[Federal Register Volume 84, Number 189 (Monday, September 30, 2019)]
[Rules and Regulations]
[Pages 51402-51405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20627]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket Number USCG-2019-0150]
RIN 1625-AA08


Special Local Regulation; Kailua Bay, Ironman World Championship, 
Kailua-Kona, Hawaii

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a recurring special local 
regulation for certain waters of Kailua Bay, Hawaii. This action is 
necessary to provide for the safety of life on these navigable waters 
located at Kailua-Kona, HI, during the swim portion of the Ironman 
World Championship Triathlon and practice swim held on consecutive 
weekends annually in October. On both days, the swim events are held 
from 3:45 a.m. to 11 a.m. This rulemaking prohibits persons and vessels 
from being in the regulated area each day of the event unless 
authorized by the Captain of the Port Honolulu.

DATES: This rule is effective September 30, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0150 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 Chief Jason Olney, Waterways Management Division, U.S. 
Coast Guard Sector Honolulu; telephone (808) 522-8265, 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
SLR Special Local Regulation
U.S.C. United States Code

II. Background Information and Regulatory History

    On April 18, 2019, the Coast Guard published a Notice of Proposed 
Rulemaking (NPRM) in the Federal Register (84 FR 16223) entitled 
``Special Local Regulation; Kailua Bay, Ironman World Championship, 
Kailua-Kona, Hawaii.'' In the NPRM we stated why we issued the NPRM, 
and invited comments on our proposed regulatory action related to this 
swim event. During the comment period that ended May 18, 2019, we 
received four comments.
    This annual event consists of a practice swim and then a race swim 
held on two consecutive weekends in October. This event is a world 
famous triathlon with participants coming from around the world to 
compete. The event occurs within the ocean waters of Kailua Bay, HI. 
Each swim event consists of 2,500 participants swimming a 2.4 mile 
(4,224 yard) marked race course located in navigable shallow ocean 
waters. Because of increased spectator pleasure craft drawn to support 
and view the Ironman swim event, spectator vessel traffic poses a 
significant safety hazard due to the limited maneuverability of swim 
participants and vessels navigating in close proximity to the 
designated area.
    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. Due to the comments received and 
evaluation of those comments, the Coast Guard is unable to publish this 
final rule in time to meet the 30 day

[[Page 51403]]

requirement. Delaying the effective date would be contrary to the 
rule's objectives of protecting safety of life on the navigable waters 
in the vicinity of the large swim event.

III. Legal Authority and Need for Rule

    The COTP Honolulu is establishing a recurring special local 
regulation to be enforced from 3:45 a.m. to 11 a.m., on consecutive 
weekends in October annually. For both the race itself and the practice 
swim event, six hours are required for all participants to complete the 
swim course. The regulated area would cover all navigable waters of 
Kailua Bay within 100 yards adjacent to the 2.4 mile (4,224 yards) swim 
course, starting at the shoreline northeast of Kailua Pier at 
19[deg]38.341' N, 155[deg]59.782' W; thence southeast to 19[deg]37.416' 
N, 155[deg]59.444' W; thence southwest to 19[deg]37.397' N, 
155[deg]59.500' W; thence northwest to 19[deg]38.150' N, 
155[deg]59.760' W, thence north and back to Kailua Pier at 
19[deg]38.398' N, 155[deg]59.816' W, and returning along the pier to 
the originating point on the shoreline at to 19[deg]38.341' N, 
155[deg]59.782' W. The statutory basis for this rulemaking is 46 U.S.C. 
70041, 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.
    The COTP has determined that potential safety hazards exist 
necessitating the movement restriction of all vessels and persons, 
including event participants, in the regulated area. The purpose of 
this rule is to ensure safety of vessels and navigable waters in the 
special local regulation before, during, and after the event.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received four comments on our NPRM published 
April 18, 2019.
    The Coast Guard received three comments in support of the proposed 
rule, noting that additional Federal safety and security measures not 
only provides another layer of protection to swimmers in the water but 
promotes safety to all mariners in the race vicinity.
    The Coast Guard received one comment regarding an adjustment to the 
proposed start time in the NPRM of 5:00 a.m. for both race days in 
October, noting that during past races, participants would encounter 
unfavorable swim conditions. The commenter suggested moving the 5:00 
a.m. start time to 3:45 a.m., to allow waters to calm and adjust race 
times if necessary. Additionally, the Coast Guard would have ample time 
to ensure the race course is clear of vessels and other non-
participants.
    We agree, and the final rule includes language stating the start 
time for both races in October.
    The Coast Guard received one notification from event sponsor that 
race days are subject to change from Saturdays to Sundays depending on 
Cruise ship operations. Cruise Ship Operations occurring in the Kailua-
Kona Security Zone, 33 CFR 165.30 prohibit persons or vessels from 
entering without express permission of the Captain of the Port 
Honolulu.
    We agree, and the proposed final rule includes a change in language 
from ``consecutive Saturdays'' to ``consecutive weekends'' to 
accommodate race day changes.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size, 
location, duration, event history, time of day, and time of year of the 
regulated area which would impact a small designated area of Kailua 
Bay. Vessel traffic will be able to safely transit around the event. 
Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the regulation and will promulgate a 
Notice of Enforcement and issue a Local Notice to Mariners each year. 
Finally, the rule would allow vessels to seek permission to enter the 
regulated area, transit around the race area, and vessel traffic would 
be able to safely transit the regulated area once the COTP of 
Honolulu's PATCOM deems it safe to do so.

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 received no comments from the Small Business 
Administration on this rulemaking. The Coast Guard certifies under 5 
U.S.C. 605(b) that this rule will not have a significant economic 
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
call or email 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

[[Page 51404]]

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 call or email 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 
Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), 
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 implementation of regulations within 33 
CFR 100 applicable to organized marine events on the navigable waters 
of the United States that could negatively impact the safety of 
waterway users. It is categorically excluded from further review under 
paragraph L61 in Table 3-1 of U.S. Coast Guard Environmental Planning 
Implementing Procedures. A Record of Environmental Consideration 
supporting this determination is available in the docket where 
indicated under ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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 100

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 100 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority:  46 U.S.C. 70041; 33 CFR 1.05-1.


0
2. Add Sec.  100.1402 to read as follows:


Sec.  100.1402  Special Local Regulation; Kailua Bay, Ironman World 
Championship, Kailua-Kona, Hawaii.

    (a) Definitions. As used in this section:
    Buffer area is a neutral 100-yard area that surrounds the perimeter 
of the course area's navigable waters as described by this section. The 
purpose of a buffer area is to minimize potential collision conflicts 
with marine event participants and spectator vessels or nearby 
transiting vessels. This area provides separation between a course area 
and spectator viewing areas.
    Captain of the Port (COTP) Honolulu means the Commander, U.S. Coast 
Guard Sector Honolulu or any Coast Guard commissioned, warrant or petty 
officer who has been authorized by the COTP to act on his behalf.
    Coast Guard Patrol Commander (PATCOM) means a commissioned, 
warrant, or petty officer of the U.S. Coast Guard who has been 
designated as PATCOM by the Commander, Coast Guard Sector Honolulu.
    Course area is an area described by a line bound by coordinates 
provided in latitude and longitude that outlines the boundary of the 
event swim area within the overall regulated area defined by this 
section.
    Enforcement vessels are designated vessels authorized by the COTP 
Honolulu, the event PATCOM, or COTP Honolulu's designated 
representatives to support the safety and security of the marine event.
    Official Patrol means any vessel assigned or approved by Commander, 
Coast Guard Sector Honolulu with a commissioned, warrant, or petty 
officer on board.
    Participant means any persons registered with the event sponsor as 
participating in the Ironman Triathlon or practice swim.
    Regulated area is the combined course area and buffer area.
    Spectators are all persons and vessels not registered with the 
sponsor as participants, support vessels, or enforcement vessels.
    (b) Location. All coordinates reference Datum NAD 1983.
    (1) Regulated area. All navigable waters within Kailua Bay and 
encompasses the course area and surrounding 100-yard buffer area. This 
course area and 100-yard buffer area extends from the surface of the 
water to the ocean floor.
    (2) Course area. The 2.24 mile (4,224 yards) swim course is a 
temporary marked swim course within the regulated area located in 
Kailua Bay.
    (3) Buffer area. All navigable waters 100 yards outside of the 
perimeter of the course area, described in paragraph (c)(4) of this 
section.
    (c) Special local regulations. (1) The COTP Honolulu or PATCOM may 
forbid and control the movement of all vessels and persons, including 
event participants, in the regulated area. When hailed or signaled by 
an official patrol, a vessel or person in the regulated area shall 
immediately comply with the directions given by the patrol. Failure to 
do so may result in the Coast Guard expelling the person or vessel from 
the area, issuing a citation for failure to comply, or both. The COTP 
Honolulu or PATCOM may terminate the event at any time the COTP 
Honolulu or PATCOM believes it necessary to do so for the protection of 
life.
    (2) Except for participants and safety support vessels, a person or 
vessel within the regulated area at the start of enforcement of this 
section must immediately depart the regulated area.
    (3) Support and enforcement vessels consist of any local law 
enforcement and sponsor provided vessels assigned or approved by the 
COTP Honolulu, the event PATCOM, or COTP Honolulu designated 
representatives, to patrol the regulated area.
    (4) The regulated area consists of all navigable waters starting at 
the shoreline northeast of Kailua Pier at 19[deg]38.341' N, 
155[deg]59.782' W; thence southeast to 19[deg]37.416' N, 
155[deg]59.444' W; thence southwest to 19[deg]37.397' N, 
155[deg]59.500' W; thence northwest to 19[deg]38.150' N, 
155[deg]59.760' W, thence north and back to Kailua Pier at

[[Page 51405]]

19[deg]38.398' N, 155[deg]59.816' W, and returning along the pier to 
the originating point on the shoreline at to 19[deg]38.341' N, 
155[deg]59.782' W.
    (5) Spectators shall not enter into, anchor, block, loiter, or 
impede the transit of participants or support/enforcement vessels in 
the regulated area during the enforcement of this section, unless 
cleared for entry by the COTP Honolulu, the event PATCOM, or the COTP's 
designated representatives.
    (6) Persons desiring to transit the regulated area identified may 
contact the COTP Honolulu in advance at the Sector Honolulu Command 
Center telephone number (808) 842-2600 and (808) 842-2601 or 
immediately prior to or during the event to the COTP Honolulu's PATCOM 
or designated representative on VHF-FM marine channel 16 (156.8 Mhz) to 
seek permission to transit or remain in the area. If permission is 
granted, all persons and vessels must comply with the instructions of 
the COTP Honolulu, the event PATCOM, or the COTP's designated 
representative and proceed at the minimum speed necessary to maintain a 
safe course while in the area.
    (7) If enforcement of the regulated area is no longer necessary, 
the COTP Honolulu, event Patrol Commander, or COTP designated 
representative will inform the public through radio broadcasts that the 
regulated area is no longer being enforced.
    (d) Enforcement officials. The Coast Guard may be assisted with 
event patrol and enforcement of the regulated area by other Federal, 
State, and local agencies.
    (e) Enforcement period. The marine event and special local 
regulation in this section will be enforced from 3:45 a.m. to 11 a.m. 
on the first two weekends in October annually. The Coast Guard will 
publish a notice in the Fourteenth Coast Guard District Local Notice to 
Mariners, a Notice of the Enforcement in the Federal Register, and 
issue a marine information broadcast on VHF-FM marine band radio on 
channel 16 announcing specific event date and times.

    Dated: September 18, 2019.
A.B. Avanni,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2019-20627 Filed 9-27-19; 8:45 am]
 BILLING CODE 9110-04-P