[Federal Register Volume 82, Number 62 (Monday, April 3, 2017)]
[Proposed Rules]
[Pages 16142-16144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06474]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0234]
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: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard 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. 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. We invite your 
comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 2, 2017.

ADDRESSES: You may submit comments identified by docket number USCG-
2017-0234 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, 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
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    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 purpose of this proposed rulemaking is 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. 
The safety zone's intended objectives include but not limited to 
protection of the public, mitigation of potential lava flow entry 
hazards to nearby vessels, and enhancing public safety. The Coast Guard 
proposes this rulemaking under authority in 33 U.S.C. 1231, which gives 
the Coast Guard, under a delegation from the Secretary of the 
Department of Homeland Security, regulatory authority to enforce the 
Ports and Waterways Safety Act.
    On March 28, 2017 the COTP issued a temporary final rule, published 
elsewhere in this issue of the Federal Register, 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)]. The temporary 
final rule established a temporary safety zone to immediately protect 
persons and vessels from the potential hazards associated with 
Kilauea's active lava flow entry into the Pacific Ocean on the 
southeast side of the Island of Hawaii, HI. The safety zone encompassed 
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 temporary final 
rule will remain in effect throughout this notice of proposed 
rulemaking unless otherwise canceled or modified by the COTP.

III. Discussion of Proposed Rule

    The COTP Honolulu proposes to establish a permanent safety zone 
around the lava flow entry point on the Kamokuna lava delta. 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.
    The regulatory text we are proposing appears at the end of this 
document.

IV. 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 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.

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Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This NPRM has not been designated a 
``significant regulatory action,'' under Executive Order 12866. 
Accordingly, the NPRM 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 
would be able to safely transit around this safety zone which would 
impact a small designated area of the southeast side of the Island of 
Hawaii, HI. Moreover, the Coast Guard would issue a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the zone, and the rule 
would allow vessels to seek permission to enter the 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 
proposed rule would not have a significant economic impact on a 
substantial number of small entities for reasons stated in section IV. 
A. above.
    Some owners or operators of vessels, which may be small entities, 
conduct tours in the vicinity of the proposed 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; 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.
    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.
    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 
section. 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.

C. Collection of Information

    This proposed rule would 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 proposed 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 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. If 
you believe this proposed 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

F. 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 (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 permanent 
safety zone that would prohibit entry within 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. 
Normally such actions are categorically excluded from further review 
under paragraph 34(g) of Figure 2-1 of Commandant Instruction 
M16475.lD. A preliminary environmental analysis checklist and 
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.

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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.

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    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.
    We plan to hold one public meeting on May 08, 2017 at 5 p.m. at the 
East Hawaii County Building (Hilo) Aupuni Center Conference Room 
located at 101 Pauahi St. #7, Hilo, Hawaii 96720. For information on 
facilities or services for individuals with disabilities or to request 
special assistance at the public meeting, contact the person named in 
the FOR FURTHER INFORMATION CONTACT section, above.

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; 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.  165.1414 to read as follows:


Sec.  165.1414  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) Enforcement period. The COTP Honolulu will establish the 
enforcement dates that will be announced with a notice of enforcement 
of regulations published in the Federal Register. The enforcement dates 
will also be announced with a Broadcast Notice to Mariners, Local 
Notice to Mariners, and Outreach.
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to the safety zone created by this 
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. 2017-06474 Filed 3-31-17; 8:45 am]
BILLING CODE 9110-04-P