[Federal Register Volume 88, Number 37 (Friday, February 24, 2023)]
[Rules and Regulations]
[Pages 11815-11818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03775]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0139]
RIN 1625-AA00


Safety Zone; Sabine River, Orange, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
certain navigable waters of the Sabine River, extending the entire 
width of the river, adjacent to the public boat ramp located in Orange, 
TX. This action is necessary to protect persons and vessels from 
hazards associated with a high-speed Jet Ski race competition in 
Orange, TX. Entry of vessels or persons into this zone is prohibited 
unless authorized by the Captain of the Port

[[Page 11816]]

Marine Safety Unit Port Arthur or a designated representative.

DATES: This rule is effective from 9 a.m. on March 17, 2023 through 6 
p.m. on March 18, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0139 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 Mr. Scott Whalen, Marine Safety Unit Port Arthur, U.S. 
Coast Guard; telephone 409-719-5086, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Marine Safety Unit Port Arthur
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 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 is impracticable. This safety zone 
must be established by March 17, 2023 and we lack sufficient time to 
provide a reasonable comment period and then consider those comments 
before issuing this rule. The NPRM process would delay the 
establishment of the safety zone until after the dates of the jet ski 
races and compromise public safety.
    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 would be impracticable because establishing the safety zones 
by March 17, 2023 is necessary to protect all waterway users during 
scheduled race events.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port Marine 
Safety Unit Port Arthur (COTP) has determined that the potential 
hazards associated with high-speed jet ski races are a safety concern 
for persons and vessels operating on the Sabine River. Possible hazards 
include risks of injury or death from near or actual contact among 
participant vessels and spectators or mariners traversing through the 
safety zone. This rule is needed to protect all waterway users, 
including event participants and spectators, before, during, and after 
the scheduled event.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 9 a.m. through 6 
p.m. each day from March 17, 2023 through March 18, 2023. The safety 
zone covers all navigable waters of the Sabine River, extending the 
entire width of the river, adjacent to the public boat ramp located in 
Orange, TX bounded by the Orange Municipal Wharf, latitude 
30[deg]05'50'' N and latitude 30[deg]05'33'' N. The duration of the 
safety zone is intended to protect participants, spectators, and other 
persons and vessels, in the navigable waters of the Sabine River during 
high-speed jet ski races and will include breaks and opportunity for 
vessels to transit through the regulated area.

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 Executive Order 12866. 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 safety zone encompasses 
a less than half-mile stretch of the Sabine River for eight hours on 
each of two days. Moreover, the Coast Guard will issue Broadcast Notice 
to Mariners (BNMs) via VHF-FM marine channel 16 about the zone, daily 
enforcement periods will include breaks that will provide an 
opportunity for vessels to transit through the regulated area, and the 
rule allows 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).

[[Page 11817]]

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 lasting 8 hours on each of two days that will prohibit 
entry on less than a one-half mile stretch of the Sabine River. 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. 
For instructions on locating the docket, see 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 AREA 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.T08-0139 to read as follows:


Sec.  165.T08-0139  Safety Zone; Sabine River, Orange, Texas

    (a) Location. The following area is a safety zone: All navigable 
waters of the Sabine River, extending the entire width of the river, 
adjacent to the public boat ramp located in Orange, TX bounded on the 
north by the Orange Municipal Wharf and latitude 30[deg]05'50'' N and 
to the south by latitude 30[deg]05'33'' N.
    (b) Effective period. This section is effective from 9 a.m. on 
March 17, 2023 through 6 p.m. on March 18, 2023.
    (c) Enforcement periods. This section will be enforced from 9 a.m. 
through 6 p.m. daily. Breaks in the racing will occur during the 
enforcement periods, which will allow for vessels to pass through the 
safety zone. The Captain of the Port Marine Safety Unit Port Arthur 
(COTP) or a designated representative will provide notice of 
enforcement appropriate per paragraph (e).
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry of vessels or persons into safety zone 
described in paragraph (a) of this section is prohibited unless 
authorized by the COTP or a designated representative. They may be 
contacted on VHF-FM channel 13 or 16, or by phone at by telephone at 
409-719-5070. A designated representative may be a Patrol Commander 
(PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard 
Auxiliary vessel. The Patrol Commander may be contacted on Channel 16 
VHF-FM (156.8 MHz) by the call sign ``PATCOM''.
    (2) All persons and vessels not registered with the sponsor as 
participants or official patrol vessels are considered spectators. The 
``official patrol vessels'' consist of any Coast Guard, state, or local 
law enforcement and sponsor provided vessels assigned or approved by 
the COTP or a designated representative to patrol the regulated area.
    (3) Spectator vessels desiring to transit the regulated area may do 
so only with prior approval of the Patrol Commander and when so 
directed by that officer will be operated at a minimum safe navigation 
speed in a manner which will not endanger participants in the regulated 
area or any other vessels.
    (4) No spectator vessel shall anchor, block, loiter, or impede the 
through transit of participants or official patrol vessels in the 
regulated area during the effective dates and times, unless cleared for 
entry by or through an official patrol vessel.
    (5) Any spectator vessel may anchor outside the regulated area, but 
may not anchor in, block, or loiter in a navigable channel. Spectator 
vessels may be moored to a waterfront facility within the regulated 
area in such a way that they shall not interfere with the progress of 
the event. Such mooring must be complete at least 30 minutes prior to 
the establishment of the regulated area and remain moored through the 
duration of the event.
    (6) The COTP or a designated representative may forbid and control 
the movement of all vessels in the regulated area. When hailed or 
signaled by an official patrol vessel, a vessel shall come to an 
immediate stop and comply with the directions given. Failure to do so 
may result in expulsion from the area, citation for failure to comply, 
or both.
    (7) The COTP or a designated representative may terminate the event 
or the operation of any vessel at any time it is deemed necessary for 
the protection of life or property.
    (8) The COTP or a designated representative will terminate 
enforcement of the special local regulations at the conclusion of the 
event.
    (e) Informational broadcasts. The COTP or a designated 
representative will inform the public of the effective period for the 
safety zone as well as any changes in the dates and times of 
enforcement through Local Notice to Mariners (LNMs), Broadcast Notices 
to

[[Page 11818]]

Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs) as 
appropriate.

    Dated: February 10, 2023.
Molly A. Wike,
Captain, U.S. Coast Guard, Captain of the Port, Marine Safety Unit Port 
Arthur.
[FR Doc. 2023-03775 Filed 2-23-23; 8:45 am]
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