[Federal Register Volume 78, Number 2 (Thursday, January 3, 2013)]
[Rules and Regulations]
[Pages 263-266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31561]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-1068]
RIN 1625-AA00


Safety Zones; TEMCO Grain Facilities; Columbia and Willamette 
Rivers

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing temporary safety zones around 
the TEMCO grain facilities on the Columbia River in Kalama, WA and the 
Willamette River in Portland, OR. These safety zones extend to the 
waters of the Columbia and Willamette Rivers, respectively, 
approximately between the navigable channel and the facility described. 
These safety zones are being established to ensure that protest 
activities relating to a labor dispute involving these facilities do 
not create hazardous navigation conditions for vessels in the navigable 
channel or vessels attempting to moor at the facilities.

DATES: This rule is effective January 3, 2013 and has been enforced 
with actual notice since December 7, 2012 and it will be enforced until 
February 4, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2012-1068]. 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

[[Page 264]]

    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 since 
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 calling on the 
Columbia Grain or United Grain Corporation facilities will have arrived 
and/or departed before the end of a 30-day period. This delay would 
eliminate the safety zones' effectiveness and usefulness in protecting 
persons, property, and the safe navigation of maritime traffic during 
the 30-day period.

B. Basis and Purpose

    These safety zones are being implemented to help ensure the safe 
navigation of maritime traffic on the Columbia and Willamette Rivers 
while grain-shipment vessels transit to and from the TEMCO grain 
facilities. These safety zones apply equally to all waterway users and 
are intended to allow maximum 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. In addition, these safety zones around 
the grain facilities are intended to ensure that protestors are not 
injured due to the effects of the strong river currents around the 
facilities' docks, piers, and wharves.

C. Discussion of the Final Rule

    This rule establishes temporary safety zones around the TEMCO grain 
facility located on the Columbia River in Kalama, WA and the TEMCO 
grain facility located on the Willamette River in Portland, OR.
    The safety zone around the TEMCO grain facility in Kalama, WA is 
enclosed by three lines and the shoreline: line one starting on the 
shoreline at 45-59'10'' N/122-50'09'' W then heading 150 yards offshore 
to 45-59'09'' N/122-50'14'' W then heading up river 385 yards to 45-
58'58'' N/122-50'07'' then heading 150 yards to the shoreline ending at 
45-59'00'' N/122-50'01'' W. In essence, these boundaries extend from 
the shoreline of the facility 150 yards onto the river from each corner 
of the facility and encompass all waters and structures therein. No 
person or vessel may enter or remain in the safety zone unless 
authorized by the Sector Columbia River Captain of the Port or his 
designated representatives.
    The safety zone around the TEMCO grain facility in Portland, OR is 
also enclosed by three lines and the shoreline: line one starting on 
the shoreline at 45-32'10'' N/122-40'34'' W then heading 150 yards 
offshore to 45-32'09'' N/122-40'39'' W then heading up river 275 yards 
to 45-32'01'' N/122-40'33'' then heading 150 yards to the shoreline 
ending at 45-32'04'' N/122-40'28'' W. In essence, these boundaries 
extend from the shoreline of the facility 150 yards onto the river from 
each corner of the facility and encompass all waters and structures 
therein. No person or vessel may enter or remain in the safety zone 
unless authorized by the Sector Columbia River Captain of the Port or 
his designated representatives.
    This rule has been enforced with actual notice since December 7, 
2012 and it will be enforced until 30 days from date of publication in 
the Federal Register.

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 areas, the effect of this rule will 
not be significant because: (i) The safety zones are limited in size; 
(ii) the official on-scene patrol may authorize access to the safety 
zones; (iii) the safety zones will effect limited geographical 
locations for a limited time; and (iv) the Coast Guard will make 
notifications via maritime advisories so mariners can adjust their 
plans accordingly.

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 will not have a significant economic impact 
on a substantial number of small entities for the following reasons: 
(i) The safety zones are limited in size; (ii) the official on-scene 
patrol may authorize access to the safety zones; (iii) the safety zones 
will effect limited geographical locations 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 (Pub. L. 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

[[Page 265]]

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 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.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
In preparing this temporary rule, the Coast Guard carefully considered 
the rights of lawful protestors. The safety zones created by this rule 
do not prohibit members of the public from assembling on shore or 
expressing their points of view from locations on shore. In addition, 
the Captain of the Port has identified waters adjacent to this safety 
zone where those desiring to do so can assemble and express their views 
without compromising the safety navigational safety. These suggested 
protest areas are as follows: TEMCO Kalama Facility from the shoreline 
at 45-59'10'' N/122-50'09'' W a line heading offshore 150 yards to 45-
59'09'' N/122-50'14'' W then heading up river 350 yards to 45-58'58'' 
N/122-50'07'' W then heading to the shoreline, ending at 45-59'00'' N/
122-50'01'' W. TEMCO Irving Facility from the shoreline at 45-32'10'' 
N/122-40'34'' W a line heading offshore 150 yards to 45-32'09'' N/122-
40'39'' W then heading up river 275 yards to 45-32'01'' N/122-40'33'' 
then heading to the shoreline, ending at 45-32'04'' N/122-40'28'' W.
    Protesters are asked to contact the person listed in the FOR 
FURTHER INTFORMATION 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 temporary safety 
zones around the Columbia Grain facility on the Willamette River in 
Portland, OR and the United Grain Corporation facility on the Columbia 
River in Vancouver, WA. 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:

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.T13.237 to read as follows:

[[Page 266]]

Sec.  165.T13.237  Safety Zones; TEMCO Grain Facilities; 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 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) Locations. The following areas are safety zones:
    (1) TEMCO Kalama: All navigable waters of the United States within 
the Sector Columbia River Captain of the Port Zone enclosed by three 
lines and the shoreline: Line one starting on the shoreline at 45-
59'10'' N/122-50'09'' W then heading 150 yards offshore to 45-59'09'' 
N/122-50'14'' W then heading up river 385 yards to 45-58'58'' N/122-
50'07'' then heading 150 yards to the shoreline ending at 45-59'00'' N/
122-50'01'' W.
    (2) TEMCO Portland: All navigable waters of the United States 
within the Sector Columbia River Captain of the Port Zone enclosed by 
three lines and the shoreline: Line one starting on the shoreline at 
45-32'10'' N/122-40'34'' W then heading 150 yards offshore to 45-
32'09'' N/122-40'39'' W then heading up river 275 yards to 45-32'01'' 
N/122-40'33'' then heading 150 yards to the shoreline ending at 45-
32'04'' N/122-40'28'' W.
    (c) Effective period. The safety zones created in this section will 
be in effect from December 7, 2012 and will be enforced until 30 days 
from date of publication in the Federal Register. They will be 
activated for enforcement as described in paragraph (d) of this 
section.
    (d) Enforcement periods. (1) The Sector Columbia River Captain of 
the Port will cause notice of the enforcement of these safety zones 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 these safety zones is suspended.
    (2) Upon notice of enforcement by the Sector Columbia River Captain 
of the Port the Coast Guard will enforce these safety zones 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 zones, 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 these 
safety zones 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 these safety 
zones 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 zones.
    (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 Sector Columbia River Captain of the Port 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: December 7, 2012.
B.C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2012-31561 Filed 1-2-13; 8:45 am]
BILLING CODE 9110-04-P