[Federal Register Volume 69, Number 196 (Tuesday, October 12, 2004)]
[Proposed Rules]
[Pages 60600-60603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22744]


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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]
BILLING CODE 4910-15-P