[Federal Register: September 12, 2003 (Volume 68, Number 177)]
[Rules and Regulations]
[Page 53677-53680]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12se03-10]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-03-022]
RIN 1625-AA00
Security and Safety Zone; Protection of Large Passenger Vessels,
Portland, OR
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: In order to maintain an increased maritime security posture,
the Coast Guard is establishing regulations for the security and safety
of large passenger vessels in the navigable waters of the Portland, OR
Captain of the Port zone. This security and safety zone, when enforced
by the Captain of the Port Portland, will provide for the regulation of
vessel traffic in the vicinity of large passenger vessels in the
navigable waters of the United States.
DATES: This rule is effective September 12, 2003.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket [CGD13-03-022] and are available for inspection or
copying at Marine Safety Office Portland between 8 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LT(jg) Tad Drozdowski, c/o Captain of
the Port Portland, 6767 N. Basin Ave., Portland, OR 97217 at 503-240-
9370.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On July 28, 2003, we published a notice of proposed rulemaking
(NPRM) entitled ``Security and Safety Zone; Protection of Large
Passenger Vessels, Portland, OR'' in the Federal Register (68 FR
44256). We received no comments during the comment period. No public
hearing was requested, and none was held.
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
[[Page 53678]]
Register. 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. Similar
protection is currently being provided by a temporary final rule (TFR),
but that temporary section, 33 CFR T13-006, will expire September 12,
2003 (68 FR 23390, May 2, 2003). Continuous protection from the threats
posed by hostile entities is necessary for the protection of large
passenger vessels in the COTP Portland, OR zone. For these reasons, it
would be impracticable, unnecessary, and contrary to the public
interest to wait 30 days to enforce the regulation after publication in
the Federal Register.
Background and Purpose
Hostile entities continue to operate 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.), 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 ongoing hostilities in Afghanistan and Iraq have made it
prudent for U.S. ports and waterways to be on a higher state of alert
because the al Qaeda organization and other similar organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide.
Upon the expiration of the temporary security zone under 33 CFR
165.T13-006, through this final rule the Coast Guard will continue to
assist large passenger vessels by establishing a permanent security and
safety zone that when enforced by the Captain of the Port will 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 Comments and Changes
The Coast Guard received no comments in response to the NPRM
proposing this final rule. In our NPRM, however, we did address a
comment received in response to the TFR when we drafted our proposed
final rule (68 FR 44257, July 28, 2003). We have not made any changes
from the proposed rule to the final rule.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, 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). Although this rule will restrict access to the
regulated area, the effect of this rule will not be significant
because: (i) Individual large passenger vessel security and safety
zones are limited in size; (ii) the official on-scene 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;
(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''
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 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.
This rule 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 official on-scene 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.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule will have a
significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule will economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. 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 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
[[Page 53679]]
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 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 this 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 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 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 review indicates this rule is categorically
excluded from further environmental documentation under figure 2-1,
paragraph 34 (g) of Commandant Instruction M16475.1D. The environmental
analysis and Categorical Exclusion Determination has been prepared and
will be available in the docket for inspection and copying where
indicated under ADDRESSES. All standard environmental measures remain
in effect.
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 NAVIATION 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; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. 165.1318 to read as follows:
Sec. 165.1318 Security and Safety Zone Regulations, Large Passenger
Vessel Protection, Portland, OR Captain of the Port Zone
(a) Notice of enforcement or suspension of enforcement. The large
passenger vessel security and safety zone established by this section
will be enforced only upon notice by the Captain of the Port Portland.
Captain of the Port Portland will cause notice of the enforcement of
the large passenger vessel security and safety zone to be made by all
appropriate means to effect the widest publicity among the affected
segments of the public including publication in the Federal Register as
practicable, in accordance with 33 CFR 165.7(a). Such means of
notification may also include but are not limited to, Broadcast Notice
to Mariners or Local Notice to Mariners. The Captain of the Port
Portland will issue a Broadcast Notice to Mariners and Local Notice to
Mariners notifying the public when enforcement of the large passenger
vessel security and safety zone is suspended.
(b) Definitions. As used in 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 with in the zone and take other actions authorized by the
Captain of the Port. Persons authorized as Federal Law Enforcement
Officers 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 section 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
[[Page 53680]]
Specially Commissioned Washington Peace Officer as defined in Revised
Code of Washington section 10.93.020.
(c) 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 in the navigable waters of
the United States, in Portland, OR at the Columbia River Bar ``C'' buoy
and extending eastward on the Columbia River to Kennewick, WA and
upriver through Lewiston, ID on the Snake River.
(d) Compliance. The large passenger vessel security and safety zone
established by this section remains in effect around large passenger
vessels at all times, whether the large passenger vessel is underway,
anchored, or moored. Upon notice of enforcement by the Captain of the
Port Portland, the Coast Guard will enforce the large passenger vessel
security and safety zone in accordance with rules set out in this
section. Upon notice of suspension of enforcement by the Captain of the
Port Portland, all persons and vessels are authorized to enter,
transit, and exit the large passenger vessel security and safety zone,
consistent with the Navigation Rules.
(e) Navigation Rules. The Navigation Rules shall apply at all times
within a large passenger vessel security and safety zone.
(f) Restrictions based on distance from large passenger vessel.
When within a large passenger vessel security and safety zone, all
vessels 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 that is underway or at anchor,
unless authorized by the on-scene official patrol or large passenger
vessel master.
(g) Requesting authorization to operate within 100 yards of large
passenger vessel. To request authorization to operate within 100 yards
of a large passenger vessel that is underway or at anchor, contact the
on-scene official patrol or large passenger vessel master on VHF-FM
channel 16 or 13.
(h) Maneuver-restricted vessels. 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 an anchored large passenger
vessel.
(i) Stationary vessels. When a large passenger vessel approaches
within 100 yards of any vessel that is moored or anchored, the
stationary vessel must stay moored or anchored while it remains with in
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.
(j) Exemption. Public vessels as defined in paragraph (b) of this
section are exempt from complying with paragraphs (c), (d), (f), (g),
(h), and (i), of this section.
(k) 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 not present in sufficient force to provide effective
enforcement of this section 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.
(l) 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: September 3, 2003.
Paul D. Jewell,
Captain, U.S. Coast Guard, Captain of the Port, Portland.
[FR Doc. 03-23303 Filed 9-11-03; 8:45 am]
BILLING CODE 4910-15-P