[Federal Register: May 2, 2003 (Volume 68, Number 85)]
[Rules and Regulations]
[Page 23390-23393]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02my03-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-03-012]
RIN 1625-AA00
Security and Safety Zone: Protection of Large Passenger Vessels,
Portland, OR
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule; request for comments.
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SUMMARY: Increases in the Coast Guard's maritime security posture
necessitate establishing temporary regulations for the safety and
security of large passenger vessels in the navigable waters of the
Portland, OR Captain of the Port zone. This security zone will provide
for the regulation of vessel traffic in the vicinity of large passenger
vessels.
DATES: This regulation is effective March 12, 2003, until September 12,
2003. Comments and related material must reach the Coast Guard on or
before June 2, 2003.
ADDRESSES: You may mail comments and related material to Marine Safety
Office/Group Portland, 6767 North Basin Ave, Portland, OR, 97217.
Marine Safety Office Portland maintains the public docket [CGD13-03-
012] for this rulemaking. Comments and material received from the
public, as well as documents indicated in this preamble as being
available in the docket, will become part of this docket and will be
available for inspection or copying at Marine Safety Office Portland
between 7 a.m. and 4 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: LTJG Tad Drozdowski, c/o Captain of
the Port Portland, 6767 North Basin Ave, Portland, OR, (503) 240-2584.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking [CGD13-03-
012], indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
they reached us, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period. We may change this temporary final rule in view of
them.
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for not publishing an NPRM and for
making this rule effective less than 30 days after publication in the
Federal Register. Publishing a NPRM would be contrary to public
interest since immediate action is necessary to safeguard large
passenger vessels from sabotage, other subversive acts, or accidents.
If normal notice and comment procedures were followed, this rule would
not become effective soon enough to provide immediate protection to
large passenger vessels from the threats posed by hostile entities and
would compromise the vital national interest in protecting maritime
transportation and commerce. The security and safety zone in this
regulation has been carefully designed to minimally impact the public
while providing a reasonable level of protection for large passenger
vessels. For these reasons, following normal rulemaking procedures in
this case would be impracticable, unnecessary, and contrary to the
public interest.
Background and Purpose
Recent events highlight the fact that there are hostile entities
operating with the intent to harm U.S. National Security. The President
has continued the national emergencies he declared following the
September 11, 2001 terrorist attacks (67 FR 58317 (Sept. 13, 2002)
(continuing national emergency with respect to terrorist attacks)), 67
FR 59447 (Sept. 20, 2002) (continuing national emergency with respect
to persons who commit, threaten to commit or support terrorism)). The
President also has found pursuant to law, including the Act of June 15,
1917, as amended August 9, 1950, by the Magnuson Act (50 U.S.C. 191 et.
seq.),
[[Page 23391]]
that the security of the United States is and continues to be
endangered following the attacks (E.O. 13,273, 67 FR 56215 (Sept. 3,
2002) (security endangered by disturbances in international relations
of U.S. and such disturbances continue to endanger such relations)).
The Coast Guard, through this action, intends to assist large
passenger vessels by establishing a security and safety zone to exclude
persons and vessels from the immediate vicinity of all large passenger
vessels. Entry into this zone will be prohibited unless authorized by
the Captain of the Port or his designee. The Captain of the Port may be
assisted by other federal, state, or local agencies.
Discussion of Rule
This rule, for safety and security concerns, controls vessel
movement in a regulated area surrounding large passenger vessels. For
the purpose of this regulation, a large passenger vessel means any
vessel over 100 feet in length (33 meters) carrying passengers for hire
including, but not limited to, cruise ships, auto ferries, passenger
ferries, and excursion vessels. All vessels within 500 yards of large
passenger vessels shall operate at the minimum speed necessary to
maintain a safe course, and shall proceed as directed by the official
patrol. No vessel, except a public vessel (defined below), is allowed
within 100 yards of a large passenger vessel, unless authorized by the
on-scene official patrol or large passenger vessel master. Vessels
requesting to pass within 100 yards of a large passenger vessel shall
contact the on-scene official patrol or large passenger vessel master
on VHF-FM channel 16 or 13. The on-scene official patrol or large
passenger vessel master may permit vessels that can only operate safely
in a navigable channel to pass within 100 yards of a large passenger
vessel in order to ensure a safe passage in accordance with the
Navigation Rules. Similarly, commercial vessels anchored in a
designated anchorage area may be permitted to remain at anchor within
100 yards of passing large passenger vessels. Public vessels for the
purpose of this Temporary Final Rule are vessels owned, chartered, or
operated by the United States, or by a State or political subdivision
thereof.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. The
Office of Management and Budget has not reviewed it under that Order.
It is not ``significant'' under the regulatory policies and procedures
of the Department of Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under paragraph 10e of the
regulatory policies and procedures of DHS is unnecessary.
Although this regulation restricts access to the regulated area,
the effect of this regulation will not be significant because: (i)
Individual large passenger vessel security and safety zones are limited
in size; (ii) the on-scene official patrol or large passenger vessel
master may authorize access to the large passenger vessel security and
safety zone; (iii) the large passenger vessel security and safety zone
for any given transiting large passenger vessel will effect a given
geographical location for a limited time; and (iv) the Coast Guard will
make notifications via maritime advisories so mariners can adjust their
plans accordingly.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
includes 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 or operators of vessels intending to operate
near or anchor in the vicinity of large passenger vessels in the
navigable waters of the United States to which this rule applies.
This temporary regulation will not have a significant economic
impact on a substantial number of small entities for the following
reasons: (i) Individual large passenger vessel security and safety
zones are limited in size; (ii) the on-scene official patrol or large
passenger vessel master may authorize access to the large passenger
vessel security and safety zone; (iii) the passenger vessel security
and safety zone for any given transiting large passenger vessel will
affect a given geographic location for a limited time; and (iv) the
Coast Guard will make notifications via maritime advisories so mariners
can adjust their plans accordingly.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. 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 one of the points of contact
listed under FOR FURTHER INFORMATION CONTACT.
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).
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
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 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and
[[Page 23392]]
Interference with Constitutionally Protected Property Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
The Coast Guard recognizes the rights of Native American Tribes
under the Stevens Treaties. Moreover, the Coast Guard is committed to
working with Tribal Governments to implement local policies to mitigate
tribal concerns. Given the flexibility of the Temporary Final Rule to
accommodate the special needs of mariners in the vicinity of large
passenger vessels and the Coast Guard's commitment to working with the
Tribes, we have determined that passenger vessel security and fishing
rights protection need not be incompatible and therefore have
determined that this Temporary Final 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. Nevertheless, Indian Tribes that have questions concerning the
provisions of this Temporary Final Rule or options for compliance are
encouraged to contact the point of contact listed under FOR FURTHER
INFORMATION CONTACT.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
The Coast Guard's preliminary review indicates this temporary rule
is categorically excluded from further environmental documentation
under figure 2-1, paragraph 34(g) of Commandant Instruction M16475.lD.
As an emergency action, the Environmental Analysis, requisite
regulatory consultations, and Categorical Exclusion Determination will
be prepared and submitted after establishment of this temporary
passenger vessel security zone, and will be available in the docket.
This temporary rule ensures the safety and security of large passenger
vessels. All standard environmental measures remain in effect. The
Categorical Exclusion Determination will be made available in the
docket for inspection or copying where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; Department of Homeland Security Delegation
No. 0170.
0
2. From March 12, 2003, until September 12, 2003, temporary Sec.
165.T13-006 is added to read as follows:
Sec. 165.T13-006 Security and Safety Zone, Large Passenger Vessel
Protection, Portland, OR
(a) The following definitions apply to this section:
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.
Large passenger vessel means any vessel over 100 feet in length (33
meters) carrying passengers for hire including, but not limited to,
cruise ships, auto ferries, passenger ferries, and excursion vessels.
Large passenger vessel security and safety zone is a regulated area
of water, established by this section, surrounding large passenger
vessels for a 500 yard radius, that is necessary to provide for the
security and safety of these vessels.
Navigable waters of the United States means those waters defined as
such in 33 CFR part 2.
Navigation Rules means the Navigation Rules, International-Inland.
Official patrol means those persons designated by the Captain of
the Port to monitor a large passenger vessel security and 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. Persons authorized to enforce this section are
designated as the Official Patrol.
Oregon Law Enforcement Officer means any Oregon Peace Officer as
defined in Oregon Revised Statutes Sec. 161.015.
Public vessel means vessels owned, chartered, or operated by the
United States, or by a State or political subdivision thereof.
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) Security and safety zone. There is established a large
passenger vessel security and safety zone extending for a 500 yard
radius around all large passenger vessels located in the navigable
waters of the United States, in Portland, OR beginning at the Columbia
River Bar ``C'' buoy extending eastward on the Columbia River to
Kennewick, WA and upriver through Lewiston, ID on the Snake River.
(c) The large passenger vessel security and safety zone established
by this section remains in effect at all times, whether the large
passenger vessel is underway, anchored, or moored.
(d) The Navigation Rules shall apply at all times within a large
passenger vessel security and safety zone.
(e) All vessels within a large passenger vessel security and 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 or
large passenger vessel master. No vessel or person is allowed within
100 yards of a large passenger vessel, unless authorized by the on-
scene official patrol or large passenger vessel master.
(f) To request authorization to operate within 100 yards of a large
passenger vessel, contact the on-scene official patrol or large
passenger vessel master on VHF-FM channel 16 or 13.
[[Page 23393]]
(g) When conditions permit, the on-scene official patrol or large
passenger vessel master should:
(1) Permit vessels constrained by their navigational draft or
restricted in their ability to maneuver to pass within 100 yards of a
large passenger vessel in order to ensure a safe passage in accordance
with the Navigation Rules; and
(2) Permit commercial vessels anchored in a designated anchorage
area to remain at anchor within 100 yards of a passing large passenger
vessel; and
(3) Permit vessels that must transit via a navigable channel or
waterway to pass within 100 yards of a moored or anchored large
passenger vessel with minimal delay consistent with security.
(h) When a large passenger vessel approaches within 100 yards of a
vessel that is moored, or anchored in a designated anchorage, the
stationary vessel must stay moored or anchored while it remains within
the large passenger vessel's security and safety zone unless it is
either ordered by, or given permission by the Captain of the Port
Portland, his designated representative or the on-scene official patrol
to do otherwise.
(i) Exemption. Public vessels as defined in paragraph (a) in this
section are exempt from complying with paragraphs (e), (f), (g), (h),
(j), and (k) of this section.
(j) Enforcement. Any Coast Guard commissioned, warrant or petty
officer may enforce the rules in this section. When immediate action is
required and representatives of the Coast Guard are not present or not
present in sufficient force to exercise effective control in the
vicinity of a large passenger vessel, any Federal Law Enforcement
Officer, Oregon Law Enforcement Officer or Washington Law Enforcement
Officer may enforce the rules contained in this section pursuant to 33
CFR 6.04-11. In addition, the Captain of the Port may be assisted by
other federal, state or local agencies in enforcing this section.
(k) Waiver. The Captain of the Port Portland may waive any of the
requirements of this section for any vessel or class of vessels upon
finding that a vessel or class of vessels, operational conditions or
other circumstances are such that application of this section is
unnecessary or impractical for the purpose of port security, safety or
environmental safety.
Dated: March 26, 2003.
Paul D. Jewell,
Captain, Coast Guard, Captain of the Port, Portland.
[FR Doc. 03-10832 Filed 5-1-03; 8:45 am]
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