[Federal Register Volume 83, Number 167 (Tuesday, August 28, 2018)]
[Rules and Regulations]
[Pages 43762-43765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18581]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0838]
RIN 1625-AA00


Safety Zones, Hurricane Lane Port Closures for Hawaiian Islands

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing 9 temporary safety zones 
encompassing Hawaii's commercial

[[Page 43763]]

harbors to include Nawiliwili and Port Allen, Kauai; Barber's Point and 
Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; Kahului, 
Maui; and Kawaihae and Hilo on the Island of Hawaii. These temporary 
safety zones are necessary to protect the harbors from the potential 
impacts of Hurricane Lane and when enforced functionally close the port 
to commercial vessel traffic and require the evacuation of vessels in 
accordance with the Coast Guard Sector Honolulu Heavy Weather and 
Hurricane Plan.

DATES: This rule is effective without actual notice from August 28, 
2018 until August 29, 2018. For the purposes of enforcement, actual 
notice will be used from August 22, 2018, until August 28, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0838 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Commander John E. Bannon, Waterways Management 
Division, U.S. Coast Guard; telephone 808-541-4359, email 
<a href="/cdn-cgi/l/email-protection#b4fedbdcda9af19af6d5dadadbdaf4c1c7d7d39ad9ddd8"><span class="__cf_email__" data-cfemail="2963464147076c076b4847474647695c5a4a4e07444045">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Honolulu
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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) 
with respect to this rule due to the imminent approach of Hurricane 
Lane and its potential impacts to the island of Hawaii. Closing the 
ports and ordering evacuation of vessels over 200 gross tons is in 
accordance with Coast Guard Sector Honolulu's Maritime Heavy Weather 
and Hurricane Plan. It is impracticable to publish an NPRM because of 
the rapid escalation of the tropical storm to hurricane status and the 
imminent threat posed.
    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. Delaying the effective date would 
be contrary to the rule's objectives of enhancing safety of life on the 
navigable waters and protection of persons and vessels due to the 
imminent threat of the approaching hurricane.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The Captain of the Port Honolulu (COTP) has determined that 
potential hazards associated with Hurricane Lane constitute a safety 
concern for all commercial harbors in Hawaii. This rule is needed to 
protect personnel, vessels, maritime commercial facilities, and the 
marine environment in the navigable waters of Nawiliwili and Port 
Allen, Kauai; Barber's Point and Honolulu Harbor, Oahu; Kaunakakai, 
Molokai; Kaumalapau, Lanai; Kahului, Maui; and Kawaihae and Hilo on the 
Island of Hawaii. This temporary rulemaking implements the closure of 
the port and evacuation of vessels called for in the Coast Guard Sector 
Honolulu Heavy Weather & Hurricane Plan. Consistent with the Plan, the 
Captain of the Port finds sufficient indications that the approaching 
Hurricane Lane poses considerable safety concerns, creating the need 
for these safety zones.

IV. Discussion of the Rule

    This rule establishes nine safety zones encompassing Hawaii's 9 
commercial harbors; Nawiliwili and Port Allen, Kauai; Barber's Point 
and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; 
Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii. The Coast 
Guard is closing all commercial harbors to vessels over 200 gross tons, 
in accordance with the Coast Guard Sector Honolulu's Heavy Weather & 
Hurricane Plan and requires the evacuation of all vessels over 200 
gross tons. Notice of actual port closure times will be given to the 
maritime community via marine safety information bulletins and 
broadcast notice to mariners. All vessels unable to comply with this 
safety zone and seeking to remain in port, must submit a request to 
remain in port detailing vessel specifics and a mooring plan for 
approval from the Captain of the Port. Vessels are not authorized to 
enter or remain in port without the specific authorization of the COTP 
Honolulu. The harbors will remain closed until the Coast Guard issues 
an ``All Clear'' for the harbor after the storm passes and a survey of 
the Harbor for potential hazards is completed by the Coast Guard.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and Executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the anticipated 
short duration of the storm and protection of personnel, vessels, 
maritime commercial facilities, and the marine environment from 
potential impacts of Hurricane Lane. Moreover, the Coast Guard will 
issue marine safety information bulletins and broadcast notice to 
mariners on marine channel 16 about the safety zones and the rule 
allows vessels to seek permission to enter the safety zones.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.

[[Page 43764]]

    While some owners or operators of vessels intending to transit the 
safety zones may be small entities, for the reasons stated in section 
V.A. above, this rule will not have a significant economic impact on 
any vessel owner or operator. This rule may affect the following small 
entities: The owners or operations of vessels intending to transit, 
anchor, or moor within nine safety zones encompassing Hawaii's 9 
commercial harbors; Nawiliwili and Port Allen, Kauai; Barber's Point 
and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; 
Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii between 
August 22, 2018 and August 29, 2018. Upon passing of the hurricane and 
verification of the safety of the waterways, all vessels will be 
allowed to reenter or exit the commercial ports of Hawaii as soon as 
reasonably expected and safe to allow.
    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. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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 (adjusted for 
inflation) 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.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Directive 023-01 and Commandant Instruction M16475.1D, which guide the 
Coast Guard in complying with the National Environmental Policy Act of 
1969 (42 U.S.C. 4321-4370f), and have determined that this action is 
one of a category of actions that do not individually or cumulatively 
have a significant effect on the human environment. This rule involves 
safety zones lasting 7 days that will prohibit entry into 9 Hawaii 
commercial harbors; Nawiliwili and Port Allen, Kauai; Barber's Point 
and Honolulu Harbor, Oahu; Kaunakakai, Molokai; Kaumalapau, Lanai; 
Kahului, Maui; and Kawaihae and Hilo on the Island of Hawaii. It is 
categorically excluded from further review under paragraph L60(c) of 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A 
Record of Environmental Consideration supporting this determination 
will be made available in the docket where indicated under ADDRESSES.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

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

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T14-0838 to read as follows:


Sec.  165.T14-0838   Safety Zones, Hurricane Lane Port Closures for 
Hawaiian Islands.

    (a) Location. The following commercial harbors are safety zones:
    (1) All waters of Barber's Point Harbor, Oahu inland from a line 
drawn between 21[deg]19'30'' N, 158[deg]07'14'' W and 21[deg]19'18'' N, 
158[deg]07'18'' W;
    (2) All waters of Honolulu Harbor, Oahu inland from a line drawn 
between 21[deg]17'56'' N, 157[deg]52'15'' W and 21[deg]17'45'' N, 
157[deg]52'10'' W;
    (3) All waters of Kaunakakai Harbor, immediately adjacent to the 
Interisland Cargo Terminal out to 100 yards of the west face of the 
pier;
    (4) All waters of Kaumalapau Harbor, Lanai inland from a line drawn 
between 20[deg]47'10'' N, 156[deg]59'32'' W and 21[deg]47'01'' N, 
156[deg]59'31'' W;
    (5) All waters of Kahului Harbor, Maui inland from a line drawn 
between 20[deg]54'01'' N, 156[deg]28'26'' W and 20[deg]54'02'' N, 
156[deg]28'18'' W;
    (6) All waters of Kawaihae Harbor, Hawaii inland from a line drawn 
between 20[deg]02'14'' N, 158[deg]50'02'' W and 20[deg]02'19'' N, 
155[deg]49'55'' W;
    (7) All waters of Hilo Harbor, Hawaii inland from a line drawn 
between 19[deg]44'17'' N, 155[deg]05'22'' W and 19[deg]44'34'' N, 
155[deg]04'31'' W;
    (8) All waters of Nawiliwili Harbor, Kauai inland from a line drawn 
between 21[deg]56'58'' N, 159[deg]21'28'' W and 21[deg]57'11'' N, 
159[deg]21'10'' W;

[[Page 43765]]

    (9) The Port Allen, Kauai from all waters immediately adjacent to 
the Department of Transportation commercial pier (located at 
21[deg]53'59'' N, 157[deg]35'21'' W) extending out to 100 yards from 
the piers faces;
    (b) Regulations. The general regulations governing safety zones 
contained in 33 CFR 165.23, Subpart C, apply to the safety zones 
created by this temporary final rule.
    (1) All persons and vessels are required to comply with the general 
regulations governing safety zones found in 33 CFR part 165.
    (2) Entry into or remaining in this zone is prohibited unless 
authorized by the COTP Honolulu or his designated representative.
    (3) Persons or vessels desiring to transit the safety zones 
identified in paragraph (a) of this section may contact the COTP 
Honolulu through his designated representatives at the Command Center 
via telephone: (808) 842-2600 and (808) 842-2601; fax: (808) 842-2642; 
or on VHF channel 16 (156.8 Mhz) to request permission. If permission 
is granted, all persons and vessels must comply with the instructions 
of the COTP Honolulu or his designated representative.
    (5) The commercial ports of the Hawaiian Islands will be closed to 
all inbound traffic when the COTP Honolulu issues a marine safety 
information bulletin twelve hours before the onset of tropical storm 
force winds are forecasted to impact the port. All vessels over 200 
gross tons must evacuate.
    (6) All vessels unable to comply with this safety zone may request 
a waiver from the COTP Honolulu by submitting a request with their 
hurricane plans for review and approval by the designated 
representative of COTP Honolulu.
    (7) The harbors will remain closed until the Coast Guard issues an 
``All Clear'' for the harbor after the storm passes and a survey of the 
Harbor for potential hazards is completed by the Coast Guard.
    (c) Definitions. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the COTP Honolulu to assist in enforcing the 
security zone described in paragraph (a) of this section.
    (f) Enforcement period. This rule will be enforced from 11 a.m. on 
August 22, 2018, through 11 a.m. on August 29, 2018.
    (g) Notice of enforcement. The COTP Honolulu will cause Notice of 
the Enforcement of these safety zones described in this section to be 
made by Broadcast to the maritime community via marine safety 
information bulletins and broadcast notice to mariners on VHF channel 
16 (156.8 MHz).

    Dated: August 22, 2018.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2018-18581 Filed 8-27-18; 8:45 am]
 BILLING CODE 9110-04-P


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