Security Zone; Kahului Harbor, Maui, HI, 67251-67256 [07-5872]
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Federal Register / Vol. 72, No. 228 / Wednesday, November 28, 2007 / Rules and Regulations
FDC date
State
City
Airport
11/13/07 .........
NY .................
New York ....................
La Guardia ..................
[FR Doc. E7–23077 Filed 11–27–07; 8:45 am]
FDC No.
Subject
7/4057
DEPARTMENT OF THE INTERIOR
BILLING CODE 4910–13–P
67251
ILS or LOC Rwy 4, Amdt 35.
DEPARTMENT OF HOMELAND
SECURITY
National Indian Gaming Commission
Coast Guard
25 CFR Part 547
33 CFR Part 165
DEPARTMENT OF THE INTERIOR
Technical Standards for Electronic,
Computer, or Other Technologic Aids
Used in the Play of Class II Games
25 CFR Part 546
Security Zone; Kahului Harbor, Maui,
HI
AGENCY:
Class II Classification Standards
National Indian Gaming
Commission (NIGC), Interior.
ACTION: Notice of Extension of Comment
Period.
AGENCY:
This notice extends the
period for comments on the burden,
estimates or any other aspects of the
information collection requirements for
the proposed Class II game classification
standards (72 FR 60483) published in
the Federal Register on October 24,
2007.
SUMMARY:
The comment period for
comments submitted to the Office of
Management and Budget, Office of
Information and Regulatory Affairs, or
the NIGC on the burden, estimates or
any other aspects of the information
collection requirements for the
proposed Class II game classification
standards is extended from November
23, 2007, to January 24, 2008.
FOR FURTHER INFORMATION CONTACT:
Penny Coleman at 202/632–7003; fax
202/632–7066 (these are not toll-free
numbers).
DATES:
Congress
established the National Indian Gaming
Commission (NIGC or Commission)
under the Indian Gaming Regulatory Act
of 1988 (25 U.S.C. 2701 et seq.) (IGRA)
to regulate gaming on Indian lands. On
October 24, 2007, the proposed Class II
game classification standards (72 FR
60483) regulations were published in
the Federal Register.
SUPPLEMENTARY INFORMATION:
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[Docket No. USCG–2007–0093]
National Indian Gaming
Commission (NIGC), Interior.
National Indian Gaming Commission
ACTION:
Notice of Extension of Comment
Period.
SUMMARY: This notice extends the
period for comments on the burden,
estimates or any other aspects of the
information collection requirements of
the proposed Class II technical
standards (72 FR 60508) published in
the Federal Register on October 24,
2007.
The comment period for
comments submitted to the Office of
Management and Budget, Office of
Information and Regulatory Affairs, or
the NIGC on the burden, estimates or
any other aspects of the information
collection requirements for the
proposed Class II technical standards
regulations is extended from December
10, 2007, to January 24, 2008.
DATES:
FOR FURTHER INFORMATION CONTACT:
Michael Gross at 202/632–7003; fax
202/632–7066 (these are not toll-free
numbers).
Congress
established the National Indian Gaming
Commission (NIGC or Commission)
under the Indian Gaming Regulatory Act
of 1988 (25 U.S.C. 2701 et seq.) (IGRA)
to regulate gaming on Indian lands. On
October 24, 2007, the proposed Class II
technical standards (72 FR 60508)
regulations were published in the
Federal Register.
SUPPLEMENTARY INFORMATION:
Dated: November 20, 2007.
Philip N. Hogen,
Chairman, National Indian Gaming
Commission.
Cloyce V. Choney,
Vice Chairman, National Indian Gaming
Commission.
Norman H. DesRosiers,
Commissioner, National Indian Gaming
Commission.
[FR Doc. E7–23084 Filed 11–27–07; 8:45 am]
Dated: November 20, 2007.
Philip N. Hogen,
Chairman, National Indian Gaming
Commission.
Cloyce V. Choney,
Vice Chairman, National Indian Gaming
Commission.
Norman H. DesRosiers,
Commissioner, National Indian Gaming
Commission.
[FR Doc. E7–23083 Filed 11–27–07; 8:45 am]
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RIN 1625–AA87
Coast Guard, DHS.
Temporary interim rule; request
for comments.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is creating a
temporary security zone in the waters of
Kahului Bay and Kahului Harbor, Maui,
and on designated adjacent areas of
land. This zone is intended to enable
the Coast Guard and its law enforcement
partners to better protect people,
vessels, and facilities in and around
Kahului Bay and Kahului Harbor during
the transit of the Hawaii Superferry.
This rule complements, but does not
replace or supersede, existing
regulations that establish a moving 100yard security zone around large
passenger vessels like the Superferry.
DATES: This rule is effective from 12:01
a.m. (HST) on December 1, 2007,
through 11:59 p.m. (HST) on January 31,
2008. Comments and related material
must reach the Coast Guard on or before
December 19, 2007.
ADDRESSES: You may submit comments
and related material, identified by Coast
Guard docket number USCG–2007–
0093, by any of the three methods listed
below. To avoid duplication, please use
only one of the following methods:
(1) Mail: Lieutenant Sean Fahey, U.S.
Coast Guard District 14 (dl), Room 9–
130, PJKK Federal Building, 300 Ala
Moana Blvd., Honolulu, Hawaii 96850.
(2) Electronically: E-mail to
Lieutenant Sean Fahey at
Sean.C.Fahey@uscg.mil using the
subject line ‘‘Comment—Maui Security
Zone.’’
(3) Fax: (808) 541–2101.
(4) Online: https://
www.regulations.gov.
All comments will be reviewed as
they are received. We may change this
rule based on your comments.
Documents indicated in this preamble
as being available in the docket are part
of docket USCG–2007–0093 and are
available for inspection and copying at
U.S. Coast Guard District 14 (dl), Room
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9–130, 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:
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Regulatory Information
We did not publish a notice of
proposed rulemaking (NPRM) for this
temporary rule. Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing an
NPRM. It would be contrary to the
public interest to delay implementing
this temporary rule, as any delay might
result in damage or injury to the public,
the Hawaii Superferry (HSF) and its
passengers and crew, other vessels,
facilities, and law enforcement
personnel. Though operation of the HSF
from Oahu to Maui was temporarily
enjoined by the state circuit court in
Maui, that injunction was lifted on
November 14, 2007, following action by
the Hawaii State legislature, and service
to Maui is advertised to resume on
December 1, 2007. Given recent
assessments by the Maui Police
Department that waterborne obstruction
tactics similar to those used in Kauai in
August 2007 are likely to be employed
in Maui as well when the HSF resumes
service there, it is critical that this rule
be in place so that local, State, and
Federal public safety officials can
adequately ensure maritime safety and
security, and secure the observances of
rights and obligations of the United
States.
The main obstruction tactic employed
by waterborne protesters in Kauai in
August 2007 was to physically place
themselves directly in the path of the
HSF as it attempted to enter the harbor.
Several obstructers ashore threw rocks
and bottles at U.S. Coast Guard
personnel. These actions are dangerous
not only to the obstructers themselves—
some of whom used or incited children
and juveniles in support of their
obstruction efforts—but also to the HSF,
its passengers and crew, and law
enforcement personnel working to
ensure the vessel’s safe passage.
Groups opposing the lawful operation
of the HSF continue to vow to impede
its transit utilizing these same
dangerous tactics. These opposition
groups have started several internet
forums to encourage and coordinate
support for their efforts. The danger
such obstruction tactics pose is
illustrated by an article posted on
November 5, 2007, on Surferspath.com,
a popular Web site for Hawaiian surfers.
In this article, two prominent
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opposition members urge those who
oppose the operation of the Superferry
to take ‘‘the last step of non-violent
resistance,’’ and prepare themselves for
the possibility of ‘‘physical injury or
death’’ that may result from obstructing
the Superferry. These preparations
include making the ‘‘proper
arrangements,’’ preparing a ‘‘last will
and testament’’ and engaging in a
‘‘cleansing ceremony to prepare your
body, mind, and spirit to greet the
Spiritual Hierarchy that awaits your
return.’’ The letter goes on to say that,
‘‘[t]here is also the possibility of
accident in the turmoil of numerous
boats, swimmers, and surfers in an
ocean environment. In that sense you
have to be prepared at the level of the
Native American who decided when it
was ‘a good day to die.’ ’’
The Coast Guard cannot disregard
such adamant safety and security
threats. Consequently, this rule is
necessary to prevent damage or injury to
vessels, persons, and waterfront
facilities, including the HSF, its
passengers and crew, law enforcement
personnel working to ensure the vessel’s
safe passage, and the obstructers
themselves, arising from these
dangerous and unlawful obstruction
tactics. Any delay in implementing this
temporary rule would be contrary to the
public interest and would jeopardize the
security and safety of the public, the
HSF and its passengers and crew, other
vessels, facilities, and law enforcement
personnel.
For the same reasons, 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.
Although the Coast Guard has good
cause to issue this temporary rule
without first publishing a proposed rule,
you are invited to submit postpromulgation comments and related
material regarding this rule on or before
December 19, 2007. We may change this
temporary interim rule based on the
comments received. All comments
received will be posted, without change,
to https://www.regulations.gov and will
include any personal information you
have provided. We have an agreement
with the Department of Transportation
(DOT) for their Docket Management
Facility to process online submissions
to Coast Guard dockets. You may review
the Department of Transportation’s
Privacy Act Statement in the Federal
Register published on April 11, 2000
(65 FR 19477), or you may visit
https://DocketsInfo.dot.gov.
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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
certified 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 sole port in
Maui that can accommodate the HSF is
Kahului Harbor. The sole port in Kauai
that can accommodate the HSF is
Nawiliwili Harbor.
The HSF inaugurated commercial
service from Oahu to both Maui and
Kauai on August 26, 2007. The voyage
to and from Maui on that date occurred
without incident. However, in Kauai,
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. Other
demonstrators ashore threw rocks and
bottles at Coast Guard personnel who
were conveying detained obstructers to
shore.
On the following day, August 27,
2007, the HSF again sailed to and from
Maui without incident. Upon arrival in
Kauai, however, approximately 70
persons entered the water again to
physically block the channel entrance,
thereby preventing the HSF from
docking in Nawiliwili Harbor. Due to
the difficulty in 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’s master, after consulting with
company officials, made the decision to
return to Oahu without mooring in
Kauai.
On August 28, HSF officials
announced the ‘‘indefinite’’ suspension
of commercial operations. Since that
date, the HSF has only sailed in
commercial service to either Kauai or
Maui once; on September 8, 2007, to
pick up and return cars to Oahu that
were stranded on Maui after the
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suspension of commercial service on
August 28. This sailing was the product
of a stipulated agreement in an ongoing
lawsuit (discussed further below)
involving HSF and environmental
groups opposed to the HSF operating in
and out of Kahului Harbor, Maui.
Shortly after the company announced
its suspension of operations on August
28, the trial court judge in the ongoing
state court proceeding referenced in the
previous paragraph issued a temporary
restraining order, which was followed
by a preliminary injunction several
weeks later, prohibiting HSF from
utilizing the harbor improvements in
Kahului Harbor, Maui. This injunction
was the product of a Hawaii Supreme
Court determination that the Hawaii
Environmental Protection Act (HEPA)
required the state to conduct an
environmental assessment of the effects
of the harbor improvements that were
necessary to accommodate the HSF in
Kahului Harbor. Following the Supreme
Court decision, the trial court
determined that HEPA required the
environmental assessment to be
conducted before the HSF could use
those harbor improvements; and since
that assessment had not occurred, the
injunction was a necessary remedy. The
injunction only pertained to Kahului
Harbor; it did not apply in Nawiliwili
Harbor, Kauai. However, the HSF
voluntarily decided not to sail to Kauai
while the court case was ongoing.
In response to this judicial action, the
governor called the Hawaii legislature
into special session to consider whether
to grant legislative relief to HSF. The
legislature passed a bill during this
special session called Act 2, which the
governor signed into law. Act 2 allowed
the HSF to utilize the harbor
improvements in Maui and Kauai while
all necessary environmental
assessments were being conducted. The
trial judge in Maui determined that this
legislation overcame the requirement in
HEPA that caused him to enjoin HSF
from utilizing of the harbor
improvements in Maui, and in a ruling
on November 14, 2007, he dissolved and
vacated the injunction. This opened the
door to HSF resuming commercial
service to Maui.
Notwithstanding the fact that the HSF
did not face waterborne obstructers in
Kahului Harbor during any of its
commercial voyages there, recent
intelligence and assessments by the
Maui Police Department indicate a
substantial likelihood that certain
elements in Maui, disaffected by the
process that led to adoption of Act 2 and
vacation of the injunction, plan to adopt
the dangerous tactics used by the
obstructers in Kauai in an effort to
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prevent the HSF from safely arriving in
Maui. Individuals and groups have
organized rallies and started several
internet forums to encourage and
coordinate support for their efforts. The
dangerous and unlawful intent of these
individuals and groups is clear, as is
their resolve.
This temporary security zone is in
response to the threat posed by wouldbe obstructers in and around Kahului
Harbor to HSF and its crew and
passengers, law enforcement officers
working to ensure HSF’s safe transit,
and the obstructers themselves. By
designating significant portions of the
waters of Kahului Harbor and Kahului
Bay, and specified areas of land adjacent
to the water, 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 security
zone rule provides the Coast Guard and
its law enforcement partners the
authority to prevent persons and vessels
from entering or remaining in the water
with the intent of using themselves as
human barriers to impede the HSF’s safe
passage.
Discussion of Rule
This rule creates a temporary security
zone in most of the waters of Kahului
Harbor, Maui; in waters of Kahului Bay,
Maui; and on designated areas of land
adjacent to Kahului Harbor. This
temporary security zone is effective
from 12:01 a.m. (HST) on December 1,
2007, through 11:59 p.m. (HST) on
January 31, 2008. The security zone will
be activated for enforcement 60 minutes
before the HSF’s arrival into the zone,
and will remain activated for 10
minutes after the HSF’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, posted at the following
locations: at Gate 1 at the main entrance
to the harbor; on Pier No. 2; and at the
harbor entrance on Wharf Street. During
its period of activation and enforcement,
entry into the land and water areas of
the security zone is prohibited without
the permission of the Captain of the
Port, Honolulu, or his or her designated
representative.
In preparing this temporary rule, the
Coast Guard made sure to consider the
rights of lawful protestors. To that end,
the Coast Guard excluded from the
security zone a defined region which
creates a sizeable area of water in which
demonstrators may lawfully assemble
and convey their message in a safe
manner to their intended audience. This
area of the harbor not included in the
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security zone is completely accessible to
anyone who desires to enter the water,
and is 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 Kahului
Harbor and Kahului Bay in its creation
of this temporary 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. Kahului
Harbor and Kahului Bay are fully
available to all users during the period
when the zone is not activated.
Furthermore, the rule affords those
desiring to use the harbor and
surrounding waters and land areas with
the opportunity to and a process for
requesting permission of the Captain of
the Port to enter the zone while it is
activated in a manner that will not
endanger any vessel, waterfront facility,
the port, or any person.
The security zone incorporates the
minimum land and water areas
necessary to ensure the purposes
underlying the rule’s creation are
served. Waters outside of the harbor are
included in the zone to ensure that the
HSF is able to line up, unimpeded, on
the range that guides it safely into
Kahului Harbor. The breakwaters on
either side of the harbor entrance are
included in the zone to ensure that
would-be obstructers do not have a
ready staging point for attempting to
block the very narrow entrance to
Kahului Harbor. Pier No. 2, to which the
HSF ties up, is included in the security
zone, is entirely fenced off, and not
legally accessible except to authorized
personnel. Other than the designated
protest area, the waters of Kahului
Harbor, including areas of the harbor
not navigable by the HSF, are included
in the zone to prevent would-be
obstructers from interfering with law
enforcement vessels in the harbor that
are working to ensure the HSF’s safe
passage.
Under 33 CFR 165.33, entry by
persons or vessels into the security zone
during a period of zone activation 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 while the zone
is activated is prohibited. If a vessel is
found to be operating within the
security zone without permission of the
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Captain of the Port, Honolulu while the
zone is activated, the vessel is subject to
seizure and forfeiture.
All persons and vessels permitted in
the security zone while the zone is
activated 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 the 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,
under 33 CFR 165.1408, no person or
vessel is allowed within 100 yards of
the HSF 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
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
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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
this temporary rule, as well as 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 offer to assist small entities in
understanding this rule so that they may
better evaluate its effects on them and
participate in the rulemaking process. If
this 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
either preempts State law or imposes a
substantial direct cost of compliance on
them. We have analyzed this rule under
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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
expenditure, we do discuss the effects of
this rule elsewhere in this preamble.
Taking of Private Property
This rule will not affect 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 may
disproportionately affect children.
While some obstructers, both on land on
and shore, used small children in
furtherance of their obstruction
activities during the August 26 and 27
HSF arrivals into Kauai, and while
online forums and other sources
indicate that some organizers are
actively recruiting adolescents and
small children with the intent of putting
them in harm’s way should the HSF
attempt to enter either Kauai or Maui,
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
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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.
ebenthall on PRODPC61 with RULES
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 is inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
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 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 rule is categorically
excluded from further environmental
documentation. An ‘‘Environmental
Analysis Checklist’’ and ‘‘Categorical
VerDate Aug<31>2005
15:16 Nov 27, 2007
Jkt 214001
Exclusion Determination’’ 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 § 165.T14–164 to read
as follows:
I
§ 165.T14–164 Security Zone; Kahului
Harbor, Maui, 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:
(1) All waters of Kahului Harbor,
Maui, shoreward of the Kahului Harbor
COLREGS DEMARCATION LINE (see
33 CFR 80.1460), except for a zone
extending from the shoreline with the
following three legs as boundaries:
(i) A leg extending in a straight line
between Buoy ‘‘10’’ (LLNR 28375) and
Buoy ‘‘12’’ (LLNR 28380);
(ii) A leg extending in a straight line
between Buoy ‘‘10’’ (LLNR 28375) and
the nearest shoreline point; and
(iii) A leg extending in a straight line
between Buoy ‘‘12’’ (LLNR 28380) and
the fence line at the southwestern base
of Pier Two, at position (20°53.589′ N,
156°28.084′ W).
(2) Pier No. 2 in Kahului Harbor.
(3) The eastern breakwater at the
entrance of Kahului Harbor, beginning
at the east break wall (20°53.958′ N,
156°28.161′ W).
(4) The western breakwater at the
entrance of Kahului Harbor, beginning
at the berm on the west break wall
(20°53.925′ N, 156°28.611′ W).
(5) All waters of Kahului Bay
bounded on the south by the COLREGS.
DEMARCATION LINE (see 33 CFR
80.1460); bounded on the north by line
of latitude 20°56′ N; bounded on the
west by a straight line drawn from the
berm on the west break wall (20°53.925′
N, 156°28.611′ W) at a direction of 330°
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67255
to the line of latitude 20°56′ N; and
bounded on the east by a straight line
drawn from the east break wall
(20°53.958′ N, 156°28.161′ W) at a
direction of 030° and ending at the line
of latitude 20°56′ N.
(b) Effective period. This section is
effective from 12:01 a.m. (HST) on
December 1, 2007, through 11:59 p.m.
(HST) on January 31, 2008. It will be
activated for enforcement as described
in 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 will remain activated until 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, posted at
the following locations: At Gate 1 at the
main entrance to the harbor; on Pier No.
2; and at the harbor entrance on Wharf
Street.
(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
comprise 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
E:\FR\FM\28NOR1.SGM
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67256
Federal Register / Vol. 72, No. 228 / Wednesday, November 28, 2007 / Rules and Regulations
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) Persons desiring to transit the
security zone in this section may
contact the Captain of the Port at
telephone number (808) 927–0865 or on
VHF channel 12 to seek permission to
transit the area. If permission is granted,
all persons and vessels must comply
with the instructions of 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 in order to ensure
navigational safety.
(e) Enforcement. Any Coast Guard
commissioned, warrant, or petty officer,
and any other Captain of the Port
representative permitted by law, may
enforce this temporary security zone.
Dated: November 21, 2007.
Sally Brice-O’Hara,
Rear Admiral, U.S. Coast Guard, Commander,
Fourteenth Coast Guard District.
[FR Doc. 07–5872 Filed 11–26–07; 1:53 pm]
BILLING CODE 4910–15–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2007–0105; FRL–8340–6]
Acetamiprid; Pesticide Tolerance
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2007–0105. To access the
electronic docket, go to https://
www.regulations.gov, select ‘‘Advanced
Search,’’ then ‘‘Docket Search.’’ Insert
the docket ID number where indicated
and select the ‘‘Submit’’ button. Follow
the instructions on the regulations.gov
website to view the docket index or
access available documents. All
documents in the docket are listed in
the docket index available in
regulations.gov. Although listed in the
index, some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Susan Stanton, Registration Division
(7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington,
DC 20460–0001; telephone number:
(703) 305–5218; e-mail address:
stanton.susan@epa.gov.
ADDRESSES:
Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUPPLEMENTARY INFORMATION:
This regulation establishes
tolerances for residues of acetamiprid in
or on almond, hulls; fruit, stone, group
12, except plum, prune; nut, tree, group
14; pea and bean, succulent shelled,
subgroup 6B; pistachio; plum, prune,
dried; plum, prune, fresh; vegetable,
cucurbit, group 9; and vegetable,
legume, edible podded, subgroup 6A.
Nippon Soda Co., Ltd. requested these
tolerances under the Federal Food,
Drug, and Cosmetic Act (FFDCA).
DATES: This regulation is effective
November 28, 2007. Objections and
requests for hearings must be received
on or before January 28, 2008, and must
be filed in accordance with the
instructions provided in 40 CFR part
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. Potentially
affected entities may include, but are
not limited to those engaged in the
following activities:
• Crop production (NAICS code 111),
e.g., agricultural workers; greenhouse,
nursery, and floriculture workers;
farmers.
• Animal production (NAICS code
112), e.g., cattle ranchers and farmers,
dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code
311), e.g., agricultural workers; farmers;
greenhouse, nursery, and floriculture
workers; ranchers; pesticide applicators.
AGENCY:
ebenthall on PRODPC61 with RULES
SUMMARY:
VerDate Aug<31>2005
15:16 Nov 27, 2007
Jkt 214001
I. General Information
A. Does this Action Apply to Me?
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Fmt 4700
Sfmt 4700
• Pesticide manufacturing (NAICS
code 32532), e.g., agricultural workers;
commercial applicators; farmers;
greenhouse, nursery, and floriculture
workers; residential users.
This listing is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
affected by this action. Other types of
entities not listed in this unit could also
be affected. The North American
Industrial Classification System
(NAICS) codes have been provided to
assist you and others in determining
whether this action might apply to
certain entities. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Access Electronic Copies
of this Document?
In addition to accessing an electronic
copy of this Federal Register document
through the electronic docket at https://
www.regulations.gov, you may access
this Federal Register document
electronically through the EPA Internet
under the ‘‘Federal Register’’ listings at
https://www.epa.gov/fedrgstr. You may
also access a frequently updated
electronic version of EPA’s tolerance
regulations at 40 CFR part 180 through
the Government Printing Office’s pilot
e-CFR site at https://www.gpoaccess.gov/
ecfr.
C. Can I File an Objection or Hearing
Request?
Under section 408(g) of FFDCA, any
person may file an objection to any
aspect of this regulation and may also
request a hearing on those objections.
You must file your objection or request
a hearing on this regulation in
accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2007–0105 in the subject line on
the first page of your submission. All
requests must be in writing, and must be
mailed or delivered to the Hearing Clerk
as required by 40 CFR part 178 on or
before January 28, 2008.
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing that does not
contain any CBI for inclusion in the
public docket that is described in
ADDRESSES. Information not marked
confidential pursuant to 40 CFR part 2
may be disclosed publicly by EPA
without prior notice. Submit this copy,
identified by docket ID number EPA–
HQ–OPP–2007–0105, by one of the
following methods:
E:\FR\FM\28NOR1.SGM
28NOR1
Agencies
[Federal Register Volume 72, Number 228 (Wednesday, November 28, 2007)]
[Rules and Regulations]
[Pages 67251-67256]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5872]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2007-0093]
RIN 1625-AA87
Security Zone; Kahului Harbor, Maui, HI
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is creating a temporary security zone in the
waters of Kahului Bay and Kahului Harbor, Maui, and on designated
adjacent areas of land. This zone is intended to enable the Coast Guard
and its law enforcement partners to better protect people, vessels, and
facilities in and around Kahului Bay and Kahului Harbor during the
transit of the Hawaii Superferry. 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 Superferry.
DATES: This rule is effective from 12:01 a.m. (HST) on December 1,
2007, through 11:59 p.m. (HST) on January 31, 2008. Comments and
related material must reach the Coast Guard on or before December 19,
2007.
ADDRESSES: You may submit comments and related material, identified by
Coast Guard docket number USCG-2007-0093, by any of the three methods
listed below. To avoid duplication, please use only one of the
following methods:
(1) Mail: Lieutenant Sean Fahey, U.S. Coast Guard District 14 (dl),
Room 9-130, PJKK Federal Building, 300 Ala Moana Blvd., Honolulu,
Hawaii 96850.
(2) Electronically: E-mail to Lieutenant Sean Fahey at
Sean.C.Fahey@uscg.mil using the subject line ``Comment--Maui Security
Zone.''
(3) Fax: (808) 541-2101.
(4) Online: https://www.regulations.gov.
All comments will be reviewed as they are received. We may change
this rule based on your comments.
Documents indicated in this preamble as being available in the
docket are part of docket USCG-2007-0093 and are available for
inspection and copying at U.S. Coast Guard District 14 (dl), Room
[[Page 67252]]
9-130, 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
We did not publish a notice of proposed rulemaking (NPRM) for this
temporary rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that
good cause exists for not publishing an NPRM. It would be contrary to
the public interest to delay implementing this temporary rule, as any
delay might result in damage or injury to the public, the Hawaii
Superferry (HSF) and its passengers and crew, other vessels,
facilities, and law enforcement personnel. Though operation of the HSF
from Oahu to Maui was temporarily enjoined by the state circuit court
in Maui, that injunction was lifted on November 14, 2007, following
action by the Hawaii State legislature, and service to Maui is
advertised to resume on December 1, 2007. Given recent assessments by
the Maui Police Department that waterborne obstruction tactics similar
to those used in Kauai in August 2007 are likely to be employed in Maui
as well when the HSF resumes service there, it is critical that this
rule be in place so that local, State, and Federal public safety
officials can adequately ensure maritime safety and security, and
secure the observances of rights and obligations of the United States.
The main obstruction tactic employed by waterborne protesters in
Kauai in August 2007 was to physically place themselves directly in the
path of the HSF as it attempted to enter the harbor. Several
obstructers ashore threw rocks and bottles at U.S. Coast Guard
personnel. These actions are dangerous not only to the obstructers
themselves--some of whom used or incited children and juveniles in
support of their obstruction efforts--but also to the HSF, its
passengers and crew, and law enforcement personnel working to ensure
the vessel's safe passage.
Groups opposing the lawful operation of the HSF continue to vow to
impede its transit utilizing these same dangerous tactics. These
opposition groups have started several internet forums to encourage and
coordinate support for their efforts. The danger such obstruction
tactics pose is illustrated by an article posted on November 5, 2007,
on Surferspath.com, a popular Web site for Hawaiian surfers. In this
article, two prominent opposition members urge those who oppose the
operation of the Superferry to take ``the last step of non-violent
resistance,'' and prepare themselves for the possibility of ``physical
injury or death'' that may result from obstructing the Superferry.
These preparations include making the ``proper arrangements,''
preparing a ``last will and testament'' and engaging in a ``cleansing
ceremony to prepare your body, mind, and spirit to greet the Spiritual
Hierarchy that awaits your return.'' The letter goes on to say that,
``[t]here is also the possibility of accident in the turmoil of
numerous boats, swimmers, and surfers in an ocean environment. In that
sense you have to be prepared at the level of the Native American who
decided when it was `a good day to die.' ''
The Coast Guard cannot disregard such adamant safety and security
threats. Consequently, this rule is necessary to prevent damage or
injury to vessels, persons, and waterfront facilities, including the
HSF, its passengers and crew, law enforcement personnel working to
ensure the vessel's safe passage, and the obstructers themselves,
arising from these dangerous and unlawful obstruction tactics. Any
delay in implementing this temporary rule would be contrary to the
public interest and would jeopardize the security and safety of the
public, the HSF and its passengers and crew, other vessels, facilities,
and law enforcement personnel.
For the same reasons, 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. Although the Coast
Guard has good cause to issue this temporary rule without first
publishing a proposed rule, you are invited to submit post-promulgation
comments and related material regarding this rule on or before December
19, 2007. We may change this temporary interim rule based on the
comments received. All comments received will be posted, without
change, to https://www.regulations.gov and will include any personal
information you have provided. We have an agreement with the Department
of Transportation (DOT) for their Docket Management Facility to process
online submissions to Coast Guard dockets. You may review the
Department of Transportation's Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477), or you may visit
https://DocketsInfo.dot.gov.
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 certified 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 sole port in Maui that can accommodate the
HSF is Kahului Harbor. The sole port in Kauai that can accommodate the
HSF is Nawiliwili Harbor.
The HSF inaugurated commercial service from Oahu to both Maui and
Kauai on August 26, 2007. The voyage to and from Maui on that date
occurred without incident. However, in Kauai, 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. Other demonstrators ashore threw rocks and bottles at Coast
Guard personnel who were conveying detained obstructers to shore.
On the following day, August 27, 2007, the HSF again sailed to and
from Maui without incident. Upon arrival in Kauai, however,
approximately 70 persons entered the water again to physically block
the channel entrance, thereby preventing the HSF from docking in
Nawiliwili Harbor. Due to the difficulty in 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's master, after consulting with
company officials, made the decision to return to Oahu without mooring
in Kauai.
On August 28, HSF officials announced the ``indefinite'' suspension
of commercial operations. Since that date, the HSF has only sailed in
commercial service to either Kauai or Maui once; on September 8, 2007,
to pick up and return cars to Oahu that were stranded on Maui after the
[[Page 67253]]
suspension of commercial service on August 28. This sailing was the
product of a stipulated agreement in an ongoing lawsuit (discussed
further below) involving HSF and environmental groups opposed to the
HSF operating in and out of Kahului Harbor, Maui.
Shortly after the company announced its suspension of operations on
August 28, the trial court judge in the ongoing state court proceeding
referenced in the previous paragraph issued a temporary restraining
order, which was followed by a preliminary injunction several weeks
later, prohibiting HSF from utilizing the harbor improvements in
Kahului Harbor, Maui. This injunction was the product of a Hawaii
Supreme Court determination that the Hawaii Environmental Protection
Act (HEPA) required the state to conduct an environmental assessment of
the effects of the harbor improvements that were necessary to
accommodate the HSF in Kahului Harbor. Following the Supreme Court
decision, the trial court determined that HEPA required the
environmental assessment to be conducted before the HSF could use those
harbor improvements; and since that assessment had not occurred, the
injunction was a necessary remedy. The injunction only pertained to
Kahului Harbor; it did not apply in Nawiliwili Harbor, Kauai. However,
the HSF voluntarily decided not to sail to Kauai while the court case
was ongoing.
In response to this judicial action, the governor called the Hawaii
legislature into special session to consider whether to grant
legislative relief to HSF. The legislature passed a bill during this
special session called Act 2, which the governor signed into law. Act 2
allowed the HSF to utilize the harbor improvements in Maui and Kauai
while all necessary environmental assessments were being conducted. The
trial judge in Maui determined that this legislation overcame the
requirement in HEPA that caused him to enjoin HSF from utilizing of the
harbor improvements in Maui, and in a ruling on November 14, 2007, he
dissolved and vacated the injunction. This opened the door to HSF
resuming commercial service to Maui.
Notwithstanding the fact that the HSF did not face waterborne
obstructers in Kahului Harbor during any of its commercial voyages
there, recent intelligence and assessments by the Maui Police
Department indicate a substantial likelihood that certain elements in
Maui, disaffected by the process that led to adoption of Act 2 and
vacation of the injunction, plan to adopt the dangerous tactics used by
the obstructers in Kauai in an effort to prevent the HSF from safely
arriving in Maui. Individuals and groups have organized rallies and
started several internet forums to encourage and coordinate support for
their efforts. The dangerous and unlawful intent of these individuals
and groups is clear, as is their resolve.
This temporary security zone is in response to the threat posed by
would-be obstructers in and around Kahului Harbor to HSF and its crew
and passengers, law enforcement officers working to ensure HSF's safe
transit, and the obstructers themselves. By designating significant
portions of the waters of Kahului Harbor and Kahului Bay, and specified
areas of land adjacent to the water, 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 security
zone rule provides the Coast Guard and its law enforcement partners the
authority to prevent persons and vessels from entering or remaining in
the water with the intent of using themselves as human barriers to
impede the HSF's safe passage.
Discussion of Rule
This rule creates a temporary security zone in most of the waters
of Kahului Harbor, Maui; in waters of Kahului Bay, Maui; and on
designated areas of land adjacent to Kahului Harbor. This temporary
security zone is effective from 12:01 a.m. (HST) on December 1, 2007,
through 11:59 p.m. (HST) on January 31, 2008. The security zone will be
activated for enforcement 60 minutes before the HSF's arrival into the
zone, and will remain activated for 10 minutes after the HSF'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, posted at the following
locations: at Gate 1 at the main entrance to the harbor; on Pier No. 2;
and at the harbor entrance on Wharf Street. During its period of
activation and enforcement, entry into the land and water areas of the
security zone is prohibited without the permission of the Captain of
the Port, Honolulu, or his or her designated representative.
In preparing this temporary rule, the Coast Guard made sure to
consider the rights of lawful protestors. To that end, the Coast Guard
excluded from the security zone a defined region which creates a
sizeable area of water in which demonstrators may lawfully assemble and
convey their message in a safe manner to their intended audience. This
area of the harbor not included in the security zone is completely
accessible to anyone who desires to enter the water, and is 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 Kahului
Harbor and Kahului Bay in its creation of this temporary 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. Kahului Harbor and Kahului Bay are fully
available to all users during the period when the zone is not
activated. Furthermore, the rule affords those desiring to use the
harbor and surrounding waters and land areas with the opportunity to
and a process for requesting permission of the Captain of the Port to
enter the zone while it is activated in a manner that will not endanger
any vessel, waterfront facility, the port, or any person.
The security zone incorporates the minimum land and water areas
necessary to ensure the purposes underlying the rule's creation are
served. Waters outside of the harbor are included in the zone to ensure
that the HSF is able to line up, unimpeded, on the range that guides it
safely into Kahului Harbor. The breakwaters on either side of the
harbor entrance are included in the zone to ensure that would-be
obstructers do not have a ready staging point for attempting to block
the very narrow entrance to Kahului Harbor. Pier No. 2, to which the
HSF ties up, is included in the security zone, is entirely fenced off,
and not legally accessible except to authorized personnel. Other than
the designated protest area, the waters of Kahului Harbor, including
areas of the harbor not navigable by the HSF, are included in the zone
to prevent would-be obstructers from interfering with law enforcement
vessels in the harbor that are working to ensure the HSF's safe
passage.
Under 33 CFR 165.33, entry by persons or vessels into the security
zone during a period of zone activation 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
while the zone is activated is prohibited. If a vessel is found to be
operating within the security zone without permission of the
[[Page 67254]]
Captain of the Port, Honolulu while the zone is activated, the vessel
is subject to seizure and forfeiture.
All persons and vessels permitted in the security zone while the
zone is activated 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 the 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, under 33
CFR 165.1408, no person or vessel is allowed within 100 yards of the
HSF 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 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 this temporary rule, as well as 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 offer to assist small
entities in understanding this rule so that they may better evaluate
its effects on them and participate in the rulemaking process. If this
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 either preempts State law or imposes 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 expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not affect 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 may
disproportionately affect children. While some obstructers, both on
land on and shore, used small children in furtherance of their
obstruction activities during the August 26 and 27 HSF arrivals into
Kauai, and while online forums and other sources indicate that some
organizers are actively recruiting adolescents and small children with
the intent of putting them in harm's way should the HSF attempt to
enter either Kauai or Maui, 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
[[Page 67255]]
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 is inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., specifications of materials, performance, design, or operation;
test methods; sampling procedures; and related management systems
practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under 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 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 rule is categorically excluded from further
environmental documentation. An ``Environmental Analysis Checklist''
and ``Categorical Exclusion Determination'' 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 Sec. 165.T14-164 to read as follows:
Sec. 165.T14-164 Security Zone; Kahului Harbor, Maui, 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:
(1) All waters of Kahului Harbor, Maui, shoreward of the Kahului
Harbor COLREGS DEMARCATION LINE (see 33 CFR 80.1460), except for a zone
extending from the shoreline with the following three legs as
boundaries:
(i) A leg extending in a straight line between Buoy ``10'' (LLNR
28375) and Buoy ``12'' (LLNR 28380);
(ii) A leg extending in a straight line between Buoy ``10'' (LLNR
28375) and the nearest shoreline point; and
(iii) A leg extending in a straight line between Buoy ``12'' (LLNR
28380) and the fence line at the southwestern base of Pier Two, at
position (20[deg]53.589[min] N, 156[deg]28.084[min] W).
(2) Pier No. 2 in Kahului Harbor.
(3) The eastern breakwater at the entrance of Kahului Harbor,
beginning at the east break wall (20[deg]53.958[min] N,
156[deg]28.161[min] W).
(4) The western breakwater at the entrance of Kahului Harbor,
beginning at the berm on the west break wall (20[deg]53.925[min] N,
156[deg]28.611[min] W).
(5) All waters of Kahului Bay bounded on the south by the COLREGS.
DEMARCATION LINE (see 33 CFR 80.1460); bounded on the north by line of
latitude 20[deg]56[min] N; bounded on the west by a straight line drawn
from the berm on the west break wall (20[deg]53.925[min] N,
156[deg]28.611[min] W) at a direction of 330[deg] to the line of
latitude 20[deg]56[min] N; and bounded on the east by a straight line
drawn from the east break wall (20[deg]53.958[min] N,
156[deg]28.161[min] W) at a direction of 030[deg] and ending at the
line of latitude 20[deg]56[min] N.
(b) Effective period. This section is effective from 12:01 a.m.
(HST) on December 1, 2007, through 11:59 p.m. (HST) on January 31,
2008. It will be activated for enforcement as described in 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 will remain activated
until 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, posted at the following locations: At Gate 1 at the main
entrance to the harbor; on Pier No. 2; and at the harbor entrance on
Wharf Street.
(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 comprise
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
[[Page 67256]]
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) Persons desiring to transit the security zone in this section
may contact the Captain of the Port at telephone number (808) 927-0865
or on VHF channel 12 to seek permission to transit the area. If
permission is granted, all persons and vessels must comply with the
instructions of 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 in order to ensure
navigational safety.
(e) Enforcement. Any Coast Guard commissioned, warrant, or petty
officer, and any other Captain of the Port representative permitted by
law, may enforce this temporary security zone.
Dated: November 21, 2007.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fourteenth Coast Guard
District.
[FR Doc. 07-5872 Filed 11-26-07; 1:53 pm]
BILLING CODE 4910-15-P