[Federal Register Volume 83, Number 190 (Monday, October 1, 2018)]
[Rules and Regulations]
[Pages 49283-49286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21132]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0563]
RIN 1625-AA11


Regulated Navigation Area; Straits of Mackinac

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) for certain waters of the Straits of Mackinac. This action is 
necessary to provide for the safety of life and protection of property 
on these navigable waters near Mackinaw City, MI. This rule prohibits 
persons and vessels from anchoring or loitering within the RNA unless 
authorized by the Captain of the Port of Sault Sainte Marie, Michigan 
or a designated representative.

DATES: This rule is effective October 31, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0563 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Jason Radcliffe, Ninth District Waterways 
Management, U.S. Coast Guard; telephone 216-902-6060, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
RNA Regulated Navigation Area
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
RNA Regulated Navigation Area
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The northwest part of Lake Huron forms the approach to, and the 
east part of the, Straits of Mackinac. At the extreme northwest end, 
the lake narrows abruptly to a width of 4 miles. Spanning this divide 
is the Mackinac Bridge. Two main shipping lanes lead north and south of 
Bois Blanc Island and pass under the bridge. Numerous shoals and 
several islands obstruct the Straits Area. Located approximately a mile 
west of the Mackinac Bridge are submerged electrical cables and the 
Enbridge Line 5 Pipeline. Posted on NOAAs navigation charts are 
cautionary notes advising mariners of the cable and pipeline area. 
There is no prohibition nor is there an enforcement mechanism to 
discourage anchoring in this area. The Captain of the Port (COTP) of 
Sault Sainte Marie has determined that the high volume of vessel 
transits and the potential for damage to submerged infrastructure 
warrants the creation of a regulatory measure to specifically outline 
an area of regulated navigation that establishes transit and 
communication expectations through the Straits.
    The purpose of this rulemaking is to better enhance the safety of 
vessels and protection of sub-surface cables and pipelines within the 
navigable waters of the Straits of Mackinac. The Coast Guard publishes 
this rulemaking under authority in 33 U.S.C. 1231; 50 U.S.C. 191; 33 
CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.

III. Legal Authority and Need for Rule

    On the behalf of COTP Sector Sault Sainte Marie, the Ninth Coast 
Guard District is creating a Regulated Navigation Area that mandates 
transiting vessels make a direct passage with no anchoring or 
loitering, unless expressly granted permission from the COTP or 
designated representative. Vessels that are required to comply with 
this RNA include vessels of 40 meters or more in length, towing vessels 
of 20 meters or more in length while engaged in towing another vessel, 
vessels certificated to carry 50 or more passengers for hire, when 
engaged in trade, or any dredge or floating plant.
    Within the RNA, the District Commander or COTP may establish 
temporary traffic rules that include but are not limited to channel 
obstructions, winter navigation, unusual weather conditions, or unusual 
water levels. This rule will ensure transiting mariners are fully aware 
of existing and emergent hazards to navigation on or below the 
navigable waterways and provide the Coast Guard with greater 
situational awareness and oversight. The regulatory text appears at the 
end of this document.

IV. Discussion of Comments, Changes, and the Rule

    In total, we received 21 comments on the proposed regulated 
navigation area (RNA) for the Straits of Mackinac published on August 
2, 2018 (83 FR 37780). In consideration of the comments received, we 
have amended the regulatory text in this final rule.
    We received seven comments expressing support for proceeding with 
the rulemaking.
    One comment did not address the proposed rule, nor offer any 
support for or criticism against the rulemaking.
    One commenter suggested that pipelines and cables could be 
protected with a smaller than proposed RNA. The Coast Guard believes 
that requiring ships to seek permission from the COTP to anchor in any 
part of the regulated area, coupled with the requirement to notify the 
COTP 15 minutes prior to getting underway, will reduce the likelihood 
of an accidental anchor deployment through areas with pipes and cables 
below.
    Another commenter expressed disapproval of the proposed rule, 
saying it would not prevent accidents in the future. The comment did 
not offer any suggestions for how to improve the regulations. For the 
same reasons given above, the Coast Guard believes that

[[Page 49284]]

there will be fewer accidental anchor deployments causing damage to the 
pipes and cables below the surface.
    One commenter suggested that we should remove the pipelines. The 
purpose of this RNA, however, is to protect all of the submerged pipes 
and cables in the Straits of Mackinac and to prevent accidental anchor 
deployment through them.
    One comment from NOAA's charting team requested clarification of 
the horizontal datum type used. In this final rule, we include the 
horizontal datum type, NAD 83, in the regulatory text after the 
latitude coordinates.
    We received four comments from commercial vessel owners and 
operators concerned that the rulemaking would prohibit large vessels 
from anchoring to safely endure foul weather. Other commenters 
expressed similar concern on having to anchor within the RNA, away from 
submerged cables and pipelines, in adverse weather with little or no 
notice. To address these safety concerns, we have added clarification 
that in emergency cases, regulated vessels may anchor in the RNA 
without one hour notice to the COTP, but they must give notice of 
anchoring as soon as practical. Nothing in this rule prohibits vessel 
masters from safely navigating their vessels and/or anchoring when 
necessary while in extremis and/or to preserve safety of life at sea. 
Communicating the need and requesting permission to anchor with an 
hour's notice, or as soon as practicable, gives the COTP the 
situational awareness and ability to respond to mariner needs.
    Six comments were received from sight-seeing, ferry, and tourism 
related waterway users concerned with this rule prohibiting their 
ability to linger, loiter, stop, etc. to observe specific areas of 
interest. The Coast Guard does not intend to overly burden businesses 
engaged in these activities. Therefore, we amended this final rule's 
definition of loiter to explicitly exclude brief stops for sightseeing, 
ferrying and tourism. Thus, operations that require stopping by 
passenger ships for sightseeing, ferrying, and tourism purposes do not 
require expressed permission from the COTP under this rule because we 
do not think these brief stops reduce the safety goals of this RNA. 
However, this rule requires that vessels engaged in sightseeing, 
ferrying, and tourism contact the COTP within one hour of their intent 
to anchor within the RNA.
    The regulatory text in this final rule differs from the NPRM in 
that we added the ability for operators of vessels engaged in 
activities, such as tourism, ferrying, or sightseeing, to request a 
waiver from the COTP to anchor within the RNA, but not within charted 
submerged cables and/or pipelines areas. The sightseeing, ferry, and 
tourism waivers are intended for frequent vessel operations and 
configurations that are reasonably determined by the COTP to not pose a 
threat to sensitive submerged infrastructure.
    Lastly, this rule differs from the NPRM in that we added language 
to Sec.  165.944(c)(4) that states even when one (1) hour notice is 
given to the COTP, anchoring in the charted submerged cable and 
pipeline areas is prohibited. This additional language is necessary to 
achieve our goal of promoting safe transit through the RNA now that we 
have added waivers and permission to anchor with little to no notice in 
emergencies.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the fact that no 
part of this rulemaking and its stipulations will require any 
additional equipment purchases or create an undue burden to marine 
operations. This rule will increase communication and situational 
awareness of the specified area.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 received no comments from the Small Business 
Administration on this rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator. The majority of this rule applies to vessels 
typically larger than those operated by small entities. The size and 
operational applicability of this rule is found at the end of this 
document.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. If the 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 in the FOR FURTHER INFORMATION CONTACT 
section.
    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). 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.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent

[[Page 49285]]

with the fundamental federalism principles and preemption requirements 
described in Executive Order 13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

E. 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 (adjusted for 
inflation) 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.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.1D, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969 (42 U.S.C. 4321-4370f), and have made a determination that this 
action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule involves creating a permanent Regulated Navigation Area detailing 
how mariners shall transit through the Straits of Mackinac. Normally 
such actions are categorically excluded from further review under 
paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-
001-01, Rev. 01. A Record of Environmental Consideration supporting 
this determination is available in the docket where indicated under 
ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

List of Subjects in 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 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, 6.04-1, 
6.04-6 and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.944 to read as follows:


Sec.  165.944  Regulated Navigation Area; Straits of Mackinac.

    (a) Location. All navigable waters of the Straits of Mackinac 
bounded by longitudes 084[deg]20' W and 085[deg]10' W and latitudes 
045[deg]39' N and 045[deg]54' N (NAD 83), including Grays Reef Passage, 
the South Channel between Bois Blanc Island and Cheboygan, MI, and the 
waters between Mackinac Island and St. Ignace, MI.
    (b) Applicability. Unless otherwise stated, the provisions of this 
regulated navigation area (RNA) apply to the following vessels:
    (1) Vessels of 40 meters (approx. 131 feet) or more in length, 
while navigating;
    (2) Towing vessels of 20 meters (approx. 65 feet) or more in 
length, while engaged in towing another vessel astern, alongside or by 
pushing ahead; or
    (3) Vessels certificated to carry 50 or more passengers for hire, 
when engaged in trade; or
    (4) Each dredge or floating plant.
    (c) Regulations. The general regulations contained in Sec. Sec.  
165.10, 165.11, and 165.13 apply within this RNA.
    (1) Nothing in this regulation relieves any vessel, owner, 
operator, charterer, master, or person directing the movement of a 
vessel, from the consequences of any neglect to comply with this part 
or any other applicable law or regulation (i.e. the International 
Regulations for Prevention of Collisions at Sea, 1972 (72 COLREGS) or 
the Inland Navigation Rules) or of the neglect of any precaution which 
may be required by the ordinary practice of seamen, or by the special 
circumstances of the case.
    (2) Vessels transiting through the RNA must comply with all 
directions given to them by the COTP, or a designated representative. 
The ``designated representative'' of the COTP is any Coast Guard 
commissioned, warrant or petty officer who is designated by the COTP to 
act on their behalf. The designated representative may be on a Coast 
Guard vessel; or other designated craft; or on shore and communicating 
via VHF-16 or telephone, 906-635-3319.
    (3) Vessels transiting through the RNA must make a direct passage. 
No vessel may anchor or loiter within the RNA at any time without the 
expressed permission of the COTP or a designated representative.
    (4) Vessels are prohibited from anchoring in any charted submerged 
cable and/or pipeline areas; except when expressly permitted by the 
COTP. Vessels desiring to anchor within the confines of the RNA, but 
outside a charted submerged cable and/or pipeline area, must contact 
the COTP or a designated representative one (1) hour in advance of 
anchoring via VHF-16 or telephone 906-635-3319. The person directing 
the movement of the vessel desiring to anchor shall provide the time, 
purpose and location for the proposed anchoring. Vessels who receive 
permission to anchor, shall notify the COTP or a designated 
representative no less than 15 minutes prior to getting underway via 
VHF-16 or telephone 906-635-3319.
    (5) In an emergency, any vessel may deviate from this regulation to 
the extent necessary to avoid endangering the safety of persons, the 
environment, and/or property. If deviation from the regulation is 
necessary, the master or his designee shall inform the Coast Guard as 
soon as it is practicable to do so.
    (6) The owner, operator, charterer, master or person directing the 
movement of a vessel desiring to anchor within the prescribed RNA for 
the purposes of work, dredging, or survey must receive permission from 
the COTP or a designated representative a minimum of 72 hours in 
advance of the desired activity. Vessels engaged in activities, such as 
tourism, ferrying, or sightseeing, which require anchoring, within the 
RNA boundaries, but not within charted submerged cables and/or 
pipelines areas, may request a waiver from the COTP.
    (7) In the RNA, the District Commander or COTP may establish 
temporary traffic rules for reasons that include but are not limited to 
channel obstructions, winter navigation, unusual weather conditions, or 
unusual water levels.

[[Page 49286]]

    (8) There may be times that the Ninth District Commander or the 
COTP finds it necessary to close the RNA to vessel traffic. During 
times of limited closure, persons and vessels may request permission to 
enter the RNA by contacting the COTP or a designated representative via 
VHF-16 or telephone 906-635-3319.
    (d) Definitions. As used in this RNA:
    (1) Captain of the Port means the United States Coast Guard Captain 
of the Port (COTP) of Sault Sainte Marie, Michigan.
    (2) Straits of Mackinac means the navigable waters of the Great 
Lakes connecting Lake Huron to Lake Michigan passing between the upper 
and lower peninsulas of Michigan.
    (3) Loiter means to linger aimlessly in or about a place making 
purposeless stops in the course of a trip, journey, or errand. 
Loitering does not include brief stops for sight-seeing, ferry, or 
tourism purposes.
    (e) Notification. The Coast Guard will rely on the methods 
described in Sec.  165.7 to notify the public of the time and duration 
of any closure of the RNA. Reports of violations of this RNA should go 
to COTP Sault Sainte Marie at 906-635-3319 or on VHF-Channel 16.
    (f) Waiver. For any vessel, the COTP or a designated representative 
may waive any of the requirements of this section, upon finding that 
circumstances are such that application of this section is unnecessary 
or impractical for the purposes of safety or environmental safety.

    Dated: September 24, 2018.
J.M. Nunan,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2018-21132 Filed 9-28-18; 8:45 am]
 BILLING CODE 9110-04-P