[Federal Register Volume 67, Number 104 (Thursday, May 30, 2002)]
[Rules and Regulations]
[Pages 37687-37689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13509]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD13-01-015]
RIN 2115-AA97


Security Zones, Naval Submarine Base Bangor and Naval Submarines, 
Puget Sound and Strait of Juan De Fuca, WA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: In June 2001, we issued an interim rule establishing a fixed 
security zone around U.S. Naval Submarine Base Bangor. This interim 
rule also established moving security zones around U.S. Naval 
submarines while underway on Puget Sound, and the Strait of Juan De 
Fuca, WA and adjoining waters. This interim rule was established to 
safeguard U.S. Naval Submarine Base Bangor, and U.S. Naval submarines 
from sabotage, other subversive acts, or accidents, and otherwise 
protect Naval assets vital to national security. Based on the issuance 
of a naval vessel protection rule and the actions of other agencies, 
the Coast Guard is removing this interim rule because it is no longer 
needed.

DATES: This rule is effective 11:59 p.m. PDT, June 20, 2002.

ADDRESSES: Coast Guard Marine Safety Office Puget Sound maintains the 
public docket 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 U.S. Coast Guard Marine Safety 
Office Puget Sound, 1519 Alaskan Way South, Building 1, Seattle, 
Washington 98134. Normal office hours are between 8 a.m. and 4 p.m., 
Monday through Friday, except federal holidays.

FOR FURTHER INFORMATION CONTACT: LT P. M. Stocklin, Jr., c/o Captain of 
the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 
98134, (206) 217-6232.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard issued an interim final rule, effective June 20, 
2001, that was published in the Federal Register (66 FR 35758, July 9, 
2001). We are removing that interim final rule.
    Under 5 U.S.C. 553(d)(3), we find that good cause exists to make 
this rule effective less than 30 days after publication in the Federal 
Register. This rule removes security zones that are no longer needed 
because of other regulatory changes designed to provide adequate 
security for U.S. Naval Submarine Base Bangor and submarines.

Background and Purpose

    The Coast Guard established a fixed security zone around Naval 
Submarine Base Bangor, WA, and moving security zones around Naval 
submarines while underway on Puget Sound, and the Strait of Juan De 
Fuca, WA and adjoining waters because we determined it was necessary to 
prevent access to these areas in order to safeguard this U.S. Naval 
base and submarines from sabotage, other subversive acts, or accidents, 
and otherwise protect U.S. Naval assets vital to national security. 
Events such as the bombing of the USS COLE highlight the fact that 
there were hostile entities operating with the intent to harm U.S. 
national security by attacking or sabotaging Naval assets including 
those in Puget Sound. The events of September 11, 2001, demonstrated 
that there were real, credible, and immediate threats.
    The Coast Guard, through our interim final rule, assisted the U.S. 
Navy in protecting vital national security assets by establishing 
security zones to exclude persons and vessels from the immediate 
vicinity of U.S. Naval Submarine Base Bangor and submarines. Entry into 
these zones was prohibited unless authorized by the Captain of the Port 
or his designee. These security zones are patrolled and enforced by 
Coast Guard and Navy personnel.
    These zones are not needed after June 20, 2002 because regulatory 
changes, designed to provide adequate security for U.S. Naval Submarine 
Base Bangor and submarines, will be in effect by June 20, 2002. In 
particular, the Protection of Naval Vessels rule issued under the 
authority in 14 U.S.C. 91 immediately following the September 11, 2001 
attacks (66 FR 48780, September 21, 2001; and 66 FR 48782, September 
21, 2001) will provide protective measures for both vessels and bases. 
Additionally, the Army Corps of Engineers will also be providing a 
Naval Restricted Area around Submarine Base, Bangor, Washington. As a 
result this interim rule is no longer needed, and the Coast Guard is 
withdrawing the interim rule and closing this rulemaking docket.

Discussion of Comments and Changes

    The Coast Guard received 15 responses to the interim final rule. 
The paragraphs in this section discuss the comments we received and 
provide the

[[Page 37688]]

Coast Guard's response. The Coast Guard is not making any changes to 
the rule based on the comments. Instead, the interim final rule is 
being withdrawn because other protective measures make the rule 
unnecessary.
    General comments are discussed first, followed by comments on 
specific sections of the regulations.

General Comments

    Five comments expressed support for the expanding of the security 
zone around the Naval Subase Bangor and the mobile security zones 
around submarines in order to protect them from sabotage, other 
subversive acts, or accidents. In addition, these responses contained 
issues that were outside the scope of this regulation.
    One comment in favor of the security zone also stated that just 
because there is not a specific threat we should still act as prudent 
military commanders and extend security zones despite what intelligence 
agencies know but cannot share with the public in detail.
    Two comments stated that, due to recent terrorist attacks on the 
United States military, we as a country should ensure the safety of the 
military.
    One comment from a boater agreed with the security zone and stated 
that the security zone in no way will hinder navigation in the Puget 
Sound area.
    One commenter in support of the security zone stated that, because 
he was a taxpayer, the submarines belonged to him and that the Coast 
Guard and Navy should use all appropriate means to protect them from 
enemy attack.
    Four comments opposed the expedited implementation of this 
regulation and requested public hearings. Some of these expressed 
concern that the public was not allowed to ask questions and voice 
their concerns on the expanding of the security zone. In light of the 
threat and vulnerability concerns for naval installations and vessels, 
as highlighted by the terrorist attack on the USS Cole, the Navy and 
Coast Guard decided that a security zone around the subase and 
submarines was needed immediately. Following the terrorist attack on 
the World Trade Centers in New York and the Pentagon in Washington, 
D.C., the security zones have proven to be an appropriate necessity.
    Three comments suggested that the security zones would hinder 
peaceful marine protesting of the nuclear submarines and the submarine 
base. This rule does not prevent people from engaging in 
constitutionally-protected expression. People are still able to 
peacefully protest outside the security zones. The zones are designed 
to protect Navy assets to the maximum extent possible without 
unreasonably impacting the right to free speech.
    One comment mentioned that protection of civilian marine traffic 
during a terrorist attack on a submarine is not addressed in the 
interim final ruling. This comment is outside the scope of this 
rulemaking.
    Four comments suggested other ways the Navy could increase security 
for its submarines and the subase. These suggestions were not practical 
due to the inherent dangers involved in submarine navigation and/or 
would create added unnecessary burdens.
    Two comments expressed concern over automobile traffic being 
impeded on the Hood Canal Bridge. These comments are outside the scope 
of this regulation.
    Three comments questioned what and whether there is a credible 
threat to U.S. submarines. It would be contrary to the public interest 
to disclose the exact nature of the threats to U.S. Naval assets, as 
this information is highly classified, and if divulged would greatly 
damage U.S. intelligence sources and security postures. The terrorist 
attacks of September 11, 2001 have proven that there are very credible 
threats to our nation and its capability to conduct war.
    One comment questioned if a bomb threat on one of the submarines in 
May 2000 was one of the reasons for the security zone. This comment is 
out of the scope of this regulation.
    One comment questioned if a November 2000 arrest for sabotage of a 
Navy Petty Officer assigned to a submarine was one of the reasons for 
the security zone. This comment is out of the scope of this regulation.
    Three comments discussed protesters being unable to enter Elliot 
Bay while a nuclear submarine was moored there in August 2000 for Sea 
Fair festivities. These comments are out of the scope of this 
regulation.
    One comment questioned if there is a similar security zone for 
Trident Submarines and the subase at Kings Bay, Georgia. That base has 
different geographical parameters than Puget Sound, and does not serve 
as a good comparison.
    One comment suggested that the number of times a Trident Submarine 
passes through the Strait of Juan De Fuca and Hood Canal should be 
estimated in order to determine if the distances established by the 
zones will still permit adequate freedom of movement on the waterways. 
Due to the required secrecy of Trident submarine movements, the number 
of submarine passages cannot be made public.
    One comment questioned if the Indian Tribal Governments had been 
contacted. The commenter stated it was not reasonable to expect Indian 
Tribes to review the Federal Register in order to comment on the impact 
to their tribes. The Coast Guard is required to consult Indian Tribes 
for rules that would have a significant impact on Tribal activities. 
The interim final rule did not have tribal implications under Executive 
Order 13175, Consultation and Coordination with Indian tribal 
governments, because it did 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. As a 
result, the Indian Tribes were not consulted on the interim final rule.
    One comment questioned why the environmental impact was left off 
the interim final ruling. The Coast Guard was not required to prepare 
environmental documentation prior to issuing the interim final rule, 
but has subsequently done so.
    One comment suggested that the regulation would have an impact on 
commercial and civilian navigation. Since the interim regulation has 
been in affect, there has only been minimal impact on recreational and 
commercial navigation. This rule is being withdrawn so it will no 
longer have any impact on recreational or commercial navigation.

Comments on Specific Sections of the Rule

    One comment questioned what response the Coast Guard or Navy would 
give to an infraction of the security zone. Specific Coast Guard 
enforcement actions depend on the circumstances of each case, and can, 
in accordance with policy, range from education and verbal warnings up 
to the maximum penalties provided by law. The Coast Guard and Navy will 
take all legally appropriate and necessary law enforcement measures to 
ensure compliance with the zone.
    Four comments opposed the expedited implementation of this 
regulation and requested public hearings. Some of these expressed 
concern that the public was not allowed to ask questions and voice 
their concerns on the establishment of the security zones. The Coast 
Guard did not hold public hearings prior to the rulemaking because good 
cause existed to make the rule effective sooner than the normal 
rulemaking process would allow, as discussed in the interim final rule. 
The Coast Guard was also available

[[Page 37689]]

to answer any questions posed by the public.

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 Transportation (DOT) (44 FR 11040, February 26, 
1979). We expect the economic impact of this final rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10(e) of the 
regulatory policies and procedures of DOT is unnecessary. This 
expectation is based on the fact that the regulated areas established 
by the interim final rule are being cancelled For the above reason, the 
Coast Guard does not anticipate any significant economic impact.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), we 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. ``Small entities'' include 
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. This 
final rule will not affect any small entities. Because the impacts of 
this final rule are expected to be minimal, the Coast Guard certifies 
under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
that this rule will not have a significant economic impact on a 
substantial number of small entities.
    If you believe 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 believe it qualifies and how and to what 
degree this final 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 rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the final 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person listed in the (FOR 
FURTHER INFORMATION CONTACT) section.

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

    We have analyzed this rule under Executive Order 13132 and have 
determined that this rule does not have implications for federalism 
under that Order.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
governs the issuance of Federal regulations that require unfunded 
mandates. An unfunded mandate is a regulation that requires a State, 
local, or tribal government or the private sector to incur direct costs 
without the Federal Government's having first provided the funds to pay 
those costs. This final rule would not impose an unfunded mandate.

Taking of Private Property

    This final rule would not effect a taking of private property or 
otherwise have taking implications under E.O. 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 
final rule is not an economically significant rule and does not concern 
an environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    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.

Environment

    We considered the environmental impact of this rule and concluded 
that, under figure 2-1, paragraph (34)(g) of Commandant Instruction 
M16475.lC, this final rule is categorically excluded from further 
environmental documentation. A Categorical Exclusion is provided for 
security zones. A Categorical Exclusion Determination and an 
Environmental Analysis Checklist are available in the docket at the 
location specified under the ADDRESSES portion of this rulemaking.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, Waterways.

Final Rule

    For the reasons set out in the preamble, the Coast Guard amends 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.


[sect] 165.1311  [Removed]

    2. Remove [sect] 165.1311.

    Dated: May 20, 2002.
M.R. Moore,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 02-13509 Filed 5-29-02; 8:45 am]
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