[Federal Register Volume 83, Number 190 (Monday, October 1, 2018)]
[Rules and Regulations]
[Pages 49283-49286]
[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<PHONE_NUMBER>, 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

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

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,<PHONE_NUMBER>.
    (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<PHONE_NUMBER>. 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<PHONE_NUMBER>.
    (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.

    (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<PHONE_NUMBER>.
    (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<PHONE_NUMBER> 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