[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Rules and Regulations]
[Pages 74587-74589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30298]



[[Page 74587]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-1028]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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 the Columbia Grain facility on the Willamette River in Portland, 
OR, and the United Grain Corporation facility on the Columbia River in 
Vancouver, WA while they are located on the Columbia and Willamette 
Rivers. This safety zone extends to waters 500 yards ahead of the 
vessel and 200 yards abeam and astern of the vessel. This safety zone 
is being established to ensure that protest activities relating to a 
labor dispute do not create hazardous navigation conditions for any 
vessel or other river user in the vicinity of the safety zone.

DATES: This rule is effective with actual notice beginning November 16, 
2012 until December 17, 2012. This rule is effective in the Code of 
Federal Regulations from December 17, 2012 until January 16, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2012-1028]. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 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 rule, 
call or email Ensign Ian P. McPhillips, Waterways Management Division, 
Marine Safety Unit Portland, U.S. Coast Guard; telephone (503) 240-
9319, email [email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this final 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 impracticable due 
to the lack of advance notice of the underlying dispute. Delayed 
promulgation may result in injury or damage to the maritime public, 
vessel crews, the vessels themselves, the facilities, and law 
enforcement personnel from protest activities that could occur prior to 
conclusion of a notice and comment period.
    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 Register because to do otherwise would be 
impracticable since the arrival of grain-shipment vessels cannot be 
delayed by the Coast Guard and protest activities are unpredictable and 
potentially volatile and may result in injury to persons, property, or 
the environment. Delaying the effective date until 30 days after 
publication may mean that grain-shipment vessels will have arrived or 
departed the Columbia and Willamette Rivers before the end of the 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 before 30 days have elapsed.

B. Basis and Purpose

    Due to a labor dispute regarding grain-shipment vessels involved in 
commerce with the Columbia Grain facility, a safety zone is needed to 
help ensure the safe navigation of maritime traffic on the Columbia and 
Willamette Rivers while grain-shipment vessels transit to and from 
grain export facilities in the Sector Columbia River Captain of the 
Port Zone. There is the potential for injury and damage to both 
protestors and shipping due to the labor dispute. The Coast Guard 
believes that a safety zone is needed to allow maximal use of the 
waterway consistent with safe navigation and to ensure that protestors 
and other river users are not injured by deep-draft vessels with 
maneuvering characteristics with which they may be unfamiliar.

C. Discussion of the Final Rule

    This rule establishes a temporary safety zone around grain-shipment 
vessels involved in commerce with the Columbia Grain facility on the 
Willamette River in Portland, OR, and the United Grain Corporation 
facility on the Columbia River in Vancouver, WA while they are located 
on the Columbia and Willamette Rivers. This safety zone extends to 
waters 500 yards ahead of the vessel and 200 yards abeam and astern of 
the vessel. No person or vessel may enter or remain in the safety zone 
without authorization from the Sector Columbia River Captain of the 
Port or his designated representatives.
    This rule has been enforced with actual notice since November 16, 
2012 and it will be enforced until 30 days from date of publication in 
the Federal Register. If unsafe conditions continue beyond that date, 
the Coast Guard will consider extending the duration of the safety 
zone.

D. Regulatory Analyses

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

1. 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 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. Although this rule will 
restrict access to the regulated area, the effect of this rule will not 
be significant because: (i) The safety zone is limited in size; (ii) 
the official on-scene patrol may authorize access to the safety zone; 
(iii) the safety zone 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.

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2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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) The 
safety zone is limited in size; (ii) the official on-scene patrol may 
authorize access to the safety zone; (iii) the safety zone 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.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 (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.

8. 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.

9. 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.

10. 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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
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 involves the establishment of a temporary safety 
zone around grain-shipment vessels involved in commerce with the 
Columbia Grain facility on the Willamette River in Portland, OR, and 
the United Grain Corporation facility on the Columbia River in 
Vancouver, WA while they are located on the Columbia and Willamette 
Rivers. This rule is categorically excluded from further review under 
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An 
environmental analysis checklist supporting this determination and a 
Categorical Exclusion Determination are available in the docket where 
indicated under ADDRESSES. We seek any comments or information that may 
lead to the discovery of a significant environmental impact from this 
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and 
recordkeeping requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR Part 165 as follows:

[[Page 74589]]

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. 1226, 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, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T13-234 to read as follows:


Sec.  165.T13-234  Safety Zone; Grain-Shipment Vessels, Columbia and 
Willamette 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) Navigable waters of the United States means those waters 
defined as such in 33 CFR part 2.
    (3) Navigation Rules means the Navigation Rules, International-
Inland.
    (4) Official Patrol means those persons designated by the Captain 
of the Port to monitor a 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.
    (5) Public vessel means vessels owned, chartered, or operated by 
the United States, or by a State or political subdivision thereof.
    (6) Oregon Law Enforcement Officer means any Oregon Peace Officer 
as defined in Oregon Revised Statutes section 161.015.
    (7) 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 Sector Columbia River Captain of 
the Port Zone, extending from the surface to the sea floor, that are:
    (1) Not more than 500 yards ahead of grain-shipment vessels and 200 
yards abeam and astern of grain-shipment vessels underway on the 
Columbia and Willamette Rivers and involved in commerce with the 
Columbia Grain facility on the Willamette River in Portland, OR, and 
the United Grain Corporation facility on the Columbia River in 
Vancouver, WA.
    (2) Within a maximum 200-yard radius of grain-shipment vessels when 
anchored, at any berth, moored, or in the process of mooring on the 
Columbia and Willamette Rivers and involved in commerce with the 
Columbia Grain facility on the Willamette River in Portland, OR, and 
the United Grain Corporation facility on the Columbia River in 
Vancouver, WA.
    (c) Effective Period. The safety zones created in this section will 
be in effect from November 16, 2012 and will be enforced until January 
16, 2013. They will be activated for enforcement as described in 
paragraph (d) of this section.
    (d) Enforcement Periods. The Sector Columbia River Captain of the 
Port will cause notice of the enforcement of the grain-shipment vessels 
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. Such means of notification may include, 
but are not limited to, Broadcast Notices to Mariners or Local Notices 
to Mariners. The Sector Columbia River Captain of the Port will issue a 
Broadcast Notice to Mariners and Local Notice to Mariners notifying the 
public when enforcement of the safety zone is suspended.
    Upon notice of enforcement by the Sector Columbia River Captain of 
the Port, the Coast Guard will enforce the safety zone in accordance 
with rules set out in this section. Upon notice of suspension of 
enforcement by the Sector Columbia River Captain of the Port, all 
persons and vessels are authorized to enter, transit, and exit the 
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 Sector Columbia River Captain of 
the Port, the official patrol, or other designated representatives of 
the Captain of the Port.
    (2) To request authorization to enter or operate within the safety 
zone contact the on-scene official patrol on VHF-FM channel 16 or 13, 
or the Sector Columbia River Command Center at phone number (503) 861-
6211. Authorization will be granted based on the necessity of access 
and consistent with safe navigation.
    (3) Vessels authorized to enter or operate within the 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 the safety zone.
    (4) Maneuver-restricted vessels. When conditions permit, the on-
scene official patrol, or a designated representative of the Captain of 
the Port at the Sector Columbia River Command Center, should:
    (i) Permit vessels constrained by their navigational draft or 
restricted in their ability to maneuver to enter or operate within the 
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 the safety zone; and
    (iii) Permit vessels that must transit via a navigable channel or 
waterway to enter or operate within the 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: November 30, 2012.
B.C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2012-30298 Filed 12-14-12; 8:45 am]
BILLING CODE 9110-04-P