[Federal Register Volume 74, Number 61 (Wednesday, April 1, 2009)]
[Rules and Regulations]
[Pages 14726-14729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7259]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0411]
RIN 1625-AA00


Safety Zone; Captain of the Port Zone Jacksonville; Offshore Cape 
Canaveral, FL

AGENCY: Coast Guard, DHS.

ACTION: Final Rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing four safety zones to protect 
infrastructure and marine traffic from the hazards associated with 
recurring space vehicle launches from Cape Canaveral Air Force Station 
(CCAFS). The safety zones extend from the shoreline to points 
approximately 12 nautical miles offshore and will only be activated and 
enforced during pre-launch hours and terminate approximately 15 minutes 
after a successful launch. In addition to protecting marine traffic 
from the hazards associated with the launching of space vehicles, the 
regulation will expedite notification to the public of such launches 
and also reduce the administrative workload of the Coast Guard.

DATES: This rule is effective May 1, 2009.

ADDRESSES: Comments and material received from the public, as well as

[[Page 14727]]

documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-0411 and are available online by going to 
http://www.regulations.gov, selecting the Advanced Docket Search option 
on the right side of the screen, inserting USCG-2008-0411 in the Docket 
ID box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is also available for inspection or copying at 
two locations: The Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays and the Coast Guard 
Sector Jacksonville Prevention Department, 4200 Ocean Street, Atlantic 
Beach, Florida 32233, between 8 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call LCDR Mark Gibbs at Coast Guard Sector Jacksonville Prevention 
Department (904) 564-7563. If you have questions on viewing docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On August 18, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled Safety Zone; Captain of the Port Zone Jacksonville; 
Offshore Cape Canaveral, FL in the Federal Register (73 FR 160). We 
received 0 letters commenting on the rule. No public meeting was 
requested, and none was held.

Background and Purpose

    Space vehicle launches from CCAFS occur throughout the year and 
have a decided impact on the waters offshore Cape Canaveral. These 
waters are located within the boundaries of Seventh Coast Guard 
District, Captain of the Port (COTP) Zone Jacksonville, as defined by 
CFR 3.35-20. Currently, CCAFS launches 12 to 15 vehicles per year. For 
each launch, the Coast Guard activates and enforces the security zone 
in 33 CFR 165.701. The offshore portion of that security zone extends 
three miles from the baseline. However, to ensure the safety of all 
maritime interests, CCAFS has requested an additional safety buffer be 
added to an extent reaching 12 nautical miles offshore, the maximum 
distance from baseline for which the COTP has jurisdictional authority 
to establish safety zones. Presently, for each space vehicle launch, 
CCAFS requests, and the Coast Guard creates, a Temporary Final Rule 
establishing a safety zone from the baseline out to 12 nautical miles. 
This temporary safety zone covers an area of the Atlantic Ocean that 
commences at the shoreline and extends 3 miles either side of the 
launch azimuth bearing out to 12 nautical miles. Administrative 
efficiency and can be achieved while improving public notice through 
the promulgation of a final rule and subsequent enforcement notice 
rather than through promulgation of individual temporary final rules 
for each launch. In 2007, the Coast Guard issued 12 temporary 
regulations. In addition to the administrative burden, the repeated 
temporary rules have caused confusion among maritime interests who must 
adjust plans and operations to each new and different temporary zone. 
This problem will worsen in the near future as CCAFS pursues more 
robust launch schedules.
    Furthermore, the unpredictability of weather causes a significant 
proportion of launches to be delayed. Any delay precludes suitable 
notification to the public on the effective date and time safety zones 
are enacted and enforced. The Coast Guard must therefore create 
temporary final rules that sometimes are not completed until days or 
hours before the event. This Final Rule coupled with notice will serve 
the public interest by ensuring the safety of maritime interests at 
risk during a launch.
    This rule will significantly relieve the administrative burden on 
the Coast Guard, and at the same time allow the Coast Guard to notify 
the public of launch area restrictions in a timely manner. The public 
notification of launch date and time along with a description of the 
regulated zone will be furnished via Broadcast Notice to Mariners, 
Public Notices, and on-scene Patrol Commanders. In addition, the 
closing of the area will be signified 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]25'18'' N, 080[deg]35'00'' W.

Discussion of Comments and Changes

    On August 18, 2008 the Coast Guard published a notice of proposed 
rulemaking (NPRM) that proposed establishment of four safety zones to 
protect infrastructure and marine traffic from the hazards associated 
with recurring space vehicle launches from Cape Canaveral Air Force 
Station. No comments were received in response to the NPRM, however the 
COTP has incorporated the following changes to notify the public the 
safety zone has been activated.
    The closing of the area will be signified 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]25'18'' N, 080[deg]35'00'' W.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analysis 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. Safety zones will be enacted 
45 minutes prior to launch time and only extend 15 minutes beyond a 
successful launch. During this time, no vessel will be permitted to 
transit through the safety zone(s).

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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 rule 
would not have a significant economic impact on a substantial number of 
small entities. Total time of safety zone activation and thus 
restriction to the public is expected to be one hour per launch. We do 
not anticipate any significant economic impact resulting from 
activation of the safety zone(s).

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so

[[Page 14728]]

that they could better evaluate its effects on them and participate in 
the rulemaking process.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 or more in any 
one year. Though this rule would not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and would not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 5100.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
under the Instruction that there are no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
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:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add section 165.775 to read as follows:


Sec.  165.775  Safety Zone; Captain of the Port Zone Jacksonville; 
Offshore Cape Canaveral, Florida.

    (a) Regulated Area. (1) Zone (A) is defined by four latitude and 
longitude corner points. Zone A originates from the baseline at 
position 28[deg]45.7' N, 080[deg]42.7' W; then proceeds northeast to 
28[deg]50.1' N, 080[deg]29.9' W; then proceeds southeast to 
28[deg]31.3' N, 080[deg]19.6' W; then proceeds west back to the 
baseline at position 28[deg]31.3' N, 080[deg]33.4' W.
    (2) Zone (B) is defined by four latitude and longitude corner 
points. Zone B originates from the baseline at position 28[deg]40.1' N, 
080[deg]38.4' W; then proceeds northeast to 28[deg]48.8' N, 
080[deg]28.9' W; then proceeds southeast to 28[deg]29.7' N, 
080[deg]18.9' W; then proceeds west back to the baseline at position 
28[deg]29.7' N, 080[deg]31.6' W.
    (3) Zone (C) is defined by four latitude and longitude corner 
points. Zone C originates from the baseline at position 28[deg]36.2' N, 
080[deg]35.3' W; then proceeds northeast to 28[deg]45.6' N, 
080[deg]25.2' W; then proceeds south to 28[deg]26' N, 080[deg]20.8' W; 
then proceeds west back to the baseline at position 28[deg]26' N, 
080[deg]34.4' W.
    (4) Zone (D) is defined by four latitude and longitude corner 
points. Zone D originates from the baseline at position 28[deg]31.6' N, 
080[deg]34' W; then proceeds east to 28[deg]31.6' N, 080[deg]20.1' W; 
then proceeds south to 28[deg]16.7' N, 080[deg]23.3' W; then proceeds 
northwest back to the baseline at position 28[deg]21.6' N, 
080[deg]36.1' W.
    (b) Definitions. The following definitions apply to this section:
    Designated representative means Coast Guard Patrol Commanders

[[Page 14729]]

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 regulated navigation areas, safety zones, and 
security zones.
    (c) Regulations. In accordance with the general regulations in 
Sec.  165.23 of this part, anchoring, mooring or transiting in this 
zone is prohibited unless authorized by the Coast Guard Captain of the 
Port Jacksonville or his designated representative.
    (d) Notice of a Safety Zone. The proposed safety zones are 
temporary in nature and will only be enacted and enforced prior to, and 
just after a successful launch. The COTP will inform the public of the 
existence or status of the safety zone(s) by Broadcast Notice to 
Mariners on VHF-FM channel 16, Public Notice, 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]25'18'' 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: November 26, 2008.
Paul F. Thomas,
Captain, U.S. Coast Guard, Captain of the Port Jacksonville.

    Editorial Note: This document was received in the Office of the 
Federal Register on Friday, March 27, 2009.

[FR Doc. E9-7259 Filed 3-31-09; 8:45 am]
BILLING CODE 4910-15-P