[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Rules and Regulations]
[Pages 45461-45464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20902]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2017-0172]
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: Temporary final rule.
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SUMMARY: The Coast Guard is extending, for an additional six months,
the existing temporary safety zone surrounding the entry of lava from
the Kilauea volcano into the navigable waters of the Pacific Ocean on
the southeast side of the Island of Hawaii, HI. The extension of this
safety zone is necessary to protect persons and vessels from hazards
associated with molten lava entering the ocean while the proposed rule
is reviewed.
DATES: This rule is effective from September 28, 2017 through March 28,
2018.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2017-0172 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander John Bannon, Waterways Management
Division, Coast Guard; telephone: 808-541-4359, email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
BLS Bureau of Labor Statistics
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section symbol
OMB Office of Management and Budget
RFA Regulatory Flexibility Act
SNPRM Supplemental notice of proposed rulemaking
TFR Temporary final rule
U.S.C. United States Code
II. Background Information and Regulatory History
The Coast Guard is extending, for an additional six months, an
existing temporary safety zone for the navigable waters surrounding the
entry of lava from the Kilauea Volcano into the Pacific Ocean on the
southeast side of the Island of Hawaii, HI. Extending this safety zone
ensures mariners remain safe from the potential hazards associated with
molten lava entering the ocean while the proposed rule is being
reviewed. This safety zone will continue to encompass all waters within
300 meters (984 feet) of all entry points of lava flow into the ocean.
Because the entry points of the lava vary, the safety zone location
will also vary. Entry of persons or vessels into this safety zone
remains prohibited, unless specifically authorized by the Captain of
the Port (COTP) Honolulu, or his designated representative.
Lava flow that enters the ocean can be potentially hazardous to
anyone near it, particularly when lava deltas collapse. A lava delta is
new land that forms when lava accumulates above sea level, and extends
from the existing base of a sea cliff. Persons near active lava flow
entry sites incur potential hazards, particularly when lava deltas
collapse. These hazards include, but are not limited to, plumes of hot,
corrosive seawater laden with hydrochloric acid, and fine volcanic
particles that can irritate the skin, eyes, and lungs; explosions of
debris and eruptions of scalding water from hot rock entering the
ocean; sudden lava delta collapses; and waves associated with these
explosions and collapses.
Lava has been entering the ocean at the Kamokuna lava delta on
Kilauea Volcano's south coast since July 2016. On December 31, 2016, a
large portion of lava delta collapsed into the ocean at the Kamokuna
entry point. Following this collapse, portions of the adjacent sea
cliff fell into the ocean, producing localized waves, and showers of
debris. As of March 2017, a new delta has begun to form at the Kamokuna
ocean entry point. This lava delta continues to grow and collapse, and
cracks parallel to the sea cliff surrounding it persist, indicating
further collapses may occur with little or no warning.
On March 28, 2017, the Coast Guard established a temporary final
rule (TFR) and put into place a safety zone for mariners near lava
entry points to address the hazards of the lava entering the ocean. The
TFR discussed Sector Honolulu's review of nearly 30 years of delta
collapse and ejecta distance observations from the Hawaii Volcano
Observatory records. The TFR was published in the April 3, 2017 Federal
Register (82 FR 16109).
On April 3, 2017, the Coast Guard also published a notice of
proposed rulemaking (NPRM) to establish a permanent safety zone that
would encompass all waters extending 300 meters (984 feet) in every
direction around all entry points of lava flow into the navigable
waters surrounding the entry of lava from the Kilauea Volcano into the
Pacific Ocean on the southeast side of the Island of Hawaii, HI (82 FR
16142). We determined that a radius of 300 meters was a reasonable,
minimum high-hazard zone around a point of active lava flow entering
the ocean. The safety zone allows the Coast Guard to impose and enforce
restrictions on vessels operating closely to the lava entry area, which
protects persons and vessels from the potential hazards associated with
molten lava entering the ocean. The NPRM addressed this concern and
invited the public to comment on the safety zone. The comment period,
which ended on June 2, 2017, received 67 comments. On May 8, 2017, at a
public meeting held in Hilo, HI, meeting participants discussed the
proposed rule and NPRM's public comments.
During the period of the TFR, four tour operators and one
photographer with economic ties to lava tourism petitioned the COTP
Honolulu for entry within 300 meters of the high-hazard zone. They also
requested and petitioned for various levels of entry distances--ranging
from a close, safe distance to 50 meters--based on sea conditions
resulting from the lava entry. The COTP Honolulu granted express
authorization for entry within 300 meters to the five operators. The
authorization included operational restrictions and other vessel safety
criteria requirements considered by the
[[Page 45462]]
COTP Honolulu and will continue under the extended period of this TFR.
In order to review the overall impact of the final rule, a
supplemental notice of proposed rulemaking (SNPRM) will be published,
providing an additional 60 days for public comments and input. This TFR
is necessary to promote navigational safety, provide for the safety of
life and property, and facilitate the reasonable demands of commerce
relating to tourism surrounding the lava entry points. It also provides
an opportunity for further comment from the public. Upon publication of
the SNPRM, we will invite additional public comments on this
rulemaking.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists
for making this rule effective less than 30 days after publication in
the Federal Register. Although we expect to review the SNPRM within 30
days of publication of this TFR, it would be impractical to delay the
effective date of this rule. Immediate action is necessary to protect
persons, vessels, and the public from the potential safety hazards
associated with the ocean lava entry.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The COTP Honolulu has determined that potential hazards
associated with Kilauea's active lava flow entry into the Pacific Ocean
on the southeast side of the Island of Hawaii, HI is a safety concern
for anyone within 300 meters (984 feet) in every direction around the
entry of lava flow. The purpose of this rule is to ensure the safety of
the public and vessels traveling in the navigable waters covered by the
safety zone.
IV. Discussion of Comments, Changes, and the Rule
This TFR extends the existing safety zone from September 28, 2017
through March 28, 2018, or until it is no longer necessary. If the
safety zone terminates prior to March 28, 2018, the Coast Guard will
provide notice via established notice to mariners.
In order to review the overall impact of the rule, the Coast Guard
will publish an SNPRM providing an additional 60 days for comments on
the proposed final rule. This TFR is necessary to promote navigational
safety, provide for the safety of life and property, and facilitate the
reasonable demands of commerce relating to tourism surrounding the lava
entry points.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select those approaches that
maximize net benefits. Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility. Executive Order 13771
(``Reducing Regulation and Controlling Regulatory Costs''), directs
agencies to reduce regulation and control regulatory costs and provides
that ``for every one new regulation issued, at least two prior
regulations be identified for elimination, and that the cost of planned
regulations be prudently managed and controlled through a budgeting
process.''
Under Executive Order 12866, this rule has not been designated a
``significant regulatory action. Accordingly, the Office of Management
and Budget (OMB) has not reviewed it. As this rule is a non-significant
regulatory action, it is exempt from the requirements of Executive
Order 13771. See OMB's Memorandum titled ``Interim Guidance
Implementing Section 2 of the Executive Order of January 30, 2017
titled `Reducing Regulation and Controlling Regulatory Costs' ''
(February 2, 2017). A regulatory analysis follows.
This TFR extends, for an additional six months, the existing safety
zone for the navigable waters surrounding the entry of lava from
Kilauea volcano into the Pacific Ocean. The safety zone will remain to
include waters within 300 meters (984 feet) of where lava enters the
ocean. Entry of persons or vessels into the safety zone may only occur
if granted permission by the COTP Honolulu, or his designated
representative.
Lava has been entering the ocean at Kamokuna on Kilauea Volcano's
south coast since July of 2016 and will continue to do so in the
future. When lava enters the ocean, new hazards emerge: Plumes of
corrosive seawater can irritate the skin, eyes, and lungs; explosions
of debris and scalding water can injure passengers; sudden collapse of
lava deltas can cause large waves potentially capsizing vessels. This
TFR establishes a minimum safe operating distance in order to protect
individuals and operators from the hazards of the Kilauea lava flow at
sea.
This rule affects any vessel that would normally travel within 300
meters of points where lava reaches the ocean. Currently, four lava
tour-boat operators have state licenses to operate from the Pohoiki
Boat Ramp, the closest location to pick up passengers for tours of the
Kilauea lava flow. The Coast Guard is also aware of one photographer
who photographs the Kilauea lava flow. Since the implementation of the
temporary safety zone, the COTP granted prior approval to these parties
to enter the safety zone, so long as they comply with the conditions
set by the COTP. These entities are required to notify the COTP by
phone before each tour when entering the 300-meter safety zone.
When the Coast Guard published the original TFR on April 3, 2017,
owners and operators were required to prepare and submit a written
request to the COTP to enter the safety zone. The TFR is a continuation
of the requirements extending the safety zone for an additional six
months, and therefore, we are presenting the costs associated with this
TFR.
First, the captain of a lava tour boat will initiate the request to
enter the safety zone through an initial written request to the COTP.
Based on waiver requests from the four state-licensed operations, the
Coast Guard estimates it takes about 4-hours for an owner or operator
to submit a written request to enter the safety zone. This includes the
time it would take lava tour-boat owners or operators to respond to
questions from the COTP concerning the waiver request. Lava tour-boat
owners or operators are only required to make this written waiver
request once for consideration by the COTP.
We obtained the mean hourly wage rate for a Captain of a lava tour
boat from the Bureau of Labor Statistics (BLS) Occupational Employment
Statistics National Occupational Employment and Wage Estimates for May
2016. Based on BLS's data, the mean hourly wage rate for Captains,
Mates, and Pilots of Water Vessels with the North American Industry
Classification System (NAICS) occupational code of 53-5021 in the
``Scenic and Sightseeing Transportation, Water'' industry is $24.42.
Because this is an unloaded hourly wage rate, we added a load factor of
1.52 derived from the BLS March 2017 ``Employer Cost for Compensation''
databases to obtain a loaded hourly wage rate of $37.12. We estimate
the one-time initial cost for an owner or operator to prepare a written
request and respond to comments from
[[Page 45463]]
the Coast Guard to be about $148.47 ($37.12 per hour x 4 hours). We
estimate the total cost of the temporary final rule to be about $593.88
($148.47 x 4 lava tour-boat owners or operators).
Since all four tour operators and the photographer were each
granted permission to enter the safety zone through an initial waiver
request, the only potential cost to these tour operators is the cost of
the initial request. Each owner or operator also will be required to
notify the COTP before entering the safety zone. These entities shall
notify the Coast Guard by phone; however, we do not estimate a cost for
the call because the equipment already exists onboard the vessel and
operators will make their calls in the normal course of a Captain's
duty.
The Federal Government also will incur costs of this temporary
final rule. Government costs to implement the rule include the one-time
cost of reviewing the waiver requests (we do not estimate a cost for
the time to receive a call from an owner or operator to when entering a
safety zone because the COTP conducts this review in the normal course
of the COTP duties). To process the written request, we estimate one
non-commissioned officer with a rank of E-7, and three officers with
ranks of O-4, O-5, and O-6 will take about one hour each to review the
written request. Based on the labor rates in table 1, we estimate the
total cost to the Government of the temporary final rule to be about
$378.00. Table 1 below summarizes these Government costs.\1\
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\1\ We obtained the hourly wage rates from Enclosure (2) of
Commandant Instruction 7310.1R (29 March 2017) using the ``In
Government Rate''.
Table 1--Total Government Costs of the Temporary Final Rule
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Labor Total
Rank Wage rate hours cost
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E-7.................................... $65 1 $65
O-4.................................... 92 1 92
O-5.................................... 104 1 104
O-6.................................... 117 1 117
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Total.............................. ......... 4 378
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We estimate the total cost of this temporary final rule to industry
and the Government to be about $972 ($593.88 for lava tour-boat owners
or operators + $378 for the Government).
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 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. Rules that are exempt from the Administrative Procedures Act
include interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice; or when the agency for
good cause finds that notice and comment are impracticable,
unnecessary, or contrary to the public interest. When an agency is not
required to publish an NPRM for a rule, the RFA does not require an
agency to prepare a regulatory flexibility analysis. The Coast Guard
was not required to publish an NPRM for this rule for the reasons
stated in section II. ``Background Information and Regulatory History''
and therefore is not required to publish a regulatory flexibility
analysis.
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this 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 rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule involves a temporary safety zone lasting 6 months that will
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. This safety zone is categorically excluded from
further review under paragraph 34(g) of Figure 2-1 of the Commandant
Instruction. A Record of Environmental Consideration supporting this
determination is available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.
[[Page 45464]]
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places, or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
Title 33--Navigation and Navigable Waters
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.T14-0172 to read as follows:
Sec. 165.T14-0172 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 Captain of
the Port (COTP) Zone (see 33 CFR 3.70-10) and it 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. This rule is effective from September 28,
2017, through March 28, 2018.
(c) Definitions. As used in this section, ``designated
representative'' means a Coast Guard Patrol Commander, including a
Coast Guard coxswain, petty officer or other officer on a Coast Guard
vessel or a Federal, State, or local officer designated by or assisting
the COTP in the enforcement of the safety zones.
(d) Regulations. The general regulations governing safety zones
contained in Sec. 165.23 apply to the safety zone created by this
temporary final rule.
(1) All persons 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
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. All safety zone transit requests must be in writing. 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.
Dated: September 25, 2017.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-20902 Filed 9-28-17; 8:45 am]
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