[Federal Register Volume 72, Number 191 (Wednesday, October 3, 2007)]
[Proposed Rules]
[Pages 56308-56312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4893]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2007-29354]
RIN 1625-AA87


Security Zone; Nawiliwili Harbor, Kauai, HI

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to create a security zone in the 
waters of Nawiliwili Harbor, Kaui, and on the land of the jetty south 
of Nawiliwili

[[Page 56309]]

Park, including the jetty access road commonly known as Jetty Road. 
This zone is intended to enable the Coast Guard and its law enforcement 
partners to better protect people, vessels, and facilities in and 
around Nawiliwili Harbor in the face of non-compliant obstructers who 
have impeded, and threaten to continue impeding, the safe passage of 
the Hawaii Superferry in Nawiliwili Harbor. This rule would complement, 
but not replace or supersede, existing regulations that establish a 
moving 100-yard security zone around large passenger vessels like the 
Hawaii Superferry.

DATES: Comments and related material must reach the Coast Guard on or 
before October 24, 2007.

ADDRESSES: You may submit comments and related material, identified by 
Coast Guard docket number USCG-2007-29354, to the Docket Management 
Facility at the U.S. Department of Transportation. To avoid 
duplication, please use only one of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) Quincy 
Adams, U.S. Coast Guard Sector Honolulu at (808) 522-8264.

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 the docket 
number for this rulemaking (USCG-2007-29354), indicate the specific 
section of this document to which each comment applies, and give the 
reason for each comment. We recommend that you include your name, 
mailing address, and an e-mail address or other contact information in 
the body of your document to ensure that you can be identified as the 
submitter. This also allows us to contact you in the event further 
information is needed or if there are questions. For example, if we 
cannot read your submission due to technical difficulties and you 
cannot be contacted, your submission may not be considered.
    All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have 
provided. We have an agreement with the Department of Transportation 
(DOT) to use the Docket Management Facility. You may review the 
Department of Transportation's Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477), or you may visit 
http://DocketsInfo.dot.gov.
    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 they 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. If, as we anticipate, we make this 
temporary final rule effective less than 30 days after publication in 
the Federal Register, we will explain in that publication, as required 
by 5 U.S.C. 553(d)(3), our good cause for doing so.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to Lieutenant (Junior Grade) Quincy Adams at U.S. Coast 
Guard Sector Honolulu, Sand Island Parkway, Honolulu, Hawaii 96819-
4398, explaining why one would be beneficial. If we determine that one 
would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Background and Purpose

    The Hawaii Superferry (HSF) is a 349-foot large passenger vessel 
documented by the U.S. Coast Guard with an endorsement for coastwise 
trade, and certificated for large passenger vessel service in the 
United States. The HSF, operating Hawaii's first inter-island vehicle-
passenger service, is intended to provide service among the islands of 
Oahu, Maui and Kauai.
    The HSF enters Kauai at Nawiliwili Harbor, a federally maintained 
waterway. During the HSF's inaugural commercial trip to Kauai on August 
26, 2007, nearly 40 swimmers and obstructers on kayaks and surfboards 
blocked Nawiliwili Harbor's navigable channel entrance to prevent the 
lawful entry of the HSF into Kauai. Many of the obstructers entered the 
water from the jetty that is south of Nawiliwili Park, which is 
adjacent to the Matson shipping facility in Nawiliwili Harbor. Other 
demonstrators ashore on the jetty threw rocks and bottles at Coast 
Guard personnel who were conveying detained obstructers to shore. Coast 
Guard Station Kauai resources were eventually able to clear the channel 
for the HSF's arrival while also ensuring the personal safety of the 
waterborne obstructers. The HSF was able to dock on August 26, 2007.
    On the following day, August 27, 2007, approximately 70 persons 
entered the water again to block the channel entrance, thereby 
preventing the HSF from docking in Nawiliwili Harbor. Due to the 
difficulty of maneuvering in the small area of Nawiliwili, and in the 
interest of ensuring the safety of the protesters, the HSF's master 
chose not to enter the channel until the Coast Guard cleared the 
channel of obstructers. However, because the vessel remained outside 
the harbor, and because the obstructers did not approach within 100 
yards of the vessel, the existing security zone for large passenger 
vessels (33 CFR 165.1410) did not provide the Coast Guard with the 
authority to control obstructer entry into Nawiliwili Harbor or clear 
the channel of obstructers before the HSF commenced its transit into 
the harbor.
    After waiting 3 hours, and with nearly 20 obstructers still in the 
water actively blocking the HSF, the HSF was forced to return to Oahu 
without mooring in Kauai. This decision was made by the Superferry's 
master, in consultation with company officials.
    As a result of the events of August 26 through 27, 2007, the HSF 
voluntarily suspended operations between Oahu and Kauai on August 28, 
2007. HSF's goal, however, was and is to resume operations between Oahu 
and Kauai as soon as possible. As of September 26, 2007, there are no, 
nor have there been, state court injunctions or other legal 
prohibitions on the HSF resuming operations between Oahu and Kauai.
    Responding to these unexpected events, the Coast Guard's Fourteenth 
District Commander established a temporary fixed security zone in 
Nawiliwili Harbor. That emergency rulemaking established a temporary 
security zone in order to prevent persons and vessels from endangering 
themselves and HSF passengers and crew by attempting to impede the 
vessel's passage after it commences the difficult transit into the 
harbor. That rule, which became effective September 1, 2007, was issued 
by the Coast Guard's Fourteenth District Commander on August 31, 2007 
(72 FR 50877, September 5, 2007).
    Several events have occurred since August 31, 2007, that have 
precluded

[[Page 56310]]

the HSF from resuming commercial service between Oahu and Kauai, 
notwithstanding the existence of an effective temporary rule that 
permits activation of a fixed security zone to clear Nawiliwili Harbor 
for its arrivals and departures. The HSF's parent company is involved 
in litigation in Maui that has resulted in a temporary restraining 
order prohibiting HSF commercial service between Oahu and Maui. That 
litigation is still unresolved. Also, several groups have initiated a 
lawsuit in Kauai to enjoin the Superferry from operating between Oahu 
and Kauai; that lawsuit is still ongoing as well. The HSF was scheduled 
to resume commercial service between Oahu and Kauai on September 26, 
2006, but voluntarily decided not to resume service on that date due to 
considerations of safety and the public interest. As before, however, 
the HSF could resume operations to Kauai at any time, since there are 
no federal or state legal impediments to such operations.
    The purpose of this proposed temporary rule is several-fold. First, 
by designating significant portions of the waters of Nawiliwili Harbor 
as a security zone, activated for enforcement 60 minutes before the 
HSF's arrival into the zone through 10 minutes after its departure from 
the zone, the temporary rule would provide the Coast Guard and its law 
enforcement partners the authority to prevent persons and vessels from 
endangering themselves and the HSF passengers and crew by attempting to 
impede the vessel's passage after it commences the difficult transit 
into the harbor. Extending the security zone to Nawiliwili Jetty and 
its access road would provide law enforcement personnel with the 
authority necessary to control access into the water so the HSF may 
enter and depart the harbor safely and unimpeded by obstructers. 
Furthermore, closing off the jetty and its access road would prevent 
violent protesters from continuing to impede law enforcement operations 
and endanger law enforcement personnel by throwing rocks, bottles, and 
other dangerous objects. Finally, the security zone would make land 
adjacent to the harbor available for law enforcement purposes, and in 
fact would be used by the Patrol Commander (the person in overall 
command of all waterborne law enforcement assets present in Nawiliwili 
Harbor enforcing the security zone) as the command post during any 
Superferry protests.
    This NPRM proposes a rule that would be the successor to the 
original temporary final rule that is set to expire on October 31, 
2007. There is continued uncertainty regarding when, if ever, the HSF 
might resume service into Nawiliwili Harbor. The resolve of obstructers 
to continue attempting to impede the Superferry's passage into and 
through Nawiliwili Harbor, should it indeed resume service there, has 
been vocally manifested. Therefore, the Coast Guard has determined 
there is a need to ensure that law enforcement personnel will still 
have a fixed security zone available to them beyond the expiration date 
of the original temporary final rule to facilitate the safe arrival of 
the HSF, should it again return to Nawiliwili Harbor. This is the 
reason for this proposed rulemaking.
    The proposed rule would be in effect from November 1, 2007, until 
December 31, 2007. It is reasonably anticipated that the need for a 
fixed security zone of this nature will no longer be needed on Kauai 
after December 31, 2007, though the Coast Guard may, if necessary, 
draft further rules as necessary and appropriate to ensure safe 
operation of the HSF in and around Nawiliwili Harbor.

Discussion of Proposed Rule

    This proposed rule would create a security zone in most of the 
waters of Nawiliwili Harbor, and on Nawiliwili Jetty in Nawiliwili 
Harbor. The security zone would be activated for enforcement 60 minutes 
before the Hawaii Superferry's arrival into the zone, and would remain 
activated for 10 minutes after the Hawaii Superferry's departure from 
the zone. The activation of the zone for enforcement would be announced 
by marine information broadcast and by a red flag, illuminated after 
sunset, displayed from Pier One and the Harbor Facility Entrance on 
Jetty Road. During its period of activation and enforcement, entry into 
the land and water areas of the security zone would be prohibited 
without the permission of the Captain of the Port, Honolulu, or his or 
her designated representative.
    In preparing this proposed temporary rulemaking, the Coast Guard 
made sure to consider the rights of lawful protestors. To that end, the 
Coast Guard excluded from the security zone two regions which create a 
sizeable area of water in which demonstrators may lawfully assemble and 
convey their message in a safe manner to their intended audience. These 
areas include the waters west of a line running from the southeastern-
most point of the breakwater of Nawiliwili Small Boat Harbor due south 
to the south shore of the harbor, and the waters from Kalapaki Beach 
south to a line extending from the western most point of Kukii Point 
due west to the Harbor Jetty. These areas of the harbor not included in 
the security zone are completely accessible to anyone who desires to 
enter the water, and are fully visible to observers ashore, at the HSF 
mooring facility, aboard the HSF when transiting the harbor, and from 
the air.
    The Coast Guard also took into account the lawful users of 
Nawiliwili Harbor in its creation of this rule. As previously noted, 
the rule will only be activated 1 hour before the HSF's arrival into 
port, and will be deactivated 10 minutes after the HSF departs the 
port. The harbor is fully available to all users during the period when 
the zone is not activated. Furthermore, the rule affords persons 
desirous of using the harbor, even during a period when the zone is 
activated, with the opportunity to request permission of the Captain of 
the Port to do so.

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.
    We expect the economic impact of this proposed 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 security zone created by this temporary rule, as well as the 
limited geographic area affected by the security zone.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. While we are aware that the affected area has 
small 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 the temporary rule, and to the fact that such

[[Page 56311]]

entities can request permission from the Captain of the Port to enter 
the security zone when it is activated.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

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) Quincy 
Adams, U.S. Coast Guard Sector Honolulu, (808) 522-8264. 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 would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this 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 would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 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 rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children. While some obstructers used small 
children in obstruction tactics, both on land and on shore, during the 
August 26 and 27 Superferry arrivals into Kauai, and while online 
forums and other sources indicate that organizers are actively 
recruiting adolescents and small children with the intent of putting 
them into harm's way as obstructers of the Superferry's passage should 
it ever again approach and enter Nawiliwili Harbor, any heightened harm 
faced by children as a result of these tactics has no relation to the 
creation of this rule. Instead, those heightened risks are entirely the 
product of persons who recruit and employ adolescents and children to 
put themselves at risk of death or serious physical injury by 
attempting to physically obstruct the passage of a large passenger 
vessel in a small harbor.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 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 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 made a preliminary determination that this action is not likely to 
have a significant effect on the human environment. Draft documentation 
supporting this preliminary determination is available in the docket 
where indicated under ADDRESSES. We seek any comments or information 
that may lead to the discovery of a significant environmental impact 
from this proposed rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed 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:


[[Page 56312]]


    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.

    2. Add a new temporary Sec.  165.T14-161 to read as follows:


Sec.  165.T14-161  Security Zone; Nawiliwili Harbor, Kauai, HI.

    (a) Location. The following land areas, and water areas from the 
surface of the water to the ocean floor, are a security zone that is 
activated as described in paragraph (c) of this section, and enforced 
subject to the provisions of paragraph (d) of this section: All waters 
of Nawiliwili Harbor, Kauai, shoreward of the Nawiliwili Harbor COLREGS 
DEMARCATION LINE (See 33 CFR 80.1450), excluding the waters west of a 
line running from the southeastern most point of the breakwater of 
Nawiliwili Small Boat Harbor due south to the south shore of the 
harbor, and excluding the waters from Kalapaki Beach south to a line 
extending from the western most point of Kukii Point due west to the 
Harbor Jetty. The land of the jetty south of Nawiliwili Park including 
the jetty access road, commonly known as Jetty Road, is included within 
the security zone.
    (b) Effective period. This section is effective from November 1, 
2007, through December 31, 2007. It will be activated for enforcement 
pursuant to paragraph (c) of this section.
    (c) Enforcement periods. The zone described in paragraph (a) of 
this section will be activated for enforcement 60 minutes before the 
Hawaii Superferry's arrival into the zone and remain activated for 10 
minutes after the Hawaii Superferry's departure from the zone. The 
activation of the zone for enforcement will be announced by marine 
information broadcast, and by a red flag, illuminated between sunset 
and sunrise, displayed from Pier One and the Harbor Facility Entrance 
on Jetty Road.
    (d) Regulations. (1) Under 33 CFR 165.33, entry by persons or 
vessels into the security zone created by this section and activated as 
described in paragraph (c) of this section is prohibited unless 
authorized by the Coast Guard Captain of the Port, Honolulu or his or 
her designated representatives. Operation of any type of vessel, 
including every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of 
transportation on water, within the security zone is prohibited. If a 
vessel is found to be operating within the security zone without 
permission of the Captain of the Port, Honolulu, and refuses to leave, 
the vessel is subject to seizure and forfeiture.
    (2) All persons and vessels permitted in the security zone must 
comply with the instructions of the Coast Guard Captain of the Port or 
the designated on-scene-patrol personnel. These personnel comprise 
commissioned, warrant, and petty officers of the Coast Guard and other 
persons permitted by law to enforce this regulation. Upon being hailed 
by an authorized vessel or law enforcement officer using siren, radio, 
flashing light, loudhailer, voice command, or other means, the operator 
of a vessel must proceed as directed.
    (3) If authorized passage through the security zone, a vessel 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. While underway with permission of the 
Captain of the Port or his or her designated representatives, no person 
or vessel is allowed within 100 yards of a the Hawaii Super Ferry when 
it is underway, moored, position-keeping, or at anchor, unless 
authorized by the Captain of the Port or his or her designated 
representatives.
    (4) 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 the security zone in order to ensure navigational safety.
    (e) Enforcement officials. Any Coast Guard commissioned, warrant, 
or petty officer, and any other person permitted by law, may enforce 
the regulations in this section.

    Dated: September 26, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard 
District.
[FR Doc. 07-4893 Filed 9-28-07; 3:29 pm]
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