[Federal Register Volume 68, Number 236 (Tuesday, December 9, 2003)]
[Rules and Regulations]
[Pages 68518-68521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30446]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD07-03-200]
RIN 1625-AA11


Regulated Navigation Area; San Carlos Bay, FL

AGENCY: Coast Guard, DHS.

ACTION: Temporary rule; request for comments.

-----------------------------------------------------------------------

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. This temporary rule covers the entire effective period from 
November 29, 2003 to November 28, 2004, but the Coast Guard may change 
this rule based on comments received.

DATES: This rule is effective from 12:01 a.m. on November 29, 2003 
until 11:59 p.m. on November 28, 2004. Comments must be received by 
January 29, 2004.

ADDRESSES: You may mail comments and related material to Commander (m), 
Seventh Coast Guard District, 8th Floor, 909 SE 1st Ave., Miami, FL 
33131-3050.
    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 [CGD07-03-200] and are available for inspection or copying at 
the Seventh Coast Guard District Marine Safety Division, located at the 
above address, between 7:30 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Brian Gove, 
Project Officer, Seventh Coast Guard District, Marine Safety Branch, 
telephone 305-415-6743.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    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 [CGD07-03-
200], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. The Coast Guard 
is interested in comments that, among other issues, detail specific 
economic impact to stakeholders on the waterway. 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 that 
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.

[[Page 68519]]

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 a NPRM. The updated information 
concerning the state of disrepair of the Sanibel Island Causeway Bridge 
was brought to the attention of the Coast Guard on November 25, 2003. 
Publishing a NPRM and delaying its effective date would be contrary to 
the public interest because immediate initial action is needed to 
maximize the risk of potential bridge allusions by vessels utilizing 
the main channel under span ``A'' (bascule portion) of the bridge and 
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. Additionally, the 
Coast Guard is soliciting comments on this rule and may make changes in 
light of them.
    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. The Coast Guard is 
making this rule effective on November 29, 2003 because immediate 
initial action 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.

Public Meeting

    We do not now plan to hold a public meeting. However, you may 
submit a request for a meeting by writing to Marine Safety Division, 
Seventh Coast Guard District, 909 SE 1st Ave, 8th Floor, Miami, FL 
33131, 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

    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 is thus required to minimize the risk 
of potential bridge allisions by vessels utilizing the main channel 
under span ``A'' (bascule portion) of the bridge and enhance the safety 
of vessels transiting the area and vehicles crossing over the bridge.

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 encompassing 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. Stern towing is prohibited. 
Side towing is permitted. However, 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. 
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).
    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. 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 marine traffic that traditionally uses the 
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 
would not have a significant economic impact on a substantial number of 
small entities. This rule would 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. The Coast Guard 
certifies that this rule would 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 marine traffic that traditionally uses the waterway.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule has 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 (Public Law 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the temporary 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT. The Coast Guard has created a comment 
period for this temporary rule, and is particularly interested in 
comments describing specific economic impacts to small entities. This 
will allow the Coast Guard to better evaluate impacts to small 
entities. We also have a point of contact for commenting on actions by 
employees of the Coast Guard. Small business 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.

[[Page 68520]]

The Ombudsman evaluates these actions annually and rates each agency's 
responsiveness to small businesses. 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 would not result in such an 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. We invite your 
comments on how this rule might impact tribal governments, even if that 
impact may not constitute a ``tribal implication'' under the Order.

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.
    An ``Environmental Analysis Check List'' and a ``Categorical 
Exclusion Determination'' (CED) has been placed 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 is amending 
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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T07-200 to read as follows:


Sec.  165.T07-200  San Carlos Bay, Florida--Regulated Navigation Area

    (a) Location. The following area is a regulated navigation area 
(RNA): the waters bounded by the following points:
NW Corner: 26[deg] 28.992N, 082[deg] 00.895 W;
NE Corner: 26[deg] 28.998N, 082[deg] 00.874 W;
SW Corner: 26[deg] 28.942N, 082[deg] 00.875 W;
SE Corner: 26[deg] 28.948N, 082[deg] 00.854 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) Stern tows are not authorized. Side tows may be used. However, 
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.
    (c) Definition. The following definitions apply to this section:
    Vessel. Every description of watercraft, including non-displacement 
craft and seaplanes, used or capable of being used as a means of 
transportation on the water.
    Overtaking. 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. 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.
    (d) Enforcement. 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 $27,500 per violation.
    (e) Effective period. This section is effective from 12:01 a.m. on 
November 29, 2003, until 11:59 p.m. on November 28, 2004.


[[Page 68521]]


    Dated: November 29, 2003.
Harvey E. Johnson, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard 
District.
[FR Doc. 03-30446 Filed 12-8-03; 8:45 am]
BILLING CODE 4910-15-P