[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Rules and Regulations]
[Pages 71709-71711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27213]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing a security zone in Budd Inlet, 
Olympia, WA to protect Department of Defense assets and military cargo 
in Puget Sound, Washington. This security zone, when enforced by the 
Captain of the Port Puget Sound, will regulate traffic in the vicinity 
of military cargo loading operations in the navigable waters of the 
United States.

DATES: This rule is effective December 10, 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 CGD13-04-040 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, Seattle, WA, (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 October 12, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; Protection of

[[Page 71710]]

Military Cargo, Captain of the Port Zone Puget Sound, WA'' in the 
Federal Register (69 FR 60600). No written comments were received by 
the Coast Guard regarding this proposed 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. In fact, since October 12, 2004, the Captain of the 
Port Puget Sound has issued two additional temporary final rules 
establishing security zones in Budd Inlet, West Bay, Olympia, 
Washington (CGD13-04-41 singed November 15, 2004; CGD13-04-042 signed 
November 30, 2004). Moreover, the Captain of the Port Puget Sound will 
only enforce this final 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 Coast Guard, through this rule, intends to assist the 
Department of Defense protect vital national security assets, in the 
waters of Puget Sound. This rule adds 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 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 the zone described in 
this 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 Comments and Changes

    No comments were received by the Coast Guard as a result of the 
request for comments in our NPRM.

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 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 of this 
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 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 Budd Inlet.
    This 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 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

[[Page 71711]]

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 encouraged 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 
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 record 
keeping 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. 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; 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: December 1, 2004.
J.A. Stagliano,
Commander, U.S. Coast Guard, Acting Captain of the Port, Puget Sound.
[FR Doc. 04-27213 Filed 12-8-04; 8:54 am]
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