[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Rules and Regulations]
[Pages 6209-6213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01941]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0010]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and 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 the Columbia Grain facility on the Willamette River in Portland, 
OR, the United Grain Corporation facility on the Columbia River in 
Vancouver, WA, the Temco Irving facility on the Willamette River in 
Portland, OR, or the Temco Kalama facility on the Columbia River in 
Kalama, 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 from January 17, 2013 
until January 30, 2013. It is effective in the Federal Register from 
January 30, 2013 until April 26, 2013.
    Comments and related material must be received by the Coast Guard 
on or before March 1, 2013.
    Requests for public meetings must be received by the Coast Guard on 
or before February 6, 2013.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2013-0010. 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.
    You may submit comments, identified by docket number, using any one 
of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

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. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section

[[Page 6210]]

of this document to which each comment applies, and provide a reason 
for each suggestion or recommendation. You may submit your comments and 
material online at http://www.regulations.gov, or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online, it will be considered received by the Coast Guard when 
you successfully transmit the comment. If you fax, hand deliver, or 
mail your comment, it will be considered as having been received by the 
Coast Guard when it is received at the Docket Management Facility. We 
recommend that you include your name and a mailing address, an email 
address, or a telephone number in the body of your document so that we 
can contact you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as 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.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one, using one of the methods specified under ADDRESSES. 
Please explain why you believe a public meeting would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a later notice in the Federal Register.

B. 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 the rule is intended to protect grain shipment vessels and 
potential protest activity cannot be postponed by the Coast Guard. 
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 before promulgation.
    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.
    Although the Coast Guard is issuing 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, 2013. 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.

C. Basis and Purpose

    Labor protests relating grain-shipment vessels involved in commerce 
with the Columbia Grain facility on the Willamette River in Portland, 
OR, the United Grain Corporation facility on the Columbia River in 
Vancouver, WA, the Temco Irving facility on the Willamette River in 
Portland, OR, or the Temco Kalama facility on the Columbia River in 
Kalama, WA have the potential to create undue maritime hazards. The 
Coast Guard believes that a safety zone is necessary to 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. 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.

D. Discussion of the Interim 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, the United Grain Corporation facility 
on the Columbia River in Vancouver, WA, the Temco Irving facility on 
the Willamette River in Portland, OR, or the Temco Kalama facility on 
the Columbia River in Kalama, 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 January 17, 
2013 and it will be enforced until 90 days from the date of publication 
in the Federal Register.

E. Regulatory Analyses

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

[[Page 6211]]

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.

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 (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 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. 
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 in the vicinity of these 
safety zones where those desiring to do so can assemble and express 
their views without compromising navigational safety. 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 From Environmental Health Risks

    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.

[[Page 6212]]

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 grain 
export facilities 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:

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.T13-239 to read as follows:


Sec.  165.T13-239  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) Grain-shipment vessel means any vessel bound for or departing 
from any of the following waterfront facilities: Columbia Grain in 
Portland, OR, United Grain Corporation in Vancouver, WA, Temco Irving 
in Portland, OR, and Temco Kalama in Kalama, WA, or any vessel 
assisting such a vessel to moor or maneuver, to include, but not 
limited to tugs, pilot boats, and launches.
    (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 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.
    (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.
    (c) Effective Period. The safety zones created in this section will 
be in effect from January 17, 2013 and will be enforced until April 26, 
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. 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 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

[[Page 6213]]

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 17, 2013.
B.C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2013-01941 Filed 1-29-13; 8:45 am]
BILLING CODE 9110-04-P