83_FR_21968 83 FR 21876 - Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI

83 FR 21876 - Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI

DEPARTMENT OF HOMELAND SECURITY
Coast Guard

Federal Register Volume 83, Issue 92 (May 11, 2018)

Page Range21876-21883
FR Document2018-10049

The Coast Guard is establishing a permanent safety zone surrounding the area of entry of lava from the Kilauea volcano into the Pacific Ocean on the southeast side of the Island of Hawaii, HI. This action is necessary to protect persons and vessels from the potential hazards associated with molten lava entering the ocean. This regulation prohibits persons and vessels from being in the safety zone during active lava flow reaching the Pacific Ocean on Kilauea volcano's southeast coast unless specifically authorized by the Captain of the Port Honolulu or a designated representative.

Federal Register, Volume 83 Issue 92 (Friday, May 11, 2018)
[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21876-21883]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-10049]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone 
surrounding the area of entry of lava from the Kilauea volcano into the 
Pacific Ocean on the southeast side of the Island of Hawaii, HI. This 
action is necessary to protect persons and vessels from the potential 
hazards associated with molten lava entering the ocean. This regulation 
prohibits persons and vessels from being in the safety zone during 
active lava flow reaching the Pacific Ocean on Kilauea volcano's 
southeast coast unless specifically authorized by the Captain of the 
Port Honolulu or a designated representative.

DATES: This rule is effective without actual notice May 11, 2018. For 
purposes of enforcement, actual notice will be used if active lava 
associated with the Kilauea activity enters into the Pacific Ocean 
prior to May 11, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0234 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
FRFA Final regulatory flexibility analysis
HVO Hawaii Volcano Observatory
IRFA Initial regulatory flexibility analysis
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec.  Section symbol
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

    Molten lava 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, including--
     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 began entering the ocean at the Kamokuna lava delta on Kilauea 
volcano's south coast in July 2016. Lava continued to enter the ocean 
at the Kamokuna lava delta from July 2016 to mid-November 2017.
    Ocean safety concerns began on December 31, 2016, when a large 
portion of the new lava delta collapsed into the ocean, producing waves 
and explosions of debris at 19[deg]19'12'' N, 155[deg]02'24'' W near 
the Kamokuna entry point. Following this collapse, portions of the 
adjacent sea cliff continued to collapse into the Pacific Ocean, 
producing localized waves and showers of debris.
    In March 2017, a new delta began to form at the Kamokuna ocean-
entry point, and from March 2017 to July 2017, several collapses of the 
lava bench were observed by National Park Service and Hawaiian Volcano 
Observatory (HVO) staff. Beginning in the middle of November 2017, the 
lava flow slowed down and subsequently stopped entering the ocean, and 
as of March 2018, the lava flow remains inactive.
    Though the Kamokuna lava delta is not currently active, this region 
and associated coastline remains hazardous both to visitors on land and 
to the boating public due to active seismic and lava activity 
associated with the Kilauea lava flow. According to the HVO, which is 
part of the U.S. Geological Survey and responsible for monitoring 
volcanoes and earthquakes in Hawaii, the lava delta remains unstable 
and resumed ocean lava flow is realistic. Hazards to the public include 
hot gases, lava, scalding water, unstable vertical sea

[[Page 21877]]

cliffs and possible sudden explosions should the lava delta begin to 
collapse. Additionally, cracks parallel to the sea cliff in the 
surrounding area indicate that further collapses with little or no 
warning are possible. Therefore, the safety zone remains relevant. When 
the safety zone is being enforced, access into the safety zone can 
still be requested to the Captain of the Port (COTP) Honolulu.
    On March 28, 2017, the COTP Honolulu issued a temporary final rule 
(TFR) under docket number USCG-2017-0172. The TFR established a safety 
zone to immediately protect persons and vessels from the potential 
hazards associated with 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.
    The TFR was published in the Federal Register (82 FR 16109) on 
April 3, 2017. A six-month extension of the TFR was published in the 
Federal Register (82 FR 45461) on September 29, 2017, extending the TFR 
through March 28, 2018. The TFR extension allowed the Coast Guard to 
analyze the economic impact of the safety zone and provide for 
additional public comment.
    On April 3, 2017, the Coast Guard also published a notice of 
proposed rulemaking (NPRM) in the Federal Register (82 FR 16142), which 
proposed to make the temporary safety zone a final rule, and invited 
the public to comment during the comment period. During this comment 
period, which ended June 2, 2017, we received 67 comments.
    On May 8, 2017, we held a public meeting in Hilo, HI, that allowed 
local citizens and small businesses affected by the TFR to discuss the 
lava safety concerns, the safety zone impact, and the impact the 
proposed rule would have on ocean users. Participants were encouraged 
to submit formal feedback to the rulemaking docket.
    On December 20, 2017, the Coast Guard published a supplemental 
notice of proposed rulemaking (SNPRM) in the Federal Register (82 FR 
60341). Its purpose was to address additional concerns related to the 
potential impact of the safety zone on small entities should lava flow 
resume. Lava flow entering the ocean ended in November, 2017. The SNPRM 
addressed the past and future concerns, and invited the public to 
further comment during the comment period, which ended February 20, 
2018. During this comment period, we received two comments that were 
not germane to the rulemaking and only one from the 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. Delaying the effective date of 
this rule would be impracticable because immediate action is needed due 
to recent volcanic activity. Active eruption of lava and gas has 
recently commenced and continues from Kilauea Volcano. On Friday, May 
4, 2018, a magnitude 6.9 earthquake was measured in the region and HVO 
advises that more should be expected with a larger aftershocks 
potentially producing rockfalls, localized tsunamis, and associated ash 
clouds. High levels of lava and volcanic gas including Sulphur Dioxide 
are being emitted from the fissure vents. In consideration of the 
events, safety hazards and concerns, the Coast Guard finds that good 
cause exists for making this regulation effective immediately. This 
rule is needed to protect personnel and vessels in the navigable waters 
with the safety zone.

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 there are potential hazards 
associated with the molten lava at the Kamokuna lava delta or future 
locations associated with the Kilauea lava flow, which pose potential 
safety concerns for anyone within 300 meters of the ocean-entry point.
    The purpose of this rule is to establish a permanent safety zone 
around the lava flow entry area associated with the Kilauea lava delta 
entry coastline to mitigate ocean hazards during times when lava is 
entering the ocean. Additionally, this rule allows the Coast Guard to 
impose and enforce restrictions on vessels operating near the lava flow 
that enters the ocean as the Coast Guard determines necessary. 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 during active lava ocean entry are required to adhere to 
specific conditions set by the COTP Honolulu. Mariners who seek initial 
authorization to enter the safety zone when there is active lava ocean 
entry 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. In addition to both the NPRM and the public meeting held in 
Hilo, HI, on May 8, 2017, we published a SNPRM to further address 
economic impacts on small entities potentially affected by the safety 
zone. The Coast Guard received two public comments on the SNPRM, 
neither of which were germane to the rulemaking. All public comments 
and the public meeting summary are available in the docket for this 
rulemaking where indicated under ADDRESSES.
    Based on all the comments received, the Coast Guard adopts the rule 
as proposed in the NPRM and supplemented in the SNPRM as 33 CFR 
165.1414 without major change. After review of the SNPRM proposed 
language, we made a minor edit to paragraph (c) to clarify that this is 
no longer proposed language. In paragraph (c)(2), we also further 
clarify that entry into or remaining in this safety zone, when 
enforced, is prohibited unless authorized by the COTP Honolulu or his 
designated representative. This clarification is necessary to highlight 
that when lava is not a threat to mariners, the safety zone is not 
enforced. Finally, in paragraph (c)(3), we added further clarification 
that notice for entry into the safety zone is necessary only when the 
safety zone is enforced.
    We received nine comments on the NPRM 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 to being opposed.

[[Page 21878]]

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 or Kilauea crater.''
    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 rule, but will note the current entry site and update for future 
sites. We note, with the concurrence of NOAA's Nautical Data Branch, 
Marine Chart Division, the position 19[deg]19'08'' N, 155[deg]02'36'' 
W. These are the coordinates provided for Kamokuna Beach in the U.S. 
Geological Survey's Geographic Names Information System. Future lava 
entry locations may vary from the Kamokuna Beach location.
    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 when the safety zone is actively 
enforced.
    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,'' and a recommendation ``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 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 HVO records, 
a radius of 300 meters remains a safe and reasonable distance for a 
high-hazard zone for the general boating public. The HVO 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, HVO staff reiterated the need for a 
300-meter safety zone at the public meeting held on this rulemaking. 
Accordingly, the Coast Guard will 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.
    Under this 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. 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. If lava 
begins to flow into the ocean again, these tour operators will be 
granted renewed 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. When the safety zone is enforced, this 
rule provides guidance for requesting permission to enter the safety 
zone from the COTP Honolulu or his designated representative.
    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 and departure in order to facilitate 
effective communications as well as the timely processing of 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 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. An initial regulatory flexibility analysis 
in accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-
612, was conducted through an SNPRM, which allowed for public comment. 
The Coast Guard received no comments on the initial regulatory 
flexibility analysis (IRFA).
    The Coast Guard received two comments regarding Executive Order 
13771, Reducing Regulation and

[[Page 21879]]

Controlling Regulatory Costs, which directs a reduction of the 
promulgation of new regulations. As discussed in the following 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 13563, Improving Regulation and Regulatory Review, 
and 12866, Regulatory Planning and 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 (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). 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.''
    The Office of Management and Budget (OMB) has not designated this 
rule a ``significant regulatory action,'' under section 3(f) of 
Executive Order 12866. Accordingly, OMB has not reviewed it. As this 
rule is not a significant regulatory action, this rule 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).
    We only received one public comment on the SNPRM and it was beyond 
the scope of this regulation. Therefore, we adopt the preliminary 
regulatory analysis for the proposed rule as final. A summary of that 
analysis follows.
    This regulatory analysis provides an evaluation of the economic 
impacts associated with this final rule. The Coast Guard is issuing a 
final rule to ensure 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. In 
order to mitigate the potential costs of this rule, the Coast Guard has 
and will continue to issue exemptions to mariners that can demonstrate 
a level of safety sufficient for the additional hazards present where 
lava enters the ocean.
    In November 2017, lava ceased flowing from Kilauea volcano into the 
Pacific Ocean. Consequently, the Coast Guard has temporarily stopped 
enforcing the safety zone. In the final rule, we added regulatory text 
clarifying that the regulation is only enforced when lava is actively 
flowing into the ocean. This change will not impose any economic costs 
on any mariners or members of the public because it does not create any 
requirements. Other than changes clarifying that the safety zone is 
enforced as long as lava flows into the ocean, we made no further 
changes to the regulatory text.
    Table 1 provides a summary of the affected population, costs, and 
benefits of this rule.

              Table 1--Summary of Impacts of the Final Rule
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                 Category                              Summary
------------------------------------------------------------------------
Affected population.......................  4 tour boat operators.
Costs to industry.........................  593.88.
Costs to government.......................  378.00.
Total costs...............................  971.88.
Unquantified benefits.....................  Protection from unsafe
                                             operations where vessels
                                             enter the safety zone.
------------------------------------------------------------------------

Affected Population
    This final rule makes permanent the existing TFR safety zone for 
the navigable waters surrounding the entry of lava from Kilauea volcano 
into the Pacific Ocean. The TFR restricted access to those vessels that 
contacted the COTP Honolulu and requested permission to enter the 
temporary safety zone.
    Therefore, this 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 the area, the Coast Guard is not 
aware of any vessel operations within 300 meters of where lava enters 
the ocean other than those conducted by lava tour-boat owners and 
operators. While the TFR was still in effect, the COTP Honolulu granted 
four lava tour-boat owners and operators and one photographer 
authorization to enter the safety zone under certain conditions. When 
lava reenters the safety zone, these four tour operators will 
constitute the affected population because the Coast Guard does not 
believe other entities are likely to operate near the safety zone.
Costs
    Under the TFR, published 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 
the requirements of this final rule are consistent with the 
requirements in the TFR, we are presenting the costs associated with 
the TFR in this final rule. Tour operators that previously applied will 
be grandfathered in and permitted to operate in the safety zone when 
the lava flow returns in the future. Additional operators that wish to 
enter the safety zone will need to submit written requests to the COTP 
Honolulu. The Coast Guard is not aware of any additional individuals 
that are likely to request access to enter the safety zone in the 
future.
    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 complied. Based on discussions with COTP Honolulu 
personnel, we estimated it takes about four 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

[[Page 21880]]

hourly wage rate, we added a load factor of 1.52 derived from the May 
2016 BLS ``Employer Cost for Compensation'' database to obtain a loaded 
hourly wage rate of $37.12.\3\ Using this 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 $148.47.\4\ 
Therefore, we estimated the total cost of the proposed rule on tour 
operators to be $593.88.\5\
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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 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 $37.12, rounded.
    \4\ $37.12 x 4 hours.
    \5\ $148.47 x 4 tour operators.
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    Since all four lava tour-boat owners and operators were each 
granted permission to enter the safety zone through an initial written 
request, the only cost to these lava tour-boat owners and operators was 
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 duties before entering the safety zone. We did not estimate a 
cost for the call because the equipment already exists onboard each 
vessel and the time cost is minimal. The total costs to industry are 
therefore $593.88.
    Government costs to implement this 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 when entering the 
safety zone because the COTP Honolulu conducts this review in the 
normal course of duties and the time requirements are minimal. To 
process the written requests, 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 2,\6\ we estimated the total cost of 
the rule to the Federal government to be $378.00.
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    \6\ We obtained the hourly wage rates for government personnel 
from Enclosure (2) of Commandant Instruction 7310.1R (29 March 2017) 
using the ``In Government Rate.''

                           Table 2--Total Government Costs of the Temporary Final Rule
----------------------------------------------------------------------------------------------------------------
                              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 rule to lava tour-boat owners 
and operators and to the Federal government to be $971.88.\7\
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    \7\ $593.88 in costs to industry + $378 in costs to the Coast 
Guard.
---------------------------------------------------------------------------

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. 
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. The primary benefit of this rule is to promote safe 
navigation, and preserve the safety of life and property by ensuring 
that vessel operators are prepared for the greater risks present where 
lava enters the ocean. 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

    The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 94 Stat. 1164 
(codified at 5 U.S.C. 601-612)) establishes ``as a principle of 
regulatory issuance that agencies shall endeavor, consistent with the 
objectives of the rule and of applicable statutes, to fit regulatory 
and informational requirements to the scale of the businesses, 
organizations, and governmental jurisdictions subject to regulation. To 
achieve this principle, agencies are required to solicit and consider 
flexible regulatory proposals and to explain the rationale for their 
actions to assure that such proposals are given serious 
consideration.'' \8\
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    \8\ See RFA section 2(b), 94 Stat. 1164, 1165.
---------------------------------------------------------------------------

    When an agency promulgates a final rule under section 553 of the 
Administrative Procedure Act Administrative Procedure Act, after being 
required by that section or any other law to publish a general notice 
of proposed rulemaking, the agency must prepare a FRFA or have the head 
of the agency certify pursuant to RFA section 605(b) that the rule will 
not, if promulgated, have a significant economic impact on a 
substantial number of small entities. The RA prescribes the content of 
the FRFA, which we discuss below.
    In accordance with the RFA, the Coast Guard prepared this FRFA that 
examines the impacts of the final rule on small entities. 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 (15 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).
    This FRFA addresses the following:
    (1) A statement of the need for, and objectives of, the rule;
    (2) A statement of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
statement of the assessment of the agency of such issues, and a 
statement of any changes made in the proposed rule as a result of such 
comments;
    (3) The response of the agency to any comments filed by the Chief 
Counsel for

[[Page 21881]]

Advocacy of the SBA in response to the proposed rule, and a detailed 
statement of any change made to the proposed rule in the final rule as 
a result of the comments;
    (4) A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available;
    (5) A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record;
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    Below is a discussion of FRFA analysis by each of these six 
elements:
    (1) A statement of the need for, and objectives of, the rule.
    Lava entered the ocean at Kamokuna on Kilauea volcano's south coast 
between July of 2016 and November of 2017. Lava will continue to enter 
the ocean again 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 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 rule 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.
    This safety zone will ensure 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.
    (2) A statement of the significant issues raised by the public 
comments in response to the IRFA, a statement of the assessment of the 
agency of such issues, and a statement of any changes made in the 
proposed rule as a result of such comments.
    We only received one public comment which was beyond the scope of 
the rule; therefore, we made no changes to the proposed rule as a 
result of public comments.
    (3) The response of the agency to any comments filed by the Chief 
Counsel for Advocacy of the SBA in response to the proposed rule, and a 
detailed statement of any change made to the proposed rule in the final 
rule as a result of the comments.
    We received no comments the Chief Counsel for Advocacy of the SBA.
    (4) A description of and an estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
estimate is available.
    This 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 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.'' 
\9\ 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.\10\ Based on this information, this lava tour-boat operator 
also qualified as a small entity.
---------------------------------------------------------------------------

    \9\ Accessed July 17, 2017 from https://www.manta.com/c/mb05066/kalapana-cultural-tours-inc.
    \10\ https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
---------------------------------------------------------------------------

    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 four 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. We estimated the 
total cost of the rule on tour operators to be about $593.88.
    As mentioned above, we only found revenue data on one of the four 
operators. Therefore, we estimate the initial revenue impact of this 
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.
    (5) A description of the projected reporting, recordkeeping and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
    (6) A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    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

[[Page 21882]]

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.
    Alternatively, the Coast Guard could have instituted a safety zone 
without permitting any entry into the safety zone. This alternative 
would have imposed substantial cost onto the four small entity tour 
operators. As a result, the Coast Guard did not select this 
alternative.
    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 establishing a safety zone that would prohibit persons 
and vessels from entry into the 300-meter (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 specified environmental impact from 
this 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.

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:  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 Kilauea active lava flow.
    (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) of this section.
    (c) Regulations. The general regulations governing safety zones 
contained in Sec.  165.23 apply to this safety zone.
    (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 when enforced 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) of this section should submit a written request to the 
COTP Honolulu before initial entry into the safety zone when the Coast 
Guard notifies the public of safety zone enforcement. 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

[[Page 21883]]

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: 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 Honolulu and his or her designated representatives can 
be contacted at telephone number listed in paragraph (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: May 7, 2018.
M.C. Long,
Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2018-10049 Filed 5-10-18; 8:45 am]
 BILLING CODE 9110-04-P



                                              21876                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              Report of Birth Abroad, based on the                    DEPARTMENT OF HOMELAND                                RFA Regulatory Flexibility Act
                                              facts and law in effect at the time such                SECURITY                                              SNPRM Supplemental notice of proposed
                                              action was taken.                                                                                               rulemaking
                                                                                                      Coast Guard                                           TFR Temporary final rule
                                              ■   13. Revise § 51.72 to read as follows:                                                                    U.S.C. United States Code

                                              § 51.72 Transcript and record of the                    33 CFR Part 165                                       II. Background Information and
                                              hearing.                                                                                                      Regulatory History
                                                                                                      [Docket Number USCG–2017–0234]
                                                A qualified reporter, provided by the                                                                          Molten lava that enters the ocean is
                                                                                                      RIN 1625–AA00                                         potentially hazardous to anyone near it,
                                              Department, will make a complete
                                              verbatim transcript of the hearing. The                                                                       particularly when lava deltas collapse.
                                                                                                      Safety Zone; Pacific Ocean, Kilauea
                                              person requesting the hearing or his or                                                                       A lava delta is new land that forms
                                                                                                      Lava Flow Ocean Entry on Southeast
                                                                                                                                                            when lava accumulates above sea level,
                                              her attorney may review and purchase                    Side of Island of Hawaii, HI
                                                                                                                                                            and extends from the existing base of a
                                              a copy of the transcript directly from the
                                                                                                      AGENCY:    Coast Guard, DHS.                          sea cliff. Persons and vessels near active
                                              reporter. The hearing transcript and all
                                                                                                      ACTION:   Final rule.                                 lava flow ocean-entry sites face
                                              the information and documents received
                                                                                                                                                            potential hazards, including—
                                              by the hearing officer, whether or not                                                                           • Plumes of hot, corrosive seawater
                                                                                                      SUMMARY:   The Coast Guard is
                                              deemed relevant, will constitute the                    establishing a permanent safety zone                  laden with hydrochloric acid and fine
                                              record of the hearing. The hearing                      surrounding the area of entry of lava                 volcanic particles that can irritate the
                                              officer’s preliminary findings and                      from the Kilauea volcano into the                     skin, eyes, and lungs;
                                              recommendations are deliberative, and                   Pacific Ocean on the southeast side of                   • Explosions of debris and eruptions
                                              shall not be considered part of the                     the Island of Hawaii, HI. This action is              of scalding water from hot rock entering
                                              record unless adopted by the Deputy                     necessary to protect persons and vessels              the ocean;
                                              Assistant Secretary for Passport                        from the potential hazards associated                    • Sudden lava delta collapses; and
                                              Services, or his or her designee.                       with molten lava entering the ocean.                     • Waves associated with these
                                              ■   14. Revise § 51.73 to read as follows:              This regulation prohibits persons and                 explosions and collapses.
                                                                                                      vessels from being in the safety zone                    Lava began entering the ocean at the
                                              § 51.73   Privacy of hearing.                           during active lava flow reaching the                  Kamokuna lava delta on Kilauea
                                                                                                      Pacific Ocean on Kilauea volcano’s                    volcano’s south coast in July 2016. Lava
                                                Only the person requesting the                                                                              continued to enter the ocean at the
                                                                                                      southeast coast unless specifically
                                              hearing, his or her attorney, an                                                                              Kamokuna lava delta from July 2016 to
                                                                                                      authorized by the Captain of the Port
                                              interpreter, the hearing officer, the                   Honolulu or a designated representative.              mid-November 2017.
                                              reporter transcribing the hearing, and                                                                           Ocean safety concerns began on
                                                                                                      DATES: This rule is effective without
                                              employees of the Department concerned                                                                         December 31, 2016, when a large
                                                                                                      actual notice May 11, 2018. For
                                              with the presentation of the case may be                                                                      portion of the new lava delta collapsed
                                                                                                      purposes of enforcement, actual notice
                                              present at the hearing. Witnesses may be                                                                      into the ocean, producing waves and
                                                                                                      will be used if active lava associated
                                              present only while actually giving                                                                            explosions of debris at 19°19′12″ N,
                                                                                                      with the Kilauea activity enters into the
                                              testimony or as otherwise directed by                                                                         155°02′24″ W near the Kamokuna entry
                                                                                                      Pacific Ocean prior to May 11, 2018.
                                              the hearing officer.                                                                                          point. Following this collapse, portions
                                                                                                      ADDRESSES: To view documents
                                                                                                                                                            of the adjacent sea cliff continued to
                                              ■   15. Revise § 51.74 to read as follows:              mentioned in this preamble as being                   collapse into the Pacific Ocean,
                                                                                                      available in the docket, go to http://                producing localized waves and showers
                                              § 51.74   Final decision.
                                                                                                      www.regulations.gov, type USCG–2017–                  of debris.
                                                After reviewing the record of the                     0234 in the ‘‘SEARCH’’ box and click                     In March 2017, a new delta began to
                                              hearing and the preliminary findings of                 ‘‘SEARCH.’’ Click on Open Docket                      form at the Kamokuna ocean-entry
                                              fact and recommendations of the                         Folder on the line associated with this               point, and from March 2017 to July
                                              hearing officer, and considering legal                  rule.                                                 2017, several collapses of the lava bench
                                              and policy considerations he or she                     FOR FURTHER INFORMATION CONTACT: If                   were observed by National Park Service
                                              deems relevant, the Deputy Assistant                    you have questions on this rule, call or              and Hawaiian Volcano Observatory
                                              Secretary for Passport Services, or his or              email Lieutenant Commander John                       (HVO) staff. Beginning in the middle of
                                              her designee, will decide whether to                    Bannon, Waterways Management                          November 2017, the lava flow slowed
                                              uphold the denial or revocation of the                  Division, Coast Guard; telephone 808–                 down and subsequently stopped
                                              passport or cancellation of the Consular                541–4359, email John.E.Bannon@                        entering the ocean, and as of March
                                              Report of Birth Abroad. The Department                  uscg.mil.                                             2018, the lava flow remains inactive.
                                              will promptly notify the person                         SUPPLEMENTARY INFORMATION:                               Though the Kamokuna lava delta is
                                              requesting the hearing of the decision in                                                                     not currently active, this region and
                                              writing. If the decision is to uphold the               I. Table of Abbreviations                             associated coastline remains hazardous
                                              denial, revocation, or cancellation, the                BLS Bureau of Labor Statistics                        both to visitors on land and to the
                                              notice will contain the reason(s) for the               COTP Captain of the Port                              boating public due to active seismic and
                                              decision. The decision is final and is not              DHS Department of Homeland Security                   lava activity associated with the Kilauea
                                              subject to further administrative review.               FR Federal Register                                   lava flow. According to the HVO, which
sradovich on DSK3GMQ082PROD with RULES




                                                                                                      FRFA Final regulatory flexibility analysis            is part of the U.S. Geological Survey and
                                                Dated: May 3, 2018.                                   HVO Hawaii Volcano Observatory                        responsible for monitoring volcanoes
                                              Carl C. Risch,                                          IRFA Initial regulatory flexibility analysis
                                                                                                      NAICS North American Industry
                                                                                                                                                            and earthquakes in Hawaii, the lava
                                              Assistant Secretary of State for Consular                                                                     delta remains unstable and resumed
                                                                                                        Classification System
                                              Affairs, Department of State.                                                                                 ocean lava flow is realistic. Hazards to
                                                                                                      NPRM Notice of proposed rulemaking
                                              [FR Doc. 2018–09995 Filed 5–10–18; 8:45 am]             OMB Office of Management and Budget                   the public include hot gases, lava,
                                              BILLING CODE 4710–06–P                                  § Section symbol                                      scalding water, unstable vertical sea


                                         VerDate Sep<11>2014   22:27 May 10, 2018   Jkt 244001   PO 00000   Frm 00036   Fmt 4700   Sfmt 4700   E:\FR\FM\11MYR1.SGM   11MYR1


                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                         21877

                                              cliffs and possible sudden explosions                   20, 2018. During this comment period,                 proximity to lava. A typical request
                                              should the lava delta begin to collapse.                we received two comments that were                    should note the vessel’s condition, the
                                              Additionally, cracks parallel to the sea                not germane to the rulemaking and only                operator’s familiarity with the
                                              cliff in the surrounding area indicate                  one from the public.                                  surrounding waters, and any specific
                                              that further collapses with little or no                   Under 5 U.S.C. 553(d)(3), the Coast                safety practices for operating near the
                                              warning are possible. Therefore, the                    Guard finds that good cause exists for                lava ocean-entry points. Once initial
                                              safety zone remains relevant. When the                  making this rule effective less than 30               authorization is received, a vessel owner
                                              safety zone is being enforced, access                   days after publication in the Federal                 or operator only needs to contact COTP
                                              into the safety zone can still be                       Register. Delaying the effective date of              Honolulu by phone or radio to request
                                              requested to the Captain of the Port                    this rule would be impracticable                      permission to enter the safety zone.
                                              (COTP) Honolulu.                                        because immediate action is needed due
                                                 On March 28, 2017, the COTP                          to recent volcanic activity. Active                   IV. Discussion of Comments, Changes,
                                              Honolulu issued a temporary final rule                  eruption of lava and gas has recently                 and the Rule
                                              (TFR) under docket number USCG–                         commenced and continues from Kilauea                     In response to the NPRM, the Coast
                                              2017–0172. The TFR established a                        Volcano. On Friday, May 4, 2018, a                    Guard received 67 public comments. In
                                              safety zone to immediately protect                      magnitude 6.9 earthquake was measured                 addition to both the NPRM and the
                                              persons and vessels from the potential                  in the region and HVO advises that                    public meeting held in Hilo, HI, on May
                                              hazards associated with molten lava                     more should be expected with a larger                 8, 2017, we published a SNPRM to
                                              entering the ocean. The safety zone                     aftershocks potentially producing                     further address economic impacts on
                                              encompassed all waters extending 300                    rockfalls, localized tsunamis, and                    small entities potentially affected by the
                                              meters (984 feet) in every direction                    associated ash clouds. High levels of                 safety zone. The Coast Guard received
                                              around all ocean-entry points of lava.                  lava and volcanic gas including Sulphur               two public comments on the SNPRM,
                                              The Coast Guard prohibited entry of                     Dioxide are being emitted from the                    neither of which were germane to the
                                              persons or vessels into the safety zone,                fissure vents. In consideration of the                rulemaking. All public comments and
                                              unless authorized by the COTP                           events, safety hazards and concerns, the              the public meeting summary are
                                              Honolulu, or his designated                             Coast Guard finds that good cause exists              available in the docket for this
                                              representative.                                         for making this regulation effective                  rulemaking where indicated under
                                                 The TFR was published in the                         immediately. This rule is needed to                   ADDRESSES.
                                              Federal Register (82 FR 16109) on April                 protect personnel and vessels in the                     Based on all the comments received,
                                              3, 2017. A six-month extension of the                   navigable waters with the safety zone.                the Coast Guard adopts the rule as
                                              TFR was published in the Federal                                                                              proposed in the NPRM and
                                              Register (82 FR 45461) on September                     III. Legal Authority and Need for Rule                supplemented in the SNPRM as 33 CFR
                                              29, 2017, extending the TFR through                        The Coast Guard is issuing this rule               165.1414 without major change. After
                                              March 28, 2018. The TFR extension                       under authority in 33 U.S.C. 1231. The                review of the SNPRM proposed
                                              allowed the Coast Guard to analyze the                  COTP Honolulu has determined that                     language, we made a minor edit to
                                              economic impact of the safety zone and                  there are potential hazards associated                paragraph (c) to clarify that this is no
                                              provide for additional public comment.                  with the molten lava at the Kamokuna                  longer proposed language. In paragraph
                                                 On April 3, 2017, the Coast Guard                    lava delta or future locations associated             (c)(2), we also further clarify that entry
                                              also published a notice of proposed                     with the Kilauea lava flow, which pose                into or remaining in this safety zone,
                                              rulemaking (NPRM) in the Federal                        potential safety concerns for anyone                  when enforced, is prohibited unless
                                              Register (82 FR 16142), which proposed                  within 300 meters of the ocean-entry                  authorized by the COTP Honolulu or his
                                              to make the temporary safety zone a                     point.                                                designated representative. This
                                              final rule, and invited the public to                      The purpose of this rule is to establish           clarification is necessary to highlight
                                              comment during the comment period.                      a permanent safety zone around the lava               that when lava is not a threat to
                                              During this comment period, which                       flow entry area associated with the                   mariners, the safety zone is not
                                              ended June 2, 2017, we received 67                      Kilauea lava delta entry coastline to                 enforced. Finally, in paragraph (c)(3),
                                              comments.                                               mitigate ocean hazards during times                   we added further clarification that
                                                 On May 8, 2017, we held a public                     when lava is entering the ocean.                      notice for entry into the safety zone is
                                              meeting in Hilo, HI, that allowed local                 Additionally, this rule allows the Coast              necessary only when the safety zone is
                                              citizens and small businesses affected                  Guard to impose and enforce                           enforced.
                                              by the TFR to discuss the lava safety                   restrictions on vessels operating near                   We received nine comments on the
                                              concerns, the safety zone impact, and                   the lava flow that enters the ocean as the            NPRM in support of the proposed rule.
                                              the impact the proposed rule would                      Coast Guard determines necessary. This                One commenter noted that he had taken
                                              have on ocean users. Participants were                  action is necessary to promote safe                   a lava boat tour and felt that the vessel
                                              encouraged to submit formal feedback to                 navigation, and to preserve the safety of             got too close to the entry point and that
                                              the rulemaking docket.                                  life and property. Vessels capable of                 he experienced adverse health
                                                 On December 20, 2017, the Coast                      safely operating inside the safety zone               symptoms from being in the lava plume.
                                              Guard published a supplemental notice                   may be authorized to enter by the COTP                Several commenters agreed that the
                                              of proposed rulemaking (SNPRM) in the                   Honolulu or his designated                            safety zone should be consistent with
                                              Federal Register (82 FR 60341). Its                     representative. Vessels approved for                  that of the landside restriction of 300
                                              purpose was to address additional                       transiting within the safety zone during              meters. Other commenters supported
                                              concerns related to the potential impact                active lava ocean entry are required to               the safety zone due to the hazards
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                                              of the safety zone on small entities                    adhere to specific conditions set by the              resulting from the entry of volcanic lava
                                              should lava flow resume. Lava flow                      COTP Honolulu. Mariners who seek                      into the ocean.
                                              entering the ocean ended in November,                   initial authorization to enter the safety                The Coast Guard received 18
                                              2017. The SNPRM addressed the past                      zone when there is active lava ocean                  comments regarding the safety zone’s
                                              and future concerns, and invited the                    entry must submit a written request by                size and location. These comments
                                              public to further comment during the                    email or letter. The request must explain             ranged from being in favor of the 300-
                                              comment period, which ended February                    how the vessel will operate safely in                 meter safety zone to being opposed.


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                                              21878                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              Nine opposing views stated that 300                     m (273 yards) inland from the collapsed               tour-boat owners and operators from
                                              meters is excessively restrictive. One                  delta and scattered rock debris onshore               hailing the Coast Guard via VHF radio.
                                              comment from the National Oceanic                       over an area the size of several football                We are aware of the VHF radio
                                              Atmospheric Administration stated that                  fields. These explosions also hurl rocks              limitations in this area, and are
                                              the Coast Guard should ‘‘provide                        seaward, probably to similar                          currently researching how to improve
                                              definitive bounding coordinates for the                 distances.’’ 1                                        radio coverage. The COTP Honolulu and
                                              safety zone, instead of a general                          The 300-meter safety zone also                     Coast Guard Base Honolulu are
                                              statement that the safety zone will                     mirrors land and air restrictions for lava            attempting to install equipment in the
                                              encompass all waters extending 300                      flow viewing. Furthermore, HVO staff                  vicinity to enhance communications in
                                              meters in all directions around the entry               reiterated the need for a 300-meter                   this area. In the meantime, vessel
                                              point of lava flow into the ocean                       safety zone at the public meeting held                owners and operators are encouraged to
                                              associated with the lava flow at the                    on this rulemaking. Accordingly, the                  use alternate means to communicate
                                              Kamokuna lava delta or Kilauea crater.’’                Coast Guard will maintain the safety                  effectively near the lava flow ocean-
                                                 We believe that because of the                       zone’s 300-meter radius, with the option              entry points. They are also encouraged
                                              unpredictable and varying nature of the                 of allowing operators to request                      to contact the Coast Guard in advance
                                              active lava flowing into the ocean at this              authorization to enter the safety zone                of their transits to the lava ocean-entry
                                              area, the Coast Guard cannot issue                      from the COTP Honolulu.                               points and departure in order to
                                              specific geographic coordinates of the                     The Coast Guard received 30                        facilitate effective communications as
                                              safety zone in the final rule, but will                 comments in favor of allowing the lava                well as the timely processing of any
                                              note the current entry site and update                  tour-boat owners and operators to enter               written request for authorization to
                                              for future sites. We note, with the                     and operate in the safety zone.                       enter the safety zone.
                                              concurrence of NOAA’s Nautical Data                        Under this final rule, any vessel                     The Coast Guard received four
                                              Branch, Marine Chart Division, the                      owner or operator may submit a written                comments regarding general unsafe
                                              position 19°19′08″ N, 155°02′36″ W.                     request to the COTP Honolulu, or his                  conditions at the boat ramp where tour
                                              These are the coordinates provided for                  designated representative, for                        operators launch.
                                              Kamokuna Beach in the U.S. Geological                   authorization to enter the safety zone.                  Boat ramps and associated safe
                                              Survey’s Geographic Names Information                   Such written requests must explain how                boating concerns are a state
                                              System. Future lava entry locations may                 the vessel will operate safely in                     management issue. We have forwarded
                                              vary from the Kamokuna Beach                            proximity to lava. A typical request                  this comment to the appropriate state
                                              location.                                               should note the vessel’s condition, the               office.
                                                 Additionally, because of the varying                 operator’s familiarity with the                          One comment proposed the safety
                                              dangers of the lava entry and fragile                   surrounding waters, and any specific                  zone be stationary and move with the
                                              bench shelf development, the Coast                      safety practices for operating near the               lava shelf, essentially creating a moving
                                              Guard cannot provide a specific                         lava ocean-entry points. Once initial                 safety zone.
                                              distance at which a vessel can safely                   authorization is received, a vessel owner                Title 33 CFR 165.20 defines a safety
                                              operate. However, the COTP Honolulu                     or operator only needs to contact COTP                zone as a water area to which, for safety
                                              has permitted vessels to operate within                 Honolulu by phone or radio to request                 purposes, access is limited to authorized
                                              the 300-meter safety zone under certain                 permission to enter the safety zone.                  persons or vessels. It further states that
                                              conditions when the safety zone is                      Prior to the NPRM, the Coast Guard                    a safety zone may be stationary and
                                              actively enforced.                                      promulgated a TFR for a 300-meter                     described by fixed limits. We believe
                                                 The Coast Guard received one                         safety zone at the Kamokuna lava delta.               that in this situation, the entry point of
                                              comment from Hawaii Volcanoes                           Pursuant to the TFR, the COTP                         the lava changes based on flow, and as
                                              National Park supporting a safety zone                  Honolulu granted four lava tour-boat                  such, the safety zone would encompass
                                              ‘‘that is flexible to account for whatever              owners and operators and one                          all waters extending 300 meters (984
                                              location the lava may occur since it is                 photographer access to operate within                 feet) in all directions around the entry
                                              not a static event in time or space,’’ and              the safety zone. If lava begins to flow               point of lava flow into the ocean. The
                                              a recommendation ‘‘that the proposed                    into the ocean again, these tour                      Coast Guard does not define this as a
                                              rule apply not just to the Kamokuna                     operators will be granted renewed                     moving safety zone around a moving
                                              ocean-entry point, but any location in                  permission to enter the safety zone. The              object, but rather as a necessary
                                              the future where lava enters the ocean.’’               Coast Guard received three comments                   adjustment to a dynamic environmental
                                                 We agree, and the final rule includes                regarding access or exclusive access to               occurrence, which may have multiple
                                              language stating that all locations                     the lava flow by Hawaiian natives. This               lava entry points.
                                              associated with the Kilauea lava flow                   rule is concerned with the safety aspect                 The Coast Guard also received a
                                              entering the Pacific Ocean on the                       of access to the lava flow area.                      comment stating that our certification
                                              eastern side of the Island of Hawaii, HI,               Mandating exclusive access to the lava                under 5 U.S.C. 605(b), concerning the
                                              are included under the safety zone.                     flow is outside the scope of this                     economic impact on small entities, was
                                                 Sixteen commenters recommended                       rulemaking and is outside the Coast                   potentially arbitrary as it lacked any
                                              that the Coast Guard reduce the 300-                    Guard’s authority. When the safety zone               factual basis for the certification. An
                                              meter radius of the safety zone.                        is enforced, this rule provides guidance              initial regulatory flexibility analysis in
                                                 We believe that based on Sector                      for requesting permission to enter the                accordance with the Regulatory
                                              Honolulu’s review of the historical                     safety zone from the COTP Honolulu or                 Flexibility Act (RFA), 5 U.S.C. 601–612,
                                              observations of delta collapses and                     his designated representative.                        was conducted through an SNPRM,
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                                              ejecta distances from HVO records, a                       The Coast Guard received one                       which allowed for public comment. The
                                              radius of 300 meters remains a safe and                 comment regarding the lack of reliable                Coast Guard received no comments on
                                              reasonable distance for a high-hazard                   VHF radio communications near the                     the initial regulatory flexibility analysis
                                              zone for the general boating public. The                lava flow area, thereby preventing lava               (IRFA).
                                              HVO reports that explosions from delta                                                                           The Coast Guard received two
                                              collapses ‘‘have hurled hot rocks nearly                  1 https://volcanoes.usgs.gov/observatories/hvo/     comments regarding Executive Order
                                              a meter (yard) in size as far as about 250              hawaii_ocean_entry.html.                              13771, Reducing Regulation and


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                                     21879

                                              Controlling Regulatory Costs, which                     safety zone from every direction and all                 the affected population because the
                                              directs a reduction of the promulgation                 points where lava enters the ocean. In                   Coast Guard does not believe other
                                              of new regulations. As discussed in the                 order to mitigate the potential costs of                 entities are likely to operate near the
                                              following section, this rule is exempt                  this rule, the Coast Guard has and will                  safety zone.
                                              from this Executive order.                              continue to issue exemptions to
                                                                                                                                                               Costs
                                              V. Regulatory Analyses                                  mariners that can demonstrate a level of
                                                                                                      safety sufficient for the additional                        Under the TFR, published
                                                We developed this rule after                          hazards present where lava enters the                    concurrently with the NPRM on April 3,
                                              considering numerous statutes and                       ocean.                                                   2017, vessel owners and operators were
                                              Executive orders related to rulemaking.                    In November 2017, lava ceased                         required to prepare and submit a written
                                              Below, we summarize our analyses                        flowing from Kilauea volcano into the                    request to the COTP Honolulu to enter
                                              based on a number of these statutes and                 Pacific Ocean. Consequently, the Coast                   the safety zone. Because the
                                              Executive orders and discuss First                      Guard has temporarily stopped                            requirements of this final rule are
                                              Amendment rights of protestors.                         enforcing the safety zone. In the final                  consistent with the requirements in the
                                              A. Regulatory Planning and Review                       rule, we added regulatory text clarifying                TFR, we are presenting the costs
                                                                                                      that the regulation is only enforced                     associated with the TFR in this final
                                                 Executive Orders 13563, Improving                    when lava is actively flowing into the                   rule. Tour operators that previously
                                              Regulation and Regulatory Review, and                   ocean. This change will not impose any                   applied will be grandfathered in and
                                              12866, Regulatory Planning and Review,
                                                                                                      economic costs on any mariners or                        permitted to operate in the safety zone
                                              direct agencies to assess the costs and
                                                                                                      members of the public because it does                    when the lava flow returns in the future.
                                              benefits of available regulatory
                                                                                                      not create any requirements. Other than                  Additional operators that wish to enter
                                              alternatives and, if regulation is
                                                                                                      changes clarifying that the safety zone is               the safety zone will need to submit
                                              necessary, to select regulatory
                                                                                                      enforced as long as lava flows into the                  written requests to the COTP Honolulu.
                                              approaches that maximize net benefits
                                                                                                      ocean, we made no further changes to                     The Coast Guard is not aware of any
                                              (including potential economic,
                                                                                                      the regulatory text.                                     additional individuals that are likely to
                                              environmental, public health and safety                    Table 1 provides a summary of the                     request access to enter the safety zone
                                              effects, distributive impacts, and                      affected population, costs, and benefits                 in the future.
                                              equity). Executive Order 13563                          of this rule.
                                              emphasizes the importance of                                                                                        The written request requirement was
                                              quantifying both costs and benefits, of                                                                          contained in the previous TFR and each
                                                                                                        TABLE 1—SUMMARY OF IMPACTS OF                          lava tour-boat owner and operator
                                              reducing costs, of harmonizing rules,
                                                                                                                THE FINAL RULE                                 seeking authorization to enter the safety
                                              and of promoting flexibility. Executive
                                              Order 13771, Reducing Regulation and                                                                             zone complied. Based on discussions
                                                                                                              Category                      Summary            with COTP Honolulu personnel, we
                                              Controlling Regulatory Costs, directs
                                              agencies to reduce regulation and                                                                                estimated it takes about four hours for
                                                                                                      Affected population ...         4 tour boat operators.
                                              control regulatory costs and provides                                                                            a vessel owner or operator to submit a
                                                                                                      Costs to industry .......       593.88.
                                              that ‘‘for every one new regulation                     Costs to government             378.00.                  written request to enter the safety zone.
                                              issued, at least two prior regulations be               Total costs .................   971.88.                  This includes the time it would take
                                              identified for elimination, and that the                Unquantified benefits           Protection from un-      lava tour-boat owners and operators to
                                              cost of planned regulations be prudently                                                  safe operations        respond to questions from the COTP
                                              managed and controlled through a                                                          where vessels          concerning the written request. Lava
                                                                                                                                        enter the safety       tour-boat owners and operators would
                                              budgeting process.’’                                                                      zone.
                                                 The Office of Management and Budget                                                                           only be required to make a written
                                              (OMB) has not designated this rule a                                                                             request once rather than for each
                                                                                                      Affected Population                                      voyage. The Coast Guard is not aware
                                              ‘‘significant regulatory action,’’ under
                                              section 3(f) of Executive Order 12866.                     This final rule makes permanent the                   that any voyages were terminated due to
                                              Accordingly, OMB has not reviewed it.                   existing TFR safety zone for the                         a lack of authorization to enter the
                                              As this rule is not a significant                       navigable waters surrounding the entry                   safety zone during the period operators
                                              regulatory action, this rule is exempt                  of lava from Kilauea volcano into the                    requested to enter.
                                              from the requirements of Executive                      Pacific Ocean. The TFR restricted access                    We obtained the mean hourly wage
                                              Order 13771. See OMB’s Memorandum                       to those vessels that contacted the COTP                 rate for a captain of a lava tour-boat
                                              ‘‘Guidance Implementing Executive                       Honolulu and requested permission to                     from the May 2016 Bureau of Labor
                                              Order 13771, Titled ’Reducing                           enter the temporary safety zone.                         Statistics (BLS) Occupational
                                              Regulation and Controlling Regulatory                      Therefore, this rule affects any vessel               Employment Statistics National
                                              Costs’’’ (April 5, 2017).                               that would normally travel within 300                    Occupational Employment and Wage
                                                 We only received one public                          meters of points where lava reaches the                  Estimates. Based on BLS data, the mean
                                              comment on the SNPRM and it was                         ocean. Due to the hazards and relative                   hourly wage rate for captains, mates,
                                              beyond the scope of this regulation.                    remoteness of the area, the Coast Guard                  and pilots of water vessels with the
                                              Therefore, we adopt the preliminary                     is not aware of any vessel operations                    North American Industry Classification
                                              regulatory analysis for the proposed rule               within 300 meters of where lava enters                   System (NAICS) occupational code of
                                              as final. A summary of that analysis                    the ocean other than those conducted by                  53–5021 in the ‘‘Scenic and Sightseeing
                                              follows.                                                lava tour-boat owners and operators.                     Transportation, Water’’ industry is
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                                                 This regulatory analysis provides an                 While the TFR was still in effect, the                   $24.42.2 Because this is an unloaded
                                              evaluation of the economic impacts                      COTP Honolulu granted four lava tour-
                                              associated with this final rule. The                    boat owners and operators and one                          2 Captains, mates, and pilots may work in

                                              Coast Guard is issuing a final rule to                  photographer authorization to enter the                  numerous industries. We use the BLS industry-
                                                                                                                                                               specific mean hourly wage rate for the affected tour
                                              ensure the safety of mariners, lava tour-               safety zone under certain conditions.                    boat operators from the ‘‘Scenic and Sightseeing
                                              boat passengers, and the protection of                  When lava reenters the safety zone,                      Transportation, Water’’ industry. See http://
                                              property by establishing a 300-meter                    these four tour operators will constitute                www.bls.gov/oes/2016/may/oes535021.htm.



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                                              21880                          Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              hourly wage rate, we added a load factor                                     through an initial written request, the                                      not estimate a cost for the time to
                                              of 1.52 derived from the May 2016 BLS                                        only cost to these lava tour-boat owners                                     receive a call from an owner or operator
                                              ‘‘Employer Cost for Compensation’’                                           and operators was the cost of the initial                                    when entering the safety zone because
                                              database to obtain a loaded hourly wage                                      request. Each owner or operator would                                        the COTP Honolulu conducts this
                                              rate of $37.12.3 Using this information,                                     also be required to notify the COTP                                          review in the normal course of duties
                                              we estimated the one-time initial cost                                       Honolulu by phone during the normal                                          and the time requirements are minimal.
                                              for an owner or operator to prepare a                                        course of their duties before entering the                                   To process the written requests, we
                                              written request and respond to                                               safety zone. We did not estimate a cost                                      estimated one non-commissioned officer
                                              comments from the Coast Guard to be                                          for the call because the equipment                                           with a rank of E–7, and three officers
                                              $148.47.4 Therefore, we estimated the                                        already exists onboard each vessel and                                       with ranks of O–4, O–5, and O–6 would
                                              total cost of the proposed rule on tour                                      the time cost is minimal. The total costs                                    take about one hour each to review the
                                              operators to be $593.88.5                                                    to industry are therefore $593.88.                                           written request. Based on the labor rates
                                                 Since all four lava tour-boat owners                                        Government costs to implement this                                         listed in Table 2,6 we estimated the total
                                              and operators were each granted                                              rule include the one-time cost of                                            cost of the rule to the Federal
                                              permission to enter the safety zone                                          reviewing the written requests. We did                                       government to be $378.00.

                                                                                            TABLE 2—TOTAL GOVERNMENT COSTS OF THE TEMPORARY FINAL RULE
                                                                                                                   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 rule                                   lifesaving equipment is adequate to                                          economic impact on a substantial
                                              to lava tour-boat owners and operators                                       meet the greater risks present.                                              number of small entities. The RA
                                              and to the Federal government to be                                                                                                                       prescribes the content of the FRFA,
                                                                                                                           B. Impact on Small Entities
                                              $971.88.7                                                                                                                                                 which we discuss below.
                                                                                                                              The Regulatory Flexibility Act (RFA)                                         In accordance with the RFA, the Coast
                                              Benefits                                                                                                                                                  Guard prepared this FRFA that
                                                                                                                           (Pub. L. 96–354, 94 Stat. 1164 (codified
                                                 Lava flow that enters the ocean is                                        at 5 U.S.C. 601–612)) establishes ‘‘as a                                     examines the impacts of the final rule
                                              potentially hazardous and presents a                                         principle of regulatory issuance that                                        on small entities. A small entity may be:
                                                                                                                           agencies shall endeavor, consistent with                                        • A small independent business,
                                              danger to vessels navigating within
                                                                                                                           the objectives of the rule and of                                            defined as independently owned and
                                              close proximity of where the flow enters
                                                                                                                           applicable statutes, to fit regulatory and                                   operated, is organized for profit, and is
                                              the ocean, particularly when lava deltas
                                                                                                                           informational requirements to the scale                                      not dominant in its field per the Small
                                              collapse. These hazards include, but are
                                                                                                                           of the businesses, organizations, and                                        Business Act (15 U.S.C. 632);
                                              not limited to, plumes of hot, corrosive                                                                                                                     • A small not-for-profit organization
                                              seawater laden with hydrochloric acid                                        governmental jurisdictions subject to
                                                                                                                           regulation. To achieve this principle,                                       (any not-for-profit enterprise which is
                                              and fine volcanic particles that can                                                                                                                      independently owned and operated and
                                              irritate the skin, eyes, and lungs;                                          agencies are required to solicit and
                                                                                                                           consider flexible regulatory proposals                                       is not dominant in its field); or
                                              explosions of debris and eruptions of                                                                                                                        • A small governmental jurisdiction
                                              scalding water from hot rock entering                                        and to explain the rationale for their
                                                                                                                                                                                                        (locality with fewer than 50,000 people).
                                              the ocean; sudden lava delta collapses;                                      actions to assure that such proposals are
                                                                                                                                                                                                           This FRFA addresses the following:
                                              and waves associated with these                                              given serious consideration.’’ 8                                                (1) A statement of the need for, and
                                              explosions and collapses. The primary                                           When an agency promulgates a final                                        objectives of, the rule;
                                              benefit of this rule is to promote safe                                      rule under section 553 of the                                                   (2) A statement of the significant
                                              navigation, and preserve the safety of                                       Administrative Procedure Act                                                 issues raised by the public comments in
                                              life and property by ensuring that vessel                                    Administrative Procedure Act, after                                          response to the initial regulatory
                                              operators are prepared for the greater                                       being required by that section or any                                        flexibility analysis, a statement of the
                                              risks present where lava enters the                                          other law to publish a general notice of                                     assessment of the agency of such issues,
                                              ocean. If vessel operators wish to transit                                   proposed rulemaking, the agency must                                         and a statement of any changes made in
                                              through the safety zone they will be                                         prepare a FRFA or have the head of the                                       the proposed rule as a result of such
                                              required to first contact the COTP                                           agency certify pursuant to RFA section                                       comments;
                                              Honolulu for permission with an                                              605(b) that the rule will not, if                                               (3) The response of the agency to any
                                              explanation of how their safety and                                          promulgated, have a significant                                              comments filed by the Chief Counsel for
                                                3 A loaded wage rate is what a company pays per                            Using 2016 Q4 data for the cost of compensation                                 4 $37.12 × 4 hours.
                                              hour to employ a person, not an hourly wage. The                             per hour worked, we divided the total                                           5 $148.47 × 4 tour operators.
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                                              loaded wage rate includes the cost of benefits                               compensation amount of $28.15 by the wage and                                  6 We obtained the hourly wage rates for
                                              (health insurance, vacation, etc.). The load factor for                      salary amount of $18.53 to obtain the load factor of
                                              wages is calculated by dividing total compensation                                                                                                        government personnel from Enclosure (2) of
                                                                                                                           1.52, rounded. See the following websites: https://                          Commandant Instruction 7310.1R (29 March 2017)
                                              by wages and salaries. For this analysis, we used
                                              BLS Employer cost of employee compensation/                                  beta.bls.gov/dataQuery/                                                      using the ‘‘In Government Rate.’’
                                              Transportation and Materials Moving Occupations,                             find?fq=survey:[oe]&s=popularity:D and https://                                7 $593.88 in costs to industry + $378 in costs to
                                              Private Industry Report (Series IDs,                                         data.bls.gov/cgi-bin/dsrv?cm. Multiplying 1.52 by
                                                                                                                                                                                                        the Coast Guard.
                                              CMU2010000520000D and CMU2020000520000D)                                     $24.42, we obtained a loaded hourly wage rate of                               8 See RFA section 2(b), 94 Stat. 1164, 1165.
                                              for all workers using the multi-screen data search.                          $37.12, rounded.



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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                         21881

                                              Advocacy of the SBA in response to the                  the proposed rule as a result of such                 safety zone. This includes the time it
                                              proposed rule, and a detailed statement                 comments.                                             would take lava tour-boat owners or
                                              of any change made to the proposed rule                    We only received one public                        operators to respond to questions from
                                              in the final rule as a result of the                    comment which was beyond the scope                    the COTP concerning the written
                                              comments;                                               of the rule; therefore, we made no                    request. Lava tour-boat owners and
                                                 (4) A description of and an estimate                 changes to the proposed rule as a result              operators would be only required to
                                              of the number of small entities to which                of public comments.                                   make this request once rather than for
                                              the rule will apply or an explanation of                   (3) The response of the agency to any              every voyage.
                                              why no such estimate is available;                      comments filed by the Chief Counsel for                  Above we obtained a loaded hourly
                                                 (5) A description of the projected                   Advocacy of the SBA in response to the                wage rate of $37.12 for captains, mates,
                                              reporting, recordkeeping and other                      proposed rule, and a detailed statement               and pilots of water vessels. We
                                              compliance requirements of the rule,                    of any change made to the proposed rule               estimated the one-time initial cost for an
                                              including an estimate of the classes of                 in the final rule as a result of the                  owner or operator to prepare a written
                                              small entities which will be subject to                 comments.                                             request and respond to comments from
                                              the requirement and the type of                            We received no comments the Chief                  the Coast Guard to be about $148.47. We
                                              professional skills necessary for                       Counsel for Advocacy of the SBA.                      estimated the total cost of the rule on
                                              preparation of the report or record;                       (4) A description of and an estimate               tour operators to be about $593.88.
                                                 (6) A description of the steps the                   of the number of small entities to which                 As mentioned above, we only found
                                              agency has taken to minimize the                        the rule will apply or an explanation of              revenue data on one of the four
                                              significant economic impact on small                    why no such estimate is available.                    operators. Therefore, we estimate the
                                              entities consistent with the stated                        This rule affects any vessel that would            initial revenue impact of this rule on
                                              objectives of applicable statutes,                      normally travel within 300 meters of                  this lava tour-boat owner to be about
                                              including a statement of the factual,                   points where lava reaches the ocean.                  $148.47, which is 0.07% of the
                                                                                                      Due to the hazards and relative                       company’s revenue. There are no annual
                                              policy, and legal reasons for selecting
                                                                                                      remoteness of such an area, the Coast                 revenue impacts because the written
                                              the alternative adopted in the final rule
                                                                                                      Guard believes only lava tour operators               request needs to be made once, after
                                              and why each one of the other
                                                                                                      would regularly operate within 300                    which each lava tour-boat operator
                                              significant alternatives to the rule
                                                                                                      meters of a point where lava enters the               would notify the COTP Honolulu by
                                              considered by the agency which affect
                                                                                                      ocean. Based on the Coast Guard’s                     phone to obtain permission to enter the
                                              the impact on small entities was
                                                                                                      understanding, there are four known                   safety on a given day.
                                              rejected.                                                                                                        (5) A description of the projected
                                                 Below is a discussion of FRFA                        lava tour-boat operators and one
                                                                                                                                                            reporting, recordkeeping and other
                                              analysis by each of these six elements:                 photographer who regularly come
                                                                                                                                                            compliance requirements of the rule,
                                                 (1) A statement of the need for, and                 within 300 meters of the Kilauea lava
                                                                                                                                                            including an estimate of the classes of
                                              objectives of, the rule.                                flow.
                                                                                                                                                            small entities which will be subject to
                                                 Lava entered the ocean at Kamokuna                      Of the four lava tour-boat owners and              the requirement and the type of
                                              on Kilauea volcano’s south coast                        operators who would transit within the                professional skills necessary for
                                              between July of 2016 and November of                    safety zone, we could not find                        preparation of the report or record.
                                              2017. Lava will continue to enter the                   publically available information such as                 This rule calls for no new collection
                                              ocean again in the foreseeable future.                  annual revenues and number of                         of information under the Paperwork
                                              When lava enters the ocean, potential                   employees for three of the four                       Reduction Act of 1995, 44 U.S.C. 3501–
                                              hazards emerge such as: Plumes of                       operators. We assumed these three                     3520.
                                              corrosive seawater can irritate the skin,               operators qualified as small entities. We                (6) A description of the steps the
                                              eyes, and lungs; explosions of debris                   found revenue information on the fourth               agency has taken to minimize the
                                              and scalding water can injure                           lava tour-boat owner. Using Manta, a                  significant economic impact on small
                                              passengers; collapses of lava deltas can                publicly available database for                       entities consistent with the stated
                                              cause large waves potentially capsizing                 businesses in the United States, we                   objectives of applicable statutes,
                                              vessels. Unless vessels have the proper                 found this lava tour-boat owner to have               including a statement of the factual,
                                              equipment and their operators take                      annual revenues of $220,000 and a                     policy, and legal reasons for selecting
                                              sufficient precautions, passengers and                  NAICS code of 561520, ‘‘Tour                          the alternative adopted in the final rule
                                              operators face significant hazards to                   Operators.’’ 9 This NAICS code has a                  and why each one of the other
                                              their lives as well as property. This rule              size threshold of $20.5 million for                   significant alternatives to the rule
                                              is necessary to promote navigational                    annual revenues, based on the Small                   considered by the agency which affect
                                              safety, provide for the safety of life and              Business Administration’s table of size               the impact on small entities was
                                              property, and facilitate and                            standards.10 Based on this information,               rejected.
                                              accommodate the reasonable demands                      this lava tour-boat operator also                        The Coast Guard considered the
                                              of commerce related to tourism                          qualified as a small entity.                          alternative of not establishing a safety
                                              surrounding the lava ocean-entry points.                   Based on discussions with COTP                     zone. However, without a safety zone,
                                                 This safety zone will ensure the safety              Honolulu personnel and using the wage                 vessel owners and operators would be
                                              of mariners, lava tour-boat passengers,                 rates and labor hour estimates as                     unprepared for the greater hazards that
                                              and the protection of property by                       established above, we estimated it                    are present near the Kilauea lava flow
                                              establishing a 300-meter safety zone                    would take about four hours for an                    ocean-entry point. These vessel owners
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                                              from every direction and all points                     owner or operator of a lava tour-boat to              and operators and passengers could
                                              where lava enters the ocean.                            prepare a written request to enter the                suffer grave injury or in the extreme
                                                 (2) A statement of the significant                                                                         case death, in addition to damage to or
                                                                                                        9 Accessed July 17, 2017 from https://
                                              issues raised by the public comments in                                                                       loss of property, if adequate protection
                                                                                                      www.manta.com/c/mb05066/kalapana-cultural-
                                              response to the IRFA, a statement of the                tours-inc.                                            is not provided. Therefore, the Coast
                                              assessment of the agency of such issues,                  10 https://www.sba.gov/sites/default/files/files/   Guard decided a safety zone was
                                              and a statement of any changes made in                  Size_Standards_Table.pdf.                             necessary to promote navigational


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                                              21882                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              safety, provide for the safety of life and              responsibilities between the Federal                  requirements, Security measures,
                                              property, and to accommodate and                        Government and Indian tribes. If you                  Waterways.
                                              facilitate the reasonable demands of                    believe this rule has implications for                  For the reasons discussed in the
                                              commerce relating to tourism                            federalism or Indian tribes, please                   preamble, the Coast Guard amends 33
                                              surrounding the lava entry points. No                   contact the person listed in the FOR                  CFR part 165 as follows:
                                              cost to industry or government would be                 FURTHER INFORMATION CONTACT section.
                                              associated with this alternative;                                                                             PART 165—REGULATED NAVIGATION
                                              nevertheless, we rejected this alternative              E. Unfunded Mandates Reform Act                       AREAS AND LIMITED ACCESS AREAS
                                              because it would not ensure that the                      The Unfunded Mandates Reform Act
                                              boating public would operate within a                   of 1995 (2 U.S.C. 1531–1538) requires                 ■ 1. The authority citation for part 165
                                              safe distance of where the lava flow                    Federal agencies to assess the effects of             continues to read as follows:
                                              enters the ocean.                                       their discretionary regulatory actions. In              Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
                                                 Alternatively, the Coast Guard could                 particular, the Act addresses actions                 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
                                              have instituted a safety zone without                   that may result in the expenditure by a               Department of Homeland Security Delegation
                                              permitting any entry into the safety                    State, local, or tribal government, in the            No. 0170.1.
                                              zone. This alternative would have                       aggregate, or by the private sector of                ■   2. Add § 165.1414 to read as follows:
                                              imposed substantial cost onto the four                  $100,000,000 (adjusted for inflation) or
                                              small entity tour operators. As a result,                                                                     § 165.1414 Safety Zone; Pacific Ocean,
                                                                                                      more in any one year. Though this rule                Kilauea Lava Flow Ocean Entry on
                                              the Coast Guard did not select this                     will not result in such an expenditure,
                                              alternative.                                                                                                  Southeast Side of Island of Hawaii, HI.
                                                                                                      we do discuss the effects of this rule
                                                 Small businesses may send comments                                                                            (a) Location. The safety zone area is
                                                                                                      elsewhere in this preamble.
                                              on the actions of Federal employees                                                                           located within the Captain of the Port
                                              who enforce, or otherwise determine                     F. Environment                                        (COTP) Honolulu Zone (See 33 CFR
                                              compliance with, Federal regulations to                                                                       3.70–10) and encompasses all primary
                                                                                                        We have analyzed this rule under                    areas from the surface of the water to the
                                              the Small Business and Agriculture                      Department of Homeland Security
                                              Regulatory Enforcement Ombudsman                                                                              ocean floor at the Kilauea active lava
                                                                                                      Management Directive 023–01 and                       flow entry into the Pacific Ocean on the
                                              and the Regional Small Business                         Commandant Instruction M16475.lD,
                                              Regulatory Fairness Boards. The                                                                               southeast side of the Island of Hawaii,
                                                                                                      which guide the Coast Guard in                        HI. The entry point of the lava may
                                              Ombudsman evaluates these actions                       complying with the National
                                              annually and rates each agency’s                                                                              change based on flow. The safety zone
                                                                                                      Environmental Policy Act of 1969 (42                  encompasses all waters extending 300
                                              responsiveness to small business. If you                U.S.C. 4321–4370f), and have
                                              wish to comment on actions by                                                                                 meters (984 feet) in all directions
                                                                                                      determined that this action is one of a               around entry points of lava flow into the
                                              employees of the Coast Guard, call 1–                   category of actions that do not
                                              888–REG–FAIR (1–888–734–3247). The                                                                            ocean associated with the Kilauea active
                                                                                                      individually or cumulatively have a                   lava flow.
                                              Coast Guard will not retaliate against                  significant effect on the human
                                              small entities that question or complain                                                                         (b) Definitions. As used in this
                                                                                                      environment. This rule involves                       section, designated representative
                                              about this rule or any policy or action                 establishing a safety zone that would
                                              of the Coast Guard.                                                                                           means any Coast Guard commissioned,
                                                                                                      prohibit persons and vessels from entry               warrant, or petty officer who has been
                                              C. Collection of Information                            into the 300-meter (984 feet) safety zone             authorized by the COTP Honolulu to
                                                This rule will not call for a new                     extending in all directions around the                assist in enforcing the safety zone
                                              collection of information under the                     entry of lava flow into the Pacific                   described in paragraph (a) of this
                                              Paperwork Reduction Act of 1995 (44                     Ocean. Normally such actions are                      section.
                                              U.S.C. 3501–3520).                                      categorically excluded from further                      (c) Regulations. The general
                                                                                                      review under paragraph L60(a) of                      regulations governing safety zones
                                              D. Federalism and Indian Tribal                         Appendix A, Table 1, of DHS                           contained in § 165.23 apply to this
                                              Governments                                             Instruction Manual 023–01–001–01,                     safety zone.
                                                 A rule has implications for federalism               Rev. 01. A Record of Environmental                       (1) All persons and vessels are
                                              under Executive Order 13132,                            Consideration supporting this                         required to comply with the general
                                              Federalism, if it has a substantial direct              determination is available in the docket              regulations governing safety zones
                                              effect on the States, on the relationship               where indicated under ADDRESSES. We                   found in this part.
                                              between the national government and                     seek any comments or information that                    (2) Entry into or remaining in this
                                              the States, or on the distribution of                   may lead to the discovery of a specified              safety zone when enforced is prohibited
                                              power and responsibilities among the                    environmental impact from this rule.                  unless authorized by the COTP
                                              various levels of government. We have                   G. Protest Activities                                 Honolulu, or his designated
                                              analyzed this rule under that Order and                                                                       representative.
                                              have determined that it is consistent                     The Coast Guard respects the First                     (3) Persons or vessels desiring to enter
                                              with the fundamental federalism                         Amendment rights of protesters.                       the safety zone identified in paragraph
                                              principles and preemption requirements                  Protesters are asked to contact the                   (a) of this section should submit a
                                              described in Executive Order 13132.                     person listed in the FOR FURTHER                      written request to the COTP Honolulu
                                                 Also, this rule does not have tribal                 INFORMATION CONTACT section to                        before initial entry into the safety zone
                                              implications under Executive Order                      coordinate protest activities so that your            when the Coast Guard notifies the
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                                              13175, Consultation and Coordination                    message can be received without                       public of safety zone enforcement. The
                                              with Indian Tribal Governments,                         jeopardizing the safety or security of                request must explain how the vessel
                                              because it does not have a substantial                  people, places or vessels.                            will operate safely in proximity to lava.
                                              direct effect on one or more Indian                                                                           A typical request should note the
                                                                                                      List of Subjects in 33 CFR Part 165
                                              tribes, on the relationship between the                                                                       vessel’s condition, the operator’s
                                              Federal Government and Indian tribes,                     Harbors, Marine safety, Navigation                  familiarity with the surrounding waters,
                                              or on the distribution of power and                     (water), Reporting and recordkeeping                  and any specific safety practices for


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                        21883

                                              operating near the lava ocean-entry                     vessels or persons into this zone is                  U.S.C. 191; 33 CFR 1.05–1, 6.04–1,
                                              points. Persons authorized initial entry                prohibited unless specifically                        6.04–6, 160.5; Department of Homeland
                                              may, thereafter, contact the COTP                       authorized by the Captain of the Port                 Security Delegation No. 0170.1, which
                                              Honolulu through his designated                         San Francisco.                                        collectively authorize the Coast Guard
                                              representatives at the Command Center                   DATES: This rule is effective without                 to establish safety zones. The Captain of
                                              via telephone: 808–842–2600 and 808–                    actual notice from May 11, 2018 until                 the Port San Francisco (COTP) has
                                              842–2601; fax: 808–842–2642; or on                      May 31, 2018. For the purposes of                     determined that potential hazards
                                              VHF channel 16 (156.8 Mhz) to request                   enforcement, actual notice will be used               associated with the barge and associated
                                              permission to transit the safety zone.                  from May 7, 2018 until May 11, 2018.                  recovery efforts will be a safety concern
                                                 (4) If permission is granted, all                    ADDRESSES: To view documents                          for anyone within a 90-yard radius of
                                              persons and vessels must comply with                    mentioned in this preamble as being                   the barge. This rule is needed to protect
                                              the instructions of the COTP Honolulu,                  available in the docket, go to http://                personnel, vessels, and the marine
                                              or his designated representative, and                   www.regulations.gov, type USCG–2018–                  environment in the navigable waters
                                              proceed at the minimum speed                            0387 in the ‘‘SEARCH’’ box and click                  within the safety zone.
                                              necessary to maintain a safe course                     ‘‘SEARCH.’’ Click on Open Docket                      IV. Discussion of the Rule
                                              while transiting through or in the safety               Folder on the line associated with this
                                              zone as well as maintain a safe distance                rule.                                                    This rule establishes a temporary
                                              from the lava hazards.                                                                                        safety zone from May 7, 2018 through
                                                                                                      FOR FURTHER INFORMATION CONTACT: If
                                                 (5) The COTP Honolulu will provide                                                                         May 31, 2018. The safety zone will
                                                                                                      you have questions on this rule, call or
                                              notice of enforcement of the safety zone                                                                      cover all navigable waters within 90
                                                                                                      email Lieutenant Junior Grade Emily K.
                                              described in this section by verbal radio                                                                     yards of the unstable barge and
                                                                                                      Rowan, U.S. Coast Guard Sector San
                                              broadcasts and written notice to                                                                              associated recovery efforts centered in
                                                                                                      Francisco; telephone 415–399–7443,
                                              mariners. The Coast Guard vessels                                                                             approximate position 37° 59′ 41.88″ N,
                                                                                                      email emily.k.rowan@uscg.mil.
                                              enforcing this section can be contacted                                                                       121° 25′ 8.88″ W (NAD 83). The effect
                                                                                                      SUPPLEMENTARY INFORMATION:
                                              on marine band radio VHF–FM channel                                                                           of the temporary safety zone is intended
                                              16 (156.8 MHZ). The COTP Honolulu                       I. Table of Abbreviations                             to protect personnel, vessels, and the
                                              and his or her designated                                                                                     marine environment in these navigable
                                              representatives can be contacted at                     CFR Code of Federal Regulations                       waters from potential hazards associated
                                                                                                      DHS Department of Homeland Security                   with the barge and associated recovery
                                              telephone number listed in paragraph                    FR Federal Register
                                              (c)(3) of this section.                                                                                       efforts. No vessel or person will be
                                                                                                      NPRM Notice of proposed rulemaking
                                                 (6) The Coast Guard may be assisted                  § Section                                             permitted to enter the safety zone
                                              in the patrol and enforcement of the                    U.S.C. United States Code                             without obtaining permission from the
                                              safety zone by Federal, State, and local                                                                      COTP or a designated representative.
                                              agencies.                                               II. Background Information and
                                                                                                      Regulatory History                                    V. Regulatory Analyses
                                                Dated: May 7, 2018.                                                                                           We developed this rule after
                                                                                                         The Coast Guard is issuing this
                                              M.C. Long,                                                                                                    considering numerous statutes and
                                                                                                      temporary rule without prior notice and
                                              Captain, U.S. Coast Guard, Captain of the               opportunity to comment pursuant to                    Executive orders related to rulemaking.
                                              Port Honolulu.                                                                                                Below we summarize our analyses
                                                                                                      authority under section 4(a) of the
                                              [FR Doc. 2018–10049 Filed 5–10–18; 8:45 am]             Administrative Procedure Act (APA) (5                 based on a number of these statutes and
                                              BILLING CODE 9110–04–P                                  U.S.C. 553(b)). This provision                        Executive orders, and we discuss First
                                                                                                      authorizes an agency to issue a rule                  Amendment rights of protestors.
                                                                                                      without prior notice and opportunity to               A. Regulatory Planning and Review
                                              DEPARTMENT OF HOMELAND                                  comment when the agency for good
                                              SECURITY                                                cause finds that those procedures are                    Executive Orders 12866 and 13563
                                                                                                      ‘‘impracticable, unnecessary, or contrary             direct agencies to assess the costs and
                                              Coast Guard                                                                                                   benefits of available regulatory
                                                                                                      to the public interest.’’ Under 5 U.S.C.
                                                                                                      553(b)(B), the Coast Guard finds that                 alternatives and, if regulation is
                                              33 CFR Part 165                                                                                               necessary, to select regulatory
                                                                                                      good cause exists for not publishing a
                                              [Docket Number USCG–2018–0387]                          notice of proposed rulemaking (NPRM)                  approaches that maximize net benefits.
                                                                                                      with respect to this rule because of the              Executive Order 13771 directs agencies
                                              RIN 1625–AA00                                                                                                 to control regulatory costs through a
                                                                                                      emergent nature of the situation. Notice
                                                                                                      and comment procedures would be                       budgeting process. This rule has not
                                              Safety Zone; Barge PFE–LB444, San
                                                                                                      impracticable because immediate action                been designated a ‘‘significant
                                              Joaquin River, Blackslough Landing,
                                                                                                      is needed protect personnel, vessels,                 regulatory action,’’ under Executive
                                              CA
                                                                                                      and the marine environment from                       Order 12866. Accordingly, this rule has
                                              AGENCY:    Coast Guard, DHS.                            potential hazards associated with the                 not been reviewed by the Office of
                                              ACTION:   Temporary final rule.                         barge and associated recovery efforts.                Management and Budget (OMB), and
                                                                                                         Under 5 U.S.C. 553(d)(3), the Coast                pursuant to OMB guidance it is exempt
                                              SUMMARY:   The Coast Guard is                           Guard finds that good cause exists for                from the requirements of Executive
                                              establishing a temporary safety zone for                making this rule effective less than 30               Order 13771.
                                              navigable waters of the San Joaquin                     days after publication in the Federal                    This regulatory action determination
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                                              River due to an unstable, partially                     Register. For the reasons stated above,               is based on the limited duration and
                                              submerged barge with hull number                        delaying the effective date of the rule               narrowly tailored geographic area of the
                                              PFE–LB444. The temporary safety zone                    would be impracticable.                               safety zone. Although this rule restricts
                                              is needed to protect personnel, vessels,                                                                      access to the waters encompassed by the
                                              and the marine environment from                         III. Legal Authority and Need for Rule                safety zone, the effect of this rule will
                                              potential hazards created by the barge                     The Coast Guard is issuing this rule               not be significant because the local
                                              and associated recovery efforts. Entry of               under authority in 33 U.S.C. 1231; 50                 waterway users will be notified via


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Document Created: 2018-11-02 09:49:44
Document Modified: 2018-11-02 09:49:44
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective without actual notice May 11, 2018. For purposes of enforcement, actual notice will be used if active lava associated with the Kilauea activity enters into the Pacific Ocean prior to May 11, 2018.
ContactIf 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]
FR Citation83 FR 21876 
RIN Number1625-AA00
CFR AssociatedHarbors; Marine Safety; Navigation (Water); Reporting and Recordkeeping Requirements; Security Measures and Waterways

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