[Federal Register Volume 89, Number 29 (Monday, February 12, 2024)]
[Proposed Rules]
[Pages 9800-9803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02703]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0715]
1625-AA00


Safety Zone; Biscayne Bay, Homestead, FL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a safety zone for 
certain waters of the Biscayne Bay. This action is necessary to provide 
for the safety of life on these navigable waters near Homestead, FL, 
during a recurring military exercises that would be enforced 
approximately 8-12 times per year. The exercises will include military 
aircraft and watercraft that may pose a

[[Page 9801]]

danger to the public. This proposed rulemaking would prohibit persons 
and vessels from being in the safety zone unless authorized by the 
Captain of the Port Sector Miami or a designated representative. We 
invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before March 13, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0715 using the Federal Decision-Making Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments. This notice of proposed rulemaking 
with its plain-language, 100-word-or-less proposed rule summary will be 
available in this same docket.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call, or email LT Benjamin Adrien Waterways 
division, U.S. Coast Guard; telephone 305-535-4307, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

BNM Broadcast Notice to Mariners
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
MSIB Marine Safety Information Bulletin
NPRM Notice of proposed rulemaking
NOE Notice of Enforcement
Sec.  Section
SOCSO Special Operations Command South
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    On February 6, 2023, the U.S. Special Operations Command South 
(SOCSO) notified the Coast Guard that it would be conducting recurring 
military training exercises 8-12 times per year. The training exercises 
would take place within the Biscayne Bay Northeast of Turkey Point 
Power Plant. The Captain of the Port Sector Miami (COTP) has determined 
that potential hazards associated with the military training exercises 
would be a safety concern for persons and vessels within a 1,000-yard 
radius of the center point of the exercises. The exercises would 
include military aircraft and watercraft operating in active military 
scenarios. The actions undertaken in these exercises may pose a danger 
to the public.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within a 1,000-yard radius of the military 
training exercises before, during, and after the military training 
exercises. The Coast Guard is proposing this rulemaking under authority 
in 46 U.S.C. 70034.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a safety zone that would be 
enforced 8-12 times per year. The safety zone would cover all navigable 
waters within a 1,000-yard radius of the center point at N 25'28.506 W 
80'13.842 in the Biscayne Bay located approximately 1,000 yards 
Northeast of the Turkey Point Power Plant in Homestead, FL. The 
duration of the zone would be identified prior to each military 
training exercise to ensure the safety of persons and vessels, and 
navigable waters before, during, and after the scheduled times for the 
exercise. No person or vessel would be permitted to enter the safety 
zone without obtaining permission from the COTP or a designated 
representative.
    Members of the public would be notified that the safety zone is 
being enforced by the presence of military helicopter with the insignia 
of the U.S. Army, the U.S. Air Force, the U.S. Navy, or the U.S. Marine 
Corps, in the direct vicinity of the safety zone. Leading up to its 
enforcement the Coast Guard will publish a Notice of Enforcement (NOE) 
in addition to a Marine Safety Information Bulletin (MSIB) and a 
Broadcast Notice to Mariners (BNM).
    The regulatory text we are proposing appears at the end of this 
document.

IV. Regulatory Analyses

    We developed this proposed 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 NPRM 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, the NPRM 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 
would be able to safely transit around this safety zone which impacts a 
designated area of the Biscayne Bay for a period of time chosen when 
vessel traffic is normally low. Moreover, the Coast Guard would issue a 
NOE, 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 
proposed rule would 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 
IV.A above, this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
(see ADDRESSES) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.
    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 proposed rule. If the proposed 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. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

    This proposed rule would not call for a new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

[[Page 9802]]

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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175 (Consultation and Coordination with Indian Tribal 
Governments) because it would 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. If 
you believe this proposed rule has implications for federalism or 
Indian tribes, please call or email the person listed in the FOR 
FURTHER INFORMATION CONTACT section.

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 proposed rule would not 
result in such an expenditure, we do discuss the potential effects of 
this proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 made 
a preliminary determination 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 proposed rule involves a safety 
zone to protect persons and vessels operating in the area adjacent to 
the safety zone. This zone will only be enforced for a few hours at a 
time, 8-12 times per year. Normally such actions are 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 preliminary 
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. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision-Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0715 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER 
INFORMATION CONTACT section of this proposed rule for alternate 
instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. Also, if you click on the Dockets tab and then the 
proposed rule, you should see a ``Subscribe'' option for email alerts. 
The option will notify you when comments are posted, or a final rule is 
published.
    We review all comments received, but we will only post comments 
that address the topic of the proposed rule. We may choose not to post 
off-topic, inappropriate, or duplicate comments that we receive.
    Personal information. We accept anonymous comments. Comments we 
post to https://www.regulations.gov will include any personal 
information you have provided. For more about privacy and submissions 
to the docket in response to this document, see DHS's eRulemaking 
System of Records notice (85 FR 14226, March 11, 2020).

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 is 
proposing to amend 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.  165.715 to read as follows:


Sec.  165.715  Safety Zone; Biscayne Bay, Homestead, FL.

    (a) Location. The following area is a safety zone: All waters of 
Biscayne Bay, from surface to bottom within a 1,000-yard radius of 
25[deg]28'506'' N, 080[deg]13'842'', creating a circular zone.
    (b) Definitions. As used in this section, 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 (COTP) Miami 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 contacting Sector Miami's Command Center at 305-535-
4300. Those in the safety zone must comply with all lawful orders or

[[Page 9803]]

directions given to them by the COTP or the COTP's designated 
representative.
    (d) Enforcement period. The safety zone described in paragraph (a) 
of this section would be enforced by the COTP only upon notice. Notice 
of enforcement by the COTP will be provided prior to execution of the 
exercise by all appropriate means, in accordance with 33 CFR 165.7(a). 
Such means will include publication of a Notification of Enforcement in 
the Federal Register, and by the presence of military helicopter with 
the insignia of the U.S. Army, the U.S. Air Force, the U.S. Navy, or 
the U.S. Marine Corps, and may also include Broadcast Notice to 
Mariners, Local Notice to Mariners, or both.

    Dated: January 31, 2024.
C.R. Cederholm,
Captain, U.S. Coast Guard, Captain of the Port Sector Miami.
[FR Doc. 2024-02703 Filed 2-9-24; 8:45 am]
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