[Federal Register Volume 68, Number 144 (Monday, July 28, 2003)]
[Proposed Rules]
[Pages 44256-44259]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19145]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-03-022]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In order to maintain an increased maritime security posture, 
the Coast Guard proposes to establish regulations for the security and 
safety of large passenger vessels in the navigable waters of the 
Portland, OR Captain of the Port zone. This proposed security and 
safety zone, when enforced by the Captain of the Port Portland, will 
provide for the regulation of vessel traffic in the vicinity of large 
passenger vessels in the navigable waters of the United States.

DATES: Comments and related material must reach the Coast Guard on or 
before August 27, 2003.

ADDRESSES: You may mail comments and related material to Commanding 
Officer, Marine Safety Office Portland, 6767 N. Basin Ave, Portland, OR 
97217. Marine Safety Office Portland maintains the public docket 
[CGD13-03-022] 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 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: LT(jg) Tad Drozdowski, c/o Captain of 
the Port Portland, 6767 N. Basin Ave, Portland, OR 97217 at 503-240-
9370.

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-
022), 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 
that your submission 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 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Marine Safety Office Portland at 
the address under ADDRESSES explaining why one would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a separate notice in the Federal Register.

Background and Purpose

    Hostile entities continue to operate 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.), 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 ongoing hostilities in Afghanistan and Iraq have made it 
prudent for U.S. ports and waterways to be on a higher state of alert 
because the al Qaeda organization and other similar organizations have 
declared an ongoing intention to conduct armed attacks on U.S. 
interests worldwide. On May 2, 2003, the Captain of the Port Portland 
issued a temporary final rule (TFR) (68 FR 23390, CGD13-03-012, 33 CFR 
165.T13-006) establishing a large passenger vessel security and safety 
zone, which expires on September 12, 2003. The Coast Guard, through 
this proposed rule, intends to continue to assist large passenger 
vessels by establishing a permanent security and safety zone that when 
enforced by the Captain of the Port would 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

[[Page 44257]]

Port or his designee. The Captain of the Port may be assisted by other 
federal, state, or local agencies.

Discussion of Proposed Rule

    This proposed rule, for security and safety concerns, would control 
vessel movement in a regulated area surrounding large passenger 
vessels. The Coast Guard received one comment regarding the scope and 
impact of the TFR. Specifically, the commenter noted that it would be 
difficult for the average waterway user to distinguish a large 
passenger vessel which is subject to the rule from vessels of similar 
size and design that are not subject to the rule. We have considered 
this comment in adopting the proposed rule.
    The intent of the proposed rule is to protect those passenger 
vessels readily apparent to a reasonable waterway user as carrying 
passengers such as cruise ships, ferries, and excursion vessels. These 
vessels have been determined to be most at risk from possible hostile 
activities. Additionally, the master of such vessels, Coast Guard or 
the designated official patrol must provide verbal notification to the 
waterway user if they are in the vicinity of the exclusionary zone. 
This would eliminate confusion for waterway users.
    The other idea offered by the commenter suggested establishing 
national standards of identifying vessels around which security zones 
have been established. COTP Portland has the authority to publish and 
enforce security zones solely in his area of responsibility. The 
Commandant of the Coast Guard has authority to implement national 
standards. Therefore, this proposal will be forwarded to our 
headquarters for consideration. However, the need to enforce this 
security zone in the COTP Portland zone is important and cannot be 
delayed while this proposal is under consideration.
    This proposed rule would be enforced from time to time by the 
Captain of the Port Portland for such time as he deems necessary to 
prevent damage or injury to any vessel or waterfront facility, to 
safeguard ports, harbors, territories, or waters of the United States 
or to secure the observance of the rights and obligations of the United 
States. The Captain of the Port Portland will cause notice of the 
activation of this security and safety zone to be made by all 
appropriate means to effect the widest publicity among the affected 
segments of the public, including Marine Safety Office Portland's 
internet web page located at http://www.uscg.mil/d13/units/msoportland. 
In addition, Marine Safety Office Portland maintains a telephone line 
that is staffed 24 hours a day, 7 days a week. The public can contact 
Marine Safety Office Puget Sound at (503) 240-9311 to obtain 
information concerning enforcement of this rule. 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 a large passenger vessel 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 as defined in paragraph (b), is allowed within 100 yards 
of a large passenger vessel that is underway or at anchor, unless 
authorized by the official patrol or large passenger vessel master. 
Vessels requesting to pass within 100 yards of a large passenger vessel 
that is underway or at anchor shall contact the official patrol 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 
that is underway or at anchor in order to ensure a safe passage in 
accordance with the Navigation Rules. Similarly, vessels at anchor may 
be permitted to remain at anchor within 100 yards of passing large 
passenger vessel. Public vessels for the purpose of this proposed rule 
are vessels owned, chartered, or operated by the United States, or by a 
State or political subdivision thereof.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
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 the regulatory policies 
and procedures of DHS is unnecessary.
    Although this proposed rule would restrict access to the regulated 
area, the effect of this proposed rule will not be significant because: 
(i) Individual large passenger vessel security and safety zones are 
limited in size; (ii) the official on-scene 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; (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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would 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.
    This proposed rule would 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 official on-scene 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.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121),

[[Page 44258]]

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 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 proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this proposed rule elsewhere 
in this preamble.

Taking of Private Property

    This proposed rule would not effect 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
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 this proposed 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 proposed 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 proposed 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 proposed 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 proposed rule 
is categorically excluded from further environmental documentation 
under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D. 
The environmental analysis and Categorical Exclusion Determination will 
be prepared and be available in the docket for inspection and copying 
where indicated under ADDRESSES. All standard environmental measures 
remain in effect.

List of Subjects in 33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  165.1318 to read as follows:


Sec.  165.1318  Security and Safety Zone Regulations, Large Passenger 
Vessel Protection, Portland, OR Captain of the Port Zone

    (a) Notice of enforcement or suspension of enforcement.
    The large passenger vessel security and safety zone established by 
this section will be enforced only upon notice by the Captain of the 
Port Portland. Captain of the Port Portland will cause notice of the 
enforcement of the large passenger vessel security and safety zone to 
be made by all appropriate means to effect the widest publicity among 
the affected segments of the public including publication in the 
Federal Register as practicable, in accordance with 33 CFR 165.7(a). 
Such means of notification may also include but are not limited to, 
Broadcast Notice to Mariners or Local Notice to Mariners. The Captain 
of the Port Portland will issue a Broadcast Notice to Mariners and 
Local Notice to Mariners notifying the public when enforcement of the 
large passenger vessel security and safety zone is suspended.
    (b) Definitions. As used in this section--

[[Page 44259]]

    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 as Federal Law Enforcement 
Officers to enforce this section will be designated as the Official 
Patrol.
    Public vessel means vessels owned, chartered, or operated by the 
United States, or by a State or political subdivision thereof.
    Oregon Law Enforcement Officer means any Oregon Peace Officer as 
defined in Oregon Revised Statutes section 161.015.
    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.
    (c) 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 in the navigable waters of 
the United States, in Portland, OR starting at the Columbia River Bar 
``C'' buoy and extending eastward on the Columbia River to Kennewick, 
WA and upriver through Lewiston, ID on the Snake River.
    (d) Compliance. The large passenger vessel security and safety zone 
established by this section remains in effect around large passenger 
vessels at all times, whether the large passenger vessel is underway, 
anchored, or moored. Upon notice of enforcement by the Captain of the 
Port Portland, the Coast Guard will enforce the large passenger vessel 
security and safety zone in accordance with rules set out in this 
section. Upon notice of suspension of enforcement by the Captain of the 
Port Portland, all persons and vessels are authorized to enter, 
transit, and exit the large passenger vessel security and safety zone, 
consistent with the Navigation Rules.
    (e) Navigation Rules. The Navigation Rules shall apply at all times 
within a large passenger vessel security and safety zone.
    (f) Restrictions based on distance from large passenger vessel. 
When within a large passenger vessel security and safety zone, all 
vessels 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 that is underway or at anchor, 
unless authorized by the on-scene official patrol or large passenger 
vessel master.
    (g) Requesting authorization to operate within 100 yards of large 
passenger vessel. To request authorization to operate within 100 yards 
of a large passenger vessel that is underway or at anchor, contact the 
on-scene official patrol or large passenger vessel master on VHF-FM 
channel 16 or 13.
    (h) Maneuver-restricted vessels. 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 an anchored large passenger 
vessel.
    (i) Stationary vessels. When a large passenger vessel approaches 
within 100 yards of any vessel that is moored or anchored, the 
stationary vessel must stay moored or anchored while it remains with in 
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.
    (j) Exemption. Public vessels as defined in paragraph (b) of this 
section are exempt from complying with paragraphs (c), (d), (f), (g), 
(h), and (i), of this section.
    (k) 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 not present in sufficient force to provide effective 
enforcement of this section 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.
    (l) 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: July 15, 2003.
Paul D. Jewell,
Captain, Coast Guard, Captain of the Port, Portland, Oregon.
[FR Doc. 03-19145 Filed 7-25-03; 8:45 am]
BILLING CODE 4910-15-P