[Federal Register Volume 70, Number 108 (Tuesday, June 7, 2005)]
[Proposed Rules]
[Pages 33047-33053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11168]



[[Page 33047]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD14-04-116]
RIN 1625-AA87 (Formerly 1625-AA00)


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

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Coast Guard is issuing a supplement to our notice of 
proposed rulemaking (NPRM) published on May 20, 2004 (69 FR 29114). The 
NPRM underwent further Coast Guard review after its comment period that 
produced revisions significant enough to merit this supplement to our 
original proposal. This supplement is intended to announce the 
revisions and reopen the comment period.
    The Coast Guard proposes to make changes to existing permanent 
security zones in designated waters adjacent to the islands of Oahu, 
Maui, Hawaii, and Kauai, Hawaii. These revised security zones are 
necessary to protect personnel, vessels, and facilities from acts of 
sabotage or other subversive acts, accidents, or other causes of a 
similar nature and will extend from the surface of the water to the 
ocean floor. Some of the revised security zones would be continuously 
activated and enforced at all times, while others would be activated 
and enforced only during heightened threat conditions. Entry into these 
Coast Guard security zones while they are activated and enforced would 
be prohibited unless authorized by the Captain of the Port.

DATES: Comments and related material must reach the Coast Guard on or 
before August 8, 2005.

ADDRESSES: You may mail comments and related material to Commanding 
Officer, U.S. Coast Guard Sector Honolulu, Sand Island Access Road, 
Honolulu, Hawaii 96819-4398. Sector 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 and copying at 
Coast Guard Sector Honolulu, between 7 a.m. and 3:30 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) Quincey 
Adams, U.S. Coast Guard Sector Honolulu at (808) 842-2600.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD14-04-
116), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them. To provide additional notice, we will 
publicize this supplemental proposal in the Local Notice to Mariners, 
available at the following Web site: http://www.navcen.uscg.gov/1nm/d14.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Sector Honolulu at the address 
under ADDRESSES explaining why one would be beneficial. If we determine 
that one would aid this rulemaking, we would hold one at a time and 
place announced by separate notice in the Federal Register.

Regulatory History

    On May 20, 2004, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled ``Security Zones: Oahu, Maui, Hawaii and 
Kauai, Hawaii,'' in the Federal Register (69 FR 29114). We received 
five letters commenting on the proposed rule. No public meeting was 
requested, and none was held. The comment period on that proposed rule 
ended July 19, 2004, but the comment period has been reopened because 
we are seeking comments on this SNPRM.

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. Accordingly, the President has continued the national 
emergencies he declared following the attacks (67 FR 58317, September 
13, 2002)(continuing national emergency with respect to terrorist 
attacks); (68 FR 55189, September 22, 2003)(continuing national 
emergency with respect to persons who commit, threaten to commit, or 
support acts of terrorism). Pursuant to the Magnuson Act, 50 U.S.C. 
191, et seq., the President also has found that the security of the 
United States is and continues to be endangered by the September 11, 
2001 attacks (E.O. 13272, 67 FR 56215, September 3, 2002). National 
security and intelligence officials warn that future terrorist attacks 
are likely.
    In response to this threat, on April 25, 2003, the Coast Guard 
established permanent security zones in designated waters surrounding 
the Hawaiian Islands (68 FR 20344, April 25, 2003). These security 
zones have been in operation for more than 2 years. We have conducted 
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 proposing to 
continue most of the current security zones, but to reduce the size and 
scope of some of the zones to afford acceptable protection to critical 
assets and maritime infrastructure while minimizing the disruption to 
maritime commerce and the inconvenience to small entities.
    This proposed rule would create permanently-existing security zones 
in the waters surrounding the islands of Oahu, Maui, Kauai, and Hawaii. 
Specifically, 13 permanent security zones would affect the following 
locations and facilities: (1) Honolulu Harbor, Oahu; (2) Honolulu 
Harbor General Anchorages B, C, and D, Oahu; (3) Kalihi Channel and 
Keehi Lagoon, Oahu; (4) Honolulu International Airport, North Section, 
Oahu; (5) Honolulu International Airport, South Section, Oahu; (6) 
Barbers Point Offshore Moorings, Oahu; (7) Barbers Point Harbor, Oahu; 
(8) Kahului Harbor, Maui; (9) Lahaina, Maui; (10) Hilo Harbor, Hawaii; 
(11) Kailua-Kona Harbor, Hawaii; (12) Nawiliwili Harbor, Lihue, Kauai; 
and (13) Port Allen, Kauai. When activated and enforced by the Captain 
of the Port or his or her representative, persons and vessels must not 
enter these security zones without the express permission of the 
Captain of the Port.

[[Page 33048]]

Discussion of Comments and Changes

    In response to our initial proposed rule published on May 20, 2004, 
the Coast Guard received five letters. Two letters from the State of 
Hawaii are in favor of the rulemaking and contained no objections. One 
letter from a maritime association is also in favor with no objections. 
These three letters recognize the need for the security zones and 
reiterate the Coast Guard's reasons for proposing them, raising no 
additional issues. The remaining two letters raise issues that are 
discussed below.
    A letter from a Hawaii-based oil company is in favor of the 
proposed changes to the security zones, but suggests that the Coast 
Guard include a provision allowing such companies to submit an advance 
transportation schedule to the Captain of the Port that would permit 
fuel barges to conduct transit and fuel-transfer operations in port 
within a large cruise ship (LCS) security zone under normal 
circumstances. The letter also states that there should be more 
explicit language assuring minimal interruption of businesses that 
conduct routine operations in the commercial harbors when the Maritime 
Security (MARSEC) Level is not elevated.
    Coast Guard Response: For these security zones to be effective in 
safeguarding ports, facilities, and vessels from acts of terrorism and 
sabotage, the Captain of the Port must have access to accurate and 
timely information regarding current vessel traffic in any designated 
security zone. Paragraph 165.1407(c)(2) in the proposed rule below 
specifically authorizes the public to employ either oral or written 
means to request permission to enter and operate within a designated 
security zone. This proposed rule does not preclude the submission of 
an accurate operating schedule as a means of obtaining permission to 
enter the security zones created by this rule. Any party desiring to 
submit a schedule in writing to the Captain of the Port for approval 
may call the Sector Honolulu Command Center at (808) 842-2600. Approval 
of such requests would be at the discretion of the Captain of the Port.
    The final letter commenting on the proposed changes to existing 
security zones is from a maritime association and raises three separate 
issues:
    Issue 1: The letter comments that, because the port facilities in 
Hilo, Kahului, and Nawiliwili Harbors are essentially within 100 yards 
of each other, the security zone around a large cruise ship moored at 
one of those facilities would preclude the simultaneous use of that 
harbor by any other vessel, especially the tugs and barges that 
frequently transit the area. The comment emphasizes that tug and barge 
operations are the main ``life line'' of the outlying islands, and that 
LCS traffic is expected to increase, with no increase in facilities, so 
the security zones around these ships will soon have an even greater 
negative impact on such operations.
    Coast Guard Response: The proposed security zones would not 
preclude simultaneous use of a harbor when an LCS is moored at one of 
the facilities. We acknowledge that the proposed security zones around 
large cruise ships occasionally may cause inconvenience to other 
vessels and operators within the immediate area because they would have 
to get permission before entering those zones. We do not agree, 
however, that this inconvenience is unreasonable considering the 
benefits provided by the security zones.
    With their high profile and passenger-carrying capacity, large 
cruise ships are attractive targets for acts of sabotage and terrorism, 
particularly when they are stationary at a pier or mooring. 
Nevertheless, in response to this comment, we have considered reducing 
the size of the zones around stationary LCSs, but we determined that an 
effective security zone must be large enough to allow security 
personnel to identify and respond to potential threats. Moreover, any 
person affected by the security zone around a large cruise ship may 
request permission to enter and transit the zone by contacting the 
Sector Honolulu Command Center via VHF channel 16 (156.8 Mhz) or phone: 
(808) 842-2600. Operators who frequently operate in the vicinity of a 
security zone would have the option of submitting a written schedule 
for advance approval to minimize any potential disruption.
    Issue 2: The letter comments that the language in the NPRM about 
security zones around large cruise ships and designated enforcement 
zones is confusing, as is much of the other terminology, and certain 
paragraphs of the proposed rule should be reworded.
    Coast Guard Response: We agree and have extensively revised both 
the wording and organization of our proposed rule. We separated the 
zones by island and gave each of the four islands a separate section in 
the CFR. This change allows us to focus the proposed regulation 
paragraphs on LCS zones for the islands of Maui, Kauai, and Hawaii, 
because the LCS zones are proposed for those islands only; none are 
proposed for Oahu. This change also allows us to focus the regulation 
and notice paragraphs in the Oahu CFR section on the three Oahu zones 
there that are enforced only upon a rise in the MARSEC level or when 
the Captain of the Port has determined there is a heightened risk of a 
transportation security incident.
    As for wording changes, we inserted the word ``activated'' several 
times to help discern when certain security zones would be enforced. It 
is important to note, however, that these proposed security zones would 
be permanently established, and that the word ``activated'' is only 
meant to distinguish whether the permanently-established zone is 
subject to enforcement. We made numerous similarly non-substantive 
wording changes for this supplemental NPRM that do not change the 
meaning or intent of our initial proposed rule but hopefully improve 
the clarity of the proposed rule in response to this letter.
    Issue 3: The letter suggests removing the Honolulu International 
Airport Security Zone from Category 1 (zones subject to enforcement at 
all times) and placing it in Category 2 (zones subject to enforcement 
only during heightened threat conditions, as provided in this proposed 
rule). This area is planned for future ocean recreation expansion and 
it should not be continuously and permanently removed from public use. 
Alignment with the adjacent Keehi Lagoon Security Zone (Category 2) 
would preserve public use of the entire Keehi Lagoon area for future 
recreational and commercial improvements.
    Coast Guard Response: The security zone nearest Honolulu 
International Airport in particular must remain a Category 1 zone 
because all major airports are possible terrorist targets. The Category 
1 designation of this area is specifically meant to protect the 
Honolulu International Airport, as well as all the aircraft and people 
working or transiting the facility. Designating this area a Category 2 
zone would compromise security by removing the continuous waterside 
buffer around the airport afforded by the Category 1 designation. Those 
wishing to enter the zone, however, would only need to seek and obtain 
prior approval. The Captain of the Port would not manage security zones 
solely based on possible future scenarios but rather adjust as 
appropriate to the current threat situation so security can be 
maintained while minimizing disruption to commercial and recreational 
traffic.
    The comments received affected this proposal to the extent 
described above, but we have made additional

[[Page 33049]]

substantive changes to the NPRM published on May 20, 2004 (69 FR 29114) 
that necessitated this supplemental notice. We are now proposing an 
additional security zone, described in this proposed rule, Sec.  
165.1407(a)(4)(ii), as Honolulu International Airport, South Section. 
This new security zone, encompassing Honolulu Harbor anchorages B, C, 
and D, would be a Category 2 zone, subject to enforcement only in times 
of raised MARSEC levels or other threats. We have determined there is a 
need to propose this zone to create an additional protective buffer 
around the airport when necessary.
    The separately-designated Honolulu Harbor Anchorages B, C, and D 
security zone would remain the same as in our initial proposed rule: 
Limited to the waters extending 100 yards in all directions from 
vessels over 300 gross tons anchored there. The 100-yard security zone 
around those vessels would still be activated and enforced at all times 
regardless of whether an emerging threat has necessitated the 
additional activation and enforcement of the encompassing Honolulu 
International Airport, South Section security zone proposed for 
increased airport protection.
    The name of the Honolulu International Airport security zone in our 
initial proposed rule is changed in this proposal to Honolulu 
International Airport, North Section, Sec.  165.1407(a)(4)(i), to 
distinguish it from the Honolulu International Airport, South Section 
proposal. The Honolulu International Airport, North Section security 
zone would remain a Category 1 zone, enforced and activated at all 
times, extending only about 800 yards offshore from the airport, the 
minimal distance required for low-level security conditions.
    We also propose to eliminate an unnecessary notification 
requirement that was in our initial proposed rule. We have determined 
that the best public notification of the presence of an LCS security 
zone is the presence of the LCS itself, which would be obvious to 
operators well before they reach the 100-yard zone. Therefore, while we 
may use other notification methods, like a broadcast notice to 
mariners, the requirement to make such other notification is not in 
this proposal.
    Additionally, in the paragraphs of our proposed rule that address 
permission to transit a security zone, we have now included language 
that eliminates the need for seaplane operators to get Coast Guard 
permission while they are in compliance with established Federal 
Aviation Administration regulations regarding flight-plan approval. We 
have determined that this change is necessary to limit the 
communications that pilots would have to make when transiting the 
zones.
    We have also revised our penalty paragraphs so that they are 
limited to referencing the statutes (33 U.S.C. 1232 and 50 U.S.C. 192) 
that provide violation penalties. This change would eliminate the need 
to amend those paragraphs every time the penalty statutes are amended.
    Other changes from our initial proposed rule include the addition 
of the words ``or hundredths'' in Sec.  165.1407(a) to more accurately 
describe how security-zone coordinates are expressed, and an update of 
Sector Honolulu's contact information to reflect recent changes.

Discussion of Proposed Rule

    Due to national security interests, these proposed security zones 
are necessary for the protection of the public, port facilities, and 
waterways of the Hawaiian Islands. The security zones would be located 
in the waters adjacent to the islands of Oahu, Maui, Hawaii, and Kauai, 
Hawaii. These zones would vary in size and shape depending on the 
location and the protective scope of the zone. All zones, however, 
would extend from the surface of the water to the ocean floor.
    The security zones would consist of two categories: (1) Those 
security zones that are subject to enforcement at all times, and (2) 
those security zones that are subject to enforcement only upon the 
occurrence of an event specified in this rule. Whenever a security zone 
is subject to enforcement, persons and vessels would be prohibited from 
entering them without the express permission of the Captain of the 
Port.
    The first category, designated waters where security zones are 
subject to enforcement at all times, would include security zones in 
Honolulu Harbor, 33 CFR 165.1407(a)(1); Honolulu International Airport, 
North Section, Sec.  165.1407(a)(4)(i); and the Barbers Point Offshore 
Moorings, Sec.  165.1407(a)(5) (Tesoro Single Point Mooring and the 
Chevron Conventional Buoy Mooring).
    The second category, designated waters where the security zones are 
subject to enforcement only upon the occurrence of a specific event, 
would consist of the security zones located at Kalihi Channel and Keehi 
Lagoon, Oahu, Sec.  165.1407(a)(3); Honolulu International Airport, 
South Section, Sec.  165.1407(a)(4)(ii); Barbers Point Harbor, Oahu, 
Sec.  165.1407(a)(6); and the large cruise ship (LCS) security zones.
    An LCS security zone would be enforced around the LCS itself when 
it enters one of the geographic locations (a harbor, for example) 
described in the proposed rule. Each zone would encompass the waters 
extending 100 yards in all directions from each LCS. These zones would 
be created in the following locations: Kahului Harbor, Maui, Sec.  
165.1408(a)(1); Lahaina, Maui, Sec.  165.1408(a)(2); Hilo Harbor, 
Hawaii, Sec.  165.1409(a)(1); Kailua-Kona, Hawaii, Sec.  
165.1409(a)(2); Nawiliwili Harbor, Lihue, Kauai, Sec.  165.1410(a)(1); 
and Port Allen, Kauai, Sec.  165.1410(a)(2).
    Security zones in the Honolulu Harbor Anchorages B, C, and D, Sec.  
165.1407 (a)(2), would be enforced around any vessel in excess of 300 
gross tons anchored within one of those designated anchorage areas. The 
security zones would extend 100 yards in all directions from any such 
vessel.
    The security zones at Kahului Harbor, Maui; Nawiliwili Harbor, 
Lihue, Kauai; Port Allen, Kauai; and Hilo Harbor, Hawaii, would be 
subject to enforcement upon the occurrence of a specific event, namely, 
the arrival of an LCS, as defined in this proposed rule, at the harbor. 
The security zone would extend 100 yards in all directions from the LCS 
while it is transiting the harbor. When the LCS is anchored, position-
keeping, or moored, the security zone would remain fixed, extending 100 
yards in all directions from the vessel.
    The security zones at Lahaina Harbor, Maui and Kailua-Kona Harbor, 
Hawaii, would be subject to enforcement when an LCS comes within 3 
nautical miles of the harbor and would extend out 100 yards in all 
directions from the vessel. The 100-yard security zone around each LCS 
would be activated and enforced regardless of whether the cruise ship 
is underway, moored, position-keeping, or anchored, and would continue 
in effect until such time as the vessel departs the harbor and the 3-
mile enforcement area.
    The security zones at Kalihi Channel and Keehi Lagoon, Oahu and 
Barbers Point Harbor, Oahu, would be subject to enforcement only upon 
the occurrence of one of the following events:
    1. Whenever the Maritime Security (MARSEC) level, as defined in 33 
CFR part 101, is raised to 2 or higher; or,
    2. Whenever the Captain of the Port, after considering all 
available facts, determines that there is a heightened risk of a 
transportation security incident or other serious maritime incident, 
including but not limited to any incident that may cause loss of life, 
environmental damage, transportation system disruption, or economic 
disruption in a particular area.

[[Page 33050]]

    For the security zones at Kalihi Channel and Keehi Lagoon, Oahu and 
Barbers Point Harbor, Oahu, the Captain of the Port would cause notice 
of either of these two enforcement-triggering events to be published in 
the Federal Register. The Captain of the Port would use actual notice, 
local notice to mariners, and broadcast notice to mariners to advise 
the public when these security zones are subject to enforcement. By the 
same means, the Captain of the Port would also cause notice of 
suspension of enforcement of these security zones to be made.
    The Captain of the Port would also use local notice to mariners and 
broadcast notice to mariners to announce the enforcement of security 
zones around vessels more than 300 gross tons anchored in Honolulu 
Harbor Anchorages B, C or D. Notice of enforcement of an LCS security 
zone adjacent to the islands of Maui, Kauai or Hawaii would be provided 
by the presence of the LCS itself.
    Entry into the security zones in this proposed rule while they are 
subject to enforcement would be prohibited unless authorized by the 
Coast Guard Captain of the Port, Honolulu, Hawaii. The Captain of the 
Port or his or her representatives would enforce these security zones. 
The Captain of the Port may be assisted by other federal or state 
agencies to the extent permitted by law.
    For all seaplane traffic entering or transiting the security zones, 
a seaplane's compliance with all Federal Aviation Administration (FAA) 
regulations regarding flight-plan approval would be deemed adequate 
permission to transit the waterway security zones described in this 
section. No communication between the aircraft and the Coast Guard 
would be necessary upon compliance with FAA regulations regarding the 
flight plan.
    These security zones would be established pursuant to the authority 
of the Magnuson Act, 50 U.S.C. 191, et seq., and regulations 
promulgated by the President under Title 33, Part 6 of the Code of 
Federal Regulations. Vessels or persons violating this section would be 
subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    In addition to revising security zones, this proposed rule also 
would remove an existing security zone located at General Anchorage A, 
current 33 CFR 165.1407(a)(1), in the vicinity of Honolulu Harbor and 
entrance channel.

Regulatory Evaluation

    This proposed 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.
    The Coast Guard expects the economic impact of this proposed rule 
to be so minimal that a full Regulatory Evaluation under the regulatory 
policies and procedures of DHS is unnecessary. This expectation is 
based on the short duration of most of the zones and 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 proposed 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 proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. While we are aware that many 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 proposed security 
zones.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Lieutenant (Junior Grade) 
Quincey Adams, U.S. Coast Guard Sector Honolulu, at (808) 842-2600. 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 proposed 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 proposed 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 proposed rule will not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed 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 proposed 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

[[Page 33051]]

power and responsibilities between the Federal Government and Indian 
tribes.

Energy Effects

    We have analyzed this proposed 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.

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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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, under figure 2-1, paragraph (34)(g) of the 
Commandant Instruction M16475.1D, this proposed rule is categorically 
excluded from further environmental documentation.

List of Subjects 33 CFR Part 165

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

    For the reasons set out in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064;
    Department of Homeland Security Delegation No. 0170.1.

    2. Revise Sec.  165.1407 to read as follows:


Sec.  165.1407  Security Zones; Oahu, HI.

    (a) Location. The following areas, from the surface of the water to 
the ocean floor, are security zones that are activated and enforced 
subject to the provisions in paragraph (c) of this section. All 
coordinates below are expressed in degrees, minutes, and tenths or 
hundredths of minutes.
    (1) Honolulu Harbor. All waters of Honolulu Harbor and Honolulu 
entrance channel commencing at a line between entrance channel buoys 
no. 1 and no. 2, to a line between the fixed day beacons no. 14 and no. 
15 west of Sand Island Bridge.
    (2) Honolulu Harbor Anchorages B, C, and D. All waters extending 
100 yards in all directions from each vessel in excess of 300 gross 
tons anchored in Honolulu Harbor Anchorage B, C, or D, as defined in 33 
CFR 110.235(a).
    (3) Kalihi Channel and Keehi Lagoon, Oahu. All waters of Kalihi 
Channel and Keehi Lagoon beginning at Kalihi Channel entrance buoy no. 
1 and continuing along the general trend of Kalihi Channel to day 
beacon no. 13, thence continuing on a bearing of 332.5[deg]T to shore, 
thence east and south along the general trend of the shoreline to day 
beacon no. 15, thence southeast to day beacon no. 14, thence southeast 
along the general trend of the shoreline of Sand Island, to the 
southwest tip of Sand Island at 21[deg]18.0' N/157[deg]53.05' W, thence 
southwest on a bearing of 233[deg]T to Kalihi Channel entrance buoy no. 
1.
    (4) Honolulu International Airport. (i) Honolulu International 
Airport, North Section. All waters surrounding Honolulu International 
Airport from 21[deg]18.25' N/157[deg]55.58' W, thence south to 
21[deg]18.0' N/157[deg] 55.58' W, thence east to the western edge of 
Kalihi Channel, thence north along the western edge of the channel to 
day beacon no. 13, thence northwest at a bearing of 332.5[deg]T to 
shore.
    (ii) Honolulu International Airport, South Section. All waters near 
Honolulu International Airport from 21[deg]18.0' N/157[deg]55.58' W, 
thence south to 21[deg]16.5' N/157[deg]55.58' W, thence east to 
21[deg]16.5' N/157[deg]54.0' W (the extension of the western edge of 
Kalihi Channel), thence north along the western edge of the channel to 
21[deg]18.0' N/157[deg]53.92' W (Kalihi Channel buoy ``5''), thence 
west to 21[deg]18.0' N/157[deg]55.58' W.
    (5) Barbers Point Offshore Moorings. All waters around the Tesoro 
Single Point and the Chevron Conventional Buoy Moorings beginning at 
21[deg]16.43' N/158[deg]06.03' W, thence northeast to 21[deg]17.35' N/
158[deg]3.95' W, thence southeast to 21[deg]16.47' N/158[deg]03.5' W, 
thence southwest to 21[deg]15.53' N/158[deg]05.56' W, thence north to 
the beginning point.
    (6) 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]07.26' W.
    (b) Definitions. As used in this section, MARSEC Level 2 or 
Maritime Security Level 2 means, as defined in 33 CFR 101.105, the 
level for which appropriate additional protective security measures 
shall be maintained for a period of time as a result of heightened risk 
of a transportation security incident.
    (c) Regulations. (1) Under 33 CFR 165.33, entry into the security 
zones described in this section is prohibited unless authorized by the 
Coast Guard Captain of the Port, Honolulu or his or her designated 
representatives.
    (2) Persons desiring to transit the areas of the security zones may 
contact the Captain of the Port at Command Center telephone number 
(808) 842-2600 or on VHF channel 16 (156.8 Mhz) to seek permission to 
transit the area. Written requests may be submitted to the Captain of 
Port, U.S. Coast Guard Sector Honolulu, Sand Island Access Road, 
Honolulu, Hawaii 96819, or faxed to (808) 842-2622. If permission is 
granted, all persons and vessels must comply with the instructions of 
the Captain of the Port or his or her designated representatives. For 
all seaplane traffic entering or transiting the security zones, a 
seaplane's compliance with all Federal Aviation Administration 
regulations regarding flight-plan approval is deemed adequate 
permission to transit the waterway security zones described in this 
section.
    (d) Enforcement and suspension of enforcement of certain security 
zones. (1) The security zones in paragraphs (a)(3) (Kalihi Channel and 
Keehi Lagoon, Oahu), (a)(4)(ii) (Honolulu International Airport, South 
Section), and (a)(6) (Barbers Point Harbor, Oahu)

[[Page 33052]]

of this section will be enforced only upon the occurrence of one of the 
following events--
    (i) Whenever the Maritime Security (MARSEC) level, as defined in 33 
CFR part 101, is raised to 2 or higher; or
    (ii) Whenever the Captain of the Port, after considering all 
available facts, determines that there is a heightened risk of a 
transportation security incident or other serious maritime incident, 
including but not limited to any incident that may cause a significant 
loss of life, environmental damage, transportation system disruption, 
or economic disruption in a particular area.
    (2) A notice will be published in the Federal Register reporting 
when events in paragraph (d)(1)(i) or (d)(1)(ii) of this section have 
occurred.
    (3) The Captain of the Port of Honolulu will cause notice of the 
enforcement of the security zones listed in paragraph (d)(1) of this 
section and notice of suspension of enforcement to be made by 
appropriate means to affect the widest publicity, including the use of 
broadcast notice to mariners and publication in the local notice to 
mariners.
    (e) Informational notices. The Captain of the Port will cause 
notice of the presence of security zones created by paragraph (a)(2) of 
this section, Honolulu Harbor Anchorages B, C, and D, to be made by 
appropriate means to affect the widest publicity, including the use of 
broadcast notice to mariners and publication in the local notice to 
mariners.
    (f) Enforcement. Any Coast Guard commissioned, warrant, or petty 
officer, and any other Captain of the Port representative permitted by 
law, may enforce the rules in this section.
    (g) Waiver. The Captain of the Port, Honolulu may waive any of the 
requirements of this section for any vessel or class of vessels upon 
his or her determination that application of this section is 
unnecessary or impractical for the purpose of port and maritime 
security.
    (h) Penalties. Vessels or persons violating this section are 
subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    3. Add Sec.  165.1408 to read as follows:


Sec.  165.1408  Security Zones; Maui, HI.

    (a) Location. The following areas, from the surface of the water to 
the ocean floor, are security zones that are activated and enforced 
subject to the provisions in paragraph (c) of this section:
    (1) Kahului Harbor, Maui. All waters extending 100 yards in all 
directions from each large cruise ship 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 LCS is in transit and becomes a fixed zone when the LCS is 
anchored, position-keeping, or moored.
    (2) Lahaina, Maui. All waters extending 100 yards in all directions 
from each large cruise ship in Lahaina, Maui, whenever the LCS is 
within 3 nautical miles of Lahaina Light (LLNR 28460). The security 
zone around each LCS is activated and enforced whether the cruise ship 
is underway, moored, position-keeping, or anchored, and will continue 
in effect until such time as the LCS departs Lahaina and the 3-mile 
enforcement area.
    (b) Definitions. As used in this section, Large cruise ship or LCS 
means a passenger vessel over 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 an LCS 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 cruise ship 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 LCS security zone in order to ensure navigational 
safety.
    (3) Persons desiring to transit the areas of the security zones in 
this section may contact the Captain of the Port at Command Center 
telephone number (808) 842-2600 or on VHF channel 16 (156.8 Mhz) to 
seek permission to transit the area. Written requests may be submitted 
to the Captain of Port, U.S. Coast Guard Sector Honolulu, Sand Island 
Access Road, Honolulu, Hawaii 96819, or faxed to (808) 842-2622. If 
permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his or her designated 
representatives. For all seaplane traffic entering or transiting the 
security zones, compliance with all Federal Aviation Administration 
regulations regarding flight-plan approval is deemed adequate 
permission to transit the waterway security zones described in this 
section.
    (d) Enforcement. Any Coast Guard commissioned, warrant, or petty 
officer, and any other Captain of the Port representative permitted by 
law, may enforce the rules in this section.
    (e) Waiver. The Captain of the Port, Honolulu may waive any of the 
requirements of this section for any vessel or class of vessels upon 
his or her determination that application of this section is 
unnecessary or impractical for the purpose of port and maritime 
security.
    (f) Penalties. Vessels or persons violating this section are 
subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    4. Add Sec.  165.1409 to read as follows:


Sec.  165.1409  Security Zones; Hawaii, HI.

    (a) Location. The following areas, from the surface of the water to 
the ocean floor, are security zones that are activated and enforced 
subject to the provisions in paragraph (c) of this section:
    (1) Hilo Harbor, Hawaii. All waters extending 100 yards in all 
directions from each large cruise ship 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 LCS is in 
transit and becomes a fixed zone when the LCS is anchored, position-
keeping, or moored.
    (2) Kailua-Kona, Hawaii. All waters extending 100 yards in all 
directions from each large cruise ship in Kailua-Kona, Hawaii, whenever 
the LCS is within 3 nautical miles of Kukailimoku Point. The 100-yard 
security zone around each LCS is activated and enforced whether the LCS 
is underway, moored, position-keeping, or anchored and will continue in 
effect until such time as the LCS departs Kailua-Kona and the 3-mile 
enforcement area.
    (b) Definitions. As used in this section, Large cruise ship or LCS 
means a passenger vessel over 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 an LCS 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

[[Page 33053]]

within 100 yards of a large cruise ship 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 LCS security zone in order to ensure navigational 
safety.
    (3) Persons desiring to transit the areas of the security zones in 
this section may contact the Captain of the Port at Command Center 
telephone number (808) 842-2600 or on VHF channel 16 (156.8 Mhz) to 
seek permission to transit the area. Written requests may be submitted 
to the Captain of Port, U.S. Coast Guard Sector Honolulu, Sand Island 
Access Road, Honolulu, Hawaii 96819, or faxed to (808) 842-2622. If 
permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his or her designated 
representatives. For all seaplane traffic entering or transiting the 
security zones, compliance with all Federal Aviation Administration 
regulations regarding flight-plan approval is deemed adequate 
permission to transit the waterway security zones described in this 
section.
    (d) Enforcement. Any Coast Guard commissioned, warrant, or petty 
officer, and any other Captain of the Port representative permitted by 
law, may enforce the rules in this section.
    (e) Waiver. The Captain of the Port, Honolulu may waive any of the 
requirements of this section for any vessel or class of vessels upon 
his or her determination that application of this section is 
unnecessary or impractical for the purpose of port and maritime 
security.
    (f) Penalties. Vessels or persons violating this section are 
subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.
    5. Add Sec.  165.1410 to read as follows:


Sec.  165.1410  Security Zones; Kauai, HI.

    (a) Location. The following areas, from the surface of the water to 
the ocean floor, are security zones that are activated and enforced 
subject to the provisions in paragraph (c) of this section:
    (1) Nawiliwili Harbor, Lihue, Kauai. All waters extending 100 yards 
in all directions from each large cruise ship 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 LCS is in transit and becomes a fixed zone when the LCS 
is anchored, position-keeping, or moored.
    (2) Port Allen, Kauai. All waters extending 100 yards in all 
directions from each large cruise ship 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 LCS is in 
transit and becomes a fixed zone when the LCS is anchored, position-
keeping, or moored.
    (b) Definitions. As used in this section, Large cruise ship or LCS 
means a passenger vessel over 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 an LCS 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 cruise ship 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 LCS security zone in order to ensure navigational 
safety.
    (3) Persons desiring to transit the areas of the security zones may 
contact the Captain of the Port at Command Center telephone number 
(808) 842-2600 or on VHF channel 16 (156.8 Mhz) to seek permission to 
transit the area. Written requests may be submitted to the Captain of 
Port, U.S. Coast Guard Sector Honolulu, Sand Island Access Road, 
Honolulu, Hawaii 96819, or faxed to (808) 842-2622. If permission is 
granted, all persons and vessels must comply with the instructions of 
the Captain of the Port or his or her designated representatives. For 
all seaplane traffic entering or transiting the security zones, 
compliance with all Federal Aviation Administration regulations 
regarding flight-plan approval is deemed adequate permission to transit 
the waterway security zones described in this section.
    (d) Enforcement. Any Coast Guard commissioned, warrant, or petty 
officer, and any other Captain of the Port representative permitted by 
law, may enforce the rules in this section.
    (e) Waiver. The Captain of the Port, Honolulu may waive any of the 
requirements of this section for any vessel or class of vessels upon 
his or her determination that application of this section is 
unnecessary or impractical for the purpose of port and maritime 
security.
    (f) Penalties. Vessels or persons violating this section are 
subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: May 23, 2005.
C.D. Wurster,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard 
District.
[FR Doc. 05-11168 Filed 6-6-05; 8:45 am]
BILLING CODE 4910-15-P