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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [CGD13-04-040] 
          - RIN 1625-AA87 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Notice of proposed rulemaking. 

# 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                           ( print 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°03′12″ N, 122°25′21″ W, which is approximately the northwestern end of the fence line enclosing Berth 1 at Port of Olympia; then northerly to 47°03′15″ N, 122°54′21″ W, which is the approximate 300 feet north along the shoreline; then westerly to 47°03′15″ N, 122°54′26″ W; then southerly to 47°03′06″ N, 122°54′26″ W; then southeasterly to 47°03′03″ N, 122°54′20″ W, which is approximately the end of the T-shaped pier; then north to 47°03′01″ N, 122°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                           ( print 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 § 165.1321, add paragraph(c)(3) to read as follows: 

§ 165.1321

* * * * *

(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°03;′12″ N, 122°25′21″ W, which is approximately the northwestern end of the fence line enclosing Berth 1 at Port of Olympia;                                       ( print page 60603)                                    then northerly to 47°03′15″ N, 122°54′21″ W, which is the approximate 300 feet north along the shoreline; then westerly to 47°03′15″ N, 122°54′26″ W; then southerly to 47°03′06″ N, 122°54′26″ W; then southeasterly to 47°03′03″ N, 122°54′20″ W, which is approximately the end of the T-shaped pier; then north to 47°03′01″ N, 122°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