Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Rules and Regulations 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 


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50878 Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Rules and Regulations 

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. 


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Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / Rules and Regulations 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. 

■ 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 

■ 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. 

* * * * * 

■ 1. Add temporary § 165.T14–160 to 

read as follows: 

§ 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 onscene-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, positionkeeping, 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2005–NM–0006; FRL–

8463–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Mexico; Prevention of Significant 

Deterioration and New Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is approving 

revisions to the New Mexico State 

Implementation Plan (SIP) that were 

submitted to EPA on April 11, 2002, and 

December 29, 2005. The revisions 

modify New Mexico’s Prevention of 

Significant Deterioration (PSD) and 

Nonattainment New Source Review 

(NNSR) regulations in the SIP to address 

changes to the Federal PSD and NNSR 

regulations which were promulgated by 

EPA on December 31, 2002 and 

reconsidered with minor changes on 

November 7, 2003 (collectively, these 

two Federal actions are called the ‘‘2002 

New Source Review (NSR) Reform 

Rules’’). The revisions include 

provisions for baseline emissions 

calculations, an actual-to-projectedactual methodology for calculating 

emissions changes, options for 

plantwide applicability limits (PALs), 

and recordkeeping and reporting 

requirements. EPA is approving these 

revisions pursuant to section 110, part 

C, and part D of the Federal Clean Air 

Act (Act). 

DATES: This rule is effective on October 

5, 2007. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

Number EPA–R06–OAR–2005–NM–

0006. All documents in the docket are 

listed on the http://www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 


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