[Federal Register Volume 72, Number 153 (Thursday, August 9, 2007)]
[Rules and Regulations]
[Pages 44775-44778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15508]


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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.

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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]
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