2010-33120. Security Zone; On the Waters in Kailua Bay, Oahu, HI

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary security zone on the waters south of Kapoho Point and a nearby channel in Kailua Bay within the Honolulu Captain of the Port (COTP) Zone. This security zone is necessary to ensure the safety of the President of the United States, members of his official party, and other senior government officials.

DATES:

This rule is effective from 10 a.m. (HST) on December 21, 2010 through 8 p.m. (HST) on January 5, 2011.

ADDRESSES:

Documents indicated in this preamble as being available in the docket USCG-2010-1111 are available online by going to http://www.regulations.gov,, inserting USCG-2010-1111 in the “Keyword” box, and then clicking “Search”. They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call or e-mail Lieutenant Commander Marcella Granquist, Waterways Management Division, U.S. Coast Guard Sector Honolulu; telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

The Coast Guard is issuing this temporary final 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) because the Captain of the Port Honolulu (COTP) did not become aware of the need for this temporary security zone in a timely manner to publish and seek comments on a proposed rule and consider those comments before issuing a rule that would be enforceable by December 21, 2010. Publishing an NPRM and delaying the effective date would be contrary to the public interest since the occasion would occur before a notice-and-comment rulemaking could be completed, thereby jeopardizing the safety of the President of the United States, members of his official party, and other senior government officials. 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. The COTP finds that this temporary security zone needs to be effective by December 21, 2010, to ensure the safety of the President of the United States, members of his official party, and senior government officials visiting the Kailua Bay area on the eastern coast of Oahu, Hawaii.

Background and Purpose

From December 21, 2010 through January 5, 2011, the President of the United States, members of his official party, and senior government officials will be residing near the Kailua Bay shoreline on Oahu, Hawaii. This position is located adjacent to U.S. navigable waters in the Honolulu Captain of the Port Zone. The Coast Guard is establishing this security zone to ensure the safety of the President of the United States, members of his official party, and senior government officials.

Discussion of Rule

This temporary security zone is effective from 10 a.m. HST on December 21, 2010 through 8 p.m. HST on January 5, 2011. It is located within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10) and covers all U.S. navigable waters in the Kailua Bay on the west side of a line connecting Kapoho Point and continuing at a bearing of 222° True to Namala Place Road; as well as the nearby channel from its entrance at Kapoho Point to a point 150 yards along the channel to the southwest of the N. Kalaheo Avenue Road Bridge. This zone extends from the surface of the water to the ocean floor. This zone will include the navigable waters of the channel beginning at point 21°25.6′ N, 157°45′ W, then extending the channel way to 21°25.6′ N, 157°44.6′ W, then all the waters extending to 21°25.5′ N, 157°44.4′ W (Kapoho Point) with all the waters to the west of a straight line to 21°25′ N, 157°44.6′ W (Namala Place), and then extending back to the original point 21°25′ N, 157°45′ W. Additionally, three (3) yellow buoys will be placed in proximity of the security zone along the east coastline and one (1) yellow buoy will be placed as visual aids for mariners and the public to approximate the zone.

In accordance with the general regulations in 33 CFR part 165, subpart D, no person or vessel will be permitted to transit into or remain in the zone except for authorized support vessels, aircraft and support personnel, or other vessels authorized by the Captain of the Port or the District Commander. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the zone. Vessels, aircraft, or persons in violation of this rule would be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

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. The Coast Guard expects the economic impact of this 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 limited duration of the zone, the limited geographic area affected by it, and that the general public will be permitted to transit the security zone as necessary but will not be permitted to loiter.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would 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. We expect that there will be little to no impact to small entities due to the narrow scope, nature of this security zone, and that the general public will be permitted to transit the security zone as necessary but will not be permitted to loiter. Additionally, before and during the effective period, the Coast Guard will issue verbal maritime advisories, and distribute a written notice to waterway users and online at http://homeport.uscg.mil/​honolulu.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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.

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 may disproportionately affect children.

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 rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded under the Instruction 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 rule is categorically excluded from further environmental documentation because implementation of this security zone will not result in any: (1) Significant cumulative impacts on the human environment, (2) substantial controversy or substantial change to existing environmental conditions, (3) impacts which are more than minimal on properties under Section 106 of the National Historic Preservation Act, or (4) inconsistencies with any Federal, State, local laws or administrative determinations relating to the environment.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine security
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures, and 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 § 165.T14-215 to read as follows:

§ 165.T14-215

Security Zone; On the Waters in Kailua Bay, Oahu, HI.

(a) Location. The following area, within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10), from the surface of the water to the ocean floor is a temporary security zone: All waters in Kailua Bay to the west of a line connecting the following points beginning at Kapoho Point and thence westward at a bearing of 222° True to the shoreline at Namala Place Road; in addition the adjacent channel beginning at Kapoho Point, and continuing thence to a point 150 yards down the channel way and ending southwest of the N. Kalaheo Avenue Road Bridge. This zone will include the navigable waters of the channel beginning at point 21°25′ N, 157°45′ W, then extending the channel way to 21°25.6′ N, 157°44.6′ W, then all the waters extending to 21°25.5′ N, 157°44.4′ W (Kapoho Point) with all the waters to the west of a straight line to 21°25′ N, 157°44.6′ W (Namala Place), and then extending back to the original point 21°25′ N, 157°45′ W.

(b) Effective period. This section is effective from 10 a.m. HST on December 21, 2010, through 8 p.m. HST on January 5, 2011.

(c) Regulations. (1) The general regulations governing security zones contained in 33 CFR 165.33 apply.

(2) Entry, transit, or anchoring within the security zone described in paragraph (a) of this section is prohibited unless authorized by the Captain of the Port Honolulu or the District Commander.

(d) Notice of enforcement. The Captain of the Port Honolulu will cause notice of the enforcement of the security zone described in this section to be made by verbal broadcasts and written notice to mariners and the general public.

(e) Authority to enforce. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the security zone described in this section.

(f) Waiver. The Captain of the Port may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the security zone is unnecessary or impractical for the purpose of maritime security.

(g) Penalties. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

Dated: December 16, 2010.

J.M. Nunan,

Captain, U.S. Coast Guard, Captain of the Port Honolulu.