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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket Number USCG-2023-0715]
          - 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# 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                               ( print 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                         *Benjamin.D.Adrien@uscg.mil*.                    

# 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

§ 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).                          ( print 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

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.

2. Add § 165.715 to read as follows: 

§ 165.715 

                        (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°28′506″  N, 080°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                               ( print 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]

BILLING CODE 9110-04-P