[Federal Register: October 12, 2004 (Volume 69, Number 196)]
[Proposed Rules]
[Page 60600-60603]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc04-24]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD13-04-040]
RIN 1625-AA87
Security Zones; Protection of Military Cargo, Captain of the Port
Zone Puget Sound, WA
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish a security zone in Budd
Inlet, Olympia, WA to protect Department of Defense assets and military
cargo in Puget Sound, Washington. The proposed security zone, 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
operations in the navigable waters of the United States.
DATES: Comments and related material must reach the Coast Guard on or
before November 26, 2004.
ADDRESSES: You may mail comments and related material to Commanding
Officer, Marine Safety Office Puget Sound, 1519 Alaskan Way South,
Seattle, Washington 98134. Marine Safety Office Puget Sound maintains
the public docket [CGD13-04-040] for this rulemaking. Comments and
material received from the public, as well as documents indicated in
this preamble as being available in the docket, will become part of
this docket and will be available for inspection or copying at Marine
Safety Office Puget Sound 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:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (CGD13-04-
040), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to Marine Safety Office Puget Sound at
the address under ADDRESSES explaining why one would be beneficial. If
we determine that one would aid this rulemaking, we will hold one at a
time and place announced by a separate notice in the Federal Register.
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 Coast Guard, through this proposed rule, intends to assist the
Department of Defense protect vital national security assets, in waters
of Puget Sound. This proposed rule would add Budd Inlet as a permanent
security zone in 33 CFR 165.1321. The security zones permanently
established in 33 CFR 165.1321 exclude persons and vessels from these
zones during military
[[Page 60601]]
cargo loading and unloading operations and set forth the procedures for
obtaining permission to enter, move within or exit these security
zones. Likewise, entry into zone described in this proposed rule 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.
Discussion of Proposed Rule
On May 14, 2004 we published a notice of proposed rule making (69
FR 26783) and on August 27, 2004, we published a final rule entitled
``Security Zone; Protection of Military Cargo, Captain of the Port Zone
Puget Sound, WA'', in the Federal Register (69 FR 52600), which
established security zones to protect military cargo loading operations
in the Blair and Sitcum Waterways, Commencement Bay, WA. Since May 21,
2004, the Captain of the Port Puget Sound has issued three temporary
final rules establishing security zones in Budd Inlet, West Bay,
Olympia, Washington (CGD13-04-035 signed August 12, 2004; CGD13-04-027
signed June 4, 2004; and CGD13-04-026 signed May 21, 2004).
Unfortunately, the May 2004 notice of proposed rule making for 33 CFR
165.1321 was published before the Coast Guard was notified that Budd
Inlet would be used for military cargo loading operations.
Like the final rule we established for the Blair and Sitcum
Waterways, the temporary final rules established in Budd Inlet were
established to protect facilities used by vessels to load and/or unload
military cargo. Other than the location, the restrictions and
requirements contained in these temporary final rules were virtually
identical to the requirements established in 33 CFR 165.1321 for the
Blair and Sitcum Waterways. Hence, this proposed rule would amend 33
CFR 165.1321 by adding Budd Inlet, Olympia, WA to the areas where
permanent security zones are established for military cargo loading
operations. However, the Captain of the Port will only enforce the
security zones established in 33 CFR 165.1321, including the zone
proposed for Budd Inlet, after issuing a notice of enforcement. Upon
notice of suspension of enforcement, all persons and vessels are
authorized to enter, move within and exit this security zone. This
proposed rule is deemed necessary to protect vital national security
assets and military cargo.
The Coast Guard proposes establishing a security zone in the Budd
Inlet Security Zone which controls all vessel movement in a limited
portion of Budd Inlet, West Bay, WA which includes all waters enclosed
by the following points: 47[deg]03'12'' N, 122[deg]25'21'' W, which is
approximately the northwestern end of the fence line enclosing Berth 1
at Port of Olympia; then northerly to 47[deg]03'15'' N, 122[deg]54'21''
W, which is the approximate 300 feet north along the shoreline; then
westerly to 47[deg]03'15'' N, 122[deg]54'26'' W; then southerly to
47[deg]03'06'' N, 122[deg]54'26'' W; then southeasterly to
47[deg]03'03'' N, 122[deg]54'20'' W, which is approximately the end of
the T-shaped pier; then north to 47[deg]03'01'' N, 122[deg]54'21'' W,
which is approximately the southwestern corner of berth 1; then
northerly along the shoreline to the point of origin. [Datum: NAD
1983.]
This proposed rule would be enforced from time to time by the
Captain of the Port Puget Sound for such times before, during, and
after military cargo loading and unloading as he or she deems necessary
to prevent damage or injury to any vessel or waterfront facility, to
safeguard ports, harbors, territories, or waters of the United States
or to secure the observance of the rights and obligations of the United
States. The Captain of the Port Puget Sound will cause notice of
enforcement or suspension of enforcement of this security zone to be
made by all appropriate means to effect the widest publicity among the
affected segments of the public, including Marine Safety Office Puget
Sound's Internet Web page located at http://www.uscg.mil/d13/units/msopuget.
In addition, Marine Safety Office Puget Sound maintains a
telephone line that is manned 24-hours-a-day, 7-days-a-week. The public
can contact Marine Safety Office Puget Sound at (206) 217-6002 or (800)
688-6664 to obtain information concerning enforcement of this rule.
Regulatory Evaluation
This proposed 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 proposed rule would restrict access
to the regulated area, the effect of this proposed 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 Budd
Inlet, Olympia, 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 periods under this proposed rule will be of similar
duration. Further, Coast Guard forces will actively monitor and enforce
the Budd Inlet security zone and are authorized by the Captain of the
Port to grant authorization to vessels to enter this waterway. In
addition, in certain circumstances VTS may grant authorization to
enter, move within or depart this waterway. In other words, those
vessels or persons who may be impacted by this rule may request
permission to enter, move within or depart this security zone. 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 proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities.
This proposed 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 Budd Inlet.
This proposed rule would not have a significant economic impact on
a substantial number of small entities for the following reasons: (i)
The security zone is limited in size; (ii) designated representatives
of the Captain of the Port may authorize access to the security zone;
(iii) security zone for any given operation will effect the 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
[[Page 60602]]
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 (Public Law 104-121), we want to assist small
entities in understanding this proposed 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). 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.
Collection of Information
This proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 Proposed 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 proposed 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 proposed 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 proposed 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 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.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 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.
2. In Sec. 165.1321, add paragraph(c)(3) to read as follows:
Sec. 165.1321 Security Zone; Protection of Military Cargo, Captain of
the Port Zone Puget Sound, WA.
* * * * *
(c) * * *
(3) Budd Inlet Security Zone: The Security Zone in Budd Inlet, West
Bay, Olympia, WA, includes all waters enclosed by a line connecting the
following points: 47[deg]03;'12'' N, 122[deg]25'21'' W, which is
approximately the northwestern end of the fence line enclosing Berth 1
at Port of Olympia;
[[Page 60603]]
then northerly to 47[deg]03'15'' N, 122[deg]54'21'' W, which is the
approximate 300 feet north along the shoreline; then westerly to
47[deg]03'15'' N, 122[deg]54'26'' W; then southerly to 47[deg]03'06''
N, 122[deg]54'26'' W; then southeasterly to 47[deg]03'03'' N,
122[deg]54'20'' W, which is approximately the end of the T-shaped pier;
then north to 47[deg]03'01'' N, 122[deg]54'21'' W, which is
approximately the southwestern corner of berth 1; then northerly along
the shoreline to the point of origin. [Datum: NAD 1983.]
* * * * *
Dated: September 22, 2004.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 04-22744 Filed 10-8-04; 8:45 am]
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