[Federal Register Volume 79, Number 182 (Friday, September 19, 2014)]
[Proposed Rules]
[Pages 56319-56322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22428]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0935]
RIN 1625-AA00, 1625-AA11, and 1625-AA87


Regulated Navigation Areas and Limited Access Areas; Waterway 
Management of Apra Harbor, Guam

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to revise and consolidate existing 
regulated navigation areas, security zones and safety zones currently 
in place in Apra Harbor, Guam. This action is intended to replace a 
number of redundant, potentially confusing and outdated navigation 
regulations with a cogent regulatory framework. The goal of this 
rulemaking is to better meet the needs of the community today and help 
ensure the safe and efficient use of the harbor by clarifying and 
streamlining, thereby reducing vessel operator confusion while 
transiting the waters of Apra Harbor, Guam.

DATES: Comments and related material must be received by the Coast 
Guard on or before November 3, 2014. Requests for public meetings must 
be received by the Coast Guard on or before October 6, 2014.

ADDRESSES: You may submit comments identified by docket number using 
any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail or Delivery: 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. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Terry Rice, Fourteenth Coast Guard District, U.S. 
Coast Guard; telephone (808) 535-3264; email [email protected]. If 
you have questions on viewing or submitting material to the docket, 
call Cheryl Collins, Program Manager, Docket Operations, telephone 
(202-366-9826 or 800-647-5527.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

CFR Code of Federal Regulations
DHS Department of Homeland Security
ESQD Explosive Safe Quantity Distance
FR Federal Register
NPRM Notice of Proposed Rulemaking
RNA Regulated Navigation Area
Sec.  Section

A. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking 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-2013-0935 in the ``SEARCH'' box and click 
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with 
this rulemaking.

[[Page 56320]]

    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ 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 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, 
type the docket number USCG-2013-0935 in the ``SEARCH'' box and click 
``SEARCH.'' Click on Open Docket Folder on the line associated with 
this rulemaking. 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.

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 any public meetings related to this NPRM. 
However, you may submit a request for a public meeting. Your request 
must be received by the Coast Guard on or before October 6, 2014, using 
one of the methods specified under ADDRESSES. Please explain why you 
believe a public meeting 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.

B. Regulatory History and Information

    Navigational regulations of Apra Harbor have been in place in 
various forms dating back to the era of U.S. Navy administration of 
Guam. Some of the regulations predate the promulgation of the Ports and 
Waterways Safety Act of 1972, were initially included in 33 CFR parts 
127 and 128, and subsequently re-codified in 33 CFR part 165 on July 8, 
1982 as part of a regulatory reorganization effort. The regulations in 
part 165 were subsequently amended in 1986, 1990, 1996, 1998 and 2003. 
Between 1972 and 2003 four Regulated Navigation Areas, three security 
zones and two safety zones were created and/or amended. One of the 
security zones was subsequently removed, another changed to a safety 
zone, and an additional safety zone created.
    Apra Harbor safety zone regulations in 33 CFR 165.1401 were last 
amended in 1990 (55 FR 18725, May 4, 1990). These zones were 
established as security zones in 1972 (37 FR 10800, 31 May 1972), 
amended in 1975 (40 FR 1016, Jan. 6, 1975), codified in 33 CFR 127.1401 
(a) and (b) in 1982 as part of a regulatory reorganization effort (47 
FR 29569, 29667, July 8, 1982), and were subsequently disestablished 
and re-established as safety zones in 1990 (55 FR 18725, May 4, 1990).
    Apra Outer Harbor regulated navigation area regulations in 33 CFR 
165.1402 were established by 33 CFR part 165 (47 FR 296660, July 8, 
1982), and amended in 1996, and subsequently again in 1998 (63 FR 
35533, June 30, 1998).
    Apra Outer Harbor regulated navigation area regulations in 33 CFR 
165.1404 were first established in 33 CFR part 127 in 1972 (37 FR 
10801, May 31, 1972). They were moved to 33 CFR part 165 in 1982 (47 FR 
29569, July 8, 1982), and amended in 1996 (61 FR 33660, June 28, 1996; 
and subsequently in 1998 (63 FR 35524, June 30, 1998).
    Apra Harbor Security Zone C in 33 CFR 165.1404 was promulgated in 
1990 (55 FR 18724, May 4, 1990).
    Regulated Navigation Areas and Security Zones regulations in 33 CFR 
165.1405 regarding Designated Escorted Vessels-Philippine Sea and Apra 
Harbor Guam (including Cabras Island Channel) were established in 2003 
(68 FR 4383, Jan. 29, 2003).

C. Basis and Purpose

    The legal basis for this rulemaking is the Coast Guard's authority 
to establish regulated navigation areas and other limited access areas: 
33 U.S.C 1231; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 160.5; and Department 
of Homeland Security Delegation No. 0170.1
    Currently there are four Regulated Navigation Areas (RNA), one 
security zone and two safety zones within and approaching Apra Harbor. 
These regulations, included in 33 CFR 165.1401, 1402, 1404 and 1405, 
while intended to improve the safety and security of Apra Harbor and 
the mariners operating therein, are potentially confusing, overlapping, 
and do not adequately address current needs. The purpose of this 
rulemaking is to simplify the current regulations, taking into account 
relevant safety and security navigational requirements for the waters 
of Apra Harbor, including approaches to the Harbor. This proposed 
rulemaking would create a regulatory scheme that ensures the needs of 
all stakeholders are addressed in a concise, understandable format 
through consolidation of the regulated navigation areas and 
rationalization of limited access areas (safety or security zones).
    A regulated navigation area is a water area within a defined 
boundary for which regulations for vessels navigating within the area 
have been established. See 33 CFR 165.10.
    A safety zone is a water area, shore area, or water and shore area 
to which, for safety or environmental purposes, access is limited to 
authorized persons, vehicles, or vessels. It may be stationary and 
described by fixed limits or it may be described as a zone around a 
vessel in motion. See 33 CFR 165.20.
    A security zone is an area of land, water, or land and water which 
is so designated by the Captain of the Port or District Commander for 
such time as necessary to prevent damage or injury to any vessel or 
waterfront facility, to safeguard ports, harbors, territories, or 
waters of the United States or to secure the observance of the rights 
and obligations of the United States. See 33 CFR 165.30.

D. Discussion of Proposed Rule

    The Coast Guard published an advance notice of proposed rulemaking 
(ANPRM) requesting comments on this subject on January 10, 2014 (79 FR 
1789) and held two public meetings on January 22, 2014, at Port 
Authority Guam. Three comments were received. One comment requested 
that pre-notification be the only requirement imposed on commercial 
vessels transiting Apra Harbor safety zones. While the proposed 
regulations cannot guarantee admission to a safety zone, the Captain of 
the Port supports the need for vessels to be able to transit the harbor 
and the proposed regulations include a system to allow vessels to 
contact the COTP to arrange transit through the regulated areas to the 
maximum extent possible. A comment from a yacht club representative 
asked general questions regarding the definitions of the terms ``safety 
zone'' and ``security zone,'' which are included in this preamble. 
Comments provided by the Port of Guam, and

[[Page 56321]]

Matson Navigation were supportive of reducing the restrictions on 
navigation.
    Having considered all comments received on the ANPRM, the Coast 
Guard proposes to:
     Revise 33 CFR 165.1401 by:
    [cir] Removing the safety zone around Wharf H as the wharf is no 
longer used for explosives cargo handling on a regular basis and 
removing Wharf H terminology in the special regulation paragraph, as it 
no longer applies.
    [cir] Expanding and re-designating Naval Wharf Kilo as Safety Zones 
A and B to address the explosive safe distances, required by increasing 
volumes of explosive cargoes handled by the wharf, while assuring 
operational flexibility to maritime operators under varying cargo load 
conditions and their explosive arcs. The activation and enforcement of 
Safety Zone A will be visually indicated by a red (BRAVO) flag and a 
``SAFETY ZONE A'' sign displayed at Naval Wharf Kilo. The activation 
and enforcement of Safety Zone B will be visually indicated by a red 
(BRAVO) flag and a ``SAFETY ZONE B'' sign displayed at Naval Wharf 
Kilo.
     Remove 33 CFR 165.1402 because:
    [cir] The Regulated Navigation Area (RNA) designated in paragraph 
(a) is redundant and less precise than a subsequent RNA addressing the 
area, 33 CFR 165.1405 (a)(1) and (2), that was made effective January 
29, 2003 (68 FR 4383, Jan. 29, 2003).
    [cir] The existing Sec.  165.1402(b) regulations are outdated, 
concurrently addressed by Coast Guard anchorage regulation 33 CFR 
110.238, and local government harbor regulations.
     Amend 33 CFR 165.1405 by:
    [cir] Removing the words ``(including Cabras Island Channel)'' from 
the section heading,
    [cir] Removing paragraph (a)(4) because Cabras Island Channel is 
already encompassed by paragraph (a)(2), Apra Harbor.
    [cir] Revising paragraph (a)(2) by replacing a reference to ``Apra 
Harbor'' with ``Apra Outer Harbor.'' This is appropriate because the 
current regulation is redundant in addressing the waters of Inner Apra 
Harbor that are restricted by existing U.S. Army Corps of Engineers 
regulation 33 CFR 334.1430.

E. 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, 
as supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. This rulemaking will not 
adversely impact the economy or a segment of the economy in Guam, 
interfere with another agency, alter any entitlements, grants, user 
fees, or loans, or raise a novel or controversial question of law or 
policy. This rulemaking is intended to streamline the current 
regulations in place, actually decreasing the burden on waterway users. 
Further, although the intention is to modify expand the safety zones 
around Naval Wharf Kilo, traffic would be still permitted to pass 
through the zone with the permission of the Captain of the Port. In 
fact, providing two zones also limits the burden on the mariner, 
allowing for a closer approach to Naval Wharf Kilo because when the 
Explosive Safe Quantity Distance (ESQD) is decreased only Safety Zone A 
will be enforced.

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 rulemaking is intended to streamline the 
current regulations in place, actually decreasing the burden on certain 
small entities and waterway users. Further, although the intention is 
to expand the safety zone around Naval Wharf Kilo, traffic would be 
still permitted to pass through the zone with the permission of the 
Captain of the Port.
    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 proposed 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. The Coast Guard will not retaliate against small 
entities that question or complain about this proposed 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 rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this proposed rule under that Order and 
determined that this rule 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 (adjusted for 
inflation) 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.

[[Page 56322]]

8. Taking of Private Property

    This proposed rule would not cause 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 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.

10. Protection of Children From Environmental Health Risks

    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.

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

13. Technical Standards

    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 that do not individually or cumulatively have a significant 
effect on the human environment. This proposed rule involves the 
consolidation and rationalization of existing Apra Harbor navigation 
regulations. This rule is categorically excluded from further review 
under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A 
preliminary environmental analysis checklist supporting this 
determination and a Categorical Exclusion Determination are 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

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. Revise Sec.  165.1401 to read as follows:


Sec.  165.1401  Apra Harbor, Guam--safety zones.

    (a) Location. (1) The following is designated Safety Zone A: The 
waters of Apra Outer Harbor encompassed within an arc of 1,000 yards 
radius centered at the center of Naval Wharf Kilo, located at 13 
degrees 26''44.5'' N and 144 degrees 37'50.7'' E. (Based on World 
Geodetic System 1984 Datum).
    (2) The following is designated Safety Zone B: The waters of Apra 
Outer Harbor encompassed within an arc of 1,400 yards radius centered 
at the center of Naval Wharf Kilo, located at 13 degrees 26'44.5'' N 
and 144 degrees 37'50.7'' E. (Based on World Geodetic System 1984 
Datum).
    (b) Special regulations. (1) Safety Zone A, described in paragraph 
(a) of this section, will only be enforced when Naval Wharf Kilo, or a 
vessel berthed at Naval Wharf Kilo, is displaying a red (BRAVO) flag by 
day or a red light by night, accompanied by a ``SAFETY ZONE A'' sign.
    (2) Safety Zone B described in paragraph (a) of this section will 
only be enforced when Naval Wharf Kilo, or a vessel berthed at Naval 
Wharf Kilo, is displaying a red (BRAVO) flag by day or a red light by 
night, accompanied by a ``SAFETY ZONE B'' sign.
    (3) Under general regulations in Sec.  165.23, entry into the zones 
described in paragraph (a) of this section is prohibited unless 
authorized by the Captain of the Port, Guam.


Sec.  165.1402  [Removed]

0
3. Remove Sec.  165.1402.
0
4. In Sec.  165.1405, remove paragraph (a)(4), and revise the section 
heading and paragraph (a)(2) to read as follows:


Sec.  165.1405  Regulated Navigation Areas and Security Zones; 
Designated Escorted Vessels-Philippine Sea and Apra Harbor, Guam, and 
Tanapag Harbor, Saipan, Commonwealth of the Northern Mariana Islands 
(CNMI).

    (a) * * *
    (2) All waters from surface to bottom of Apra Outer Harbor, Guam, 
shoreward of the COLREGS Demarcation line as described in 33 CFR part 
80.
* * * * *

    Dated: September 4, 2014.
C. B. Thomas,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard 
District.
[FR Doc. 2014-22428 Filed 9-18-14; 8:45 am]
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