[Federal Register Volume 67, Number 210 (Wednesday, October 30, 2002)]
[Rules and Regulations]
[Pages 66049-66052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27606]


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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.

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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.

[[Page 66051]]

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

[[Page 66052]]

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. 02-27606 Filed 10-25-02; 4:05 pm]
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