[Federal Register Volume 83, Number 224 (Tuesday, November 20, 2018)]
[Rules and Regulations]
[Pages 58501-58504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25242]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2018-0962]
RIN 1625-AA00
Safety Zone; NASA Activities, Gulf of Mexico, Galveston, TX
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary, moving safety
zone for all navigable waters within a 1,000-yard radius of the
National Aeronautics and Space Administration's (NASA's) crew module
uprighting system test article while it is being tested in the
territorial waters of the Gulf of Mexico off the coast of Galveston,
TX. The safety zone is necessary to protect persons, vessels, and the
marine environment from potential hazards created by vessels and
equipment engaged in the crew capsule's at-sea testing. This rulemaking
prohibits persons and vessels from being in the safety zone unless
authorized by the Captain of the Port Sector Houston-Galveston or a
designated representative
DATES: This rule is effective from November 28, 2018 through December
6, 2018.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0962 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Collin Sykes, Eighth Coast Guard District,
Waterways Management Division, U.S. Coast Guard; telephone 504-671-
2119, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port Sector Houston-Galveston
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
The National Aeronautics and Space Administration's (NASA's) Orion
program is evaluating an updated design to the crew module uprighting
system (CMUS), the system of five airbags on top of the crew capsule
that inflate upon splashdown. NASA tested the CMUS at the Neutral
Buoyancy Lab at NASA's Johnson Space Center in Houston, and requested
Coast Guard support for the at-sea uprighting tests. On October 19,
2018, the Coast Guard published a notice of proposed rulemaking (NPRM)
titled Safety Zone; NASA Activities, Gulf of Mexico, Galveston, TX (83
FR 53023). There we stated why we issued the NPRM, and invited comments
on our proposed regulatory action related to this at-sea test. During
the comment period that ended November 5, 2018, we received 3 comments.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register because it is contrary to the
public interest. The Coast Guard must make this rule effective soon
enough to allow for immediate action to respond to the potential safety
hazards associated with the at-sea testing and that it does not
compromise publish safety.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The
[[Page 58502]]
at-sea testing of the CMUS will involve numerous surface vessels,
divers, and remote-operated submarine vehicles, and feature a rapid
rotation of the Orion test article in a confined area and partially
controlled environment. The Captain of the Port Sector Houston-
Galveston (COTP) has determined that due to the complexity of the test
and proximity of the participants, unauthorized access by persons or
vessels outside the scope of the test present a significant hazard to
human life, vessels, and government property. The purpose of this rule
to protect persons, vessels, and the marine environment from potential
hazards created by vessels and equipment engaged in the crew capsule's
at-sea testing.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received 03 comments on our NPRM published
October 19, 2018. Two of the comments supported the rule for
establishing the described safety measures to protect scientists as
they search for solutions to complex problems in potentially hazardous
environments.
One comment expressed concerns regarding the impact the safety zone
would have on local anglers and requested a more precise location of
the test. The planned location of the test is between 9 and 12 nautical
miles (NMs) offshore of Galveston, TX, to the south and west of the
Galveston Bay Entrance Channel. However, due to the drifting nature of
the test, the Coast Guard cannot provide a specific geographical
position at this time. Mariners in the vicinity will be notified of the
test location via Broadcast Notices to Mariners (BNMs) no less than 3
hours prior to the commencement of testing. The BNMs, paired with the
relatively small area encompassed by the 1,000-yd radius safety zone,
will provide anglers an ample opportunity to seek alternative fishing
grounds during the limited duration test. This same commenter also
requested reasons that the NPRM was issued with a 15-day comment
period. The Coast Guard published the NPRM with a 15-day comment period
because it was impracticable to provide a 30-day comment period. It was
impracticable to publish an NPRM with a 30-day comment period because
we needed to establish this temporary safety zone by November 28, 2018.
A 15-day comment period allowed the Coast Guard to provide for public
notice and comment, but also publish a rule, if adopted, soon enough
that the length of the notice and comment period does not compromise
public safety. Finally, this commenter requested justification for the
non-retaliation statement in the Impact on Small Entities section of
the NPRM. This statement is required to be included in all Coast Guard
Rulemakings by the Coast Guard Non-Retaliation Policy outlined in 69 FR
12864 (March 18, 2004). Based on the public comments received, we have
edited the regulatory text to clarify that that the test would occur
between 9 and 12 NM offshore of Galveston, TX, to the south and west of
the Galveston Bay Entrance Channel. There are no other changes in the
regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a temporary, moving safety zone that covers
all navigable waters within 1,000 yards of NASA's CMUS test article,
which will be located in the territorial waters of the Gulf of Mexico
off the coast of Galveston, TX. NASA anticipates that the testing
activities will take place on approximately three days during the
effective period, during daylight hours only. The effective period of
this rule covers a nine-day window from November 28, 2018 through
December 6, 2018, to allow for scheduling delays due to inclement
weather or technical difficulties. On each of the approximately three
days that the rule will be enforced, the enforcement periods will begin
approximately 2 hours before testing activities and last until
approximately 2 hours after the testing activities. The COTP or a
designated representative will inform the public through BNMs, Local
Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins
(MSIBs), and/or other means of public notice, as appropriate, at least
3 hours in advance of each enforcement period. Such notice of
enforcement will also include more specific information regarding the
location of the CMUS test article.
The duration of the zone is intended to protect persons, vessels,
and the marine environment on these navigable waters during the NASA
testing activities. No vessel or person is permitted to enter or remain
in the safety zone without obtaining permission from the COTP or a
designated representative. A designated representative is a Coast Guard
Patrol Commander, including a Coast Guard coxswain, petty officer, or
other officer operating a Coast Guard vessel, and a Federal, State, and
local officer designated by or assisting the COTP in the enforcement of
the safety zone. The Patrol Commander may be contacted on Channel 16
VHF-FM (156.8 MHz) by the call sign ``PATCOM''. Vessels requiring entry
into this safety zone must request permission from the COTP or a
designated representative. They may be contacted on VHF-FM Channel 16.
All persons and vessels permitted to enter this safety zone must
transit at their slowest safe speed and comply with all lawful
directions issued by the COTP or the designated representative. The
COTP or a designated representative will inform the public of the
enforcement times, dates, and locations, for this safety zone through
BNMs, LNMs, and/or MSIBs, as appropriate.
V. Regulatory Analyses
We developed this 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. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the size,
location, and duration of the safety zone. Vessel traffic will be able
to safely transit around this safety zone, which will affect a small,
designated area off the coast of Galveston, TX, outside of the Houston
Ship Channel and safety fairway during daylight hours on approximately
three days. Moreover, the Coast Guard will issue a Broadcast Notice to
Mariners via VHF-FM marine channel 16 about the zone, and the rule
allows vessels to seek permission to enter the zone.
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
[[Page 58503]]
with populations of less than 50,000. The Coast Guard received no
comments from the Small Business Administration on this rulemaking. The
Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not
have a significant economic impact on a substantial number of small
entities.
While some owners or operators of vessels intending to transit the
temporary safety zone may be small entities, for the reasons stated in
section IV.A above, this rule will not have a significant economic
impact on any vessel owner or operator.
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 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
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
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 Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will 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 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 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact 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 rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Environment
We have analyzed this 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 determined 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 rule involves
a temporary, moving safety zone that prohibit entry within 1,000 yards
of the CMUS test article during daylight hours on approximately nine
days in the Gulf of Mexico. It is categorically excluded from further
review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction
Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration
supporting this determination is available in the docket where
indicated under ADDRESSES.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact 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.
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 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.T08-0962 to read as follows:
Sec. 165.T08-0962 Safety Zone; NASA Activities, Gulf of Mexico,
Galveston, TX.
(a) Location. The following area is a safety zone: All navigable
waters within 1000 yards of the National Aeronautics and Space
Administration's (NASA's) crew module uprighting system test article.
The test will occur between 9 and 12 nautical miles (NM) offshore of
Galveston, TX, to the south and west of the Galveston Bay Entrance
Channel.
(b) Effective period. This section will be effective from November
28, 2018 through December 6, 2018.
(c) Enforcement periods. This section will be enforced on
approximately 3 days during the effective period, during daylight
hours. Each period of enforcement will begin approximately 2 hours
before testing activities and end approximately 2 hours after testing
activities. The Captain of the Port Sector Houston-Galveston (COTP) or
a designated representative will inform the public of the enforcement
through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners
(LNMs), and/or Marine Safety Information Bulletins (MSIBs) or other
means of public notice at least 3 hours in advance of the enforcement
of this safety zone. Such notice of enforcement will also include more
specific information regarding the location of the CMUS test article.
(d) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or a
designated representative. A designated representative is a Coast Guard
Patrol Commander, including a Coast Guard coxswain, petty officer, or
other officer operating a Coast Guard vessel, and a Federal, State, and
local officer designated by or assisting the COTP) in the enforcement
of the safety zone. The Patrol Commander may be contacted on Channel 16
VHF-FM (156.8 MHz) by the call sign ``PATCOM''.
[[Page 58504]]
(2) To seek permission to enter, contact the COTP or a designated
representative by VHF Channel 16.
(3) If granted permission to enter, all vessels must transit at
their slowest safe speed and comply with all lawful orders or
directions of the COTP or a designated representative.
(e) Informational broadcasts. The COTP or a designated
representative will inform the public through Broadcast Notices to
Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety
Information Bulletins (MSIBs) or other means of public notice of the
enforcement period for the temporary safety zone as well as any changes
in the dates and times of enforcement.
Dated: November 14, 2018.
Kevin D. Oditt,
Captain, U.S. Coast Guard, Captain of the Port Sector Houston-
Galveston.
[FR Doc. 2018-25242 Filed 11-19-18; 8:45 am]
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