07-5413. Security Zone; Nawiliwili Harbor, Kauai, HI

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is creating a temporary security zone in the waters of Nawiliwili Harbor, Kauai, and on the land of the jetty south of Nawiliwili Park, including the jetty access road commonly known as Jetty Road. This zone is intended to enable the Coast Guard and its law enforcement partners to better protect people, vessels, and facilities in and around Nawiliwili Harbor in the face of non-compliant obstructers who have impeded, and threaten to continue impeding, the safe passage of the Hawaii Superferry in Nawiliwili Harbor. This rule complements, but does not replace or supersede, existing regulations that establish a moving 100-yard security zone around large passenger vessels like the Hawaii Superferry.

DATES:

This rule is effective from November 1, 2007, through November 30, 2007.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD14-07-002 and are available for inspection and copying at U.S. Coast Guard District 14, Room 9-130, PJKK Federal Building, 300 Ala Moana Blvd., Honolulu, Hawaii 96850 between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Sean Fahey, U.S. Coast Guard District 14 at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On October 3, 2007, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; Nawiliwili Harbor, Kauai, Hawaii” in the Federal Register (72 FR 56308), identified by docket number USCG-2007-29354. The comment period for that NPRM was originally set to expire on October 24, 2007. Although we received many comments on the NPRM, a few people wishing to submit comments expressed difficulty using the Federal eRulemaking Portal, one of the four methods available to submit comments on the NPRM.

Recently, the Coast Guard migrated its online rulemaking docket from the Docket Management System (DMS) to the Federal Docket Management System (FDMS). (72 FR 54315, Sept. 24, 2007.) This migration has been accompanied by transition difficulties and delays in comments being posted on FDMS. To accommodate the public, the comment period for that rulemaking (USCG-2007-29354) has been extended until November 20, 2007. A separate notice extending the comment period for the USCG-2007-29354 NPRM can be found elsewhere in this issue of the Federal Register.

This temporary final rule, identified by docket CGD14 07-002, is a separate emergency rulemaking that will maintain a security zone for Nawiliwili Harbor, Kauai from November 1 through November 30, 2007, after an existing security zone (72 FR 50877, Sept. 5, 2007) expires and while we complete the USCG-2007-29354 notice-and-comment rulemaking. We did not publish an NPRM for this regulation.

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM for this temporary rule. It would be contrary to public interest not to maintain a security zone for Nawiliwili Harbor until the USCG-2007-29354 rulemaking is completed.

Though operation of the Hawaii Superferry from Oahu to Kauai has been voluntarily suspended by the operating company, operations could resume at any time. As of October 24, 2007, there are no, nor have there been, any state court injunctions or other legal prohibitions on the Superferry resuming operations between Oahu and Kauai. Although the Superferry's operating company announced on September 21, 2007, that it was “indefinitely” suspending operations into and out of Kauai, that suspension is only voluntary; nothing binds the company to adhere to that suspension of operations, and in fact, it could decide to sail for Kauai at any time. Furthermore, the Hawaii legislature has announced that it will commence a special legislative session beginning on October 24, 2007, at which, among other things, it intends to consider a bill that would allow the Superferry to operate into and out of Hawaii's ports while an environmental impact statement regarding Superferry operations is being prepared. To the extent this legislative action may permit the Superferry to resume operations into and out of Maui, which it is currently enjoined from doing, and to the extent the operating company's decision to “indefinitely” suspend operations into and out of Kauai was tied to the company's inability to operate into and out of Maui, this legislative action may well have the net effect of causing the Superferry's operating company to renew its desire to resume operations to Kauai as soon as possible. Delay in implementing this rule would expose obstructers in the water and ashore, as well as ferry passengers and crew, to undue hazards due to the obstructers' tactics of entering Nawiliwili Harbor from land and waterfront facilities adjacent to the harbor and using themselves as human barriers to obstruct the Superferry's movement into Nawiliwili Harbor, a transit that under the best of circumstances is difficult to make due to the small size of the Harbor.

For the same reasons, under 5 U.S.C. 533(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.

Background and Purpose

The Hawaii Superferry (HSF) is a 349-foot large passenger vessel documented by the U.S. Coast Guard with an endorsement for coastwise trade, and certificated for large passenger vessel service in the United States. The HSF, operating Hawaii's first inter-island vehicle-passenger service, is intended to provide service among the islands of Oahu, Maui, and Kauai.

The HSF enters Kauai at Nawiliwili Harbor, a federally maintained waterway. During the HSF's inaugural commercial trip to Kauai on August 26, 2007, nearly 40 swimmers and obstructers on kayaks and surfboards blocked Nawiliwili Harbor's navigable channel entrance to prevent the lawful entry of the HSF into Kauai. Many of the obstructers entered the water from the jetty that is south of Nawiliwili Park, which is adjacent to the Matson shipping facility in Nawiliwili Harbor. Other demonstrators ashore on the jetty threw rocks and bottles at Coast Guard personnel who were conveying detained obstructers to shore. Coast Guard Station Kauai resources were eventually able to clear the channel for the HSF's arrival while also ensuring the personal safety of the waterborne obstructers. The HSF was able to dock on August 26, 2007.

On the following day, August 27, 2007, approximately 70 persons entered the water again to block the channel entrance, thereby preventing the HSF from docking in Nawiliwili Harbor. Due to the difficulty of maneuvering in the small area of Nawiliwili Harbor, and in the interest of ensuring the safety of the protesters, the HSF's master chose not to enter the channel until the Coast Guard cleared the channel of obstructers. However, because the vessel remained outside the harbor, and because the obstructers did not approach within 100 yards of the vessel, the existing security zone for large passenger vessels (33 CFR 165.1410) did not provide the Coast Guard with the authority to control obstructer entry into Nawiliwili Harbor or clear the channel of obstructers before the HSF commenced its transit into the harbor.

After waiting 3 hours, and with nearly 20 obstructers still in the water actively blocking the HSF, the HSF was forced to return to Oahu without mooring in Kauai. This decision was made by the Superferry's master, in consultation with company officials.

As a result of the events of August 26 through 27, 2007, the HSF voluntarily suspended operations between Oahu and Kauai on August 28, 2007. HSF's goal, however, was and is to resume operations between Oahu and Kauai as soon as possible. As of October 24, 2007, there are no, nor have there been, any state court injunctions or other legal prohibitions on the HSF resuming operations between Oahu and Kauai.

Although the Superferry's operating company announced on September 21, 2007, that it was “indefinitely” suspending operations into and out of Kauai, that suspension is only voluntary; nothing binds the company to adhere to that suspension of operations, and in fact, it could decide to sail for Kauai at any time. Furthermore, the Hawaii legislature has announced that it will commence a special legislative session beginning on October 24, 2007, at which, among other things, it intends to consider a bill that would allow the Superferry to operate into and out of Hawaii's ports while an environmental impact statement regarding Superferry operations is being prepared. To the extent this legislative action may permit the Superferry to resume operations into and out of Maui, which it is currently enjoined from doing, and to the extent the operating company's decision to “indefinitely” suspend operations into and out of Kauai was tied to the company's inability to operate into and out of Maui, this legislative action may well have the net effect of causing the Superferry's operating company to renew its desire to resume operations to Kauai as soon as possible.

Responding to the unexpected events of August 26 and 27, 2007, the Coast Guard's Fourteenth District Commander established a temporary fixed security zone in Nawiliwili Harbor. That emergency rulemaking established a temporary security zone in order to prevent persons and vessels from endangering themselves and HSF passengers and crew by attempting to impede the vessel's passage after it commences the difficult transit into the harbor. That rule, which became effective September 1, 2007, was issued by the Coast Guard's Fourteenth District Commander on August 31, 2007 (72 FR 50877, September 5, 2007).

The purpose of this temporary rule, as with the rule that is expiring October 31, is several-fold. First, by designating significant portions of the waters of Nawiliwili Harbor as a security zone, activated for enforcement 60 minutes before the HSF's arrival into the zone through 10 minutes after its departure from the zone, this temporary rule provides the Coast Guard and its law enforcement partners the authority to prevent persons and vessels from endangering themselves and the HSF passengers and crew during attempts to impede the vessel's passage after it commences the difficult transit into the harbor. Extending the security zone to Nawiliwili Jetty and its access road provides law enforcement personnel with the authority necessary to control access into the water so the HSF may enter and depart the harbor safely and unimpeded by obstructers. Furthermore, closing off the jetty and its access road prevents violent protesters from continuing to impede law enforcement operations and endanger law enforcement personnel by throwing rocks, bottles, and other dangerous objects. Finally, the security zone makes land adjacent to the harbor available for law enforcement purposes, and in fact will be used by the Patrol Commander (the person in overall command of all waterborne law enforcement assets present in Nawiliwili Harbor enforcing the security zone) as the command post during any Superferry protests.

This temporary final rule follows the original temporary final rule that is set to expire on October 31, 2007. There is continued uncertainty regarding when, if ever, the HSF might resume service into Nawiliwili Harbor. The resolve of obstructers to continue attempting to impede the Superferry's passage into and through Nawiliwili Harbor, should it indeed resume service there, has been vocally manifested. Therefore, the Coast Guard has determined there is a need to ensure that law enforcement personnel will still have a fixed security zone available to them beyond the expiration date of the original temporary final rule to facilitate the safe arrival of the HSF, should it again return to Nawiliwili Harbor.

Discussion of the Rule

This temporary rule is in effect from November 1, 2007, until November 30, 2007. It creates a security zone in most of the waters of Nawiliwili Harbor, and on Nawiliwili Jetty in Nawiliwili Harbor. The security zone will be activated for enforcement 60 minutes before the Hawaii Superferry's arrival into the zone, and remain activated for 10 minutes after the Hawaii Superferry's departure from the zone. The activation of the zone for enforcement will be announced by marine information broadcast and by a red flag, illuminated after sunset, displayed from Pier One and the Harbor Facility Entrance on Jetty Road. During its period of activation and enforcement, entry into the land and water areas of the security zone are prohibited without the permission of the Captain of the Port, Honolulu, or his or her designated representative.

In preparing this temporary rulemaking, the Coast Guard made sure to consider the rights of lawful protestors. To that end, the Coast Guard excluded from the security zone two regions which create a sizeable area of water in which demonstrators may lawfully assemble and convey their message in a safe manner to their intended audience. These areas include the waters west of a line running from the southeastern-most point of the breakwater of Nawiliwili Small Boat Harbor due south to the south shore of the harbor, and the waters from Kalapaki Beach south to a line extending from the western most point of Kukii Point due west to the Harbor Jetty. These areas of the harbor not included in the security zone are completely accessible to anyone who desires to enter the water, and are fully visible to observers ashore, at the HSF mooring facility, aboard the HSF when transiting the harbor, and from the air.

The Coast Guard also took into account the lawful users of Nawiliwili Harbor in its creation of this rule. As previously noted, the rule will only be activated 1 hour before the HSF's arrival into port, and will be deactivated 10 minutes after the HSF departs the port. The harbor is fully available to all users during the period when the zone is not activated. Furthermore, the rule affords persons who want to use the harbor, even during a period when the zone is activated, with the opportunity to request permission of the Captain of the Port to do so.

Under 33 CFR 165.33, entry by persons or vessels into the security zone during an enforcement period is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representatives.

Operation of any type of vessel, including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, within the security zone during an enforcement period is prohibited. If a vessel is found to be operating within the security zone during an enforcement period without permission of the Captain of the Port, Honolulu, and refuses to leave, the vessel is subject to seizure and forfeiture.

All persons and vessels permitted in the security zone during an enforcement period must comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. These personnel include commissioned, warrant, and petty officers of the Coast Guard and other persons permitted by law to enforce this regulation. Upon being hailed by an authorized vessel or law enforcement officer using siren, radio, flashing light, loudhailer, voice command, or other means, the operator of a vessel must proceed as directed.

If authorized passage through the security zone, a vessel must operate at the minimum speed necessary to maintain a safe course and must proceed as directed by the Captain of the Port or his or her designated representatives. While underway with permission of the Captain of the Port or his or her designated representatives, no person or vessel is allowed within 100 yards of the Hawaii Superferry when it is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representatives.

When conditions permit, the Captain of the Port, or his or her designated representatives, may permit vessels that are at anchor, restricted in their ability to maneuver, or constrained by draft to remain within the security zone during the enforcement period in order to ensure navigational safety. Any Coast Guard commissioned, warrant, or petty officer, and any other person permitted by law, may enforce the regulations in this section.

Regulatory Evaluation

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This expectation is based on the short activation and enforcement duration of the security zone created by this temporary rule, as well as the limited geographic area affected by the security zone.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. 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 we are aware that the affected area has small entities, including canoe and boating clubs and small commercial businesses that provide recreational services, we anticipate that there will be little or no impact to these small entities due to the narrowly tailored scope of the temporary rule, and to the fact that such entities can request permission from the Captain of the Port to enter the security zone when it is activated.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Assistance for Small Entities

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 so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Sean Fahey, U.S. Coast Guard District 14, at [phone]. 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.

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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 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.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children. While some obstructers used small children in obstruction tactics, both on land and on shore, during the August 26 and 27 Superferry arrivals into Kauai, and while online forums and other sources indicate that organizers are actively recruiting adolescents and small children with the intent of putting them into harm's way as obstructers of the Superferry's passage should it ever again approach and enter Nawiliwili Harbor, any heightened harm faced by children as a result of these tactics has no relation to the creation of this rule. Instead, those heightened risks are entirely the product of persons who recruit and employ adolescents and children to put themselves at risk of death or serious physical injury by attempting to physically obstruct the passage of a large passenger vessel in a small harbor.

Indian Tribal Governments

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.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Environment

We have analyzed this temporary rule under Commandant Instruction M16475.1D which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this temporary rule is categorically excluded from further environmental documentation. An “Environmental Analysis Checklist” and “Categorical Exclusion Determination” supporting this conclusion are available in the docket where indicated under ADDRESSES.

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

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add a new temporary § 165.T14-163 to read as follows:

§ 165.T14-163

Security Zone; Nawiliwili Harbor, Kauai, HI.

(a) Location. The following land areas, and water areas from the surface of the water to the ocean floor, are a security zone that is activated as described in paragraph (c) of this section, and enforced subject to the provisions of paragraph (d) of this section: All waters of Nawiliwili Harbor, Kauai, shoreward of the Nawiliwili Harbor COLREGS DEMARCATION LINE (See 33 CFR 80.1450), excluding the waters west of a line running from the southeastern most point of the breakwater of Nawiliwili Small Boat Harbor due south to the south shore of the harbor, and excluding the waters from Kalapaki Beach south to a line extending from the western most point of Kukii Point due west to the Harbor Jetty. The land of the jetty south of Nawiliwili Park, including the jetty access road, commonly known as Jetty Road, is included within the security zone.

(b) Effective period. This section is effective from November 1, 2007, through November 30, 2007. It will be activated for enforcement pursuant to paragraph (c) of this section.

(c) Enforcement periods. The zone described in paragraph (a) of this section will be activated for enforcement 60 minutes before the Hawaii Superferry's arrival into the zone and remain activated for 10 minutes after the Hawaii Superferry's departure from the zone. The activation of the zone for enforcement will be announced by marine information broadcast, and by a red flag, illuminated between sunset and sunrise, displayed from Pier One and the Harbor Facility Entrance on Jetty Road.

(d) Regulations. (1) Under 33 CFR 165.33, entry by persons or vessels into the security zone created by this section and activated as described in paragraph (c) of this section is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representatives. Operation of any type of vessel, including every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water, within the security zone is prohibited. If a vessel is found to be operating within the security zone without permission of the Captain of the Port, Honolulu, and refuses to leave, the vessel is subject to seizure and forfeiture.

(2) All persons and vessels permitted in the security zone must comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. These personnel include commissioned, warrant, and petty officers of the Coast Guard and other persons permitted by law to enforce this regulation. Upon being hailed by an authorized vessel or law enforcement officer using siren, radio, flashing light, loudhailer, voice command, or other means, the operator of a vessel must proceed as directed.

(3) If authorized passage through the security zone, a vessel must operate at the minimum speed necessary to maintain a safe course and must proceed as directed by the Captain of the Port or his or her designated representatives. While underway with permission of the Captain of the Port or his or her designated representatives, no person or vessel is allowed within 100 yards of the Hawaii Superferry when it is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representatives.

(4) When conditions permit, the Captain of the Port, or his or her designated representatives, may permit vessels that are at anchor, restricted in their ability to maneuver, or constrained by draft to remain within the security zone in order to ensure navigational safety.

(e) Enforcement officials. Any Coast Guard commissioned, warrant, or petty officer, and any other person permitted by law, may enforce the regulations in this section.

Dated: October 24, 2007.

Sally Brice-O'Hara,

Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard District.