[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Rules and Regulations]
[Pages 21476-21478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07500]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0125]
RIN 1625-AA00


Safety Zone; Naval Air Station Key West, Boca Chica, FL

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 of the Boca Chica Channel in Boca Chica, Florida. This 
action is necessary to provide for the safety of life on these 
navigable waters near Boca Chica Key, FL, during the 2023 Naval Air 
Station Key West Air Show. This rule prohibit persons and vessels from 
being in the safety zone unless authorized by the Captain of the Port 
Key West or a designated representative.

DATES: This rule is effective daily from 10 a.m. through 4 p.m. on 
April 14, 2023 through April 16, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0125 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 LTJG Hailye Wilson, Sector Key West Waterways Management 
Division, U.S. Coast Guard; telephone 305-292-8768, 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 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. The Coast Guard 
lacks sufficient time to provide for a comment period and then consider 
those comments before issuing the rule since this rule is needed by 
April 14, 2023. It would be contrary to the public interest since 
immediate action is necessary to protect the safety of the public, and 
vessels transiting the waters of the Boca Chica Key.
    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 immediate action is needed to 
respond to the potential safety hazards associated with the Air Show.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Captain of the Port Key West (COTP) has determined that 
potential hazards associated with the Air Show starting April 14, 2023, 
will be a safety concern. This rule is needed to protect personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone until the Air Show is complete.

IV. Discussion of the Rule

    This rule establishes a safety zone from 10 a.m. until 4 p.m. on 
April 14, 2023 through April 16, 2023. The duration of the zone is 
intended to protect personnel, vessels, and the marine environment in 
these navigable waters while the bridge is being repaired. No vessel or 
person will be permitted to enter the safety zone without obtaining 
permission from the COTP or a 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.

[[Page 21477]]

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, duration, and time-of-day of the safety zone. Vessel traffic 
will be able to safely transit around this safety zone which would 
impact a small designated area of the Boca Chica Channel during the 
afternoon when vessel traffic is normally low. Moreover, the Coast 
Guard will issue a Broadcast Notice to Mariners via VHF-FM marine 
channel 16 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 lasting only 6 hours for three days that will prohibit 
entry within the Boca Chica Channel. 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 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.

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. Add Sec.  165.T07-0125 to read as follows:


Sec.  165.T07-0125  Safety Zone; Naval Air Station Key West, Boca 
Chica, FL.

    (a) Location. The following area is a safety zone: All waters of 
Boca Chica Channel, from surface to bottom, encompassed by a line 
connecting the following points beginning at 24[deg]33'48'' N, 
081[deg]43'02'' W, thence to 24[deg]34'18'' N, 081[deg]43'08'' W, 
thence to 24[deg]34'28'' N, 081[deg]42'22'' W, and along the shoreline 
back to the beginning point. These coordinates are based on North 
American Datum.
    (b) Definitions. As used in this section, ``designated 
representative'' means a Coast Guard Patrol

[[Page 21478]]

Commander, including a Coast Guard coxswain, petty officer, or other 
officer operating a Coast Guard vessel and a Federal, State, and local 
officer designated by or assisting the Captain of the Port Key West 
(COTP) in the enforcement of the safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by telephone at 305-292-8727. Those in the safety zone 
must comply with all lawful orders or directions given to them by the 
COTP or the COTP's designated representative.
    (d) Enforcement periods. This section will be enforced daily from 
10 a.m. to 4 p.m. April 14, 2023, through April 16, 2023.

    Dated: March 31, 2023.
Jason D. Ingram,
Captain, U.S. Coast Guard, Captain of the Port Key West.
[FR Doc. 2023-07500 Filed 4-10-23; 8:45 am]
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