2023-25429. Safety Zone; Pacific Ocean, Oahu, Hawaii

AGENCY:

Coast Guard, Department of Homeland Security (DHS).

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for the re-entry of a space vehicle from the Starship Super Heavy launch by Space Exploration Technologies Corporation (Space X). The temporary safety zone is located within the Coast Guard District Fourteen area of responsibility, approximately 129 nautical miles offshore of Oahu, Hawaii. The purpose of this rule is to ensure the safety of vessels, mariners, and the navigable waters in the safety zones before, during, and after the scheduled event. This action is necessary to provide for the safety of vessels and waterway users from the potential hazards created by reentry vehicle splashdowns and recovery operations in our exclusive economic zone. It is also necessary to provide for the safe recovery of reentry vehicles, and any personnel involved in reentry services, after the splashdown. This rule implements a special activities provision of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. Foreign-flagged vessels are encouraged to remain outside the safety zones. This rule prohibits U.S. flagged vessels from being in the safety zones unless authorized by the Commander of the Fourteenth Coast Guard District or a designated representative.

DATES:

This rule is effective from 12:01 a.m. on November 17, 2023, through 11:59 p.m. on November 20, 2023.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG–2023–0906 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 Commander Jessica Hull, District 14, Waterways Management Division, U.S. Coast Guard; telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BNM Broadcast Notice to Mariners

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

EEZ Exclusive economic zone

FAA Federal Aviation Administration

FL Florida

FR Federal Register

MSIB Marine Safety Information Bulletin

NASA National Aeronautics and Space Administration

NM Nautical Mile

NPRM Notice of proposed rulemaking

RNA Regulated Navigation Area

§ Section

U.S. United States

U.S.C. United States Code

II. Background Information and Regulatory History

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 a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. Space Exploration Technologies Corporation (Space X) is a U.S. company. The SpaceX Starship Super Heavy mission was approved and scheduled less than 30 days before the need for the safety zone to be in place starting on November 17, 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 re-entry of the capsule. 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 zone must be established on November 17, 2023, to mitigate safety concerns during the capsule re-entry mission.

III. Legal Authority and Need for Rule

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. Its section 8343 (134 Stat. 4710) calls for the Coast Guard to conduct a 2-year pilot program to establish and implement a process to establish safety zones to address special activities in the exclusive economic zone (EEZ). These special activities include space activities carried out by United States citizens. The Fourteenth District Commander and Captain of the Port Honolulu have determined that potential hazards associated with the Space X Starship spacecraft mission present a safety concern for anyone within the perimeter of the safety zone. The safety zone will only be activate for a reasonable time before the mission and deactivated once the area is no longer hazardous. The purpose of this rule is to ensure the safety of vessels, mariners, and the navigable waters in the safety zones before, during, and after the scheduled event. The Coast Guard is issuing this rule under authority of section 8343 of the Authorization Act and 46 U.S.C. 70034.

IV. Discussion of the Rule

The Coast Guard is establishing a temporary safety zone approximately 126 nautical miles north of Oahu, Hawaii for the re-entry of a SpaceX capsule. The coordinates are based on the projected re-entry locations as determined from telemetry data and modeling by Space X.

(1) Re-entry site:

Point 1	24°02′38″ N 157°33′43″ W
Point 2	24°08′49″ N 157°02′49″ W
Point 3	23°32′10″ N 156°53′17″ W
Point 4	23°25′48″ N 157°25′34″ 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 and the potential risk to the public. The specific coordinates for the temporary safety zone is presented in the regulatory text at the end of this document.

To the extent feasible, 24 hours before a reentry vehicle splashdown and recovery operations, the District Commander, Captain of the Port Sector Honolulu, or a designated representative will inform the public of the activation of the temporary safety zones by Broadcast Notice to Mariners (BNM) on VHF–FM channel 16.

The District Commander, Captain of the Port Sector Honolulu, or designated representative will inform the public that the safety zone would remain activated (subject to enforcement) until announced by BNM on VHF–FM channel 16 that the safety zone is no longer subject to enforcement.

When the safety zone is activated, the District Commander, Captain of the Port Sector Honolulu, 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.^[1]

After a reentry vehicle splashdown, the District Commander, Captain of the Port Sector Honolulu, 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.

Once a reentry vehicle services are removed from the water and secured onboard a space support vessel, the District Commander, Captain of the Port Sector Honolulu, or designated representative would issue a BNM on VHF–FM channel 16 announcing the activated safety zone is no longer subject to enforcement.

When the safety zone is activated, the COTP 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 capsule re-entry.^[2] 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 zone.

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. 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 temporary safety zone. The safety zone will be established for approximately three and one half hours. After the launch has been completed, the Coast Guard will notify waterway users and vessels that the safety zone is no longer in effect. The safety zone will ensure the protection of vessels and waterway users from the potential hazards created by the re-entry of the SpaceX capsule.

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.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.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 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 establishing a safety zone through the duration of a space vehicle reentry. 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, 70124; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.

2. Add § 165.T14–0906 to read as follows:

§ 165.T14–0906

Safety Zone; Pacific Ocean, Oahu, Hawaii.

(a) Location. The Coast Guard is establishing a safety zone in the U.S. exclusive economic zone (EEZ) for the re-entry of a capsule launched by SpaceX. The temporary zone is located within the Captain of the Port Sector Honolulu area of responsibility 129 nautical miles offshore of Oahu, Hawaii.

(1) Re-entry site. All waters of the Pacific Ocean, from surface to bottom, encompassed by a line connecting the following points beginning at Point 1, thence to Point 2, thence to Point 3, thence to Point 4, connecting back to the beginning point.

Table 1 to Paragraph ( a )(1)

Point 1	24°02′38″ N	157°33′43″ W
Point 2	24°08′49″ N	157°02′49″ W
Point 3	23°32′10″ N	156°53′17″ W
Point 4	23°25′48″ N	157°25′34″ W

(2) [Reserved]

(b) Definitions. As used in this section—

Designated representative means a Coast Guard Captain of the Port (COTP) Sector Honolulu; Coast Guard Patrol Commanders including Coast Guard coxswains, petty officers and other officers operating a Coast Guard vessel; and other officers designated by the Captain of the Port Sector Honolulu or assisting the Captain of the Port Sector Honolulu in the enforcement of the safety zones.

District Commander means Commander of the Fourteenth Coast Guard District.

Reentry services means:

(i) 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

(ii) 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.

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

(c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, U.S.-flagged vessels may not enter the safety zone described in paragraph (a) of this section unless authorized by the District Commander or a designated representative. All foreign-flagged vessels are requested and encouraged to remain outside the safety zone.

(2) To seek permission to enter, transit through, anchor in or remain within the safety zone contact Sector Honolulu Command Center by telephone at (808) 842–2600 or the District Commander's representative via VHF–FM radio on channel 16. Those in the safety zone must comply with all lawful orders or directions given to them by the District Commander or a designated representative.

(3) The COTP Honolulu or a designated representative may restrict vessel movement including but not limited to transiting, anchoring, or mooring within the safety zone to protect vessels from hazards associated with rocket recoveries. These restrictions are temporary in nature and will only be enacted and enforced prior to and just after the recovery missions.

(d) Enforcement period. (1) To the extent possible, twenty-four hours before a reentry vehicle splashdown, reentry vehicle splashdown, the District Commander, Captain of the Port Sector Honolulu or designated representative will inform the public of the activation of the safety zone described in paragraph (a) of this section by Broadcast Notice to Mariners on VHF–FM channel 16. The safety zone described in paragraph (a) 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.

(2) After a reentry vehicle splashdown, the District Commander, Captain of the Port Sector Honolulu, 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.

(3) Once a reentry vehicle or its remnants are removed from the water and secured onboard a space support vessel, the District Commander, Captain of the Port Sector Honolulu, 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 section is effective from 12:01 a.m. on November 17, 2023, through 11:59 p.m. on November 20, 2023.

Blake L. Novak,

Captain, U.S. Coast Guard, Fourteenth Coast Guard District.

Footnotes

1.   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.

2.   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.