[Federal Register Volume 69, Number 166 (Friday, August 27, 2004)]
[Rules and Regulations]
[Pages 52600-52604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19566]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD13-04-019]
RIN 1625-AA87 (Formerly 1625-AA00)


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

AGENCY: Coast Guard, DHS.

[[Page 52601]]


ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing regulations for the security 
of Department of Defense assets and military cargo in Puget Sound, 
Washington. This 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: This rule is effective August 27, 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 CGD13-04-019 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, 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:

Regulatory Information

    On May 14, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zones; Protection of Military Cargo, Captain 
of the Port Zone Puget Sound, WA'' in the Federal Register (69 FR 
26783). No written comments were received by the Coast Guard regarding 
this proposed rule. However, the Coast Guard received several telephone 
calls, which indicated that two of the latitude/longitude positions 
were transposed in the NPRM. These callers were correct and the 
positions have been corrected in this final 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. Moreover, the Captain of the Port Puget Sound will 
only enforce this 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 ongoing hostilities in Afghanistan and Iraq have made 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 to protect vital national security 
assets, in waters of Puget Sound. This rule establishes 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.
    Since January 29 of this year, the Captain of the Port has issued 
four temporary final rules establishing security zones in Commencement 
Bay, Washington. These temporary final rules have been established to 
protect facilities used by vessels to load and/or unload military 
cargo. Moreover, these temporary zones have differed in size and 
description. This 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 this 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 
rule is deemed necessary to protect vital national security assets and 
military cargo.

Discussion of Comments and Changes

    No comments were received by the Coast Guard as a result of the 
request for comments in our NPRM. However, we did receive several 
telephone calls regarding the latitude and longitude positions of the 
proposed zone. These callers identified two points (the point for the 
approximate location of the private buoy and the northwestern corner of 
Pier No. 5) that had been transposed in paragraphs (c)(1) and (c)(2) of 
our proposed rule. These points have been corrected to accurately 
reflect the location of these two security zones.

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 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 of this 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,

[[Page 52602]]

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 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 Blair and/or Sitcum Waterways.
    This 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 affect 
a 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 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 encourage 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

[[Page 52603]]

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.

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. 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 zone to be made by 
all appropriate means to effect the widest publicity among the affected 
segments of the public including publication in the Federal 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 to monitor these security zones, permit entry into 
these zones, give legally enforceable orders to persons or vessels with 
in these zones and take other actions authorized by the Captain of the 
Port. 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]16'42'' 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]16'33'' 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]16'33'' N, 122[deg]25'04'' W, 
which is approximately the northwestern end of Pier No. 5; then 
northwesterly to 47[deg]16'42'' 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

[[Page 52604]]

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: August 6, 2004.
Danny Ellis,
Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 04-19566 Filed 8-26-04; 8:45 am]
BILLING CODE 4910-15-P