[Federal Register Volume 88, Number 84 (Tuesday, May 2, 2023)]
[Proposed Rules]
[Pages 27421-27423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09202]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0135]
RIN 1625-AA00


Safety Zone; Atlantic Ocean, Key West, FL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a safety zone to be 
enforced in the event of hurricanes, tropical storms, and other 
disasters in the Florida Keys. This action is necessary to ensure the 
safety of the waters of the Key West Captain of the Port (COTP) zone 
Key West, FL. This proposed rulemaking would establish actions to be 
completed by industry and vessels in the COTP zone prior to landfall of 
hurricanes, tropical storms, and other disasters threatening the 
Florida Keys. We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 1, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0135 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email LTJG Hailye Wilson, Sector Key West 
Waterways Management Division, Coast Guard; telephone (305) 292-8768, 
email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The Florida Keys has the potential to be affected by hurricanes, 
tropical storms, and other disasters on a yearly basis, especially 
between the months of June and November. The Captain of the Port (COTP) 
Key West proposes establishing a safety zone to provide for the safety 
of life during such storms and events.
    The purpose of this rulemaking is to protect mariners and port 
infrastructure during extreme weather and other natural disasters. The 
Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 
70034.

III. Discussion of Proposed Rule

    The COTP Key West is proposing to establish a safety zone to be 
enforced in case of hurricanes, tropical storms, and other disasters in 
Florida Keys. This action is necessary to ensure the safety of the 
waters of the COTP Key West. This proposed rule would establish actions 
to be completed by local industry and vessels in the COTP zone prior to 
landfall of hurricanes, tropical storms, and other disasters 
threatening the Florida Keys. The proposed safety zone would consist of 
all waters of the territorial seas, in the Key West COTP zone, as 
prescribed in 33 CFR 3.35-40. The regulatory text we are proposing 
appears at the end of this document.

IV. Regulatory Analyses

    We developed this proposed 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. This NPRM has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB).
    This regulatory action determination is based on the necessity to 
protect life and port infrastructure during hurricanes, tropical 
storms, and other disasters. The absence of a safe harbor in the 
Florida Keys precludes large vessels from accessing adequate facilities 
to weather a substantial storm or natural disaster within the COTP 
zone. Moreover, the Coast Guard would issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the safety zone, and the 
rule would allow vessels to seek permission to remain in port.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended,

[[Page 27422]]

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 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.
    While some owners or operators of vessels intending to transit the 
regulated area may be small entities, for the reasons stated in section 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    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.
    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 proposed 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 call or email the person listed in the FOR FURTHER INFORMATION 
CONTACT section. The Coast Guard will not retaliate against small 
entities that question or complain about this proposed rule or any 
policy or action of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 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. If 
you believe this proposed rule has implications for federalism or 
Indian tribes, please call or email 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01, Rev. 1, associated implementing 
instructions, and Environmental Planning COMDTINST 5090.1 (series), 
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 preliminary 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 proposed rule involves a safety 
zone that would prohibit entry in certain waters of the Key West COTP 
Zone for the duration needed to ensure safe transit of vessels and 
industry post-hurricane, post-storm, and post-emergency. Normally such 
actions are categorically excluded from further review under paragraph 
L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, 
Rev. 1. A preliminary Record of Environmental Consideration supporting 
this determination is available in the docket. For instructions on 
locating the docket, see the ADDRESSES section of this preamble. We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision-Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0135 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    We review all comments received, but we will only post comments 
that address the topic of the proposed rule. We may choose not to post 
off-topic, inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy

[[Page 27423]]

and submissions to the docket in response to this document, see DHS's 
eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

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 proposes 
to amend 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: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T07-0135 to read as follows:


Sec.  165.T07-0135  Safety Zone; Hurricanes, Tropical Storms and Other 
Disasters in Florida Keys.

    (a) Regulated Areas. All navigable waters within Sector Key West 
COTP zone, Key West, Florida, as described in 33 CFR 3.35-40, during 
specified conditions.
    (b) Definitions.
    (1) Designated Representative means Coast Guard Patrol Commanders, 
including Coast Guard coxswains, petty officers, and other officers 
operating Coast Guard vessels, and Federal, state, and local officers 
designated by or assisting the COTP Key West, in the enforcement of the 
regulated areas.
    (2) Port Condition WHISKEY means a condition set by the COTP when 
weather advisories indicate sustained gale force winds (39-54 mph/34-47 
knots) from a tropical or hurricane force storm are predicted to make 
landfall at the port within 72 hours.
    (3) Port Condition X-RAY means a condition set by the COTP when 
weather advisories indicate sustained gale force winds (39-54 mph/34-47 
knots) from a tropical or hurricane force storm are predicted to make 
landfall at the port within 48 hours.
    (4) Port Condition YANKEE means a condition set by the COTP when 
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) from a tropical or hurricane force storm are predicted to 
make landfall at the port within 24 hours.
    (5) Port Condition ZULU means a condition set by the COTP when 
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) from a tropical or hurricane force storm are predicted to 
make landfall at the port within 12 hours.
    (c) Regulations.
    (1) Port Condition WHISKEY. All vessel and port facilities must 
exercise due diligence in preparation for potential storm impacts. 
Ports and waterfront facilities must begin removing all debris and 
securing potential flying hazards. Oceangoing vessels 300 gross tons 
(GT) and above must make plans to depart no later than the setting of 
Port Condition Yankee unless authorized by the COTP. Vessels wishing to 
remain in port are required to submit an application to the COTP prior 
to setting Port Condition X-Ray.
    (2) Port Condition X-RAY. All vessels and port facilities must 
ensure that potential flying debris is removed or secured. Hazardous 
materials/pollution hazards must be secured in a safe manner and away 
from waterfront areas. Vessels over 300GT without an approval to remain 
in port must depart prior to the setting of Port Condition YANKEE. 
Vessels with the COTP's permission to remain in port must implement 
their pre-approved mooring arrangement. Terminal operators must prepare 
to terminate all cargo operations. The COTP may require additional 
precautions to ensure the safety of the ports and waterways.
    (3) Port Condition YANKEE. Affected ports are closed to inbound 
vessel traffic. All oceangoing vessels greater than 300 Gross Tons must 
have departed designated ports within the Sector Key West COTP zone. 
Terminal operators must terminate all cargo operations not associated 
with storm preparations. Cargo operations associated with storm 
preparations include moving cargo within or off the port for securing 
purposes, port/facility equipment preparations, and similar activities, 
but do not include moving cargo onto the port or vessel loading/
discharging operations unless specifically authorized by the COTP. All 
facilities must continue to operate in accordance with approved 
Facility Security Plans and comply with the requirements of the 
Maritime Transportation Security Act (MTSA).
    (4) Port Condition ZULU. The port is closed to all vessel traffic 
except unless specifically authorized by the COTP. Cargo operations are 
suspended, including bunkering and lightering. Waivers may be granted 
unless Cargo of Particular Hazard or Certain Dangerous Cargo is 
involved.
    (5) Emergency Restrictions for Other Disasters. Any natural or 
other disasters that are anticipated to affect the Sector Key West COTP 
zone will result in the prohibition of facility operations and vessel 
traffic transiting or remaining in the affected port.
    (6) Safety Zones Notice. Coast Guard Sector Key West will attempt 
to notify the maritime community of periods during which these safety 
zones will be in effect via Broadcast Notice to Mariners or by on-scene 
designated representatives.
    (7) Regulated Area Notice. The Coast Guard will provide notice of 
the regulated area via Broadcast Notice to Mariners or by on-scene 
designated representatives.
    (8) Exception. This regulation does not apply to authorized law 
enforcement agencies operating within the regulated area.

    Dated: April 18, 2023.
Jason D. Ingram,
Captain, U.S. Coast Guard, Captain of the Port Key West.
[FR Doc. 2023-09202 Filed 5-1-23; 8:45 am]
BILLING CODE 9110-04-P


