[Federal Register Volume 61, Number 17 (Thursday, January 25, 1996)]
[Rules and Regulations]
[Pages 2117-2120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1337]



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DEPARTMENT OF DEFENSE

Corps of Engineers

33 CFR Part 334


Sinclair Inlet, Puget Sound, Bremerton, WA; Naval Restricted 
Areas

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: The Corps is adopting as a final rule without modification, an 
interim final rule which amends the regulations reestablishing two 
restricted areas in the waters of Sinclair Inlet adjacent to the Puget 
Sound Naval Shipyard (PSNS), Bremerton, Washington. The amendments made 
by the interim final rule are essential to safeguard U.S. Navy vessels 
and Government facilities from sabotage and other subversive acts, 
accidents, or other incidents of a similar nature. The promulgation of 
this final rule is also necessary to protect vessels and individuals 
from the dangers associated with the industrial waterfront facilities 
at the shipyard.

DATES: Effective January 25, 1996.

ADDRESSES: HQUSACE, CECW-OR, Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT:
Mr. Jonathan Freedman, Regulatory Branch, Seattle District at (206) 
764-3495, or Mr. Ralph Eppard, Regulatory Branch, CECW-OR at (202) 761-
1783.

SUPPLEMENTARY INFORMATION: Pursuant to its authorities in Section 7 of 
the 

[[Page 2118]]
Rivers and Harbors Act of 1917 (40 Stat. 226; 33 U.S.C. 1) and Chapter 
XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), 
the Corps published an interim final rule in the Federal Register 
amending 33 CFR 334.1240, on August 21, 1995 (60 FR 43378-43379), 
effective on that date. Public comment on the changes to the restricted 
area rules was invited with the comment period ending on October 20, 
1995. The Army Corps of Engineers, Seattle District also published a 
public notice on the same date as the interim final rule with a 
concurrent comment period. The public notice was sent to all known 
interested parties, including Federal agencies, State agencies, local 
governments, affected Indian tribes, and affected individuals on the 
Corps, Seattle district mailing lists for the central and southern 
Puget Sound, Washington region. Subsequent to the publication of the 
interim final rule and the District public notice, it was found that an 
omission was made in the interim final rule and on November 24, 1995, a 
correction was published in the Federal Register (60 FR 57934-57935). 
The correction clarified that Area number 2 is for the exclusive use of 
the U.S. Navy by adding the words ``Area No. 2.'' to subparagraph 
(a)(3)(ii).

Comment on the Interim Final Rule and Responses

    Sixteen comments were received in response to the interim final 
rule. This number also includes the comments received in response to 
the local public notice published by the Seattle District. The 
commentors included the Suquamish Tribe, environmental organizations, 
and individuals. The comments received are addressed below:
    Comment: Restricted Area No. 2 should not be exclusive and 
shouldn't be expanded to accommodate Mooring Area ``A''. This change to 
the restricted area is also inconsistent with the SEPA checklist 
regarding Mooring Area A filed with the City of Bremerton in October, 
1993 (Suquamish Tribe).
    Navy's Response: The Tribe's objection is based on the belief that 
the exclusivity of the restricted area conflicts with their tribal 
treaty rights pertaining to usual and accustomed fishing grounds. Such 
treaty rights are not absolute. The Navy believes that its need to 
maintain security in the restricted area is more compelling than the 
minimal impact this restriction may have on the interests of the 
Suquamish Tribe in gathering fish in that small part of their fishing 
area. Regarding the Tribe's objection to the expansion of the 
restricted area, the objection appears based on an assertion that it is 
unnecessary. That is, there already exists the requisite 100 yards of 
space between the end of Mooring Area ``A'' and the boundary of the 
restricted zone. The Tribe is incorrect. The adjustments to the 
restricted area are required to maintain the 100 yards of space. With 
regard to inconsistencies with the October 1993 SEPA checklist, the 
Navy stated that it had no further plans for expansion of Mooring 
facilities at Bremerton. The Navy made no mention of a security zone or 
restricted area.
    District Engineer's position: The Suquamish Tribe has provided no 
evidence of treaty fishing in the proposed restricted area. Further, 
the proposed rule does allow for exceptions with the Naval Base Seattle 
Commander's approval. Therefore, the proposed restricted area is not 
believed to conflict with tribal treaty rights. The proposed adjustment 
of the existing restricted area to accommodate the expansion of Mooring 
Area ``A'' is a minuscule geographical change over present conditions. 
The proposed adjustment does not include any alteration of Navy 
operations that affects the present exclusivity of the restricted area. 
This proposed adjustment does not constitute a substantive change to 
existing conditions. Regarding the question of need for the geographic 
adjustment to accommodate the extension of Mooring Area ``A'', the 
District Engineer has found that the proposed adjustment to the 
restricted area acknowledges this extension and the need to provide a 
100-yard buffer by adjusting the boundary of the restricted area 
accordingly. Regarding the alleged inconsistency between this proposal 
and the referenced 1993 SEPA checklist, this checklist did not and 
could not discuss any expansion of the existing restricted area. 
Expansion of the restricted area can only be proposed by the Navy and 
the Corps of Engineers through public notice and advertisement in the 
Federal Register. The SEPA checklist stated that the Navy had no plans 
for additions to Mooring Areas at PSNS. This proposal represents no 
inconsistency with this or any other previous environmental document.
    Comment: Why are exemptions granted to Washington State Ferries and 
Horluck Transportation Company for unintentional entry into the 
restricted area when docking at the adjacent Bremerton terminal? If an 
exception is made for one mode of transportation, why can't an 
exception be made for another, associated with independent citizen 
monitoring (Union River Basin Protection Association; the Suquamish 
Tribe).
    Navy Response: Occasionally ferries enter Restricted Area 2 due to 
wind or tidal conditions, especially if there are docking delays at the 
terminal. The PSNS maintains direct contact with the State ferry 
operations office and can quickly determine why a ferry has drifted 
into the restricted area. PSNS makes an exception for the ferries 
because they are large and easy to observe. They do not approach Navy 
ships, disrupt shipyard operations, endanger Navy facilities or 
individuals, or provide cover for individuals who might want to engage 
in sabotage or espionage.
    District Engineer's position: The previous restricted area 
regulation allowed for entrance into the area with approval by the 
Commander, Naval Base Seattle, or his/her authorized representative, as 
does this final rule. To restrict entry by the State ferries would 
arbitrarily hinder an essential public service. An independent citizen, 
in accordance with this final rule, would be able to request access to 
the restricted area from the Navy.
    Comment: The ban on public access prevents the collection of 
information from the restricted area and infringes on the rights of the 
public to free speech and right to travel (Government Accountability 
Project; SEARCH).
    Navy's Response: There is no constitutional right for a citizen to 
enter the restricted area. The Navy is unaware of the authority that 
supports the assertion that this rule would affect a citizen's exercise 
of free speech. There is no constitutionally protected right to gather 
information. The Supreme Court has stated that ``the right of free 
speech does not carry with it the unrestrained right to gather 
information''. There is also no constitutional ``right to travel'' in 
the sense of unrestricted right to go wherever one wants. The Supreme 
Court has upheld restrictions on entry to military installations where 
compelling considerations of national security and public safety are at 
stake.
    District Engineer's position: I concur with the Navy that there is 
a compelling interest in safety and security in Restricted Area No. 2. 
Therefore, it follows that the restricted area does not violate ones 
constitutional right to travel. The Constitution allows for regulation 
of navigation, as does 33 U.S.C. 1. With respect to the right to free 
speech, this restricted area can be likened to a Coast Guard security 
zone. It has been held that such security zones are part of military 
installations, and military installations are not considered a public 
forum. The District Engineer finds that this amendment does not 
constitute a violation of constitutionally 

[[Page 2119]]
protected right to free speech. With respect to the restriction on 
gathering information that this amendment may cause to the public, 
there is no protected right. Furthermore, the restricted area is 
justified in light of the safety and security concerns.
    Comment: Several commentors (Union River Protection Association; 
People for Puget Sound; Government Accountability Project; 
International Marine Association Protecting Aquatic Life; SEARCH) 
stated that the Navy could allow independent environmental monitoring 
of the restricted area, or permit independent monitors to accompany 
Federal and State regulators who collect samples without risking 
national security. Present monitoring by government agencies do not 
pose a threat to national security or to the safety of those person(s) 
performing the monitoring.
    Navy's Response: Security and safety concerns require the PSNS to 
limit access to Restricted Area No. 2. The Navy does provide escorts 
for agencies who conduct monitoring, but has chosen not to provide 
escorts for private citizens for the following reasons:
    (1) The Navy can be held liable for any injury to a private 
individual, even if accompanied by an escort. This risk naturally 
increases when Scuba diving is involved;
    (2) Providing safety and security escorts for private individuals 
would place an undue burden on Navy staff and resources;
    (3) Outside agencies presently perform independent monitoring;
    (4) The Navy is not legally required to expend public funds to 
accommodate private citizens' desires to enter the restricted area.
    District Engineer's position: With the proposed update to the 
restricted area, the wording still allows access to the area if granted 
by the Commander, Naval Base Seattle. The wording to this restricted 
area has never absolutely prohibited access by citizens for monitoring 
or any other purpose. Under this revision to the restricted area, the 
Navy has not changed this portion of the wording. The Navy still has 
discretion to permit or deny access to PSNS restricted areas, requiring 
that those wishing to gain access must first be granted permission from 
the Base Commander. This wording is fair and appropriate. The 
objections raised during public comment periods are a matter that the 
Navy must handle directly with objecting parties.
    Comment: The proposed rule should include standards that would be 
used to evaluate requests for access. The Navy provides no information 
on what circumstances would enable one to enter the waters. The lack of 
standards violates the Administrative Procedure Act and impacts freedom 
of speech (Government Accountability Project; Seattle Chapter, NOW: 
People for Puget Sound; SEARCH).
    Navy's Response: Restricted Area No. 2 is for the exclusive use of 
the Navy and is considered part of the PSNS military installation. 
Based on concerns for security and safety, the Navy does not intend to 
open this area to the general public. Government Agencies, in the 
legitimate exercise of their authority, have been and will continue to 
be granted access to the restricted area, when access is determined to 
be safe and consistent with national security standards. Requests by 
Agencies such as the U.S. Coast Guard, the Environmental Protection 
Agency and the Washington State Departments of Ecology and Health have 
been routinely granted.
    District Engineer's Response: See response to comment above. 
Decisions regarding the granting of permission for public access to 
PSNS are a matter for the Navy to determine.
    Comment: Independent testing and verification of the Navy's testing 
program should continue and civilian access should be allowed for 
monitoring environmental contaminants (Union River Basin Protection 
Association; Government Accountability Project; Seattle Chapter, NOW; 
International Marine Association Protecting Aquatic Life; Western 
Environmental Law Center; John S. Mulvey; People for Puget Sound).
    Navy's Response: Independent monitoring has been conducted by the 
Washington State Department of Health, the Environmental Protection 
Agency, and joint monitoring has been conducted by the Navy with both 
of these agencies.
    District Engineer's Position: Operations at PSNS must be in 
compliance with all applicable environmental laws and regulations, 
regardless of the disposition of the restricted area, or any changes to 
wording for Restricted Area No. 2, Sinclair Inlet. These changes to the 
wording in the restricted area regulations will have not effect on the 
continuation of environmental monitoring at PSNS.
    Comment: The Navy's request may be motivated by a desire to limit 
public knowledge about sediment and water column contamination from 
nuclear programs (Union River Basin Protection Association; Seattle 
chapter, NOW; International Marine Association Protecting Aquatic Life; 
Western Environmental Law Center; John Mulvey; People for Puget Sound; 
SEARCH).
    Navy's Response: The Navy has made environmental monitoring 
information available to the public and invited independent monitoring 
by State and Federal agencies. The Navy's information relating to its 
Nuclear Propulsion Program and radioactivity has been reliable and 
technically sound.
    District Engineer's position: (see district engineer's position for 
previous response)
    Comment: Limited monitoring by SEARCH has found levels of 
radioactivity, specifically of Cadmium-109 and Iodine-131, in marine 
life in Restricted Area No. 2. The levels far exceed allowable safety 
standards, and far exceed levels acknowledged by the Navy.
    Navy's Response: The Navy's response to the assertions of elevated 
levels of Cadmium and Iodine was to complete a thorough evaluation 
which included independent review by credible non-Navy organizations 
(Washington State Department of Health; Environmental Protection 
Agency). A sampling and analysis plan was developed based on SEARCH's 
information. A report publishing the findings concluded that no 
Cadmium-109 was detected. Low levels of Iodine-131 were found in 
subsequent sampling. It is believed that the source may be the 
Bremerton wastewater treatment plant. Sewage systems commonly discharge 
low levels of Iodine from medical diagnosis and treatment. There is no 
indication that the PSNS is the source of Iodine-131. The presence of 
radioactive Iodine-131 is not near levels to be of concern as a hazard 
to public health or the environment.
    District Engineer's position: Again, operations at PSNS must be in 
compliance with all applicable environmental laws and regulations, 
regardless of the disposition of the restricted area. The changes to 
the wording in these regulations will have no effect on the 
continuation of environmental monitoring at PSNS.

Agency Decision to Adopt the Amendments

    The Corps has determined that implementation of final rulemaking 
for Restricted Area No. 1 and No. 2, is not contrary to the general 
public interest.
    Copies of the comments are available for inspection at the Seattle 
District Office located at 4735 East Marginal Way South, Seattle, 
Washington, 98134.

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Economic Assessment and Certification

    This final rule is issued with respect to a military function of 
the Defense Department and the provisions of Executive Order 12866 do 
not apply. These final rules have been reviewed under the Regulatory 
Flexibility Act (Pub. L. 96-354), which requires the preparation of a 
regulatory flexibility analysis for any regulation that will have a 
significant economic impact on a substantial number of small entities 
(i.e., small businesses and small governments). The Corps has 
determined that the economic impact of the changes to the restricted 
area will have practically no impact on the public, no anticipated 
navigational hazard or interference with existing waterway traffic and 
accordingly, no significant economic impact on small entities.

National Environmental Policy Act Certification

    An environmental assessment has been prepared which concludes that 
the proposed action will not have a significant impact to the human 
environment, and preparation of an environmental impact statement is 
not required. Copies of the environmental assessment may be reviewed at 
the Seattle District Office located at 4735 East Marginal Way South, 
Seattle, Washington, 98134.

List of Subjects in 33 CFR Part 334

    Navigation (water), Transportation, Danger zones.

    In consideration of the above, the Corps is adopting without 
change, the amendments to Part 334 of Title 33, published as an interim 
final rule on August 21, 1995, at 60 FR 43378 and corrected on November 
24, 1995 at 60 FR 57934.

    Dated: January 23, 1996.

    Approved:
Stanley G. Genega,
Major General, USA, Director of Civil Works.
[FR Doc. 96-1337 Filed 1-23-96; 11:44 am]
BILLING CODE 3710-92-M