[Federal Register: April 25, 2003 (Volume 68, Number 80)]
[Rules and Regulations]
[Page 20344-20347]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ap03-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 110 and 165
[CGD14-03-001]
RIN 1625-AA00 [Formerly 2115-AA97]
RIN 1625-AA01
Anchorage Grounds and Security Zones; Oahu, Maui, Hawaii, and
Kauai, HI
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing permanent security zones in
designated waters adjacent to the islands of Oahu, Maui, Hawaii, and
Kauai, HI. These 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. Entries
into the zones are prohibited unless authorized by the Coast Guard
Captain of the Port Honolulu, HI.
DATES: This rule is effective April 19, 2003.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket CGD14-03-001 and are available for inspection or
copying at Coast Guard Marine Safety Office Honolulu, 433 Ala Moana
Blvd., Honolulu, HI 96813 between 7 a.m. and 3:30 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) E. G.
Cantwell, U.S. Coast Guard, Marine Safety Office Honolulu, Hawaii at
(808) 522-8260.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On February 4, 2003, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zones; Oahu, Maui, Hawaii, and Kauai, HI''
in the Federal Register (68 FR 5614). We received three public comments
on the proposed rule. No public hearing was requested and none was
held.
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 contrary to the public
[[Page 20345]]
interest since there is a continuing and 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 temporary rule published October 30, 2002, creating
security zones in these areas until April 19, 2003 (67 FR 66049).
Discussion of Comments and Changes
The Coast Guard received three comments following the publication
of the notice of proposed rulemaking (NPRM) in the Federal Register.
The first commenter raised four issues.
The first issue focused 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
Notices to Mariners announcing the status of the temporary zones. In
the absence of a VHF-FM radio, the vessel operators may contact the
Command Center via telephone, but a long distance call to the Command
Center from the Outer Islands was considered to be unreasonable.
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 either locally at 541-
2477 or toll free at (800) 552-6458. 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 and if necessary ask
permission to enter the zone. Additionally, all Broadcast Notices to
Mariners may be viewed on the U.S. Coast Guard Navigation Center Web
site at www.navcen.uscg.gov/lnm/d14. Due to the various options
available to contact the Coast Guard, we do not believe it is an
unreasonable burden to require the mariner to determine the status of
the security zone before transiting the area. To provide additional
options, the final rule includes the toll free number and also allows
mariners to submit written requests by mail or fax.
The second issue concerns communications issues of recreational
vessels complying with these regulations. The questions were raised as
to how a recreational boater may obtain information about security
zones, and what the penalties were for transiting a security zone
without permission.
Current enforcement status information on security zones is
reflected in the Broadcast Notice to Mariners, and on a website as
stated in the response to comment number one. In addition, recreational
boaters may contact the Command Center at VHF-FM channel 16, via the
local telephone number 541-2477, or toll free at (800) 552-6458 for
additional status information. Entering a security zone without the
permission of the Captain of the Port is a violation of the Magnuson
Act, 50 U.S.C. 191 and 33 CFR part 6. A violation of this section may
result in a civil penalty of not more than $25,000 for each violation
or a criminal penalty resulting in imprisonment of not more than ten
years and a fine not more than $10,000. A reference to the penalty
provision has been added to the final rule.
The third issue concerned possible impact on Small Entities. This
comment 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 Coast Guard believes that the burden of requiring small vessels
to contact the Captain of the Port prior to transiting the area is
reasonable in relation to the security provided to the respective
ports. All small vessel operators have had, and will continue to have,
reasonable access to the navigable waters.
The fourth issue was 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 zone regulations.
The Coast Guard has made arrangements for the zones to be published
in both the Coast Pilot and on the applicable nautical charts once the
proposed rule becomes final. The Coast Guard looks forward to working
with the local harbor safety committee to increase the public awareness
of these zones through various methods in addition to publication in
the Coast Pilot and updated nautical charts.
The second commenter requested that commercial Tugboat and Marine
Transportation Companies who provide frequent and routine delivery of
freight and fuel to the Hawaiian Islands be exempt from the requirement
of asking permission to enter a port where a security zone is in place.
Their concern is that the burden of asking permission would tie up
phone lines, distract watch standers, and possibly delay deliveries of
freight and fuel.
The Coast Guard believes that the requirement of asking permission
to enter a security zone is the least restrictive means to maintain an
adequate level of security and is not excessively burdensome to the
commercial Tugboat and Marine Transportation Companies or to the Coast
Guard to field these requests.
The third commenter stated that the distance between the furthest
in-shore point of the security zone at the Tesoro and Chevron offshore
moorings and the reef is too short to allow recreational traffic to
safely pass.
The span of water between the furthest shoreward point of the
security zone and the 3-fathom curve is approximately 200 yards. This
span has an average depth of approximately 6 fathoms. The Coast Guard
believes this span is adequate to allow safe passage of recreational
traffic.
There are additional revisions to the final rule. The Authority
list was amended to include more relevant federal statutes and to
reflect the Coast Guard's transition from the Department of
Transportation to the Department of Homeland Security. The definition
for the term ``voyage'' was revised to provide a more accurate
description of the term.
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 Homeland
Security (DHS).
The Coast Guard expects the economic impact of this rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
[[Page 20346]]
and procedures of DHS is unnecessary. This expectation is based on the
fact that vessels will be able to freely transit the areas outside of
any security zones. In addition, vessels can request the COTP allow
their transit through the security zones.
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 will
not have a significant economic impact on a substantial number of small
entities.
The Coast Guard received one comment indicating 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 Coast Guard believes that the burden of requiring small vessels
to contact the Captain of the Port prior to transiting the area is
reasonable in relation to the security provided to the respective
ports. All small vessel operators have had, and will continue to have,
reasonable access to the navigable waters.
Assistance for Small Entities
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).
Collection of Information
This rule calls 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 will 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 effect 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 does not create an
environmental risk to health or risk to safety that may
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 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.
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. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have analyzed this rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have
concluded that there are no factors in this case that would limit the
use of a categorical exclusion under section 2.B.2 of the Instruction.
Therefore, this rule is categorically excluded, under figure 2-1,
paragraph (34)(g), of the Instruction, from further environmental
documentation. A final ``Environmental Analysis Check List'' and a
final ``Categorical Exclusion Determination'' are 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 record
keeping requirements, Security measures, Waterways.
0
For the reasons set out in the preamble, the Coast Guard amends 33 CFR
parts 110 and 165 as follows:
PART 110--ANCHORAGE REGULATIONS
0
1. The authority citation for part 110 continues to read as follows:
Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071;
33 CFR 1.05-1(g), and Department of Homeland Security Delegation No
0170.
0
2. In Sec. 110.235 add a new paragraph (c) to read as follows:
Sec. 110.235 Pacific Ocean (Mamala Bay), Honolulu Harbor, Hawaii
(Datums: NAD 83).
* * * * *
(c) Before entering into 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
0
3. The authority citation for part 165 continues to read as follows:
[[Page 20347]]
Authority: 33 U.S.C. 1221 through 1236; 50 U.S.C. 191; 33 CFR
1.05-1(g), 6.04-1, 6.04-6, and 160.5; Department of Homeland
Security Delegation No. 0170.
0
4. A new Sec. 165.1407 is added to read as follows:
Sec. 165.1407 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) 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 the following coordinates: The shoreline
at 21[deg]17.68' 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; thence due north to Honolulu International Airport Reef Runway at
21[deg]18.25' N, 157[deg]55.58' W.
(2) The waters around the Tesoro Single Point and the Chevron
Conventional Buoy Moorings beginning at 21[deg]16.43' N, 158[deg]6.03'
W; thence northeast to 21[deg]17.35' N, 158[deg]3.95' W; thence
southeast to 21[deg]16.47' N, 158[deg]3.5' W; thence southwest to
21[deg]15.53' N, 158[deg]5.56' W; thence north to the beginning point.
(3) The Kahului Harbor and Entrance Channel, Maui, HI consisting of
all waters shoreward of the COLREGS DEMARCATION line. (See 33 CFR
80.1460).
(4) All waters within the Nawiliwili Harbor, Kauai, HI shoreward of
the COLREGS DEMARCATION line (See 33 CFR 80.1450).
(5) All waters of Port Allen Harbor, Kauai, HI shoreward of the
COLREGS DEMARCATION line (See 33 CFR 80.1440).
(6) The waters within a 100-yard radius centered on each cruise
ship in Hilo Harbor, Hawaii, HI and Entrance Channel shoreward of the
COLREGS DEMARCATION (See 33 CFR 80.1480). This is a moving security
zone when the cruise ship is in transit and becomes a fixed zone when
the cruise ship is anchored or moored.
(7) The waters extending out 500 yards in all directions from
cruise ships anchored or position keeping within 3 miles of:
(i) Lahaina Harbor, Maui, HI, between Makila Point and Puunoa
Point.
(ii) Kailua-Kona Harbor, Hawaii, HI, between Keahulolu Point and
Puapuaa Point.
(8) All waters contained within the Barbers Point Harbor, Oahu, HI,
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.
(c) Cruise ship: For the purposes of this section, the term
``cruise ship'' is defined as a passenger vessel over 100 gross tons,
carrying more than 12 passengers for hire, making a voyage lasting more
than 24 hours, any part of which is on the high seas, and for which
passengers are embarked or disembarked in the United States or its
territories. A ``voyage'' in this section means the cruise ship's
entire course of travel, from the first port at which the cruise ship
embarks passengers until its return to its last port of call where the
majority of passengers are disembarked.
(d) 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 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 by calling the Command Center at
telephone numbers (808) 541-2477 or (800) 552-6458, or on VHF channel
16 (156.8 Mhz) to seek permission to transit the area. Written requests
may be submitted to the Captain of the Port, Coast Guard Marine Safety
Office Honolulu, 433 Ala Moana Blvd., Honolulu, HI 96813 or faxed to
(808) 522-8270. If permission is granted, all persons and vessels shall
comply with the instructions of the Captain of the Port or his
designated representatives.
(4) Persons entering a security zone without authorization of the
Captain of the Port may be subject to a civil penalty of not more than
$25,000 for each violation or a criminal penalty resulting in
imprisonment of not more than ten years and a fine not more than
$10,000.
Dated: April 14, 2003.
G.A. Wiltshire,
Captain, U.S. Coast Guard, Commander, Fourteenth Coast Guard District,
Acting.
[FR Doc. 03-10215 Filed 4-24-03; 8:45 am]
BILLING CODE 4910-15-P