Rule2023-24471
Safety Zone; Atlantic Ocean, Key West, FL
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 6, 2023
Effective
November 6, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 213 (Monday, November 6, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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: <a href="/cdn-cgi/l/email-protection#432b222a2f3a266d2e6d342a2f302c2d03363020246d2e2a2f"><span class="__cf_email__" data-cfemail="7911181015001c5714570e10150a1617390c0a1a1e57141015">[email protected]</span></a>.
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]
BILLING CODE 9110-04-P
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