[Federal Register Volume 82, Number 243 (Wednesday, December 20, 2017)]
[Proposed Rules]
[Pages 60341-60348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27297]


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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: Supplemental notice of proposed rulemaking.

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[[Page 60342]]

SUMMARY: On April 3, 2017, the Coast Guard published a notice of 
proposed rulemaking to establish a permanent safety zone surrounding 
the entry of lava from the Kilauea volcano into the Pacific Ocean on 
the southeast side of the Island of Hawaii, HI. The safety zone is 
needed to protect persons and vessels from the potential hazards 
associated with molten lava entering the ocean. After considering 
comments received from the public, the Coast Guard analyzed the 
economic impact of the proposed rule and made minor modifications to 
the proposed rule. This supplemental notice requests comments on the 
analysis and revised proposal.

DATES: Comments and related material must be received by the Coast 
Guard on or before February 20, 2018.

ADDRESSES: You may submit and view 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 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
IRFA Initial Regulatory Flexibility Analysis
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
RFA Regulatory Flexibility Act
Sec.  Section symbol
SNPRM Supplemental notice of proposed rulemaking
TFR Temporary final rule
U.S.C. United States Code

II. Background

    Lava flow that enters the ocean is 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 and vessels near active lava 
flow ocean-entry sites face potential hazards, which 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 the new lava delta collapsed into the ocean, producing 
waves and explosions of debris near 19[deg]19'12'' N, 155[deg]02'24'' W 
at the Kamokuna entry point. Following this collapse, portions of the 
adjacent sea cliff continued to collapse into the ocean, producing 
localized waves and showers of debris. The lava delta continues to 
undergo a series of formation and subsequent collapses as lava pours 
into the Pacific Ocean. Additionally, cracks parallel to the sea cliff 
in the surrounding area persist, indicating further collapses with very 
little or no warning are possible. As of March 2017, a new delta began 
to form at the Kamokuna ocean-entry point. As it continues to grow and 
collapse, cracks parallel to the sea cliff surrounding it persist, 
indicating the possibility of further collapses.
    On March 28, 2017, the Captain of the Port (COTP) Honolulu issued a 
temporary final rule (TFR) under docket USCG-2017-0172. The TFR was 
published in the Federal Register (82 FR 16109) on April 3, 2017 and an 
extension of the TFR was published in the Federal Register (82 FR 
45461) on September 29, 2017. The TFR established a safety zone to 
immediately protect persons and vessels from the potential hazards 
associated molten lava entering the ocean. The safety zone encompassed 
all waters extending 300 meters (984 feet) in every direction around 
all ocean-entry points of lava. The Coast Guard prohibited entry of 
persons or vessels into the safety zone, unless authorized by the COTP 
Honolulu, or his designated representative.
    In addition to the TFR, the Coast Guard also published a notice of 
proposed rulemaking (NPRM) on April 3, 2017, proposing to make the 
temporary safety zone a final rule. Its purpose was to mitigate the 
potential threats that molten lava posed to the maritime public when it 
entered the ocean by implementing the safety zone as a permanent 
control measure for vessels operating near the lava entry points. The 
NPRM addressed these concerns, and invited the public to comment during 
the comment period, which ended June 2, 2017. Subsequently, the Coast 
Guard extended the TFR to allow the Coast Guard to analyze the economic 
impact of the safety zone and allow for public comments on this 
supplemental NPRM. The TFR will remain in effect through March 28, 
2018, unless the COTP Honolulu cancels or modifies the TFR.

III. Legal Authority and Need for Rule

    The Coast Guard is proposing this SNPRM under authority in 33 
U.S.C. 1231. The COTP Honolulu has determined that there are potential 
hazards associated with the molten lava at the Kamokuna lava delta, 
which pose potential safety concerns for anyone within 300 meters of 
the ocean-entry point. The purpose of this proposed rule is to clarify 
the regulatory language for the entry requirements of the safety zone, 
and emphasize the safety concerns related to boating near lava ocean-
entry points. The regulatory text we are proposing appears at the end 
of this document. It differs from the text proposed in the NPRM, 
primarily in its discussion of enforcement and how to gain permission 
to enter the safety zone.
    This proposed rule would establish a permanent safety zone around 
the lava flow at the Kamokuna lava delta. Additionally, this proposed 
rule would allow the Coast Guard to impose and enforce restrictions on 
vessels operating near the lava flow that enters the ocean. This action 
is necessary to promote safe navigation, and to preserve the safety of 
life and property. Vessels capable of safely operating inside the 
safety zone may be authorized to enter by the COTP Honolulu, or his 
designated representative. Vessels approved for transiting within the 
safety zone, such as approved lava tour-boat operations, are required 
to adhere to specific conditions set by the COTP Honolulu. Mariners who 
seek first time authorization to enter the safety zone must submit a 
written request, by email or letter. The request must explain how the 
vessel will operate safely in proximity to lava. A typical request 
should note the vessel's condition, the operator's familiarity with the 
surrounding waters, and any specific safety practices for operating 
near the lava ocean-entry points. Once initial authorization is 
received, a vessel owner or operator only needs to contact COTP 
Honolulu by phone or radio to request permission to enter the safety 
zone.

IV. Discussion of Comments, Changes, and the Rule

    In response to the NPRM, the Coast Guard received 67 public 
comments. On May 8, 2017, at a public meeting held in Hilo, HI, meeting 
participants discussed the proposed rule as well as the dangers 
associated with lava ocean-

[[Page 60343]]

entry points. The public comments and meeting summary are available in 
the public docket for this proposed rule where indicated under 
ADDRESSES. Because several comments raised similar concerns, we will 
address the main comment topic, followed by our responses. Unless we 
receive recommendations for change during the SNPRM comment period, we 
plan to adopt the regulations proposed in the NPRM with minor 
modifications as reflected in this SNPRM. The SNPRM provides an 
additional comment period to shape the final regulatory action. 
Concerns received in the NPRM and this SNPRM will be addressed in the 
final rule.
    The Coast Guard received nine comments in support of the proposed 
rule. One commenter noted that he had taken a lava boat tour and felt 
that the vessel got too close to the entry point and that he 
experienced adverse health symptoms from being in the lava plume. 
Several commenters agreed that the safety zone should be consistent 
with that of the landside restriction of 300 meters. Other commenters 
supported the safety zone due to the hazards resulting from the entry 
of volcanic lava into the ocean.
    The Coast Guard received 18 comments regarding the safety zone's 
size and location. These comments ranged from being in favor of the 
300-meter safety zone as well as opposed. Nine opposing views stated 
that 300 meters is excessively restrictive. One comment from the 
National Oceanic Atmospheric Administration stated that the Coast Guard 
should ``provide definitive bounding coordinates for the safety zone, 
instead of a general statement that the safety zone will encompass all 
waters extending 300 meters in all directions around the entry point of 
lava flow into the ocean associated with the lava flow at the Kamokuna 
lava delta.''
    We believe that because of the unpredictable and varying nature of 
the active lava flowing into the ocean at this area, the Coast Guard 
cannot issue specific geographic coordinates of the safety zone in the 
final rulemaking, but will discuss the current entry site in the final 
rule. We have noted, with the concurrence of NOAA's Nautical Data 
Branch, Marine Chart Division, the position 19[deg]19'08'' N, 
155[deg]02'36'' W for their charting systems. That is the coordinate 
provided for Kamokuna Beach in the U.S. Geological Survey's Geographic 
Names Information System.
    Additionally, because of the varying dangers of the lava entry and 
fragile bench shelf development, the Coast Guard cannot provide a 
specific distance at which a vessel can safely operate. However, the 
COTP Honolulu has permitted vessels to operate within the 300-meter 
safety zone under certain conditions.
    The Coast Guard received one comment from Hawaii Volcanoes National 
Park supporting a safety zone ``that is flexible to account for 
whatever location the lava may occur since it is not a static event in 
time or space. As such, we recommend that the proposed rule apply not 
just to the Kamokuna ocean-entry point, but any location in the future 
where lava enters the ocean.''
    We agree, and the proposed final rule includes language stating 
that all locations associated with the Kilauea lava flow entering the 
Pacific Ocean on the eastern side of the Island of Hawaii, HI, are 
included under the safety zone.
    Sixteen commenters recommended that the Coast Guard reduce the 300-
meter radius of the safety zone.
    We believe that based on Sector Honolulu's review of the historical 
observations of delta collapses and ejecta distances from the Hawaii 
Volcano Observatory (HVO) records, a radius of 300 meters remains a 
safe and reasonable distance for a high-hazard zone for the general 
boating public. The Hawaiian Volcano Observatory reports that 
explosions from delta collapses ``have hurled hot rocks nearly a meter 
(yard) in size as far as about 250 m (273 yards) inland from the 
collapsed delta and scattered rock debris onshore over an area the size 
of several football fields. These explosions also hurl rocks seaward, 
probably to similar distances.'' \1\
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    \1\ https://volcanoes.usgs.gov/observatories/hvo/hawaii_ocean_entry.html.
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    The 300-meter safety zone also mirrors land and air restrictions 
for lava flow viewing. Furthermore, the 300 meter restriction was 
discussed at the public meeting held on this rulemaking and staff from 
the Hawaiian Volcano Observatory reiterated the need for a 300 meter 
restriction. Accordingly, the Coast Guard proposes to maintain the 
safety zone's 300-meter radius, with the option of allowing operators 
to request authorization to enter the safety zone from the COTP 
Honolulu.
    The Coast Guard received 30 comments in favor of allowing the lava 
tour-boat owners and operators to enter and operate in the safety zone.
    Prior to the NPRM, the Coast Guard promulgated a TFR for a 300-
meter safety zone at the Kamokuna lava delta. Pursuant to the TFR, the 
COTP Honolulu granted four lava tour-boat owners and operators and one 
photographer access to operate within the safety zone. We believe that 
because of the potential hazards associated with the active lava flow 
and cliff fragility at lava ocean-entry points, specific distances from 
the lava flow a vessel can safely operate cannot be provided. Under 
this proposed final rule, any vessel owner or operator may submit a 
written request to the COTP Honolulu, or his designated representative, 
for authorization to enter the safety zone. Such written requests must 
explain how the vessel will operate safely in proximity to lava. A 
typical request should note the vessel's condition, the operator's 
familiarity with the surrounding waters, and any specific safety 
practices for operating near the lava ocean-entry points. Once initial 
authorization is received, a vessel owner or operator only needs to 
contact COTP Honolulu by phone or radio to request permission to enter 
the safety zone.
    The Coast Guard received three comments regarding access or 
exclusive access to the lava flow by Hawaiian natives. This rule is 
concerned with the safety aspect of access to the lava flow area. 
Mandating exclusive access to the lava flow is outside the scope of 
this rulemaking and is outside the Coast Guard's authority. This 
proposed rule provides for access after requesting permission from the 
COTP to enter the zone. We encourage persons or vessel owners and 
operators seeking access to the safety zone to make their request by 
following the guidance above.
    The Coast Guard received one comment regarding the lack of reliable 
VHF radio communications near the lava flow area, thereby, preventing 
lava tour-boat owners and operators from hailing the Coast Guard via 
VHF radio.
    We are aware of the VHF radio limitations in this area, and are 
currently researching how to improve radio coverage. The COTP Honolulu 
and Coast Guard Base Honolulu are attempting to install equipment in 
the vicinity to enhance communications in this area. In the meantime, 
vessel owners and operators are encouraged to use alternate means to 
communicate effectively near the lava flow ocean-entry points. They are 
also encouraged to contact the Coast Guard in advance of their transits 
to the lava ocean-entry points in order to facilitate effective 
communications as well as timely processing any written request for 
authorization to enter the safety zone.
    The Coast Guard received four comments regarding general unsafe 
conditions at the boat ramp where tour operators launch.
    Boat ramps and associated safe boating concerns are a state 
management issue. We have forwarded

[[Page 60344]]

this comment to the appropriate state office.
    One comment proposed the safety zone be stationary, and move with 
the lava shelf, essentially creating a moving safety zone.
    Title 33 CFR 165.20 defines a safety zone as a water area to which, 
for safety purposes, access is limited to authorized persons or 
vessels. It further states that a safety zone may be stationary and 
described by fixed limits. We believe that in this situation, the entry 
point of the lava changes based on flow, and as such, the safety zone 
would encompass all waters extending 300 meters (984 feet) in all 
directions around the entry point of lava flow into the ocean. The 
Coast Guard does not define this as a moving safety zone around a 
moving object, but rather as a necessary adjustment to a dynamic 
environmental occurrence, which may have multiple lava entry points.
    The Coast Guard also received a comment stating that our 
certification under 5 U.S.C. 605(b), concerning the economic impact on 
small entities, was potentially arbitrary as it lacked any factual 
basis for the certification. This SNPRM includes an Initial Regulatory 
Flexibility Analysis (IRFA) in Section V. B. in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 601-612).
    The Coast Guard received two comments regarding Executive Order 
13771 (``Reducing Regulation and Controlling Regulatory Costs'') 
directing a reduction of the promulgation of new regulations. As 
discussed in the next section, this rule is exempt from this Executive 
order.

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 
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 regulatory approaches that 
maximize net benefits. Executive Order 13771, ``Reducing Regulation and 
Controlling Regulatory Costs,'' directs agencies to control regulatory 
costs through a budgeting process. This rule has not been designated a 
``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget (OMB) and pursuant to OMB guidance it is exempt from the 
requirements of Executive Order 13771. See OMB's Memorandum ``Guidance 
Implementing Executive Order 13771, Titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (April 5, 2017).
Costs
    This SNPRM proposes to make permanent the existing TFR safety zone 
for the navigable waters surrounding the entry of lava from Kilauea 
volcano into the Pacific Ocean. The safety zone would 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 lava delta on Kilauea 
volcano's south coast since July of 2016 and will continue to do so in 
the future. When lava enters the ocean, hazards emerge. The hazards 
include, but are not limited to, plumes of corrosive seawater, which 
can irritate the skin, eyes, and lungs; explosions of debris and 
scalding water, which can injure passengers; and sudden collapses of 
lava deltas, which can cause large waves potentially capsizing vessels. 
This SNPRM seeks to establish a minimum safe operating distance to 
protect individuals and vessel owners and operators from the hazards of 
the Kilauea lava flow at sea.
    Prior to the original TFR, any vessel could enter within 300 meters 
of the point where lava reaches the ocean. This SNPRM proposes to make 
permanent the original TFR so that any vessel wishing to enter the 
safety zone must request permission in writing to enter the safety zone 
from the COTP Honolulu.
    Therefore, this proposed rule affects any vessel that would 
normally travel within 300 meters of points where lava reaches the 
ocean. Due to the hazards and relative remoteness of such an area, the 
Coast Guard is not aware of any vessel operations within 300 meters of 
a point where lava enters the ocean other than those by lava tour-boat 
owners and operators. So far, the COTP Honolulu has granted four lava 
tour-boat owners and operators as well as one photographer 
authorization to enter the safety zone under certain conditions while 
the TFR is still in effect. These entities are required to notify the 
COTP Honolulu by phone before departing for each tour in which they 
plan on entering the 300-meter safety zone.
    When the Coast Guard published the original TFR concurrently with 
the NPRM on April 3, 2017, vessel owners and operators were required to 
prepare and submit a written request to the COTP Honolulu to enter the 
safety zone. Because this SNPRM is consistent with the requirements in 
the TFR, we are presenting the costs associated with this SNPRM.
    The written request requirement was contained in the previous TFR 
and each lava tour-boat owner and operator seeking authorization to 
enter the safety zone has complied. Based on discussions with COTP 
Honolulu personnel, we estimated it takes about 4-hours for a vessel 
owner or operator to submit a written request to enter the safety zone. 
This includes the time it would take lava tour-boat owners and 
operators to respond to questions from the COTP concerning the written 
request. Lava tour-boat owners and operators would only be required to 
make a written request once rather than for each voyage. The Coast 
Guard is not aware that any voyages were terminated due to a lack of 
authorization to enter the safety zone during the period operators 
requested to enter.
    We obtained the mean hourly wage rate for a captain of a lava tour-
boat from the May 2016 Bureau of Labor Statistics (BLS) Occupational 
Employment Statistics National Occupational Employment and Wage 
Estimates. Based on BLS' 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.\2\ 
Because this is an unloaded hourly wage rate, we added a load factor of 
1.52 derived from the May 2016 BLS ``Employer Cost for Compensation'' 
databases to obtain a loaded hourly wage rate of $37.12.\3\ Using this

[[Page 60345]]

information, we estimated the one-time initial cost for an owner or 
operator to prepare a written request and respond to comments from the 
Coast Guard to be about $148.47 ($37.12 per hour x 4 hours). Therefore, 
we estimated the total cost of the proposed rule on industry to be 
about $593.88 ($148.47 x 4 lava tour-boat owners or operators).
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    \2\ Captains, mates, and pilots may work in numerous industries. 
We use the BLS industry-specific mean hourly wage rate for the 
affected tour boat operators from the ``Scenic and Sightseeing 
Transportation, Water'' industry. See http://www.bls.gov/oes/2016/may/oes535021.htm.
    \3\ A loaded wage rate is what a company pays per hour to employ 
a person, not an hourly wage. The loaded wage rate includes the cost 
of benefits (health insurance, vacation, etc.). The load factor for 
wages is calculated by dividing total compensation by wages and 
salaries. For this analysis, we used BLS Employer cost of employee 
compensation/Transportation and Materials Moving Occupations, 
Private Industry Report (Series IDs, CMU2010000520000D and 
CMU2020000520000D) for all workers using the multi-screen data 
search. Using 2016 Q4 data for the cost of compensation per hour 
worked, we divided the total compensation amount of $28.15 by the 
wage and salary amount of $18.53 to obtain the load factor of about 
1.52, rounded. See the following websites: https://beta.bls.gov/dataQuery/find?fq=survey:[oe]s=popularity:D and https://data.bls.gov/cgi-bin/dsrv?cm. Multiplying 1.52 by $24.42, we 
obtained a loaded hourly wage rate of about $37.12, rounded.
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    Since all four lava tour-boat owners and operators (and one 
photographer, who this proposed rule would not affect) were each 
granted permission to enter the safety zone through an initial written 
request, the only potential cost to these lava tour-boat owners and 
operators would be the cost of the initial request. Each owner or 
operator would also be required to notify the COTP Honolulu by phone 
during the normal course of their duty before entering the safety zone. 
These entities shall notify the Coast Guard by phone; however, we did 
not estimate a cost for the call because the equipment already exists 
onboard the vessel.
    The Federal government would also incur costs of this proposed 
rule. Government costs to implement this proposed rule include the one-
time cost of reviewing the written requests (we did 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 Honolulu conducts this review 
in the normal course of the COTP duties). To process the written 
request, we estimated one non-commissioned officer with a rank of E-7, 
and three officers with ranks of O-4, O-5, and O-6 would take about one 
hour each to review the written request. Based on the labor rates 
listed in Table 1,\4\ we estimated the total cost of the proposed rule 
to the Federal government to be about $378.00.
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    \4\ 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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                              Rank                                   Wage rate      Labor hours     Total cost
----------------------------------------------------------------------------------------------------------------
E-7.............................................................             $65               1             $65
O-4.............................................................              92               1              92
O-5.............................................................             104               1             104
O-6.............................................................             117               1             117
                                                                 -----------------------------------------------
    Total.......................................................  ..............               4             378
----------------------------------------------------------------------------------------------------------------

    We estimated the total cost of this proposed rule to lava tour-boat 
owners and operators and the government to be about $972 ($593.88 for 
lava tour-boat owners or operators + $378 for the government).
Benefits
    Lava flow that enters the ocean is potentially hazardous and 
presents a danger to vessels navigating within close proximity of where 
the flow enters the ocean, particularly when lava deltas collapse.\5\ 
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.
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    \5\ A lava delta is new land that forms when lava accumulates 
above sea level and extends from an existing base of a sea cliff.
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    The primary benefit of this SNPRM is to promote safe navigation, 
and preserve the safety of life and property. If vessel operators wish 
to transit through the safety zone they will be required to first 
contact the COTP Honolulu for permission with an explanation of how 
their safety and lifesaving equipment is adequate to meet the greater 
risks present.

B. Impact on Small Entities

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the Coast Guard prepared this Initial Regulatory Flexibility 
Analysis (IRFA) that examines the impacts of the rule on small entities 
(5 U.S.C. 601 et seq.). Due to the proposed rule's anticipated impacts 
on small entities, the Coast Guard is including an analysis of the 
SNPRM requirements for informational purposes.
    A small entity may be: A small independent business, defined as 
independently owned and operated, is organized for profit, and is not 
dominant in its field per the Small Business Act (5 U.S.C. 632); a 
small not-for-profit organization (any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field); 
or a small governmental jurisdiction (locality with fewer than 50,000 
people) per the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612.
    An IRFA addresses the following:
    (1) A description of the reasons why action by the agency is being 
considered;
    (2) A succinct statement of the objectives of, and legal basis for, 
the rule;
    (3) A description of and, where feasible, an estimate of the number 
of small entities to which the rule would apply;
    (4) A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities that would be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record;
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap or conflict with the rule; 
and
    (6) A description of any significant alternatives to the rule that 
accomplish the stated objectives of applicable statutes and that 
minimize any significant economic impact of the rule on small entities.
    We address each of these six elements below:
    1. A description of the reasons why action by the agency is being 
considered.
    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 
foreseeable future. When lava enters the ocean, potential hazards 
emerge such as: Plumes of corrosive seawater can irritate the skin, 
eyes, and lungs; explosions of debris and scalding water can injure 
passengers; collapses of lava deltas can cause large waves potentially 
capsizing

[[Page 60346]]

vessels. Unless vessels have the proper equipment and their operators 
take sufficient precautions, passengers, and operators face significant 
hazards to their lives as well as property. This SNPRM is necessary to 
promote navigational safety, provide for the safety of life and 
property, and facilitate and accommodate the reasonable demands of 
commerce related to tourism surrounding the lava ocean-entry points.
    2. A succinct statement of the objective of, and legal basis for, 
the proposed rule.
    This safety zone proposes to protect the safety of mariners, lava 
tour-boat passengers, and the protection of property by establishing a 
300 meter safety zone from every direction and all points where lava 
enters the ocean.
    The Coast Guard is issuing this rule under 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. The COTP 
Honolulu has determined that potential hazards exist that are 
associated with Kilauea's active lava flow entry into the Pacific Ocean 
on the southeast side of the Island of Hawaii, HI. The Coast Guard 
considers this area to be a safety concern for anyone who transits 
within 300 meters (984 feet) in every direction and around all points 
where the lava flow enters the ocean. The objective of this proposed 
rule is to protect the public including mariners and passengers aboard 
lava tour-boat owners and operators traveling in the navigable waters 
inside the safety zone.
    3. A description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule would apply.
    This proposed rule affects any vessel that would normally travel 
within 300 meters of points where lava reaches the ocean. Due to the 
hazards and relative remoteness of such an area, the Coast Guard 
believes only lava tour operators would regularly operate within 300 
meters of a point where lava enters the ocean. Based on the Coast 
Guard's understanding, there are four known lava tour-boat owners and 
operators (and one photographer) who regularly come within 300 meters 
of the Kilauea lava flow.
    Of the four lava tour-boat owners and operators who would transit 
within the safety zone, we could not find publically available 
information such as annual revenues and number of employees for three 
of the four operators. We assumed these three operators qualified as 
small entities. We found revenue information on the fourth lava tour-
boat owner. Using Manta, a publicly available database for businesses 
in the United States, we found this lava tour-boat owner to have annual 
revenues of $220,000 and a NAICS code of 561520, ``Tour Operators.'' 
\6\ This NAICS code has a size threshold of $20.5 million for annual 
revenues, based on the Small Business Administration's table of size 
standards.\7\ Based on this information, this lava tour-boat operator 
also qualified as a small entity.
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    \6\ Accessed July 17, 2017 from https://www.manta.com.
    \7\ https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
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    Based on discussions with COTP Honolulu personnel and using the 
wage rates and labor hour estimates as established above, we estimated 
it would take about 4-hours for an owner or operator of a lava tour-
boat to prepare 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 written request. Lava 
tour-boat owners and operators would be only required to make this 
request once rather than for every voyage.
    Above we obtained a loaded hourly wage rate of $37.12 for captains, 
mates, and pilots of water vessels. We estimated the one-time initial 
cost for an owner or operator to prepare a written request and respond 
to comments from the Coast Guard to be about $148.47 ($37.12 per hour x 
4 hours). We estimated the total cost of the SNPRM to be about $593.88 
($148.47 x 4 lava tour-boat owners or operators).
    As mentioned above, we only found revenue data on one of the four 
operators. Therefore, we estimate the initial revenue impact of this 
proposed rule on this lava tour-boat owner to be about $148.47, which 
is 0.07% of the company's revenue. There are no annual revenue impacts 
because the written request needs to be made once, after which each 
lava tour-boat operator would notify the COTP Honolulu by phone to 
obtain permission to enter the safety on a given day.
    4. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities, which would be subject to 
the requirements and the type of professional skills necessary for 
preparation of the report or record.
    This proposed rule calls for no new collection of information under 
the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
    5. An identification, to the extent practicable, of all relevant 
Federal rules, which may duplicate, overlap, or conflict with the rule.
    There are no relevant Federal rules that duplicate, overlap, or 
conflict with this SNPRM.
    6. A description of any significant alternatives to the rule which 
accomplish the stated objectives of applicable statutes and which 
minimize any significant economic impact of the rule on small entities.
    The Coast Guard considered the alternative of not establishing a 
safety zone. However, without a safety zone, vessel owners and 
operators would be unprepared for the greater hazards that are present 
near the Kilauea lava flow ocean-entry point. These vessel owners and 
operators and passengers could suffer grave injury or in the extreme 
case death, in addition to damage to or loss of property, if adequate 
protection is not provided. Therefore, the Coast Guard decided a safety 
zone was necessary to promote navigational safety, provide for the 
safety of life and property, and to accommodate and facilitate the 
reasonable demands of commerce relating to tourism surrounding the lava 
entry points. No cost to industry or government would be associated 
with this alternative; nevertheless, we rejected this alternative 
because it would not ensure that the boating public would operate 
within a safe distance of where the lava flow enters the ocean.
    Therefore, 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. We are interested in the 
potential impacts from this proposed rule on small businesses and we 
request public comment on these potential impacts. If you think that 
this proposed rule would have a significant economic impact on you, 
your business, or your organization, please submit a comment to the 
docket at the address under ADDRESSES in the proposed rule. In your 
comment, explain why, how, and to what degree you think this rule would 
have an economic impact on you.

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

[[Page 60347]]

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 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, 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 establishing a safety zone that would 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 L60(a) of Appendix A, Table 1, of DHS 
Instruction Manual 023-01-001-01, Rev. 01. 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 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.

VI. 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.
    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 are 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 website'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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and 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 Captain of 
the Port (COTP) Honolulu Zone (See 33 CFR 3.70-10) and encompasses all 
primary areas 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 may 
change based on flow. The safety zone encompasses all waters extending 
300 meters (984 feet) in all directions around entry points of lava 
flow into the ocean associated with the lava flow at the Kamokuna lava 
delta.
    (b) Definitions. As used in this section, designated representative 
means any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the COTP Honolulu to assist in enforcing the safety 
zone described in paragraph (a).
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to the safety zone created by this 
notice of proposed rulemaking.
    (1) All persons and vessels are required to comply with the general 
regulations governing safety zones found 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 enter the safety zone identified 
in paragraph (a) should submit a written request to the COTP Honolulu 
before initial entry into the safety zone. The request must explain how 
the vessel will operate safely in proximity to lava. A typical request 
should note the vessel's condition, the operator's familiarity with the 
surrounding waters, and any specific safety practices for operating 
near the lava ocean-entry points. Persons authorized initial entry may, 
thereafter, contact the COTP Honolulu through his designated 
representatives at the Command Center via telephone:

[[Page 60348]]

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.
    (4) 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 transiting through or in the safety zone as well as 
maintain a safe distance from the lava hazards.
    (5) 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. The Coast Guard vessels enforcing this 
section can be contacted on marine band radio VHF-FM channel 16 (156.8 
MHZ). The COTP and his or her designated representatives can be 
contacted at telephone number listed in (c)(3) of this section.
    (6) The Coast Guard may be assisted in the patrol and enforcement 
of the safety zone by Federal, State, and local agencies.

    Dated: December 13, 2017.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-27297 Filed 12-19-17; 8:45 am]
 BILLING CODE 9110-04-P


