enhance the safety of 
vessels transiting the area and vehicles crossing over the bridge. The 
Coast Guard will issue a broadcast notice to mariners to advise 
mariners of the restrictions.
    For the same reasons, 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.
    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Marine Safety Division, Seventh 
Coast Guard District, 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.
    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD07-04-
146), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, 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 rule in view of them.

Background and Purpose

    On November 18, 2003, the Lee County Board of Commissioners issued 
an emergency declaration that present conditions of the Sanibel Island 
Causeway Bridge pose an immediate threat to the safety of the traveling 
public. Immediate initial action was required to minimize the risk of 
potential bridge allisions of vessels utilizing the main channel under 
span ``A'' (bascule portion) and enhance the safety of vessels 
transiting the area and vehicles crossing over the bridge. The Coast 
Guard established an RNA (68 FR 68518) in the vicinity of the bridge 
from November 29, 2003, through November 28, 2004.
    On November 2, 2004, Sanibel County engineers reevaluated the 
Sanibel Island

[[Page 70375]]

Bridge. The condition of the bridge continues to pose a threat to the 
safety of the traveling public. The structural portions of the bridge 
have not been fully repaired due to mitigating circumstances. With 
recent hurricane storm activities the bridge fender system suffered 
severe damage delaying the project further.
    The need for this regulated navigation area (RNA) is further 
demonstrated by the recent actions of a tug and barge unit that failed 
to comply with the then existing RNA (68 FR 68518) on November 13, 
2004. In violation of the RNA, the tug and barge attempted to pass 
under the bridge during a strong outgoing current and allided with the 
bridge. This allision demonstrates the need for the RNA to ensure the 
safety of vessels and vehicles transiting the area.

Discussion of Rule

    The regulated navigation area will encompass the main channel under 
the ``A'' span (bascule portion) of the Sanibel Island Causeway Bridge 
out to 100 feet on either side of the bridge inclusive of the main 
shipping channel. All vessels are required to transit the area at no-
wake speed. However, nothing in this rule negates the requirement to 
operate at a safe speed as provided in the Navigation Rules and 
Regulations. A one-way traffic scheme is imposed within the regulated 
navigation area. Overtaking is prohibited. Tugs with barges must be 
arranged in a push-ahead configuration with barges made up in tandem. 
Tugs must be of adequate horsepower to fully maneuver the barges. Tug 
and barge traffic may transit the regulated navigation area at slack 
water only. Stern towing is prohibited except by assistance towing 
vessels, subject to certain conditions. Side towing is permitted. 
Assistance towing vessels may conduct stern tows when the disabled 
vessel being towed is less than or equal to 30 feet in length. For 
disabled vessels greater than 30 feet in length, assistance towing 
vessels may use a towing arrangement in which one assistance towing 
vessel is in the lead, towing the disabled vessel, and another 
assistance towing vessel is astern of the disabled vessel. Assistance 
towing vessels must be of adequate horsepower to maneuver the vessel 
under tow and may transit the RNA at slack water only. These 
regulations are going into effect to minimize the risk of potential 
bridge allisions by vessels utilizing the main channel under span ``A'' 
(bascule portion) of the Sanibel Island Causeway Bridge and enhance the 
safety of vessels transiting the area and vehicles crossing over the 
bridge.

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 
regulation to be so minimal that a full Regulatory Evaluation under the 
regulatory policies and procedures of DHS is unnecessary. The Coast 
Guard bases this finding on the following: Vessels may still transit 
the area, the waterway is not a major commercial route, and the Coast 
Guard expects only modest delays due to the nature of the marine 
traffic that traditionally uses this waterway.
    Additionally, the Coast Guard is soliciting comments to determine 
the impact on the boating public, and may make adjustments based on 
comments we receive.

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 may affect the following entities, some of which 
might be small entities: The owners or operators of vessels intending 
to transit a portion of San Carlos Bay. This regulated navigation area 
will not have a significant economic impact on a substantial number of 
small entities for the following reasons: Vessels may still transit the 
area; the waterway is not a major commercial route, and the Coast Guard 
expects only modest delays due to the nature of the marine traffic that 
traditionally uses the waterway.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offer to assist small 
entities in understanding the 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. We also have a point of contact for commenting on actions 
by employees of the Coast Guard. 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. 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

[[Page 70376]]

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 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), of the Instruction, from further environmental 
documentation. This rule fits in paragraph (34)(g) because it is a 
regulated navigation area. Under figure 2-1, paragraph (34)(g), of the 
Instruction, an ``Environmental Analysis Check List'' and a 
``Categorical Exclusion Determination'' are not required for this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, 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 160.5; Pub. 
L. 107-295, 116 Stat. 2064 Department of Homeland Security 
Delegation No. 0170.1.


0
2. Temporarily add new section 165.T07-146 to read as follows:


Sec.  165.T07-146  Regulated Navigation Area, San Carlos Bay, Florida

    (a) Regulated Area. The following area is a regulated navigation 
area (RNA): the waters bounded by the following points: NW Corner: 
26[deg]28'59'' N, 082[deg]00'54'' W; NE Corner: 26[deg]28'59'' N, 
082[deg]00'52'' W; SE Corner: 26[deg]28'57'' N, 082[deg]00'51'' W; SW 
Corner: 26[deg]28'57'' N, 082[deg]00'53'' W.
    (b) Regulations.
    (1) A vessel in the RNA established under paragraph (a) of this 
section will operate at no-wake speed. Nothing in this rule is to be 
construed as to negate the requirement to at all times operate at a 
safe speed as provided in the Navigation Rules and Regulations.
    (2) A one-way traffic scheme is established. Vessel traffic may 
proceed in one direction at a time through the RNA. Overtaking is 
prohibited.
    (3) Tugs with barges must be arranged in a push-ahead configuration 
with the barges made up in tandem. Tugs must be of adequate horsepower 
to maneuver the barges. Tug and barge traffic may transit the RNA at 
slack water only.
    (4) Stern tows are prohibited except for assistance towing vessels, 
subject to conditions. Side tows are authorized. Assistance towing 
vessels may conduct stern tows of disabled vessels that are less than 
or equal to 30 feet in length. For vessels that are greater than 30 
feet in length, assistance towing vessels may use a towing arrangement 
in which one assistance towing vessel is in the lead, towing the 
disabled vessel, and another assistance towing vessel is astern of the 
disabled vessel. All assistance towing vessels operating within the 
regulated navigation area must be of adequate horsepower to maneuver 
the vessel under tow and the transit must be at slack water only.
    (c) Definitions. The following definitions apply to this section:
    Assistance towing means assistance provided to disabled vessels.
    Assistance towing vessels means commercially registered or 
documented vessels that have been specially equipped to provide 
commercial services in the marine assistance industry.
    Disabled vessel means a vessel, which while being operated, has 
been rendered incapable of proceeding under its own power and is in 
need of assistance.
    Overtaking means a vessel shall be deemed to be overtaking when 
coming up with another vessel from a direction more than 22.5 degrees 
abaft her beam, that is, in such a position with reference to the 
vessel she is overtaking, that at night she would be able to see only 
the stern light of the vessel but neither of her sidelights.
    Slack water means the state of a tidal current when its speed is 
near zero, especially the moment when a reversing current changes 
direction and its speed is zero. The term also is applied to the entire 
period of low speed near the time of turning of the current when it is 
too weak to be of any practical importance in navigation.
    Vessel means every description of watercraft, including non-
displacement craft and seaplanes, used or capable of being used as a 
means of transportation on the water.
    (d) Violations. Persons in violation of these regulations will be 
subject to civil penalty under 33 U.S.C. 1232 of this part, to include 
a maximum civil penalty of $32,500 per violation.
    (e) Effective period. This section is effective from 11:59 p.m. on 
November 28, 2004, until 8 a.m. on November 28, 2005.


[[Page 70377]]


    Dated: November 24, 2004.
David B. Peterman,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard 
District.
[FR Doc. 04-26748 Filed 12-3-04; 8:45 am]
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