Security Zone; Nawiliwili Harbor, Kauai, HI, 61518-61522 [07-5413]

Download as PDF 61518 Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505–0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number. List of Subjects 31 CFR Part 594 Administrative practice and procedure, Banks, Banking, Currency, Foreign investments in United States, Penalties, Reporting and recordkeeping requirements, Securities, Terrorism. 31 CFR Part 595 Administrative practice and procedure, Banks, Banking, Currency, Foreign investments in United States, Penalties, Reporting and recordkeeping requirements, Securities, Terrorism. 31 CFR Part 597 Administrative practice and procedure, Banks, Banking, Currency, Foreign investments in United States, Penalties, Reporting and recordkeeping requirements, Securities, Terrorism. I For the reasons set forth in the preamble, the Office of Foreign Assets Control amends 31 CFR parts 594, 595, and 597 as follows: 1. Revise the authority citation for part 594 to read as follows: Authority: 3 U.S.C. 301; 22 U.S.C. 287c; 31 U.S.C. 321(b); 50 U.S.C. 1601–1651, 1701– 1706; Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110–96, 121 Stat. 1011; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13268, 67 FR 44751, 3 CFR, 2002 Comp., p. 240; E.O. 13284, 68 FR 4075, 3 CFR, 2003 Comp., p. 161. Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 2. Add a new § 594.516 to read as follows: I mstockstill on PROD1PC66 with RULES § 594.516 Transactions with the Palestinian Authority authorized. (a) As of June 20, 2007, U.S. persons are authorized to engage in all transactions otherwise prohibited under this part with the Palestinian Authority. (b) For purposes of this section only, the term Palestinian Authority means the Palestinian Authority government of Prime Minister Salam Fayyad and President Mahmoud Abbas, including all branches, ministries, offices, and agencies (independent or otherwise) thereof. Jkt 214001 3. Revise the authority citation for part 595 to read as follows: Coast Guard I Authority: 3 U.S.C. 301; 31 U.S.C. 321(b); 50 U.S.C. 1601–1651, 1701–1706; Pub. L. 101–410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110–96, 121 Stat. 1011; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 319. Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 4. Add a new § 595.514 to read as follows: I § 595.514 Transactions with the Palestinian Authority authorized. (a) As of June 20, 2007, U.S. persons are authorized to engage in all transactions otherwise prohibited under this part with the Palestinian Authority. (b) For purposes of this section only, the term Palestinian Authority means the Palestinian Authority government of Prime Minister Salam Fayyad and President Mahmoud Abbas, including all branches, ministries, offices, and agencies (independent or otherwise) thereof. PART 597—FOREIGN TERRORIST ORGANIZATIONS SANCTIONS REGULATIONS 5. The authority citation for part 597 continues to read as follows: I 16:50 Oct 30, 2007 DEPARTMENT OF HOMELAND SECURITY I PART 594—GLOBAL TERRORISM SANCTIONS REGULATIONS VerDate Aug<31>2005 PART 595—TERRORISM SANCTIONS REGULATIONS Authority: 31 U.S.C. 321(b); Pub. L. 101– 410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104–132, 110 Stat. 1214, 1248–53 (8 U.S.C. 1189, 18 U.S.C. 2339B). Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 6. Add a new § 597.512 to read as follows: I § 597.512 Transactions with the Palestinian Authority authorized. (a) As of June 20, 2007, U.S. persons are authorized to engage in all transactions otherwise prohibited under this part with the Palestinian Authority. (b) For purposes of this section only, the term Palestinian Authority means the Palestinian Authority government of Prime Minister Salam Fayyad and President Mahmoud Abbas, including all branches, ministries, offices, and agencies (independent or otherwise) thereof. Dated: October 23, 2007. Adam J. Szubin, Director, Office of Foreign Assets Control. [FR Doc. E7–21357 Filed 10–30–07; 8:45 am] BILLING CODE 4811–45–P PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 33 CFR Part 165 [Docket No. CGD14–07–002] RIN 1625–AA87 Security Zone; Nawiliwili Harbor, Kauai, HI Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: SUMMARY: The Coast Guard is creating a temporary security zone in the waters of Nawiliwili Harbor, Kauai, and on the land of the jetty south of Nawiliwili Park, including the jetty access road commonly known as Jetty 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 obstructers who have impeded, and threaten to continue impeding, the safe passage of the Hawaii Superferry in Nawiliwili 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 Superferry. DATES: This rule is effective from November 1, 2007, through November 30, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD14–07– 002 and are available for inspection and copying at U.S. Coast Guard District 14, Room 9–130, PJKK Federal Building, 300 Ala Moana Blvd., Honolulu, Hawaii 96850 between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Sean Fahey, U.S. Coast Guard District 14 at (808) 541–2106. SUPPLEMENTARY INFORMATION: Regulatory Information On October 3, 2007, we published a notice of proposed rulemaking (NPRM) entitled ‘‘Security Zone; Nawiliwili Harbor, Kauai, Hawaii’’ in the Federal Register (72 FR 56308), identified by docket number USCG–2007–29354. The comment period for that NPRM was originally set to expire on October 24, 2007. Although we received many comments on the NPRM, a few people wishing to submit comments expressed difficulty using the Federal eRulemaking Portal, one of the four E:\FR\FM\31OCR1.SGM 31OCR1 mstockstill on PROD1PC66 with RULES Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations methods available to submit comments on the NPRM. Recently, the Coast Guard migrated its online rulemaking docket from the Docket Management System (DMS) to the Federal Docket Management System (FDMS). (72 FR 54315, Sept. 24, 2007.) This migration has been accompanied by transition difficulties and delays in comments being posted on FDMS. To accommodate the public, the comment period for that rulemaking (USCG– 2007–29354) has been extended until November 20, 2007. A separate notice extending the comment period for the USCG–2007–29354 NPRM can be found elsewhere in this issue of the Federal Register. This temporary final rule, identified by docket CGD14 07–002, is a separate emergency rulemaking that will maintain a security zone for Nawiliwili Harbor, Kauai from November 1 through November 30, 2007, after an existing security zone (72 FR 50877, Sept. 5, 2007) expires and while we complete the USCG–2007–29354 notice-andcomment rulemaking. We did not publish an 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 for this temporary rule. It would be contrary to public interest not to maintain a security zone for Nawiliwili Harbor until the USCG–2007–29354 rulemaking is completed. Though operation of the Hawaii Superferry from Oahu to Kauai has been voluntarily suspended by the operating company, operations could resume at any time. As of October 24, 2007, there are no, nor have there been, any state court injunctions or other legal prohibitions on the Superferry resuming operations between Oahu and Kauai. Although the Superferry’s operating company announced on September 21, 2007, that it was ‘‘indefinitely’’ suspending operations into and out of Kauai, that suspension is only voluntary; nothing binds the company to adhere to that suspension of operations, and in fact, it could decide to sail for Kauai at any time. Furthermore, the Hawaii legislature has announced that it will commence a special legislative session beginning on October 24, 2007, at which, among other things, it intends to consider a bill that would allow the Superferry to operate into and out of Hawaii’s ports while an environmental impact statement regarding Superferry operations is being prepared. To the extent this legislative action may permit the Superferry to resume operations into and out of Maui, which it is currently enjoined from doing, and to the extent the operating VerDate Aug<31>2005 16:50 Oct 30, 2007 Jkt 214001 company’s decision to ‘‘indefinitely’’ suspend operations into and out of Kauai was tied to the company’s inability to operate into and out of Maui, this legislative action may well have the net effect of causing the Superferry’s operating company to renew its desire to resume operations to Kauai as soon as possible. Delay in implementing this rule would expose obstructers in the water and ashore, as well as ferry passengers and crew, to undue hazards due to the obstructers’ tactics of entering Nawiliwili Harbor from land and waterfront facilities adjacent to the harbor and using themselves as human barriers to obstruct the Superferry’s movement into Nawiliwili Harbor, a transit that under the best of circumstances is difficult to make due to the small size of the Harbor. For the same reasons, 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. Background and Purpose The Hawaii Superferry (HSF) is a 349foot large passenger vessel documented by the U.S. Coast Guard with an endorsement for coastwise trade, and certificated for large passenger vessel service in the United States. The HSF, operating Hawaii’s first inter-island vehicle-passenger service, is intended to provide service among the islands of Oahu, Maui, and Kauai. The HSF enters Kauai at Nawiliwili Harbor, a federally maintained waterway. During the HSF’s inaugural commercial trip to Kauai on August 26, 2007, nearly 40 swimmers and obstructers on kayaks and surfboards blocked Nawiliwili Harbor’s navigable channel entrance to prevent the lawful entry of the HSF into Kauai. Many of the obstructers entered the water from the jetty that is south of Nawiliwili Park, which is adjacent to the Matson shipping facility in Nawiliwili Harbor. Other demonstrators ashore on the jetty threw rocks and bottles at Coast Guard personnel who were conveying detained obstructers to shore. Coast Guard Station Kauai resources were eventually able to clear the channel for the HSF’s arrival while also ensuring the personal safety of the waterborne obstructers. The HSF was able to dock on August 26, 2007. On the following day, August 27, 2007, approximately 70 persons entered the water again to block the channel entrance, thereby preventing the HSF from docking in Nawiliwili Harbor. Due to the difficulty of maneuvering in the small area of Nawiliwili Harbor, and in PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 61519 the interest of ensuring the safety of the protesters, the HSF’s master chose not to enter the channel until the Coast Guard cleared the channel of obstructers. However, because the vessel remained outside the harbor, and because the obstructers did not approach within 100 yards of the vessel, the existing security zone for large passenger vessels (33 CFR 165.1410) did not provide the Coast Guard with the authority to control obstructer entry into Nawiliwili Harbor or clear the channel of obstructers before the HSF commenced its transit into the harbor. After waiting 3 hours, and with nearly 20 obstructers still in the water actively blocking the HSF, the HSF was forced to return to Oahu without mooring in Kauai. This decision was made by the Superferry’s master, in consultation with company officials. As a result of the events of August 26 through 27, 2007, the HSF voluntarily suspended operations between Oahu and Kauai on August 28, 2007. HSF’s goal, however, was and is to resume operations between Oahu and Kauai as soon as possible. As of October 24, 2007, there are no, nor have there been, any state court injunctions or other legal prohibitions on the HSF resuming operations between Oahu and Kauai. Although the Superferry’s operating company announced on September 21, 2007, that it was ‘‘indefinitely’’ suspending operations into and out of Kauai, that suspension is only voluntary; nothing binds the company to adhere to that suspension of operations, and in fact, it could decide to sail for Kauai at any time. Furthermore, the Hawaii legislature has announced that it will commence a special legislative session beginning on October 24, 2007, at which, among other things, it intends to consider a bill that would allow the Superferry to operate into and out of Hawaii’s ports while an environmental impact statement regarding Superferry operations is being prepared. To the extent this legislative action may permit the Superferry to resume operations into and out of Maui, which it is currently enjoined from doing, and to the extent the operating company’s decision to ‘‘indefinitely’’ suspend operations into and out of Kauai was tied to the company’s inability to operate into and out of Maui, this legislative action may well have the net effect of causing the Superferry’s operating company to renew its desire to resume operations to Kauai as soon as possible. Responding to the unexpected events of August 26 and 27, 2007, the Coast Guard’s Fourteenth District Commander established a temporary fixed security E:\FR\FM\31OCR1.SGM 31OCR1 mstockstill on PROD1PC66 with RULES 61520 Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations zone in Nawiliwili Harbor. That emergency rulemaking established a temporary security zone in order to prevent persons and vessels from endangering themselves and HSF passengers and crew by attempting to impede the vessel’s passage after it commences the difficult transit into the harbor. That rule, which became effective September 1, 2007, was issued by the Coast Guard’s Fourteenth District Commander on August 31, 2007 (72 FR 50877, September 5, 2007). The purpose of this temporary rule, as with the rule that is expiring October 31, is several-fold. First, by designating significant portions of the waters of Nawiliwili Harbor as a security zone, activated for enforcement 60 minutes before the HSF’s arrival into the zone through 10 minutes after its departure from the zone, this temporary rule provides the Coast Guard and its law enforcement partners the authority to prevent persons and vessels from endangering themselves and the HSF passengers and crew during attempts 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 HSF may enter and depart the harbor safely and unimpeded by obstructers. Furthermore, closing off the jetty and its access road prevents violent protesters from continuing to impede law enforcement operations and endanger law enforcement personnel by throwing rocks, bottles, and other dangerous objects. Finally, the security zone makes land adjacent to the harbor available for law enforcement purposes, and in fact will be used by the Patrol Commander (the person in overall command of all waterborne law enforcement assets present in Nawiliwili Harbor enforcing the security zone) as the command post during any Superferry protests. This temporary final rule follows the original temporary final rule that is set to expire on October 31, 2007. There is continued uncertainty regarding when, if ever, the HSF might resume service into Nawiliwili Harbor. The resolve of obstructers to continue attempting to impede the Superferry’s passage into and through Nawiliwili Harbor, should it indeed resume service there, has been vocally manifested. Therefore, the Coast Guard has determined there is a need to ensure that law enforcement personnel will still have a fixed security zone available to them beyond the expiration date of the original temporary final rule to facilitate the safe arrival of the HSF, VerDate Aug<31>2005 16:50 Oct 30, 2007 Jkt 214001 should it again return to Nawiliwili Harbor. Discussion of the Rule This temporary rule is in effect from November 1, 2007, until November 30, 2007. It 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 Superferry’s arrival into the zone, and remain activated for 10 minutes after the Hawaii Superferry’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 after sunset, displayed from 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 are prohibited without the permission of the Captain of the Port, Honolulu, or his or her designated representative. In preparing this temporary rulemaking, the Coast Guard made sure to consider the rights of lawful protestors. To that end, the Coast Guard excluded from the security zone two regions which create a sizeable area of water in which demonstrators may lawfully assemble and convey their message in a safe manner to their intended audience. These areas include 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 the waters from Kalapaki Beach south to a line extending from the western most point of Kukii Point due west to the Harbor Jetty. These areas of the harbor not included in the security zone are completely accessible to anyone who desires to enter the water, and are fully visible to observers ashore, at the HSF mooring facility, aboard the HSF when transiting the harbor, and from the air. The Coast Guard also took into account the lawful users of Nawiliwili Harbor in its creation of this rule. As previously noted, the rule will only be activated 1 hour before the HSF’s arrival into port, and will be deactivated 10 minutes after the HSF departs the port. The harbor is fully available to all users during the period when the zone is not activated. Furthermore, the rule affords persons who want to use the harbor, even during a period when the zone is activated, with the opportunity to request permission of the Captain of the Port to do so. Under 33 CFR 165.33, entry by persons or vessels into the security zone PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 during an enforcement period 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 during an enforcement period is prohibited. If a vessel is found to be operating within the security zone during an enforcement period without permission of the Captain of the Port, Honolulu, and refuses to leave, the vessel is subject to seizure and forfeiture. All persons and vessels permitted in the security zone during an enforcement period must comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. These personnel include 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. 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 the Hawaii Superferry when it is underway, moored, position-keeping, or at anchor, unless authorized by the Captain of the Port or his or her designated representatives. 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 during the enforcement period in order to ensure navigational safety. Any Coast Guard commissioned, warrant, or petty officer, and any other person permitted by law, may enforce the regulations in this section. 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 E:\FR\FM\31OCR1.SGM 31OCR1 Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations Budget has not reviewed it under that Order. We expect the economic impact of this 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 by 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 the affected area has small 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 the temporary rule, 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. mstockstill on PROD1PC66 with RULES 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 Lieutenant Sean Fahey, U.S. Coast Guard District 14, at (808) 541–2106. 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. VerDate Aug<31>2005 16:50 Oct 30, 2007 Jkt 214001 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 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 rule will not effect 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 does not create an environmental risk to health or risk to safety that might disproportionately affect children. While some obstructers used small children in obstruction tactics, both on land and on shore, during the August 26 and 27 Superferry arrivals into Kauai, and while online forums and other sources indicate that organizers are actively recruiting adolescents and small children with the intent of putting them into harm’s way as obstructers of the Superferry’s passage should it ever again approach and enter Nawiliwili Harbor, any heightened harm faced by PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 61521 children as a result of these tactics has no relation to the creation of this rule. Instead, those heightened risks are entirely the product of persons who recruit and employ adolescents and children to put themselves at risk of death or serious physical injury by attempting to physically obstruct the passage of a large passenger vessel in a small harbor. Indian Tribal Governments 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. 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. E:\FR\FM\31OCR1.SGM 31OCR1 61522 Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Rules and Regulations 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. An ‘‘Environmental Analysis Checklist’’ and ‘‘Categorical Exclusion Determination’’ supporting this conclusion are available in the docket where indicated under ADDRESSES. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. I 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 1. The authority citation for part 165 continues to read as follows: I 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. 2. Add a new temporary § 165.T14– 163 to read as follows: I mstockstill on PROD1PC66 with RULES § 165.T14–163 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, are a security zone that is activated as described in paragraph (c) of this section, and enforced subject to the provisions of paragraph (d) 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 the jetty access road, commonly known as Jetty Road, is included within the security zone. VerDate Aug<31>2005 16:50 Oct 30, 2007 Jkt 214001 (b) Effective period. This section is effective from November 1, 2007, through November 30, 2007. It will be activated for enforcement pursuant to paragraph (c) of this section. (c) Enforcement periods. The zone described in paragraph (a) of this section will be activated for enforcement 60 minutes before the Hawaii Superferry’s arrival into the zone and remain activated for 10 minutes after the Hawaii Superferry’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 Pier One and the Harbor Facility Entrance on Jetty Road. (d) Regulations. (1) Under 33 CFR 165.33, entry by persons or vessels into the security zone created by this section and activated as described in paragraph (c) 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. 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 include 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 the Hawaii Superferry when it is underway, moored, position-keeping, 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 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 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. (e) Enforcement officials. Any Coast Guard commissioned, warrant, or petty officer, and any other person permitted by law, may enforce the regulations in this section. Dated: October 24, 2007. Sally Brice-O’Hara, Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard District. [FR Doc. 07–5413 Filed 10–26–07; 2:34 pm] BILLING CODE 4910–15–P POSTAL SERVICE 39 CFR Part 20 International Mail Service to the Republic of the Marshall Islands and Federated States of Micronesia Reverted to Domestic Mail Service Postal ServiceTM. ACTION: Final rule. AGENCY: SUMMARY: The Postal Service is amending the Mailing Standards of the United States Postal Service, International Mail Manual (IMM) to remove references to the Republic of the Marshall Islands and the Federated States of Micronesia. Mail to the Republic of the Marshall Islands and the Federated States of Micronesia is no longer treated as international mail. DATES: Effective Date: November 19, 2007. FOR FURTHER INFORMATION CONTACT: Randall F. Sobol, 808–423–3883. SUPPLEMENTARY INFORMATION: The Postal Service, after high-level discussions with the Republic of the Marshall Islands and the Federated States of Micronesia and consultation with the U.S. Department of State, is returning these countries to domestic published prices and mailing standards. On September 15, 2005, the Postal Service published in the Federal Register (70 FR 54510) a notice proposing use of the international price schedules for the Republic of the Marshall Islands and the Federated States of Micronesia. The application of international rate schedules to these former Trust Territories of the United States was permissible, in conformity with, and in furtherance of the terms of the Compact of Free Association between the United States Government and the governments of the Republic of the Marshall Islands and the Federated E:\FR\FM\31OCR1.SGM 31OCR1

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[Federal Register Volume 72, Number 210 (Wednesday, October 31, 2007)]
[Rules and Regulations]
[Pages 61518-61522]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5413]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. CGD14-07-002]
RIN 1625-AA87


Security Zone; Nawiliwili Harbor, Kauai, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is creating a temporary security zone in the 
waters of Nawiliwili Harbor, Kauai, and on the land of the jetty south 
of Nawiliwili Park, including the jetty access road commonly known as 
Jetty 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 
obstructers who have impeded, and threaten to continue impeding, the 
safe passage of the Hawaii Superferry in Nawiliwili 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 Superferry.

DATES: This rule is effective from November 1, 2007, through November 
30, 2007.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD14-07-002 and are available for 
inspection and copying at U.S. Coast Guard District 14, Room 9-130, 
PJKK Federal Building, 300 Ala Moana Blvd., Honolulu, Hawaii 96850 
between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Sean Fahey, U.S. Coast 
Guard District 14 at (808) 541-2106.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On October 3, 2007, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; Nawiliwili Harbor, Kauai, Hawaii'' in 
the Federal Register (72 FR 56308), identified by docket number USCG-
2007-29354. The comment period for that NPRM was originally set to 
expire on October 24, 2007. Although we received many comments on the 
NPRM, a few people wishing to submit comments expressed difficulty 
using the Federal eRulemaking Portal, one of the four

[[Page 61519]]

methods available to submit comments on the NPRM.
    Recently, the Coast Guard migrated its online rulemaking docket 
from the Docket Management System (DMS) to the Federal Docket 
Management System (FDMS). (72 FR 54315, Sept. 24, 2007.) This migration 
has been accompanied by transition difficulties and delays in comments 
being posted on FDMS. To accommodate the public, the comment period for 
that rulemaking (USCG-2007-29354) has been extended until November 20, 
2007. A separate notice extending the comment period for the USCG-2007-
29354 NPRM can be found elsewhere in this issue of the Federal 
Register.
    This temporary final rule, identified by docket CGD14 07-002, is a 
separate emergency rulemaking that will maintain a security zone for 
Nawiliwili Harbor, Kauai from November 1 through November 30, 2007, 
after an existing security zone (72 FR 50877, Sept. 5, 2007) expires 
and while we complete the USCG-2007-29354 notice-and-comment 
rulemaking. We did not publish an 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 for this temporary rule. It would be 
contrary to public interest not to maintain a security zone for 
Nawiliwili Harbor until the USCG-2007-29354 rulemaking is completed.
    Though operation of the Hawaii Superferry from Oahu to Kauai has 
been voluntarily suspended by the operating company, operations could 
resume at any time. As of October 24, 2007, there are no, nor have 
there been, any state court injunctions or other legal prohibitions on 
the Superferry resuming operations between Oahu and Kauai. Although the 
Superferry's operating company announced on September 21, 2007, that it 
was ``indefinitely'' suspending operations into and out of Kauai, that 
suspension is only voluntary; nothing binds the company to adhere to 
that suspension of operations, and in fact, it could decide to sail for 
Kauai at any time. Furthermore, the Hawaii legislature has announced 
that it will commence a special legislative session beginning on 
October 24, 2007, at which, among other things, it intends to consider 
a bill that would allow the Superferry to operate into and out of 
Hawaii's ports while an environmental impact statement regarding 
Superferry operations is being prepared. To the extent this legislative 
action may permit the Superferry to resume operations into and out of 
Maui, which it is currently enjoined from doing, and to the extent the 
operating company's decision to ``indefinitely'' suspend operations 
into and out of Kauai was tied to the company's inability to operate 
into and out of Maui, this legislative action may well have the net 
effect of causing the Superferry's operating company to renew its 
desire to resume operations to Kauai as soon as possible. Delay in 
implementing this rule would expose obstructers in the water and 
ashore, as well as ferry passengers and crew, to undue hazards due to 
the obstructers' tactics of entering Nawiliwili Harbor from land and 
waterfront facilities adjacent to the harbor and using themselves as 
human barriers to obstruct the Superferry's movement into Nawiliwili 
Harbor, a transit that under the best of circumstances is difficult to 
make due to the small size of the Harbor.
    For the same reasons, 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.

Background and Purpose

    The Hawaii Superferry (HSF) is a 349-foot large passenger vessel 
documented by the U.S. Coast Guard with an endorsement for coastwise 
trade, and certificated for large passenger vessel service in the 
United States. The HSF, operating Hawaii's first inter-island vehicle-
passenger service, is intended to provide service among the islands of 
Oahu, Maui, and Kauai.
    The HSF enters Kauai at Nawiliwili Harbor, a federally maintained 
waterway. During the HSF's inaugural commercial trip to Kauai on August 
26, 2007, nearly 40 swimmers and obstructers on kayaks and surfboards 
blocked Nawiliwili Harbor's navigable channel entrance to prevent the 
lawful entry of the HSF into Kauai. Many of the obstructers entered the 
water from the jetty that is south of Nawiliwili Park, which is 
adjacent to the Matson shipping facility in Nawiliwili Harbor. Other 
demonstrators ashore on the jetty threw rocks and bottles at Coast 
Guard personnel who were conveying detained obstructers to shore. Coast 
Guard Station Kauai resources were eventually able to clear the channel 
for the HSF's arrival while also ensuring the personal safety of the 
waterborne obstructers. The HSF was able to dock on August 26, 2007.
    On the following day, August 27, 2007, approximately 70 persons 
entered the water again to block the channel entrance, thereby 
preventing the HSF from docking in Nawiliwili Harbor. Due to the 
difficulty of maneuvering in the small area of Nawiliwili Harbor, and 
in the interest of ensuring the safety of the protesters, the HSF's 
master chose not to enter the channel until the Coast Guard cleared the 
channel of obstructers. However, because the vessel remained outside 
the harbor, and because the obstructers did not approach within 100 
yards of the vessel, the existing security zone for large passenger 
vessels (33 CFR 165.1410) did not provide the Coast Guard with the 
authority to control obstructer entry into Nawiliwili Harbor or clear 
the channel of obstructers before the HSF commenced its transit into 
the harbor.
    After waiting 3 hours, and with nearly 20 obstructers still in the 
water actively blocking the HSF, the HSF was forced to return to Oahu 
without mooring in Kauai. This decision was made by the Superferry's 
master, in consultation with company officials.
    As a result of the events of August 26 through 27, 2007, the HSF 
voluntarily suspended operations between Oahu and Kauai on August 28, 
2007. HSF's goal, however, was and is to resume operations between Oahu 
and Kauai as soon as possible. As of October 24, 2007, there are no, 
nor have there been, any state court injunctions or other legal 
prohibitions on the HSF resuming operations between Oahu and Kauai.
    Although the Superferry's operating company announced on September 
21, 2007, that it was ``indefinitely'' suspending operations into and 
out of Kauai, that suspension is only voluntary; nothing binds the 
company to adhere to that suspension of operations, and in fact, it 
could decide to sail for Kauai at any time. Furthermore, the Hawaii 
legislature has announced that it will commence a special legislative 
session beginning on October 24, 2007, at which, among other things, it 
intends to consider a bill that would allow the Superferry to operate 
into and out of Hawaii's ports while an environmental impact statement 
regarding Superferry operations is being prepared. To the extent this 
legislative action may permit the Superferry to resume operations into 
and out of Maui, which it is currently enjoined from doing, and to the 
extent the operating company's decision to ``indefinitely'' suspend 
operations into and out of Kauai was tied to the company's inability to 
operate into and out of Maui, this legislative action may well have the 
net effect of causing the Superferry's operating company to renew its 
desire to resume operations to Kauai as soon as possible.
    Responding to the unexpected events of August 26 and 27, 2007, the 
Coast Guard's Fourteenth District Commander established a temporary 
fixed security

[[Page 61520]]

zone in Nawiliwili Harbor. That emergency rulemaking established a 
temporary security zone in order to prevent persons and vessels from 
endangering themselves and HSF passengers and crew by attempting to 
impede the vessel's passage after it commences the difficult transit 
into the harbor. That rule, which became effective September 1, 2007, 
was issued by the Coast Guard's Fourteenth District Commander on August 
31, 2007 (72 FR 50877, September 5, 2007).
    The purpose of this temporary rule, as with the rule that is 
expiring October 31, is several-fold. First, by designating significant 
portions of the waters of Nawiliwili Harbor as a security zone, 
activated for enforcement 60 minutes before the HSF's arrival into the 
zone through 10 minutes after its departure from the zone, this 
temporary rule provides the Coast Guard and its law enforcement 
partners the authority to prevent persons and vessels from endangering 
themselves and the HSF passengers and crew during attempts 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 HSF may enter and depart the 
harbor safely and unimpeded by obstructers. Furthermore, closing off 
the jetty and its access road prevents violent protesters from 
continuing to impede law enforcement operations and endanger law 
enforcement personnel by throwing rocks, bottles, and other dangerous 
objects. Finally, the security zone makes land adjacent to the harbor 
available for law enforcement purposes, and in fact will be used by the 
Patrol Commander (the person in overall command of all waterborne law 
enforcement assets present in Nawiliwili Harbor enforcing the security 
zone) as the command post during any Superferry protests.
    This temporary final rule follows the original temporary final rule 
that is set to expire on October 31, 2007. There is continued 
uncertainty regarding when, if ever, the HSF might resume service into 
Nawiliwili Harbor. The resolve of obstructers to continue attempting to 
impede the Superferry's passage into and through Nawiliwili Harbor, 
should it indeed resume service there, has been vocally manifested. 
Therefore, the Coast Guard has determined there is a need to ensure 
that law enforcement personnel will still have a fixed security zone 
available to them beyond the expiration date of the original temporary 
final rule to facilitate the safe arrival of the HSF, should it again 
return to Nawiliwili Harbor.

Discussion of the Rule

    This temporary rule is in effect from November 1, 2007, until 
November 30, 2007. It 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 Superferry's arrival into the zone, and remain activated for 10 
minutes after the Hawaii Superferry'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 after sunset, 
displayed from 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 are prohibited without the 
permission of the Captain of the Port, Honolulu, or his or her 
designated representative.
    In preparing this temporary rulemaking, the Coast Guard made sure 
to consider the rights of lawful protestors. To that end, the Coast 
Guard excluded from the security zone two regions which create a 
sizeable area of water in which demonstrators may lawfully assemble and 
convey their message in a safe manner to their intended audience. These 
areas include 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 the waters from Kalapaki Beach 
south to a line extending from the western most point of Kukii Point 
due west to the Harbor Jetty. These areas of the harbor not included in 
the security zone are completely accessible to anyone who desires to 
enter the water, and are fully visible to observers ashore, at the HSF 
mooring facility, aboard the HSF when transiting the harbor, and from 
the air.
    The Coast Guard also took into account the lawful users of 
Nawiliwili Harbor in its creation of this rule. As previously noted, 
the rule will only be activated 1 hour before the HSF's arrival into 
port, and will be deactivated 10 minutes after the HSF departs the 
port. The harbor is fully available to all users during the period when 
the zone is not activated. Furthermore, the rule affords persons who 
want to use the harbor, even during a period when the zone is 
activated, with the opportunity to request permission of the Captain of 
the Port to do so.
    Under 33 CFR 165.33, entry by persons or vessels into the security 
zone during an enforcement period 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 
during an enforcement period is prohibited. If a vessel is found to be 
operating within the security zone during an enforcement period without 
permission of the Captain of the Port, Honolulu, and refuses to leave, 
the vessel is subject to seizure and forfeiture.
    All persons and vessels permitted in the security zone during an 
enforcement period must comply with the instructions of the Coast Guard 
Captain of the Port or the designated on-scene patrol personnel. These 
personnel include 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.
    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 the Hawaii Superferry when it 
is underway, moored, position-keeping, or at anchor, unless authorized 
by the Captain of the Port or his or her designated representatives.
    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 during the enforcement period in order 
to ensure navigational safety. Any Coast Guard commissioned, warrant, 
or petty officer, and any other person permitted by law, may enforce 
the regulations in this section.

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

[[Page 61521]]

Budget has not reviewed it under that Order.
    We expect the economic impact of this 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 by 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 the affected area has small 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 the temporary rule, 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 rule will 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please contact Lieutenant Sean Fahey, U.S. Coast Guard 
District 14, at (808) 541-2106. 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 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 rule will not effect 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 does not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children. While some obstructers used small 
children in obstruction tactics, both on land and on shore, during the 
August 26 and 27 Superferry arrivals into Kauai, and while online 
forums and other sources indicate that organizers are actively 
recruiting adolescents and small children with the intent of putting 
them into harm's way as obstructers of the Superferry's passage should 
it ever again approach and enter Nawiliwili Harbor, any heightened harm 
faced by children as a result of these tactics has no relation to the 
creation of this rule. Instead, those heightened risks are entirely the 
product of persons who recruit and employ adolescents and children to 
put themselves at risk of death or serious physical injury by 
attempting to physically obstruct the passage of a large passenger 
vessel in a small harbor.

Indian Tribal Governments

    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.

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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

[[Page 61522]]

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. An ``Environmental 
Analysis Checklist'' and ``Categorical Exclusion Determination'' 
supporting this conclusion are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.


0
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; 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.


0
2. Add a new temporary Sec.  165.T14-163 to read as follows:


Sec.  165.T14-163  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, are a security zone that is 
activated as described in paragraph (c) of this section, and enforced 
subject to the provisions of paragraph (d) 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 
the jetty access road, commonly known as Jetty Road, is included within 
the security zone.
    (b) Effective period. This section is effective from November 1, 
2007, through November 30, 2007. It will be activated for enforcement 
pursuant to paragraph (c) of this section.
    (c) Enforcement periods. The zone described in paragraph (a) of 
this section will be activated for enforcement 60 minutes before the 
Hawaii Superferry's arrival into the zone and remain activated for 10 
minutes after the Hawaii Superferry'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 Pier One and the Harbor Facility Entrance 
on Jetty Road.
    (d) Regulations. (1) Under 33 CFR 165.33, entry by persons or 
vessels into the security zone created by this section and activated as 
described in paragraph (c) 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. 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 on-scene patrol personnel. These personnel include 
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 the Hawaii Superferry when it 
is underway, moored, position-keeping, 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.
    (e) Enforcement officials. Any Coast Guard commissioned, warrant, 
or petty officer, and any other person permitted by law, may enforce 
the regulations in this section.

    Dated: October 24, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard 
District.
[FR Doc. 07-5413 Filed 10-26-07; 2:34 pm]
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