[Federal Register Volume 82, Number 62 (Monday, April 3, 2017)]
[Proposed Rules]
[Pages 16142-16144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06474]
[[Page 16142]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2017-0234]
RIN 1625-AA00
Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on
Southeast Side of Island of Hawaii, HI
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish a permanent safety zone
for the navigable waters surrounding the entry of lava from Kilauea
volcano into the Pacific Ocean on the southeast side of the Island of
Hawaii, HI. The safety zone will encompass all waters extending 300
meters (984 feet) in all directions around all entry points of lava
flow into the ocean. The entry points of the lava vary, and the safety
zone will vary accordingly. The safety zone is needed to protect
persons and vessels from the potential hazards associated with molten
lava entering the ocean resulting in explosions of large chunks of hot
rock and debris upon impact, collapses of the sea cliff into the ocean,
hot lava arching out and falling into the ocean, and the release of
toxic gases. Entry of persons or vessels into this safety zone is
prohibited unless specifically authorized by the Captain of the Port
(COTP) Honolulu or his designated representative. We invite your
comments on this proposed rulemaking.
DATES: Comments and related material must be received by the Coast
Guard on or before June 2, 2017.
ADDRESSES: You may submit comments identified by docket number USCG-
2017-0234 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email Lieutenant Commander Nicolas Jarboe,
Waterways Management Division, U.S. Coast Guard; telephone 808-541-
4359, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
Lava has been entering the ocean at Kamokuna on K[imacr]lauea
Volcano's south coast since July of 2016. As with all ocean entries
during this long-lived K[imacr]lauea eruption, hazards to people nearby
on land and sea include: A plume of corrosive seawater laden with
hydrochloric acid and fine volcanic particles that can irritate the
skin, eyes, and lungs; explosions of debris and scalding water as hot
rock interacts with the ocean; sudden collapse of lava deltas (new land
formed as lava accumulates above sea level extending out from the base
of the existing sea cliff); waves associated with explosions,
collapses; plumes of hot water. For more information, please see:
https://pubs.usgs.gov/fs/2000/fs152-00/.
On New Year's Eve 2016, a large portion of the new lava delta
collapsed into the ocean producing waves and explosions of debris.
Following this collapse, portions of the adjacent sea cliff continued
to collapse into the ocean producing localized ocean waves and showers
of debris. As of late March 2017, a new delta has begun to form at the
Kamokuna ocean entry. Additionally, cracks parallel to the sea cliff in
the surrounding area persist, indicating further collapses with very
little or no warning are possible.
Based on a review of nearly 30 years of delta collapse and ejecta
distance observations in the Hawaii Volcano Observatory records, a
radius of 300 meters was determined as a reasonable minimum high hazard
zone around a point of ocean entry.
The purpose of this proposed rulemaking is to protect persons and
vessels from the potential hazards associated with molten lava entering
the ocean resulting in explosions of large chunks of hot rock and
debris upon impact, collapses of the sea cliff into the ocean, hot lava
arching out and falling into the ocean, and the release of toxic gases.
The safety zone's intended objectives include but not limited to
protection of the public, mitigation of potential lava flow entry
hazards to nearby vessels, and enhancing public safety. The Coast Guard
proposes this rulemaking under authority in 33 U.S.C. 1231, which gives
the Coast Guard, under a delegation from the Secretary of the
Department of Homeland Security, regulatory authority to enforce the
Ports and Waterways Safety Act.
On March 28, 2017 the COTP issued a temporary final rule, published
elsewhere in this issue of the Federal Register, without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) [5 U.S.C. 553(b)]. The temporary
final rule established a temporary safety zone to immediately protect
persons and vessels from the potential hazards associated with
Kilauea's active lava flow entry into the Pacific Ocean on the
southeast side of the Island of Hawaii, HI. The safety zone encompassed
all waters extending 300 meters (984 feet) in all directions around all
entry points of lava flow into the ocean. The entry points of the lava
vary, and the safety zone will vary accordingly. The temporary final
rule will remain in effect throughout this notice of proposed
rulemaking unless otherwise canceled or modified by the COTP.
III. Discussion of Proposed Rule
The COTP Honolulu proposes to establish a permanent safety zone
around the lava flow entry point on the Kamokuna lava delta. The entry
point of the lava does change based on flow, however the safety zone
will encompass all waters extending 300 meters (984 feet) in all
directions around the entry point of lava flow into the ocean
associated with the lava flow at the Kamokuna lava delta. The safety
zone is needed to protect persons and vessels from potential hazards
associated with molten lava entering the ocean resulting in explosions
of large chunks of hot rock and debris upon impact, hot lava arching
out and falling into the ocean, and the release of toxic gases. No
persons or vessels will be permitted to enter the safety zone without
express authorization from the COTP Honolulu or his designated
representative.
The regulatory text we are proposing appears at the end of this
document.
IV. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and Executive orders related to rulemaking. Below we summarize our
analyses based on a number of these statutes and Executive orders and
we discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits.
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Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. This NPRM has not been designated a
``significant regulatory action,'' under Executive Order 12866.
Accordingly, the NPRM has not been reviewed by the Office of Management
and Budget.
This regulatory action determination is based on the size,
location, duration, and time-of-day of the safety zone. Vessel traffic
would be able to safely transit around this safety zone which would
impact a small designated area of the southeast side of the Island of
Hawaii, HI. Moreover, the Coast Guard would issue a Broadcast Notice to
Mariners via VHF-FM marine channel 16 about the zone, and the rule
would allow vessels to seek permission to enter the zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this
proposed rule would not have a significant economic impact on a
substantial number of small entities for reasons stated in section IV.
A. above.
Some owners or operators of vessels, which may be small entities,
conduct tours in the vicinity of the proposed safety zone where lava
flow enters the ocean. Some of these owners or operators reportedly
navigate closer than 300 meters from the lava entry into the ocean.
This rule may affect their operations. The safety zone does not
prohibit ocean tours; the safety zone simply requires operators and
vessel owners to navigate at a safe distance. It also allows vessels to
seek permission of the COTP Honolulu to get closer.
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.
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 proposed rule. If the rule would affect
your small business, organization, or governmental jurisdiction and you
have questions concerning its provisions or options for compliance,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section. The Coast Guard will not retaliate against small entities that
question or complain about this proposed rule or any policy or action
of the Coast Guard.
C. Collection of Information
This proposed rule would not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this proposed rule under that Order and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, this proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this proposed rule has implications for federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this proposed rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made
a preliminary determination that this action is one of a category of
actions that do not individually or cumulatively have a significant
effect on the human environment. This proposed rule involves permanent
safety zone that would prohibit entry within prohibit persons and
vessels from entry into the 300 meters (984 feet) safety zone extending
in all directions around the entry of lava flow into the Pacific Ocean.
Normally such actions are categorically excluded from further review
under paragraph 34(g) of Figure 2-1 of Commandant Instruction
M16475.lD. A preliminary environmental analysis checklist and
Categorical Exclusion Determination are available in the docket where
indicated under ADDRESSES. We seek any comments or information that may
lead to the discovery of a significant environmental impact from this
proposed rule.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.
V. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
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We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, you may review a Privacy Act notice regarding the Federal
Docket Management System in the March 24, 2005, issue of the Federal
Register (70 FR 15086).
Documents mentioned in this NPRM as being available in the docket,
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.
We plan to hold one public meeting on May 08, 2017 at 5 p.m. at the
East Hawaii County Building (Hilo) Aupuni Center Conference Room
located at 101 Pauahi St. #7, Hilo, Hawaii 96720. For information on
facilities or services for individuals with disabilities or to request
special assistance at the public meeting, contact the person named in
the FOR FURTHER INFORMATION CONTACT section, above.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.1414 to read as follows:
Sec. 165.1414 Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean
Entry on Southeast Side of Island of Hawaii, HI.
(a) Location. The safety zone area is located within the COTP Zone
(See 33 CFR 3.70-10) and encompasses one primary area from the surface
of the water to the ocean floor at the Kilauea active lava flow entry
into the Pacific Ocean on the southeast side of the Island of Hawaii,
HI. The entry point of the lava does change based on flow, however the
safety zone will encompass all waters extending 300 meters (984 feet)
in all directions around the entry point of lava flow into the ocean
associated with the lava flow at the Kamokuna lava delta.
(b) Enforcement period. The COTP Honolulu will establish the
enforcement dates that will be announced with a notice of enforcement
of regulations published in the Federal Register. The enforcement dates
will also be announced with a Broadcast Notice to Mariners, Local
Notice to Mariners, and Outreach.
(c) Regulations. The general regulations governing safety zones
contained in Sec. 165.23 apply to the safety zone created by this
rule.
(1) All persons and vessels are required to comply with the general
regulations governing safety zones found in this part.
(2) Entry into or remaining in this safety zone is prohibited
unless authorized by the COTP Honolulu or his designated
representative.
(3) Persons or vessels desiring to transit the safety zone
identified in paragraph (a) of this section may contact the COTP of
Honolulu through his designated representatives at the Command Center
via telephone: (808) 842-2600 and (808) 842-2601; fax: (808) 842-2642;
or on VHF channel 16 (156.8 Mhz) to request permission to transit the
safety zone. If permission is granted, all persons and vessels must
comply with the instructions of the COTP Honolulu or his designated
representative and proceed at the minimum speed necessary to maintain a
safe course while in the safety zone.
(4) The U.S. Coast Guard may be assisted in the patrol and
enforcement of the safety zone by Federal, State, and local agencies.
(d) Notice of enforcement. The COTP Honolulu will provide notice of
enforcement of the safety zone described in this section by verbal
radio broadcasts and written notice to mariners.
(e) Definitions. As used in this section, ``designated
representative'' means any Coast Guard commissioned, warrant, or petty
officer who has been authorized by the COTP to assist in enforcing the
safety zone described in paragraph (a) of this section.
Dated: March 28, 2017.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-06474 Filed 3-31-17; 8:45 am]
BILLING CODE 9110-04-P