[Federal Register Volume 68, Number 80 (Friday, April 25, 2003)]
[Rules and Regulations]
[Pages 20344-20347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10215]


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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]
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