[Federal Register Volume 69, Number 94 (Friday, May 14, 2004)]
[Proposed Rules]
[Pages 26783-26786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10997]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-04-019]
RIN 1625-AA00


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 two security zones in 
Commencement Bay, WA. These security zones are needed to protect 
Department of Defense assets and military cargo in Puget Sound, 
Washington. This proposed rule, 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 facilities in the navigable 
waters of the United States.

DATES: Comments and related material must reach the Coast Guard on or 
before June 14, 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 [CGD13-04-019] 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-
019), 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 and protect vital national security assets, in 
waters of Puget Sound. This proposed rule would establish security 
zones and notification requirements that will exclude persons and 
vessels from these zones during military cargo loading and unloading 
operations. Entry into these zones 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

    During the past 6 months, the Captain of the Port has issued four 
temporary final rules establishing security zones in Commencement Bay, 
Washington. (CGD13-04-024 issued April 29, 2004; 69 FR 24513, May 4, 
2004, item 13-04-006; 69 FR 4237, 4239, January 29, 2004; items 13-03-
037 and 13-03-039)
    These temporary final rules have been established to protect 
facilities used by

[[Page 26784]]

vessels to load and/or unload military cargo. Moreover, these temporary 
zones have differed in size and description. This proposed rule would 
establish a permanent, uniform, security zone, which would control 
vessel movement in and around the Blair and Sitcum Waterways, 
Commencement Bay, WA. However, the Captain of the Port will only 
enforce the proposed rule after issuing a notice of enforcement. Upon 
notice of suspension of enforcement, all persons and vessels are 
authorized to enter, move within and exit these security zones. 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 Blair 
Waterway, Commencement Bay, WA, which includes all waters enclosed by 
the following points: 47[deg]16'57'' N, 122[deg]24'39'' W, which is 
approximately the beginning of Pier No. 23 (also known as the Army 
pier); then northwesterly to 47[deg]17'05'' N, 122[deg]24'52'' W, which 
is the end of the Pier No. 23 (Army pier); then southwesterly to 
47[deg]16'33'' N, 122[deg]25'18'' W, which is the approximate location 
of a private buoy on the end of the sewage outfall; then southeasterly 
to 47[deg]16'42'' N, 122[deg]25'04'' W, which is approximately the 
northwestern end of Pier No. 5; then northeasterly to the northwestern 
end of Pier No. 1; then southeasterly along the shoreline of the Blair 
Waterway to the Blair Waterway turning basin; then along the shoreline 
around the Blair Waterway turning basin; then northwesterly along the 
shoreline of the Blair Waterway to the Commencement Bay Directional 
Light (light list number 17159); then northeasterly along the shoreline 
to the point of origin. [Datum: NAD 1983].
    This proposed rule would also establish a security zone in the 
Sitcum Waterway, Commencement Bay, WA which includes all waters 
enclosed by the following points: 47[deg]16'42'' N, 122[deg]25'04'' W, 
which is approximately the northwestern end of Pier No. 5; then 
northwesterly to 47[deg]16'33'' N, 122[deg]25'18'' W, which is the 
approximate location of a private buoy on the end of the sewage 
outfall; then southwesterly to 47[deg]16'23'' N, 122[deg]25'36'' W; 
then southeasterly to 47[deg]16'10'' N, 122[deg]25'27'' W, which is the 
northwestern corner of Pier No. 2; then extending northeasterly to 
47[deg]16'13'' N, 122[deg]25'13'' W; then extending southeasterly along 
the shoreline of the Sitcum Waterway; then northeasterly along the 
shoreline at the terminus of the Sitcum Waterway and then northwesterly 
along the shoreline of the Sitcum Waterway; then northeasterly along 
the shoreline of Pier No. 5 to the point of origin. [Datum: NAD 1983].
    Finally, this proposed rule would also establish requirements for 
all vessels to obtain permission of the COTP or the COTP's designated 
representative, including the Vessel Traffic Service Seattle (VTS), to 
enter the Blair Waterway or Sitcum Waterway security zones when they 
are being enforced. To allow time for the request to be considered, 
vessels 20 meters or greater in length should seek permission 4 hours 
in advance, and vessels less than 20 meters should seek permission to 
enter at least 1 hour in advance. Also, vessels must obtain permission 
from the COTP or a Designated Representative to move within or exit 
these security zones when they are being enforced.
    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 loadings and unloadings 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 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 the Blair and Sitcum 
Waterways, Commencement Bay, 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 proposed rule will 
be of similar duration. Further, Coast Guard forces will actively 
monitor and enforce the Blair Waterway and Sitcum Waterway security 
zones and are authorized by the Captain of the Port to grant 
authorization to vessels to enter these waterways. In addition, in 
certain circumstances VTS may grant authorization to enter, move within 
or depart these waterways. In other words, those vessels or persons who 
may be impacted by this rule may request permission to enter, move 
within or depart these security zones. 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 Blair and/or 
Sitcum Waterways.
    This proposed rule would not have a significant economic impact on 
a substantial number of small entities for the following reasons: (i) 
Individual security zones are limited in size; (ii) designated 
representatives of the Captain of the Port may authorize access to the 
security zone; (iii) security zones for any given operation will effect 
a given geographical location for a limited time; (iv) the Coast Guard 
will make

[[Page 26785]]

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 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).

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 record 
keeping 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. Add Sec.  165.1321 to read as follows:


Sec.  165.1321  Security Zone; Protection of Military Cargo, Captain of 
the Port Zone Puget Sound, WA.

    (a) Notice of enforcement or suspension of enforcement. The Captain 
of the Port Puget Sound will enforce the security zones established by 
this section only upon notice. Captain of the Port Puget Sound will 
cause notice of the enforcement of these security zones to be made by 
all appropriate means to effect the widest publicity among the affected 
segments of the public including publication in the Federal

[[Page 26786]]

Register as practicable, in accordance with 33 CFR 165.7(a). Such means 
of notification may also include but are not limited to, Broadcast 
Notice to Mariners or Local Notice to Mariners. The Captain of the Port 
Puget Sound will issue a Broadcast Notice to Mariners and Local Notice 
to Mariners notifying the public when enforcement of these security 
zones is suspended.
    (b) Definitions. The following definitions apply to this section:
    Designated Representative means those persons designated by the 
Captain of the Port Puget Sound to monitor these security zones, permit 
entry into these zones, give legally enforceable orders to persons or 
vessels within these zones and take other actions authorized by the 
Captain of the Port Puget Sound. Persons authorized in paragraph (g) to 
enforce this section and Vessel Traffic Service Puget Sound (VTS) are 
Designated Representatives.
    Federal Law Enforcement Officer means any employee or agent of the 
United States government who has the authority to carry firearms and 
make warrantless arrests and whose duties involve the enforcement of 
criminal laws of the United States.
    Navigable waters of the United States means those waters defined as 
such in 33 CFR part 2.
    Public vessel means vessels owned, chartered, or operated by the 
United States, or by a State or political subdivision thereof.
    Washington Law Enforcement Officer means any General Authority 
Washington Peace Officer, Limited Authority Washington Peace Officer, 
or Specially Commissioned Washington Peace Officer as defined in 
Revised Code of Washington section 10.93.020.
    (c) Security zone. The following areas are security zones:
    (1) Blair Waterway Security Zone: The Security Zone in the Blair 
waterway, Commencement Bay, WA, includes all waters enclosed by a line 
connecting the following points: 47[deg]16'57'' N, 122[deg]24'39'' W, 
which is approximately the beginning of Pier No. 23 (also known as the 
Army pier); then northwesterly to 47[deg]17'05'' N, 122[deg]24'52'' W, 
which is the end of the Pier No. 23 (Army pier); then southwesterly to 
47[deg]16'33'' N, 122[deg]25'18'' W, which is the approximate location 
of a private buoy on the end of the sewage outfall; then southeasterly 
to 47[deg]16'42'' N, 122[deg]25'04'' W, which is approximately the 
northwestern end of Pier No. 5; then northeasterly to the northwestern 
end of Pier No. 1; then southeasterly along the shoreline of the Blair 
Waterway to the Blair Waterway turning basin; then along the shoreline 
around the Blair Waterway turning basin; then northwesterly along the 
shoreline of the Blair Waterway to the Commencement Bay Directional 
Light (light list number 17159); then northeasterly along the shoreline 
to the point of origin. [Datum: NAD 1983].
    (2) Sitcum Waterway Security Zone: The Security Zone in the Sitcum 
waterway, Commencement Bay, WA, includes all waters enclosed by a line 
connecting the following points: 47[deg]16'42'' N, 122[deg]25'04'' W, 
which is approximately the northwestern end of Pier No. 5; then 
northwesterly to 47[deg]16'33'' N, 122[deg]25'18'' W, which is the 
approximate location of a private buoy on the end of the sewage 
outfall; then southwesterly to 47[deg]16'23'' N, 122[deg]25'36'' W; 
then southeasterly to 47[deg]16'10'' N, 122[deg]25'27'' W, which is the 
northwestern corner of Pier No. 2; then extending northeasterly to 
47[deg]16'13'' N, 122[deg]25'13'' W; then extending southeasterly along 
the shoreline of the Sitcum Waterway; then northeasterly along the 
shoreline at the terminus of the Sitcum Waterway and then northwesterly 
along the shoreline of the Sitcum Waterway; then northeasterly along 
the shoreline of Pier No. 5 to the point of origin. [Datum: NAD 1983].
    (d) Obtaining permission to enter, move within, or exit the 
security zones: All vessels must obtain permission from the COTP or a 
Designated Representative to enter, move within, or exit the security 
zones established in this section when these security zones are 
enforced. Vessels 20 meters or greater in length should seek permission 
from the COTP or a Designated Representative at least 4 hours in 
advance. Vessels less than 20 meters in length should seek permission 
at least 1 hour in advance. VTS Puget Sound may be reached on VHF 
channel 14.
    (e) Compliance. Upon notice of enforcement by the Captain of the 
Port Puget Sound, the Coast Guard will enforce these security zones in 
accordance with rules set out in this section. Upon notice of 
suspension of enforcement by the Captain of the Port Puget Sound, all 
persons and vessels are authorized to enter, transit, and exit these 
security zones.
    (f) Regulations. Under the general regulations in 33 CFR part 165 
subpart D, this section applies to any vessel or person in the 
navigable waters of the United States to which this section applies. No 
person or vessel may enter the security zones established in this 
section unless authorized by the Captain of the Port or his designated 
representatives. Vessels and persons granted permission to enter the 
security zone shall obey all lawful orders or directions of the Captain 
of the Port or his designated representatives. All vessels shall 
operate at the minimum speed necessary to maintain a safe course.
    (g) Enforcement. Any Coast Guard commissioned, warrant, or petty 
officer may enforce the rules in this section. In the navigable waters 
of the United States to which this section applies, when immediate 
action is required and representatives of the Coast Guard are not 
present or not present in sufficient force to provide effective 
enforcement of this section, any Federal Law Enforcement Officer or 
Washington Law Enforcement Officer may enforce the rules contained in 
this section pursuant to 33 CFR 6.04-11. In addition, the Captain of 
the Port may be assisted by other Federal, State or local agencies in 
enforcing this section pursuant to 33 CFR 6.04-11.
    (h) Exemption. Public vessels as defined in paragraph (b) of this 
section are exempt from the requirements in this section.
    (i) Waiver. For any vessel, the Captain of the Port Puget Sound may 
waive any of the requirements of this section, upon finding that 
operational conditions or other circumstances are such that application 
of this section is unnecessary or impractical for the purpose of port 
security, safety or environmental safety.

    Dated: May 7, 2004.
Danny Ellis,
Captain, U. S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 04-10997 Filed 5-13-04; 8:45 am]
BILLING CODE 4910-15-P