[Federal Register: September 3, 2008 (Volume 73, Number 171)]
[Rules and Regulations]               
[Page 51362-51365]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03se08-9]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0835]
RIN 1625-AA00

 
Safety Zone; Waters Surrounding S/V FALLS OF CLYDE, HI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary 500-yard moving 
safety zone around the S/V FALLS OF CLYDE and her tow vessel(s) during 
transit within the Honolulu Captain of the Port Zone. The safety zone 
is established at the request of the Hawaii Maritime Center to protect 
vessels and persons from approaching too close to the dead-ship tow of 
the S/V FALLS OF CLYDE. Entry of persons or vessels into this temporary 
safety

[[Page 51363]]

zone is prohibited unless authorized by the Captain of the Port.

DATES: This rule is effective from 12:01 a.m. on September 2, 2008 
until 11:59 p.m. on October 2, 2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-0835 and are available on line 
at http://www.regulations.gov. They are also available for inspection 
or copying at two locations: The Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays, and 
the U.S. Coast Guard Sector Honolulu, Waterways Management Division, 
433 Ala Moana Blvd., Honolulu, HI 96813 between 7 a.m. and 3 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Lieutenant Marcella Granquist, Waterways 
Management Division, U.S. Coast Guard Sector Honolulu, telephone 808-
842-2600. If you have questions on viewing the docket, call Renee V. 
Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because the Coast Guard was not given the 
final voyage plan in time to initiate full rulemaking, and the need for 
this temporary moving safety zone was not determined until less than 30 
days before the general public will require the zone's protection. 
Publishing an NPRM and delaying the effective date would be contrary to 
the public interest since the transit would occur before completion of 
the rulemaking process, thereby jeopardizing the safety of the general 
public. 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. The COTP finds this good cause to 
be the immediate need for a safety zone to ensure public safety 
surrounding the transit of the unmanned S/V FALLS OF CLYDE from 
Honolulu Harbor to 12 nautical miles off shore of Oahu, HI.

Background and Purpose

    On or after September 2, 2008 the dead-ship tow of the S/V FALLS OF 
CLYDE is scheduled to transit U.S. navigable waters in the Honolulu 
Captain of the Port Zone from the Honolulu Harbor to off the southern 
coast of Oahu, HI. The Coast Guard is establishing this safety zone to 
ensure the public's safety during the transit of the S/V FALLS OF CLYDE 
from the Honolulu Harbor entrance channel commencing at a line between 
channel buoys no. 1 and no. 2 to 12 nautical miles off the southern 
coast of Oahu, HI.

Discussion of Rule

    This temporary safety zone is effective on or after 12:01 a.m. on 
September 2, 2008 until 11:59 p.m. on October 2, 2008. It is located 
within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10) and 
covers all U.S. navigable waters extending 500 yards in all directions 
from the S/V FALLS OF CLYDE and her tow vessel(s), from the surface of 
the water to the ocean floor. Unpredictable weather and sea states make 
a broad date and time range necessary to safely complete the transit. 
Enforcement periods would be announced over marine band VHF channel 16 
prior to enforcement to ensure ample public notification. The safety 
zone moves with the dead-ship tow of the S/V FALLS OF CLYDE while in 
transit between the Honolulu Harbor main entrance channel commencing at 
a line between channel buoys no. 1 and no. 2 and up to 12 nautical 
miles off shore of Oahu, HI. The safety zone becomes fixed if the S/V 
FALLS OF CLYDE is anchored, position-keeping, or moored during any part 
of the aforementioned transit.
    The S/V FALLS OF CLYDE is easy to recognize because it is a steel 
hulled, 280' in length, 40' at the beam, with four white colored masts, 
no sails or rigging, and the hull is painted with solid, horizontal, 
bands of black paint on the top third starting at the railings, grey 
paint in the middle, then red paint on the lower third towards the 
bottom, and a small thin horizontal stripe of yellow paint between the 
black and grey bands.
    In accordance with the general regulations in 33 CFR Part 165, 
Subpart C, no person or vessel would be permitted to enter or remain in 
the zone except for support vessels/aircraft and support personnel, or 
other vessels authorized by the Captain of the Port or the District 
Commander. The Captain of the Port will cause notice of the enforcement 
of the safety zone described in this section to be made by broadcast 
notice to mariners. Any Coast Guard commissioned, warrant, or petty 
officer, and any other Captain of the Port representative permitted by 
law, may enforce the zone. Vessels, aircraft, or persons in violation 
of this proposed rule would be subject to the penalties set forth in 33 
U.S.C. 1232 and 50 U.S.C. 192.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders. This rule is not a 
``significant regulatory action'' under Sec.  3(f) of Executive Order 
12866, Regulatory Planning and Review, and does not require an 
assessment of potential costs and benefits under Sec.  6(a)(3) of that 
Order. The Office of Management and Budget has not reviewed it under 
that Order.

Regulatory Planning and Review

    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. The Coast Guard expects the economic 
impact of this rule to be so minimal that a full Regulatory Evaluation 
under the regulatory policies and procedures of DHS is unnecessary. 
This expectation is based on the limited duration of the zone, the 
limited geographic area affected by it, and its ability to move with 
the vessel(s) in transit.

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. We expect that there will be little or no

[[Page 51364]]

impact to small entities due to the narrow scope and nature of this 
safety zone. Also, vessel traffic will be allowed to pass safely around 
this moving safety zone. Additionally, before the effective period, we 
will issue maritime advisories widely available to users of the 
Honolulu Harbor, HI.

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 the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

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 effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards 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 Department of Homeland Security 
Management Directive 5100.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
under the Instruction that there are no factors in this case that would 
limit the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, under figure 2-1, paragraph (22) of the 
Commandant Instruction M16475.1D, this rule is categorically excluded 
from further environmental documentation because this rule establishes 
a temporary moving safety zone and for less than 24 hours in duration.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Safety measures, and 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, 3306, 
3703; 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 Sec.  165.T14-172 to read as follows:


Sec.  165.T14-172  Safety Zone; Waters Surrounding S/V FALLS OF CLYDE, 
HI.

    (a) Location. The following area, in U.S. navigable waters within 
the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10), from the 
surface of the water to the ocean floor, is a safety zone: All waters 
extending 500 yards in all directions from the S/V FALLS OF CLYDE and 
her tow vessel(s) during transit from the Honolulu Harbor main channel 
commencing at a line between channel buoys no. 1 and no. 2 to 12

[[Page 51365]]

nautical miles off shore of Oahu, HI. The safety zone moves with the S/
V FALLS OF CLYDE and her tow vessel(s) while they are in transit and 
becomes fixed when the S/V FALLS OF CLYDE is anchored, position-
keeping, or moored.
    (b) Effective period. This section is effective from 12:01 a.m. on 
September 2, 2008 through 11:59 p.m. on October 2, 2008.
    (c) Regulations. The general regulations governing safety zones 
contained in 33 CFR 165.23 apply. Entry, transit, or anchoring within 
this zone is prohibited unless authorized by the Captain of the Port 
Honolulu or the District Commander.
    (d) Enforcement. The Coast Guard will begin enforcement of the 
safety zone described in this section upon the S/V FALLS OF CLYDE 
passing the Honolulu Harbor main entrance channel at buoys no. 1 and 
no. 2 of the U.S. navigable waters within the Honolulu Captain of the 
Port Zone.
    (e) Informational notice. The Captain of the Port Honolulu will 
ensure notice of the enforcement of the safety zone described in this 
section is communicated by broadcast notice to mariners.
    (f) Authority to enforce. Any Coast Guard commissioned, warrant, or 
petty officer, and any other Captain of the Port representative 
permitted by law, may enforce this temporary safety zone.
    (g) Waiver. The Captain of the Port may waive any of the 
requirements of this rule for any person, vessel, or class of vessel 
upon finding that application of the safety zone is unnecessary or 
impractical for the purpose of maritime security.
    (h) Penalties. Vessels or persons violating this rule are subject 
to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: August 20, 2008.
B.A. Compagnoni,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. E8-20361 Filed 9-2-08; 8:45 am]

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