[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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