[Federal Register Volume 82, Number 215 (Wednesday, November 8, 2017)]
[Rules and Regulations]
[Pages 51767-51770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24290]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0982]
RIN 1625-AA00


Safety Zone; Mamala Bay, Oahu, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: On October 10, 2017, the commercial fishing vessel PACIFIC 
PARADISE ran aground off of the navigable waters of Mamala Bay 
approximately 400 yards southwest of Kaimana Beach, Oahu, Hawaii. The 
Coast Guard established a temporary safety zone around the grounded 
vessel to facilitate vessel salvage operations and on October 18, 2017, 
the safety zone was extended for two additional weeks. To date, the 
vessel remains grounded. Accordingly, effective November 1, 2017, the 
Coast Guard extends the safety zone for an additional thirty days to 
facilitate ongoing salvage and subsequent removal operations. The 
extension of this safety zone is necessary to protect personnel, 
vessels and the marine environmental from potential hazards associated 
with ongoing operations to salvage and remove a grounded vessel in this 
area. Entry of vessels or persons into this zone is prohibited unless 
specifically authorized by the Captain of the Port (COTP) Honolulu.

DATES: This rule is effective without actual notice from November 8, 
2017

[[Page 51768]]

until 8:00 a.m. on December 1, 2017. For the purposes of enforcement, 
actual notice will be used from 8:00 a.m. on November 1, 2017 until 
November 8, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0982 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 Bannon, Waterways Management 
Division, U.S. Coast Guard Sector Honolulu at (808) 541-4359 or 
<a href="/cdn-cgi/l/email-protection#640e0b0c0a4a014a06050a0a0b0a24111707034a090d08"><span class="__cf_email__" data-cfemail="33595c5b5d1d561d51525d5d5c5d73464050541d5e5a5f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

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

II. Background Information and Regulatory History

    On October 10, 2017, the fishing vessel PACIFIC PARADISE ran 
aground off of the navigable waters of Mamala Bay approximately 400 
yards southwest of Kaimana Beach, Oahu, Hawaii at position 
21[deg]15.69' N.; 157[deg]49.49' W. On October 11, 2017, the Coast 
Guard established a seven day temporary safety zone encompassing all 
waters extending 500 yards in all directions around the grounded vessel 
to facilitate vessel salvage operations and protect personnel, vessels 
and the marine environment from the hazards associated with them. Due 
to the emergent nature of the grounding and subsequent removal 
operations, the temporary final rule (TFR) safety zone was not 
initially published in the Federal Register. On October 18, 2017, the 
safety zone was extended for two additional weeks to account for delays 
in salvage operations due to ocean and weather conditions. The safety 
zone extension was published in the Federal Register (82 FR 49111) on 
October 24, 2017. Ongoing challenges with the salvage efforts 
necessitate a second extension, this for thirty days, of the safety 
zone.
    The safety zone continues to encompass all waters extending 500 
yards in all directions around the grounded fishing vessel located 
approximately 400 yards southwest of Kaimana Beach at position 
21[deg]15.69' N.; 157[deg]49.49' W. When the vessel is off the reef, 
the safety zone will shift to a moving safety zone extending 500 yards 
in all directions around the vessel and continue until the removal 
operation is complete.
    The Coast Guard is extending the existing safety zone 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 because the initial estimate to salvage the 
vessel from the grounding was estimated at one week or less. Immediate 
action remains needed to respond to the safety hazards associated with 
this fishing vessel salvage effort for an estimated additional thirty 
days. Therefore, publishing an NPRM is impracticable and contrary to 
public interest.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register. For the same reasons 
stated in the preceding paragraph, delaying the effective period of 
this safety zone would be impracticable and contrary to the public 
interest.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule pursuant to 33 U.S.C. 1231. On 
October 10, 2017, the Coast Guard was informed the commercial fishing 
vessel PACIFIC PARADISE ran aground in Mamala Bay, Oahu, Hawaii, near 
Waikiki's Kaimana Beach. Coast Guard COTP Sector Honolulu determined 
that potential hazards associated with the salvage and removal 
operations constituted a safety concern and thus established a safety 
zone to protect personnel, vessels, and the marine environment during 
ongoing operations to remove the grounded vessel from a reef in high 
winds and seas followed by the towing and disposal of the disabled 
vessel.

IV. Discussion of the Rule

    This rule is effective from 8:00 a.m. on November 1, 2017 through 
8:00 a.m. on December 1, 2017, or until salvage operations are 
complete, whichever is earlier. If the safety zone is terminated prior 
to 8:00 a.m. on December 1, 2017, the Coast Guard will provide notice 
via a broadcast notice to mariners.
    The temporary safety zone encompasses all waters extending 500 
yards in all directions around the location of the grounded vessel 400 
yards southwest of Kaimana Beach near position: 21[deg]15.69' N.; 
157[deg]49.49' W. This zone extends from the surface of the water to 
the ocean floor. The safety zone is currently stationary around the 
grounded vessel. When the vessel is removed from the reef, the safety 
zone will shift to a moving safety zone and remain so until the tow and 
disposal operation is complete. The zone shall continue to encompass 
500 yards in all directions around the commercial fishing vessel. When 
the vessel is off the reef and removal operations commence, the Coast 
Guard will provide notice via a broadcast notice to mariners. No vessel 
or person will be permitted to enter the safety zone absent the express 
authorization of the COTP Honolulu or his 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. 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 size, location 
and duration of the safety zone. Vessel traffic will be able to safely 
transit around this safety zone away from the reef or during the 
salvage tow, which would impact only a small designated area of the 
waters off Kaimana Beach and Waikiki where vessel traffic is normally 
low. Closer to shore, the waterway is used primarily for beach 
recreation activities. Offshore of the beach, waterway traffic is 
primarily tourism related operations which will not be affected by the 
tow due to the

[[Page 51769]]

open space in the area. Moreover, vessels wishing to enter the zone may 
seek permission as set forth below.

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. The safety zone is limited in size and 
duration, and the location of the grounded vessel is not in an actively 
used navigable waterway. Once the vessel is free from the reef, the tow 
evolution will not impact existing waterway users. Furthermore, 
mariners may request to enter the zone by contacting the COTP.
    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.
    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 
Management Directive 023-01 and Commandant Instruction M16475.lD, 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 extension for duration of thirty additional 
days, or until the salvage operation is suspended. It is categorically 
excluded from further review under paragraph 34(g) of Figure 2-1 of the 
Commandant Instruction. A Record of Environmental Consideration 
supporting this determination is 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.T14-0982 to read as follows:


Sec.  165.T14-0982  Safety Zone; Mamala Bay, Oahu, HI.

    (a) Location. The safety zone is located within the COTP Honolulu 
Zone (See 33 CFR 3.70-10) and will encompass all navigable waters 
extending 500 yards in all directions from the fishing vessel PACIFIC 
PARADISE, which is grounded on a reef approximately 400 yards southwest 
of Kaimana Beach at position: 21[deg]15.69' N.; 157[deg]49.49' W. Once 
the commercial fishing vessel PACIFIC PARADISE is removed from the 
reef, the safety zone will become a moving safety zone extending 500 
yards in all directions from the vessel to facilitate the towing and 
disposal of the vessel. The safety zone will be enforced and throughout 
the salvage, transit and removal operations within Mamala Bay, Keehi 
Lagoon, or Honolulu Harbor. This zone extends from the surface of the 
water to the ocean floor.
    (b) Enforcement period. This rule is effective from 8:00 a.m. on 
November 1, 2017 through 8:00 a.m. on December 1, 2017, or until 
salvage recovery operations are complete, whichever is earlier. If the 
safety zone is terminated

[[Page 51770]]

prior to 8:00 a.m. on December 1, 2017, the Coast Guard will provide 
notice via a broadcast notice to mariners.
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to the safety zone created by this 
temporary final rule.
    (1) All persons are required to comply with the general regulations 
governing safety zones found in this part.
    (2) Entry into or remaining in this zone is prohibited unless 
expressly authorized by the COTP Honolulu or his designated 
representative.
    (3) Persons desiring to transit the stationary or moving safety 
zone identified in paragraph (a) of this section may contact the COTP 
at the Command Center telephone number (808) 842-2600 and (808) 842-
2601, fax (808) 842-2642 or on VHF channel 16 (156.8 Mhz) to seek 
permission to transit the zone. If permission is granted, all persons 
and vessels must comply with the instructions of the COTP Honolulu or 
his designated representative and proceed at the minimum speed 
necessary to maintain a safe course while in the zone.
    (4) The U.S. Coast Guard may be assisted in the patrol and 
enforcement of the safety zone by Federal, State, and local agencies.
    (d) Notice of enforcement. The COTP will provide notice of 
enforcement of the safety zone described in this section via verbal 
broadcasts and written notice to mariners and the general public.
    (e) Definitions. As used in this section, ``designated 
representative'' means any Coast Guard commissioned, warrant, or petty 
officer who has been authorized by the COTP to assist in enforcing the 
safety zone described in paragraph (a) of this section.

    Dated: November 2, 2017.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-24290 Filed 11-7-17; 8:45 am]
 BILLING CODE 9110-04-P


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