[Federal Register Volume 59, Number 222 (Friday, November 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28468]


[[Page Unknown]]

[Federal Register: November 18, 1994]


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

DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Parts 345 and 346

[Docket No. 155]
RIN No. 2133-AB15

 

Federal Port Controllers; Clarification of the Event That Allows 
the Activation of the Federal Port Controller Service Agreements

AGENCY: Maritime Administration, Department of Transportation

ACTION: Proposed rule.

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

SUMMARY: These proposed amendments to the regulations of the Maritime 
Administration (MARAD) concern control and utilization of ports. The 
Federal Port Controllers regulations (46 CFR Part 346) would be amended 
to state that standby service agreements between the United States of 
America, acting through MARAD, and port authorities or private 
corporations may, at the discretion of MARAD, become operational upon 
deployment of the Armed Forces of the United States, or other 
requirements of the nation's defense. These amendments would allow the 
activation of the standby service agreements earlier in most 
emergencies. They would make the timing of the Federal Port Controller 
activation consistent with that in MARAD's regulations at 46 CFR Part 
340 governing priority use and allocation of shipping services, 
containers and chassis and port facilities. The proposed conforming 
amendment to 46 CFR Part 345 redefines ``Federal Port Controller'' to 
harmonize with the change in Part 346.

DATES: Comments on this proposed rule must be received in writing by 
January 17, 1994.

ADDRESSES: Send comments to the Secretary, Maritime Administration, 
Room 7210, 400 Seventh Street, SW, Washington, DC. 20590. Five copies 
of comments are requested but not required. All comments will be made 
available for inspection during normal business hours at the above 
address. Respondents wishing MARAD to acknowledge receipt of comments 
should enclose a stamped self-addressed envelope or postcard.

FOR FURTHER INFORMATION CONTACT: John Pisani, Director, Office of Ports 
and Domestic Shipping, Maritime Administration, Washington, DC 20590. 
Telephone: (202) 366-4357.

SUPPLEMENTARY INFORMATION: The need for these amendments to MARAD's 
regulations at 46 CFR Subchapter I-B arises because the event that 
activates the Federal Port Controller service agreements is not 
consistent with the event that activates the Priority Use and 
Allocation of Shipping Services, Containers, and Port Facilities and 
Services regulations (46 CFR Part 340).
    Under non-emergency conditions, the public ports of the United 
States are administered under a wide variety of authorities, all of 
which emanate directly or indirectly from their respective state 
governments. The wide variance in their responsibilities, 
jurisdictions, operations, and managements reflects the differences of 
the various governing bodies. The various contingency Federal 
procedures are intended to assert reasonable, uniform, limited Federal 
administration over the otherwise diverse U.S. network of civil, public 
ports in an emergency which affects the national interest. The 
procedures are set forth under three interdependent documents:
    1. Special inter-agency coordination required under emergency 
circumstances is established through the Memorandum of Understanding on 
Port Readiness. These procedures are in effect at all times.
    2. Use of real port property and related services are assured 
through the above-mentioned regulations at 46 CFR Part 340, addressing 
the priority use and allocation of port facilities, as well as shipping 
services and containers and chassis. These procedures can be put into 
effect in the event of the deployment of the Armed Forces of the United 
States or other requirements of the nation's defense.
    3. Limited Federal administration of the U.S. network of civil, 
public ports is achieved by the standby Federal Port Controller 
procedures as set forth in 46 CFR Part 346. At present, these 
procedures can only be activated upon the declaration of war or 
national emergency.
    The present disparity with respect to the event that triggers the 
inception of contingency Federal procedures under 46 CFR Parts 340 and 
346, respectively, can create confusion. Good order dictates that, in 
an emergency, all of the safeguards for national defense should be 
available at the same time, ideally at the lowest level of an emergency 
consistent with a pressing national interest. The present 46 CFR Part 
340 procedures are not triggered by the Presidential declaration of an 
emergency because of the potentiality of adverse delay. Events during 
Operation Desert Shield/Desert Storm show that, without the deployment 
mechanism, the government would not have had the authority to obtain 
needed facilities in a timely manner.
    In an emergency, at the local port level, the official named to 
become the Federal Port Controller is a key Maritime Administration 
official. He or she represents the Maritime Administration in the 
execution of Memorandum of Understanding on Port Readiness. In the 
event that it becomes necessary to exercise the service priority or 
allocation authorities of 46 CFR Part 340, the Federal Port Controller 
could act as the local Federal agent. Obviously, if it is impossible to 
activate a Federal Port Controller because an emergency has not been 
declared, it would also be impossible to use the services of the 
Federal Port Controller to assist in the allocation of priority of 
service requirements which may be needed during a deployment.
    It is unlikely that post cold war emergencies will result in the 
broad utilization of emergency declarations (as was evident in 
Operation Desert Shield/Storm). If the Federal Port Controller 
activation provision is not changed, the Government's Federal Port 
Controller emergency port management program will be unable to 
function, except as a training program. The change will allow (but not 
necessitate) activation of selected contracts without an emergency if a 
deployment is in progress.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review)

    This rulemaking has been reviewed under Executive Order 12866 
(Regulatory Planning and Review). It is not considered to be an 
economically significant regulatory action under Section 3(f) of E.O. 
12866, since it has been determined that it is not likely to result in 
a rule that may have an annual effect on the economy of $100 million or 
more, or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This rule would not significantly affect other Federal 
agencies; would not materially alter any budgetary impacts; does not 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities or the principles set forth in E.O. 12866, and 
has been determined to be a nonsignificant rule under the Department's 
Regulatory Policies and Procedures. Accordingly, it is not considered 
to be a significant regulatory action under E.O. 12866.
    This rule did not require review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Federalism

    MARAD has analyzed this rulemaking in accordance with the 
principles and criteria contained in E.O. 12612 and has determined that 
these regulations do not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

    MARAD certifies that this rulemaking will not have a significant 
economic impact on a substantial number of small entities.

Environmental Assessment

    MARAD has considered the environmental impact of this rulemaking 
and has concluded that an environmental impact statement is not 
required under the National Environmental Policy Act of 1969.

Paperwork Reduction Act

    This rulemaking contains no new reporting requirement that is 
subject to OMB approval under 5 CFR Part 1320, pursuant to the 
Paperwork Reduction Act of 1080 (44 U.S.C. 3501 et seq.).

List of Subjects in 46 CFR Parts 345 and 346

    Freight, Harbors, Maritime carriers, and National defense.

    Accordingly, MARAD proposes to amend 46 CFR Parts 345 and 346 as 
follows:

PART 345--[AMENDED]

    1. The authority citation for Part 345 would be revised to read as 
follows:

    Authority: The Defense Production Act of 1950, as amended (50 
App. U.S.C. 2061 et seq.); the Federal Civil Defense Act of 1950, as 
amended (50 App. U.S.C. 2251 et seq.); E.O. 12656, sec. 1401(7) (53 
FR 47491, 3 CFR 1988 Comp.); DOT order 1400.7D.

Sec. 1  [Amended]

    2. Section 1 of part 345, paragraph (c) would be amended by 
removing the words ``in time of national emergency'', and inserting in 
their place the words ``upon deployment of the Armed Forces of the 
United States, or other requirements of the nation's defense''.

PART 346--[AMENDED]

    1. The authority citation for Part 346 would be revised to read as 
follows:

    Authority: The Defense Production Act of 1950, as amended (50 
App. U.S.C. 2061 et seq.); the Federal Civil Defense Act of 1950, as 
amended (50 App. U.S.C. 2251 et seq.); E.O. 12656, sec. 1401(7) (53 
FR 47491, 3 CFR 1988 Comp.); DOT order 1400.7D.

Sec. 2  [Amended]

    2. Section 2 of part 346, Definitions, would be amended in 
paragraph (b), Federal Port Controller, by removing the words ``in time 
of war or national emergency'', and inserting in their place the words 
``upon deployment of the Armed Forces of the United States, or other 
requirements of the nation's defense.''
    3. Section 3 of part 346, would be revised to read as follows:

Sec. 3  Standby Agreements.

    The Director, NSA, may negotiate the standard form of service 
agreement, specified in section 4, with port authorities on a standby 
basis, prior to the deployment of the Armed Forces of the United 
States, or other requirements of the nation's defense. In such cases, 
the contractor accepts the obligation to maintain a qualified incumbent 
in the position specified in Article 1 of the service agreement and to 
be prepared to furnish the resources specified in Articles 4 and 5. An 
agreement executed on a standby basis may become operational upon the 
deployment of the Armed Forces of the United States, or other 
requirements of the nation's defense. An agreement executed after the 
deployment of the Armed Forces of the United States, or other 
requirements of the nation's defense may be operational upon execution.

Sec. 4  [Amended]

    4. Section 4 of part 346, Service agreements, would be amended as 
follows:
    a. In Article 4(a), by removing the words ``war effort or declared 
national emergency'', and inserting in their place the words 
``deployment of the Armed Forces of the United States, or other 
requirements of the nation's defense''.
    b. In Article 12, in paragraphs (b)(1) and (b)(2), by removing, in 
each paragraph, the words ``period of war or national emergency'', and 
inserting in their place the words ``deployment of the Armed Forces of 
the United States, or other requirements of the nation's defense''.

    Dated: November 14, 1994.

    By Order of the Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 94-28468 Filed 11-17-94; 8:45 am]
BILLING CODE 4910-81-P