[Federal Register Volume 83, Number 203 (Friday, October 19, 2018)]
[Proposed Rules]
[Pages 53023-53026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22866]


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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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a temporary, moving 
safety zone for all navigable waters within a 1000-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 proposed 
rulemaking would prohibit persons and vessels from being in the safety 
zone unless authorized by the Captain of the Port Sector Houston-
Galveston or a designated representative. We invite your comments on 
this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before November 5, 2018.

ADDRESSES: You may submit comments identified by docket number USCG-
2018-0962 using the Federal eRulemaking Portal at https://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, 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: 

[[Page 53024]]

I. Table of Abbreviations

CFR Code of Federal Regulations
CMUS Crew module uprighting system
COTP Captain of the Port Sector Houston-Galveston
DHS Department of Homeland Security
FR Federal Register
NASA National Aeronautics and Space Administration
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    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. The at-sea testing 
will involve numerous surface vessels, divers, and remote-operated 
submarine vehicles, and features a rapid rotation of the Orion test 
article in a confined area and partially controlled environment. 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 Captain of the Port Sector Houston-Galveston (COTP) has 
determined that this rule is needed to protect persons, vessels, and 
the marine environment on the navigable waters within the safety zone 
during the test.
    The purpose of this rulemaking is to ensure the safety of persons, 
vessels, and the marine environment on the navigable waters within a 
1000-yard radius of the CMUS test article before, during, and after the 
scheduled testing activities.
    The Coast Guard is issuing this notice of proposed rulemaking 
(NPRM) with a 15-day prior notice and opportunity to comment pursuant 
to section (b)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 
553). Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good 
cause exists for publishing this NPRM with a 15-day comment period 
because it is impractical to provide a 30-day comment period. It is 
impracticable to publish an NPRM with a 30-day comment period because 
we must establish this temporary safety zone by November 28, 2018. A 
15-day comment period would allow 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.

III. Discussion of Proposed Rule

    The COTP is proposing to establish a temporary, moving safety zone 
that would cover all navigable waters within 1000 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 proposed 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 proposed rule would be enforced, the 
enforcement periods would begin approximately 2 hours before testing 
activities and last until approximately 2 hours after the testing 
activities. The COTP or a designated representative would inform the 
public through Broadcast Notices to Mariners (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 would 
also include more specific information regarding the location of the 
CMUS test article.
    The duration of the proposed zone is intended to protect persons, 
vessels, and the marine environment on these navigable waters during 
the NASA testing activities. No vessel or person would be 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. The regulatory 
text we are proposing appears at the end of this document.

IV. Regulatory Analyses

    We developed this proposed 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 NPRM has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, the NPRM 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 would 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 would issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the zone, and the rule 
would allow 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 with populations of less than 
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 
proposed rule would 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

[[Page 53025]]

entities, for the reasons stated in section IV.A above, this proposed 
rule would not have a significant economic impact on any vessel owner 
or operator.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.
    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 proposed 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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. Environment

    We have analyzed this proposed 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 made a preliminary 
determination 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 proposed rule involves a temporary, moving safety 
zone that would prohibit entry within 1000 yards of the CMUS test 
article during daylight hours on approximately three days in the Gulf 
of Mexico. Normally, such actions are 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 preliminary Record of 
Environmental Consideration supporting this determination is available 
in the docket where indicated under ADDRESSES. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to https://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, visit https://www.regulations.gov/privacyNotice.
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 is 
proposing to amend 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 1,000 yards of the National Aeronautics and Space 
Administration's (NASA's) crew module uprighting system test article.
    (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

[[Page 53026]]

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''.
    (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: October 16, 2018.
Kevin D. Oditt,
Captain, U.S. Coast Guard, Captain of the Port Sector Houston-
Galveston.
[FR Doc. 2018-22866 Filed 10-18-18; 8:45 am]
 BILLING CODE 9110-04-P


