
[Federal Register Volume 88, Number 178 (Friday, September 15, 2023)]
[Rules and Regulations]
[Pages 63525-63527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20099]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0632]
RIN 1625-AA00


Safety Zone; Bay St. Louis, MS

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters at the opening of Bay St. Louis, extending the entire 
width of the channel, approximately \1/2\ mile south of the Hwy 90 
Bridge. This safety zone is needed to protect personnel, vessels, and 
the marine environment from potential hazards created by the 2023 Swim 
Across the Bay. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized the Captain of the Port 
Sector Mobile (COTP) or a designated representative.

DATES: This rule is effective from 7 a.m. through 10 a.m. on September 
17, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0632 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Lawrence J. Schad, Sector Mobile, Waterways 
Management Division, U.S. Coast Guard; telephone 251-441-5678, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that 
good cause exists for not publishing a notice of proposed rulemaking 
(NPRM) with respect to this rule because it is impracticable and 
contrary to the public interest. It is impracticable to publish an NPRM 
because we must establish this safety zone by September 17th, 2023, and 
lack sufficient time to provide a reasonable comment period and then 
consider those comments before issuing the rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. Delaying the effective date of 
this rule is contrary to public interest because it would delay the 
safety measures necessary to respond to potential safety hazards 
associated with the 2023 Swim Across the Bay. Immediate action is 
needed to protect vessels and mariners from the safety hazards 
associated with 2023 Swim Across the Bay.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Sector Mobile (COTP) has determined that 
potential

[[Page 63526]]

hazards associated with the 2023 Swim Across the Bay on September 17th, 
2023, will be a safety concern for any vessels or persons at the 
opening of Bay St. Louis, approximately \1/2\ mile south of the Hwy 90 
Bridge in Bay St. Louis, MS. This rule is needed to protect the public, 
mariners, and vessels from the potential hazards associated with the 
2023 Swim Across the Bay.

IV. Discussion of the Rule

    The Coast Guard is establishing a temporary safety zone, effective 
from 7 a.m. to 10 a.m. on September 17, 2023. The safety zone 
encompasses the opening of Bay St. Louis, extending the entire width of 
the channel, approximately \1/2\ mile south of the Hwy 90 Bridge in Bay 
St. Louis, MS. The location and duration of this safety zone is 
intended to protect persons and vessels during the 2023 Swim Across the 
Bay that will take place on this navigable waterway. No person or 
vessel will be permitted to enter or transit within the safety zone, 
unless specifically authorized by the COTP or a designated 
representative. Public notifications will be made to the local maritime 
community through Broadcast Notice to Mariners (BNM). To enter the 
zone, mariners and other members of the public must also contact the 
COTP or designated representative to ask permission to enter the safety 
zone on VHF-FM channels 15 and 16 or by telephone at 251-382-8653. If 
permission is granted, all persons and vessels must comply with the 
instructions of the COTP or designated representative.

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. This rule has not been designated a ``significant 
regulatory action, under section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB).
    This regulatory action determination is based on the size, 
location, and duration, of the safety zone. This temporary safety zone 
will only restrict navigation for 3 hours near the opening of Bay St. 
Louis, approximately \1/2\ mile south of the Hwy. 90 Bridge in Bay St. 
Louis, MS, extending the entire width of the channel. Moreover, the 
Coast Guard will issue a Local Notice to Mariners (LNM) about the zone, 
and the rule would allow vessels to seek permission to enter the zone.

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 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.
    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 
call or email 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.

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, 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 determined 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 a 
safety zone that will prohibit mariners and the public near the opening 
of Bay St. Louis, extending the entire width of the channel 
approximately \1/2\ mile south of the Hwy 90 Bridge in Bay St. Louis, 
MS. It is 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

[[Page 63527]]

Record of Environmental Consideration supporting this determination is 
available in the docket where indicated under the ADDRESSES section of 
this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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:  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. AddSec.  165.T08-0632 to read as follows:


Sec.  165.T08-0632  Safety Zone; Bay St. Louis, MS.

    (a) Location. The following area is a safety zone: the opening of 
Bay St. Louis, extending the entire width of the channel, approximately 
\1/2\ mile south of the Hwy 90 Bridge in Bay St. Louis, MS.
    (b) Enforcement period. This section will be enforced on September 
17, 2023 from 7 a.m. through 10 a.m.
    (c) Regulations. (1) The general regulations contained in Sec.  
165.23 as well as the regulations in this section apply to the 
regulated area.
    (2) Entry into the zone described in paragraph (a) of this section 
is prohibited unless authorized by the Captain of the Port Sector 
Mobile (COTP) or a designated representative.
    (3) Persons or vessels seeking to enter into or transit through the 
zone must request permission from the COTP or a designated 
representative. They may be contacted on VHF-FM channels 15 and 16 or 
by telephone at 251-441-5678.
    (4) If permission is granted, all persons and vessels must comply 
with the instructions of the COTP or designated representative.
    (d) Informational broadcasts. The COTP or a designated 
representative will inform the public through broadcast notices to 
mariners of the enforcement period for the safety zone.

    Dated: September 11, 2023.
U.S. Mullins,
Captain, U.S. Coast Guard, Captain of the Port Sector Mobile.
[FR Doc. 2023-20099 Filed 9-14-23; 8:45 am]
BILLING CODE 9110-04-P


