hawaiioceanlaw.com

APEC 2011 - Security Zones Draw Some Interesting Comments

One nice feature of the digital age is that it increases transparency in government. 

The "docket" for the APEC 2011 Security Zones, as created by the U.S. Coast Guard, has the ability to submit public comments.

Comments so far discuss the impact of the Waikiki security zone on beachgoers, surf schools and the like.

 

APEC 2011 - Waterside Security Zones

I've obtained graphics from www.regulations.gov and have included them below.  The Ala Wai canal one is the old version.  The regulation states that the zone continues to the northeast side of the McCully bridge.

Ocean side Waikiki:

Koolina:

APEC 2011 Security Zones - Graphic Released by Coast Guard

 

Coast Guard Proposes APEC 2011 Security Zones

 
U.S. Coast Guard photo

The U.S. Coast Guard announced its proposed security zones for the upcoming APEC 2011 conference in Waikiki.  The graphic wasn't available yet online, but the temporary zones will include West Waikiki, Ala Wai Boat Harbor and Canal, Ko Olina offshore and East Waikiki. While the safety rules are in place, access to these areas will be restricted to authorized personnel only.

Download the regulation at Federal Register - USCG.

Supreme Court To Review FOIA Case Involving Naval Magazine at Puget Sound

News Flash - the Supreme Court is going to review a Ninth Circuit FOIA case relating to the Naval Magazine at Indian Island in Puget Sound.  FOIA cases at the Supreme Court are few and far between, so this is pretty big (for us FOIA wonks anyway).  My post on the Ninth Circuit's decision here.

The Question Presented is:

Whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others.

Briefly summarizing the Ninth Circuit decision:

The Plaintiff submitted a FOIA request for government records relating to the Naval Magazine at Indian Island in Puget Sound.  The Navy disclosed about 1000 pages of records but did not release 81 documents, citing to two exemptions of the Freedom of Information Act.

Plaintiff brought suit and the Navy obtained summary judgment from the trial court.  The Ninth Circuit affirmed the decision finding that the the records were exempt under the FOIA's Exemption 2 (exempting from disclosure matters that are “related solely to the internal personnel rules and practices of an agency.”)

This exemption protects records which could be used to circumvent government regulations or those sensitive records designed for the agency's own internal use (assuming that they are particularly sensitive).

The Navy refused to turn over maps which denoted the blast radius around the Island based on the various types of munitions stored there.  The Court found that to disclose the records posed a risk that the records would be used to circumvent the law.  Therefore, the records were not required to be disclosed under FOIA.

I have asked plaintiff's counsel for a copy of the Petition for Certiorari and will post if received.  The government's brief in opposition is here.  The government's question presented was a little different:

Whether Exemption 2 of the Freedom of Information Act, 5 U.S.C. 552(b)(2), exempts from disclosure technical explosive and ammunition safety maps used by Navy personnel for the safe handling and storage of ordnance at Naval Magazine Indian Island.

TWIC Implementation Update - Hawaii and Beyond

Yesterday was the implementation date for TWIC's in Hawaii. [There is even a large electronic sign on Sand Island Access Road warning drivers of such].

The Transportation Worker Identification Credential is a post-9/11 requirement to enhance security of critical infrastructure, especially the nation's harbors.  Per the Coast Guard, no problems were reported at any Hawaii harbors.  This is likely due to an overwhelming majority of harbor users enrollment in the program, noted here.

American Samoa, on the other hand has some interesting issues.  Per customshouse blog, implementation of the TWIC in American Samoa has been delayed, citing immigration status and concerns whether the TWIC should even be a requirement.

I posted about the TWIC program earlier here, here, and here.

Coast Guard's Superferry Security Zone Upheld

The Ninth Circuit Court of Appeals affirmed the Coast Guard's security zone for the Superferry (posted earlier here ).  In Wong v. Bush (opinion available here), the Ninth Circuit upheld the Coast Guard's security zone created to protect the Superferry in Nawiliwili Harbor on Kauai.

Several Superferry protestors challenged the Coast Guard's security zone as violative of their First Amendment rights, the National Environmental Policy Act (NEPA) and the Coast Guard's security zone regulatory authority. 

The Ninth Circuit, in cursory fashion, found the protestors to have standing to assert all of these claims and found them to be not moot (both procedural defenses which could have ended court's inquiry and caused summary rejection of protestors' arguments).

The Court found the security zone to be a reasonable time, place, manner restriction on speech, permissible under the First Amendment.  It was content neutral, narrowly tailored and left open alternative channels of communication.

The Coast Guard has the power, under NEPA, to categorically exclude certain federal actions from the requirement to conduct an environmental assessment and/or environmental impact statement.  As such, the protestors could not challenge the lack of an environmental assessment or consideration of different alternatives when the entire action was excluded from NEPA.

Finally, the Court held that the statute giving the Coast Guard authority to create security zones (50 U.S.C. 191) was not exceeded by the Superferry Security Zone.

My fellow Hawaii blawggers (Robert Thomas and Charley Foster) have posted their analysis here and here.

What About Kawaihae? TWIC Implementation Issues

West Hawaii Today reports some implementation issues with the TWIC program on the Big Island.

I posted about the TWIC program earlier here and specifically about the TWIC registration in Hilo, here.

Securing LNG Facilities - Coast Guard Authorization Bill Triggers DC Fight

Busy week in Washington, D.C. with a big fight between Congress and the Administration over whether the Coast Guard should be responsible for securing Liquified Natural Gas (LNG) facilities or whether that cost is properly paid by the facility owner.  The White House threatened a veto.  The Commandant of Coast Guard issued a statement as did the Office of Management and Budget (OMB),  here.

A side note in the bill is the transfer of the Administrative Law Judges from the Coast Guard to the National Transportation Safety Board.  These ALJ's handled merchant marine licensing suspension and revocation matters. 

The House, not fazed by the White House threat of veto, passed the bill.

R. E. S. P. E. C.T. - Coast Guard Aims to Be More Professional

Marinelog.com reports the Commandant of the U.S. Coast Guard is urging Coast Guard boarding officials and regulators to be more professional in their dealings with the maritime community.  The official pronouncement is here. 

The Commandant reports:

UNFORTUNATELY I HAVE RECEIVED REPORTS FROM HIGHLY RESPECTED
PROFESSIONALS RECOUNTING COAST GUARD BOARDINGS, INSPECTIONS, AND
INVESTIGATIONS NOT DISPLAYING PROFESSIONALISM. ADDITIONALLY, SOME
HAVE SAID THEY LOST THE COMPLETE TRUST THEY ONCE HAD IN THE COAST
GUARD AND ARE FEARFUL OF RETRIBUTION IF THEY CHALLENGE THE COAST
GUARDS CONDUCT.