05-6477. Special Local Regulations: Annual Fort Myers Beach Air Show, Fort Myers Beach, FL

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish permanent special local regulations for the Fort Myers Beach Air Show, Fort Myers Beach, Florida. This 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 [phone] 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 81/2 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°25′54″ N, 82°58′12″ W, LLNR 16365) and #4 (26°26′06″ N, 82°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 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 § 100.736 to read as follows:

§ 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°28′08″ N, 81°59′15″ W south to point 2: 26°27′37″ N, 81°59′39″ W east to point 3: 26°25′45″ N, 81°55′34″ W north to point 4: 26°26′14″ N, 81°55′22″ W and west along the contour of the shore to point 5: 26°27′52″ N, 81°58′04″ W to original point 1: 26°28′08″ N, 81°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°27′34″ N, 81°58′22″ W south to point 2: 26°27′07″ N, 81°58′39″ W east to point 3: 26°26′15″ N, 81°56′36″ W north to point 4: 26°26′42″ N, 81°56′22″ W and west to original point 1: 26°27′34″ N, 81°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 at Matanzas Pass Channel day beacon #3 (26°25′54″ N, 82°58′12″ W, LLNR 16365) and day beacon #4 (26°26′06″ N, 82°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.