[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Rules and Regulations]
[Pages 45461-45464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20902]


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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 extending, for an additional six months, 
the existing temporary safety zone surrounding the entry of lava from 
the Kilauea volcano into the navigable waters of the Pacific Ocean on 
the southeast side of the Island of Hawaii, HI. The extension of this 
safety zone is necessary to protect persons and vessels from hazards 
associated with molten lava entering the ocean while the proposed rule 
is reviewed.

DATES: This rule is effective from September 28, 2017 through March 28, 
2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type 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 rule, 
call or email Lieutenant Commander John Bannon, Waterways Management 
Division, Coast Guard; telephone: 808-541-4359, email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

BLS Bureau of Labor Statistics
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section symbol
OMB Office of Management and Budget
RFA Regulatory Flexibility Act
SNPRM Supplemental notice of proposed rulemaking
TFR Temporary final rule
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is extending, for an additional six months, an 
existing temporary safety zone for the navigable waters surrounding the 
entry of lava from the Kilauea Volcano into the Pacific Ocean on the 
southeast side of the Island of Hawaii, HI. Extending this safety zone 
ensures mariners remain safe from the potential hazards associated with 
molten lava entering the ocean while the proposed rule is being 
reviewed. This safety zone will continue to encompass all waters within 
300 meters (984 feet) of all entry points of lava flow into the ocean. 
Because the entry points of the lava vary, the safety zone location 
will also vary. Entry of persons or vessels into this safety zone 
remains prohibited, unless specifically authorized by the Captain of 
the Port (COTP) Honolulu, or his designated representative.
    Lava flow that enters the ocean can be potentially hazardous to 
anyone near it, particularly when lava deltas collapse. A lava delta is 
new land that forms when lava accumulates above sea level, and extends 
from the existing base of a sea cliff. Persons near active lava flow 
entry sites incur potential hazards, particularly when lava deltas 
collapse. These hazards include, but are not limited to, plumes of hot, 
corrosive seawater laden with hydrochloric acid, and fine volcanic 
particles that can irritate the skin, eyes, and lungs; explosions of 
debris and eruptions of scalding water from hot rock entering the 
ocean; sudden lava delta collapses; and waves associated with these 
explosions and collapses.
    Lava has been entering the ocean at the Kamokuna lava delta on 
Kilauea Volcano's south coast since July 2016. On December 31, 2016, a 
large portion of lava delta collapsed into the ocean at the Kamokuna 
entry point. Following this collapse, portions of the adjacent sea 
cliff fell into the ocean, producing localized waves, and showers of 
debris. As of March 2017, a new delta has begun to form at the Kamokuna 
ocean entry point. This lava delta continues to grow and collapse, and 
cracks parallel to the sea cliff surrounding it persist, indicating 
further collapses may occur with little or no warning.
    On March 28, 2017, the Coast Guard established a temporary final 
rule (TFR) and put into place a safety zone for mariners near lava 
entry points to address the hazards of the lava entering the ocean. The 
TFR discussed Sector Honolulu's review of nearly 30 years of delta 
collapse and ejecta distance observations from the Hawaii Volcano 
Observatory records. The TFR was published in the April 3, 2017 Federal 
Register (82 FR 16109).
    On April 3, 2017, the Coast Guard also published a notice of 
proposed rulemaking (NPRM) to establish a permanent safety zone that 
would encompass all waters extending 300 meters (984 feet) in every 
direction around all entry points of lava flow into the navigable 
waters surrounding the entry of lava from the Kilauea Volcano into the 
Pacific Ocean on the southeast side of the Island of Hawaii, HI (82 FR 
16142). We determined that a radius of 300 meters was a reasonable, 
minimum high-hazard zone around a point of active lava flow entering 
the ocean. The safety zone allows the Coast Guard to impose and enforce 
restrictions on vessels operating closely to the lava entry area, which 
protects persons and vessels from the potential hazards associated with 
molten lava entering the ocean. The NPRM addressed this concern and 
invited the public to comment on the safety zone. The comment period, 
which ended on June 2, 2017, received 67 comments. On May 8, 2017, at a 
public meeting held in Hilo, HI, meeting participants discussed the 
proposed rule and NPRM's public comments.
    During the period of the TFR, four tour operators and one 
photographer with economic ties to lava tourism petitioned the COTP 
Honolulu for entry within 300 meters of the high-hazard zone. They also 
requested and petitioned for various levels of entry distances--ranging 
from a close, safe distance to 50 meters--based on sea conditions 
resulting from the lava entry. The COTP Honolulu granted express 
authorization for entry within 300 meters to the five operators. The 
authorization included operational restrictions and other vessel safety 
criteria requirements considered by the

[[Page 45462]]

COTP Honolulu and will continue under the extended period of this TFR.
    In order to review the overall impact of the final rule, a 
supplemental notice of proposed rulemaking (SNPRM) will be published, 
providing an additional 60 days for public comments and input. This TFR 
is necessary to promote navigational safety, provide for the safety of 
life and property, and facilitate the reasonable demands of commerce 
relating to tourism surrounding the lava entry points. It also provides 
an opportunity for further comment from the public. Upon publication of 
the SNPRM, we will invite additional public comments on this 
rulemaking.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists 
for making this rule effective less than 30 days after publication in 
the Federal Register. Although we expect to review the SNPRM within 30 
days of publication of this TFR, it would be impractical to delay the 
effective date of this rule. Immediate action is necessary to protect 
persons, vessels, and the public from the potential safety hazards 
associated with the ocean lava entry.

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 a safety concern 
for anyone within 300 meters (984 feet) in every direction around the 
entry of lava flow. The purpose of this rule is to ensure the safety of 
the public and vessels traveling in the navigable waters covered by the 
safety zone.

IV. Discussion of Comments, Changes, and the Rule

    This TFR extends the existing safety zone from September 28, 2017 
through March 28, 2018, or until it is no longer necessary. If the 
safety zone terminates prior to March 28, 2018, the Coast Guard will 
provide notice via established notice to mariners.
    In order to review the overall impact of the rule, the Coast Guard 
will publish an SNPRM providing an additional 60 days for comments on 
the proposed final rule. This TFR is necessary to promote navigational 
safety, provide for the safety of life and property, and facilitate the 
reasonable demands of commerce relating to tourism surrounding the lava 
entry points.

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 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select those 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. Executive Order 13771 
(``Reducing Regulation and Controlling Regulatory Costs''), directs 
agencies to reduce regulation and control regulatory costs and provides 
that ``for every one new regulation issued, at least two prior 
regulations be identified for elimination, and that the cost of planned 
regulations be prudently managed and controlled through a budgeting 
process.''
    Under Executive Order 12866, this rule has not been designated a 
``significant regulatory action. Accordingly, the Office of Management 
and Budget (OMB) has not reviewed it. As this rule is a non-significant 
regulatory action, it is exempt from the requirements of Executive 
Order 13771. See OMB's Memorandum titled ``Interim Guidance 
Implementing Section 2 of the Executive Order of January 30, 2017 
titled `Reducing Regulation and Controlling Regulatory Costs' '' 
(February 2, 2017). A regulatory analysis follows.
    This TFR extends, for an additional six months, the existing safety 
zone for the navigable waters surrounding the entry of lava from 
Kilauea volcano into the Pacific Ocean. The safety zone will remain to 
include waters within 300 meters (984 feet) of where lava enters the 
ocean. Entry of persons or vessels into the safety zone may only occur 
if granted permission by the COTP Honolulu, or his designated 
representative.
    Lava has been entering the ocean at Kamokuna on Kilauea Volcano's 
south coast since July of 2016 and will continue to do so in the 
future. When lava enters the ocean, new hazards emerge: Plumes of 
corrosive seawater can irritate the skin, eyes, and lungs; explosions 
of debris and scalding water can injure passengers; sudden collapse of 
lava deltas can cause large waves potentially capsizing vessels. This 
TFR establishes a minimum safe operating distance in order to protect 
individuals and operators from the hazards of the Kilauea lava flow at 
sea.
    This rule affects any vessel that would normally travel within 300 
meters of points where lava reaches the ocean. Currently, four lava 
tour-boat operators have state licenses to operate from the Pohoiki 
Boat Ramp, the closest location to pick up passengers for tours of the 
Kilauea lava flow. The Coast Guard is also aware of one photographer 
who photographs the Kilauea lava flow. Since the implementation of the 
temporary safety zone, the COTP granted prior approval to these parties 
to enter the safety zone, so long as they comply with the conditions 
set by the COTP. These entities are required to notify the COTP by 
phone before each tour when entering the 300-meter safety zone.
    When the Coast Guard published the original TFR on April 3, 2017, 
owners and operators were required to prepare and submit a written 
request to the COTP to enter the safety zone. The TFR is a continuation 
of the requirements extending the safety zone for an additional six 
months, and therefore, we are presenting the costs associated with this 
TFR.
    First, the captain of a lava tour boat will initiate the request to 
enter the safety zone through an initial written request to the COTP. 
Based on waiver requests from the four state-licensed operations, the 
Coast Guard estimates it takes about 4-hours for an owner or operator 
to submit a written request to enter the safety zone. This includes the 
time it would take lava tour-boat owners or operators to respond to 
questions from the COTP concerning the waiver request. Lava tour-boat 
owners or operators are only required to make this written waiver 
request once for consideration by the COTP.
    We obtained the mean hourly wage rate for a Captain of a lava tour 
boat from the Bureau of Labor Statistics (BLS) Occupational Employment 
Statistics National Occupational Employment and Wage Estimates for May 
2016. Based on BLS's data, the mean hourly wage rate for Captains, 
Mates, and Pilots of Water Vessels with the North American Industry 
Classification System (NAICS) occupational code of 53-5021 in the 
``Scenic and Sightseeing Transportation, Water'' industry is $24.42. 
Because this is an unloaded hourly wage rate, we added a load factor of 
1.52 derived from the BLS March 2017 ``Employer Cost for Compensation'' 
databases to obtain a loaded hourly wage rate of $37.12. We estimate 
the one-time initial cost for an owner or operator to prepare a written 
request and respond to comments from

[[Page 45463]]

the Coast Guard to be about $148.47 ($37.12 per hour x 4 hours). We 
estimate the total cost of the temporary final rule to be about $593.88 
($148.47 x 4 lava tour-boat owners or operators).
    Since all four tour operators and the photographer were each 
granted permission to enter the safety zone through an initial waiver 
request, the only potential cost to these tour operators is the cost of 
the initial request. Each owner or operator also will be required to 
notify the COTP before entering the safety zone. These entities shall 
notify the Coast Guard by phone; however, we do not estimate a cost for 
the call because the equipment already exists onboard the vessel and 
operators will make their calls in the normal course of a Captain's 
duty.
    The Federal Government also will incur costs of this temporary 
final rule. Government costs to implement the rule include the one-time 
cost of reviewing the waiver requests (we do not estimate a cost for 
the time to receive a call from an owner or operator to when entering a 
safety zone because the COTP conducts this review in the normal course 
of the COTP duties). To process the written request, we estimate one 
non-commissioned officer with a rank of E-7, and three officers with 
ranks of O-4, O-5, and O-6 will take about one hour each to review the 
written request. Based on the labor rates in table 1, we estimate the 
total cost to the Government of the temporary final rule to be about 
$378.00. Table 1 below summarizes these Government costs.\1\
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    \1\ We obtained the hourly wage rates from Enclosure (2) of 
Commandant Instruction 7310.1R (29 March 2017) using the ``In 
Government Rate''.

       Table 1--Total Government Costs of the Temporary Final Rule
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                                                      Labor      Total
                  Rank                   Wage rate    hours       cost
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E-7....................................        $65          1        $65
O-4....................................         92          1         92
O-5....................................        104          1        104
O-6....................................        117          1        117
                                        --------------------------------
    Total..............................  .........          4        378
------------------------------------------------------------------------

    We estimate the total cost of this temporary final rule to industry 
and the Government to be about $972 ($593.88 for lava tour-boat owners 
or operators + $378 for the Government).

B. 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. Rules that are exempt from the Administrative Procedures Act 
include interpretative rules, general statements of policy, or rules of 
agency organization, procedure, or practice; or when the agency for 
good cause finds that notice and comment are impracticable, 
unnecessary, or contrary to the public interest. When an agency is not 
required to publish an NPRM for a rule, the RFA does not require an 
agency to prepare a regulatory flexibility analysis. The Coast Guard 
was not required to publish an NPRM for this rule for the reasons 
stated in section II. ``Background Information and Regulatory History'' 
and therefore is not required to publish a regulatory flexibility 
analysis.
    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 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. A Record of Environmental Consideration supporting this 
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 rule.

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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:

Title 33--Navigation and Navigable Waters

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 Captain of 
the Port (COTP) Zone (see 33 CFR 3.70-10) and it 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. This rule is effective from September 28, 
2017, through March 28, 2018.
    (c) Definitions. As used in this section, ``designated 
representative'' means a Coast Guard Patrol Commander, including a 
Coast Guard coxswain, petty officer or other officer on a Coast Guard 
vessel or a Federal, State, or local officer designated by or assisting 
the COTP in the enforcement of the safety zones.
    (d) 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 
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. All safety zone transit requests must be in writing. 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.

    Dated: September 25, 2017.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-20902 Filed 9-28-17; 8:45 am]
 BILLING CODE 9110-04-P