E7-11748. Security Zones; Oahu, Maui, Hawaii, and Kauai, HI

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to change the permanent security zones in waters adjacent to the islands of Oahu, Maui, Hawaii, and Kauai, Hawaii. Review of the established zones indicates the need for some adjustment to better suit vessel and facility security in and around Hawaiian ports. The proposed changes are intended to enhance the protection of personnel, vessels, and facilities from acts of sabotage or other subversive acts, accidents, or other causes of a similar nature.

DATES:

Comments and related material must reach the Coast Guard on or before July 19, 2007.

ADDRESSES:

You may mail comments and related material to Commanding Officer, U.S. Coast Guard Sector Honolulu, Sand Island Parkway, Honolulu, Hawaii 96819-4398. Sector Honolulu maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are available for inspection and copying at Coast Guard Sector Honolulu between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant (Junior Grade) Jasmin Parker, U. S. Coast Guard Sector Honolulu at [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD14-07-001), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Sector Honolulu at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we would hold one at a time and place announced by separate notice in the Federal Register.

Background and Purpose

The terrorist attacks against the United States that occurred on September 11, 2001, have emphasized the need for the United States to establish heightened security measures in order to protect the public, ports and waterways, and the maritime transportation system from future acts of terrorism or other subversive acts. The terrorist organization al-Qaeda and other similar groups remain committed to conducting armed attacks against U.S. interests, including civilian targets within the United States. National security and intelligence officials warn that future terrorist attacks are likely.

In response to this threat, on December 19, 2005, the Coast Guard published a final rule establishing permanent security zones in designated waters surrounding the Hawaiian Islands (70 FR 75036, December 19, 2005). These zones replaced the temporary zones that had been established, and then extended, in the waters surrounding the Hawaiian Islands soon after the attacks (66 FR 52693, October 17, 2001). The existing permanent security zones have been in operation for over a year.

We have recently completed a periodic review of port and harbor security procedures and considered the oral feedback that local vessel operators gave to Coast Guard units enforcing the zones. In response, the Coast Guard is proposing to reduce the scope of the Honolulu International Airport, North Section security zone. The Coast Guard is also proposing new zones at Kawaihae Harbor, Hawaii and Kahe Point, Oahu to address a new vessel operation and recent identification of a critical facility. Additionally, we are proposing changes that would clarify the application of large cruise ship (LCS) security zones to the new Hawaii SuperFerry.

Our proposal with respect to the Honolulu International Airport, North Section zone (33 CFR 165.1407(a)(4)(i)) is to change it from one that is perpetually activated and enforced to one that is used only in response to a threat. This proposed change, permitting a reduced security posture in the waters adjacent to Honolulu International Airport, is based on a 2006 reevaluation of airport protection requirements. The new arrangement offers us an opportunity to decrease disruption to maritime commerce and inconvenience to small entities by making the zone subject to activation and enforcement only under certain conditions rather than all the time.

As are the security zones currently in place, this and the revised security zones described below would be permanently established. We use the word “activated” to describe when these permanently established zones would be subject to enforcement.

Our proposal to add a Kawaihae Harbor security zone is due to the arrival of the Hawaii SuperFerry. In June 2004, Hornblower Marine Services, Inc. signed a Marine Management Operating Agreement and Construction Oversight contract for the new Hawaii SuperFerry operation, an inter-island ferry service. The service will transport passengers and vehicles to Hawaiian island ports, including Kawaihae Harbor on the island of Hawaii. Each day, these ferries will carry many passengers as well as cargo and vehicles, presenting the same security vulnerabilities as the large cruise ships that operate in those areas. Kawaihae Harbor, however, lacks a security zone to protect such vessels, so our proposal is to create one there.

Additionally, the definition of large cruise ship (LCS) in 33 CFR 165.1408(b), 165.1409(b), and 165.1410(b) does not adequately describe the Hawaii SuperFerry or any other vessel of similar size and carriage capacity. Therefore, the Coast Guard proposes to revise the term large cruise ship to clarify that the presence of SuperFerry-type vessels triggers the activation and enforcement of the Maui, Hawaii, and Kauai security zones described in those three sections.

Our proposed creation of a Kahe Point security zone is meant to protect the Hawaiian Electric Company power plant at Kahe Point, which produces a significant portion of the electricity for the island of Oahu. This beach-front power plant uses sea water piped in directly from the ocean to cool its turbines. Loss or damage to this cooling water system due to sabotage would reduce the power-generating capacity of the plant and overburden the other island facilities. Our proposed zone would enhance its security.

Discussion of Proposed Rule

The existing security zones in the Honolulu Captain of the Port Zone (see 33 CFR 3.70-10) consist of two categories: (1) Those activated and enforced at all times; and (2) those activated and enforced only upon the occurrence of an event specified in the rule. Whenever a security zone is activated and enforced, persons and vessels are prohibited from entering the zone without the express permission of the Captain of the Port.

The security zone located at Honolulu International Airport, North Section (33 CFR 165.1407(a)(4)(i)) is currently activated and enforced at all times. Our proposal is to decrease disruption to maritime commerce and reduce the inconvenience to small entities by re-designating this zone as one that is activated and enforced only upon the occurrence of one of the following events:

1. Whenever the Maritime Security (MARSEC) level, as defined in 33 CFR part 101, is raised to 2 or higher; or,

2. Whenever the Captain of the Port is made aware of any threat that may cause a transportation security incident or other serious maritime incident, including but not limited to any incident that may cause loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area.

The Captain of the Port would cause notice of either of these two enforcement-triggering events to be published in the Federal Register. The Captain of the Port would use actual notice, local notice to mariners, and broadcast notice to mariners to advise the public when these security zones are activated and enforced. By the same means, the Captain of the Port would also announce suspension of enforcement.

In order to clarify that SuperFerry-type vessels would receive the same protection as large cruse ships in Maui (under 33 CFR 165.1408), Hawaii (under 33 CFR 165.1409), and Kauai (under 33 CFR 165.1410), the Coast Guard proposes to change the term large cruise ship in those sections to large passenger vessel (LPV).

To protect SuperFerry-type vessels during their use of Kawaihae Harbor, the Coast Guard is proposing to create an LPV security zone there. This security zone would be activated and enforced upon the presence of an LPV. A large passenger vessel would be either a cruise ship or ferry that is more than 300 feet in length.

The zone would encompass the waters extending 100 yards in all directions from an LPV. When an LPV is anchored, position-keeping, or moored, the security zone would remain fixed, extending 100 yards in all directions from the vessel.

Additionally, the Coast Guard is proposing to create a security zone at Kahe Point, Oahu. It would be in the waters adjacent to the Hawaiian Electric Company power plant at Kahe Point within 500 yards of the lighted tower at specified coordinates. This zone would be activated and enforced only upon the occurrence of one of the following events:

1. Whenever the Maritime Security (MARSEC) level, as defined in 33 CFR part 101, is raised to 2 or higher; or,

2. Whenever the Captain of the Port is made aware of any threat that may cause a transportation security incident or other serious maritime incident, including but not limited to any incident that may cause loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area.

The Captain of the Port would cause notice of either of these two enforcement-triggering events to be published in the Federal Register. The Captain of the Port would use actual notice, local notice to mariners, and broadcast notice to mariners to advise the public when the security zone is activated and enforced. By the same means, the Captain of the Port would also announce suspension of enforcement.

Entry into this proposed security zone while it is activated and enforced would be prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu, Hawaii. The Captain of the Port or his or her representatives would enforce this security zone. The Captain of the Port may be assisted by other federal or state agencies to the extent permitted by law.

For all seaplane traffic entering or transiting the proposed security zone, a seaplane's compliance with all Federal Aviation Administration (FAA) regulations regarding flight-plan approval would be deemed adequate permission to transit this waterway security zone. No communication between the aircraft and the Coast Guard would be necessary upon compliance with FAA regulations regarding the flight plan.

The proposed Kahe Point security zone would be established pursuant to the authority of the Magnuson Act, 50 U.S.C. 191, et seq., and regulations promulgated by the President under Title 33, Part 6 of the Code of Federal Regulations. Vessels or persons violating this section would be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

Regulatory Evaluation

This proposed 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.

The Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the short activation and enforcement duration of the zones created or impacted by this proposal, as well as the limited geographic area affected by them.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule will not have a significant economic impact on a substantial number of small entities. While we are aware that affected areas have small commercial 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 these proposed changes.

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 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant (Junior Grade) Jasmin Parker, U.S. Coast Guard Sector Honolulu, [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 proposed 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 proposed 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 proposed rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This proposed rule will not affect 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

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

Environment

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. Draft documentation supporting this preliminary determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

List of Subjects 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reports and recordkeeping requirements
• Security measures
• Waterways

For the reasons set out in the preamble, the Coast Guard proposes to amend 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. Amend § 165.1407 to add paragraph (a)(7) and to revise the paragraph (d) heading and paragraph (d)(1) introductory text to read as follows:

§ 165.1407

Security Zones; Oahu, HI.

(a) * * *

(7) Kahe Point, Oahu. All waters adjacent to the Hawaiian Electric Company power plant at Kahe Point within 500 yards of 21°21.30′ N/158°07.7′ W (lighted tower).

* * * * *

(d) Notice of enforcement or suspension of enforcement of security zones. (1) The security zones described in paragraphs (a)(3) (Kalihi Channel and Keehi Lagoon, Oahu), (a)(4)(i) (Honolulu International Airport, North Section), (a)(4)(ii) (Honolulu International Airport, South Section), and (a)(6) (Barbers Point Harbor, Oahu) of this section, will be enforced only upon the occurrence of one of the following events—

* * * * *

3. Amend § 165.1408 to revise paragraphs (a)(1), (a)(2), (b), (c)(1), and (c)(2) to read as follows:

§ 165.1408

Security Zones; Maui, HI.

(a) * * *

(1) Kahului Harbor, Maui. All waters extending 100 yards in all directions from each large passenger vessel in Kahului Harbor, Maui, HI or within 3 nautical miles seaward of the Kahului Harbor COLREGS DEMARCATION (See 33 CFR 80.1460). This is a moving security zone when the LPV is in transit and becomes a fixed zone when the LPV is anchored, position-keeping, or moored.

(2) Lahaina, Maui. All waters extending 100 yards in all directions from each large passenger vessel in Lahaina, Maui, whenever the LPV is within 3 nautical miles of Lahaina Light (LLNR 28460). The security zone around each LPV is activated and enforced whether the LPV is underway, moored, position-keeping, or anchored, and will continue in effect until such time as the LPV departs Lahaina and the 3-mile enforcement area.

(b) Definitions. As used in this section, large passenger vessel or LPV means a cruise ship more than 300 feet in length that carries passengers for hire, and any passenger ferry more than 300 feet in length that carries passengers for hire.

(c) Regulations. (1) Under 33 CFR 165.33, entry into the security zones created by this section is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representatives. When authorized passage through a large passenger vessel security zone, all vessels 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. No person is allowed within 100 yards of an LPV that is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representative.

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

* * * * *

4. Amend § 165.1409 to revise paragraphs (a)(1), (a)(2), (b), (c)(1), and (c)(2) and to add paragraph (a)(3) to read as follows:

§ 165.1409

Security Zones; Hawaii, HI.

(a) * * *

(1) Hilo Harbor, Hawaii. All waters extending 100 yards in all directions from each large passenger vessel in Hilo Harbor, Hawaii, HI or within 3 nautical miles seaward of the Hilo Harbor COLREGS DEMARCATION (See 33 CFR 80.1480). This is a moving security zone when the LPV is in transit and becomes a fixed zone when the LPV is anchored, position-keeping, or moored.

(2) Kailua-Kona, Hawaii. All waters extending 100 yards in all directions from each large passenger vessel in Kailua-Kona, Hawaii, whenever the LPV is within 3 nautical miles of Kukailimoku Point. The 100-yard security zone around each LPV is activated and enforced whether the LPV is underway, moored, position-keeping, or anchored and will continue in effect until such time as the LPV departs Kailua-Kona and the 3-mile enforcement area.

(3) Kawaihae Harbor, Hawaii. All waters extending 100 yards in all directions from each large passenger vessel in Kawaihae Harbor, Hawaii, or within 3 nautical miles seaward of the Kawaihae Harbor COLREGS DEMARCATION (See 33 CFR 80.1470). The 100-yard security zone around each LPV is activated and enforced whether the LPV is underway, moored, position-keeping, or anchored.

(b) Definitions. As used in this section, large passenger vessel or LPV means a cruise ship more than 300 feet in length that carries passengers for hire, and any passenger ferry more than 300 feet in length that carries passengers for hire.

(c) Regulations. (1) Under 33 CFR 165.33, entry into the security zones created by this section is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representative. When authorized passage through a large passenger vessel security zone, all vessels 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. No person is allowed within 100 yards of a large passenger vessel that is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representatives.

(2) 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 an LPV security zone in order to ensure navigational safety.

* * * * *

5. Amend § 165.1410 to revise paragraphs (a)(1), (a)(2), (b), (c)(1), and (c)(2) to read as follows:

§ 165.1410

Security Zones; Kauai, HI.

(a) * * *

(1) Nawiliwili Harbor, Lihue, Kauai. All waters extending 100 yards in all directions from each large passenger vessel in Nawiliwili Harbor, Kauai, HI or within 3 nautical miles seaward of the Nawiliwili Harbor COLREGS DEMARCATION (See 33 CFR 80.1450). This is a moving security zone when the LPV is in transit and becomes a fixed zone when the LPV is anchored, position-keeping, or moored.

(2) Port Allen, Kauai. All waters extending 100 yards in all directions from each large passenger vessel in Port Allen, Kauai, HI or within 3 nautical miles seaward of the Port Allen COLREGS DEMARCATION (See 33 CFR 80.1440). This is a moving security zone when the LPV is in transit and becomes a fixed zone when the LPV is anchored, position-keeping, or moored.

(b) Definitions. As used in this section, large passenger vessel or LPV means a cruise ship more than 300 feet in length that carries passengers for hire, and any passenger ferries more than 300 feet in length that carries passengers for hire.

(c) Regulations. (1) Under 33 CFR 165.33, entry into the security zones created by this section is prohibited unless authorized by the Coast Guard Captain of the Port, Honolulu or his or her designated representative. When authorized passage through an LPV security zone, all vessels 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 representative. No person is allowed within 100 yards of a large passenger vessel that is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representative.

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

* * * * *

Dated: June 6, 2007.

Sally Brice-O'Hara,

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