[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38735-38737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18554]
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DEPARTMENT OF TRANSPORTATION
46 CFR Parts 345, 346, and 347
[Docket No. R-155]
RIN No. 2133-AB15
Federal Port Controllers; Clarification of the Event That Allows
the Activation of the Federal Port Controller Service Agreements
Agency: Maritime Administration, Department of Transportation.
ACTION: Final rule.
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SUMMARY: This final rule amends the Maritime Administration's (MARAD)
Federal Port Controllers regulations at 46 CFR Part 346, and provides a
harmonizing amendment to the definition of ``Federal Port Controller''
in Part 345. These regulations now provide that, when needed during the
existence of a state of war or national emergency proclaimed by the
President of the United States, certain port facilities in the United
States shall be controlled and used exclusively by the Federal
Government, operating through the National Shipping Authority (NSA) of
MARAD, pursuant to provisions of service agreements between the
Director, NSA, and Federal Port Controllers appointed by MARAD. The
regulations in Part 340 establish procedures for assigning priority for
use by defense agencies, when appropriate, on commercial terms, of
commercial shipping services, containers and chassis, port facilities
and services, and for allocating commercial vessels services,
containers and chassis, and port facilities and services for exclusive
use by defense agencies. The amendments to Parts 345 and 346 will
allow, at MARAD's discretion, the activation of standby service
agreements between the United States of America and port authorities or
private corporations in connection with the deployment of the Armed
Forces of the United States or other requirements of the nation's
defense. This is the same activation trigger as in Part 340--Priority
Use and Allocation of Shipping Services, Containers and Chassis, and
Port Facilities and Services for National Security and National Defense
Related Operations.
DATES: This final rule is effective on August 28, 1995.
FOR FURTHER INFORMATION CONTACT: John Pisani, Director, Office of Ports
and Domestic Shipping, Maritime Administration, Washington, DC. 20590.
Telephone: (202) 366-4357.
SUPPLEMENTARY INFORMATION: These amendments to MARAD's regulations at
46 CFR subchapter I-B are necessary because the event that allows
activation of the Federal Port Controller service agreements is not
consistent with the event that activates the priority use and
allocation regulations in part 340.
Under non-emergency conditions, the public ports of the United
States are administered, under a wide variety of authorities, by their
respective state governments. The wide variance in their
responsibilities, jurisdictions, operations and managements reflects
the differences of the various governing bodies. The various
contingency Federal procedures administered by MARAD are intended to
assert reasonable, uniform, limited Federal administration of the
otherwise diverse U.S. network of public ports in an emergency which
affects the national interest. The procedures are set forth under three
interdependent documents:
1. Special inter-agency coordination required under emergency
circumstances is established through the Memorandum of Understanding
on Port Readiness. These procedures are in effect at all times.
2. Use of real port property and related services are assured
through the regulations at 46 CFR part 340, addressing the priority
use and allocation of port facilities, as well as shipping services
and containers and chassis. These procedures can become operative in
the event of the deployment of the Armed Forces of the United States
or other requirements of the nation's defense.
3. Limited Federal administration of the U.S. network of public
ports is achieved by the standby Federal Port Controller procedures
set forth in a ``Service Agreement, Federal Port Controller'', in 46
CFR part 346. At present, these procedures can only be activated
upon the declaration of war or national emergency.
Proposed Rule and Comments
MARAD published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register on November 18, 1994 (59 FR 59742), noting that the
present disparity with respect to the event that triggers the
activation of contingency Federal procedures under 46 CFR parts 340 and
346, respectively, can create confusion. The present procedures set
forth in 46 CFR part 340 can become operative without a Presidential
declaration of emergency to eliminate potential adverse delay, while
the activation of Federal Port Controller service agreements in 46 CFR
part 346 requires a ``declaration of war or national emergency.'' The
NPRM noted that events during Operations DESERT SHIELD/DESERT STORM
showed that the Government would not have had the authority to obtain
needed priority utilization of port facilities, shipping services and
containers in a timely manner with the present Part 346
[[Page 38736]]
requirement for a declaration of war or national emergency.
At the local port level, the official named to become the Federal
Port Controller in an emergency is a key MARAD official who represents
the agency in the execution of a Memorandum of Understanding on Port
Readiness. If it becomes necessary to exercise the service priority or
allocation authorities of 46 CFR part 340, the Federal Port Controller
could act as the local Federal agent. Since, under existing
regulations, it is impossible to activate service agreements with
Federal Port Controllers unless an emergency has been declared, it
would also be impossible to use the services of the Federal Port
Controllers to assist in the allocation of priority of service
requirements which may be needed during a deployment. The amendments to
Part 346 will allow, but not necessitate, activation of selected
contracts if a deployment is in progress, without the required
declaration of an emergency.
MARAD received comments from four port authorities located in the
North Atlantic and South Atlantic regions. Two of the port authorities
were in full support of the rulemaking as proposed. One port authority
expressed concern, that using the deployment of the Armed Forces of the
United States as the triggering event for activation of the standby
service agreements could impose a potential burden on the designated
Federal Port Controllers, since the frequency of possible deployment
appears to far exceed that of declarations of national emergencies.
While MARAD acknowledges that a purpose for harmonizing the
triggering mechanism for authorizing activation of these service
agreements with part 340 activations is to allow activations under
broadened circumstances, such activations would occur only in response
to the national needs of the United States.
Another commenter was of the view that the existing terms of the
service agreement were adequate and that the change proposed by MARAD
will cause confusion and misunderstanding between port terminals and
participants in military operations. MARAD cannot agree with this
prediction and believes that just the opposite will occur. The proposed
amendments to part 346 will harmonize the timing of the activation of
service agreements with MARAD's regulations at 46 CFR part 340
governing the priority use and activation of shipping services,
containers and chassis, and port facilities and services. It should
actually diminish confusion and misunderstandings and will provide more
flexibility in responding to the need for U.S. deployment of troops
when there is no formal declaration of war or national emergency.
Accordingly, MARAD is adopting, as a final rule without change, the
amendments to 46 CFR parts 345 and 346 set forth in the NPRM, together
with amendments to section 2(a) of part 346 to correct an obsolete
reference to former Title 32A of the CFR. There are also amendments to
the authority citations in 46 CFR parts 345, 346 and 347 to give
recognition to the repeal of the Federal Civil Defense Act of 1950 and
its reenactment in different form.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review)
This rulemaking has been reviewed under Executive Order 12866
(Regulatory Planning and Review). It is not considered to be an
economically significant regulatory action under Section 3(f) of E.O.
12866, since it has been determined that it is not likely to result in
a rule that may have an annual effect on the economy of $100 million or
more, or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This rule would not significantly affect other Federal
agencies; would not materially alter the budgetary impact of
entitlements, grants, user fees or loan programs or the rights and
obligations of recipients thereof; does not raise novel legal or policy
issues arising out of legal mandates, the President's priorities or the
principles set forth in E.O. 12866; and has been determined to be a
nonsignificant rule under the Department's Regulatory Policies and
Procedures. Accordingly, it is not considered to be a significant
regulatory action under E.O. 12866.
This rule did not require review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Federalism
MARAD has analyzed this rulemaking in accordance with the
principles and criteria contained in E.O. 12612 and has determined that
these regulations do not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act
MARAD certifies that this rulemaking will not have a significant
economic impact on a substantial number of small entities.
Environmental Assessment
MARAD has considered the environmental impact of this rulemaking
and has concluded that an environmental impact statement is not
required under the National Environmental Policy Act of 1969.
Paperwork Reduction Act
This rulemaking contains no new reporting requirement that is
subject to OMB approval under 5 CFR Part 1320, pursuant to the
Paperwork Reduction Act of 1080 (44 U.S.C. 3501, et seq.).
List of Subjects in 46 CFR Parts 345, 346 and 347
Freight, Harbors, Maritime carriers, and National defense.
Accordingly, MARAD proposes to amend 46 CFR parts 345, 346 and 347
as follows:
PART 345--[AMENDED]
1. The authority citation for part 345 is revised to read as
follows:
Authority: The Defense Production Act of 1950, as amended (50
App. U.S.C. 2061, et seq.); E.O. 12656, sec. 1401(7) (53 FR 47491, 3
CFR 1988 Comp.); E.O. 12919, section 201(a), June 3, 1994, 59 FR
29525; 49 CFR 1.45(5).
Sec. 1 [Amended]
2. Sec. 1(c) is amended by removing the words ``in time of national
emergency,'' and adding in their place the words ``upon deployment of
the Armed Forces of the United States, or other requirements of the
nation's defense.''
PART 346--[AMENDED]
1. The authority citation for part 346 is revised to read as
follows:
Authority: The Defense Production Act of 1950, as amended (50
App. U.S.C. 2061, et seq.); E.O.12656, sec. 1401(7) (53 FR 47491, 3
CFR 1988 Comp.); E.O. 12919, section 201(a), June 3, 1994, 59 FR
29525; 49 CFR 1.45(5).
Sec. 2 [Amended]
2. Sec. 2, Definitions, is amended as follows:
(a) In paragraph (a) by removing the words ``port facilities'' when
they first appear and reference to section ``1(e) of 32A CFR part
1901,'' and adding in its place the words ``port facilities and
services'' and the reference to section ``340.2(o) of 46 CFR Part
340''; and
(b) in paragraph (b) Federal Port Controller, by removing the words
``in time of war and national emergency''
[[Page 38737]]
and adding in their place the words ``in connection with the deployment
of the Armed Forces of the United States, or other requirements of the
nation's defense.''
3. Sec. 3 is revised to read as follows:
Sec. 3 Standby agreements.
The Director, NSA, may negotiate the standard form of service
agreement, specified in section 4, with port authorities on a standby
basis, prior to the deployment of the Armed Forces of the United
States, or other requirements of the nation's defense. In such cases,
the contractor accepts the obligation to maintain a qualified incumbent
in the position specified in Article 1 of the service agreement and to
be prepared to furnish the resources specified in Articles 4 and 5. An
agreement executed on a standby basis may become operational in
connection with the deployment of the Armed Forces of the United
States, or other requirements of the nation's defense. An agreement
executed after the deployment of the Armed Forces of the United States,
or other requirements of the nation's defense may be operational upon
execution.
Sec. 4 [Amended]
4. Sec. 4, Service Agreements, is amended as follows: a. In Article
4(a), by removing the words ``war effort or declared national
emergency,'' and adding in their place the words ``deployment of the
Armed Forces of the United States, or other requirements of the
nation's defense.''
b. In Article 12, in paragraphs (b)(1) and (b)(2), by removing, in
each paragraph, the words ``period of war or national emergency,'' and
adding in their place the words ``deployment of the Armed Forces of the
United States, or other requirements of the nation's defense.''
PART 347--[AMENDED]
The authority citation for Part 347 is revised to read as follows:
Authority: The Defense Production Act of 1950, as amended (50
App. U.S.C. 2061, et seq.); E.O. 12656, sec. 1401(7) (53 FR 47491, 3
CFR 1988 Comp.); E.O. 12919, section 201(a), June 3, 1994, 59 FR
29525; 49 CFR 1.45(5).
By Order of the Maritime administrator.
Dated: July 24, 1995.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 95-18554 Filed 7-27-95; 8:45 am]
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