[Federal Register Volume 78, Number 192 (Thursday, October 3, 2013)]
[Proposed Rules]
[Pages 61223-61226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24150]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0080]
RIN 1625-AA00


Regulated Navigation Area; Southern Oahu Tsunami Vessel 
Evacuation, Honolulu, HI

AGENCY: Coast Guard, DHS.

ACTION: Supplementary notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a permanent 
regulated navigation area (RNA) and to enforce this proposed regulation 
only when a tsunami warning is issued for the Hawaiian Islands by the 
Pacific Tsunami Warning Center. Tsunami warnings require the evacuation 
of a large number of vessels from their respective harbors. Following 
the evacuation, these vessels must remain offshore until the emergency 
situation has passed and the harbors have been deemed safe for reentry. 
Past tsunami warnings have created potentially dangerous offshore 
traffic congestion between commercial and recreational vessel traffic. 
Because of this, designated vessel traffic staging areas are necessary 
for a safe and orderly evacuation of Southern Oahu ports.

DATES: Comments and related material must be received by the Coast 
Guard on or before November 4, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0080. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. The 
following link will take you directly to the docket: http://www.regulations.gov/#!docketDetail;D=USCG-2012-0080. You may also visit 
the Docket Management Facility in Room W12-140 on the ground floor of 
the Department of Transportation West Building, 1200 New Jersey Avenue 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email Lieutenant Commander Scott Whaley of the United 
States Coast Guard Sector Honolulu at 808-522-8264 ext. 3352 or 
Scott.O.Whaley@uscg.mil, respectively. If you have questions on viewing 
or submitting material to the docket, call Barbara Hairston, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
SNPRM Supplemental Notice of Proposed Rulemaking
RNA Regulated Navigation Area

A. Public Participation and Request for Comments

    We encourage you to respond to this notice by submitting comments 
and related materials. All comments received will be posted without 
change to http://www.regulations.gov and will include any personal 
information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov, or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered as having been received by the Coast Guard when 
it is received at the Docket Management Facility. We recommend that you 
include your name and a mailing address, an email address, or a 
telephone number in the body of your document so that we can contact 
you if we have questions regarding your submission. To submit your 
comment online, go to http://www.regulations.gov, type the docket 
number USCG-2012-0080 in the ``SEARCH'' box, and then click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
supplementary notice of proposed rulemaking (SNPRM).
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8[frac12] by 11 inches, suitable 
for copying and electronic filing. If you submit comments by mail and 
would like to know that they reached the Facility, please enclose a 
stamped, self-addressed postcard or envelope. We will consider all 
comments and material received during the comment period and may change 
the proposed rule based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
inserting USCG-2012-0080 in the ``SEARCH'' box, and then click 
``SEARCH.'' You may also visit the Docket Management Facility in Room 
W12-140 on the ground floor of the Department of Transportation West 
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. We 
have an agreement with the Department of Transportation to use the 
Docket Management Facility.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain in detail why you believe a public meeting 
would be beneficial. If

[[Page 61224]]

we determine that one would aid in solving this problem, we will hold 
one at a time and place announced by a later notice in the Federal 
Register.

B. Regulatory History and Information

    The Coast Guard collaborated with the Hawaii Ocean Safety Team, the 
Industry Advisory Board and other industry partners in the initial 
development of a proposed Southern Oahu Tsunami Vessel Evacuation 
regulated navigation area. All recommendations received careful 
consideration during the drafting of this rule. On May 14, 2013, the 
Coast Guard published a notice of proposed rulemaking (NPRM) in the 
Federal Register (78 FR 28170) under the same docket number (USCG-2012-
0080) as this SNPRM. The Coast Guard received a total of five comments; 
those comments are posted, without change, at http://www.regulations.gov. To view these comments go to http://www.regulations.gov, insert USCG-2012-0080 in the ``SEARCH'' box, and 
then click ``SEARCH.''
    In accordance with 33 CFR 1.05-40, we are issuing this 
supplementary notice of proposed rulemaking (SNPRM) because, after 
consideration of the comments received, the Coast Guard proposes to 
substantially change the rule from that originally published in the 
NPRM. This SNPRM advises the public of the revised proposal and 
provides an opportunity for comment on the changes.

C. Basis and Purpose

    The statutory basis for this rulemaking is 33 U.S.C. 1231, which 
gives the Coast Guard, under a delegation from the Secretary of 
Homeland Security, regulatory authority to enforce the Ports and 
Waterways Safety Act. A regulated navigation area is a water area 
within a defined boundary for which regulations for vessels navigating 
within the area have been established to mitigate hazardous conditions 
deemed to exist in that area. The purpose of this rulemaking is to 
provide greater safety for vessels and maritime commerce in the event 
of a tsunami threat.

D. Discussion of Comments, Changes and the New Proposed Rule

    The Coast Guard received a total of five written submissions on the 
NPRM published on May 14, 2013 in the Federal Register.
    One commenter voiced his support of the rule proposed in the NPRM, 
calling it an ``important safety regulation''.
    One commenter was unable to locate the graphic displaying the 
staging areas. An electronic copy of the graphic was emailed to him. 
The graphic was also disseminated via press release, advertised on the 
local TV news and posted on the Coast Guard Sector Honolulu HOMEPORT 
Web page. Further, the graphic associated with the NPRM was filed in 
the docket on June 5, 2013.
    One commenter suggested changes to the proposed rule that would 
reduce the potential for small recreational vessels operating in the 
same staging area as large container vessels and cruise ships. In this 
SNPRM, the Coast Guard proposes to segregate the staging areas for 
recreational and commercial vessels. The potential for hazardous 
situations or even collisions, due to, among other things, limited 
maneuverability, would increase if recreational and commercial vessels 
were staged in the same area. Therefore, in this SNPRM the Coast Guard 
has modified the proposed staging areas to further reduce the potential 
for vessel intermingling, congestion and incidents. The current 
proposed rule adds a second recreational vessel staging area, 
eliminating the need for recreational vessels departing Keehi Lagoon to 
transit through the commercial vessel staging area.
    One commenter suggested reconsideration of the potential path of 
commercial vessels and recreational vessels transiting from their 
berths to their respective staging areas. The staging areas have been 
modified so that commercial and recreational vessels can transit to 
their respective staging area without crossing each other's path.
    One commenter pointed out a discrepancy with the stated 
geographical positions. The latitudes and longitudes have been changed 
to more accurately reflect the intended boundary for the regulated 
navigation zone.

E. Discussion of the Proposed Rule

    Earthquakes off Chile and Japan in February 2010 and March 2011, 
respectively, resulted in tsunami threats to the Main Hawaiian Islands. 
These incidents emphasized the need to establish heightened safety 
measures, to ensure an orderly and organized evacuation plan, in order 
to protect the infrastructure of the southern coast of Oahu, Hawaii, 
including Honolulu Harbor. Honolulu Harbor has only one entrance for 
large commercial vessels and is the principle harbor of Hawaii's hub 
and spoke maritime commerce system. If, in response to a tsunami 
warning, a marine incident were to occur off the southern shore of 
Oahu, especially near the entrance of Honolulu Harbor, the results 
could be devastating to Hawaii's economy and the maritime commerce 
system and the constituencies that rely heavily upon the system's 
viability.
    In response to this risk, the Coast Guard proposes the 
establishment of a regulated navigation area (RNA) designated as the 
Southern Oahu Tsunami Evacuation zone.
    In the event of a tsunami warning, the Coast Guard Captain of the 
Port for Honolulu (COTP) would notify the public that an enforcement 
period is in effect for the duration of the emergency for this RNA. At 
the conclusion of the threat, the COTP would notify the public when the 
RNA enforcement period is suspended or terminated.
    During the enforcement period, the COTP intends to deploy Coast 
Guard vessels and personnel, if feasible, to ensure participating 
commercial and recreational vessels move to and stay within separate 
staging areas, and seaward of the 50-fathom curve that covers near-
shore waters less than 300 feet deep. Coast Guard plans, which could 
vary depending on specific conditions during an actual emergency, call 
for those staging areas to be separated by an exclusionary area. This 
exclusionary area would measure 4 nautical miles long by one (1) 
nautical mile wide, centering lengthwise and along a line running 
seaward at 208 degrees southwest of the Honolulu Harbor Range light. 
Vessels participating in the staging area would have to stay outside of 
the exclusionary area.
    There are two staging areas to the east of the exclusionary area: a 
commercial vessel staging area and a recreational vessel staging area. 
This eastern recreational staging area is intended for use by 
recreational vessels departing from and returning to the Ala Wai Small 
Boat harbor and Kewalo Basin. There will also be one recreational 
vessel staging area to the west of the exclusionary area. This staging 
area is intended for recreational vessels departing from and returning 
to the Keehi Lagoon area.
    Although recreational vessels would be able to use either the east 
or west staging area, the mariners decision for which staging area to 
use should be based on which staging area is the easiest to transit to 
so as to avoid crossing the path of other vessels. The commercial 
staging area is intended for use by all commercial vessels departing 
from and returning to Kewalo Basin and Honolulu Harbor.
    A graphic of the regulated navigation area is posted in the docket 
(http://www.regulations.gov/

[[Page 61225]]

!docketDetail;D=USCG-2012-0080) and also on the United States 
Coast Guard Sector Honolulu Homeport Web page (https://homeport.uscg.mil/mycg/portal/ep/portDirectory.do?tabId=1&cotpId=27) 
under the Waterways Management tab. The graphic shows how we expect to 
separate commercial and recreational vessels when the RNA is being 
enforced, but under actual enforcement conditions local commanders may 
vary the plan as conditions warrant.

F. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
because it would have an effect on the regulated public only in the 
rare circumstances of a tsunami threat, while at other times vessels 
will be able to transit the area freely. Further, staging within this 
RNA is completely voluntary and vessels are free to evacuate outside of 
the RNA if they prefer. Therefore, it 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.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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. This proposed rule would affect the following 
entities, some of which might be small entities: the owners or 
operators of vessels intending to transit and remain in the 
exclusionary zone during a tsunami threat, or owners or operators of 
vessels otherwise intending to operate in a fashion not compatible with 
this proposed rule. This rule would not have a significant impact on a 
substantial number of small entities because the RNA would only be 
activated, and thus subject to enforcement, when a tsunami warning has 
been issued by the Pacific Tsunami Warning Center.
    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.

3. 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 rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This proposed rule will not call for a new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520.).

5. Federalism

    A proposed 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.

 6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the For Further 
Information Contact section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places, or vessels.

7. 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 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

8. Taking of Private Property

    This proposed rule would 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.

9. 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.

10. Protection of Children From Environmental Heath Risks

    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 
would not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

[[Page 61226]]

13. 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.

14. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, 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 one of a category 
of actions which do not individually or cumulatively have a significant 
effect on the human environment. This proposed rule, implementing an 
RNA for vessel staging areas in the event of a tsunami threat to the 
Main Hawaiian Islands, is categorically excluded from further review 
under paragraph (34)(g) of Figure 2-1 of the Commandant Instruction. A 
preliminary environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES, or you may obtain a copy by calling or emailing 
Lieutenant Commander Scott Whaley of the United States Coast Guard 
Sector Honolulu at 808-522-8264 ext. 3352 or Scott.O.Whaley@uscg.mil, 
respectively. 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

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
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. Add Sec.  165.14-1413 to read as follows:


Sec.  165.14-1413  Regulated navigation area; Southern Oahu Tsunami 
Evacuation; Honolulu, Hawaii.

    (a) Location. The following area is a regulated navigation area 
(RNA): All waters of the Pacific Ocean south of the southern shoreline 
of Oahu, HI, extending from the surface of the water to the ocean 
floor, enclosed by a line connecting the following points: 
21[deg]17'14'' N, 157[deg]55'34'' W; 21[deg]13'30'' N, 157[deg]55'34'' 
W; 21[deg]13'30'' N, 157[deg]48'20'' W; 21[deg]14'14'' N, 
157[deg]48'20'' W, thence westward along the 50 fathom curve to the 
beginning point. These coordinates are based upon the National Oceanic 
and Atmospheric Administration Coast Survey, Pacific Ocean, Oahu, 
Hawaii, chart 19357.
    (b) Regulations. You may contact the Coast Guard on VHF Channel 16 
(156.800 MHz) or at telephone number 808-842-2600, to obtain 
clarification on RNA transits and locations. Operations permitting, the 
Coast Guard patrol boats plan to enforce the RNA and provide on-scene 
direction. During the enforcement period persons and vessels wishing to 
remain inside the RNA must abide by the following stipulations:
    (1) No person or vessel may enter into an exclusionary area 4 
nautical miles long by one (1) nautical mile wide, centered lengthwise 
and along a line running seaward at 208 degrees southwest of Honolulu 
Harbor Front Range Light, except to transit to or from the staging 
areas or other areas outside the zone. Loitering or lingering in the 
exclusionary zone is prohibited.
    (2) The Western Recreational Vessel Staging area is bound by a line 
connecting the following points: 21[deg]17'14'' N, 157[deg]55'34'' W; 
21[deg]14'36'' N, 157[deg]55'34'' W; 21[deg]16'31'' N, 157[deg]53'54'' 
W and then along the 50-fathom curve to the beginning point. This 
staging area is intended for recreational vessels departing from and 
returning to the Keehi Lagoon area.
    (3) The Commercial Vessel Staging Area is bound by a line 
connecting the following points: 21[deg]16'09'' N, 157[deg]52'59'' W; 
21[deg]13'30'' N, 157[deg]55'34'' W; 21[deg]13'30'' N, 157[deg]51'39'' 
W; 21[deg]15'22'' N, 157[deg]51'10'' W and then along the 50-fathom 
curve to the beginning point. This staging area is intended for use by 
all commercial vessels intended to remain in the RNA during a tsunami 
treat.
    (4) The Eastern Recreational Vessel Staging Area is bound by the 
following points: 21[deg]15'22'' N, 157[deg]51'10'' W; 21[deg]13'30'' 
N, 157[deg]51'39'' W; 21[deg]13'30'' N, 157[deg]48'20'' W; 
21[deg]14'14'' N, 157[deg]48'20'' W and then along the 50-fathom curve 
to the beginning point. The Commercial Vessel Staging Area bounds this 
staging area's western edge. The dividing line between the Commercial 
Vessel Staging Area and the Eastern Recreational Vessel Staging Area 
can be determined visually. The private dayboards located in the Ala 
Wai Small Boat Harbor and the La Ronde Rotating Restaurant roof top 
restaurant form a natural range that mariners can use in daylight hours 
to gauge the eastern boundary of the Commercial Vessel Staging Area and 
the western boundary of the Eastern Recreational Vessel Staging Area. 
This eastern recreational staging area is intended for use by 
recreational vessels departing from and returning to the Ala Wai Small 
Boat harbor and Kewalo Basin.
    (5) Located between the Western Recreational Vessel Staging Area 
and the Commercial Vessel Staging Area is an Exclusion Area. This area 
is bound by the following points: 21[deg]16'31'' N, 157[deg]53'54'' W; 
21[deg]14'36'' N, 157[deg]55'35'' W; 21[deg]13'30'' N, 157[deg]55'34'' 
W; 21[deg]13'54'' N, 157[deg]55'08'' W; 21[deg]16'09'' N, 
157[deg]52'59'' W.
    (6) All vessels staging in the RNA must be seaward of
    the 50 fathom (300 foot) curve.
    (c) Enforcement period. Paragraph (b) of this section will be 
enforced only when a tsunami warning has been issued for the Hawaiian 
Islands by the Pacific Tsunami Warning Center. The COTP will notify the 
public of any enforcement, suspension of enforcement, or termination of 
enforcement through appropriate means to ensure the widest publicity, 
including the use of broadcast notice to mariners, notices of 
implementation and press releases.
    (d) Penalties. Vessels or persons violating this rule are subject 
to the penalties set forth in 33 U.S.C. 1232.

    Dated: September 3, 2013.
C.B. Thomas,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard 
District.
[FR Doc. 2013-24150 Filed 10-2-13; 8:45 am]
BILLING CODE 9110-04-P