[Federal Register Volume 88, Number 213 (Monday, November 6, 2023)]
[Rules and Regulations]
[Pages 76133-76136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24471]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number: USCG-2023-0135]
RIN 1625-AA00


Safety Zone; Atlantic Ocean, Key West, FL

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a safety zone to be enforced 
in the event of hurricanes, tropical storms, and other disasters in the 
Florida Keys, FL. This action is necessary to ensure the safety of the 
waters of the Key West Captain of the Port (COTP) zone. This regulation 
establishes actions to be completed by parties operating on and around 
the navigable waterways of the Key West COTP zone. This may include the 
owners and operators, and those in management and control positions of 
regulated facilities, waterfront facilities, and vessels, prior to 
landfall of hurricanes, tropical storms, and other disasters 
threatening the Florida Keys.

DATES: This rule is effective without actual notice November 6, 2023. 
For the purposes of enforcement, actual notice will be used from 
November 1, 2023, until November 6, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0135 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 
notification of enforcement, call or email Hailye Wilson, Sector Key 
West Waterways Management Department, Coast Guard; telephone 305-292-
8768; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

COTP Captain of the Port
CFR Code of Federal Regulations
CWA Clean Water Act
DHS Department of Homeland Security
FR Federal Register
MTSA Maritime Transportation Security Act
NPRM Notice of proposed rulemaking
OPA90 The Oil Pollution Act of 1990
PWSA Ports and Waterways Safety Act
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Florida Keys has the potential to be affected by hurricanes, 
tropical storms, and other disasters on a yearly basis, especially 
between the months of June and November. The Key West COTP is 
establishing a safety zone to provide for the safety of life during 
such storms and events. In response, on May 2, 2023, the Coast Guard 
published a notice of proposed rulemaking (NPRM).\1\ There, we stated 
why we issued the NPRM and invited comments on our proposed regulatory 
action related to safety zone. During the comment period that ended 
June 1, 2023, we received two comments.
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    \1\ 88 FR 27421.
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    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 and contrary to public interest 
because immediate action is needed to respond to the potential safety 
hazards associated with the rapid formation of a tropical storm or 
hurricane that would pose an imminent threat to vessels, persons, 
structures, and shore areas.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The purpose of this rule is to protect the general maritime 
public, to include vessel owners, vessel operators, and those in 
management and control positions related to facilities and waterways 
regulated by the Coast Guard, along with those in management and 
control positions related to any land

[[Page 76134]]

or shore area immediately adjacent to those waterways in the COTP Key 
West zone, in the event of a hurricane, tropical storm, and other 
natural disasters.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our NPRM published May 
2, 2023. The first commenter positively endorsed the Coast Guard's 
establishment of this safety zone. They further recommended that small 
entities and individuals who choose to reside in Florida assume all the 
liability, risk and responsibilities associated with hurricanes. They 
also recommended that tax-payer-funds not be expended to combat the 
effects of climate change. The Coast Guard acknowledges these comments 
and determined no recommended changes are needed in response to these 
suggestions. Additionally, this commenter recommended the fossil fuel 
industry, and their shareholders bear the cost associated with climate 
change. With regards to this suggestion, the suggestion is outside the 
scope of this rulemaking, which pertains to the establishment of a 
safety zone to be subject to enforcement in the event of a hurricane, 
tropical storm, and other disaster in the Florida Keys, FL.
    The second commenter raised several issues regarding the lack of 
clarity in the proposed regulatory text and questioned whether the rule 
is necessary. The rule is necessary to protect the general maritime 
public in the COTP Key West zone, in the event of extreme weather or 
other natural disasters. While the regulations in 33 CFR part 160, 
subpart B, ``Control of Vessel and Facility Operations'' grants the 
COTP the broad authority to direct the operations of vessels on the 
navigable waters, and waterfront facilities, land structures or shore 
areas immediately adjacent to the navigable waters, this rule is 
intended to specifically streamline the COTP's actions and processes 
for specific scenarios that may occur in the event of extreme weather 
or other natural disasters.
    This rule is intended to inform the general maritime public, to 
include vessel owners and operators, regulated facilities, and 
waterfront facilities of the Coast Guard's expectations in the event of 
a hurricane, tropical storm, or other disaster, thereby expediting the 
enforcement of the safety zone, and providing more advanced notice of 
the Coast Guard's expectations in the event of a hurricane, tropical 
storm, or other natural disaster. The rule is also intended to provide 
vessel owners and operators, along with the owners and operators of 
regulated facilities and waterfront facilities with a deeper 
understanding of how the Coast Guard intends to handle extreme weather-
related events so they can plan accordingly.
    To address the commenter's concerns regarding the regarding the 
lack of clarity in the proposed regulatory text, the Coast Guard is 
making the following changes in the final rule regulatory text in Sec.  
165.707.
    The Coast Guard is adding three definitions for ``regulated 
facilities,'' ``waterfront facilities,'' and ``authorized law 
enforcement agencies'' in paragraph (a). The Coast Guard has the 
authority to regulate facilities and land structure or shore area 
immediately adjacent to navigable waters under certain, specific 
statutory and regulatory frameworks. We are adding a definition for 
``regulated facilities'' to clarify the regulated facilities covered by 
this rule are those regulated under the Ports and Waterways Safety 
Act,\2\ Maritime Transportation and Security Act,\3\ Clean Water 
Act,\4\ and the Oil Pollution Act of 1990.\5\ These statutes give the 
Coast Guard the authority and jurisdiction to take certain actions on 
certain regulated facilities that have a maritime nexus. We are adding 
a definition for ``waterfront facilities'' to the regulatory text which 
will include any land structure or shore area immediately adjacent to 
the navigable waters of the Key West COTP zone. We also added a 
definition for ``authorized law enforcement agencies'' to clarify that 
Federal, State, and local law enforcement agencies that have received 
specific authorization from or are operating in concert with the Coast 
Guard are authorized to conduct operations related to the safety, 
security, and stability of the Key West COTP zone.
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    \2\ 46 U.S.C. 70001 et seq.
    \3\ 46 U.S.C. 70101 et seq.
    \4\ 33 U.S.C. 1251 et seq.
    \5\ 33 U.S.C. 2701 et seq.
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    Additionally, the commenter raised concerns related to 
enforceability and notice requirements. The Coast Guard understands 
that its regulations are not enforceable on the public without proper 
notice. While the publication of this final rule document in the 
Federal Register constitutes constructive notice of the requirements 
within the regulations. However, there will be circumstances where 
individuals are notified by the Coast Guard of an impending extreme 
weather situation causing the need for the safety zone to be made 
subject to enforcement. In those types of circumstances, the Coast 
Guard will provide affected individuals with actual notice of the 
safety zone prior to its enforcement or assessment of any fines or 
penalties. In addition to changes made to the regulatory text in this 
final rule in response to comment, we are making the following changes 
to the regulatory text.
    In paragraph (a), we are adding ``regulated facilities, and 
``waterfront facilities'' to clarify that regulated facilities and 
waterfront facilities as defined in paragraphs (b)(6) and (b)(7) 
respectively are covered by this safety zone when port conditions are 
met in accordance with the requirements in paragraph (c)(1) Port 
Condition WHISKEY and (c)(2) Port Condition X-RAY. Additionally, in 
paragraph (a), we are deleting ``during specified conditions'' because 
the location of the safety zone is intended to be constant. When the 
safety zone is subject to enforcement it will be determinate of 
conditions set forth in paragraphs (c)(1) through (c)(5) of the 
regulatory text. In paragraph (c)(1), we are deleting ``port 
facilities'' and adding in its place, ``regulated facilities and 
waterfront facilities'' for consistency as definitions for these terms 
have been added in paragraphs (a)(6) and (a)(7). In the event Port 
Condition WHISKEY is set, all vessels, regulated facilities, and 
waterfront facilities within the Key West COTP zone would have to 
comply with the applicable regulations in (c)(1). Additionally, in 
paragraph (c)(1), we removed the sentence, ``Vessels wishing to remain 
in port are required to submit an application to the COTP prior to 
setting Port Condition X-Ray.'' In its place, we are adding the 
sentence, ``Oceangoing vessels greater than 300 gross tons (GT) 
intending to remain in the port during Port Condition Whiskey must 
contact the Key West COTP prior to the setting of port condition X-
Ray.'' We are taking this action to prevent vessel owners and operators 
from having to generate additional documentation.
    In paragraph (c)(2), we are deleting ``port facilities'' and adding 
in its place, ``regulated facilities and waterfront facilities'' for 
consistency as definitions for these terms have been added in 
paragraphs (a)(6) and (a)(7). In the event Port Condition X-RAY is set, 
all vessels, regulated facilities, and waterfront facilities within the 
Key West COTP zone would have to comply with the applicable regulations 
in paragraph (c)(2). Additionally, in paragraph (c)(2), we are deleting 
the sentence, ``The COTP may require additional precautions to ensure 
the safety of the ports and waterways'' because it is

[[Page 76135]]

overly vague and may cause undue confusion for owners and operators of 
vessels and regulated facilities.
    In paragraph (c)(3), we clarified we are only limiting cargo 
operations at ``regulated facilities.'' We also removed some the 
language that went into specifics of cargo operations. Removing the 
language made the regulatory text more succinct, as the initial 
language contained unnecessary redundancies. We also clarified that 
only facilities regulated under the MTSA will be required to operate in 
accordance with their security plan.
    In paragraph (c)(4), we are removing the words ``are suspended'' 
and replacing it with, ``must cease all cargo operations'' because the 
phrase ``are suspended'' may be confusing in this context. By using the 
phrase ``must cease all cargo operations'' we are making it clear to 
the regulated parties that cargo operations must stop when Port ZULU is 
set.
    In paragraph (c)(6), we are revising the text to clarify that the 
Coast Guard Sector Key West will notify the maritime community, ``to 
the furthest extent practicable'' of the periods which the safety zone 
in paragraph (a) will be subject to enforcement via Broadcast Notice to 
Mariners or by on-scene designated representatives.
    We are deleting paragraph (c)(7) because it is duplicative of what 
is contained in paragraph (c)(6). The information previously described 
in (c)(8) was thereby moved to (c)(7).
    Lastly, we are making non-substantive editorial changes and 
revising terminology for consistency throughout the final rule 
regulatory text.

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 necessity to 
protect life and port infrastructure during a hurricanes, tropical 
storms, and other disasters. The absence of a safe harbor in the 
Florida Keys precludes large vessels from accessing adequate facilities 
to weather a substantial storm or natural disaster within the Key West 
COTP zone. Moreover, the Coast Guard would issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the safety zone, and the 
rule would allow vessels to seek permission to remain in port.

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 received 00 comments from the Small Business 
Administration on this rulemaking. 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 would prohibit entry in certain waters of the Key West 
COTP for

[[Page 76136]]

the duration needed to ensure safe transit of vessels and industry 
post-hurricane, post-storm, and post-emergency. 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.  165.707 to read as follows:


Sec.  165.707  Safety Zone; Hurricanes, Tropical Storms and Other 
Disasters in Florida Keys.

    (a) Regulated Areas. All navigable waters, regulated facilities, 
and waterfront facilities within the Key West Captain of the Port 
(COTP) zone, Key West, Florida (as described in 33 CFR 3.35-40).
    (b) Definitions. As used in this section:
    Authorized Law Enforcement Agencies means Federal, State, and local 
law enforcement agencies that have received specific authorization from 
or are operating in concert with the Coast Guard to conduct operations 
related to the safety, security and stability of the Key West COTP 
zone.
    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 COTP in the enforcement of the regulated 
areas.
    Port Condition WHISKEY means a condition set by the COTP when 
weather advisories indicate sustained gale force winds (39-54 mph/34-47 
knots) from a tropical or hurricane force storm are predicted to make 
landfall at the port within 72 hours.
    Port Condition X-RAY means a condition set by the COTP when weather 
advisories indicate sustained gale force winds (39-54 mph/34-47 knots) 
from a tropical or hurricane force storm are predicted to make landfall 
at the port within 48 hours.
    Port Condition YANKEE means a condition set by the COTP when 
weather advisories indicate that sustained gale force winds (39-54 mph/
34-47 knots) from a tropical or hurricane force storm are predicted to 
make landfall at the port within 24 hours.
    Port Condition ZULU means a condition set by the COTP when weather 
advisories indicate that sustained gale force winds (39-54 mph/34-47 
knots) from a tropical or hurricane force storm are predicted to make 
landfall at the port within 12 hours.
    Regulated Facilities means shoreside facilities regulated by the 
Coast Guard under the Ports and Waterways Safety Act,\6\ Maritime 
Transportation and Security Act,\7\ Clean Water Act,\8\ and the Oil 
Pollution Act of 1990,\9\ and regulations in 33 CFR parts 105, 154, 
156, and 158.
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    \6\ 46 U.S.C. 70001 et seq.
    \7\ 46 U.S.C. 70101 et seq.
    \8\ 33 U.S.C. 1251 et seq.
    \9\ 33 U.S.C. 2701 et seq.
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    Waterfront Facilities means any land structure or shore area 
immediately adjacent to the navigable waters of the Key West COTP zone.
    (c) Regulations--(1) Port Condition WHISKEY. All vessels, regulated 
facilities, and waterfront facilities within the Key West COTP zone 
must exercise due diligence in preparation for potential storm impacts. 
All regulated facilities and waterfront facilities must begin removing 
all debris and securing potential flying hazards. Oceangoing vessels 
greater than 300 gross tons (GT) must make plans to depart no later 
than the setting of Port Condition Yankee unless authorized by the 
COTP. Oceangoing vessels greater than 300 GT intending to remain in 
port must contact the COTP prior to the setting port condition X-Ray.
    (2) Port Condition X-RAY. All vessels, regulated facilities, and 
waterfront facilities within the Key West COTP zone must ensure that 
potential flying debris is removed or secured. Hazardous materials/
pollution hazards must be secured in a safe manner and away from 
waterfront areas. Vessels greater than 300 GT without an approval to 
remain in port must depart prior to the setting of Port Condition 
YANKEE. Vessels with the COTP's permission to remain in port must 
implement their pre-approved mooring arrangement. Regulated facilities 
must prepare to terminate all cargo operations.
    (3) Port Condition YANKEE. Affected ports are closed to inbound 
vessel traffic. All oceangoing vessels greater than 300 GT must have 
departed designated ports within the Key West COTP zone. Regulated 
facilities must terminate all cargo operations, not associated with 
storm preparations, unless specifically authorized by the COTP. All 
MTSA regulated facilities must continue to operate in accordance with 
their approved Facility Security Plans and comply with the requirements 
of the MTSA.
    (4) Port Condition ZULU. The port is closed to all vessel traffic 
except as specifically authorized by the COTP. Regulated facilities 
must cease all cargo operations, including bunkering and lightering. 
Waivers may be granted except for when Cargo of Particular Hazard or 
Certain Dangerous Cargo are involved.
    (5) Emergency Restrictions for Other Disasters. Any natural or 
other disasters that are anticipated to affect the Key West COTP zone 
will result in the prohibition of regulated facility operations and 
vessel traffic transiting or remaining in the affected port.
    (6) Safety Zones Notice. Coast Guard Sector Key West will notify 
the maritime community, to the furthest extent practicable, of the 
periods during which the safety zone described in paragraph (a) will be 
subject to enforcement via Broadcast Notice to Mariners or by on-scene 
designated representatives.
    (7) Exception. This regulation does not apply to authorized law 
enforcement agencies operating within the regulated area.

Jason D. Ingram,
Captain, U.S. Coast Guard, Captain of the Port, Sector Key West.
[FR Doc. 2023-24471 Filed 11-3-23; 8:45 am]
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