[Federal Register Volume 77, Number 224 (Tuesday, November 20, 2012)]
[Notices]
[Pages 69682-69685]
[FR Doc No: 2012-28148]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68231; File No. SR-NYSEMKT-2012-60]

Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and
Immediate Effectiveness of a Proposed Rule Change To Amend the Amex
Options Fee Schedule To Introduce Fees for the Use of Ports

November 14, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on November 1, 2012, NYSE MKT LLC (the ``Exchange'' or
``NYSE MKT'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the NYSE Amex Options Fee Schedule
(the ``Fee Schedule'') to introduce fees for the use of ports. The text
of the proposed rule change is available on the Exchange's Web site at
www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the Fee Schedule to introduce
monthly fees for the use of ports that provide connectivity to the
Exchange's trading systems (i.e., ports for entry of orders and/or
quotes (``order/quote entry ports'')) as well as for ports that allow
for the receipt of ``drop copies'' of order or transaction information
(``drop copy ports'' and, together with order/quote entry ports,
``ports'').\4\ The Exchange proposes to implement the fee changes on
November 1, 2012.
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    \4\ Firms receive confirmations of their orders and receive
execution reports via the order/quote entry port that is used to
enter the order or quote. A ``drop copy'' contains redundant
information that a firm chooses to have ``dropped'' to another
destination (e.g., to allow the firm's back office and/or compliance
department, or another firm--typically the firm's clearing broker--
to have immediate access to the information). Such drop copies can
only be sent via a drop copy port. Drop copy ports cannot be used to
enter orders and/or quotes.
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    The Exchange currently makes order/quote entry ports available for
connectivity to its trading systems, but does not currently charge for
order/quote entry ports related to option activity on NYSE Amex
Options. The Exchange proposes to implement fees for order/quote entry
ports on a per port basis. More specifically, the Exchange proposes to
charge $200 per port per month for order/quote entry ports; provided,
however, that (i) the first five order/quote entry ports authorized for
option activity on NYSE Amex Options would not be charged and the
proposed $200 per port fee would be decreased to $100 per port per
month for ports 101 or more,\5\ and (ii) unutilized order/quote entry
ports that connect to the Exchange via its backup datacenter would be
considered established for backup purposes and not charged port
fees.\6\
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    \5\ For example, if five ports are authorized for order/quote
activity, there would be no charge. However, a sixth order/quote
entry port would be charged $200. 50 order/quote entry ports would
be charged $9,000 total (i.e., 45 x $200) and 100 order/quote entry
ports would be charged $19,000 total (i.e., 95 x $200). However, 120
order/quote entry ports would be charged $21,000 total (i.e., 95 x
$200 plus 20 x $100). For purposes of calculating the number of
order/quote entry ports, the Exchange proposes to aggregate the
ports of affiliates. An affiliate would be a person or firm that
directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the firm. See
NYSE Amex Options Rule 900.2NY(1).
    \6\ The Exchange's backup datacenter is currently located in
Chicago, Illinois.

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    The Exchange proposes that unutilized order/quote entry ports that
connect to the Exchange via its backup datacenter and are not utilized
be considered established for backup purposes and not charged port
fees. However, if activity were conducted through one of these order/
quote entry ports, whether for backup or any other purposes, port fees
would apply for the relevant month or months. In this regard, the
Exchange notes that it monitors usage of these particular ports.
Accordingly, if an order/quote were sent to the Exchange via one of
these ports, then the port would be charged the applicable monthly port
fee.
    The Exchange proposes to implement a fee of $500 for drop copy
ports.\7\ Additionally, the Exchange proposes to specify that only one
fee per drop copy port would apply, even if the port receives drop
copies from multiple order/quote entry ports.
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    \7\ See supra note 4.
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    The Exchange also proposes that drop copy ports that connect to the
Exchange via its backup datacenter not be charged if the drop copy port
is configured such that it is duplicative of another drop copy port of
the same user, regardless of whether the drop copy port is utilized or
not. The Exchange is proposing to treat drop copy ports in this manner
because a firm would not derive any value or utility from a drop copy
port in the datacenter that is duplicative of another drop copy port
that it already has outside of the datacenter, in that, because drop
copy ports are used to send duplicative information, a second drop copy
port carrying the same information would not be a useful resource,
except for a backup purpose.
    Overall, the Exchange believes that the changes proposed herein
will result in a method of billing for ports that is closely aligned
with the needs of firms with ports and permit the Exchange to remain
competitive with other exchanges with respect to fees charged for
ports.\8\ The Exchange notes that the proposed changes are not
otherwise intended to address any other issues surrounding ports or
port fees and that the Exchange is not aware of any problems that port
users would have in complying with the proposed change.
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    \8\ For example, the charge for connectivity to the NASDAQ Stock
Market LLC (``NASDAQ'') NY-Metro and Mid-Atlantic Datacenters is
$500 and a separate charge for Pre-Trade Risk Management ports is
applicable, which ranges from $400 to $600 and is capped at $25,000
per firm per month. Also, the BATS Exchange, Inc. (``BZX'') charges
$400 per month per pair (primary and secondary data center) for
logical ports. Additionally, EDGA Exchange, Inc. (``EDGA'') and EDGX
Exchange, Inc. (``EDGX'') each charge $500 per port. EDGA and EDGX
also provide the first five ports for free.
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    The Exchange proposes to implement these changes on November 1,
2012. In this regard, the Exchange notes that billing for ports would
be based on the number of ports on the third business day prior to the
end of the month. In addition, the level of activity with respect to a
particular port would not affect the assessment of monthly fees, such
that, except for ports that are not charged and ports considered
established for backup purposes, even if a particular port is not used,
a port fee would still apply.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Securities Exchange Act of 1934 (the
``Act''),\9\ in general, and furthers the objectives of Section 6(b)(4)
of the Act,\10\ in particular, because it provides for the equitable
allocation of reasonable dues, fees, and other charges among its
members, issuers and other persons using its facilities and does not
unfairly discriminate between customers, issuers, brokers or dealers.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4).
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    Overall, the Exchange believes that the proposed changes, including
the rates proposed, are reasonable because the fees charged for order/
quote entry ports and drop copy ports are expected to permit the
exchange to offset, in part, its connectivity costs associated with
making such ports available, including costs based on gateway software
and hardware enhancements and resources dedicated to gateway
development, quality assurance, and support. In this regard, the
Exchange believes that its fees are competitive with those charged by
other venues, and that in some cases its port fees are less expensive
than many of its primary competitors.\11\ The Exchange believes that
the changes proposed herein will result in a method of billing for
ports that is closely aligned with the needs of firms with ports.
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    \11\ See supra note 8.
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    The Exchange believes that the proposed methodology for billing for
order/quote entry ports is reasonable because it will allow a firm to
request, and pay for, the specific number of ports that it requires.
This aspect of the proposed change is also equitable and not unfairly
discriminatory because it will result in charges for order/entry ports
being based on the number of ports utilized. This aspect of the
proposed change is also equitable and not unfairly discriminatory
because it will apply on an equal basis for all ports on the Exchange,
except for order/quote entry ports in the backup datacenter that are
not utilized.\12\
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    \12\ The Exchange describes below how the proposed changes
regarding the backup datacenter are consistent with the Act.
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    The Exchange believes that it is reasonable to charge $200 per port
per month for order/quote entry ports because it is comparable to the
rates of other exchanges.\13\ The Exchange also believes that the fees
are equitable and not unfairly discriminatory because they would apply
to all users of order/quote entry ports on the Exchange, subject to the
exception noted above.
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    \13\ See supra note 8.
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    The Exchange also believes that it is equitable and not unfairly
discriminatory to provide the first five option order/quote entry ports
for free and to decrease the rate to $100 for ports 101 and greater.
Specifically, providing the first five option ports without charge
would allow firms to adapt to the introduction of the fees for ports.
Additionally, decreasing the fee to $100 per port for more than 100
ports would permit those firms that have multiple order/quote entry
ports to maintain connections to the Exchange, despite the port fees
that would apply as a result of this proposed change. Further, the
Exchange notes that option Market Makers would, generally, be the type
of market participant that would have more than 100 ports. This is due
in large part to the significant number of series that exist for any
particular option class \14\ and the corresponding obligations that
NYSE Amex Option Market Makers have to maintain a bid or offer in
assigned classes. Furthermore, Market Makers that quote across a
significant number, if not all, of the 2207 classes traded on the
Exchange \15\ have responsibility for upwards of 400,000 individual
option series. Accordingly, the level of activity that is required to
satisfy the quoting obligations, which directly relates to the number
of ports needed, is such that the Exchange believes it is equitable and
not unfairly discriminatory to provide the first five option order/
quote entry ports for free and to decrease the per port charge for
firms that have more than 100 order/quote entry ports on the
Exchange.\16\
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    \14\ For example, as of October 18, 2012, there were more than
1800 individual option series overlying Google, Inc.
    \15\ As of October 18, 2012.
    \16\ See supra note 5.
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    The Exchange believes that the proposed new fee for drop copy ports
is reasonable because it will result in a fee being charged for the use
of technology and infrastructure provided by the

Exchange. In this regard, the Exchange believes that the rate is
reasonable because it is comparable to the rate charged by other
exchanges for drop copy ports.\17\ Furthermore, the Exchange believes
that the proposed rate for a drop copy port is reasonable because, when
compared to the proposed rate for order/quote entry ports, it reflects
the level of resources required of the Exchange to establish and
maintain the port, including the various sources from which data comes
(i.e., establishing connections to order/quote entry ports). The
proposed rate is also reasonable in light of the functional/operational
differences between a drop copy port and an order/quote entry port
(e.g., that configuration and monitoring of the drop copy port is more
substantial and because drop copy ports capture cumulative activity).
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    \17\ See supra note 8.
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    The Exchange also believes that it is reasonable that only one fee
per drop copy port would apply, even if the port receives drop copies
from multiple order/quote entry ports, because the purpose of drop
copies is such that a trading unit's or a firm's entire order and
execution activity is captured, including with respect to both equities
and options [sic]. This is also reflected in the rate of $500 that is
proposed for drop copy ports, which is higher than the rate proposed
for order/quote entry ports. The Exchange believes that the proposed
new fee for drop copy ports is equitable and not unfairly
discriminatory because it will apply on an equal basis to all users of
drop copy ports and to all drop copy ports on the Exchange, except for
ports in the backup datacenter.\18\ In this regard, all firms are able
to request drop copy ports, as is the case with order/quote entry
ports.
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    \18\ See supra note 12.
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    The Exchange believes that it is reasonable to not charge for
order/quote entry ports in its backup datacenter that are not utilized.
However, the exchange does not restrict firms from using order/quote
entry ports from the backup datacenter and, as described above, if one
of these ports is utilized for order/quote entry, then port fees would
apply. The Exchange believes that this is equitable and not unfairly
discriminatory because it would permit firms to have ports established
for backup purposes, should they ever be needed, without the burden of
paying for such ports when they are not utilized. The Exchange believes
this is equitable and not unfairly discriminatory because firms will
not be disincentivized from requesting backup ports because of a fee
that may otherwise apply. This would contribute to the efficiency of a
backup process if primary order/quote entry ports ever became
unavailable.
    The Exchange also believes that it is reasonable to not charge for
drop copy ports in its backup datacenter if configured such that it is
duplicative of another drop copy port of the same user, regardless of
whether the drop copy port is utilized or not. The Exchange believes
that it is reasonable to treat drop copy ports in this manner because a
firm would not derive any value/use from a drop copy port in the
datacenter that is duplicative of another drop copy port that it
already has outside of the datacenter (i.e., because drop copy ports
are used to send duplicative information anyways, a second drop copy
port carrying the same information would not be a useful resource),
except for a backup purpose. The Exchange believes that this is
equitable and not unfairly discriminatory because it would permit firms
to have ports established for drop copy purposes in the backup
datacenter, should they ever be needed, without the burden of paying
for such ports. Because the drop copy port would not be providing any
information that the firm did not already have, since the port would be
configured such that it is duplicative of another drop copy port of the
same user, the Exchange believes that it is equitable and not unfairly
discriminatory to treat order/quote entry ports and drop copy ports
differently in this manner. The Exchange believes this is also
equitable and not unfairly discriminatory because firms will not be
disincentivized from requesting backup drop copy ports because of a fee
that may otherwise apply. This would contribute to the efficiency of a
backup process if primary drop copy ports ever became unavailable.
    Finally, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues. In such an environment, the Exchange must continually
review, and consider adjusting, its fees and credits to remain
competitive with other exchanges. For the reasons described above, the
Exchange believes that the proposed rule change reflects this
competitive environment.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \19\ of the Act and subparagraph (f)(2) of Rule
19b-4 \20\ thereunder, because it establishes a due, fee, or other
charge imposed by the NYSE MKT.
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    \19\ 15 U.S.C. 78s(b)(3)(A).
    \20\ 17 CFR 240.19b-4(f)(2).6
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEMKT-2012-60 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEMKT-2012-60. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the

Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street NE., Washington,
DC 20549-1090, on official business days between the hours of 10:00
a.m. and 3:00 p.m. Copies of the filing will also be available for
inspection and copying at the NYSE's principal office and on its
Internet Web site at www.nyse.com. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSEMKT-2012-60 and should be submitted on or before
December 11, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
Kevin M. O'Neill,
Deputy Secretary.
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    \21\ 17 CFR 200.30-3(a)(12).
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[FR Doc. 2012-28148 Filed 11-19-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 181 (Wednesday, September 18, 2013)]
[Rules and Regulations]
[Pages 57261-57264]
[FR Doc No: 2013-22611]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

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

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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone around
all inbound and outbound grain-shipment and grain-shipment assist
vessels involved in commerce with the Columbia Grain facility on the
Willamette River in Portland, OR, the United Grain Corporation facility
on the Columbia River in Vancouver, WA, the Temco Irving facility on
the Willamette River in Portland, OR, the Temco Kalama facility on the
Columbia River in Kalama, WA, or the Louis Dreyfus Commodities facility
on the Willamette River in Portland, OR while they are located on the
Columbia and Willamette Rivers and their tributaries. For grain-
shipment vessels, this safety zone extends to waters 500 yards ahead of
the vessel and 200 yards abeam and astern of the vessel. For grain-
shipment assist vessels, this safety zone extends to waters 100 yards
ahead of the vessel and 50 yards abeam and astern of the vessel. These
safety zones are being established to ensure that protest activities
related to a labor dispute do not create hazardous navigation
conditions for any vessel or other river user in the vicinity of these
safety zones.

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

ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2013-0010]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LTJG Ian P. McPhillips, Waterways Management Division,
Marine Safety Unit Portland, U.S. Coast Guard; telephone (503) 240-
9319, email<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

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

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

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

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