Ports and waterways safety: Oahu, Maui, Hawaii, and Kauai, HI; anchorages and security zones,

[Federal Register: October 30, 2002 (Volume 67, Number 210)]

[Rules and Regulations]

[Page 66049-66052]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30oc02-5]

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 110 and 165

[CGD14-02-001]

RIN 2115-AA97

Anchorages and Security Zones; Oahu, Maui, Hawaii, and Kauai, HI

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is establishing temporary security zones in designated waters adjacent to the islands of Oahu, Maui, Hawaii, and Kauai, HI for a period of 6 months. These security zones, which are similar to existing temporary security zones, and a related amendment to regulations for anchorage grounds in Mamala Bay, are necessary to protect personnel, vessels, and facilities from acts of sabotage or other subversive acts, accidents, or other causes of a similar nature during operations and will extend from the surface of the water to the ocean floor. Entry into the zones is prohibited unless authorized by the Coast Guard Captain of the Port Honolulu, HI.

DATES: This rule is effective from 4 p.m. HST October 19, 2002, until 4 p.m. HST April 19, 2003.

ADDRESSES: Coast Guard Marine Safety Office Honolulu maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are available for inspection or copying at Coast Guard Marine Safety Office Honolulu, 433 Ala Moana Blvd., Honolulu, Hawaii 96813, between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: LTJG E. G. Cantwell, Coast Guard Marine Safety Office Honolulu, Hawaii at (808) 522-8260.

SUPPLEMENTARY INFORMATION:

Regulatory Information

On September 3, 2002, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled ``Anchorages and Security Zones; Oahu, Maui, Hawaii, and Kauai, HI'' in the Federal Register (67 FR 56245). The Coast Guard proposed to extend the effective period for designated security zones in the waters adjacent to the islands of Oahu, Maui, Hawaii, and Kauai, HI for a period of 6 months. In addition to extending the period of security zones, we also proposed giving

[[Page 66050]]

names to security zones and make a few editorial, non-substantive changes. While we have changed the temporary section number, this temporary final rule effectively extends the temporary security zones established under 33 CFR 165.T14-069.

We also proposed to amend an anchorage grounds regulation by adding the requirement that permission of the Captain of the Port be obtained before entering anchorage grounds in Mamala Bay.

We received one letter of comment for the proposed rule. No public hearing was requested or held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the change in effective period would be contrary to the public interest since there is a continuing immediate need to protect persons, vessels, and facilities in the various areas on the islands of Oahu, Maui, Hawaii, and Kauai, HI. Under these circumstances, following the normal rulemaking procedures would be impracticable.

Background and Purpose

Terrorist attacks in New York City, New York, and on the Pentagon Building in Arlington, Virginia, on September 11, 2001, have called for the implementation of additional measures to protect national security. National security and intelligence officials warn that future terrorist attacks against civilian targets may be anticipated. This rule is similar to a rule published April 29, 2002, (67 FR 20907) creating security zones in these areas until 4 p.m. October 19, 2002.

Discussion of Comments and Changes

The Coast Guard received one comment following the publication of the notice of proposed rulemaking (67 FR 56245). The commenter addressed four issues as follows.

The first issue revolved around a discussion on the requirements for recreational, commercial fishing and commercial tourism vessels to request permission to transit the various security zones. The commenter indicated that the requirement is burdensome for vessel operators that are not required to carry a VHF-FM marine radio. These vessel operators are unable to contact the Captain of the Port via radio to request permission to transit a security zone and they are unable to hear the Broadcast Notice to Mariners announcing the status of the temporary zones.

The Coast Guard understands that all vessels are not required to carry a VHF-FM marine radio. For those vessels, operators have the option to contact the Coast Guard via telephone. While the Broadcast Notice to Mariners are only transmitted over the VHF-FM marine radio, if a vessel operator calls the Coast Guard on the telephone, they will be able to find out the status of the security zones. Additionally, all Broadcast Notice to Mariners may be viewed on the U.S. Coast Guard Navigation Center Web site at http://www.navcen.uscg.gov/lnm/d14. Therefore, the Coast Guard does not agree that the requirement is too burdensome.

The second issue concerns the possible impact of the rule on Small Entities and is discussed in the Small Entities section below.

The third issue revolved around the language used to define the security zones around cruise vessels anchored off of Lahaina and Kailua-Kona Harbors. The commenter recommended that wording in paragraph (a)(8) of the security zone temporary section be amended to read that cruise vessels will be anchored in ``designated anchorage areas.'' The commenter also recommended clarification to current wording, which suggests that cruise vessels are actually anchored ``in'' the referenced Small Boat Harbors.

There are no federally designated anchorages off of Lahaina and Kailua-Kona Harbors. Therefore, any reference to ``designated anchorages'' within the text of the rule would be inappropriate and thus no change to this wording is warranted. However, the Coast Guard agrees that the wording in paragraph (a)(8) of our new Sec. 165.T14- 072 should be clarified to reference cruise vessels anchored ``in the vicinity'' of Lahaina and Kailua-Kona Harbors, versus cruise vessel ``in'' these harbors. And we have done so.

The final issue included a request that all the security zones be depicted on nautical charts. The commenter felt that this would improve awareness of and compliance with security zones regulations.

The Coast Guard has considered these comments about publishing the zones on nautical charts and has determined that, due to the temporary nature of the security zones, no change to the proposed rule is required.

Regulatory Evaluation

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. It is not ``significant'' under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This expectation is based on the short duration of the zone and the limited geographic zone affected by it.

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 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. No small business impacts are anticipated due to the small size of the zones and the short duration of the security zones in any one area.

The one commenter was concerned that the small vessel operators lacking VHF-FM marine radios might be impeded in transiting security zones. Therefore, the commenter felt that this might constitute an economic impact on Small Entities. The commenter stated that ``Should requirements of the Security Zones prohibit, or unreasonably impeded these vessels from gaining access to the ocean (and returning), it appears that there would be sufficient cause to consider a full Regulatory Evaluation and reexamination of the position taken by the Coast Guard on the `Small Entities' section.''

The Coast Guard does not believe that any small entities will be significantly impacted by the security zones in this rule. Nearly identical security zones have been in place for more that a year and the Captain of the Port has not received any information regarding negative impacts on small entities or small vessel operators. Furthermore, no comments on this rulemaking were received from any small entities or small vessel operators regarding adverse effects of the zones.

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Assistance for Small Entities

Because we did not anticipate any small business impacts, we did not offer assistance to small entities in understanding the rule.

Collection of Information

This rule would 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 would not result in such 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 would not create an environmental risk to health or risk to safety that might 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 will 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. We invite your comments on how this rule might impact tribal governments, even if that impact may not constitute a ``tribal implication'' under the Order.

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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. A ``Categorical Exclusion Determination'' is available in the docket where indicated under ADDRESSES.

List of Subjects

33 CFR Part 110

Anchorage grounds.

33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reports and recordkeeping requirements, Security measures, Waterways.

For the reasons set out in the preamble, the Coast Guard amends 33 CFR parts 110 and 165 as follows:

PART 110--ANCHORAGE REGULATIONS

1. The authority citation for part 110 continues to read as follows:

   Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 49 CFR 1.46 and 33 CFR 1.05-1(g).

2. From 4 p.m. HST October 19, 2002, until 4 p.m. HST April 19, 2003, in Sec. 110.235, add a new paragraph (c) to read as follows:

   Sec. 110.235 Pacific Ocean (Mamala Bay), Honolulu Harbor, Hawaii (Datum: NAD 83).

   * * * * *

   (c) Before entering in the anchorage grounds in this section you must first obtain permission from the Captain of the Port Honolulu.

   PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

3. 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(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

4. Add temporary Sec. 165.T14-072 to read as follows:

   Sec. 165.T14-072 Security Zones; Oahu, Maui, Hawaii, and Kauai, HI.

   (a) Location. The following areas, from the surface of the water to the ocean floor, are security zones--

   (1) Honolulu Harbor. All waters of Honolulu Harbor and entrance channel, Keehi Lagoon, and General Anchorages A, B, C, and D as defined in 33 CFR 110.235 that are shoreward of a line connecting the following coordinates: A point on the shoreline at 21[deg]17.68[min] N, 157[deg]52.0' W; thence due south to 21[deg]16.0' N, 157[deg]52.0' W, thence due west to 21[deg]16.0' N, 157[deg]55.58' W, and thence due north to Honolulu International Airport Reef Runway at 21[deg]18.25' N, 157[deg]55.58' W.

   (2) Tesoro Single Point Mooring. The waters around the Tesoro Single Point Mooring extending 1,000 yards in all directions from position 21[deg]16.2' N, 158[deg]05.3' W.

   (3) Chevron Conventional Buoy Mooring. The waters extending 1,000 yards in all directions around vessels moored at the Chevron Conventional Buoy Mooring at approximate position 21[deg]16.7' N, 158[deg]04.2' W.

   (4) Kahului Harbor and Entrance Channel, Maui, HI. All waters in the Kahului Harbor and Entrance Channel, Maui, HI, shoreward of the COLREGS DEMARCATION line defined in 33 CFR 80.1460.

   (5) Nawiliwili Harbor, Kauai, HI. All waters within the Nawiliwili Harbor, Kauai, HI shoreward of the COLREGS DEMARCATION line defined in 33 CFR 80.1450.

   (6) Port Allen Harbor, Kauai, HI. All waters of Port Allen Harbor, Kauai, HI shoreward of the COLREGS DEMARCATION line defined in 33 CFR 80.1440.

   (7) Hilo Harbor and Entrance Channel, Hawaii, HI. All waters in Hilo Harbor and Entrance Channel, Hawaii, HI shoreward of the COLREGS

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   DEMARCATION line defined in 33 CFR 80.1480.

   (8) Area Around Cruise Ships in the vicinity of Lahaina Small Boat Harbor, Maui, and Kailua-Kona Small Boat Harbor, Hawaii. The waters extending out 500 yards in all directions from cruise ship vessels anchored within 3 miles of:

   (i) Lahaina Small Boat Harbor, Maui, between Makila Point and Puunoa Point.

   (ii) Kailua-Kona Small Boat Harbor, Hawaii, between Keahulolu Point and Puapuaa Point.

   (9) Barbers Point Harbor, Oahu. All waters contained within the Barbers Point Harbor, Oahu, enclosed by a line drawn between Harbor Entrance Channel Light 6 and the jetty point day beacon at 21[deg]19.5' N, 158[deg]07.3' W.

   (b) Designated representative. A designated representative of the Captain of the Port is any Coast Guard commissioned officer, warrant or petty officer that has been authorized by the Captain of the Port Honolulu to act on his behalf. The following officers have or will be designated by the Captain of the Port Honolulu: The senior Coast Guard boarding officer on each vessel enforcing the security zone.

   (c) Regulations. (1) In accordance with Sec. 165.33, entry into these zones is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his designated representatives. Section 165.33 also contains other general requirements.

   (2) The existence or status of the temporary security zones in this section will be announced periodically by Broadcast Notice to Mariners.

   (3) Persons desiring to transit the areas of the security zones may contact the Captain of the Port at command center telephone number (808) 541-2477 or on VHF channel 16 (156.8 Mhz) to seek permission to transit the area. If permission is granted, all persons and vessels shall comply with the instructions of the Captain of the Port or his designated representatives.

   (d) Authority. In addition to 33 U.S.C. 1231, the authority for this section is 33 U.S.C. 1226; 49 CFR 1.46.

   (e) Effective period. This section is effective from 4 p.m. HST October 19, 2002, until 4 p.m. HST April 19, 2003.

   Dated: October 11, 2002. R.D. Utley, Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard District.

   [FR Doc. 02-27606Filed10-25-02; 4:05 pm]

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