[Federal Register Volume 68, Number 177 (Friday, September 12, 2003)]
[Rules and Regulations]
[Pages 53677-53680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23303]


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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: Final rule.

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SUMMARY: In order to maintain an increased maritime security posture, 
the Coast Guard is establishing regulations for the security and safety 
of large passenger vessels in the navigable waters of the Portland, OR 
Captain of the Port zone. This 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: This rule is effective September 12, 2003.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket [CGD13-03-022] and are 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: 

Regulatory Information

    On July 28, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security and Safety Zone; Protection of Large 
Passenger Vessels, Portland, OR'' in the Federal Register (68 FR 
44256). We received no comments during the comment period. No public 
hearing was requested, and none was held.
    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

[[Page 53678]]

Register. 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. Similar 
protection is currently being provided by a temporary final rule (TFR), 
but that temporary section, 33 CFR T13-006, will expire September 12, 
2003 (68 FR 23390, May 2, 2003). Continuous protection from the threats 
posed by hostile entities is necessary for the protection of large 
passenger vessels in the COTP Portland, OR zone. For these reasons, it 
would be impracticable, unnecessary, and contrary to the public 
interest to wait 30 days to enforce the regulation after publication 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.
    Upon the expiration of the temporary security zone under 33 CFR 
165.T13-006, through this final rule the Coast Guard will continue to 
assist large passenger vessels by establishing a permanent security and 
safety zone that when enforced by the Captain of the Port will 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 Comments and Changes

    The Coast Guard received no comments in response to the NPRM 
proposing this final rule. In our NPRM, however, we did address a 
comment received in response to the TFR when we drafted our proposed 
final rule (68 FR 44257, July 28, 2003). We have not made any changes 
from the proposed rule to the final rule.

Regulatory Evaluation

    This 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). Although this rule will restrict access to the 
regulated area, the effect of this 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 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 will 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 rule 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 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 will 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 will economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. 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 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

[[Page 53679]]

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 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 this 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 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 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 review indicates this 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 has been prepared and 
will 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 
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 NAVIATION 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; 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.


0
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--
    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 with in the zone and take other actions authorized by the 
Captain of the Port. Persons authorized as Federal Law Enforcement 
Officers 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 section 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

[[Page 53680]]

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 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: September 3, 2003.
Paul D. Jewell,
Captain, U.S. Coast Guard, Captain of the Port, Portland.
[FR Doc. 03-23303 Filed 9-11-03; 8:45 am]
BILLING CODE 4910-15-P