2023-00187. Safety Zones; Pensacola, Panama City, and Tallahassee, Florida

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

This temporary final rule would implement a special activities provision of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. The Coast Guard is establishing three temporary safety zones for the safe splashdown and recovery of reentry vehicles launched by Space Exploration Technologies Corporation (SpaceX) in support of the National Aeronautics and Space Administration (NASA) from January 9, 2023 until January 30, 2023. These three temporary safety zones are located within the Captain of the Port Sector Mobile area of responsibility offshore of Pensacola, Panama City, and Tallahassee, Florida. This rule would prohibit U.S. flagged vessels from entering any of the temporary safety zones unless authorized by the Captain of the Port Sector Mobile or a designated representative. Foreign-flagged vessels would be encouraged to remain outside the safety zones. This action is necessary to protect vessels and waterway users from the potential hazards created by reentry vehicle splashdowns and recovery operations in the U.S. Exclusive Economic Zone (EEZ). It is also necessary to provide for the safe recovery of reentry vehicles, and any personnel involved in reentry services, after the splashdown.

DATES:

This rule is effective from January 9, 2023 through January 30, 2023.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2022-1000 in the search box and click “Search.” Next, in the Document Type column, select “Supporting & Related Material.”

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Lieutenant Andrew Anderson, Sector Mobile Chief of Waterways (spw), U.S. Coast Guard; telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

EEZ Exclusive Economic Zone

FR Federal Register

NASA National Aeronautics and Space Administration

NPRM Notice of proposed rulemaking

§  Section

U.S.C. United States Code

Space X Space Exploration Technologies Corporation

II. Background, Purpose, and Legal Basis

On January 1, 2021, the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283) (Authorization Act) was enacted. Section 8343 (134 Stat. 4710) calls for the Coast Guard to conduct a two-year pilot program to establish and implement a process to establish safety zones to address special activities in the U.S. Exclusive Economic Zone (EEZ).^[1] These special activities include space activities ^[2] carried out by United States (U.S.) citizens. Terms used to describe space activities, including launch, reentry site, and reentry vehicle, are defined in 51 U.S.C. 50902, and in this document.

The Coast Guard has long monitored space activities impacting the maritime domain and taken actions to ensure the safety of vessels and the public as needed during space launch ^[3] operations. In conducting this activity, the Coast Guard engages with other government agencies, including the Federal Aviation Administration (FAA) and National Aeronautics and Space Administration (NASA), and private space operators, including Space Exploration Technologies Corporation (SpaceX). This engagement is necessary to ensure statutory and regulatory obligations are met to ensure the safety of launch operations and waterway users.

During this engagement, the Coast Guard was informed of space reentry vehicles and recovery operations in the U.S. EEZ. In accordance with 51 U.S.C. Section 50902, “reentry vehicle” is defined as a vehicle designed to return from Earth orbit or outer space to Earth, or a reusable launch vehicle designed to return from Earth orbit or outer space to Earth, substantially intact. SpaceX, a U.S. company, has identified three reentry sites ^[4] within the U.S. EEZ of the Captain of the Port Sector Mobile area of responsibility (AOR) expected to be used for the splashdown ^[5] and recovery of reentry vehicles. All of these sites are located in the Gulf of Mexico off the Coast of Florida (FL).

On May 4, 2022, we published a temporary final rule in the Federal Register (87 FR 26273) for two anticipated reentry vehicle recovery missions within the Coast Guard District Eight AOR offshore of Panama City, Pensacola, and Tallahassee, FL from April 17, 2022 through May 15, 2022. Based on the date the Coast Guard was informed of the reentry, and the immediate need to establish the safety zone, the Coast Guard did not have sufficient time to publish a notice of proposed rulemaking (NPRM) for that rule. The Coast Guard additionally published recovery mission temporary final rules for the periods from August 22, 2022 through September 30, 2022 (87 FR 51253) and October 12, 2022 through November 10, 2022 (87 FR 61508).

Elsewhere in this issue of the Federal Register we have published a notice of proposed rulemaking (NPRM) under docket COTP USCG-2022-0995, Safety Zones in Reentry Sites; Panama City, Pensacola, and Tallahassee, Florida, in which we will propose to establish these safety zones through the end of the pilot period in 2024.

The purpose of this rule is to ensure the protection of vessels and waterway users in the U.S. EEZ from the potential hazards created by reentry vehicle splashdowns and recovery operations, and the safe recovery of reentry vehicles and personnel involved in reentry services.^[6] The Coast Guard is proposing this rule under authority of section 8343 of the Authorization Act.

The Coast Guard is issuing this temporary 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 an NPRM with respect to this rule because it is impracticable and contrary to the public interest. The National Aeronautics and Space Administration (NASA) Crew-4 capsule recovery mission was approved and scheduled less than 30 days before the need for the three safety zones to be in place starting on January 9, 2023. Publishing an NPRM would be impracticable and contrary to the public interest since the missions would begin before completion of the rulemaking process, thereby inhibiting the Coast Guard's ability to protect against the hazards associated with the recovery missions.

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 . Delaying the effective date of this rule would be impracticable and contrary to the public interest because the temporary safety zones must be established by January 9, 2023, to mitigate safety concerns during the capsule recovery missions.

III. Discussion of Proposed Rule

The Coast Guard is establishing three temporary safety zones in the U.S. EEZ for the safe reentry vehicle splashdown and recovery of reentry vehicles launched by SpaceX in support of NASA missions between January 9, 2023 and January 30, 2023.

The temporary safety zones are located within the Captain of the Port Sector Mobile AOR offshore of Panama City, Pensacola, and Tallahassee, FL in the Gulf of Mexico. The temporary final rule prohibits U.S.-flagged vessels from entering any of the safety zones unless authorized by the Captain of the Port Sector Mobile or a designated representative. Because the safety zones are within the U.S. EEZ, only U.S.-flagged vessels would be subject to enforcement. However, all foreign-flagged vessels are encouraged to remain outside the safety zones.

The three temporary safety zones are located off the coast of FL in the Gulf of Mexico in the following areas:

(1) Pensacola site: All waters from surface to bottom encompassed within the following coordinates connecting a line from Point 1, thence to Point 2, thence to Point 3, and thence to point 4, connecting back to Point 1:

Point 1	29°53′02″ N	−087°35′46″ W
Point 2	29°53′02″ N	−087°24′14″ W
Point 3	29°42′58″ N	−087°24′14″ W
Point 4	29°42′58″ N	−087°35′46″ W

(2) Panama City site: All waters from surface to bottom encompassed within the following coordinates connecting a line from Point 1, thence to Point 2, thence to Point 3, and thence to point 4, connecting back to Point 1:

Point 1	29°47′46″ N	−086°16′44″ W
Point 2	29°47′46″ N	−086°05′20″ W
Point 3	29°37′48″ N	−086°05′20″ W
Point 4	29°37′48″ N	−086°16′44″ W

(3) Tallahassee site: All waters from surface to bottom encompassed within the following coordinates connecting a line from Point 1, thence to Point 2, thence to Point 3, and thence to point 4, connecting back to Point 1:

Point 1	29°21′47″ N	−084°17′46″ W
Point 2	29°21′47″ N	−084°06′18″ W
Point 3	29°11′46″ N	−084°06′18″ W
Point 4	29°11′46″ N	−084°17′46″ W

The coordinates for the safety zones are based on the furthest north, east, south, and west points of the reentry vehicles splashdown and are determined from data and modeling by SpaceX and NASA. The coordinates take into account the trajectories of the reentry vehicles coming out of orbit, the potential risk to the public, and the proximity to medical facilities that meet NASA requirements. The specific coordinates for the three temporary safety zones are presented in the regulatory text at the end of this document.

To the extent feasible, the Captain of the Port Sector Mobile or a designated representative will inform the public of the activation of the three temporary safety zones by Broadcast Notice to Mariners (BNM) on VHF-FM channel 16 and/or Marine Safety Information Bulletin (MSIB) (as appropriate) at least two days before the reentry vehicle splashdown. These broadcasts will identify the approximate date(s) during which a reentry vehicle splashdown and recovery operations would occur.

To the extent possible, twenty-four hours before a reentry vehicle splashdown and recovery operations, the Captain of the Port Sector Mobile or designated representative will inform the public that only one of the three safety zones would remain activated (subject to enforcement) until announced by BNM on VHF-FM channel 16, and/or MSIB (as appropriate) that the safety zone is no longer subject to enforcement. The specific temporary safety zone to be enforced will be based on varying mission and environmental factors, including atmospheric conditions, sea state, weather, and orbital calculations.

The MSIB will include the geographic coordinates of the activated safety zone, a map identifying the location of the activated safety zone, and information related to potential hazards associated with a reentry vehicle splashdown and recovery operations associated with space activities, including marine environmental and public health hazards, such the release of hydrazine and other potential oil or hazardous substances.

When the safety zone is activated, the Captain of the Port Sector Mobile or a designated representative will be able to restrict U.S.-flagged vessel movement including but not limited to transiting, anchoring, or mooring within the safety zone to protect vessels from hazards associated with space activities. The activated safety zone will ensure the protection of vessels and waterway users from the potential hazards created by reentry vehicle splashdowns and recovery operations. This includes protection during the recovery of a reentry vehicle, and the protection of personnel involved in reentry services and space support vessels.^[7]

After a reentry vehicle splashdown, the Captain of the Port Sector Mobile or a designated representative will grant general permission to come no closer than three nautical miles within the activated safety zone from any reentry vehicle or space support vessel engaged in the recovery operations. The recovery operations are expected to last approximately one hour. That should allow for sufficient time to let any potential toxic materials clear the reentry vehicle, recovery of the reentry vehicle by the space support vessel, and address any potential medical evacuations for any personnel involved in reentry services that were onboard the reentry vehicle.

Once a reentry vehicle and any personnel involved in reentry services are removed from the water and secured onboard a space support vessel, the Captain of the Port Sector Mobile or designated representative would issue a BNM on VHF-FM channel 16 announcing the activated safety zone is no longer subject to enforcement. A photograph of a reentry vehicle and space support vessel expected to use the reentry sites are available in the docket.

IV. 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. 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).

This regulatory action determination is based on the size, location, duration, and scope of the safety zones. The safety zones are limited in size and location to only those areas where capsule re-entry is reasonably occurs. The safety zones are limited in scope, as vessel traffic will be able to safely transit around the safety zones which will impact a small part of the United States exclusive economic zone (EEZ) within the Gulf of Mexico.

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 rule will not have a significant economic impact on a substantial number of small entities.

The safety zone activation and thus restriction to the public is expected to be approximately two hours per capsule recovery, and we anticipate one splash down during the effective period of this rule. Vessels would be able to transit around the activated safety zone location during this recovery. We do not anticipate any significant economic impact resulting from activation of the safety zones.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 call or email 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.

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, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), 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 the establishing of three temporary safety zones, one of which may be activated on one occasion for approximately two hours between October 12, 2022 and November 10, 2022 for a SpaceX and NASA mission. 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. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email 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

1. The authority citation for part 165 continues to read as follows:

Authority: 46 U.S.C. 70034, 70051; section 8343 of Pub. L. 116-283, 134 Stat. 3388, 4710; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2.

2. Add § 165.T08-1000 to read as follows:

§ 165.T08-1000

Safety Zones; Pensacola, Panama City, and Tallahassee, Florida.

(a) Location. The coordinates used in this paragraph are based on the World Geodetic System (WGS) 1984. The following areas are safety zones:

(1) Pensacola Site. All waters from surface to bottom encompassed within the following coordinates connecting a line from Point 1, thence to Point 2, thence to Point 3, and thence to point 4, connecting back to Point 1:

Point 1	29°53′02″ N	−087°35′46″ W
Point 2	29°53′02″ N	−087°24′14″ W
Point 3	29°42′58″ N	−087°24′14″ W
Point 4	29°42′58″ N	−087°35′46″ W

(2) Panama City Site. All waters from surface to bottom encompassed within the following coordinates connecting a line from Point 1, thence to Point 2, thence to Point 3, and thence to point 4, connecting back to Point 1:

Point 1	29°47′46″ N	−086°16′44″ W
Point 2	29°47′46″ N	−086°05′20″ W
Point 3	29°37′48″ N	−086°05′20″ W
Point 4	29°37′48″ N	−086°16′44″ W

(3) Tallahassee Site. All waters from surface to bottom encompassed within the following coordinates connecting a line from Point 1, thence to Point 2, thence to Point 3, and thence to point 4, connecting back to Point 1:

Point 1	29°21′47″ N	−084°17′46″ W
Point 2	29°21′47″ N	−084°06′18″ W
Point 3	29°11′46″ N	−084°06′18″ W
Point 4	29°11′46″ N	−084°17′46″ W

(b) Definitions. As used in this section—

Designated representative means a Coast Guard Captain of the Port Sector Mobile; Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating a Coast Guard vessel; Coast Guard Representatives in the Merrill Operations Center; and other officers designated by the Captain of the Port Sector Mobile or assisting the Captain of the Port Sector Mobile in the enforcement of the safety zones.

Reentry Services means activities involved in the preparation of a reentry vehicle and payload, crew (including crew training), government astronaut, or space flight participant, if any, for reentry; and the conduct of a reentry.

Reentry Vehicle means a vehicle designed to return from Earth orbit or outer space to Earth, or a reusable launch vehicle designed to return from Earth orbit or outer space to Earth, substantially intact.

Space Support Vessel means any vessel engaged in the support of space activities. These vessels are typically approximately 170 feet in length, have a forward wheelhouse, and are equipped with a helicopter pad and lifting crane.

Splashdown means the landing of a reentry vehicle into a body of water.

(c) Regulations. (1) Because the safety zones described in paragraph (a) of this section are within the U.S. Exclusive Economic Zone, only U.S. flagged vessels are subject to enforcement. All foreign-flagged vessels are encouraged to remain outside the safety zones.

(2) In accordance with the general regulations in 33 CFR part 165, subpart C, no U.S. flagged vessel may enter the safety zones described in paragraph (a) of this section unless authorized by the Captain of the Port Sector Mobile or a designated representative, except as provided in paragraph (d)(3) of this section.

(d) Enforcement periods. (1) To the extent possible, at least two days before a reentry vehicle splashdown, the Captain of the Port Sector Mobile or designated representative will inform the public of the activation of the three safety zones described in paragraph (a) of this section by Broadcast Notice to Mariners on VHF-FM channel 16, and/or Marine Safety Information Bulletin (as appropriate) for at least two days before the splashdown.

(2) To the extent possible, twenty-four hours before a reentry vehicle splashdown, the Captain of the Port Sector Mobile or designated representative will inform the public that only one of the three safety zones described in paragraph (a) of this section will remain activated until announced by Broadcast Notice to Mariners on VHF-FM channel 16, and/or Marine Safety Information Bulletin (as appropriate) that the safety zone is no longer subject to enforcement.

(3) After a reentry vehicle splashdown, the Captain of the Port Sector Mobile or a designated representative will grant general permission to come no closer than three nautical miles of any reentry vehicle or space support vessel engaged in the recovery operations, within the activated safety zone described in paragraph (a) of this section.

(4) Once a reentry vehicle, and any personnel involved in reentry service, are removed from the water and secured onboard a space support vessel, the Captain of the Port Sector Mobile or designated representative will issue a Broadcast Notice to Mariners on VHF-FM channel 16 announcing the activated safety zone is no longer subject to enforcement.

(e) Effective period. This rule is subject to enforcement from January 9, 2023 until January 30, 2023.

Dated: December 30, 2022.

Ulysses S. Mullins, Captain,

Commander, Coast Guard Sector Mobile, Captain of the Port Mobile.

Footnotes

1.  The Coast Guard defines the U.S. exclusive economic zone in 33 CFR 2.30(a). Territorial sea is defined in 33 CFR 2.22.

2.   Space Activities means space activities, including launch and reentry, as such terms are defined in section 50902 of Title 51, United States Code, carried out by United States citizens.

3.  The term launch is defined in 51 U.S.C. 50902.

4.   Reentry site means the location on Earth to which a reentry vehicle is intended to return (as defined in a license the FAA Administrator issues or transfers under this chapter).

5.   Splashdown refers to the landing of a reentry vehicle into a body of water.

6.   Reentry Services means (1) activities involved in the preparation of a reentry vehicle and payload, crew (including crew training), government astronaut, or space flight participant, if any, for reentry; and (2) the conduct of a reentry.

7.   Space Support Vessel means any vessel engaged in the support of space activities. These vessels are typically approximately 170 feet in length, have a forward wheelhouse, and are equipped with a helicopter pad and lifting crane.