[Federal Register Volume 86, Number 203 (Monday, October 25, 2021)]
[Rules and Regulations]
[Pages 58803-58805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23179]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0525]
RIN 1625-AA00


Safety Zone; Pacific Ocean, Offshore Barbers Point, Oahu, HI--
Salvage Operations

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters of the Southwest shores of Oahu, Hawaii, near 
Barbers Point. The temporary safety zone encompasses all waters 
extending 1 nautical mile in all directions from position 
21[deg]16'40'' N, 158[deg]01'28'' W. The safety zone is needed to 
protect personnel, vessels, and the marine environment from potential 
hazards associated with ongoing operations to salvage a downed aircraft 
in this area. Entry of vessels or persons in this zone is prohibited 
unless specifically authorized by the Captain of the Port (COTP) 
Honolulu.

DATES: This rule is effective without actual notice from October 25, 
2021, through November 6, 2021, at midnight. For the purposes of 
enforcement, actual notice will be used from October 9, 2021, at 12:01 
a.m. until October 25, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0525 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Commander Joshua Williams, Waterways 
Management Division, U.S. Coast Guard Sector Honolulu at (808) 541-2359 
or [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

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

II. Background Information and Regulatory History

    On July 2, 2021, Transair 810, a cargo plane, crashed off the 
Southwest shores of Oahu, Hawaii, near Barbers Point.
    On July 2, 2021, the Coast Guard issued a temporary rule to 
establish a safety zone extending 3 nautical miles in all directions 
from position 21[deg]16'36'' N, 158[deg]01'42'' W to protect personnel, 
vessels, and the marine environment from potential hazards associated 
with ongoing operations to salvage a downed aircraft in the area. That 
rule expired at 12:00 a.m. on July 30, 2021. The Coast Guard is issuing 
this rule so that salvage operations can continue.
    The Coast Guard is issuing this temporary rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because immediate action is needed to 
facilitate an emergency salvage operation. Due to the limited 
capabilities nationally and limited resources locally, the logistics 
and planning of such a salvage operations does not allow for public 
comment, and therefore publishing a NPRM is impracticable and contrary 
to public interest.
    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 to

[[Page 58804]]

respond to the potential safety, navigational and environmental hazards 
associated with emergency salvage of Transair 810.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). On July 2, 2021, the Coast Guard was 
informed of a cargo plane crash off the Southwest shores of Oahu, 
Hawaii, near Barbers Point. The Coast Guard COTP Sector Honolulu has 
determined that the potential hazards associated with the salvage 
operations constitute a safety concern for anyone within the designated 
safety zone. This rule is necessary to protect personnel, vessels, and 
the marine environment within the navigable waters of the safety zone 
during ongoing salvage operations.

IV. Discussion of the Rule

    This rule is effective from October 9, 2021, at 12:01 a.m. through 
November 6, 2021, at midnight, or until salvage operations are 
complete, whichever is earlier. If the safety zone is terminated prior 
to 12:00 a.m. on November 6, 2021, the Coast Guard will provide notice 
via a broadcast notice to mariners. The temporary safety zone 
encompasses all waters extending 1 nautical mile in all directions 
around the location of ongoing salvage operations at position 
21[deg]16'40'' N, 158[deg]01'28'' W. This zone extends from the surface 
of the water to the ocean floor. The zone is intended to protect 
personnel, vessels, and the marine environment in these navigable 
waters from potential hazards associated with the salvage operations of 
one downed aircraft in this area. No vessel or person will be permitted 
to enter the safety zone absent the express authorization of the COTP 
or their designated representative.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. 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).
    This regulatory action determination is based on the size, 
location, and duration, of the safety zone. Vessel traffic will be able 
to safely transit around this safety zone which would impact a small 
designated area of the navigable waters off the Southwest shores of 
Oahu, Hawaii, near Barbers Point where vessel traffic is normally low. 
Moreover, the Coast Guard would issue a Broadcast Notice to Mariners 
via VHF-FM marine channel 16 about the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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. This safety zone is limited in size and 
duration, and mariners may request to enter the zone by contacting the 
COTP.
    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 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.

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, Rev. 1, associated implementing instructions, 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 a 
safety zone lasting 28 days, or until salvage

[[Page 58805]]

operations are complete, that will prohibit entry within 1 nautical 
mile of vessels and machinery being used by personnel to effect the 
salvage of Transair 810. It is categorically excluded from further 
review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction 
Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration 
supporting this determination is available in the docket. For 
instructions on locating the docket, see the ADDRESSES section of this 
preamble.

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 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:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T14-0525 to read as follows:


Sec.  165.T14-0525  Safety Zone; Pacific Ocean, Offshore Barbers Point, 
Oahu HI--Salvage Operations.

    (a) Location. The following area is a safety zone: All waters 
extending 1 nautical miles in all directions around the location of 
ongoing salvage operations at position 21[deg]16'40'' N, 
158[deg]01'28'' W. This zone extends from the surface of the water to 
the ocean floor. These coordinates are based on the 1984 World Geodetic 
System (WGS 84).
    (b) Definitions. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the Captain of the Port (COTP) Honolulu to assist in 
enforcing the safety zone described in paragraph (a) of this section.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP at the Command 
Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 
842-2642 or on VHF channel 16 (156.8 Mhz). Those in the safety zone 
must comply with all lawful orders or directions given to them by the 
COTP or the COTP's designated representative.

    Dated: October 8, 2021.
A.L. Kirksey,
Commander, U.S. Coast Guard, Alternate Captain of the Port Honolulu.
[FR Doc. 2021-23179 Filed 10-22-21; 8:45 am]
BILLING CODE 9110-04-P