[Federal Register Volume 70, Number 62 (Friday, April 1, 2005)]
[Proposed Rules]
[Pages 16781-16784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6477]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[CGD 07-05-012]
RIN 1625-AA08


Special Local Regulations: Annual Fort Myers Beach Air Show, Fort 
Myers Beach, FL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish permanent special local 
regulations for the Fort Myers Beach Air Show, Fort Myers Beach, 
Florida. This

[[Page 16782]]

event is proposed to be held annually on the second Friday, Saturday, 
and Sunday of May between 8:30 a.m. and 4:30 p.m. EDT (Eastern Daylight 
Time). This proposed regulation is needed to restrict persons and 
vessels from entering the sterile zone (air box) below the aerial 
demonstration and restrict vessels from mooring/anchoring or transiting 
within the surrounding regulated area with the exception of the 
Matanzas Pass Channel. This proposed rule is necessary to ensure the 
safety of life for the participating aircraft, spectators, and mariners 
in the area on the navigable waters of the United States.

DATES: Comments and related material must reach the Coast Guard on or 
before May 2, 2005.

ADDRESSES: You may mail comments and related material to Coast Guard 
Marine Safety Office Tampa, 155 Columbia Drive, Tampa, Florida 33606-
3598. The Waterways Management Division maintains the public docket for 
this rulemaking. Comments and material received from the public, as 
well as documents indicated in this preamble as being available in the 
docket, will become part of this docket and will be available for 
inspection or copying at Coast Guard Marine Safety Office Tampa between 
7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Jennifer 
Andrew at Coast Guard Marine Safety Office Tampa (813) 228-2191 Ext 
8203.

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 (CGD 07-05-
012), 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 proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Coast Guard Marine Safety Office 
Tampa 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.

Background and Purpose

    The South West Florida Aviation Foundation's show involves the 
performance of aerial demonstrations over the near-shore waters of Fort 
Myers Beach, Florida. The annual event is proposed for the second 
Friday, Saturday, and Sunday of May from 8:30 a.m. until 4:30 p.m. The 
nature of aerial demonstrations requires aircraft to use markers in the 
water as points of reference for aircraft maneuvers. The Federal 
Aviation Administration (FAA) has published guidelines that aircraft 
must comply with based on the speed of the aircraft involved and the 
location of the audience. This proposed regulation is in accordance 
with those guidelines for the sterile zone (air box) as well as egress 
routes and vessel movements outside the air box.

Discussion of Proposed Rule

    The proposed regulations will include a sterile zone (air box) 
directly under the aerial demonstration over the near-shore waters of 
Fort Myers Beach in Lee County, Florida. All vessels and persons would 
be prohibited from entering, anchoring, mooring or transiting the 
proposed regulated area. Vessel traffic will be allowed to enter and 
exit Matanzas Pass Channel using the marked channel at Matanzas Pass 
Channel daybeacon 3 (26[deg]25'54'' N, 82[deg]58'12'' W, LLNR 
16365) and 4 (26[deg]26'06'' N, 82[deg]57'48'' W, LLNR 16370) 
but may not linger within the regulated area. This proposed regulation 
is intended to provide for the safety of life on the navigable waters 
of the United States for Air Show participants and for mariners 
traveling in the vicinity of the Air Show and is based on FAA 
guidelines in the FAA Code: Order 8700.1, Operations Inspector 
Handbook, Volume 2, Chapter 49. All coordinates referenced use datum 
NAD 83.

Regulatory Evaluation

    This proposed 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 proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. The proposed regulation would 
last for only eight hours on each of the three event days. Vessel 
traffic is low in this area and vessels will still be allowed to enter 
and exit through the Matanzas Pass Channel.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed rule may affect the following 
entities, some of which may be small entities: the owners and operators 
of vessels intending to transit near to shore at Fort Myers Beach, FL 
in the vicinity of Matanzas Pass annually from 8:30 a.m. to 4:30 p.m. 
on the second Friday, Saturday, and Sunday in May. This proposed rule 
would not have a significant economic impact on a substantial number of 
small entities since it would be in effect for only eight hours a day 
on each of the three event days. Vessel traffic is low in this area and 
vessels will still be allowed to enter and exit through the Matanzas 
Pass Channel.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for

[[Page 16783]]

compliance, please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT. 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 proposed rule would call 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 proposed 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 proposed 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 proposed rule would 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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)(h), of the Instruction, from further environmental 
documentation. As a special local regulation issued in conjunction with 
an air show, this proposed rule satisfies the requirements of paragraph 
(34)(h). Under figure 2-1, paragraph (34)(h), 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 in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 100 as follows:

PART 100--MARINE EVENTS & REGATTAS

    1. The authority citation for part 100 continues to read as 
follows:

    Authority: 33 U.S.C. 1233; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  100.736 to read as follows:


Sec.  100.736  Annual Fort Myers Beach Air Show; Fort Myers Beach, FL.

    (a)(1) Regulated Area. The regulated area is formed by the 
following coordinates; point 1: 26[deg]28'08'' N, 81[deg]59'15'' W 
south to point 2: 26[deg]27'37'' N, 81[deg]59'39'' W east to point 3: 
26[deg]25'45'' N, 81[deg]55'34'' W north to point 4: 26[deg]26'14'' N, 
81[deg]55'22'' W and west along the contour of the shore to point 5: 
26[deg]27'52'' N, 81[deg]58'04'' W to original point 1: 26[deg]28'08'' 
N, 81[deg]59'15'' W. All coordinates referenced use datum: NAD 83.
    (2) Air Box Area. The air box area is contained within the 
regulated area and is formed by the following coordinates; point 1: 
26[deg]27'34'' N, 81[deg]58'22'' W south to point 2: 26[deg]27'07'' N, 
81[deg]58'39'' W east to point 3: 26[deg]26'15'' N, 81[deg]56'36'' W 
north to point 4: 26[deg]26'42'' N, 81[deg]56'22'' W and west to 
original point 1: 26[deg]27'34'' N, 81[deg]58'22'' W. All coordinates 
referenced use datum: NAD 83.
    (b) Special local Regulations.
    (1) Vessels and persons are prohibited from entering the air box 
area defined in paragraph (a)(2).
    (2) No vessel may anchor/moor or transit within the regulated area 
defined in paragraph (a)(1), with the exception of vessel transit 
permitted in the marked channel as set forth in (b)(3) below.
    (3) Vessels entering and exiting Matanzas Pass Channel will be 
allowed to transit using the marked channel only

[[Page 16784]]

at Matanzas Pass Channel day beacon 3 (26[deg]25'54'' N, 
82[deg]58'12'' W, LLNR 16365) and day beacon 4 (26[deg]26'06'' 
N, 82[deg]57'48'' W, LLNR 16370) but may not linger within the 
regulated area. All coordinates referenced use datum: NAD 83.
    (c) Dates. This section will be enforced annually on the second 
Friday, Saturday, and Sunday of May from 8:30 a.m. until 4:30 p.m.

    Dated: March 24, 2005.
D.B. Peterman,
RADM, U.S. Coast Guard, Commander, Seventh Coast Guard District.
[FR Doc. 05-6477 Filed 3-31-05; 8:45 am]
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