[Federal Register Volume 78, Number 107 (Tuesday, June 4, 2013)]
[Rules and Regulations]
[Pages 33221-33223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13148]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket Number USCG-2013-0160]
RIN 1625-AA08


Special Local Regulation; Annual Swim Around Key West, Atlantic 
Ocean and Gulf of Mexico; Key West, FL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a special local regulation on 
the waters of the Atlantic Ocean and the Gulf of Mexico surrounding the 
island of Key West, Florida during the Annual Swim around Key West on 
June 8, 2013. The event entails a large number of participants who will 
begin at Smather's Beach and swim one full circle clockwise around the 
island of Key West, Florida. The special local regulation is necessary 
to provide for the safety of the spectators, participants, 
participating support vessels and kayaks, and other vessels and users 
of the waterway during the event. The special local regulation will 
consist of a moving area that will temporarily restrict vessel traffic 
in a portion of both the Atlantic Ocean and the Gulf of Mexico, and 
will prevent non-participant vessels from entering, transiting through, 
anchoring in, or remaining within the area unless authorized by the 
Captain of the Port Key West or a designated representative.

DATES: This rule will be enforced from 7:30 a.m. until 3:30 p.m. on 
June 8, 2013.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Marine Science Technician First Class William Winegar, 
Sector Key West Prevention Department, U.S. Coast Guard; Telephone 
(305) 292-8809, email [email protected]. If you have questions 
on viewing or submitting material to the docket, call Barbara Hairston, 
Program Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this 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)(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 only recently came to the 
attention that this event had been inadvertently excluded from the 
Coast Guard Seventh District Regulation of Recurring Marine Events at 
33 CFR part 701; although an identical race, in the same month with a 
different sponsor had been so included. To ensure there is no confusion 
regarding the date of the race, or the enforcement of the regulation, 
and to ensure the safety of life on the Navigable Waters of the United 
States, publication of a NPRM would be

[[Page 33222]]

impracticable, unnecessary, and contrary to the public interest.

B. Basis and Purpose

    The legal basis for the rule is the Coast Guard's authority to 
establish special local regulations: 33 U.S.C. 1233. The purpose of the 
rule is to ensure safety of life and property on navigable waters of 
the United States during the Annual Swim around Key West FL.

C. Discussion of the Final Rule

    The special local regulation encompasses certain waters of the 
Atlantic Ocean and Gulf of Mexico. The special local regulation will be 
enforced on Saturday, June 8, 2013 from 7:30 a.m. until 3:30 p.m. The 
special local regulation consists of a moving race area where all 
persons and vessels, except those participating in the race or serving 
as safety vessels, are prohibited from entering, transiting through, 
anchoring in, or remaining within these areas unless authorized by the 
Captain of the Port Key West or a designated representative. The race 
area will commence at Smather's Beach at 7:30 a.m., transit West to the 
area offshore of Fort Zach State Park, North through Key West Harbor, 
East through Flemming Cut, South on Cow Key Channel and West back to 
origin. Safety vessels will precede the first participating swimmers 
and follow the last participating swimmers. This event poses 
significant risks to participants, spectators, and the boating public 
because of the large number of swimmers and recreational vessels that 
are expected in the area of the event. The special local regulation is 
necessary to ensure the safety of participants, spectators, and vessels 
from the hazards associated with the event.
    The special local regulation will be enforced from 7:30 a.m. to 
3:30 p.m. on June 8, 2013. Persons and vessels who are neither 
participating in the race or serving as safety vessels may not enter, 
transit through, anchor in, or remain within the regulated area unless 
authorized by the Captain of the Port Key West or a designated 
representative.
    Persons and vessels desiring to enter, transit through, anchor in, 
or remain within the regulated area may contact the Captain of the Port 
Key West by telephone at (305) 292-8727, or a designated representative 
via VHF radio on channel 16, to request authorization. If authorization 
to enter transit through, anchor in, or remain within regulated area is 
granted by the Captain of the Port Key West or a designated 
representative, all persons and vessels receiving such authorization 
must comply with the instructions of the Captain of the Port Key West 
or a designated representative. The Coast Guard will provide notice of 
the special local regulation by Local Notice to Mariners, Broadcast 
Notice to Mariners, and on-scene designated representatives.

D. 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 or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The economic impact of this rule is not significant for the 
following reasons: (1) The rule will be enforced for a total of only 8 
hours; (2) Non-participant persons and vessels may enter, transit 
through, anchor in, or remain within the regulated area during the 
enforcement period if authorized by the Captain of the Port Key West or 
a designated representative; (3) vessels not able to enter, transit 
through, anchor in, or remain within the regulated area without 
authorization from the Captain of the Port Key West or a designated 
representative may operate in the surrounding areas during the 
enforcement period; and (4) advance notification of the event will be 
made to the local maritime community via local notice to mariners, 
marine safety information bulletins, and broadcast notice to mariners.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 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. This rule may affect the following entities, some of 
which may be small entities: Owners or operators of vessels intending 
to enter, transit through, anchor in, or remain within the regulated 
are during the enforcement period. For the reasons discussed in 
Regulatory Planning and Review section above, this rule will not have a 
significant economic impact on a substantial number of small entities. 
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.

3. Assistance for Small Entities

    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, 
above.
    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

4. Collection of Information

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

5. Federalism

    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 determined 
that this rule does not have implications for federalism.

[[Page 33223]]

6. 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.

7. 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 would not result 
in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

8. Taking of Private Property

    This rule would not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

9. 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.

10. Protection of Children

    We have analyzed this 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.

11. Indian Tribal Governments

    This 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.

12. Energy Effects

    This proposed rule is not a ``significant energy action'' under 
Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA)(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 proposed rule involves a special local regulation 
issued in conjunction with a regatta or marine parade. This rule is 
categorically excluded from further review under paragraph 34(h) of 
Figure 2-1 of the Commandant Instruction. A preliminary environmental 
analysis checklist supporting this determination and a Categorical 
Exclusion Determination are available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this rule.

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 amends 
33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  33 U.S.C. 1233


0
2. Add a temporary Sec.  100.35T07-0160 to read as follows:


Sec.  100.35T07-0160  Special Local Regulation; Annual Swim around Key 
West, Atlantic Ocean and Gulf of Mexico; Key West, FL.

    (a) Regulated Area. The following regulated area is established as 
a special local regulation. All waters within a moving zone, beginning 
at Smather's Beach in Key West, FL. The regulated area will move, West 
to the area offshore of Fort Zach State Park, North through Key West 
Harbor, East through Flemming Cut, South on Cow Key Channel and West 
back to origin. The center of the regulated area will at all times 
remain approximately 50 yards offshore of the island of Key West 
Florida; extend 50 yards in front of the lead safety vessel preceding 
the first race participants; extend 50 yards behind the safety vessel 
trailing the last race participants; and at all times extend 100 yards 
on either side of the race participants and safety vessels.
    (b) Definition. The term ``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 
Captain of the Port Key West in the enforcement of the regulated area.
    (c) Regulations.
    (1) All persons and vessels, except authorized race participants or 
safety vessels, are prohibited from entering, transiting through, 
anchoring in, or remaining within the race area. Persons and vessels 
desiring to enter, transit through, anchor in, or remain within the 
race area, may contact the Captain of the Port Key West by telephone at 
(305) 292-8727, or a designated representative via VHF radio on channel 
16, to request authorization. If authorization to enter, transit 
through, anchor in, or remain with the race area, is granted by the 
Captain of the Port Key West or a designated representative.
    (2) The Coast Guard will provide notice of the regulated area by 
Marine Safety Information Bulletins, Local Notice to Mariners, 
Broadcast Notice to Mariners, and on-scene designated representatives.
    (d) Enforcement Date. This rule will be enforced from 7:30 a.m. to 
3:30 p.m. June 8, 2013.

    Dated: May 8, 2013.
A.S. Young, Sr.,
Captain, U.S. Coast Guard, Captain of the Port Sector Key West.
[FR Doc. 2013-13148 Filed 6-3-13; 8:45 am]
BILLING CODE 9110-04-P