[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50196-50199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19739]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0823]
RIN 1625-AA87


Security Zone: Rocket Launch, NASA Wallops Flight Facility (WFF), 
Wallops Island, VA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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

[[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 at37[deg]51[min]89[sec] N/75[deg]27[min]38[sec] W;, 
thence southeasterly to a point 37[deg]51[min]64[sec] N/
75[deg]17[min]56[sec] W, thence southeasterly to a point 
37[deg]39[min]32[sec] N/75[deg]05[min]96[sec] W, thence southwesterly 
to a point 37[deg]30[min]94[sec] N/75[deg]16[min]72[sec] W, thence 
northwesterly to a point 37[deg]40[min]21[sec] N/75[deg]31[min]96[sec] 
W, thence north to a point 37[deg]46[min]62[sec] N/
75[deg]30[min]71[sec] 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[deg]50[min]38[sec], longitude75[deg]28[min]47[sec] and the beacon 
shall be displayed about 200 feet above mean high water at latitude 
37[deg]50[min]16[sec], longitude 75[deg]29[min]07[sec]. 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

[[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.

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; 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


0
2. Add Temporary Sec.  165.T05-0823, to read as follows:


Sec.  165.T05-0823  Security Zone; Rocket Launch, NASA Wallops Flight 
Facility (WFF), Wallops Island, VA.

    (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[deg]51'89'' N/
75[deg]27'38'' W, thence southeasterly to a point 37[deg]51'64'' N/
75[deg]17'56'' W, thence southeasterly to a point 37[deg]39'32'' N/
75[deg]05'96'' W, thence southwesterly to a point 37[deg]30'94'' N/
75[deg]16'72'' W, thence northwesterly to a point 37[deg]40'21'' N/
75[deg]31'96'' W, thence north to a point 37[deg]46'62'' N/
75[deg]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 
Sec.  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

[[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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