[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21876-21883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10049]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone 
surrounding the area of entry of lava from the Kilauea volcano into the 
Pacific Ocean on the southeast side of the Island of Hawaii, HI. This 
action is necessary to protect persons and vessels from the potential 
hazards associated with molten lava entering the ocean. This regulation 
prohibits persons and vessels from being in the safety zone during 
active lava flow reaching the Pacific Ocean on Kilauea volcano's 
southeast coast unless specifically authorized by the Captain of the 
Port Honolulu or a designated representative.

DATES: This rule is effective without actual notice May 11, 2018. For 
purposes of enforcement, actual notice will be used if active lava 
associated with the Kilauea activity enters into the Pacific Ocean 
prior to May 11, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0234 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
FRFA Final regulatory flexibility analysis
HVO Hawaii Volcano Observatory
IRFA Initial regulatory flexibility analysis
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec.  Section symbol
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

    Molten lava that enters the ocean is 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 and vessels near active 
lava flow ocean-entry sites face potential hazards, including--
     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 began entering the ocean at the Kamokuna lava delta on Kilauea 
volcano's south coast in July 2016. Lava continued to enter the ocean 
at the Kamokuna lava delta from July 2016 to mid-November 2017.
    Ocean safety concerns began on December 31, 2016, when a large 
portion of the new lava delta collapsed into the ocean, producing waves 
and explosions of debris at 19[deg]19'12'' N, 155[deg]02'24'' W near 
the Kamokuna entry point. Following this collapse, portions of the 
adjacent sea cliff continued to collapse into the Pacific Ocean, 
producing localized waves and showers of debris.
    In March 2017, a new delta began to form at the Kamokuna ocean-
entry point, and from March 2017 to July 2017, several collapses of the 
lava bench were observed by National Park Service and Hawaiian Volcano 
Observatory (HVO) staff. Beginning in the middle of November 2017, the 
lava flow slowed down and subsequently stopped entering the ocean, and 
as of March 2018, the lava flow remains inactive.
    Though the Kamokuna lava delta is not currently active, this region 
and associated coastline remains hazardous both to visitors on land and 
to the boating public due to active seismic and lava activity 
associated with the Kilauea lava flow. According to the HVO, which is 
part of the U.S. Geological Survey and responsible for monitoring 
volcanoes and earthquakes in Hawaii, the lava delta remains unstable 
and resumed ocean lava flow is realistic. Hazards to the public include 
hot gases, lava, scalding water, unstable vertical sea

[[Page 21877]]

cliffs and possible sudden explosions should the lava delta begin to 
collapse. Additionally, cracks parallel to the sea cliff in the 
surrounding area indicate that further collapses with little or no 
warning are possible. Therefore, the safety zone remains relevant. When 
the safety zone is being enforced, access into the safety zone can 
still be requested to the Captain of the Port (COTP) Honolulu.
    On March 28, 2017, the COTP Honolulu issued a temporary final rule 
(TFR) under docket number USCG-2017-0172. The TFR established a safety 
zone to immediately protect persons and vessels from the potential 
hazards associated with molten lava entering the ocean. The safety zone 
encompassed all waters extending 300 meters (984 feet) in every 
direction around all ocean-entry points of lava. The Coast Guard 
prohibited entry of persons or vessels into the safety zone, unless 
authorized by the COTP Honolulu, or his designated representative.
    The TFR was published in the Federal Register (82 FR 16109) on 
April 3, 2017. A six-month extension of the TFR was published in the 
Federal Register (82 FR 45461) on September 29, 2017, extending the TFR 
through March 28, 2018. The TFR extension allowed the Coast Guard to 
analyze the economic impact of the safety zone and provide for 
additional public comment.
    On April 3, 2017, the Coast Guard also published a notice of 
proposed rulemaking (NPRM) in the Federal Register (82 FR 16142), which 
proposed to make the temporary safety zone a final rule, and invited 
the public to comment during the comment period. During this comment 
period, which ended June 2, 2017, we received 67 comments.
    On May 8, 2017, we held a public meeting in Hilo, HI, that allowed 
local citizens and small businesses affected by the TFR to discuss the 
lava safety concerns, the safety zone impact, and the impact the 
proposed rule would have on ocean users. Participants were encouraged 
to submit formal feedback to the rulemaking docket.
    On December 20, 2017, the Coast Guard published a supplemental 
notice of proposed rulemaking (SNPRM) in the Federal Register (82 FR 
60341). Its purpose was to address additional concerns related to the 
potential impact of the safety zone on small entities should lava flow 
resume. Lava flow entering the ocean ended in November, 2017. The SNPRM 
addressed the past and future concerns, and invited the public to 
further comment during the comment period, which ended February 20, 
2018. During this comment period, we received two comments that were 
not germane to the rulemaking and only one from the public.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. Delaying the effective date of 
this rule would be impracticable because immediate action is needed due 
to recent volcanic activity. Active eruption of lava and gas has 
recently commenced and continues from Kilauea Volcano. On Friday, May 
4, 2018, a magnitude 6.9 earthquake was measured in the region and HVO 
advises that more should be expected with a larger aftershocks 
potentially producing rockfalls, localized tsunamis, and associated ash 
clouds. High levels of lava and volcanic gas including Sulphur Dioxide 
are being emitted from the fissure vents. In consideration of the 
events, safety hazards and concerns, the Coast Guard finds that good 
cause exists for making this regulation effective immediately. This 
rule is needed to protect personnel and vessels in the navigable waters 
with the safety zone.

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 there are potential hazards 
associated with the molten lava at the Kamokuna lava delta or future 
locations associated with the Kilauea lava flow, which pose potential 
safety concerns for anyone within 300 meters of the ocean-entry point.
    The purpose of this rule is to establish a permanent safety zone 
around the lava flow entry area associated with the Kilauea lava delta 
entry coastline to mitigate ocean hazards during times when lava is 
entering the ocean. Additionally, this rule allows the Coast Guard to 
impose and enforce restrictions on vessels operating near the lava flow 
that enters the ocean as the Coast Guard determines necessary. This 
action is necessary to promote safe navigation, and to preserve the 
safety of life and property. Vessels capable of safely operating inside 
the safety zone may be authorized to enter by the COTP Honolulu or his 
designated representative. Vessels approved for transiting within the 
safety zone during active lava ocean entry are required to adhere to 
specific conditions set by the COTP Honolulu. Mariners who seek initial 
authorization to enter the safety zone when there is active lava ocean 
entry must submit a written request by email or letter. The request 
must explain how the vessel will operate safely in proximity to lava. A 
typical request should note the vessel's condition, the operator's 
familiarity with the surrounding waters, and any specific safety 
practices for operating near the lava ocean-entry points. Once initial 
authorization is received, a vessel owner or operator only needs to 
contact COTP Honolulu by phone or radio to request permission to enter 
the safety zone.

IV. Discussion of Comments, Changes, and the Rule

    In response to the NPRM, the Coast Guard received 67 public 
comments. In addition to both the NPRM and the public meeting held in 
Hilo, HI, on May 8, 2017, we published a SNPRM to further address 
economic impacts on small entities potentially affected by the safety 
zone. The Coast Guard received two public comments on the SNPRM, 
neither of which were germane to the rulemaking. All public comments 
and the public meeting summary are available in the docket for this 
rulemaking where indicated under ADDRESSES.
    Based on all the comments received, the Coast Guard adopts the rule 
as proposed in the NPRM and supplemented in the SNPRM as 33 CFR 
165.1414 without major change. After review of the SNPRM proposed 
language, we made a minor edit to paragraph (c) to clarify that this is 
no longer proposed language. In paragraph (c)(2), we also further 
clarify that entry into or remaining in this safety zone, when 
enforced, is prohibited unless authorized by the COTP Honolulu or his 
designated representative. This clarification is necessary to highlight 
that when lava is not a threat to mariners, the safety zone is not 
enforced. Finally, in paragraph (c)(3), we added further clarification 
that notice for entry into the safety zone is necessary only when the 
safety zone is enforced.
    We received nine comments on the NPRM in support of the proposed 
rule. One commenter noted that he had taken a lava boat tour and felt 
that the vessel got too close to the entry point and that he 
experienced adverse health symptoms from being in the lava plume. 
Several commenters agreed that the safety zone should be consistent 
with that of the landside restriction of 300 meters. Other commenters 
supported the safety zone due to the hazards resulting from the entry 
of volcanic lava into the ocean.
    The Coast Guard received 18 comments regarding the safety zone's 
size and location. These comments ranged from being in favor of the 
300-meter safety zone to being opposed.

[[Page 21878]]

Nine opposing views stated that 300 meters is excessively restrictive. 
One comment from the National Oceanic Atmospheric Administration stated 
that the Coast Guard should ``provide definitive bounding coordinates 
for the safety zone, instead of a general statement that the safety 
zone will encompass all waters extending 300 meters in all directions 
around the entry point of lava flow into the ocean associated with the 
lava flow at the Kamokuna lava delta or Kilauea crater.''
    We believe that because of the unpredictable and varying nature of 
the active lava flowing into the ocean at this area, the Coast Guard 
cannot issue specific geographic coordinates of the safety zone in the 
final rule, but will note the current entry site and update for future 
sites. We note, with the concurrence of NOAA's Nautical Data Branch, 
Marine Chart Division, the position 19[deg]19'08'' N, 155[deg]02'36'' 
W. These are the coordinates provided for Kamokuna Beach in the U.S. 
Geological Survey's Geographic Names Information System. Future lava 
entry locations may vary from the Kamokuna Beach location.
    Additionally, because of the varying dangers of the lava entry and 
fragile bench shelf development, the Coast Guard cannot provide a 
specific distance at which a vessel can safely operate. However, the 
COTP Honolulu has permitted vessels to operate within the 300-meter 
safety zone under certain conditions when the safety zone is actively 
enforced.
    The Coast Guard received one comment from Hawaii Volcanoes National 
Park supporting a safety zone ``that is flexible to account for 
whatever location the lava may occur since it is not a static event in 
time or space,'' and a recommendation ``that the proposed rule apply 
not just to the Kamokuna ocean-entry point, but any location in the 
future where lava enters the ocean.''
    We agree, and the final rule includes language stating that all 
locations associated with the Kilauea lava flow entering the Pacific 
Ocean on the eastern side of the Island of Hawaii, HI, are included 
under the safety zone.
    Sixteen commenters recommended that the Coast Guard reduce the 300-
meter radius of the safety zone.
    We believe that based on Sector Honolulu's review of the historical 
observations of delta collapses and ejecta distances from HVO records, 
a radius of 300 meters remains a safe and reasonable distance for a 
high-hazard zone for the general boating public. The HVO reports that 
explosions from delta collapses ``have hurled hot rocks nearly a meter 
(yard) in size as far as about 250 m (273 yards) inland from the 
collapsed delta and scattered rock debris onshore over an area the size 
of several football fields. These explosions also hurl rocks seaward, 
probably to similar distances.'' \1\
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    \1\ https://volcanoes.usgs.gov/observatories/hvo/hawaii_ocean_entry.html.
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    The 300-meter safety zone also mirrors land and air restrictions 
for lava flow viewing. Furthermore, HVO staff reiterated the need for a 
300-meter safety zone at the public meeting held on this rulemaking. 
Accordingly, the Coast Guard will maintain the safety zone's 300-meter 
radius, with the option of allowing operators to request authorization 
to enter the safety zone from the COTP Honolulu.
    The Coast Guard received 30 comments in favor of allowing the lava 
tour-boat owners and operators to enter and operate in the safety zone.
    Under this final rule, any vessel owner or operator may submit a 
written request to the COTP Honolulu, or his designated representative, 
for authorization to enter the safety zone. Such written requests must 
explain how the vessel will operate safely in proximity to lava. A 
typical request should note the vessel's condition, the operator's 
familiarity with the surrounding waters, and any specific safety 
practices for operating near the lava ocean-entry points. Once initial 
authorization is received, a vessel owner or operator only needs to 
contact COTP Honolulu by phone or radio to request permission to enter 
the safety zone. Prior to the NPRM, the Coast Guard promulgated a TFR 
for a 300-meter safety zone at the Kamokuna lava delta. Pursuant to the 
TFR, the COTP Honolulu granted four lava tour-boat owners and operators 
and one photographer access to operate within the safety zone. If lava 
begins to flow into the ocean again, these tour operators will be 
granted renewed permission to enter the safety zone. The Coast Guard 
received three comments regarding access or exclusive access to the 
lava flow by Hawaiian natives. This rule is concerned with the safety 
aspect of access to the lava flow area. Mandating exclusive access to 
the lava flow is outside the scope of this rulemaking and is outside 
the Coast Guard's authority. When the safety zone is enforced, this 
rule provides guidance for requesting permission to enter the safety 
zone from the COTP Honolulu or his designated representative.
    The Coast Guard received one comment regarding the lack of reliable 
VHF radio communications near the lava flow area, thereby preventing 
lava tour-boat owners and operators from hailing the Coast Guard via 
VHF radio.
    We are aware of the VHF radio limitations in this area, and are 
currently researching how to improve radio coverage. The COTP Honolulu 
and Coast Guard Base Honolulu are attempting to install equipment in 
the vicinity to enhance communications in this area. In the meantime, 
vessel owners and operators are encouraged to use alternate means to 
communicate effectively near the lava flow ocean-entry points. They are 
also encouraged to contact the Coast Guard in advance of their transits 
to the lava ocean-entry points and departure in order to facilitate 
effective communications as well as the timely processing of any 
written request for authorization to enter the safety zone.
    The Coast Guard received four comments regarding general unsafe 
conditions at the boat ramp where tour operators launch.
    Boat ramps and associated safe boating concerns are a state 
management issue. We have forwarded this comment to the appropriate 
state office.
    One comment proposed the safety zone be stationary and move with 
the lava shelf, essentially creating a moving safety zone.
    Title 33 CFR 165.20 defines a safety zone as a water area to which, 
for safety purposes, access is limited to authorized persons or 
vessels. It further states that a safety zone may be stationary and 
described by fixed limits. We believe that in this situation, the entry 
point of the lava changes based on flow, and as such, the safety zone 
would encompass all waters extending 300 meters (984 feet) in all 
directions around the entry point of lava flow into the ocean. The 
Coast Guard does not define this as a moving safety zone around a 
moving object, but rather as a necessary adjustment to a dynamic 
environmental occurrence, which may have multiple lava entry points.
    The Coast Guard also received a comment stating that our 
certification under 5 U.S.C. 605(b), concerning the economic impact on 
small entities, was potentially arbitrary as it lacked any factual 
basis for the certification. An initial regulatory flexibility analysis 
in accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-
612, was conducted through an SNPRM, which allowed for public comment. 
The Coast Guard received no comments on the initial regulatory 
flexibility analysis (IRFA).
    The Coast Guard received two comments regarding Executive Order 
13771, Reducing Regulation and

[[Page 21879]]

Controlling Regulatory Costs, which directs a reduction of the 
promulgation of new regulations. As discussed in the following section, 
this rule is exempt from this Executive order.

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 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 13563, Improving Regulation and Regulatory Review, 
and 12866, Regulatory Planning and Review, 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 (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). 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.''
    The Office of Management and Budget (OMB) has not designated this 
rule a ``significant regulatory action,'' under section 3(f) of 
Executive Order 12866. Accordingly, OMB has not reviewed it. As this 
rule is not a significant regulatory action, this rule is exempt from 
the requirements of Executive Order 13771. See OMB's Memorandum 
``Guidance Implementing Executive Order 13771, Titled 'Reducing 
Regulation and Controlling Regulatory Costs''' (April 5, 2017).
    We only received one public comment on the SNPRM and it was beyond 
the scope of this regulation. Therefore, we adopt the preliminary 
regulatory analysis for the proposed rule as final. A summary of that 
analysis follows.
    This regulatory analysis provides an evaluation of the economic 
impacts associated with this final rule. The Coast Guard is issuing a 
final rule to ensure the safety of mariners, lava tour-boat passengers, 
and the protection of property by establishing a 300-meter safety zone 
from every direction and all points where lava enters the ocean. In 
order to mitigate the potential costs of this rule, the Coast Guard has 
and will continue to issue exemptions to mariners that can demonstrate 
a level of safety sufficient for the additional hazards present where 
lava enters the ocean.
    In November 2017, lava ceased flowing from Kilauea volcano into the 
Pacific Ocean. Consequently, the Coast Guard has temporarily stopped 
enforcing the safety zone. In the final rule, we added regulatory text 
clarifying that the regulation is only enforced when lava is actively 
flowing into the ocean. This change will not impose any economic costs 
on any mariners or members of the public because it does not create any 
requirements. Other than changes clarifying that the safety zone is 
enforced as long as lava flows into the ocean, we made no further 
changes to the regulatory text.
    Table 1 provides a summary of the affected population, costs, and 
benefits of this rule.

              Table 1--Summary of Impacts of the Final Rule
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                 Category                              Summary
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Affected population.......................  4 tour boat operators.
Costs to industry.........................  593.88.
Costs to government.......................  378.00.
Total costs...............................  971.88.
Unquantified benefits.....................  Protection from unsafe
                                             operations where vessels
                                             enter the safety zone.
------------------------------------------------------------------------

Affected Population
    This final rule makes permanent the existing TFR safety zone for 
the navigable waters surrounding the entry of lava from Kilauea volcano 
into the Pacific Ocean. The TFR restricted access to those vessels that 
contacted the COTP Honolulu and requested permission to enter the 
temporary safety zone.
    Therefore, this rule affects any vessel that would normally travel 
within 300 meters of points where lava reaches the ocean. Due to the 
hazards and relative remoteness of the area, the Coast Guard is not 
aware of any vessel operations within 300 meters of where lava enters 
the ocean other than those conducted by lava tour-boat owners and 
operators. While the TFR was still in effect, the COTP Honolulu granted 
four lava tour-boat owners and operators and one photographer 
authorization to enter the safety zone under certain conditions. When 
lava reenters the safety zone, these four tour operators will 
constitute the affected population because the Coast Guard does not 
believe other entities are likely to operate near the safety zone.
Costs
    Under the TFR, published concurrently with the NPRM on April 3, 
2017, vessel owners and operators were required to prepare and submit a 
written request to the COTP Honolulu to enter the safety zone. Because 
the requirements of this final rule are consistent with the 
requirements in the TFR, we are presenting the costs associated with 
the TFR in this final rule. Tour operators that previously applied will 
be grandfathered in and permitted to operate in the safety zone when 
the lava flow returns in the future. Additional operators that wish to 
enter the safety zone will need to submit written requests to the COTP 
Honolulu. The Coast Guard is not aware of any additional individuals 
that are likely to request access to enter the safety zone in the 
future.
    The written request requirement was contained in the previous TFR 
and each lava tour-boat owner and operator seeking authorization to 
enter the safety zone complied. Based on discussions with COTP Honolulu 
personnel, we estimated it takes about four hours for a vessel owner or 
operator to submit a written request to enter the safety zone. This 
includes the time it would take lava tour-boat owners and operators to 
respond to questions from the COTP concerning the written request. Lava 
tour-boat owners and operators would only be required to make a written 
request once rather than for each voyage. The Coast Guard is not aware 
that any voyages were terminated due to a lack of authorization to 
enter the safety zone during the period operators requested to enter.
    We obtained the mean hourly wage rate for a captain of a lava tour-
boat from the May 2016 Bureau of Labor Statistics (BLS) Occupational 
Employment Statistics National Occupational Employment and Wage 
Estimates. Based on BLS 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.\2\ 
Because this is an unloaded

[[Page 21880]]

hourly wage rate, we added a load factor of 1.52 derived from the May 
2016 BLS ``Employer Cost for Compensation'' database to obtain a loaded 
hourly wage rate of $37.12.\3\ Using this information, we estimated the 
one-time initial cost for an owner or operator to prepare a written 
request and respond to comments from the Coast Guard to be $148.47.\4\ 
Therefore, we estimated the total cost of the proposed rule on tour 
operators to be $593.88.\5\
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    \2\ Captains, mates, and pilots may work in numerous industries. 
We use the BLS industry-specific mean hourly wage rate for the 
affected tour boat operators from the ``Scenic and Sightseeing 
Transportation, Water'' industry. See http://www.bls.gov/oes/2016/may/oes535021.htm.
    \3\ A loaded wage rate is what a company pays per hour to employ 
a person, not an hourly wage. The loaded wage rate includes the cost 
of benefits (health insurance, vacation, etc.). The load factor for 
wages is calculated by dividing total compensation by wages and 
salaries. For this analysis, we used BLS Employer cost of employee 
compensation/Transportation and Materials Moving Occupations, 
Private Industry Report (Series IDs, CMU2010000520000D and 
CMU2020000520000D) for all workers using the multi-screen data 
search. Using 2016 Q4 data for the cost of compensation per hour 
worked, we divided the total compensation amount of $28.15 by the 
wage and salary amount of $18.53 to obtain the load factor of 1.52, 
rounded. See the following websites: https://beta.bls.gov/dataQuery/find?fq=survey:[oe]&s=popularity:D and https://data.bls.gov/cgi-bin/dsrv?cm. Multiplying 1.52 by $24.42, we obtained a loaded hourly 
wage rate of $37.12, rounded.
    \4\ $37.12 x 4 hours.
    \5\ $148.47 x 4 tour operators.
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    Since all four lava tour-boat owners and operators were each 
granted permission to enter the safety zone through an initial written 
request, the only cost to these lava tour-boat owners and operators was 
the cost of the initial request. Each owner or operator would also be 
required to notify the COTP Honolulu by phone during the normal course 
of their duties before entering the safety zone. We did not estimate a 
cost for the call because the equipment already exists onboard each 
vessel and the time cost is minimal. The total costs to industry are 
therefore $593.88.
    Government costs to implement this rule include the one-time cost 
of reviewing the written requests. We did not estimate a cost for the 
time to receive a call from an owner or operator when entering the 
safety zone because the COTP Honolulu conducts this review in the 
normal course of duties and the time requirements are minimal. To 
process the written requests, we estimated one non-commissioned officer 
with a rank of E-7, and three officers with ranks of O-4, O-5, and O-6 
would take about one hour each to review the written request. Based on 
the labor rates listed in Table 2,\6\ we estimated the total cost of 
the rule to the Federal government to be $378.00.
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    \6\ We obtained the hourly wage rates for government personnel 
from Enclosure (2) of Commandant Instruction 7310.1R (29 March 2017) 
using the ``In Government Rate.''

                           Table 2--Total Government Costs of the Temporary Final Rule
----------------------------------------------------------------------------------------------------------------
                              Rank                                   Wage rate      Labor hours     Total cost
----------------------------------------------------------------------------------------------------------------
E-7.............................................................             $65               1             $65
O-4.............................................................              92               1              92
O-5.............................................................             104               1             104
O-6.............................................................             117               1             117
                                                                 -----------------------------------------------
    Total.......................................................  ..............               4             378
----------------------------------------------------------------------------------------------------------------

    We estimated the total cost of this rule to lava tour-boat owners 
and operators and to the Federal government to be $971.88.\7\
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    \7\ $593.88 in costs to industry + $378 in costs to the Coast 
Guard.
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Benefits
    Lava flow that enters the ocean is potentially hazardous and 
presents a danger to vessels navigating within close proximity of where 
the flow enters the ocean, 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. The primary benefit of this rule is to promote safe 
navigation, and preserve the safety of life and property by ensuring 
that vessel operators are prepared for the greater risks present where 
lava enters the ocean. If vessel operators wish to transit through the 
safety zone they will be required to first contact the COTP Honolulu 
for permission with an explanation of how their safety and lifesaving 
equipment is adequate to meet the greater risks present.

B. Impact on Small Entities

    The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 94 Stat. 1164 
(codified at 5 U.S.C. 601-612)) establishes ``as a principle of 
regulatory issuance that agencies shall endeavor, consistent with the 
objectives of the rule and of applicable statutes, to fit regulatory 
and informational requirements to the scale of the businesses, 
organizations, and governmental jurisdictions subject to regulation. To 
achieve this principle, agencies are required to solicit and consider 
flexible regulatory proposals and to explain the rationale for their 
actions to assure that such proposals are given serious 
consideration.'' \8\
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    \8\ See RFA section 2(b), 94 Stat. 1164, 1165.
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    When an agency promulgates a final rule under section 553 of the 
Administrative Procedure Act Administrative Procedure Act, after being 
required by that section or any other law to publish a general notice 
of proposed rulemaking, the agency must prepare a FRFA or have the head 
of the agency certify pursuant to RFA section 605(b) that the rule will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities. The RA prescribes the content of 
the FRFA, which we discuss below.
    In accordance with the RFA, the Coast Guard prepared this FRFA that 
examines the impacts of the final rule on small entities. A small 
entity may be:
     A small independent business, defined as independently 
owned and operated, is organized for profit, and is not dominant in its 
field per the Small Business Act (15 U.S.C. 632);
     A small not-for-profit organization (any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field); or
     A small governmental jurisdiction (locality with fewer 
than 50,000 people).
    This FRFA addresses the following:
    (1) A statement of the need for, and objectives of, the rule;
    (2) A statement of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
statement of the assessment of the agency of such issues, and a 
statement of any changes made in the proposed rule as a result of such 
comments;
    (3) The response of the agency to any comments filed by the Chief 
Counsel for

[[Page 21881]]

Advocacy of the SBA in response to the proposed rule, and a detailed 
statement of any change made to the proposed rule in the final rule as 
a result of the comments;
    (4) A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available;
    (5) A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record;
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    Below is a discussion of FRFA analysis by each of these six 
elements:
    (1) A statement of the need for, and objectives of, the rule.
    Lava entered the ocean at Kamokuna on Kilauea volcano's south coast 
between July of 2016 and November of 2017. Lava will continue to enter 
the ocean again in the foreseeable future. When lava enters the ocean, 
potential hazards emerge such as: Plumes of corrosive seawater can 
irritate the skin, eyes, and lungs; explosions of debris and scalding 
water can injure passengers; collapses of lava deltas can cause large 
waves potentially capsizing vessels. Unless vessels have the proper 
equipment and their operators take sufficient precautions, passengers 
and operators face significant hazards to their lives as well as 
property. This rule is necessary to promote navigational safety, 
provide for the safety of life and property, and facilitate and 
accommodate the reasonable demands of commerce related to tourism 
surrounding the lava ocean-entry points.
    This safety zone will ensure the safety of mariners, lava tour-boat 
passengers, and the protection of property by establishing a 300-meter 
safety zone from every direction and all points where lava enters the 
ocean.
    (2) A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement of the assessment of the 
agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments.
    We only received one public comment which was beyond the scope of 
the rule; therefore, we made no changes to the proposed rule as a 
result of public comments.
    (3) The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the SBA in response to the proposed rule, and a 
detailed statement of any change made to the proposed rule in the final 
rule as a result of the comments.
    We received no comments the Chief Counsel for Advocacy of the SBA.
    (4) A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available.
    This rule affects any vessel that would normally travel within 300 
meters of points where lava reaches the ocean. Due to the hazards and 
relative remoteness of such an area, the Coast Guard believes only lava 
tour operators would regularly operate within 300 meters of a point 
where lava enters the ocean. Based on the Coast Guard's understanding, 
there are four known lava tour-boat operators and one photographer who 
regularly come within 300 meters of the Kilauea lava flow.
    Of the four lava tour-boat owners and operators who would transit 
within the safety zone, we could not find publically available 
information such as annual revenues and number of employees for three 
of the four operators. We assumed these three operators qualified as 
small entities. We found revenue information on the fourth lava tour-
boat owner. Using Manta, a publicly available database for businesses 
in the United States, we found this lava tour-boat owner to have annual 
revenues of $220,000 and a NAICS code of 561520, ``Tour Operators.'' 
\9\ This NAICS code has a size threshold of $20.5 million for annual 
revenues, based on the Small Business Administration's table of size 
standards.\10\ Based on this information, this lava tour-boat operator 
also qualified as a small entity.
---------------------------------------------------------------------------

    \9\ Accessed July 17, 2017 from https://www.manta.com/c/mb05066/kalapana-cultural-tours-inc.
    \10\ https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
---------------------------------------------------------------------------

    Based on discussions with COTP Honolulu personnel and using the 
wage rates and labor hour estimates as established above, we estimated 
it would take about four hours for an owner or operator of a lava tour-
boat to prepare 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 written request. Lava 
tour-boat owners and operators would be only required to make this 
request once rather than for every voyage.
    Above we obtained a loaded hourly wage rate of $37.12 for captains, 
mates, and pilots of water vessels. We estimated the one-time initial 
cost for an owner or operator to prepare a written request and respond 
to comments from the Coast Guard to be about $148.47. We estimated the 
total cost of the rule on tour operators to be about $593.88.
    As mentioned above, we only found revenue data on one of the four 
operators. Therefore, we estimate the initial revenue impact of this 
rule on this lava tour-boat owner to be about $148.47, which is 0.07% 
of the company's revenue. There are no annual revenue impacts because 
the written request needs to be made once, after which each lava tour-
boat operator would notify the COTP Honolulu by phone to obtain 
permission to enter the safety on a given day.
    (5) A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    The Coast Guard considered the alternative of not establishing a 
safety zone. However, without a safety zone, vessel owners and 
operators would be unprepared for the greater hazards that are present 
near the Kilauea lava flow ocean-entry point. These vessel owners and 
operators and passengers could suffer grave injury or in the extreme 
case death, in addition to damage to or loss of property, if adequate 
protection is not provided. Therefore, the Coast Guard decided a safety 
zone was necessary to promote navigational

[[Page 21882]]

safety, provide for the safety of life and property, and to accommodate 
and facilitate the reasonable demands of commerce relating to tourism 
surrounding the lava entry points. No cost to industry or government 
would be associated with this alternative; nevertheless, we rejected 
this alternative because it would not ensure that the boating public 
would operate within a safe distance of where the lava flow enters the 
ocean.
    Alternatively, the Coast Guard could have instituted a safety zone 
without permitting any entry into the safety zone. This alternative 
would have imposed substantial cost onto the four small entity tour 
operators. As a result, the Coast Guard did not select this 
alternative.
    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 establishing a safety zone that would prohibit persons 
and vessels from entry into the 300-meter (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 L60(a) of Appendix A, Table 1, of DHS 
Instruction Manual 023-01-001-01, Rev. 01. 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 specified 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.  165.1414 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 Captain of 
the Port (COTP) Honolulu Zone (See 33 CFR 3.70-10) and encompasses all 
primary areas 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 may 
change based on flow. The safety zone encompasses all waters extending 
300 meters (984 feet) in all directions around entry points of lava 
flow into the ocean associated with the Kilauea active lava flow.
    (b) Definitions. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the COTP Honolulu to assist in enforcing the safety 
zone described in paragraph (a) of this section.
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to this safety zone.
    (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 when enforced is 
prohibited unless authorized by the COTP Honolulu, or his designated 
representative.
    (3) Persons or vessels desiring to enter the safety zone identified 
in paragraph (a) of this section should submit a written request to the 
COTP Honolulu before initial entry into the safety zone when the Coast 
Guard notifies the public of safety zone enforcement. The request must 
explain how the vessel will operate safely in proximity to lava. A 
typical request should note the vessel's condition, the operator's 
familiarity with the surrounding waters, and any specific safety 
practices for

[[Page 21883]]

operating near the lava ocean-entry points. Persons authorized initial 
entry may, thereafter, 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.
    (4) 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 transiting through or in the safety zone as well as 
maintain a safe distance from the lava hazards.
    (5) 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. The Coast Guard vessels enforcing this 
section can be contacted on marine band radio VHF-FM channel 16 (156.8 
MHZ). The COTP Honolulu and his or her designated representatives can 
be contacted at telephone number listed in paragraph (c)(3) of this 
section.
    (6) The Coast Guard may be assisted in the patrol and enforcement 
of the safety zone by Federal, State, and local agencies.

    Dated: May 7, 2018.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2018-10049 Filed 5-10-18; 8:45 am]
 BILLING CODE 9110-04-P