[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Rules and Regulations]
[Pages 85500-85502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26808]



[[Page 85500]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0743]
RIN 1625-AA00


Safety Zone; Lahaina Boat Basin, Maui, HI--Emergency Operations 
and Port Recovery

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters in the vicinity of Lahaina Boat Basin, Maui, 
Hawaii. The temporary safety zone encompasses all waters extending 200 
yards from shore from the northernmost boundary, 60 yards south of the 
intersection of Front Street and Baker Street, Maui, to the 
southernmost boundary, 20 yards south of the intersection of Front 
Street and Shaw Street, Maui. This action is necessary to provide for 
the safety of persons and the marine environment from the potential 
safety hazards associated with the damage assessment, debris 
management, vessel salvage, and port recovery of Lahaina Boat Basin and 
surrounding waters, through December 15, 2023. Entry of vessels or 
persons into this zone is prohibited unless specifically authorized by 
the Captain of the Port Sector Honolulu or designated representative.

DATES: This rule is effective without actual notice from December 8, 
2023 through December 15, 2023. For the purposes of enforcement, actual 
notice will be used from December 01, 2023, until December 8, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0743 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Lieutenant Commander Wade Thomson, Waterways Management 
Division, U.S. Coast Guard Sector Honolulu at (808) 541-4359 or 
<a href="/cdn-cgi/l/email-protection#1641777273384638427e797b6579785663657571387b7f7a"><span class="__cf_email__" data-cfemail="7d2a1c1918532d53291512100e12133d080e1e1a53101411">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector 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

    On August 8, 2023, high winds and wildfires struck portions of 
Maui, Hawaii, causing damage to coastal infrastructure and prompting 
mass rescue operations for area residents.
    On August 9, 2023, the Coast Guard issued a temporary rule 
establishing a safety zone for all waters extending 1 nautical mile 
from shore starting from the northernmost point of Kekaa Point, Maui, 
thenceforth to the southernmost point at Hekili Point, Maui, to protect 
personnel, vessels, and the marine environment from potential hazards 
associated with emergency response and port recovery operations after 
wildfires affected the area. The safety zone was effective through 
August 23, 2023. A copy of the rulemaking that ended on August 23, 
2023, is available in Docket USCG-2023-0669, which can be found using 
instructions in the ADDRESSES section.
    On September 22, 2023, the Coast Guard issued a rulemaking creating 
a temporary safety zone that encompassed all waters extending 200 yards 
from shore from the northernmost point, 100 yards south of the 
intersection of Kaniau Road and Honoapiilani Highway (Highway 30), 
Maui, thenceforth to the southernmost boundary at the southern end of 
Launiupoko Beach Park, Maui, with an effective end date of December 5, 
2023. A copy of the rulemaking ending on December 5, 2023 is available 
in the Docket USCG-2023-0743, which can be found using instructions in 
the ADDRESSES section. However, additional time is needed to continue 
to provide protection against hazards in the area due to emergency 
response and port recovery operations. As a result, the Coast Guard is 
establishing through temporary regulations a safety zone that will be 
in effect through December 15, 2023. The safety zone encompasses all 
waters extending 200 yards from shore from the northernmost boundary, 
60 yards south of the intersection of Front Street and Baker Street, 
Maui, to the southernmost boundary, 20 yards south of the intersection 
of Front Street and Shaw Street, Maui.
    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) 
because it would be impracticable and contrary to the public interest. 
The Coast Guard was unable to publish an NPRM and hold a reasonable 
comment period for this rulemaking due to the emergent nature of the 
continuing damage assessment and salvage operations.
    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 of 
this rule would be impracticable because immediate action to restrict 
vessel traffic within the safety zone is needed to protect life, 
property, and the environment, therefore a 30-day notice period is 
impracticable. Delaying the effective date would be contrary to the 
safety zone's intended objectives of providing immediate protection to 
on-scene emergency personal, creating a working buffer necessary to 
mitigate any safety and potential pollution threats caused by the 
wildfires and establishing immediate maritime safety in the vicinity of 
on-scene damage assessments.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034. The Coast Guard Captain of the Port Sector Honolulu (COTP) has 
determined that the potential hazards associated with the emergency 
response and port recovery efforts connected to wildfires in the area 
constitute a safety concern for anyone within the designated safety 
zone. This rule is necessary to protect personnel, vessels, and the 
marine environment within the navigable waters of the safety zone 
during ongoing emergency response and port recovery operations.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone that will be enforced 
from December 01, 2023, through December 15, 2023, at 11:59 p.m., or 
until emergency response and port recovery operations are complete, 
whichever is earlier. If the safety zone is terminated prior to 11:59 
p.m. on December 15, 2023, the Coast Guard will provide notice via a 
broadcast notice to mariners. The temporary safety zone encompasses all 
waters extending 200 yards from shore from the northernmost

[[Page 85501]]

boundary, 60 yards south of the intersection of Front Street and Baker 
Street, Maui, to the southernmost boundary, 20 yards south of the 
intersection of Front Street and Shaw Street, Maui. The safety zone is 
needed to protect personnel, vessels, and the marine environment from 
potential hazards associated with ongoing emergency response and port 
recovery operations after wildfires affected the area. No vessel or 
person will be permitted to enter the safety zone absent the express 
authorization of the COTP or her designated representative.

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. This rule has not been designated a ``significant 
regulatory action,'' under Executive Order 12866, as amended by 
Executive Order 14094 (Modernizing Regulatory Review). Accordingly, 
this rule has not been reviewed by the Office of Management and Budget 
(OMB).
    This regulatory action determination is based on the size, 
location, and limited duration of the safety zone. This zone impacts a 
small, designated area of the Lahaina Harbor and surrounding waters and 
operations may suspend early at the discretion of the COTP.

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.
    While some owners or operators of vessels intending to transit the 
safety zone 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.
    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 
call or email 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.

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, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 a 
safety zone that will prohibit entry within certain navigable waters of 
Lahaina Boat Basin. It is categorically excluded from further review 
under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 1.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.3.


0
2. Add Sec.  165.T14-0743 to read as follows:

[[Page 85502]]

Sec.  165.T14-0743  Safety Zone; Pacific Ocean, Lahaina Boat Basin, 
Maui, HI--Emergency Operations and Port Recovery.

    (a) Location. The following area is a safety zone: All waters 
extending 200 yards from shore from the northernmost boundary, 60 yards 
south of the intersection of Front Street and Baker Street, Maui, to 
the southernmost boundary, 20 yards south of the intersection of Front 
Street and Shaw Street, Maui.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port Sector Honolulu (COTP) in the enforcement of the 
safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by VHF/FM Chanel 16. Those in the safety zone must 
comply with all lawful orders or directions given to them by the COTP 
or the COTP's designated representative.
    (d) Enforcement period. This rule will be enforced December 1, 
2023, through December 15, 2023, unless an earlier end is announced by 
broadcast notice to mariners.

    Dated: December 1, 2023.
A.L. Kirksey,
Captain, U.S. Coast Guard, Captain of the Port Sector Honolulu.
[FR Doc. 2023-26808 Filed 12-7-23; 8:45 am]
BILLING CODE 9110-04-P


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