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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG-2008-0823]
          - RIN 1625-AA87

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The U. S. Coast Guard is establishing a security zone extending 12 nautical miles offshore from the Mid-Atlantic Regional Spaceport (MARS) Pad 0B launch complex for the launch of a large suborbital test rocket by the National Aeronautics and Space Administration (NASA). The NASA rocket launch is scheduled to occur between 2 a.m. and 4 p.m. on August 21, 2008, on Wallops Island, VA. If the launch is postponed because of inclement weather or technical difficulties, it will be attempted between 2 a.m. and 4 p.m. on each subsequent day after August 21, 2008, until the launch takes place or until 4 p.m. August 30, 2008. After August 30, 2008, the rule will no longer be in effect. This action is necessary to ensure the safety of persons and property, and to prevent terrorist acts or incidents on U.S. navigable waters during the rocket launch. This rule prohibits vessels and people from entering the security zone and requires vessels and persons in the security zone to depart the security zone.

# DATES:

This rule is effective from 2 a.m. on August 21, 2008, through 4 p.m. on August 30, 2008.

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0823 and are available online at                         *http://www.regulations.gov.*                         They are also available for inspection or copying in 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 Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., 7th Floor, Norfolk, VA 23510 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays.                    

# FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call LT Tiffany Duffy, Chief Waterways Management Division, Sector Hampton Roads at (757) 668-5580. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

# SUPPLEMENTARY INFORMATION:

## Regulatory Information

                    The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because any                           ( print page 50197)                        delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to prevent traffic from transiting the waters in the vicinity of Wallops Island, Virginia, in order to provide for the security of the launch and protection of life and property on navigable waters.                

This temporary security zone of short duration is necessary to coordinate security operations and establish a secure environment for NASA personnel and the public at large. If the launch occurs as planned on August 21, 2008, the duration of the effective period for this temporary security zone on all subsequent days will not be enforced. The zone should have minimal impact on vessel transit since vessels can safely transit around the zone and are not precluded from using any portion of the waterway except the security zone itself.

                    For the same reasons discussed above, the Coast Guard finds under 5 U.S.C. 553(d)(3) that good cause exists for making this regulation effective less than 30 days after publication in the                     **Federal Register**                    . The measures contemplated by the rule are intended to protect NASA personnel and the public from waterborne security threats. Any delay in the effective date of this rule is contrary to public and national interests.                

## Background and Purpose

On August 21, 2008, NASA will attempt to launch a large suborbital rocket from Wallops Island, VA. As the lead federal agency for maritime homeland security, the Coast Guard has determined that the Coast Guard Captain of the Port must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. This temporary security zone is to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks.

Additionally, spectators will be observing from both land and sea. Due to the need to provide security for a satellite launch of a NASA rocket, and for the need to protect the launch vehicle and equipment, access in the vicinity of this event will be temporarily restricted.

## Discussion of Rule

The U.S. Coast Guard is establishing a security zone on the navigable waters of the Atlantic Ocean east of Wallops and Assawoman Islands in Virginia, and southeast of Assateague Island. This security zone, which extends out 12-nautical miles from shore, encompasses all navigable waters within a line beginning near the southeast tip of Assateague Island at 37°51′89″ N/75°27′38″ W;, thence southeasterly to a point 37°51′64″ N/75°17′56″ W, thence southeasterly to a point 37°39′32″ N/75°05′96″ W, thence southwesterly to a point 37°30′94″ N/75°16′72″ W, thence northwesterly to a point 37°40′21″ N/75°31′96″ W, thence north to a point 37°46′62″ N/75°30′71″ W, thence back to the point of origin.

There is an existing Army Corps of Engineers danger zone in 33 CFR 334.130 that restricts access to waters closer to Wallops Islands. That regulation provides for a visual notice of intent to conduct rocket-launching operations involving the area. An intent to launch is indicated—

By a signal consisting of a large orange-colored, “blimp-shaped” balloon by day and a signal rotating alternately red and white beacon by night. The balloon shall be flown at latitude 37°50′38″, longitude 75°28′47″ and the beacon shall be displayed about 200 feet above mean high water at latitude 37°50′16″, longitude 75°29′07″. The appropriate one of these signals shall be displayed 30 minutes prior to rocket-launching time and shall remain displayed until danger no longer exists.

33 CFR 334.130(b)(3). In addition to watching for that intent to launch visual clue, for purposes of this security zone, mariners should listen for Coast Guard notifications of attempts to launch via maritime advisories.

This temporary security zone will be in effect from 2 a.m. on August 21, 2008, to 4 p.m. on August 30, 2008. The zone will be enforced from 2 a.m. until 4 p.m. on August 21, 2008, and if the launch is postponed, the zone will be enforced, between 2 a.m. and 4 p.m., on each subsequent day the launch is attempted or until 4 p.m. August 30, 2008.

After 4 p.m. on August 30, 2008, this rule will no longer be in effect. Except for participants and vessels authorized by the Captain of the Port Representative, no person or vessel may enter or remain in the security zone.

## Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses 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. Although this regulation restricts access to the security zone, the effect of this rule will not be significant because: (i) The security zone will be in effect for a limited duration; (ii) the zone is of limited size; and (iii) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

## 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 U.S. 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.

However, this rule may affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in the described portion of the security zone during the enforcement periods from 2 a.m. to 4 p.m. from August 21, 2008, through August 30, 2008. The security zone will not have a significant impact on a substantial number of small entities. Maritime advisories will be issued, so the mariners can adjust their plans accordingly.

## Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process.

                    Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The                           ( print page 50198)                        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 rule will 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 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 will 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 affect 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 does 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 U.S. 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. Under figure 2-1, paragraph (34)(g), of the Instruction, an environmental analysis checklist and a categorical exclusion determination will be 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, and Waterways

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

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(g), 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 Temporary § 165.T05-0823, to read as follows: 

§ 165.T05-0823 

                            (a)                             *Location.*                             The following area is a security zone: All waters of the Atlantic Ocean east of Wallops and Assawoman Islands in Virginia, and southeast of Assateague Island encompassed by a line beginning near the southeast tip of Assateague Island at 37°51′89″ N/75°27′38″ W, thence southeasterly to a point 37°51′64″ N/75°17′56″ W, thence southeasterly to a point 37°39′32″ N/75°05′96″ W, thence southwesterly to a point 37°30′94″ N/75°16′72″ W, thence northwesterly to a point 37°40′21″ N/75°31′96″ W, thence north to a point 37°46′62″ N/75°30′71″ W, thence back to the point of origin.                        

                            (b)                             *Definition:*                             For purposes of enforcement of this section,                             *Captain of the Port Representative*                             means any U.S.  Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port, Hampton Roads, Virginia to act on his behalf.                        

                            (c)                             *Regulation:*                             (1) In accordance with the general regulations in § 165.33 of this part, entry into the security zone described in paragraph (a) of this section is prohibited unless authorized by the Captain of the Port, Hampton Roads, Virginia, or the                             *Captain of the Port Representative.*

(2) The operator of any vessel granted permission to enter this security zone must:

                            (i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign; and                                  ( print page 50199)    

(ii) Proceed as directed by any commissioned, warrant or petty officer on board a vessel displaying a U.S. Coast Guard Ensign.

(3) The Captain of the Port, Hampton Roads, Virginia can be contacted at telephone number (757) 668-5555.

(4) U.S. Coast Guard vessels enforcing the security zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 MHz) and channel 16 (156.8 MHz).

                            (d)                             *Effective period:*                             This section is effective from 2 a.m. on August 21, 2008 to 4 p.m. on August 30, 2008.                        

                            (e)                             *Enforcement period:*                             This section will be enforced from 2 a.m. to 4 p.m. on August 21, 2008, and each subsequent day a rocket launch at the NASA Wallops Flight Facility, Wallops Island, VA, is attempted until 4 p.m. August 30, 2008.                        

Dated: August 18, 2008.

Jeffrey P. Novotny,

Commander, U.S. Coast Guard, Acting Captain of the Port, Hampton Roads.

[FR Doc. E8-19739 Filed 8-25-08; 8:45 am]

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