[Federal Register Volume 78, Number 181 (Wednesday, September 18, 2013)]
[Rules and Regulations]
[Pages 57261-57264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22611]



[[Page 57261]]

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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 and Grain-Shipment Assist 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 and grain-shipment assist 
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, the Temco Kalama facility on the 
Columbia River in Kalama, WA, or the Louis Dreyfus Commodities facility 
on the Willamette River in Portland, OR while they are located on the 
Columbia and Willamette Rivers and their tributaries. For grain-
shipment vessels, this safety zone extends to waters 500 yards ahead of 
the vessel and 200 yards abeam and astern of the vessel. For grain-
shipment assist vessels, this safety zone extends to waters 100 yards 
ahead of the vessel and 50 yards abeam and astern of the vessel. These 
safety zones are being established to ensure that protest activities 
related to a labor dispute do not create hazardous navigation 
conditions for any vessel or other river user in the vicinity of these 
safety zones.

DATES: This rule is effective as to persons with actual notice from 
August 30, 2013 through September 18, 2015. In compliance with 5 U.S.C. 
552(a)(1), this rule is effective without actual notice from the date 
it is published in the Federal Register, September 18, 2013, until 
September 18, 2015.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LTJG 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
TFR Temporary Final Rule

A. Regulatory History and Information

    On June 4, 2013, the Coast Guard published a temporary interim rule 
and request for comments titled, ``Safety Zone; Grain-Shipment and 
Grain-Shipment Assist Vessels, Columbia and Willamette Rivers'' in the 
Federal Register (78 FR 33224). In that temporary interim rule, the 
Coast Guard established temporary safety zones around all inbound and 
outbound grain-shipment and grain-shipment assist vessels. Although the 
Coast Guard had good cause to issue that temporary interim rule without 
first publishing a proposed rule, it invited the submission of post-
promulgation comments and related material regarding that rule through 
July 5, 2013. The Coast Guard received one submission to the docket 
that raised several objections.

B. Basis and Purpose

    Coast Guard Captains of the Port are granted authority to establish 
safety and security zones in 33 CFR 1.05-1(f) for safety and 
environmental purposes as described in 33 CFR part 165.
    This safety zone is being implemented to ensure the safe navigation 
of maritime traffic on the Columbia and Willamette Rivers and their 
tributaries while grain-shipment and grain-shipment assist vessels 
transit to and from grain export facilities, anchorages, moorings, and 
launches in the Sector Columbia River Captain of the Port Zone. In 
addition, this safety zone is intended to ensure that members of the 
maritime public, those participating in protest activities on the 
water, law enforcement personnel, and vessel crews are not injured. 
Recreational boating, fishing, and protest activity afloat in these 
safety zones is particularly hazardous because of the effects of strong 
river currents, the maneuvering characteristics of grain-shipment 
vessels, and the safety sensitive mid-stream personnel transfers 
conducted by grain-shipment assist vessels with which recreational 
boaters and protesters may be unfamiliar. This safety zone applies 
equally to all waterway users and is intended to allow maximum use of 
the waterway consistent with safe navigation. The impact of the safety 
zone on maritime activity in the area is minimal because it has been 
and will only be enforced at times when grain-shipment and grain-
shipment assist vessels are actively maneuvering. Grain-shipment vessel 
means any vessel bound for or departing or having previously loaded 
cargo at any of the following waterfront facilities: Columbia Grain in 
Portland, OR, United Grain Corporation in Vancouver, WA, Temco Irving 
in Portland, OR, Temco Kalama in Kalama, WA, or Louis Dreyfus 
Commodities in Portland, OR. This includes any vessel leaving anchor in 
the Columbia and Willamette Rivers that is bound for or had previously 
departed from the aforementioned waterfront facilities. Grain-shipment 
assist vessel means any vessel bound for or departing from a grain-
shipment vessel to assist it in navigation during the movement of the 
grain-shipment vessel in the Columbia and Willamette Rivers and their 
tributaries. This includes but is not limited to tugs, pilot boats, and 
launches.

C. Discussion of Comments, Changes and the Final Rule

    This temporary final rule is unchanged from the temporary interim 
rule that was published on June 4, 2013 (78 FR 33224) as no substantive 
changes have been deemed necessary. One commenter submitted a letter to 
the docket containing several objections. The commenter asserted that 
the safety zones were unnecessary and overbroad. Specifically, the 
commenter questioned the necessity of the size of these zones. The 
sizes of these zones are based on the average size of the grain-
shipment vessels operating on the river. The deep-draft grain-shipment 
vessels that operate on the river are typically between 600 and 800 
feet in length. In general, deep-draft grain-shipment vessels 
maneuvering to or from a berth or anchorage operate at slow ahead, 
roughly between 6 knots and 4 knots. At this speed, it takes vessels 
such as these up to four ship lengths or about 1,000 yards to stop. 
Based on these speed and deceleration rates, a vessel would have 
roughly six minutes to clear the 500 yard length of the zone in 
sufficient time so as not to collide with incoming vessels. The size of 
the safety zones

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specific to grain-shipment vessels established in this rule were, 
therefore, predicated upon this ``six minute pre-collision period'' and 
are deemed necessary in order to significantly reduce the risk posed by 
limited ship-to-boat communications and risk of propulsion failure by 
vessels or watercraft operating in the vicinity of grain-shipment 
vessels. The establishment of the 100 yard safety zone ahead of grain-
shipment assist vessels mitigates the high risk of injury posed by the 
safety sensitive mid-stream transfer of personnel from one vessel to 
another and the mooring/anchorage operations conducted by grain-
shipment assist vessels with which recreational boaters and protesters 
may be unfamiliar.
    The commenter expressed the importance of ``on-water picketing'' in 
publicizing the ongoing labor dispute and concern that the safety zones 
unnecessarily burden the International Longshore and Warehouse Union's 
ability to convey their message to their intended audience of 
``incoming vessels.'' The Coast Guard disagrees. Vessel operators may 
operate in any part of the river outside of the zones so long as they 
do so in accordance with the navigational rules. Additionally, the 
safety zone is not so large as to prevent vessels from coming within 
sight of inbound grain-shipment and grain-shipment assist vessels.
    The commenter also disagreed with the Coast Guard's suggested use 
of on-water assembly areas. Prior to promulgation of the initial safety 
zone, outreach meetings were held between the local Captain of the 
Port, Columbia River Pilots, and union members. Based on these 
meetings, the Coast Guard proposed on-water assembly areas where 
protesters could safely exercise their First Amendment rights. Vessel 
operators may operate in any part of the river outside of the zones so 
long as they do so in accordance with the navigational rules. Finally, 
the comment misconceives the safety zones as being continuously 
enforced. The rule has been and will be enforced for narrow spans of 
time and only after notice is provided via Broadcast Notice to 
Mariners.
    The commenter asserted that the proposed rule singles out labor 
unions for differential treatment and that ``regulating labor protests 
is the true object of this rule.'' We disagree. The safety zones 
created by the rule apply to all vessels not otherwise exempted and are 
intended to ensure the safe navigation of maritime traffic and protect 
the safety of life and property on the Columbia and Willamette rivers.
    The commenter asserted the location of the safety zones would be 
unpredictable when the grain-shipment and grain-shipment assist vessels 
are in transit. The location of the safety zones will not be 
unpredictable. Enforcement of the safety zones will be preceded by a 
notice of enforcement via a Broadcast Notice to Mariners. This 
notification of enforcement will inform all waterway users that a 
safety zone is being enforced and will specifically identify the grain-
shipment vessel by name and number and the grain-shipment assist 
vessels by name.
    The commenter also expressed concern that an incoming vessel could 
purposefully cause on-water picketers to violate the temporary safety 
zones by skirting the shore closest to where the picket is staged, thus 
causing the protestors to inadvertently violate the safety zone. The 
Coast Guard does not anticipate that incoming vessels will operate in 
the manner described by the commenter. The operators of the grain-
shipment and grain-shipment assist vessels are professional licensed 
mariners subject to Coast Guard oversight, and operating a grain-
shipment vessel in the manner described by the comment may violate the 
Navigation Rules. Additionally, since these safety zones were 
promulgated, the Coast Guard has not received reports of grain-shipment 
vessels operating in the manner described by the commenter.
    The commenter also asserted that the rule is inconsistent with the 
National Labor Relations Act, 29 U.S.C. 151 et seq., because it 
prohibits picketing activity. However, the safety zones in the rule do 
not prohibit picketing, or other concerted activities by employees. 
Vessel operators, including those engaged in picketing activity, may 
operate in any part of the river outside of the zones so long as they 
do so in accordance with the navigational rules.

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 zones are 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 received 0 comments from the Small Business 
Administration on this rule. 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

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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 final rule, the Coast Guard carefully 
considered the rights of lawful protestors. The safety zone created by 
this rule does 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, in coordination with protesters, 
recommended water areas 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 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 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.

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 and grain-shipment assist 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. Revise Sec.  165.T13-239 to read as follows:


Sec.  165.T13-239  Safety Zone; Grain-Shipment Vessels and Grain-
Shipment Assist 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 International Regulations for 
Preventing Collisions at Sea, 1972 (commonly called 72 COLREGS) and the 
Inland Navigation Rules published in 33 CFR part 83.
    (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

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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 
or having previously loaded cargo at any of the following waterfront 
facilities: Columbia Grain in Portland, OR, United Grain Corporation in 
Vancouver, WA, Temco Irving in Portland, OR, Temco Kalama in Kalama, 
WA, or Louis Dreyfus Commodities in Portland, OR. This includes any 
vessel leaving anchor in the Columbia and Willamette Rivers that is 
bound for or had previously departed from the aforementioned waterfront 
facilities.
    (7) Grain-shipment assist vessel means any vessel bound for or 
departing from a grain-shipment vessel to assist it in navigation 
during the movement of the grain-shipment vessel in the Columbia and 
Willamette Rivers and their tributaries. This includes but is not 
limited to tugs, pilot boats, and launches.
    (8) Oregon Law Enforcement Officer means any Oregon Peace Officer 
as defined in Oregon Revised Statutes section 161.015.
    (9) 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 their tributaries.
    (2) Not more than 100 yards ahead of grain-shipment assist vessels 
and 50 yards abeam and astern of grain-shipment assist vessels underway 
on the Columbia and Willamette Rivers and their tributaries.
    (3) 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. This section is effective as to persons with 
actual notice starting August 30, 2013. This rule is effective starting 
on its publication in the Federal Register September 18, 2013 for 
purposes of 5 U.S.C. 552. This rule will be in effect until September 
18, 2015 and will be activated for enforcement as described in 
paragraph (d) of this section.
    (d) Notice of Enforcement. (1) The Sector Columbia River Captain of 
the Port will cause notice of the enforcement of the grain-shipment and 
grain-shipment assist 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 and the grain-shipment assist vessels by name. 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 or 
Local Notice to Mariners notifying the public when enforcement of the 
safety zone is suspended.
    (2) 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: August 30, 2013.
B.C. Jones,
Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.
[FR Doc. 2013-22611 Filed 9-17-13; 8:45 am]
BILLING CODE 9110-04-P