[Federal Register Volume 77, Number 14 (Monday, January 23, 2012)]
[Rules and Regulations]
[Pages 3115-3118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1171]
[[Page 3115]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2011-1069]
RIN 1625-AA00
Safety Zone; Grain-Shipment Vessels, Columbia and Snake Rivers
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule; request for comments.
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SUMMARY: The Coast Guard is establishing a temporary safety zone around
all inbound and outbound grain-shipment vessels involved in commerce
with Export Grain Terminal, Longview, WA, while they are located on the
Columbia and Snake Rivers. This safety zone extends to waters 500 yards
ahead of these vessels and 200 yards abeam and astern of these vessels.
This safety zone is being implemented to ensure that protest activities
associated with the opening of the Export Grain Terminal to maritime
traffic does not prevent safe navigation of grain shipment vessels and
other vessels using the waterway during grain-shipment vessel transits
to and from the terminal.
DATES: This rule is effective from 12:01 a.m. on January 23, 2012 until
12:01 a.m. on April 1, 2012. Comments must be received on or before
March 1, 2012.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2011-1069 and are available online
by going to http://www.regulations.gov, inserting USCG-2011-1069 in the
``Keyword'' box, and then clicking ``Search.'' They are also available
for inspection or copying at the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or email BM1 Sylvestre Suga, Waterways Management
Division, Coast Guard Marine Safety Unit Portland; telephone (503) 240-
9319, email [email protected]. If you have questions on viewing
the docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
The Coast Guard is issuing this temporary interim rule without
prior notice and opportunity to comment pursuant to authority under
section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C.
553(b)). This provision authorizes an agency to issue a rule without
prior notice and opportunity to comment when the agency for good cause
finds that those procedures are ``impracticable, unnecessary, or
contrary to the public interest.''
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause
exists for not publishing a notice of proposed rulemaking (NPRM) with
respect to this rule because to do so would be contrary to public
interest because delayed promulgation may result in injury or damage to
the maritime public, vessel crews, the vessels themselves, and law
enforcement personnel from protest activities that could occur prior to
conclusion of a notice and comment period.
On September 8, 2011, a large protest occurred at Export Grain
Terminal (EGT) in which over 200 protestors were arrested for criminal
offenses including assault. These protest activities resulted in damage
to rail cars and the cargo they were carrying. The Longview local
International Longshore and Warehouse Union (ILWU) has also been
subject to fines for contempt of court for engaging in activity that
violated a temporary restraining order. Subsequent protest activities
aimed at blocking rail access to EGT on September 21, 2011 led to
further arrests.
These protest activities arose from a labor dispute between the
ILWU, the Port of Longview, and EGT. The dispute is ongoing and
picketing activity occurs daily at the EGT facility in Longview, WA.
EGT has not yet opened for vessel traffic; however, as recently as
November 5, 2011, the president of the ILWU's Local 21 has threatened
that protest activities will be mounted when the first vessel arrives
to load at EGT's facility.
The schedule of vessel arrivals at EGT is controlled by a number of
factors over which the Coast Guard has no control. Additionally, these
vessels may be arriving at EGT from foreign ports. Consequently, it is
impracticable for grain-shipment vessel arrival schedules to be changed
or delayed in order to accommodate a notice of proposed rulemaking and
subsequent comment period.
Due to past protest events, threats of similar protest activity in
the future, and the significant difficulty and impracticality of
changing vessel arrival schedules, the Coast Guard finds it is contrary
to the public interest to delay implementation of this safety zone
during a notice and comment period. Postponing the promulgation creates
a very likely risk that protest activities will threaten safe
navigation and the safety of persons and property on the Columbia and
Snake rivers when vessels begin arriving at EGT, Longview, WA.
Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good
cause exists for making this rule effective less than 30 days after
publication in the Federal Register because to do otherwise would be
contrary to the public interest since the protest activities associated
with EGT are unpredictable and potentially volatile and may result in
injury to persons and property. Delaying the effective date until 30
days after publication may mean that grain-shipment vessels will have
arrived or departed the Columbia and Snake Rivers before the end of a
30 day period. This delay would eliminate the safety zone's
effectiveness and usefulness in protecting persons, property, and the
safe navigation of maritime traffic during the transit of grain-
shipment vessels that may arrive or depart before 30 days have elapsed.
Although the Coast Guard has good cause to issue this temporary
rule without first publishing a proposed rule, you are invited to
submit post-promulgation comments and related material regarding this
rule through March 1, 2012. All comments will be reviewed as they are
received. Your comments will assist us in drafting future rules should
they be necessary, and may result in changes to this temporary interim
rule before it expires. All comments received will be posted, without
change, to http://www.regulations.gov and will include any personal
information you have provided. We have an agreement with the Department
of Transportation (DOT) for their Docket Management Facility to process
online submissions to Coast Guard dockets. You may review the
Department of Transportation's Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477), or you may visit
http://DocketsInfo.dot.gov.
Background and Purpose
The ILWU, the Port of Longview, WA, and EGT have been engaged in a
labor dispute related to the newly-constructed facility. In addition to
picketing, ILWU members have engaged in protest activities that have
resulted in personal injury and property damage. In particular, a
large-scale protest on
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September 8, 2011 led to arrests for criminal offenses. Additionally,
protesters blocked the arrival of the first rail delivery of cargo to
the facility. Although the focus of these protests was ashore, there
were some waterborne protest activities on the waters adjacent to the
EGT piers.
The labor dispute continues, as do the protest efforts. As recently
as November 5, 2011, the president of the ILWU's Local 21 threatened
that protest activities, similar to those that occurred upon the
arrival of the first rail shipment, will be mounted when the first
vessel arrives to load at EGT's facility. Once EGT opens for vessel
traffic, grain-shipment vessels will be transiting the Columbia and
Snake Rivers with cargos of various grain products bound for and
departing from EGT at Longview, WA. Based on the past violent protest
activities and the ILWU's stated intent to interfere with the inaugural
vessel arrival at EGT, Longview, WA, the Coast Guard has determined
that a temporary safety zone is required around vessels bound for and
departing from that facility.
This safety zone is being implemented to help ensure the safe
navigation of maritime traffic on the Columbia River while grain-
shipment vessels transit to and from EGT at Longview, WA. This safety
zone applies equally to all waterway users and is intended to allow
maximal use of the waterway consistent with safe navigation and to
ensure that protestors are not injured by deep-draft vessels with
maneuvering characteristics with which protesters afloat may be
unfamiliar.
Discussion of Rule
This rule establishes a temporary safety zone around grain-shipment
vessels while they are located in the Columbia and Snake Rivers. This
safety zone extends to waters 500 yards ahead of grain-shipment vessels
and 200 yards abeam and astern of these vessels. No person or vessel
may enter or remain in the safety zone without authorization from the
Captain of the Port Columbia River or his designated representatives.
This rule is effective from 12:01 a.m. on January 23, 2012 until
12:01 a.m. on April 1, 2012.
Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866. The
Office of Management and Budget has not reviewed it under that Order.
It is not ``significant'' under the regulatory policies and procedures
of the Department of Homeland Security (DHS). Although this rule will
restrict access to the regulated area, the effect of this rule will not
be significant because: (i) Individual grain-shipment vessel safety
zones are limited in size; (ii) the official on-scene patrol may
authorize access to the grain-shipment vessel safety zone; (iii) the
grain-shipment vessel safety zone will only be effective for a limited
geographical location over a limited duration while grain-shipment
vessels transit to berth; and (iv) the Coast Guard will make
notifications via maritime advisories so mariners can adjust their
plans accordingly.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. This rule may affect the following entities some of which may
be small entities: The owners and operators of vessels intending to
operate in the area covered by the safety zone created in this rule.
This rule will not have a significant economic impact on a
substantial number of small entities for the following reasons: (i)
Individual grain-shipment vessel safety zones are limited in size; (ii)
the official on-scene patrol may authorize access to the grain-shipment
vessel safety zone; (iii) the grain-shipment vessel safety zone for any
given transiting grain-shipment vessel will effect a limited
geographical location for a limited time; and (iv) the Coast Guard will
make notifications via maritime advisories so mariners can adjust their
plans accordingly.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-(888) 734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them.
We believe that this rule and the process by which it was drafted
adhere to the federalism principles outlined in Executive Order 13132.
The Coast Guard has coordinated with the officials from the states of
Oregon and Washington in drafting this rule. By allowing state
enforcement of this rule, it is in accord with paragraph (h) of section
2 of the Executive Order, which encourages recognition of
responsibility of localities and their sub-units to pursue objectives
through their own means. This rule puts no obligation on state or
municipal governments, but simply allows for their participation in
enforcement activities.
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
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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.
Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
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 is categorically excluded, under figure 2-1,
paragraph (34)(g), of the Instruction. This rule involves the
establishment of a temporary safety zone. An environmental analysis
checklist and a categorical exclusion determination are available in
the docket where indicated under ADDRESSES.
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; 46 U.S.C. Chapter 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. Add Sec. 165.T13-200 to read as follows:
Sec. 165.T13-200 Safety Zone; Grain-Shipment Vessels, Columbia and
Snake Rivers
(a) Definitions. As used in this section:
(1) Federal Law Enforcement Officer means any employee or agent of
the United States government who has the authority to carry firearms
and make warrantless arrests and whose duties involve the enforcement
of criminal laws of the United States.
(2) Grain-Shipment Vessel means any vessel bound for or departing
from Export Grain Terminal (EGT), Longview, WA, or any vessel assisting
such a vessel to moor or maneuver.
(3) Navigable waters of the United States means those waters
defined as such in 33 CFR part 2.
(4) Navigation Rules means the Navigation Rules, International-
Inland.
(5) Official Patrol means those persons designated by the Captain
of the Port to monitor a grain-shipment vessel safety zone, permit
entry into the zone, give legally enforceable orders to persons or
vessels within the zone and take other actions authorized by the
Captain of the Port. Federal Law Enforcement Officers authorized to
enforce this section are designated as the Official Patrol.
(6) Public vessel means vessels owned, chartered, or operated by
the United States, or by a State or political subdivision thereof.
(7) Oregon Law Enforcement Officer means any Oregon Peace Officer
as defined in Oregon Revised Statutes section 161.015.
(8) Washington Law Enforcement Officer means any General Authority
Washington Peace Officer, Limited Authority Washington Peace Officer,
or Specially Commissioned Washington Peace Officer as defined in
Revised Code of Washington section 10.93.020.
(b) Location. The following areas are safety zones: All navigable
waters of the United States within the Columbia River Captain of the
Port Zone, between the Columbia Bar ``CR'' buoy and extending eastward
on the Columbia River to Kennewick, WA and upriver through Lewiston, ID
on the Snake River, extending from the surface to the sea floor, that
are:
(1) Not more than 500 yards ahead of any grain-shipment vessel that
is underway and 200 yards abeam and astern of any grain-shipment vessel
underway, or
(2) Within a maximum 200-yard radius of any grain-shipment vessel
that is anchored, at any berth, moored, or in the process of mooring.
(c) Effective Period. The safety zone created in this section will
be in effect
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from 12:01 a.m. on January 23, 2012 until 12:01 a.m. on April 1, 2012.
It will be activated for enforcement as described in paragraph (d) of
this section.
(d) Enforcement Periods. The Captain of the Port Columbia River
will cause notice of the enforcement of the grain-shipment vessel
safety zone to be made by all appropriate means to effect the widest
publicity among the affected segments of the public as practicable, in
accordance with 33 CFR 165.7. This notification of enforcement will
identify the grain-shipment vessel by name and IMO number. Such means
of notification may include, but are not limited to, Broadcast Notices
to Mariners or Local Notices to Mariners. The Captain of the Port
Columbia River will issue a Broadcast Notice to Mariners and Local
Notice to Mariners notifying the public when enforcement of the grain-
shipment vessel safety zone is suspended. Upon notice of enforcement by
the Captain of the Port Columbia River, the Coast Guard will enforce
the grain-shipment vessel safety zone in accordance with rules set out
in this section. Upon notice of suspension of enforcement by the
Captain of the Port Columbia River, all persons and vessels are
authorized to enter, transit, and exit the grain-shipment vessel safety
zone, consistent with the Navigation Rules.
(e) Regulation. (1) In accordance with the general regulations in
Sec. 165.23 of this part, entry into or movement within these zones is
prohibited unless authorized by the Captain of the Port Columbia River,
the official patrol, or other designated representatives of the Captain
of the Port.
(2) To request authorization to enter or operate within a grain-
shipment vessel safety zone contact the on-scene official patrol on
VHF-FM channel 16 or 13. Authorization will be granted based on the
necessity of access and consistent with safe navigation.
(3) Vessels authorized to enter or operate within a grain-shipment
vessel safety zone shall operate at the minimum speed necessary to
maintain a safe course and shall proceed as directed by the on-scene
official patrol. The Navigation Rules shall apply at all times within a
grain-shipment vessel safety zone.
(4) Maneuver-restricted vessels. When conditions permit, the on-
scene official patrol should:
(i) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to enter or operate within a
grain-shipment vessel safety zone in order to ensure a safe passage in
accordance with the Navigation Rules; and
(ii) Permit commercial vessels anchored in a designated anchorage
area to remain at anchor within a grain-shipment vessel safety zone;
and
(iii) Permit vessels that must transit via a navigable channel or
waterway to enter or operate within a grain-shipment vessel safety zone
in order to do so.
(f) Exemption. Public vessels as defined in paragraph (a) of this
section are exempt from complying with paragraph (e) of this section.
(g) Enforcement. Any Coast Guard commissioned, warrant or petty
officer may enforce the rules in this section. In the navigable waters
of the United States to which this section applies, when immediate
action is required and representatives of the Coast Guard are not
present or are not present in sufficient force to provide effective
enforcement of this section, any Federal Law Enforcement Officer,
Oregon Law Enforcement Officer, or Washington Law Enforcement Officer
may enforce the rules contained in this section pursuant to 46 U.S.C.
70118. In addition, the Captain of the Port may be assisted by other
federal, state or local agencies in enforcing this section.
(h) Waiver. The Captain of the Port Columbia River may waive any of
the requirements of this section for any vessel or class of vessels
upon finding that operational conditions or other circumstances are
such that application of this section is unnecessary or impractical for
the purpose of port safety or environmental safety.
Dated: January 6, 2012.
B. C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Columbia River.
[FR Doc. 2012-1171 Filed 1-20-12; 8:45 am]
BILLING CODE 9110-04-P