[Federal Register Volume 82, Number 62 (Monday, April 3, 2017)]
[Rules and Regulations]
[Pages 16109-16111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06473]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0172]
RIN 1625-AA00


Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on 
Southeast Side of Island of Hawaii, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters surrounding the entry of lava from Kilauea volcano 
into the Pacific Ocean on the southeast side of the Island of Hawaii, 
HI. The safety zone will encompass all waters extending 300 meters (984 
feet) in all directions around all entry points of lava flow into the 
ocean. The entry points of the lava vary, and the safety zone will vary 
accordingly. The safety zone is needed to protect persons and vessels 
from the potential hazards associated with molten lava entering the 
ocean resulting in explosions of large chunks of hot rock and debris 
upon impact, collapses of the sea cliff into the ocean, hot lava 
arching out and falling into the ocean, and the release of toxic gases. 
Entry of persons or vessels into this safety zone is prohibited unless 
specifically authorized by the Captain of the Port (COTP) Honolulu or 
his designated representative.

DATES: This rule is effective without actual notice from April 3, 2017, 
through 8 a.m. (HST) on September 28, 2017. For purposes of 
enforcement, actual notice will be used from 8 a.m. (HST) on March 28, 
2017, through April 3, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
USCG-2017-0172 in the ``SEARCH'' box and click ``SEARCH.'' Click on 
Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or email Lieutenant Commander Nicolas Jarboe, 
Waterways Management Division, U.S. Coast Guard; telephone 808-541-
4359, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
TFR Temporary Federal Regulation
U.S.C. United States Code

II. Background Information and Regulatory History

    Lava has been entering the ocean at Kamokuna on K[imacr]lauea 
Volcano's south coast since July of 2016. As with all ocean entries 
during this long-lived K[imacr]lauea eruption, hazards to people nearby 
on land and sea include: A plume of corrosive seawater laden with 
hydrochloric acid and fine volcanic particles that can irritate the 
skin, eyes, and lungs; explosions of debris and scalding water as hot 
rock interacts with the ocean; sudden collapse of lava deltas (new land 
formed as lava accumulates above sea level extending out from the base 
of the existing sea cliff); waves associated with explosions, 
collapses; plumes of hot water. For more information, please see: 
https://pubs.usgs.gov/fs/2000/fs152-00/.
    On New Year's Eve 2016, a large portion of the new lava delta 
collapsed into the ocean producing waves and explosions of debris. 
Following this collapse, portions of the adjacent sea cliff continued 
to collapse into the ocean producing localized ocean waves and showers 
of debris. As of late March 2017, a new delta has begun to form at the 
Kamokuna ocean entry. Additionally, cracks parallel to the sea cliff in 
the surrounding area persist, indicating further collapses with very 
little or no warning are possible.
    Based on a review of nearly 30 years of delta collapse and ejecta 
distance observations in the Hawaii Volcano Observatory records, a 
radius of 300 meters was determined as a reasonable minimum high hazard 
zone around a point of ocean entry.
    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) [5 U.S.C. 553(b)]. This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency, for good cause, finds those 
procedures is ``impractical, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good 
cause exists for not publishing a NPRM and for making this rule 
effective less than 30 days after publication in the Federal Register. 
The Coast Guard finds it impractical to issue an NPRM with respect to 
this rule because of the emergency situation of potential hazards 
associated with molten lava entering the ocean resulting in explosions 
of large chunks of hot rock and debris upon impact, collapses of the 
sea cliff into the ocean, hot lava arching out and falling into the 
ocean, and the release of toxic gases that poses a danger to vessel 
traffic and the public. Publishing an NPRM and delaying the effective 
date would be contrary to the safety zone's intended objectives, 
including but not limited to protection of the public and mitigation of 
danger to nearby vessels from the hazards of flow entry into the ocean, 
enhancing public safety. Publishing a NPRM and delaying the effective 
date would also be contrary to the public interest since the occasion 
would occur before a notice-and-comment rulemaking could be completed, 
thereby jeopardizing the safety of the public.

[[Page 16110]]

The COTP Honolulu finds this temporary safety zone must be effective 
immediately to ensure the safety of the public during Kilauea's active 
lava flow entry into the Pacific Ocean on the southeast side of the 
Island of Hawaii, HI.
    The Coast Guard is publishing an NPRM elsewhere in this issue of 
the Federal Register that proposes to establish a permanent safety zone 
for the navigable waters surrounding the entry of lava from Kilauea 
volcano into the Pacific Ocean on the southeast side of the Island of 
Hawaii, HI.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP Honolulu has determined that potential hazards 
associated with Kilauea's active lava flow entry into the Pacific Ocean 
on the southeast side of the Island of Hawaii, HI is safety concern for 
anyone within 300 meters (984 feet) in all directions around the entry 
of lava flow. The purpose of this rule is to ensure safety of public, 
vessels, and the navigable waters covered by the safety zone.

IV. Discussion of Comments, Changes, and the Rule

    This temporary final rule establishes a safety zone from 8 a.m. 
(HST) on March 28, 2017, through 8 a.m. (HST) on September 28, 2017. 
The entry point of the lava does change based on flow, however the 
safety zone will encompass all waters extending 300 meters (984 feet) 
in all directions around the entry point of lava flow into the ocean 
associated with the lava flow at the Kamokuna lava delta. The safety 
zone is needed to protect persons and vessels from potential hazards 
associated with molten lava entering the ocean resulting in explosions 
of large chunks of hot rock and debris upon impact, hot lava arching 
out and falling into the ocean, and the release of toxic gases. No 
persons or vessels will be permitted to enter the safety zone without 
express authorization from the COTP Honolulu or his designated 
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. Vessel traffic 
will be able to safely transit around this safety zone which will only 
impacts a small designated area on the southeast side of the Island of 
Hawaii, HI. Moreover, the Coast Guard will issue Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the safety zone and the 
rule allows vessels to seek permission to enter the safety zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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 rule 
will not have a significant economic impact on a substantial number of 
small entities for reasons stated in section V. A. above.
    Some owners or operators of vessels, which may be small entities, 
conduct tours in the vicinity of the safety zone where lava flow enters 
the ocean. Some of these owners or operators reportedly navigate closer 
than 300 meters from the lava entry into the ocean. This rule may 
affect their operations. The safety zone does not prohibit ocean tours; 
however the safety zone simply requires operators and vessel owners to 
navigate at a safe distance. It also allows vessels to seek permission 
of the COTP Honolulu to get closer.
    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 
section.
    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.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

    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 rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

E. 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 rule

[[Page 16111]]

will not result in such an expenditure, we do discuss the effects of 
this rule elsewhere in this preamble.

F. Environment

    We have analyzed this 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(42 U.S.C. 4321-4370f), and have determined 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 
rule involves a temporary safety zone lasting 6 months that will 
prohibit persons and vessels from entry into the 300 meters (984 feet) 
safety zone extending in all directions around the entry of lava flow 
into the Pacific Ocean. This safety zone is categorically excluded from 
further review under paragraph 34(g) of Figure 2-1 of the Commandant 
Instruction. An 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 rule.

G. 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.

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 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. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T14-0172 to read as follows:


Sec.  165.T14-0172  Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean 
Entry on Southeast Side of Island of Hawaii, HI.

    (a) Location. The safety zone area is located within the COTP Zone 
(See 33 CFR 3.70-10) and encompasses one primary area from the surface 
of the water to the ocean floor at the Kilauea active lava flow entry 
into the Pacific Ocean on the southeast side of the Island of Hawaii, 
HI. The entry point of the lava does change based on flow, however the 
safety zone will encompass all waters extending 300 meters (984 feet) 
in all directions around the entry point of lava flow into the ocean 
associated with the lava flow at the Kamokuna lava delta.
    (b) Effective period. This rule is effective from 8 a.m. (HST) on 
March 07, 2017, through 8 a.m. (HST) on September 22, 2017.
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to the safety zone created by this 
temporary final rule.
    (1) All persons and vessels are required to comply with the general 
regulations governing safety zones found in this part.
    (2) Entry into or remaining in this safety zone is prohibited 
unless authorized by the COTP Honolulu or his designated 
representative.
    (3) Persons or vessels desiring to transit the safety zone 
identified in paragraph (a) of this section may contact the COTP of 
Honolulu through his designated representatives at the Command Center 
via telephone: (808) 842-2600 and (808) 842-2601; fax: (808) 842-2642; 
or on VHF channel 16 (156.8 Mhz) to request permission to transit the 
safety zone. If permission is granted, all persons and vessels must 
comply with the instructions of the COTP Honolulu or his designated 
representative and proceed at the minimum speed necessary to maintain a 
safe course while in the safety zone.
    (4) The U.S. Coast Guard may be assisted in the patrol and 
enforcement of the safety zone by Federal, State, and local agencies.
    (d) Notice of enforcement. The COTP Honolulu will provide notice of 
enforcement of the safety zone described in this section by verbal 
radio broadcasts and written notice to mariners.
    (e) Definitions. As used in this section, ``designated 
representative'' means any Coast Guard commissioned, warrant, or petty 
officer who has been authorized by the COTP to assist in enforcing the 
safety zone described in paragraph (a) of this section.

    Dated: March 28, 2017.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-06473 Filed 3-31-17; 8:45 am]
BILLING CODE 9110-04-P