[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Rules and Regulations]
[Pages 55373-55375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17459]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0669]
RIN 1625-AA00


Safety Zone; Pacific Ocean, Lahaina Boat Basin, Maui, HI--
Emergency Operations and Port Recovery

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone for

[[Page 55374]]

the navigable waters in the vicinity of Lahaina Boat Basin, Maui, 
Hawaii. The temporary safety zone encompasses all waters extending 1 
nautical mile from shore starting from the northernmost point of Kekaa 
Point, Maui, thenceforth to the southernmost point at Hekili Point, 
Maui. The safety zone is needed to protect personnel, vessels, and the 
marine environment from potential hazards associated with ongoing 
emergency response and port recovery operations after wildfires 
affected the 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 August 15, 
2023, through 11:59 p.m. on August 23, 2023. For the purposes of 
enforcement, actual notice will be used from 11 a.m. on August 9, 2023 
until August 15, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0669 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 Wade Thomson, 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 August 9, 2023, high winds and wildfires struck portions of 
Maui, Hawaii, causing damage to coastal infrastructure and prompting 
mass rescue operations for area residents.
    On August 9, 2023, the Coast Guard issued a temporary rule to 
establish a safety zone for all waters extending 1 nautical mile from 
shore starting from the northernmost point of Kekaa Point, Maui, 
thenceforth to the southernmost point at Hekili Point, Maui, to protect 
personnel, vessels, and the marine environment from potential hazards 
associated with emergency response and port recovery operations after 
wildfires affected the area.
    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 numerous threats 
to safety posed by uncontrolled wildfires, timely emergency response 
efforts do 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 
respond to the potential safety, navigational and environmental hazards 
associated with emergency response to Lahaina, Maui, area wildfires.

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). August 9, 2023, the Coast Guard was 
informed of damage, pollution, and debris in the vicinity of Lahaina 
Boat Basin, Maui, Hawaii. The Coast Guard COTP Sector Honolulu has 
determined that the potential hazards associated with the emergency 
response and port recovery efforts connected to wildfires in the area 
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 emergency response and port recovery operations.

IV. Discussion of the Rule

    This rule is effective from August 9, 2023 at 11 a.m. through 
August 23, 2023 at 11:59 p.m., or until emergency response and port 
recovery operations are complete, whichever is earlier. If the safety 
zone is terminated prior to 11:59 p.m. on August 23, 2023, the Coast 
Guard will provide notice via a broadcast notice to mariners. The 
temporary safety zone encompasses all waters extending 1 nautical mile 
from shore starting from the northernmost point of Kekaa Point, Maui, 
thenceforth to the southernmost point at Hekili Point, Maui. The safety 
zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards associated with ongoing emergency 
response and port recovery operations after wildfires affected the 
area. No vessel or person will be permitted to enter the safety zone 
absent the express authorization of the COTP or his 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 shores of Lahaina, 
Maui, Hawaii. 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

[[Page 55375]]

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 14 days, or until operations are complete, that 
will prohibit entry into all waters extending 1 nautical mile from 
shore starting from the northernmost point of Kekaa Point, Maui, 
thenceforth to the southernmost point at Hekili Point, Maui. 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, 70124; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T14-00669 to read as follows:


Sec.  165.T14-0669  Safety Zone; Pacific Ocean, Lahaina Boat Basin, 
Maui, HI--Emergency Operations and Port Recovery.

    (a) Location. The following area is a safety zone: All waters all 
waters extending 1 nautical mile from shore starting from the 
northernmost point of Kekaa Point, Maui, thenceforth to the 
southernmost point at Hekili Point, Maui. This zone extends from the 
surface of the water to the ocean floor.
    (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 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: August 9, 2023.
A.L. Kirksey,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2023-17459 Filed 8-14-23; 8:45 am]
BILLING CODE 9110-04-P