[Federal Register Volume 77, Number 14 (Monday, January 23, 2012)]
[Rules and Regulations]
[Pages 3115-3118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1171]



[[Page 3115]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1069]
RIN 1625-AA00


Safety Zone; Grain-Shipment Vessels, Columbia and Snake Rivers

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule; request for comments.

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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 Export Grain Terminal, Longview, WA, while they are located on the 
Columbia and Snake Rivers. This safety zone extends to waters 500 yards 
ahead of these vessels and 200 yards abeam and astern of these vessels. 
This safety zone is being implemented to ensure that protest activities 
associated with the opening of the Export Grain Terminal to maritime 
traffic does not prevent safe navigation of grain shipment vessels and 
other vessels using the waterway during grain-shipment vessel transits 
to and from the terminal.

DATES: This rule is effective from 12:01 a.m. on January 23, 2012 until 
12:01 a.m. on April 1, 2012. Comments must be received on or before 
March 1, 2012.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-1069 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-1069 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 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 
temporary rule, call or email BM1 Sylvestre Suga, Waterways Management 
Division, Coast Guard Marine Safety Unit Portland; telephone (503) 240-
9319, email [email protected]. If you have questions on viewing 
the docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary interim 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 contrary to public 
interest because delayed promulgation may result in injury or damage to 
the maritime public, vessel crews, the vessels themselves, and law 
enforcement personnel from protest activities that could occur prior to 
conclusion of a notice and comment period.
    On September 8, 2011, a large protest occurred at Export Grain 
Terminal (EGT) in which over 200 protestors were arrested for criminal 
offenses including assault. These protest activities resulted in damage 
to rail cars and the cargo they were carrying. The Longview local 
International Longshore and Warehouse Union (ILWU) has also been 
subject to fines for contempt of court for engaging in activity that 
violated a temporary restraining order. Subsequent protest activities 
aimed at blocking rail access to EGT on September 21, 2011 led to 
further arrests.
    These protest activities arose from a labor dispute between the 
ILWU, the Port of Longview, and EGT. The dispute is ongoing and 
picketing activity occurs daily at the EGT facility in Longview, WA. 
EGT has not yet opened for vessel traffic; however, as recently as 
November 5, 2011, the president of the ILWU's Local 21 has threatened 
that protest activities will be mounted when the first vessel arrives 
to load at EGT's facility.
    The schedule of vessel arrivals at EGT is controlled by a number of 
factors over which the Coast Guard has no control. Additionally, these 
vessels may be arriving at EGT from foreign ports. Consequently, it is 
impracticable for grain-shipment vessel arrival schedules to be changed 
or delayed in order to accommodate a notice of proposed rulemaking and 
subsequent comment period.
    Due to past protest events, threats of similar protest activity in 
the future, and the significant difficulty and impracticality of 
changing vessel arrival schedules, the Coast Guard finds it is contrary 
to the public interest to delay implementation of this safety zone 
during a notice and comment period. Postponing the promulgation creates 
a very likely risk that protest activities will threaten safe 
navigation and the safety of persons and property on the Columbia and 
Snake rivers when vessels begin arriving at EGT, Longview, WA.
    Under 5 U.S.C. 553(d)(3), the Coast Guard also 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 
contrary to the public interest since the protest activities associated 
with EGT are unpredictable and potentially volatile and may result in 
injury to persons and property. Delaying the effective date until 30 
days after publication may mean that grain-shipment vessels will have 
arrived or departed the Columbia and Snake Rivers before the end of a 
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 during the transit of grain-
shipment vessels that may arrive or depart before 30 days have elapsed.
    Although the Coast Guard has good cause to issue this temporary 
rule without first publishing a proposed rule, you are invited to 
submit post-promulgation comments and related material regarding this 
rule through March 1, 2012. All comments will be reviewed as they are 
received. Your comments will assist us in drafting future rules should 
they be necessary, and may result in changes to this temporary interim 
rule before it expires. All comments received will be posted, without 
change, to http://www.regulations.gov and will include any personal 
information you have provided. We have an agreement with the Department 
of Transportation (DOT) for their Docket Management Facility to process 
online submissions to Coast Guard dockets. You may review the 
Department of Transportation's Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477), or you may visit 
http://DocketsInfo.dot.gov.

Background and Purpose

    The ILWU, the Port of Longview, WA, and EGT have been engaged in a 
labor dispute related to the newly-constructed facility. In addition to 
picketing, ILWU members have engaged in protest activities that have 
resulted in personal injury and property damage. In particular, a 
large-scale protest on

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September 8, 2011 led to arrests for criminal offenses. Additionally, 
protesters blocked the arrival of the first rail delivery of cargo to 
the facility. Although the focus of these protests was ashore, there 
were some waterborne protest activities on the waters adjacent to the 
EGT piers.
    The labor dispute continues, as do the protest efforts. As recently 
as November 5, 2011, the president of the ILWU's Local 21 threatened 
that protest activities, similar to those that occurred upon the 
arrival of the first rail shipment, will be mounted when the first 
vessel arrives to load at EGT's facility. Once EGT opens for vessel 
traffic, grain-shipment vessels will be transiting the Columbia and 
Snake Rivers with cargos of various grain products bound for and 
departing from EGT at Longview, WA. Based on the past violent protest 
activities and the ILWU's stated intent to interfere with the inaugural 
vessel arrival at EGT, Longview, WA, the Coast Guard has determined 
that a temporary safety zone is required around vessels bound for and 
departing from that facility.
    This safety zone is being implemented to help ensure the safe 
navigation of maritime traffic on the Columbia River while grain-
shipment vessels transit to and from EGT at Longview, WA. This safety 
zone applies equally to all waterway users and is intended to allow 
maximal use of the waterway consistent with safe navigation and to 
ensure that protestors are not injured by deep-draft vessels with 
maneuvering characteristics with which protesters afloat may be 
unfamiliar.

Discussion of Rule

    This rule establishes a temporary safety zone around grain-shipment 
vessels while they are located in the Columbia and Snake Rivers. This 
safety zone extends to waters 500 yards ahead of grain-shipment vessels 
and 200 yards abeam and astern of these vessels. No person or vessel 
may enter or remain in the safety zone without authorization from the 
Captain of the Port Columbia River or his designated representatives.
    This rule is effective from 12:01 a.m. on January 23, 2012 until 
12:01 a.m. on April 1, 2012.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

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. 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 grain-shipment vessel safety 
zones are limited in size; (ii) the official on-scene patrol may 
authorize access to the grain-shipment vessel safety zone; (iii) the 
grain-shipment vessel safety zone will only be effective for a limited 
geographical location over a limited duration while grain-shipment 
vessels transit to berth; 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'' 
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) 
Individual grain-shipment vessel safety zones are limited in size; (ii) 
the official on-scene patrol may authorize access to the grain-shipment 
vessel safety zone; (iii) the grain-shipment vessel safety zone for any 
given transiting grain-shipment vessel 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.

Assistance for Small Entities

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

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 believe that this rule and the process by which it was drafted 
adhere to the federalism principles outlined in Executive Order 13132. 
The Coast Guard has coordinated with the officials from the states of 
Oregon and Washington in drafting this rule. By allowing state 
enforcement of this rule, it is in accord with paragraph (h) of section 
2 of the Executive Order, which encourages recognition of 
responsibility of localities and their sub-units to pursue objectives 
through their own means. This rule puts no obligation on state or 
municipal governments, but simply allows for their participation in 
enforcement activities.

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

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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.

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.

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

    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.

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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

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 concluded 
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 is categorically excluded, under figure 2-1, 
paragraph (34)(g), of the Instruction. This rule involves the 
establishment of a temporary safety zone. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

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

    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; 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, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. Add Sec.  165.T13-200 to read as follows:


Sec.  165.T13-200  Safety Zone; Grain-Shipment Vessels, Columbia and 
Snake 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) Grain-Shipment Vessel means any vessel bound for or departing 
from Export Grain Terminal (EGT), Longview, WA, or any vessel assisting 
such a vessel to moor or maneuver.
    (3) Navigable waters of the United States means those waters 
defined as such in 33 CFR part 2.
    (4) Navigation Rules means the Navigation Rules, International-
Inland.
    (5) Official Patrol means those persons designated by the Captain 
of the Port to monitor a grain-shipment 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.
    (6) Public vessel means vessels owned, chartered, or operated by 
the United States, or by a State or political subdivision thereof.
    (7) Oregon Law Enforcement Officer means any Oregon Peace Officer 
as defined in Oregon Revised Statutes section 161.015.
    (8) 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 Columbia River Captain of the 
Port Zone, between the Columbia Bar ``CR'' buoy and extending eastward 
on the Columbia River to Kennewick, WA and upriver through Lewiston, ID 
on the Snake River, extending from the surface to the sea floor, that 
are:
    (1) Not more than 500 yards ahead of any grain-shipment vessel that 
is underway and 200 yards abeam and astern of any grain-shipment vessel 
underway, or
    (2) Within a maximum 200-yard radius of any grain-shipment vessel 
that is anchored, at any berth, moored, or in the process of mooring.
    (c) Effective Period. The safety zone created in this section will 
be in effect

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from 12:01 a.m. on January 23, 2012 until 12:01 a.m. on April 1, 2012. 
It will be activated for enforcement as described in paragraph (d) of 
this section.
    (d) Enforcement Periods. The Captain of the Port Columbia River 
will cause notice of the enforcement of the grain-shipment vessel 
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. This notification of enforcement will 
identify the grain-shipment vessel by name and IMO number. Such means 
of notification may include, but are not limited to, Broadcast Notices 
to Mariners or Local Notices to Mariners. The Captain of the Port 
Columbia River will issue a Broadcast Notice to Mariners and Local 
Notice to Mariners notifying the public when enforcement of the grain-
shipment vessel safety zone is suspended. Upon notice of enforcement by 
the Captain of the Port Columbia River, the Coast Guard will enforce 
the grain-shipment vessel safety zone in accordance with rules set out 
in this section. Upon notice of suspension of enforcement by the 
Captain of the Port Columbia River, all persons and vessels are 
authorized to enter, transit, and exit the grain-shipment vessel 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 Captain of the Port Columbia River, 
the official patrol, or other designated representatives of the Captain 
of the Port.
    (2) To request authorization to enter or operate within a grain-
shipment vessel safety zone contact the on-scene official patrol on 
VHF-FM channel 16 or 13. Authorization will be granted based on the 
necessity of access and consistent with safe navigation.
    (3) Vessels authorized to enter or operate within a grain-shipment 
vessel 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 a 
grain-shipment vessel safety zone.
    (4) Maneuver-restricted vessels. When conditions permit, the on-
scene official patrol should:
    (i) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to enter or operate within a 
grain-shipment vessel 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 a grain-shipment vessel safety zone; 
and
    (iii) Permit vessels that must transit via a navigable channel or 
waterway to enter or operate within a grain-shipment vessel 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: January 6, 2012.
B. C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Columbia River.
[FR Doc. 2012-1171 Filed 1-20-12; 8:45 am]
BILLING CODE 9110-04-P