[Federal Register Volume 68, Number 85 (Friday, May 2, 2003)]
[Rules and Regulations]
[Pages 23390-23393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10832]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-03-012]
RIN 1625-AA00


Security and Safety Zone: Protection of Large Passenger Vessels, 
Portland, OR

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; request for comments.

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SUMMARY: Increases in the Coast Guard's maritime security posture 
necessitate establishing temporary regulations for the safety and 
security of large passenger vessels in the navigable waters of the 
Portland, OR Captain of the Port zone. This security zone will provide 
for the regulation of vessel traffic in the vicinity of large passenger 
vessels.

DATES: This regulation is effective March 12, 2003, until September 12, 
2003. Comments and related material must reach the Coast Guard on or 
before June 2, 2003.

ADDRESSES: You may mail comments and related material to Marine Safety 
Office/Group Portland, 6767 North Basin Ave, Portland, OR, 97217. 
Marine Safety Office Portland maintains the public docket [CGD13-03-
012] for this rulemaking. Comments and material received from the 
public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
available for inspection or copying at Marine Safety Office Portland 
between 7 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: LTJG Tad Drozdowski, c/o Captain of 
the Port Portland, 6767 North Basin Ave, Portland, OR, (503) 240-2584.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [CGD13-03-
012], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this temporary final rule in view of 
them.

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for not publishing an NPRM and for 
making this rule effective less than 30 days after publication in the 
Federal Register. Publishing a NPRM would be contrary to public 
interest since immediate action is necessary to safeguard large 
passenger vessels from sabotage, other subversive acts, or accidents. 
If normal notice and comment procedures were followed, this rule would 
not become effective soon enough to provide immediate protection to 
large passenger vessels from the threats posed by hostile entities and 
would compromise the vital national interest in protecting maritime 
transportation and commerce. The security and safety zone in this 
regulation has been carefully designed to minimally impact the public 
while providing a reasonable level of protection for large passenger 
vessels. For these reasons, following normal rulemaking procedures in 
this case would be impracticable, unnecessary, and contrary to the 
public interest.

Background and Purpose

    Recent events highlight the fact that there are hostile entities 
operating with the intent to harm U.S. National Security. The President 
has continued the national emergencies he declared following the 
September 11, 2001 terrorist attacks (67 FR 58317 (Sept. 13, 2002) 
(continuing national emergency with respect to terrorist attacks)), 67 
FR 59447 (Sept. 20, 2002) (continuing national emergency with respect 
to persons who commit, threaten to commit or support terrorism)). The 
President also has found pursuant to law, including the Act of June 15, 
1917, as amended August 9, 1950, by the Magnuson Act (50 U.S.C. 191 et. 
seq.),

[[Page 23391]]

that the security of the United States is and continues to be 
endangered following the attacks (E.O. 13,273, 67 FR 56215 (Sept. 3, 
2002) (security endangered by disturbances in international relations 
of U.S. and such disturbances continue to endanger such relations)).
    The Coast Guard, through this action, intends to assist large 
passenger vessels by establishing a security and safety zone to exclude 
persons and vessels from the immediate vicinity of all large passenger 
vessels. Entry into this zone will be prohibited unless authorized by 
the Captain of the Port or his designee. The Captain of the Port may be 
assisted by other federal, state, or local agencies.

Discussion of Rule

    This rule, for safety and security concerns, controls vessel 
movement in a regulated area surrounding large passenger vessels. For 
the purpose of this regulation, a large passenger vessel means any 
vessel over 100 feet in length (33 meters) carrying passengers for hire 
including, but not limited to, cruise ships, auto ferries, passenger 
ferries, and excursion vessels. All vessels within 500 yards of large 
passenger vessels shall operate at the minimum speed necessary to 
maintain a safe course, and shall proceed as directed by the official 
patrol. No vessel, except a public vessel (defined below), is allowed 
within 100 yards of a large passenger vessel, unless authorized by the 
on-scene official patrol or large passenger vessel master. Vessels 
requesting to pass within 100 yards of a large passenger vessel shall 
contact the on-scene official patrol or large passenger vessel master 
on VHF-FM channel 16 or 13. The on-scene official patrol or large 
passenger vessel master may permit vessels that can only operate safely 
in a navigable channel to pass within 100 yards of a large passenger 
vessel in order to ensure a safe passage in accordance with the 
Navigation Rules. Similarly, commercial vessels anchored in a 
designated anchorage area may be permitted to remain at anchor within 
100 yards of passing large passenger vessels. Public vessels for the 
purpose of this Temporary Final Rule are vessels owned, chartered, or 
operated by the United States, or by a State or political subdivision 
thereof.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that Order. 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DHS is unnecessary.
    Although this regulation restricts access to the regulated area, 
the effect of this regulation will not be significant because: (i) 
Individual large passenger vessel security and safety zones are limited 
in size; (ii) the on-scene official patrol or large passenger vessel 
master may authorize access to the large passenger vessel security and 
safety zone; (iii) the large passenger vessel security and safety zone 
for any given transiting large passenger vessel will effect a given 
geographical location for a limited time; 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'' 
includes 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 or operators of vessels intending to operate 
near or anchor in the vicinity of large passenger vessels in the 
navigable waters of the United States to which this rule applies.
    This temporary regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: (i) Individual large passenger vessel security and safety 
zones are limited in size; (ii) the on-scene official patrol or large 
passenger vessel master may authorize access to the large passenger 
vessel security and safety zone; (iii) the passenger vessel security 
and safety zone for any given transiting large passenger vessel will 
affect a given geographic 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 want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. 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 one of the points of contact 
listed under FOR FURTHER INFORMATION CONTACT.
    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).

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 have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 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 effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and

[[Page 23392]]

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

    The Coast Guard recognizes the rights of Native American Tribes 
under the Stevens Treaties. Moreover, the Coast Guard is committed to 
working with Tribal Governments to implement local policies to mitigate 
tribal concerns. Given the flexibility of the Temporary Final Rule to 
accommodate the special needs of mariners in the vicinity of large 
passenger vessels and the Coast Guard's commitment to working with the 
Tribes, we have determined that passenger vessel security and fishing 
rights protection need not be incompatible and therefore have 
determined that this Temporary Final 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. Nevertheless, Indian Tribes that have questions concerning the 
provisions of this Temporary Final Rule or options for compliance are 
encouraged to contact the point of contact listed under FOR FURTHER 
INFORMATION CONTACT.

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.

Environment

    The Coast Guard's preliminary review indicates this temporary rule 
is categorically excluded from further environmental documentation 
under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lD. 
As an emergency action, the Environmental Analysis, requisite 
regulatory consultations, and Categorical Exclusion Determination will 
be prepared and submitted after establishment of this temporary 
passenger vessel security zone, and will be available in the docket. 
This temporary rule ensures the safety and security of large passenger 
vessels. All standard environmental measures remain in effect. The 
Categorical Exclusion Determination will be made available in the 
docket for inspection or copying where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
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(g), 
6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation 
No. 0170.

0
2. From March 12, 2003, until September 12, 2003, temporary Sec.  
165.T13-006 is added to read as follows:


Sec.  165.T13-006  Security and Safety Zone, Large Passenger Vessel 
Protection, Portland, OR

    (a) The following definitions apply to this section:
    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.
    Large passenger vessel means any vessel over 100 feet in length (33 
meters) carrying passengers for hire including, but not limited to, 
cruise ships, auto ferries, passenger ferries, and excursion vessels.
    Large passenger vessel security and safety zone is a regulated area 
of water, established by this section, surrounding large passenger 
vessels for a 500 yard radius, that is necessary to provide for the 
security and safety of these vessels.
    Navigable waters of the United States means those waters defined as 
such in 33 CFR part 2.
    Navigation Rules means the Navigation Rules, International-Inland.
    Official patrol means those persons designated by the Captain of 
the Port to monitor a large passenger vessel security and 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. Persons authorized to enforce this section are 
designated as the Official Patrol.
    Oregon Law Enforcement Officer means any Oregon Peace Officer as 
defined in Oregon Revised Statutes Sec.  161.015.
    Public vessel means vessels owned, chartered, or operated by the 
United States, or by a State or political subdivision thereof.
    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) Security and safety zone. There is established a large 
passenger vessel security and safety zone extending for a 500 yard 
radius around all large passenger vessels located in the navigable 
waters of the United States, in Portland, OR beginning at the Columbia 
River Bar ``C'' buoy extending eastward on the Columbia River to 
Kennewick, WA and upriver through Lewiston, ID on the Snake River.
    (c) The large passenger vessel security and safety zone established 
by this section remains in effect at all times, whether the large 
passenger vessel is underway, anchored, or moored.
    (d) The Navigation Rules shall apply at all times within a large 
passenger vessel security and safety zone.
    (e) All vessels within a large passenger vessel security and 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 or 
large passenger vessel master. No vessel or person is allowed within 
100 yards of a large passenger vessel, unless authorized by the on-
scene official patrol or large passenger vessel master.
    (f) To request authorization to operate within 100 yards of a large 
passenger vessel, contact the on-scene official patrol or large 
passenger vessel master on VHF-FM channel 16 or 13.

[[Page 23393]]

    (g) When conditions permit, the on-scene official patrol or large 
passenger vessel master should:
    (1) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to pass within 100 yards of a 
large passenger vessel in order to ensure a safe passage in accordance 
with the Navigation Rules; and
    (2) Permit commercial vessels anchored in a designated anchorage 
area to remain at anchor within 100 yards of a passing large passenger 
vessel; and
    (3) Permit vessels that must transit via a navigable channel or 
waterway to pass within 100 yards of a moored or anchored large 
passenger vessel with minimal delay consistent with security.
    (h) When a large passenger vessel approaches within 100 yards of a 
vessel that is moored, or anchored in a designated anchorage, the 
stationary vessel must stay moored or anchored while it remains within 
the large passenger vessel's security and safety zone unless it is 
either ordered by, or given permission by the Captain of the Port 
Portland, his designated representative or the on-scene official patrol 
to do otherwise.
    (i) Exemption. Public vessels as defined in paragraph (a) in this 
section are exempt from complying with paragraphs (e), (f), (g), (h), 
(j), and (k) of this section.
    (j) Enforcement. Any Coast Guard commissioned, warrant or petty 
officer may enforce the rules in this section. When immediate action is 
required and representatives of the Coast Guard are not present or not 
present in sufficient force to exercise effective control in the 
vicinity of a large passenger vessel, any Federal Law Enforcement 
Officer, Oregon Law Enforcement Officer or Washington Law Enforcement 
Officer may enforce the rules contained in this section pursuant to 33 
CFR 6.04-11. In addition, the Captain of the Port may be assisted by 
other federal, state or local agencies in enforcing this section.
    (k) Waiver. The Captain of the Port Portland may waive any of the 
requirements of this section for any vessel or class of vessels upon 
finding that a vessel or class of vessels, operational conditions or 
other circumstances are such that application of this section is 
unnecessary or impractical for the purpose of port security, safety or 
environmental safety.

    Dated: March 26, 2003.
Paul D. Jewell,
Captain, Coast Guard, Captain of the Port, Portland.
[FR Doc. 03-10832 Filed 5-1-03; 8:45 am]
BILLING CODE 4910-15-P