[Federal Register Volume 72, Number 171 (Wednesday, September 5, 2007)]
[Rules and Regulations]
[Pages 50877-50879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4357]



[[Page 50877]]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2007-29153]
RIN 1625-AA87


Security Zone; Hawaii Super Ferry Arrival/Departure, Nawiliwili 
Harbor, Kauai, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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

SUMMARY: The Coast Guard has created a security zone in the waters of 
Nawiliwili Harbor, Kauai, and on the land of the jetty south of 
Nawiliwili Park, including Waapa 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 protesters who have impeded passage of the Hawaii 
Super Ferry to its dock in the 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 
Super Ferry.

DATES: This rule is effective from September 1, 2007, through October 
31, 2007. Comments and related material must reach the Coast Guard on 
or before September 26, 2007.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2007-29153 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Web site: http://dms.dot.gov.
    (2) Mail: 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.
    (3) Fax: 202-493-2251.
    (4) Delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (5) Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) Laura 
Springer, U.S. Coast Guard Sector Honolulu at (808) 842-2600.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (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. Though operation of the Hawaii 
Super Ferry from Oahu to Kauai has been voluntarily suspended by the 
operating company, operations could resume at any time. Delay in 
implementing this rule would expose protesters in the water and ashore, 
and ferry passengers and crew to undue hazards due to protesters' 
tactics of entering the water from land and waterfront facilities 
adjacent to the harbor and using themselves as human barriers to the 
Hawaii Super Ferry's movement into Nawiliwili Harbor. For the same 
reason, 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. Although the Coast Guard has good 
cause to issue this effective temporary rule without first publishing a 
proposed rule, you are invited to submit comments and related material 
regarding this rule on or before September 26, 2007. We may change the 
temporary final rule based upon your comments.
    All comments received will be posted, without change, to http://dms.dot.gov and will include any personal information you have 
provided. We have an agreement with the Department of Transportation 
(DOT) to use the Docket Management Facility. You may review the 
Department of Transportation's Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477), or you may visit 
http://dms.dot.gov.

Background and Purpose

    On August 26 and 27, 2007, protesters impeded the passage of the 
Super Ferry Hawaii Super Ferry into and through Nawiliwili Harbor by 
entering the water from the land and waterfront facilities adjacent to 
the harbor, often with kayaks, surfboards, and other small vessels, and 
then swimming into and blocking the harbor's navigable channel. In 
addition, several hundred onlookers watched the unfolding events from 
land adjacent to the harbor. Most of these observers were on the jetty 
that is south of Nawiliwili Park, which is adjacent to the Madsen 
shipping facility in Nawiliwili Harbor (hereinafter referred to as 
``Nawiliwili Jetty''). Some of these onlookers threw rocks and bottles 
at Coast Guard personnel who were conveying detained protesters to 
shore on August 26. Most of the protesters who entered the water were 
observed doing so from Nawiliwili Jetty.
    The transit of the entrance into Nawiliwili harbor is difficult for 
large vessels in all but calm weather. The turn around the outer 
breakwater, then immediately turning in the opposite direction around 
the inner jetty is made more difficult by the combined effects of the 
winds and seas. Due to the difficulty of maneuvering in the small area 
of Nawiliwili, and in the interest of ensuring the safety of the 
protesters, the Hawaii Super Ferry's master chose not to enter the 
channel until the Coast Guard had cleared the channel of protesters. 
However, because the vessel remained outside the harbor, and because 
the protesters did not approach to within 100 yards of the vessel, the 
existing security zone (see 33 CFR 165.1410) did not provide the Coast 
Guard with the authority to control protestor entry into Nawiliwili 
Harbor or clear the channel of protesters before the Hawaii Super Ferry 
commenced its transit into the harbor. The resulting situation 
substantially complicated an already difficult transit and created a 
substantial risk of damage and injury.
    The purpose of this regulation is several-fold. First, by 
designating most of the waters of Nawiliwili Harbor as a security zone 
upon the occurrence of triggering events discussed later, the 
regulation provides the Coast Guard and its law enforcement partners 
the authority to prevent persons and vessels from endangering 
themselves and the Hawaii Super Ferry's passengers and crew by 
attempting 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 
Hawaii Super Ferry may enter and depart the harbor safely and unimpeded 
by protestors. Additionally, in the case of mass protests, the security 
zone makes land adjacent to the harbor available for law enforcement 
purposes, such as an incident command post and a processing point for 
detained protesters.

Discussion of the Rule

    This rule 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 Super Ferry's arrival into the zone, and will remain activated 
for 10 minutes after the Hawaii Super Ferry's departure from the zone. 
The activation of the zone for enforcement will be announced by marine

[[Page 50878]]

information broadcast and by a red flag, illuminated after sunset, 
displayed from the 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 is prohibited without the 
permission of the Captain of the Port, Honolulu, or his designated 
representative.

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.
    The Coast Guard expects the economic impact of this temporary 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 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 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 changes, 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 temporary 
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) Laura 
Springer, U.S. Coast Guard Sector Honolulu, (808) 842-2600. 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 temporary 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 temporary rule will not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

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

[[Page 50879]]

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 because this rule 
creates a security zone. An ``Environmental Analysis Check List'' and 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES.

List of Subjects 33 CFR Part 165

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

0
For the reasons set out 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: 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.
* * * * *

0
1. Add temporary Sec.  165.T14-160 to read as follows:


Sec.  165.T14-160  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, is a security zone that is 
activated as described in paragraph (b) of this section, and enforced 
subject to the provisions of paragraph (c) 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 
Waapa Road is included within the security zone.
    (b) Activation. The zone described in paragraph (a) of this section 
will be activated for enforcement 60 minutes before the Hawaii Super 
Ferry's arrival into the zone and remain activated for 10 minutes after 
the Hawaii Super Ferry'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 the Pier One and the Harbor Facility Entrance on Jetty Road.
    (c) Regulations. (1) Under 33 CFR 165.33, entry by persons or 
vessels into the security zones created by this section and activated 
as described in paragraph (b) 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. Under 
authority of 50 U.S.C. 192, 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 comprise 
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 a the Hawaii Super Ferry 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.
    (d) Enforcement. Any Coast Guard commissioned, warrant, or petty 
officer, and any other person permitted by law, may enforce the 
regulations in this section.

    Dated: August 31, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard 
District.
[FR Doc. 07-4357 Filed 8-31-07; 2:16 pm]
BILLING CODE 4910-15-P