[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Rules and Regulations]
[Pages 17751-17754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06259]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0195]
RIN 1625-AAOO


Safety Zone; Mamala Bay, Honolulu, HI--Voluntary First Amendment 
Zone

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within Mamala Bay, Honolulu Hawaii. The safety zone is 
needed to protect personnel and vessels who may want to exercise their 
First Amendment in the vicinity of Honolulu Harbor and Honolulu 
Channel. Entrance into the safety zone does not require notification to 
the COTP or the COTP's designated representative; however persons or 
vessels operating within the safety zone shall travel at the minimum 
speed necessary to maintain a safe course. Addtionally, each person in 
the safety zone must comply with all lawful orders or directions given 
to them by the COTP or the COTP's designated representative. Vessels 
wishing to enter the safety zone will not be allowed to cross an active 
security zone and should make alternative arrangements if necessary.

DATES: This rule is effective without actual notice from March 31, 2020 
through 11:59 p.m. April 17, 2020. For the purposes of enforcement, 
actual notice will be used from March 20, 2020 through March 31, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0195 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket

[[Page 17752]]

Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LCDR Joshua Williams, Chief of Waterways Management, 
Sector Honolulu, U.S. Coast Guard; telephone 808-541-4359, email 
Joshua.B.Williams@uscg.mil.

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 Information and Regulatory History

    The Coast Guard is issuing this temporary 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 immediate action is needed to protect 
the public exercising their First Amendment rights in an area that a 
large passenger vessel will need to transit, and therefore publishing 
an NPRM is impracticable and contrary to public interest.
    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. Delaying the effective date of 
this rule would be impracticable because immediate action is needed to 
allow inviduals a safe location to exercise their First Amendment 
rights.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) 
Honolulu believes that given the nature of the First Amendment activity 
expected and the likely type of vessels used by individuals desiring to 
express their First Amendment rights--namely kayaks and other small 
vessels--the safety zone designating a voluntary First Amendment Area 
is necessary to ensure the safety of those vessels and persons who 
choose to express their views safely and without interference from, or 
interfering with, other maritime traffic.

IV. Discussion of the Rule

    From March 20, 2020 through April 17, 2020 there could be a number 
of large passenger vessels calling on the port of Honolulu. During 
these historic times taking place around the United States, there are 
individuals who have the desire to exercise their First Amendment 
rights. Therefore, this safety zone is located within the COTP zone 
(See 33 CFR 3.70-10) and will encompass an area beginning at a point 
21[deg]17'52'' N, 157[deg]52'61'' W near the shore of Sand Island, 
thence West to a point 21[deg]17'52'' N, 157[deg]52'77'' W, thence 
South to a point 21[deg]17'37'' N, 157[deg]52'77'' W near the coastal 
waters of Mamala Bay, thence East to a point 21[deg]17'37'' N, 
157[deg]52'61'' W, thence to the beginning point. This zone extends 
from the surface of the water to the ocean floor, while large passenger 
vessels are transiting Honolulu channel. Entrance into the safety zone 
does not require notification to the COTP or the COTP's designated 
representative; however persons or vessels operating within the safety 
zone shall travel at the minimum speed necessary to maintain a safe 
course. Additionally, those in the safety zone must comply with all 
lawful orders or directions given to them by the COTP or the COTP's 
designated representative. Vessels wishing to enter the safety zone 
will not be allowed to cross an active security zone and should make 
alternative arrangements if necessary.
    While the Coast Guard is concerned about any security threats to 
the areas described above, the Coast Guard is likewise committed to 
ensuring that individuals who wish to express their opinions on any 
issue during these large passenger vessel transits, have the means to 
do so in a manner that protects them and other vessels operating on 
Mamala Bay and surrounding waters. Therefore, this safety zone is 
located within the COTP zone (See 33 CFR 3.70-10) and will encompass an 
area beginning at a point 21[deg]17'52'' N, 157[deg]52'61'' W near the 
shore of Sand Island, thence West to a point 21[deg]17'52'' N, 
157[deg]52'77'' W, thence South to a point 21[deg]17'37'' N, 
157[deg]52'77'' W near the coastal waters of Mamala Bay, thence East to 
a point 21[deg]17'37'' N, 157[deg]52'61'' W, thence to the beginning 
point, wherein the Coast Guard will allow demonstrators or any 
individual who wishes to express their views. This area is being 
established to allow individuals expressing their views the means to do 
so in a safe manner to their intended audience without posing an undue 
risk to maritime safety. After analyzing maritime traffic patterns and 
other environmental factors, the Coast Guard is requiring that any 
persons or vessels permitted to operate within the safety zone shall 
travel at the minimum speed necessary to maintain a safe course. The 
navigation rules shall apply at all times within the safety zone. 
Anchoring is prohibited within this zone.

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 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. Executive Order 13771 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, this rule 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.
    This regulatory action determination is based on the size, 
location, duration, and time of year of the safety zone. Vessel traffic 
will be able to safely transit around the safety zone; the zone will 
impact a small designated area and will be enforced only during the 
event and event-related activities. The safety zone will be in a 
location where commercial vessel traffic is expected to be minimal 
during enforcement; commercial vessel traffic will be authorized to 
transit the safety zone to the extent compatible with public safety and 
security. Persons and vessels will be able to operate in the 
surrounding area adjacent to the zone during the enforcement period, 
and will be able to enter within the safey zone if authorized by the 
Captain of the Port Honolulu or a designated representative. Moreover, 
the Coast Guard will issue a Broadcast to Mariners via VHF-FM maine 
channel 16 about 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

[[Page 17753]]

term ``small entities'' comprises small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. The Coast Guard certifies under 5 
U.S.C. 605(b) that this rule will not have a significant economic 
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 
call or email 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.

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 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning COMDTINST 5090.1 (series), 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 
safety zone enforced intermittently between March 20, 2020 through 
April 17, 2020 that will prohibit entry into an area beginning at a 
point 21[deg]17'52'' N, 157[deg]52'61''W near the shore of Sand Island, 
thence West to a point 21[deg]17'52'' N, 157[deg]52'77'' W, thence 
South to a point 21[deg]17'37'' N, 157[deg]52'77'' W near the coastal 
waters of Mamala Bay, thence East to a point 21[deg]17'37'' N, 
157[deg]52'61'' W, thence to the beginning point. It is categorically 
excluded from further review under paragraph L60(d) of Appendix A, 
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of 
Environmental Consideration supporting this determination is available 
in the docket. For instructions on locating the docket, see the 
ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to call or email 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:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Secruity Delegation No. 0170.1.


0
2. Add Sec.  165.T14-0195 to read as follows:


Sec.  165.T14-0195   Safety Zone; Pacific Ocean, Mamala Bay, HI--
Voluntary First Amendment Zone

    (a) Location. The safety zone is located within the COTP Zone (See 
33 CFR 3.70-10) and will encompass all navigable waters at an area 
beginning at a point 21[deg]17'52'' N, 157[deg]52'61'' W near the shore 
of Sand Island, thence West to a point 21[deg]17'52'' N, 
157[deg]52'77'' W, thence South to a point 21[deg]17'37'' N, 
157[deg]52'77'' W near the coastal waters of Mamala Bay, thence East to 
a point 21[deg]17'37'' N, 157[deg]52'61'' W, thence to the beginning 
point. This zone extends from the surface of the water to the ocean 
floor.
    (b) Regulations. The general regulations governing safety zones 
contained in 33 CFR 165.23 apply to the safety zone created by this 
temporary final rule.
    (1) All persons are required to comply with the general regulations 
governing safety zones found in 33 CFR part 165.
    (2) Entry into or remaining in this zone does not require 
notification to the COTP or the COTP's designated representative; 
however persons or vessels operating within the safety zone shall 
travel at the minimum speed necessary to maintain a safe course. Under 
the general safety zone regulations in Sec.  [thinsp]165.23(d) of this 
part, each person in the safety zone must comply with all lawful orders 
or directions given to them by the COTP or the COTP's designated 
representative. Vessels wishing to enter the safety zone will not be 
allowed to cross an active security zone and should make alternative 
arrangements.

[[Page 17754]]

    (3) Persons desiring to transit the safety zone identified in 
paragraph (a) of this section may contact the COTP at the Command 
Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 
842-2642 or on VHF channel 16 (156.8 Mhz).
    (4) The U.S. Coast Guard may be assisted in the patrol and 
enforcement of the safety zone by Federal, State, and local agencies.
    (c) Notice of enforcement. The COTP Honolulu will cause Notice of 
the Enforcement of the safety zone described in this section to be made 
by Broadcast to the maritime community via marine safety broadcast 
notice to mariners on VHF channel 16 (156.8 MHz).
    (d) 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.
    (e) Enforcement period. This rule will be enforced interminttently 
from March 20, 2020, through 11:59 p.m. on April 17, 2020. If the 
safety zone is terminated prior to 11:59 p.m. on April 17, 2020, the 
Coast Guard will provide notice via a broadcast notice to mariners.

    Dated: March 20, 2020.
A.B. Avanni,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2020-06259 Filed 3-30-20; 8:45 am]
 BILLING CODE 9110-04-P


