[Federal Register Volume 77, Number 9 (Friday, January 13, 2012)]
[Rules and Regulations]
[Pages 2019-2022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-549]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1159]
RIN 1625-AA87


Security Zone; Passenger Vessel SAFARI EXPLORER Arrival/
Departure, Kaunakakai Harbor, Molokai, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a temporary security zone for 
Kaunakakai Harbor, Molokai including the entrance channel and offshore 
area adjacent to the channel's entrance. The establishment of this 
security zone is necessary to enable the Coast Guard and its law 
enforcement partners to protect people, vessels, and facilities in and 
around Kaunakakai Harbor during potential non-compliant protests 
involving the passenger vessel SAFARI EXPLORER to its intended berth in 
the harbor. Entry into the temporary security zone is prohibited unless 
authorized by the Coast Guard Captain of the Port, Honolulu, or her 
designated representatives.

DATES: This rule is effective from 11 p.m. HST on January 19, 2012, 
through 9 a.m. HST on May 15, 2012. Comments and related material must 
be received by the Coast Guard on or before February 3, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-1159 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) 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 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule call or email Lieutenant Commander Scott O. Whaley, U.S. 
Coast Guard; telephone (808) 522-8264 (ext. 352), email 
<a href="/cdn-cgi/l/email-protection#3d6e5e5249491372136a555c5158447d484e5e5a13505451"><span class="__cf_email__" data-cfemail="c794a4a8b3b3e988e990afa6aba2be87b2b4a4a0e9aaaeab">[email protected]</span></a>. If you have questions on viewing or submitting 
material to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-1159), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via www.regulations.gov, it will be considered received 
by the Coast Guard when you successfully transmit the comment. If you 
fax, hand deliver, or mail your comment, it will considered as having 
been received by the Coast Guard when it is received at the Docket 
Management Facility. We recommend that you include your name and a 
mailing address, an email address, or a telephone number in the body of 
your document so that we can contact you if we have questions regarding 
your submission.
    To submit your comment online, go to http://regulations.gov, click 
on the ``Submit a Comment'' box, which will then become highlighted in 
blue. In the ``Document Type'' drop down menu select ``Search All'' and 
insert ``USCG-2011-1159'' in the ``Keyword'' box.

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Click ``Search'' and then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``Read Comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2011-1159'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m. (EST), Monday through Friday, except Federal holidays.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issues of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not plan to hold a public meeting. Insufficient time exists 
prior to this event to facilitate requests for a public meeting. If you 
object to this decision, you may submit a request for a public meeting 
using one of the four methods specified under ADDRESSES. Please explain 
in detail why you believe a public meeting would be beneficial. If we 
ultimately determine that a public meeting would aid in this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

Regulatory Information

    The Coast Guard is issuing this temporary interim 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. Though the 
operation of the SAFARI EXPLORER into Molokai has been voluntarily 
suspended by the operating company, operations could resume at any 
time. It would be contrary to public interest to delay implementing 
this rule because it could expose waterborne protestors and persons on 
the vessel to significant hazards associated with the protestor's 
tactics of intentionally impeding the channel to Kaunakakai Harbor and 
using themselves as human barriers to the SAFARI EXPLORER's movement 
into the 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 temporary 
interim rule without first publishing a proposed rule, comments are 
invited regarding this rule on or before February 3, 2012. We may issue 
a temporary final rule that reflects changes from this temporary 
interim rule based upon your comments.

Basis and Purpose

    The entrance channel into Kaunakakai Harbor is narrow making 
transit for larger vessels difficult in all but calm weather. There is 
no turning basin within the harbor and larger vessels are restricted in 
their ability to maneuver once they enter the channel. Turning around 
and holding position in the narrow channel can create a hazardous 
condition and places the vessel at risk of grounding in the shallow 
waters adjacent to the channel.
    On November 26, 2011, protestors impeded the scheduled passage of 
the SAFARI EXPLORER into Kaunakakai Harbor by blocking the entrance of 
the channel with small vessels and persons on surfboards. To avoid risk 
of collision or grounding, the master of the SAFARI EXPLORER held 
station outside of the channel's entrance and ultimately decided not to 
attempt entry into Kaunakakai Harbor after the protestors in the 
channel failed to allow access for two hours.
    Given this past protest activity and the communicated desire of 
certain persons to carry out protest activities in the future, certain 
individuals may attempt to implement the same or similar techniques in 
order to impede future transits by the SAFARI EXPLORER. By designating 
the waters and land within Kaunakakai Harbor as a security zone, to be 
enforced prior to scheduled SAFARI EXPLORER transits, the regulation 
provides the Coast Guard and its law enforcement partners the authority 
to prevent persons and vessels from intentionally blocking the channel 
and ensures the safe passage of the vessel.

Discussion of Temporary Interim Rule

    This rule creates a security zone encompassing the navigable 
channel in Kaunakakai Harbor and adjacent waters, and areas onshore 
including the Young Brothers facility and a public boat ramp. The 
security zone includes all waters and land encompassed within a 
rectangle-like shape bounded by the following coordinates: North of the 
Young Brothers Facility at 21[deg]05'08'' N, 157[deg]01'41'' W; then 
Southeast at a bearing of 125[deg] for 770 yards to 21[deg]04'55'' N, 
157[deg]01'21'' W; then southwest at a bearing of 226[deg] for 1,360 
yards to 21[deg]04'27'' N, 157[deg]01'52'' W; then northwest at a 
bearing of 306[deg] for 580 yards to 21[deg]04'27'' N, 157[deg]01'52'' 
W; then northeast at a bearing of 038[deg] for 1,375 yards to the 
starting point.
    A graphic labeled ``Illustration of Kaunakakai Harbor, Molokai 
Security Zone'' is available via http://www.regulations.gov in docket 
USCG-2011-1159. It provides a graphical representation of the security 
zone discussed above that is being established by this temporary 
interim rule.
    The security zone will be activated for enforcement 60 minutes 
before the SAFARI EXPLORER's intended transit into the Kaunakakai 
Harbor Channel and will remain subject to enforcement until 10 minutes 
after the SAFARI EXPLORER is safely moored in the harbor. The security 
zone may also be activated for enforcement 60 minutes before the SAFARI 
EXPLORER's intended transit until after the SAFARI EXPLORER has safely 
departed from the security zone. Notice of the zone's activation will 
be provided by broadcast notice to mariners and the display of a red 
flag at the Kaunakakai Harbor Master's building.
    In preparing this temporary rule, the Coast Guard made sure to 
consider the rights of lawful protestors. To that end, the Coast Guard 
will allow demonstrations within the land portion of the security zone 
on the public section of the pier immediately adjacent to the Young 
Brothers facility where the SAFARI EXPLORER intends to

[[Page 2021]]

disembark passengers. The sizeable area will allow protestors to 
assemble and convey their message is a safe manner to their intended 
audience.
    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 those authorized support vessels and 
personnel, or other personnel or vessels authorized by the Coast Guard 
Captain of the Port Honolulu or the Fourteenth District Commander. Any 
Coast Guard commissioned, warrant or petty officer, or other Captain of 
the Port representative permitted by law, may enforce the zone.
    Vessels or persons in violation of this rule may be subject to the 
penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192 which include 
federal felony provisions.

Regulatory Analyses

    We developed this temporary interim rule after considering numerous 
statutes and executive orders related to rulemaking. Below we summarize 
our analyses based on 14 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 or under Executive Order 13563, Improving 
Regulation and Regulatory Review. 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 conclusion is based on the limited duration of the 
zone and the limited geographic area affected by it.

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. This rule could affect the following entities, some of which 
might be small entities: The owners or operators of vessels for hire 
intending to transit or operate within Kaunakakai Harbor from January 
19, 2012, to May 15, 2012.
    This security zone will not have a significant economic impact on a 
substantial number of small entities because this rule will be 
activated and thus subject to enforcement for periods estimated to be 
no longer than two hours per transit. Activation of the security zone 
will only affect a small population of vessels operating within 
Kaunakakai Harbor.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will 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 will 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 rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LCDR Scott O. 
Whaley at (808) 522-8264 extension 352. The Coast Guard will not 
retaliate against small entities that question or complain about this 
temporary interim rule or any policy or action of the Coast Guard.
    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 proposed rule would call 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 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 proposed rule will not cause 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 would not create an 
environmental risk to health or risk to safety that might 
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 will 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

[[Page 2022]]

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 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a 
determination that this action is one of a category of actions which do 
not individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction. This regulation establishes a 
temporary security zone. A final ``Environmental Analysis Checklist'' 
and a final ``Categorical Exclusion Determination'' are 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 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. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T14-1159 to read as follows:


Sec.  165.T14-1159  Security Zone; Passenger Vessel SAFARI EXPLORER 
Arrival/Departure, Kaunakakai Harbor, Molokai, Hawaii.

    (a) Location. All waters, from the surface to the sea floor, and 
land encompassed within a rectangle-like shape bounded by the following 
coordinates: North of the Young Brothers Facility at 21[deg]05'08'' N, 
157[deg]01'41'' W; then Southeast at a bearing of 125[deg] for 770 
yards to 21[deg]04'55'' N, 157[deg]01'21'' W; then southwest at a 
bearing of 226[deg] for 1,360 yards to 21[deg]04'27'' N, 
157[deg]01'52'' W; then northwest at a bearing of 306[deg] for 580 
yards to 21[deg]04'27'' N, 157[deg]01'52'' W; then northeast at a 
bearing of 038[deg] for 1,375 yards back to the starting point.
    (b) Definitions. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the Captain of the Port Honolulu to assist in 
enforcing the security zones described in paragraph (a) of this 
section.
    (c) Regulations. The general security zone found in 33 CFR part 
165, subpart D, apply to the security zones created by this temporary 
section.
    (1) All persons are required to comply with the general regulations 
governing security zones found in 33 CFR 165.33.
    (2) Entry into or remaining in the security zone described in 
paragraph (a) of this section is prohibited unless authorized by the 
Coast Guard Captain of the Port Honolulu zone or her designated 
representatives.
    (3) Persons desiring to transit the area of the security zone may 
contact the on-scene patrol commander on VHF channel 16 (156.800 MHz) 
or VHF channel 13 (156.650 MHz), or the Captain of the Port Honolulu at 
telephone number 1-(808) 842-2600. If permission is granted to enter 
the security zone, all persons and vessels must comply with the 
instructions of the Captain of the Port or her designated 
representatives.
    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zones by Federal, State, and local agencies.
    (e) Enforcement period. The security zone described in paragraph 
(a) of this section will be activated for enforcement 60 minutes before 
the SAFARI EXPLORER's intended transit into the Kaunakakai Harbor 
Channel and will remain subject to enforcement until 10 minutes after 
the SAFARI EXPLORER is safely moored in the harbor. The security zone 
may also be activated for enforcement 60 minutes before the SAFARI 
EXPLORER's intended transit until after the SAFARI EXPLORER has safely 
departed from the security zone. Notice of the zone's activation will 
be provided by broadcast notice to mariners and the display of a red 
flag at the Kaunakakai Harbor Master's building.

    Dated: December 21, 2011.
J. M. Nunan,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2012-549 Filed 1-12-12; 8:45 am]
BILLING CODE 9110-04-P


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