[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Rules and Regulations]
[Pages 74587-74589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30298]
[[Page 74587]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2012-1028]
RIN 1625-AA00
Safety Zone; Grain-Shipment Vessels, Columbia and Willamette
Rivers
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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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 the Columbia Grain facility on the Willamette River in Portland,
OR, and the United Grain Corporation facility on the Columbia River in
Vancouver, WA while they are located on the Columbia and Willamette
Rivers. This safety zone extends to waters 500 yards ahead of the
vessel and 200 yards abeam and astern of the vessel. This safety zone
is being established to ensure that protest activities relating to a
labor dispute do not create hazardous navigation conditions for any
vessel or other river user in the vicinity of the safety zone.
DATES: This rule is effective with actual notice beginning November 16,
2012 until December 17, 2012. This rule is effective in the Code of
Federal Regulations from December 17, 2012 until January 16, 2013.
ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2012-1028]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 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 rule,
call or email Ensign Ian P. McPhillips, Waterways Management Division,
Marine Safety Unit Portland, U.S. Coast Guard; telephone (503) 240-
9319, email [email protected]. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
A. Regulatory History and Information
The Coast Guard is issuing this final 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 impracticable due
to the lack of advance notice of the underlying dispute. Delayed
promulgation may result in injury or damage to the maritime public,
vessel crews, the vessels themselves, the facilities, and law
enforcement personnel from protest activities that could occur prior to
conclusion of a notice and comment period.
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 because to do otherwise would be
impracticable since the arrival of grain-shipment vessels cannot be
delayed by the Coast Guard and protest activities are unpredictable and
potentially volatile and may result in injury to persons, property, or
the environment. Delaying the effective date until 30 days after
publication may mean that grain-shipment vessels will have arrived or
departed the Columbia and Willamette Rivers before the end of the 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 before 30 days have elapsed.
B. Basis and Purpose
Due to a labor dispute regarding grain-shipment vessels involved in
commerce with the Columbia Grain facility, a safety zone is needed to
help ensure the safe navigation of maritime traffic on the Columbia and
Willamette Rivers while grain-shipment vessels transit to and from
grain export facilities in the Sector Columbia River Captain of the
Port Zone. There is the potential for injury and damage to both
protestors and shipping due to the labor dispute. The Coast Guard
believes that a safety zone is needed to allow maximal use of the
waterway consistent with safe navigation and to ensure that protestors
and other river users are not injured by deep-draft vessels with
maneuvering characteristics with which they may be unfamiliar.
C. Discussion of the Final Rule
This rule establishes a temporary safety zone around grain-shipment
vessels involved in commerce with the Columbia Grain facility on the
Willamette River in Portland, OR, and the United Grain Corporation
facility on the Columbia River in Vancouver, WA while they are located
on the Columbia and Willamette Rivers. This safety zone extends to
waters 500 yards ahead of the vessel and 200 yards abeam and astern of
the vessel. No person or vessel may enter or remain in the safety zone
without authorization from the Sector Columbia River Captain of the
Port or his designated representatives.
This rule has been enforced with actual notice since November 16,
2012 and it will be enforced until 30 days from date of publication in
the Federal Register. If unsafe conditions continue beyond that date,
the Coast Guard will consider extending the duration of the safety
zone.
D. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on these statutes and executive orders.
1. 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 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. Although this rule will
restrict access to the regulated area, the effect of this rule will not
be significant because: (i) The safety zone is limited in size; (ii)
the official on-scene patrol may authorize access to the safety zone;
(iii) the safety zone 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.
[[Page 74588]]
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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) The
safety zone is limited in size; (ii) the official on-scene patrol may
authorize access to the safety zone; (iii) the safety zone 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.
3. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT,
above.
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.
4. 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).
5. Federalism
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 determined
that this rule does not have implications for federalism.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. Energy Effects
This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.
13. Technical Standards
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
14. 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 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 the establishment of a temporary safety
zone around grain-shipment vessels involved in commerce with the
Columbia Grain facility on the Willamette River in Portland, OR, and
the United Grain Corporation facility on the Columbia River in
Vancouver, WA while they are located on the Columbia and Willamette
Rivers. This rule is categorically excluded from further review under
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An
environmental analysis checklist supporting this determination and a
Categorical Exclusion Determination are available in the docket where
indicated under ADDRESSES. We seek any comments or information that may
lead to the discovery of a significant environmental impact from this
rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine Safety, Navigation (water), Reporting and
recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR Part 165 as follows:
[[Page 74589]]
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. 1226, 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, and 160.5;
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.T13-234 to read as follows:
Sec. 165.T13-234 Safety Zone; Grain-Shipment Vessels, Columbia and
Willamette 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) Navigable waters of the United States means those waters
defined as such in 33 CFR part 2.
(3) Navigation Rules means the Navigation Rules, International-
Inland.
(4) Official Patrol means those persons designated by the Captain
of the Port to monitor a 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.
(5) Public vessel means vessels owned, chartered, or operated by
the United States, or by a State or political subdivision thereof.
(6) Oregon Law Enforcement Officer means any Oregon Peace Officer
as defined in Oregon Revised Statutes section 161.015.
(7) 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 Sector Columbia River Captain of
the Port Zone, extending from the surface to the sea floor, that are:
(1) Not more than 500 yards ahead of grain-shipment vessels and 200
yards abeam and astern of grain-shipment vessels underway on the
Columbia and Willamette Rivers and involved in commerce with the
Columbia Grain facility on the Willamette River in Portland, OR, and
the United Grain Corporation facility on the Columbia River in
Vancouver, WA.
(2) Within a maximum 200-yard radius of grain-shipment vessels when
anchored, at any berth, moored, or in the process of mooring on the
Columbia and Willamette Rivers and involved in commerce with the
Columbia Grain facility on the Willamette River in Portland, OR, and
the United Grain Corporation facility on the Columbia River in
Vancouver, WA.
(c) Effective Period. The safety zones created in this section will
be in effect from November 16, 2012 and will be enforced until January
16, 2013. They will be activated for enforcement as described in
paragraph (d) of this section.
(d) Enforcement Periods. The Sector Columbia River Captain of the
Port will cause notice of the enforcement of the grain-shipment vessels
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. Such means of notification may include,
but are not limited to, Broadcast Notices to Mariners or Local Notices
to Mariners. The Sector Columbia River Captain of the Port will issue a
Broadcast Notice to Mariners and Local Notice to Mariners notifying the
public when enforcement of the safety zone is suspended.
Upon notice of enforcement by the Sector Columbia River Captain of
the Port, the Coast Guard will enforce the safety zone in accordance
with rules set out in this section. Upon notice of suspension of
enforcement by the Sector Columbia River Captain of the Port, all
persons and vessels are authorized to enter, transit, and exit the
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 Sector Columbia River Captain of
the Port, the official patrol, or other designated representatives of
the Captain of the Port.
(2) To request authorization to enter or operate within the safety
zone contact the on-scene official patrol on VHF-FM channel 16 or 13,
or the Sector Columbia River Command Center at phone number (503) 861-
6211. Authorization will be granted based on the necessity of access
and consistent with safe navigation.
(3) Vessels authorized to enter or operate within the 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 the safety zone.
(4) Maneuver-restricted vessels. When conditions permit, the on-
scene official patrol, or a designated representative of the Captain of
the Port at the Sector Columbia River Command Center, should:
(i) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to enter or operate within the
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 the safety zone; and
(iii) Permit vessels that must transit via a navigable channel or
waterway to enter or operate within the 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: November 30, 2012.
B.C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2012-30298 Filed 12-14-12; 8:45 am]
BILLING CODE 9110-04-P