[Federal Register: August 26, 2008 (Volume 73, Number 166)]
[
Rules and Regulations]               
[Page 50196-50199]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au08-7]                         

=======================================================================

-----------------------------------------------------------------------



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.



-----------------------------------------------------------------------



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]

BILLING CODE 4910-15-P