Safety Zone; Grain-Shipment and Grain-Shipment Assist Vessels, Columbia and Willamette Rivers, 57261-57264 [2013-22611]
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Federal Register / Vol. 78, No. 181 / Wednesday, September 18, 2013 / Rules and Regulations
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
msupdxwwm@uscg.mil. 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:
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
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone
around all inbound and outbound grainshipment 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 grainshipment 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 https://
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.,
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SUMMARY:
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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 GrainShipment 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 grainshipment 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 grainshipment 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
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maneuvering characteristics of grainshipment 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 grainshipment 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 deepdraft grain-shipment vessels that operate
on the river are typically between 600
and 800 feet in length. In general, deepdraft 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 precollision period’’ and are deemed
necessary in order to significantly
reduce the risk posed by limited shipto-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 grainshipment assist vessels.
The commenter also disagreed with
the Coast Guard’s suggested use of onwater 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.
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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 grainshipment and grain-shipment assist
vessels are professional licensed
mariners subject to Coast Guard
oversight, and operating a grainshipment 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
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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.
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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
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$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
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57263
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 grainshipment 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
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.
2. Revise § 165.T13–239 to read as
follows:
■
§ 165.T13–239 Safety Zone; GrainShipment 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 grainshipment 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
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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 § 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 onscene 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:
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(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]
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AGENCY:
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[Federal Register Volume 78, Number 181 (Wednesday, September 18, 2013)]
[Rules and Regulations]
[Pages 57261-57264]
From the Federal Register Online via the Government Printing 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 https://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 msupdxwwm@uscg.mil. 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