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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG-2008-0411]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

                        The Coast Guard proposes 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 (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. This action is necessary to protect marine traffic from the hazards associated with the launching of space vehicles; expedite notification to the public of such launches and also reduce the                               ( print page 48163)                            administrative workload of the Coast Guard.                    

# DATES:

Comments and related material must reach the Coast Guard on or before October 17, 2008.

# ADDRESSES:

You may submit comments identified by Coast Guard docket number USCG-2008-0411 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

                        (1)                         *Online: http://www.regulations.gov*.                    

                        (2)                         *Mail:*                         Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.                    

                        (3)                         *Hand delivery:*                         Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.                    

                        (4)                         *Fax:*                         202-493-2251.                    

# FOR FURTHER INFORMATION CONTACT:

If you have questions about the proposed rule, call Ensign Ysabel Vandeputte at Coast Guard Sector Jacksonville Prevention Department (904) 564-7566. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366-9826.

# SUPPLEMENTARY INFORMATION:

## Public Participation and Request for Comments

                    We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to                     *http://www.regulations.gov*                     and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.                

## Submitting Comments

                    If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0411), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under                     **ADDRESSES**                    ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8                    1/2                     by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.                

## Viewing Comments and Documents

                    To view comments, as well as documents mentioned in this preamble as being available in the docket, go to                     *http://www.regulations.gov*                     at any time. Enter the docket number for this rulemaking (USCG-2008-0411) in the Search box, and click “Go >>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or 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.                

## Privacy Act

                    Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the                     **Federal Register**                     published on April 11, 2000 (65 FR 19477), or you may visit                     *http://DocketsInfo.dot.gov*.                

## Public Meeting

                    We do not plan to hold a public meeting. You may submit a request for a meeting by writing to Coast Guard Sector Jacksonville at the address under                     **ADDRESSES**                     explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the                     **Federal Register**                    .                

## 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 this 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. Issuing individual Temporary Final Rules for each launch has created a significant administrative burden on the Coast Guard. 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 delayed notification to the public potentially places maritime interests at risk.

This proposed 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.

## Discussion of Proposed Rule

                    The proposed rule will come into effect 45 minutes prior to launch and terminate approximately 15 minutes                           ( print page 48164)                        after successful launch. Because space vehicles may be launched from any number of launch pads at CCAFS, four safety zones are proposed to accommodate all potential launch azimuths. It is likely, however, that only one of the four safety zones will be activated and enforced for any particular launch. Safety zones described herein are not meant to replace the designated Coast Guard security zone as described in 33 CFR 165.701 that extends three miles from the baseline. These safety zones will be enforced in conjunction with the aforementioned security zone. The proposed safety zones will overlap the existing security zone providing an additional safety margin from three to 12 nautical miles.                

Defining the safety zones was a collaborative effort between the U.S. Air Force, 45th Space Wing Range Operations and Safety Departments and the U.S. Coast Guard Space Transportation Systems Program Office in Port Canaveral, FL. Each safety zone was created using historical launch azimuth data. In addition, future potential launch trajectories were also considered. Safety zone coordinates are defined below:

Zone (A) is defined by four latitude and longitude corner points. Zone A originates at position 28°45′42″ N, 080°42′42″ W; then proceeds northeast to 28°50′6″ N, 080°29′54″ W; then proceeds southeast to 28°31′18″ N, 080°19′36″ W; then proceeds west at position 28°31′18″ N, 080°33′24″ W.

Zone (B) is defined by four latitude and longitude corner points. Zone B originates at position 28°40′6″ N, 080°38′24″ W; then proceeds northeast to 28°48′48″ N, 080°28′54″ W; then proceeds southeast to 28°29′42″ N, 080°18′54″ W; then proceeds west at position 28°29′42″ N, 080°31′36″ W.

Zone (C) is defined by four latitude and longitude corner points. Zone C originates at position 28°36′12″ N, 080°35′18″ W; then proceeds northeast to 28°45′24″ N, 080°25′12″ W; then proceeds south to 28°26′ N, 080°20′48″ W; then proceeds west at position 28°26′ N, 080°34′24″ W.

Zone (D) is defined by four latitude and longitude corner points. Zone D originates at position 28°31′36″ N, 080°34′ W; then proceeds east to 28°31′36″ N, 080°20′6″ W; then proceeds south to 28°16′42″ N, 080°23′18″ W; then proceeds northwest at position 28°21′36″ N, 080°36′6″ W.

## Regulatory Analyses

We developed this proposed 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 proposed 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 proposed 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.

## Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed 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).

                    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.                

## Assistance for Small Entities

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 so that they can better evaluate its effects on them and participate in the rulemaking. 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 contact Ensign Ysabel Vandeputte at Coast Guard Sector Jacksonville Prevention Department (904) 564-7566. 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.

## Collection of Information

This proposed rule would call 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 proposed 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 proposed 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 proposed rule would 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 proposed 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 proposed 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 might disproportionately affect children.                          ( print page 48165)    

## Indian Tribal Governments

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. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

## Energy Effects

We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

## Environment

                    We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary Environmental Analysis Check List supporting this preliminary determination is available in the docket where indicated under                     **ADDRESSES**                    . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.                

We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

# List of Subjects in 33 CFR Part 165

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

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; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 

2. Add § 165.775 to read as follows:

§ 165.775 

                            (a)                             *Regulated Area*. (1) Zone (A) is defined by four latitude and longitude corner points. Zone A originates at position 28°45′42″ N, 080°42′42″ W; then proceeds northeast to 28°50′6″ N, 080°29′54″ W; then proceeds southeast to 28°31′18″ N, 080°19′36″ W; then proceeds west at position 28°31′18″ N, 080°33′24″ W.                        

(2) Zone (B) is defined by four latitude and longitude corner points. Zone B originates at position 28°40′6″ N, 080°38′24″ W; then proceeds northeast to 28°48′48″ N, 080°28′54″ W; then proceeds southeast to 28°29′42″ N, 080°18′54″ W; then proceeds west at position 28°29′42″ N, 080°31′36″ W.

(3) Zone (C) is defined by four latitude and longitude corner points. Zone C originates at position 28°36′12″ N, 080°35′18″ W; then proceeds northeast to 28°45′24″ N, 080°25′12″ W; then proceeds south to 28°26′ N, 080°20′48″ W; then proceeds west at position 28°26′ N, 080°34′24″ W.

(4) Zone (D) is defined by four latitude and longitude corner points. Zone D originates at position 28°31′36″ N, 080°34′ W; then proceeds east to 28°31′36″ N, 080°20′6″ W; then proceeds south to 28°16′42″ N, 080°23′18″ W; then proceeds northwest at position 28°21′36″ N, 080°36′6″ 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 regulated navigation areas, safety zones, and security zones.                        

                            (c)                             *Regulations*. In accordance with the general regulations in § 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 by Broadcast Notice to Mariners on VHF-FM channel 16, Public Notice, and on-scene presence. 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: June 19, 2008.

Paul F. Thomas,

Captain, U.S. Coast Guard, Captain of the Port Jacksonville.

[FR Doc. E8-18996 Filed 8-15-08; 8:45 am]

BILLING CODE 4910-15-P