Safety Zone; Banana River, and Parts of Atlantic Ocean, FL

AGENCY:

Coast Guard, Department of Homeland Security (DHS).

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary moving safety zone around the National Aeronautics and Space Administration (NASA) barge PEGASUS and attached towing vessel while engaged in towing in the navigable waters of Sector Jacksonville Captain of the Port Zone, to encompass parts of the Atlantic Ocean, through the Canaveral Locks to the Banana River ending at the Kennedy Space Center turning basin. The temporary moving safety zone is necessary to protect persons, vessels, and the marine environment from potential hazards associated with the planned transit of the NASA barge PEGASUS and cargo within these navigable waters. No vessel or person will be permitted to enter the safety zone unless authorized by the Captain of the Port Jacksonville or a designated representative.

DATES:

This rule is effective without actual notice from July 25, 2024, through August 30, 2024. For the purposes of enforcement, actual notice will be used from July 20, 2024, until July 25, 2024.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2024-0644 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 about this rule, call or email Marine Science Technician Second Class Matthew Woods, Waterways Management Division, U.S. Coast Guard; telephone 904-714-7661, email Matthew.A.Woods@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

AOR Area of Responsibility

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

NASA National Aeronautics and Space Administration

NPRM Notice of proposed rulemaking

§ Section

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. Details of the event which begins on July 20, 2024, were not made available until June 26, 2024. The Coast Guard was not notified with ample time to allow for public comment. Timely action is needed to respond to the potential safety hazards associated with the transit of the National Aeronautics and Space Administration (NASA) barge PEGASUS. It would be impracticable and contrary to the public interest to publish a NPRM because we must establish the safety zone by July 20, 2024, to ensure the protection of the safety of personnel, vessels, and waterway users during the NASA barge transit.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary interim rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this temporary interim rule would be contrary to the rule's objectives of ensuring the protection of vessels and waterway users in during the transit of the NASA barge.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this temporary rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector (COTP) Jacksonville has determined that potential hazards associated with the transit of the NASA barge PEGASUS. The rule is needed to protect persons, vessels, and the marine environment in the navigable waters within the safety zone while the barge PEGASUS and attached towing vessel are transiting the navigable waters of Sector Jacksonville Captain of the Port Zone, to encompass parts of the Atlantic Ocean, through the Canaveral Locks to the Banana River ending at the Kennedy Space Center turning basin.

IV. Discussion of the Rule

This rule establishes a temporary moving safety zone from 12:01 a.m. July 20, 2024, through August 30, 2024. The temporary moving safety zone will cover all navigable waters within a 100-yard radius around the NASA barge PEGASUS and attached towing vessel while engaged in towing while transiting the Sector Jacksonville Captain of the Port Zone, to encompass parts of from the Atlantic Ocean, through the Canaveral Locks to the Banana River ending at the Kennedy Space Center turning basin. The temporary moving safety zone is necessary to protect persons, vessels, and the marine environment in these navigable waters while the PEGASUS barge and cargo are towed.

The anticipated date of the transit may necessitate change due to inclement weather, waterway conditions, infrastructure issues, or other marine services. The Captain of the Port (COTP) Jacksonville will notify mariners of the change in enforcement period via a Marine Safety Information Bulletin, Local Notice to Mariners, or Broadcast Notice to Mariners.

No vessel or person will be permitted to enter the moving safety zone without obtaining permission from the COTP Jacksonville or a designated representative.

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 section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

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 impact a small, designated area of the Banana River, near Port Canaveral, FL, for approximately 4 hours. The safety zone will be enforced in a manner that minimizes conflict with transiting commercial and recreational traffic. Moreover, vessels may transit through the safety zone with the permission of the COTP or make satisfactory passing arrangements with the Master of the towing vessel towing the NASA barge PEGASUS, that may be used in accordance with this rule and the Rules of the Road (33 CFR subchapter E). The Coast Guard will notify the mariners of the change in enforcement period via a Marine Safety Information Bulletin, Local Notice to Mariners, or Broadcast Notice to Mariners.

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 a moving safety zone that prohibits persons or vessels from entering, transiting through, anchoring in, or transiting within a 100-yard radius from the NASA barge PEGASUS and the towing vessel while in transit to the Kennedy Space Center dock. 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
• Waterway

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.T07-0736 to read as follows: