[Federal Register: August 9, 2007 (Volume 72, Number 153)]
[Rules and Regulations]
[Page 44775-44778]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au07-16]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD14-07-001]
RIN 1625-AA87
Security Zones; Oahu, Maui, Hawaii, and Kauai, HI
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is changing the permanent security zones in
waters adjacent to the islands of Oahu, Maui, Hawaii, and Kauai,
Hawaii. Review of the established zones indicated the need for some
adjustment to better suit vessel and facility security in and around
Hawaiian ports. The changes are intended to enhance the protection of
personnel, vessels, and facilities from acts of sabotage or other
subversive acts, accidents, or other causes of a similar nature.
DATES: This rule is effective September 10, 2007.
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 CGD14-07-001 and are available for inspection and
copying at U.S. Coast Guard Sector Honolulu, Sand Island Parkway,
Honolulu, Hawaii 96819-4398 between 7 a.m. and 3:30 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) Jasmin
Parker, U.S. Coast Guard Sector Honolulu at (808) 842-2600.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On June 19, 2007, we published a notice of proposed rulemaking
(NPRM) entitled Security Zones; Oahu, Maui, Hawaii, and Kauai, HI in
the Federal Register (72 FR 33711). We received no letters commenting
on the proposed rule. No public meeting was requested, and none was
held.
Background and Purpose
The terrorist attacks against the United States that occurred on
September 11, 2001, have emphasized the need for the United States to
establish heightened security measures in order to protect the public,
ports and waterways, and the maritime transportation system from future
acts of terrorism or other subversive acts. The terrorist organization
al-Qaeda and other similar groups remain committed to conducting armed
attacks against U.S. interests, including civilian targets within the
United States. National security and intelligence officials warn that
future terrorist attacks are likely.
In response to this threat, on December 19, 2005, the Coast Guard
published a final rule establishing the current permanent security
zones in designated waters surrounding the Hawaiian Islands (70 FR
75036, December 19, 2005). The current zones replaced zones established
by a final rule issued in 2003 (68 FR 20344, April 25, 2003) which in
turn replaced temporary zones that had been established, and then
extended, in the waters surrounding the Hawaiian Islands soon after the
attacks (66 FR 52693, October 17, 2001). The existing permanent
security zones have been in operation for more than 18 months.
We have recently completed a periodic review of port and harbor
security procedures and considered the oral feedback that local vessel
operators gave to Coast Guard units enforcing the zones. In response,
the Coast Guard is reducing the scope of the Honolulu International
Airport, North Section security zone. The Coast Guard is also
establishing new zones at Kawaihae Harbor, Hawaii and Kahe Point, Oahu
to address a new vessel operation and recent identification of a
critical facility. Additionally, we are clarifying the application of
large cruise ship (LCS) security zones to the new Hawaii SuperFerry.
Our action with respect to the Honolulu International Airport,
North Section zone (33 CFR 165.1407(a)(4)(i)) is to change it from one
that is perpetually activated and enforced to one that is used only in
response to a threat. This change, permitting a reduced security
posture in the waters adjacent to Honolulu International Airport, is
based on a 2006 reevaluation of airport protection requirements. The
new arrangement offers us the opportunity to decrease disruption to
maritime commerce and inconvenience to small entities by making the
zone subject to activation and enforcement only under certain
conditions rather than all the time.
All of the security zones described in this final rule are
permanently established. We use the word ``activated'' to describe when
these permanently established zones are subject to enforcement.
Our addition of a Kawaihae Harbor security zone is due to the
arrival of the Hawaii SuperFerry. In June 2004, Hornblower Marine
Services, Inc. signed a Marine Management Operating
[[Page 44776]]
Agreement and Construction Oversight contract for the new Hawaii
SuperFerry operation, an inter-island ferry service. The service will
transport passengers and vehicles to Hawaiian island ports, including
Kawaihae Harbor on the island of Hawaii. Each day, these ferries will
carry many passengers as well as cargo and vehicles, presenting the
same security vulnerabilities as the large cruise ships that operate in
those areas. Kawaihae Harbor, however, lacked a security zone to
protect such vessels, so we are creating one there.
Additionally, the definition of large cruise ship (LCS) in 33 CFR
165.1408(b), 165.1409(b), and 165.1410(b) did not adequately describe
the Hawaii SuperFerry or any other vessel of similar size and carriage
capacity. Therefore, the Coast Guard is revising the term large cruise
ship to clarify that the presence of Superferry-type vessels triggers
the activation and enforcement of the Maui, Hawaii, and Kauai security
zones described in those three sections.
Our creation of a Kahe Point security zone is meant to protect the
Hawaiian Electric Company power plant at Kahe Point, which produces a
significant portion of the electricity for the island of Oahu. This
beach-front power plant uses sea water piped in directly from the ocean
to cool its turbines. Loss or damage to this cooling water system due
to sabotage would reduce the power-generating capacity of the plant and
overburden the other island facilities. The Kahe Point, Oahu zone is
intended to enhance the plant's security.
Discussion of Comments and Changes
We did not receive any comments in response to our NPRM. Our review
of the regulation text, however, revealed a typo in the proposed
amendment of 33 CFR 165.1410(b). In that paragraph, the word
``ferries'' should have been singular, so we made that change for this
final rule. No other changes were made to the regulation text proposed
in the NPRM.
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.
The Coast Guard expects the economic impact of this rule to be so
minimal that a full Regulatory Evaluation is unnecessary. This
expectation is based on the short activation and enforcement duration
of the zones created or impacted by this rule, as well as the limited
geographic area affected by them.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule will 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. While we are aware that affected areas have small commercial
entities, including canoe and boating clubs and small commercial
businesses that provide recreational services, we anticipate that there
will be little or no impact to these small entities due to the narrowly
tailored scope of these changes.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding this rule so that they could better evaluate
its effects on them and participate in the rulemaking process.
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.
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 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 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
[[Page 44777]]
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.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under Commandant Instruction M16475.lD
and Department of Homeland Security Management Directive 5100.1, which
guide 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. That provision excludes regulations establishing or
changing security zones.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES.
List of Subjects in 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
part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. Amend Sec. 165.1407 to add paragraph (a)(7) and to revise the
paragraph (d) heading and the introductory text of paragraph (d)(1) to
read as follows:
Sec. 165.1407 Security Zones; Oahu, HI.
(a) * * *
(7) Kahe Point, Oahu. All waters adjacent to the Hawaiian Electric
Company power plant at Kahe Point within 500 yards of 21[deg] 21.30' N/
158' 07.7[deg] W (lighted tower).
* * * * *
(d) Notice of enforcement or suspension of enforcement of security
zones.
(1) The security zones described in paragraphs (a)(3) (Kalihi
Channel and Keehi Lagoon, Oahu), (a)(4)(i) (Honolulu International
Airport, North Section), (a)(4)(ii) (Honolulu International Airport,
South Section), and (a)(6) (Barbers Point Harbor, Oahu) of this
section, will be enforced only upon the occurrence of one of the
following events--
* * * * *
0
3. Amend Sec. 165.1408 to revise paragraphs (a)(1), (a)(2), (b),
(c)(1), and (c)(2) to read as follows:
Sec. 165.1408 Security Zones; Maui, HI.
(a) * * *
(1) Kahului Harbor, Maui. All waters extending 100 yards in all
directions from each large passenger vessel in Kahului Harbor, Maui, HI
or within 3 nautical miles seaward of the Kahului Harbor COLREGS
DEMARCATION (See 33 CFR 80.1460). This is a moving security zone when
the LPV is in transit and becomes a fixed zone when the LPV is
anchored, position-keeping, or moored.
(2) Lahaina, Maui. All waters extending 100 yards in all directions
from each large passenger vessel in Lahaina, Maui, whenever the LPV is
within 3 nautical miles of Lahaina Light (LLNR 28460). The security
zone around each LPV is activated and enforced whether the LPV is
underway, moored, position-keeping, or anchored, and will continue in
effect until such time as the LPV departs Lahaina and the 3-mile
enforcement area.
(b) Definitions. As used in this section, large passenger vessel or
LPV means a cruise ship more than 300 feet in length that carries
passengers for hire, and any passenger ferry more than 300 feet in
length that carries passengers for hire.
(c) Regulations. (1) Under 33 CFR 165.33, entry into the security
zones created by this section is prohibited unless authorized by the
Coast Guard Captain of the Port, Honolulu or his or her designated
representatives. When authorized passage through a large passenger
vessel security zone, all vessels must operate at the minimum speed
necessary to maintain a safe course and must proceed as directed by the
Captain of the Port or his or her designated representatives. No person
is allowed within 100 yards of an LPV that is underway, moored,
position-keeping, or at anchor, unless authorized by the Captain of the
Port or his or her designated representative.
(2) When conditions permit, the Captain of the Port, or his or her
designated representative, may permit vessels that are at anchor,
restricted in their ability to maneuver, or constrained by draft to
remain within an LPV security zone in order to ensure navigational
safety.
* * * * *
0
4. Amend Sec. 165.1409 to revise paragraphs (a)(1), (a)(2), (b),
(c)(1), and (c)(2) and to add paragraph (a)(3) to read as follows:
Sec. 165.1409 Security Zones; Hawaii, HI.
(a) * * *
(1) Hilo Harbor, Hawaii. All waters extending 100 yards in all
directions from each large passenger vessel in Hilo Harbor, Hawaii, HI
or within 3 nautical miles seaward of the Hilo Harbor COLREGS
DEMARCATION (See 33 CFR 80.1480). This is a moving security zone when
the LPV is in transit and becomes a fixed zone when the LPV is
anchored, position-keeping, or moored.
(2) Kailua-Kona, Hawaii. All waters extending 100 yards in all
directions from each large passenger vessel in Kailua-Kona, Hawaii,
whenever the LPV is within 3 nautical miles of Kukailimoku Point. The
100-yard security zone around each LPV is activated and enforced
whether the LPV is underway, moored, position-keeping, or anchored and
will continue in effect until such time as the LPV departs Kailua-Kona
and the 3-mile enforcement area.
(3) Kawaihae Harbor, Hawaii. All waters extending 100 yards in all
directions from each large passenger vessel in Kawaihae Harbor, Hawaii,
or within 3 nautical miles seaward of the Kawaihae Harbor COLREGS
[[Page 44778]]
DEMARCATION (See 33 CFR 80.1470). The 100-yard security zone around
each LPV is activated and enforced whether the LPV is underway, moored,
position-keeping, or anchored.
(b) Definitions. As used in this section, large passenger vessel or
LPV means a cruise ship more than 300 feet in length that carries
passengers for hire, and any passenger ferry more than 300 feet in
length that carries passengers for hire.
(c) Regulations. (1) Under 33 CFR 165.33, entry into the security
zones created by this section is prohibited unless authorized by the
Coast Guard Captain of the Port, Honolulu or his or her designated
representative. When authorized passage through a large passenger
vessel security zone, all vessels must operate at the minimum speed
necessary to maintain a safe course and must proceed as directed by the
Captain of the Port or his or her designated representatives. No person
is allowed within 100 yards of a large passenger vessel that is
underway, moored, position-keeping, or at anchor, unless authorized by
the Captain of the Port or his or her designated representatives.
(2) When conditions permit, the Captain of the Port, or his or her
designated representatives, may permit vessels that are at anchor,
restricted in their ability to maneuver, or constrained by draft to
remain within an LPV security zone in order to ensure navigational
safety.
* * * * *
0
5. Amend Sec. 165.1410 to revise paragraphs (a)(1), (a)(2), (b),
(c)(1), and (c)(2) to read as follows:
Sec. 165.1410 Security Zones; Kauai, HI.
(a) * * *
(1) Nawiliwili Harbor, Lihue, Kauai. All waters extending 100 yards
in all directions from each large passenger vessel in Nawiliwili
Harbor, Kauai, HI or within 3 nautical miles seaward of the Nawiliwili
Harbor COLREGS DEMARCATION (See 33 CFR 80.1450). This is a moving
security zone when the LPV is in transit and becomes a fixed zone when
the LPV is anchored, position-keeping, or moored.
(2) Port Allen, Kauai. All waters extending 100 yards in all
directions from each large passenger vessel in Port Allen, Kauai, HI or
within 3 nautical miles seaward of the Port Allen COLREGS DEMARCATION
(See 33 CFR 80.1440). This is a moving security zone when the LPV is in
transit and becomes a fixed zone when the LPV is anchored, position-
keeping, or moored.
(b) Definitions. As used in this section, large passenger vessel or
LPV means a cruise ship more than 300 feet in length that carries
passengers for hire, and any passenger ferry more than 300 feet in
length that carries passengers for hire.
(c) Regulations. (1) Under 33 CFR 165.33, entry into the security
zones created by this section is prohibited unless authorized by the
Coast Guard Captain of the Port, Honolulu or his or her designated
representative. When authorized passage through an LPV security zone,
all vessels must operate at the minimum speed necessary to maintain a
safe course and must proceed as directed by the Captain of the Port or
his or her designated representative. No person is allowed within 100
yards of a large passenger vessel that is underway, moored, position-
keeping, or at anchor, unless authorized by the Captain of the Port or
his or her designated representative.
(2) When conditions permit, the Captain of the Port, or his or her
designated representative, may permit vessels that are at anchor,
restricted in their ability to maneuver, or constrained by draft to
remain within an LPV security zone in order to ensure navigational
safety.
* * * * *
Dated: July 30, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard
District.
[FR Doc. E7-15508 Filed 8-8-07; 8:45 am]
BILLING CODE 4910-15-P