Federal Port Controllers; Clarification of the Event That Allows the Activation of the Federal Port Controller Service Agreements

DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Parts 345 and 346

[Docket No. 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: Proposed rule.

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SUMMARY: These proposed amendments to the regulations of the Maritime

Administration (MARAD) concern control and utilization of ports. The

Federal Port Controllers regulations (46 CFR Part 346) would be amended

to state that standby service agreements between the United States of

America, acting through MARAD, and port authorities or private

corporations may, at the discretion of MARAD, become operational upon

deployment of the Armed Forces of the United States, or other

requirements of the nation's defense. These amendments would allow the

activation of the standby service agreements earlier in most

emergencies. They would make the timing of the Federal Port Controller

activation consistent with that in MARAD's regulations at 46 CFR Part

340 governing priority use and allocation of shipping services,

containers and chassis and port facilities. The proposed conforming

amendment to 46 CFR Part 345 redefines ``Federal Port Controller'' to

harmonize with the change in Part 346.

DATES: Comments on this proposed rule must be received in writing by

January 17, 1994.

ADDRESSES: Send comments to the Secretary, Maritime Administration,

Room 7210, 400 Seventh Street, SW, Washington, DC. 20590. Five copies

of comments are requested but not required. All comments will be made

available for inspection during normal business hours at the above

address. Respondents wishing MARAD to acknowledge receipt of comments

should enclose a stamped self-addressed envelope or postcard.

FOR FURTHER INFORMATION CONTACT: John Pisani, Director, Office of Ports

and Domestic Shipping, Maritime Administration, Washington, DC 20590.

Telephone: (202) 366-4357.

SUPPLEMENTARY INFORMATION: The need for these amendments to MARAD's

regulations at 46 CFR Subchapter I-B arises because the event that

activates the Federal Port Controller service agreements is not

consistent with the event that activates the Priority Use and

Allocation of Shipping Services, Containers, and Port Facilities and

Services regulations (46 CFR Part 340).

Under non-emergency conditions, the public ports of the United

States are administered under a wide variety of authorities, all of

which emanate directly or indirectly from 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 are intended to assert reasonable, uniform, limited Federal

administration over the otherwise diverse U.S. network of civil, 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 above-mentioned 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 be put into

effect 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 civil,

public ports is achieved by the standby Federal Port Controller

procedures as set forth in 46 CFR Part 346. At present, these

procedures can only be activated upon the declaration of war or

national emergency.

The present disparity with respect to the event that triggers the

inception of contingency Federal procedures under 46 CFR Parts 340 and

346, respectively, can create confusion. Good order dictates that, in

an emergency, all of the safeguards for national defense should be

available at the same time, ideally at the lowest level of an emergency

consistent with a pressing national interest. The present 46 CFR Part

340 procedures are not triggered by the Presidential declaration of an

emergency because of the potentiality of adverse delay. Events during

Operation Desert Shield/Desert Storm show that, without the deployment

mechanism, the government would not have had the authority to obtain

needed facilities in a timely manner.

In an emergency, at the local port level, the official named to

become the Federal Port Controller is a key Maritime Administration

official. He or she represents the Maritime Administration in the

execution of Memorandum of Understanding on Port Readiness. In the

event that 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. Obviously, if it is impossible to

activate a Federal Port Controller because an emergency has not been

declared, it would also be impossible to use the services of the

Federal Port Controller to assist in the allocation of priority of

service requirements which may be needed during a deployment.

It is unlikely that post cold war emergencies will result in the

broad utilization of emergency declarations (as was evident in

Operation Desert Shield/Storm). If the Federal Port Controller

activation provision is not changed, the Government's Federal Port

Controller emergency port management program will be unable to

function, except as a training program. The change will allow (but not

necessitate) activation of selected contracts without an emergency if a

deployment is in progress.

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 any budgetary impacts; 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 and 346

Freight, Harbors, Maritime carriers, and National defense.

Accordingly, MARAD proposes to amend 46 CFR Parts 345 and 346 as

follows:

PART 345--[AMENDED]

1. The authority citation for Part 345 would be revised to read as

follows:

Authority: The Defense Production Act of 1950, as amended (50

App. U.S.C. 2061 et seq.); the Federal Civil Defense Act of 1950, as

amended (50 App. U.S.C. 2251 et seq.); E.O. 12656, sec. 1401(7) (53

FR 47491, 3 CFR 1988 Comp.); DOT order 1400.7D.

Sec. 1 [Amended]

2. Section 1 of part 345, paragraph (c) would be amended by

removing the words ``in time of national emergency'', and inserting 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 would be revised to read as

follows:

Authority: The Defense Production Act of 1950, as amended (50

App. U.S.C. 2061 et seq.); the Federal Civil Defense Act of 1950, as

amended (50 App. U.S.C. 2251 et seq.); E.O. 12656, sec. 1401(7) (53

FR 47491, 3 CFR 1988 Comp.); DOT order 1400.7D.

Sec. 2 [Amended]

2. Section 2 of part 346, Definitions, would be amended in

paragraph (b), Federal Port Controller, by removing the words ``in time

of war or national emergency'', and inserting in their place the words

``upon deployment of the Armed Forces of the United States, or other

requirements of the nation's defense.''

3. Section 3 of part 346, would be 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 upon 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. Section 4 of part 346, Service agreements, would be amended as

follows:

a. In Article 4(a), by removing the words ``war effort or declared

national emergency'', and inserting 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

inserting in their place the words ``deployment of the Armed Forces of

the United States, or other requirements of the nation's defense''.

Dated: November 14, 1994.

By Order of the Maritime Administrator.

Joel C. Richard,

Secretary, Maritime Administration.

[FR Doc. 94-28468 Filed 11-17-94; 8:45 am]

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