[Federal Register Volume 87, Number 5 (Friday, January 7, 2022)]
[Proposed Rules]
[Pages 916-919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28537]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0661]
RIN 1625-AA11


Regulated Navigation Area; Offshore, Cape Canaveral, Florida

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On September 17, 2021, the Coast Guard published a notice of 
proposed rulemaking (NPRM) proposing to replace the existing safety 
zone in Captain of the Port (COTP) zone Jacksonville, Offshore Cape 
Canaveral, Florida with a regulated navigation area (RNA). Changes in 
the type and size of launch vehicles, rocket component recovery 
methods, and the increased frequency of launches now pose variable 
risks to marine traffic and require a more flexible regulatory tool. 
After considering comments received from the public, the Coast Guard is 
making modifications to the regulated area in the proposed rule. This 
supplemental notice requests comments on the revised proposal.

DATES: Comments and related material must be received by the Coast 
Guard on or before February 7, 2022.

ADDRESSES: You may submit comments identified by docket number USCG-
2021-0661 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.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Lieutenant Junior Grade Stephanie 
Miranda, Seventh District, Waterways Management Branch (Dpw), U.S. 
Coast Guard; telephone 305-415-6748, email 
<a href="/cdn-cgi/l/email-protection#2d5e59485d454c43444803410340445f4c43494c6d585e4e4a03404441"><span class="__cf_email__" data-cfemail="07747362776f66696e62296b296a6e75666963664772746460296a6e6b">[email protected]</span></a>.

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, Purpose, and Legal Basis

    The Coast Guard proposes to replace the existing safety zone in 33 
CFR 165.775 titled, ``Safety Zone; Captain of the Port Zone 
Jacksonville; Offshore Cape Canaveral, Florida'' with a regulated 
navigation area (RNA). The existing safety zone established in 2009 is 
composed of four large regulated areas and was established in 2009 with 
the intent of protecting marine traffic from the hazards associated 
with the launching of space vehicles, to expedite notification to the 
public, and to reduce the administrative workload of the Coast Guard. 
However, since the establishment of the safety zone in Sec.  165.775, 
changes in the type and size of launch vehicles, rocket component 
recovery methods, and the increased frequency of launches pose variable 
risks to marine traffic and require a more flexible regulatory tool.
    On September 17, 2021, the Coast Guard published a notice of 
proposed rulemaking entitled, ``Regulated Navigation Area; Offshore, 
Cape Canaveral, Florida in the Federal Register (86 FR 51845) in order 
to replace the existing safety zone in Sec.  165.775 with a RNA. During 
the comment period that ended on October 18, 2021, we received three 
comments and those comments are addressed in Section III of this SNPRM.
    The Coast Guard is proposing this SNPRM under authority in 46 
U.S.C. 70034. The purpose of this SNPRM is to revise the regulatory 
text as proposed in the NPRM to expand the zone to include additional 
missions which are expected to be conducted (including the Transport 2 
mission conducted by the U.S Space Launch Delta 45 (SLD 45) and 
operations by the Blue Origin, LLC), and to include the Captain of the 
Port's (COTP) consideration of analysis from (SLD 45) when activating a 
zone. The revised regulatory text we are proposing in this SNPRM 
appears at the end of this document. It differs from the text proposed 
in the NPRM, primarily in that it expands the zone westward to include 
areas of operation by the SLD 45 and the Blue Origin, LLC.

III. Discusion of Comments on the NPRM and Change to the Proposed Rule

    In response to the NPRM, the Coast Guard received three public 
comments. Unless we receive recommendations for changes during the 
SNPRM comment period, we plan to adopt the regulations proposed in the 
NPRM with revisions to the regulatory text as reflected in this SNPRM. 
The SNPRM provides an additional comment period to shape the final 
regulatory action. Concerns received on this SNPRM will be addressed in 
the final rule.
    The Coast Guard received a comment addressing the growing effect of 
commercial space travel in terms of potential for pollution and hazards 
to land and sea vehicles in the path of flight. The commenter felt the 
proposed change was valid and important. No changes were made based on 
this comment.
    Another comment addressed the growth of the aerospace industry in 
the region and associated increase in launch activity observed since 
2009. The commenter felt that an evaluation of the 2009 rulemaking and 
the associated changes proposed in the NPRM were warranted and in the 
interest of preserving the safety of marine interests in the area. No 
changes were made based on this comment.
    The Coast Guard received a comment from the Blue Origin Florida, 
LLC and included a request for an adjustment to the dimensions of the 
RNA to provide a launch hazard area suitable for potential future 
launches to Polar Orbits. The change was evaluated and implemented. In 
response to this comment, the Coast Guard made changes to the 
regulatory text in this SNPRM by making an adjustment to the southeast 
launch hazard area to encompass dimensions aligned to a Polar Orbit-
mission specific launch exclusion area as provided by the SLD 45.

IV. Discussion of Proposed Rule

    The proposed rule would establish a RNA in the following revised 
area based on comments received during the NPRM comment period: All 
waters offshore Cape Canaveral from surface to bottom, encompassed by a 
line connecting the following points beginning with Point 1 at 
28[deg]48'54'' N, 80[deg]28'40'' W; thence southwest to Point 2 at 
28[deg]43'20'' N, 80[deg]41'00'' W; thence south along the shoreline to 
Point 3 at 28[deg]25'18'' N, 80[deg]34'43'' W; thence continuing south 
offshore to Point 4 at 28[deg]11'00'' N,

[[Page 917]]

80[deg]29'00'' W; thence east to Point 5 at 28[deg]10'00'' N, 
80[deg]21'13'' W; thence north along the 12 nautical mile line back to 
Point 1. Coordinates are in WGS 1984. These coordinates are based on 
the furthest north and south trajectories of typical rocket launch 
vehicles originating from Cape Canaveral. In addition, there are five 
launch hazard areas in which the majority of rocket launches will fall 
and are meant to alert mariners to the general areas in which launches 
will occur. We list the coordinates and locations of the five launch 
hazard areas in the regulatory text of this SNPRM.
    When the RNA is deemed activated, the COTP or a designated 
representative would be able to restrict vessel movement including but 
not limited to transiting, anchoring, or mooring within this RNA to 
protect vessels from hazards associated with rocket launches. Active 
restrictions are based on mission specific launch exclusion areas 
provided by the SLD 45, are temporary in nature, and would only be 
enacted and enforced prior to and just after a launch. The COTP would 
be able to activate any single area, a combination of areas, or 
establish areas within the RNA boundary area as warranted by specific 
risks posed by individual launches. The determination of risk would be 
at the discretion of the COTP and informed by the mission specific 
launch exclusion areas provided by SLD-45.
    The COTP would inform the public of the activation or status of the 
RNA and specific exclusion areas, by Broadcast Notice to Mariners on 
VHF-FM channel 16, Public Notice of Enforcement, on-scene presence, and 
by the display of a yellow ball from a 90-foot pole near the shoreline.

V. 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 Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB).
    The RNA will operate in a similar way to the existing safety zone, 
but will reduce the size of exclusionary areas for each specific rocket 
launch. We expect the economic impact of this rule to be so minimal 
that a full regulatory evaluation is unnecessary. The RNA will only be 
activated a reasonable time before a launch and deactivated once the 
area is no longer hazardous.

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.
    The total time of the RNA activation and thus restriction to the 
public is expected to be approximately one hour per launch. Vessels 
would be able to transit around the activated RNA locations during 
these launches. We do not anticipate any significant economic impact 
resulting from activation of the RNA.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this 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 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).

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 effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01 and Commandant Instruction M16475.1D 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 the activation of a RNAwith 
exclusionary zones smaller than the existing safety zones. The 
activation of the RNA is expected to be an hour total per occurrence. 
Normally such actions

[[Page 918]]

are categorically excluded from further review under paragraph L60(a) 
of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01. 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.

VI. 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-2021-0661 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. 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 proposes 
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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.

0
2. Revise Sec.  165.775 to read as follows:


Sec.  165.775   Regulated Navigation Area; Launch Area Offshore Cape 
Canaveral, FL.

    (a) Location.
    (1) The following area is a regulated navigation area (RNA): All 
waters offshore Cape Canaveral from surface to bottom, encompassed by a 
line connecting the following points beginning with Point 1 at 
28[deg]48'54'' N, 80[deg]28'40'' W; thence southwest to Point 2 at 
28[deg]43'20'' N, 80[deg]41'00'' W; thence south along the shoreline to 
Point 3 at 28[deg]25'18'' N, 80[deg]34'43'' W; thence continuing south 
offshore to Point 4 at 28[deg]11'00'' N, 80[deg]29'00'' W; thence east 
to Point 5 at 28[deg]10'00'' N, 80[deg]21'13'' W; thence north along 
the 12 nautical mile line back to Point 1. Coordinates are in WGS 1984. 
These coordinates are based on the furthest north and south 
trajectories of typical rocket launch vehicles originating from Cape 
Canaveral.
    (2) Restrictions may be enforced anywhere within the boundaries of 
the RNA. Restrictions will be based on the risk assessment of the 
Captain of the Port Jacksonville and informed by the mission specific 
launch exclusion areas provided by U.S Space Launch Delta 45 (SLD 45). 
There are five launch hazard areas that cover rocket launches. Launch 
hazard areas include all navigable waters within the following 
coordinates, encompassed by a line starting at Point 1 connecting the 
following points:
    (i) Northeast Launch Hazard Area:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Point 1.......................  28[deg]47'47'' N    080[deg]27'48'' W
Point 2.......................  28[deg]42'18'' N    080[deg]34'55'' W
Point 3.......................  28[deg]39'13'' N    080[deg]37'49'' W
Point 4.......................  28[deg]32'29'' N    080[deg]33'53'' W
Point 5.......................  28[deg]34'00'' N    080[deg]29'00'' W
Point 6.......................  28[deg]39'43'' N    080[deg]21'57'' W
------------------------------------------------------------------------

    (ii) East Northeast Launch Hazard Area:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Point 1.......................  28[deg]43'53'' N    080[deg]24'50'' W
Point 2.......................  28[deg]36'10'' N    080[deg]35'20'' W
Point 3.......................  28[deg]31'46'' N    080[deg]33'40'' W
Point 4.......................  28[deg]34'42'' N    080[deg]28'40'' W
Point 5.......................  28[deg]40'45'' N    080[deg]22'28'' W
------------------------------------------------------------------------

    (iii) Large East Launch Hazard Area:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Point 1.......................  28[deg]40'32'' N    080[deg]22'21'' W
Point 2.......................  28[deg]39'14'' N    080[deg]37'48'' W
Point 3.......................  28[deg]27'00'' N    080[deg]31'55'' W
Point 4.......................  28[deg]27'35'' N    080[deg]18'27'' W
------------------------------------------------------------------------

    (iv) Small East Launch Hazard Area:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Point 1.......................  28[deg]39'42'' N    080[deg]21'56'' W
Point 2.......................  28[deg]39'00'' N    080[deg]31'00'' W
Point 3.......................  28[deg]38'00'' N    080[deg]36'58'' W
Point 4.......................  28[deg]32'00'' N    080[deg]33'45'' W
Point 5.......................  28[deg]31'51'' N    080[deg]20'41'' W
------------------------------------------------------------------------

    (v) Southeast Launch Hazard Area:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Point 1.......................  28[deg]37'00'' N    080[deg]29'00'' W
Point 2.......................  28[deg]35'48'' N    080[deg]34'59'' W
Point 3.......................  28[deg]25'18'' N    080[deg]34'43'' W
Point 4.......................  28[deg]11'00'' N    080[deg]29'00'' W
Point 5.......................  28[deg]10'00'' N    080[deg]21'13'' W
Point 6.......................  28[deg]19'36'' N    080[deg]23'10'' W
Point 7.......................  28[deg]22'11'' N    080[deg]20'17'' W
------------------------------------------------------------------------

    (b) Definitions. The following definitions apply to this section: 
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 Captain of the Port (COTP) Jacksonville in the 
enforcement of RNAs, safety zones, and security zones.
    (c) Regulations. (1) The COTP Jacksonville or a designated 
represented may restrict vessel movement including but not limited to 
transiting, anchoring, or mooring within this RNA to protect vessels 
from hazards associated with rocket launches. These restrictions are 
temporary in nature and will only be enacted and enforced prior to and 
just after a launch.
    (2) The COTP Jacksonville may activate restrictions within any 
single area, a combination of areas, or establish ad hoc areas within 
the RNA boundary area. Activation of prescribed or ad hoc Launch Hazard 
Areas will be based on the risk assessment of the Captain of the Port 
Jacksonville and informed by the mission specific launch exclusion 
areas

[[Page 919]]

provided by SLD 45 to account for the specific risks posed by 
individual launches.
    (d) Notice of activation of RNA. The COTP Jacksonville will inform 
the public of the activation or status of the RNA and specific 
exclusion areas, by Broadcast Notice to Mariners on VHF-FM channel 16, 
Public Notice of Enforcement, on-scene presence, and by the display of 
a yellow ball from a 90-foot pole near the shoreline at approximately 
28[deg]35'00'' N, 080[deg]34'36'' W and from a 90-foot pole near the 
shoreline at approximately 28[deg]55'18'' N, 080[deg]35'00'' W. Coast 
Guard assets or other Federal, State, or local law enforcement assets 
will be clearly identified by lights, markings, or with agency 
insignia.
    (e) Contact information. The COTP Jacksonville may be reached by 
telephone at (904) 564-7513. Any on-scene Coast Guard or designated 
representative assets may be reached on VHF-FM channel 16.

    Dated: December 22, 2021.
Brendan C. McPherson,
Rear Admiral, Commander, Seventh Coast Guard District.
[FR Doc. 2021-28537 Filed 1-6-22; 8:45 am]
BILLING CODE 9110-04-P


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