[Federal Register: August 27, 2004 (Volume 69, Number 166)]
[Rules and Regulations]
[Page 52600-52604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au04-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-04-019]
RIN 1625-AA87 (Formerly 1625-AA00)
Security Zone; Protection of Military Cargo, Captain of the Port
Zone Puget Sound, WA
AGENCY: Coast Guard, DHS.
[[Page 52601]]
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing regulations for the security
of Department of Defense assets and military cargo in Puget Sound,
Washington. This rule, when enforced by the Captain of the Port Puget
Sound, would provide for the regulation of vessel traffic in the
vicinity of military cargo loading facilities in the navigable waters
of the United States.
DATES: This rule is effective August 27, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket CGD13-04-019 and are available for inspection or
copying at Commanding Officer, Marine Safety Office Puget Sound, 1519
Alaskan Way South, Seattle, Washington 98134 between 8 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: LTjg T. Thayer, c/o Captain of the
Port Puget Sound, 1519 Alaskan Way South, Seattle, WA 98134, (206) 217-
6232. For specific information concerning enforcement of this rule,
call Marine Safety Office Puget Sound at (206) 217-6200 or (800) 688-
6664.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On May 14, 2004, we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zones; Protection of Military Cargo, Captain
of the Port Zone Puget Sound, WA'' in the Federal Register (69 FR
26783). No written comments were received by the Coast Guard regarding
this proposed rule. However, the Coast Guard received several telephone
calls, which indicated that two of the latitude/longitude positions
were transposed in the NPRM. These callers were correct and the
positions have been corrected in this final rule. A public hearing was
not requested and none was held.
The Coast Guard finds good cause exists to make this rule effective
less than 30 days after publication. This rule establishes security
zones during military cargo loading and unloading operations. The
Captain of the Port Puget Sound deems it necessary to make this rule
effective upon publication in the Federal Register given the
unpredictable schedule of these military cargo loading and unloading
operations and because of the vital importance of these operations to
national security. Moreover, the Captain of the Port Puget Sound will
only enforce this rule after issuing a notice of enforcement.
Background and Purpose
Hostile entities continue to operate with the intent to harm U.S.
National Security by attacking or sabotaging national security assets.
The President has continued the national emergencies he declared
following the September 11, 2001 terrorist attacks. ((67 FR 58317,
Sept. 13, 2002) (continuing national emergency with respect to
terrorist attacks); (67 FR 59447, Sept. 20, 2002) (continuing national
emergency with respect to persons who commit, threaten to commit or
support terrorism); (68 FR 55189, Sept. 22, 2003) (continuing national
emergency with respect to persons who commit, threaten to commit or
support terrorism)).
The President also has found pursuant to law, including the
Magnuson Act (50 U.S.C. 191 et. seq.), that the security of the United
States is and continues to be endangered following the attacks (E.O.
13,273, 67 FR 56215, Sept. 3, 2002) (security endangered by
disturbances in international relations of U.S. and such disturbances
continue to endanger such relations). Moreover, the ongoing hostilities
in Afghanistan and Iraq make it prudent for U.S. ports and waterways to
be on a higher state of alert because the al Qaeda organization and
other similar organizations have declared an ongoing intention to
conduct armed attacks on U.S. interests worldwide.
The ongoing hostilities in Afghanistan and Iraq have made it
prudent for U.S. ports and waterways to be on a higher state of alert
because the Al Qaeda organization and other similar organizations have
declared an ongoing intention to conduct armed attacks on U.S.
interests worldwide. The Coast Guard, through this rule, intends to
assist the Department of Defense to protect vital national security
assets, in waters of Puget Sound. This rule establishes security zones
and notification requirements that will exclude persons and vessels
from these zones during military cargo loading and unloading
operations. Entry into these zones will be prohibited unless authorized
by the Captain of the Port or his designee. The Captain of the Port may
be assisted by other federal, state, or local agencies.
Since January 29 of this year, the Captain of the Port has issued
four temporary final rules establishing security zones in Commencement
Bay, Washington. These temporary final rules have been established to
protect facilities used by vessels to load and/or unload military
cargo. Moreover, these temporary zones have differed in size and
description. This rule would establish a permanent, uniform, security
zone, which would control vessel movement in and around the Blair and
Sitcum Waterways, Commencement Bay, WA. However, the Captain of the
Port will only enforce this rule after issuing a notice of enforcement.
Upon notice of suspension of enforcement, all persons and vessels are
authorized to enter, move within and exit these security zones. This
rule is deemed necessary to protect vital national security assets and
military cargo.
Discussion of Comments and Changes
No comments were received by the Coast Guard as a result of the
request for comments in our NPRM. However, we did receive several
telephone calls regarding the latitude and longitude positions of the
proposed zone. These callers identified two points (the point for the
approximate location of the private buoy and the northwestern corner of
Pier No. 5) that had been transposed in paragraphs (c)(1) and (c)(2) of
our proposed rule. These points have been corrected to accurately
reflect the location of these two security zones.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. The
Office of Management and Budget has not reviewed it under that Order.
It is not ``significant'' under the regulatory policies and procedures
of the Department of Homeland Security (DHS). We expect the economic
impact of this rule to be so minimal that a full Regulatory Evaluation
under the regulatory policies and procedures of DHS is unnecessary.
Although this rule would restrict access to the regulated area, the
effect of this rule would not be significant. This expectation is based
on the fact that the regulated area established by the rule would
encompass a limited area in the Blair and Sitcum Waterways,
Commencement Bay, WA. In addition, temporary final rules established
for past cargo loading and unloading operations have only lasted from a
few days to over a week in duration. Hence, the Coast Guard expects
that enforcement of this rule will be of similar duration. Further,
Coast Guard forces will actively monitor and enforce the Blair Waterway
and Sitcum Waterway security zones and are authorized by the Captain of
the Port to grant authorization to vessels to enter these waterways. In
addition, in certain circumstances VTS may grant authorization to
enter, move within or depart these waterways. In other words,
[[Page 52602]]
those vessels or persons who may be impacted by this rule may request
permission to enter, move within or depart these security zones.
Finally, the Coast Guard will cause a notice of suspension of
enforcement to be published when cargo loading or unloading operations
have concluded. For the above reasons, the Coast Guard does not
anticipate any significant economic impact.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
would not have a significant economic impact on a substantial number of
small entities.
This rule would affect the following entities, some of which may be
small entities: the owners or operators of vessels intending to operate
near or anchor in the vicinity of Blair and/or Sitcum Waterways.
This rule would not have a significant economic impact on a
substantial number of small entities for the following reasons: (i)
Individual security zones are limited in size; (ii) designated
representatives of the Captain of the Port may authorize access to the
security zone; (iii) security zones for any given operation will affect
a given geographical location for a limited time; (iv) the Coast Guard
will make notifications via maritime advisories so mariners can adjust
their plans accordingly and (v) the Coast Guard will cause a notice of
suspension of enforcement to be published when cargo loading or
unloading operations have concluded.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
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 so that they can better evaluate
its effects on them and participate in the rulemaking. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact one of the points of contact
listed under FOR FURTHER INFORMATION CONTACT.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule would call for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule would not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
The Coast Guard recognizes the rights of Native American Tribes
under the Stevens Treaties. Moreover, the Coast Guard is committed to
working with Tribal Governments to implement local policies to mitigate
tribal concerns. We have determined that these security zones and
fishing rights protection need not be incompatible. We have also
determined that this rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Nevertheless, Indian Tribes that have questions concerning the
provisions of this rule or options for compliance are encourage to
contact the point of contact listed under FOR FURTHER INFORMATION
CONTACT.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
The Coast Guard's preliminary review indicates this rule is
categorically excluded from further environmental documentation under
figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D. The
environmental analysis and Categorical Exclusion Determination will be
[[Page 52603]]
prepared and be available in the docket for inspection and copying
where indicated under ADDRESSES. All standard environmental measures
remain in effect.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--REGULATED 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; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.1321 to read as follows:
Sec. 165.1321 Security Zone; Protection of Military Cargo, Captain of
the Port Zone Puget Sound, WA.
(a) Notice of enforcement or suspension of enforcement. The Captain
of the Port Puget Sound will enforce the security zones established by
this section only upon notice. Captain of the Port Puget Sound will
cause notice of the enforcement of these security zone to be made by
all appropriate means to effect the widest publicity among the affected
segments of the public including publication in the Federal Register as
practicable, in accordance with 33 CFR 165.7(a). Such means of
notification may also include but are not limited to, Broadcast Notice
to Mariners or Local Notice to Mariners. The Captain of the Port Puget
Sound will issue a Broadcast Notice to Mariners and Local Notice to
Mariners notifying the public when enforcement of these security zones
is suspended.
(b) Definitions. The following definitions apply to this section:
Designated Representative means those persons designated by the
Captain of the Port to monitor these security zones, permit entry into
these zones, give legally enforceable orders to persons or vessels with
in these zones and take other actions authorized by the Captain of the
Port. Persons authorized in paragraph (g) to enforce this section and
Vessel Traffic Service Puget Sound (VTS) are Designated
Representatives.
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.
Navigable waters of the United States means those waters defined as
such in 33 CFR Part 2.
Public vessel means vessels owned, chartered, or operated by the
United States, or by a State or political subdivision thereof.
Washington Law Enforcement Officer means any General Authority
Washington Peace Officer, Limited Authority Washington Peace Officer,
or Specially Commissioned Washington Peace Officer as defined in
Revised Code of Washington section 10.93.020.
(c) Security zone. The following areas are security zones:
(1) Blair Waterway Security Zone: The Security Zone in the Blair
Waterway, Commencement Bay, WA, includes all waters enclosed by a line
connecting the following points: 47[deg]16'57'' N, 122[deg]24'39'' W,
which is approximately the beginning of Pier No. 23 (also known as the
Army pier); then northwesterly to 47[deg]17'05'' N, 122[deg]24'52'' W,
which is the end of the Pier No. 23 (Army pier); then southwesterly to
47[deg]16'42'' N, 122[deg]25' 18'' W, which is the approximate location
of a private buoy on the end of the sewage outfall; then southeasterly
to 47[deg]16'33'' N, 122[deg]25'04'' W, which is approximately the
northwestern end of Pier No. 5; then northeasterly to the northwestern
end of Pier No. 1; then southeasterly along the shoreline of the Blair
Waterway to the Blair Waterway turning basin; then along the shoreline
around the Blair Waterway turning basin; then northwesterly along the
shoreline of the Blair Waterway to the Commencement Bay Directional
Light (light list number 17159); then northeasterly along the shoreline
to the point of origin. [Datum: NAD 1983].
(2) Sitcum Waterway Security Zone: The Security Zone in the Sitcum
Waterway, Commencement Bay, WA, includes all waters enclosed by a line
connecting the following points: 47[deg]16'33'' N, 122[deg]25'04'' W,
which is approximately the northwestern end of Pier No. 5; then
northwesterly to 47[deg]16'42'' N, 122[deg]25'18'' W, which is the
approximate location of a private buoy on the end of the sewage
outfall; then southwesterly to 47[deg]16'23'' N, 122[deg]25'36'' W;
then southeasterly to 47[deg]16'10'' N, 122[deg]25'27'' W, which is the
northwestern corner of Pier No. 2; then extending northeasterly to
47[deg]16'13'' N, 122[deg]25'13'' W; then extending southeasterly along
the shoreline of the Sitcum Waterway; then northeasterly along the
shoreline at the terminus of the Sitcum Waterway and then northwesterly
along the shoreline of the Sitcum Waterway; then northeasterly along
the shoreline of Pier No. 5 to the point of origin. [Datum: NAD 1983].
(d) Obtaining permission to enter, move within, or exit the
security zones. All vessels must obtain permission from the COTP or a
Designated Representative to enter, move within, or exit the security
zones established in this section when these security zones are
enforced. Vessels 20 meters or greater in length should seek permission
from the COTP or a Designated Representative at least 4 hours in
advance. Vessels less than 20 meters in length should seek permission
at least 1 hour in advance. VTS Puget Sound may be reached on VHF
channel 14.
(e) Compliance. Upon notice of enforcement by the Captain of the
Port Puget Sound, the Coast Guard will enforce these security zones in
accordance with rules set out in this section. Upon notice of
suspension of enforcement by the Captain of the Port Puget Sound, all
persons and vessels are authorized to enter, transit, and exit these
security zones.
(f) Regulations. Under the general regulations in 33 CFR part 165
subpart D, this section applies to any vessel or person in the
navigable waters of the United States to which this section applies. No
person or vessel may enter the security zones established in this
section unless authorized by the Captain of the Port or his designated
representatives. Vessels and persons granted permission to enter the
security zone shall obey all lawful orders or directions of the Captain
of the Port or his designated representatives. All vessels shall
operate at the minimum speed necessary to maintain a safe course.
(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 not present in sufficient force to provide effective
enforcement of this section, any Federal Law Enforcement Officer or
Washington Law Enforcement Officer may enforce the rules contained in
this section pursuant to 33 CFR 6.04-11. In addition, the Captain of
the Port may be assisted by other federal, state or local agencies in
enforcing this section pursuant to 33 CFR 6.04-11.
(h) Exemption. Public vessels as defined in paragraph (b) of this
section are exempt from the requirements in this section.
(i) Waiver. For any vessel, the Captain of the Port Puget Sound may
waive any
[[Page 52604]]
of the requirements of this section, upon finding that operational
conditions or other circumstances are such that application of this
section is unnecessary or impractical for the purpose of port security,
safety or environmental safety.
Dated: August 6, 2004.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 04-19566 Filed 8-26-04; 8:45 am]
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