[Federal Register Volume 88, Number 168 (Thursday, August 31, 2023)]
[Rules and Regulations]
[Pages 60147-60150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18641]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0606]
RIN 1625-AA00


Safety Zone; Swim for Alligator Lighthouse, Islamorada, FL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on

[[Page 60148]]

certain navigable waters of the Atlantic Ocean near Islamorada, Florida 
during the Swim for Alligator Lighthouse, open water swim event. A 
safety zone for recurring marine events exists; however, for this 
year's event the date has changed. The safety zone is necessary to 
ensure the safety of event participants and spectators. Persons and 
non-participant vessels are prohibited from entering, transiting 
through, anchoring in, or remaining within the safety zone unless 
authorized by the Captain of the Port (COTP) Key West or a designated 
representative.

DATES: This rule is effective from 7:30 a.m. until 4 p.m., on September 
9, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0606 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 Hailye Wilson, Chief, Waterways Management 
Division, Sector Key West, FL 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 and contrary to 
the public interest. The Coast Guard has an existing safety zone for 
this recurring marine event at 33 CFR 165.786, Table to Sec.  165.786, 
Item No. 9.1; however, the existing regulation only covers the event 
when it is scheduled on the third Saturday of September. The primary 
justification for this action is that the Coast Guard received final 
details of the event without sufficient time to provide a reasonable 
comment period and then consider those comments before issuing the 
rule. It would be impracticable and contrary to the public interest to 
delay promulgating this rule, as it is necessary to protect the safety 
of participants, spectators, the public, and vessels transiting in the 
area.
    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 the event is taking place on 
September 9, 2023, and immediate action is needed to respond to the 
potential safety hazards associated with this event.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under the authority in 46 
U.S.C. 70034. The Captain of the Port Key West (COTP) has determined 
that potential hazards associated with this open water swim event will 
be a safety concern for persons and vessels in the safey zone. This 
rule is needed to ensure the safety of the event participants, the 
general public, vessels and the marine environment in the navigable 
waters within the safety zone during the Swim for Alligator Lighthouse 
open water swim event.

IV. Discussion of the Rule

    This rule establishes a safety zone on September 9, 2023 for a 
period of 8.5 hours, from 7:30 a.m. to 4:00 p.m. The safety zone will 
cover all waters of the Atlantic Ocean, between Amara Cay, and 
Alligator Lighthouse, beginning at a point Latitude 24[deg]54.82' N, 
longitude 080[deg]38.03' W, thence to latitude 24[deg]54.36' N, 
longitude 080[deg]37.72' W, thence to latitude 24[deg]51.07' N, 
longitude 080[deg]37.14' W, thence to latitude 24[deg]54.36' N, 
longitude 080[deg]37.72' W, thence to point of origin at latitude 
24[deg]54.82' N, longitude 080[deg]38.03' W. The event course begins 
and ends at Amara Cay Resort in Islamorada, Florida, and extends 
through Hawks Channel, with a turnaround at Alligator Lighthouse. 
Approximately 500 swimmers with kayak escorts and eight safety vessels 
are anticipated to participate in the event. The size and duration of 
the safety zone is intended to protect personnel, vessels, and the 
marine environment in these navigable waters during the open water 
swim. Persons and non-participant vessels are prohibited from entering, 
transiting through, anchoring in, or remaining within the safety zone 
without obtaining permission from the COTP Key West or a designated 
representative. If authorization to enter, transit through, anchor in, 
or remain within the safety zone is granted by the COTP Key West or a 
designated representative, all persons and vessels receiving such 
authorization must comply with the instructions of the COTP Key West or 
a designated representative. The Coast Guard will provide notice of the 
safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, 
or by on-scene designated representatives.

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, duration and available exceptions to the enforcement of the 
safety zone. The regulated area will impact small designated areas of 
the Atlantic Ocean between Islamorada, Florida, and the Alligator 
Lighthouse for only 8.5 hours and thus is limited in time and scope. 
Furthermore, the rule will allow vessels to seek permission to enter 
the safety zone. Non-participant persons and vessels may enter, transit 
through, anchor in, or remain within the regulated area during the 
enforcement periods if authorized by the COTP or a designated 
representative. Vessels not able to enter, transit through, anchor in, 
or remain within the regulated area without authorization from the COTP 
or a designated representative may operate in the surrounding areas 
during the 8.5 hour enforcement period. The Coast Guard will issue a 
Local Notice to Mariners and a Broadcast Notice to Mariners, allowing 
mariners to make alternative plans or seek permission to transit the 
safety zone.

[[Page 60149]]

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 8.5 hours that will prohibit entry into the 
area being used by swimmers and safety craft for the Alligator 
Lighthouse swim. 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; 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.T07-0606 to read as follows:


Sec.  165.T07-0606  Safety Zone; Swim for Alligator Lighthouse, 
Islamorada, FL.

    (a) Location. The following regulated area is a safety zone: All 
waters of the Atlantic Ocean beginning at a point Latitude 
24[deg]54.82' N, longitude 080[deg]38.03' W, thence to latitude 
24[deg]54.36' N, longitude 080[deg]37.72' W, thence to latitude 
24[deg]51.07' N, longitude 080[deg]37.14' W, thence to latitude 
24[deg]54.36' N, longitude 080[deg]37.72' W, thence to point of origin 
at latitude 24[deg]54.82' N, longitude 080[deg]38.03' W. The event 
course begins and ends at Amara Cay Resort in Islamorada, Florida, 
extending through Hawks Channel with a turnaround point at Alligator 
Lighthouse. All coordinates are North American Datum 1983.
    (b) Definition. As used in this section, the term ``designated 
representative'' means a Coast Guard Patrol 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) All persons and vessels are prohibited from 
entering, transiting through, anchoring in, or remaining within the 
regulated area unless authorized by the COTP Key West or a designated 
representative.
    (2) Persons and vessels desiring to enter, transit through, anchor 
in, or remain within the regulated area may contact the COTP Key West 
by telephone at (305) 292-8772, or a designated representative via VHF-
FM radio on channel 16 to request authorization. If authorization is

[[Page 60150]]

granted, all persons and vessels receiving such authorization must 
comply with the instructions of the COTP Key West or a designated 
representative.
    (3) The Coast Guard will provide notice of the regulated area by 
Local Notice to Mariners, Broadcast Notice to Mariners via VHF-FM 
channel 16, or the COTP's designated representative.
    (d) Enforcement period. This rule will be enforced from 7:30 a.m. 
until 4:00 p.m., on September 9, 2023.

    Dated: August 22, 2023.
J. Ingram,
Captain, U.S. Coast Guard, Captain of the Port Key West.
[FR Doc. 2023-18641 Filed 8-30-23; 8:45 am]
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