[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Rules and Regulations]
[Pages 78633-78634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30590]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 334


Naval Restricted Area, Port Townsend, Indian Island, Walan Point, 
WA

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

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is issuing a final 
rule to enlarge an existing restricted area within Port Townsend Bay, 
Indian Island, Walan Point, Washington. The purpose of the restricted 
area is to ensure the security and safety of the public, and satisfy 
security, safety and operational requirements as they pertain to naval 
vessels. The restricted area will be marked on navigation charts to 
ensure security and safety for the public.

DATES: Effective Date: January 22, 2009.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO (David B. 
Olson), 441 G Street, NW., Washington, DC 20314-1000, or by e-mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, 
Operations and Regulatory Community of Practice, at 202-761-4922, Ms. 
Michelle Walker, Regulatory Branch Chief, U.S. Army Corps of Engineers, 
Seattle District, Northwest Division, at 206-764-6915, or Ms. Vicky 
Didenhover of the Regulatory Branch, U.S. Army Corps of Engineers, 
Seattle District, at 206-764-3311.

SUPPLEMENTARY INFORMATION: In the July 31, 2007, issue of the Federal 
Register (72 FR 41654), the Corps published a proposed rule to enlarge 
an existing restricted area in Port Townsend Bay, Indian Island, Walan 
Point, Washington.
    In response to the proposed rule, we received 10 comments, two of 
which expressed support for the enlarged area. The remaining comments 
expressed the following concerns:
    A. Pier lighting: One commenter expressed concern that the number 
and brightness of pier lights caused glare along the shoreline.
    The existing lights will not change in connection with expansion of 
the restricted area. Pier lighting is controlled so that the minimum 
lighting for safety and security is used during pier operations, and 
pier lights are positioned to shine on the pier surface and into 
adjoining waters.
    B. Fixed security barrier: Two commenters were concerned over 
aesthetic impacts and interference with navigation that would be caused 
by a physical barrier structure in the water and the buoys that 
position it.
    Consideration of any fixed barrier is distinct from this regulatory 
action to expand the existing restricted area. Any proposal to place a 
physical barrier around the restricted area will be the subject of a 
separate environmental review.
    C. Emergency response: Another commenter was concerned about the 
ability of the Navy and local municipalities to respond to an emergency 
involving the Navy's Indian Island facility.
    The Navy has a robust emergency response system and closely 
coordinates with local response agencies. This expansion of the 
restricted area does not produce an aggravated risk of a safety or 
security situation for which additional emergency response would be 
required.
    D. Accident potential: Two commenters expressed concern that, by 
constricting room available for navigation, the expansion of the 
restricted area could increase the risk of marine accidents.
    This rulemaking will not result in physical changes to the Indian 
Island site that will present new navigational impediments. The present 
restricted area has been in effect since 1961, with no record of 
causing marine accidents or otherwise hindering navigation. Once this 
final rule goes into effect, the restricted area's boundaries will 
still lie approximately 1\1/2\ nautical miles from the nearest point on 
the Port Townsend-Keystone ferry route, and approximately 1,700 yards 
to the closest point of land at Kala Point. The coordinates defining 
the expanded restricted area were selected to avoid interference with 
established ferry routes, to minimize interference with the adjacent 
traffic lanes of Port Townsend Bay, and to minimize interference with 
traffic to the

[[Page 78634]]

Port Townsend Paper Mill and Port Townsend Marina.
    E. A local municipality said that the Department of the Navy should 
prepare an environmental impact statement for all activities involving 
the Naval Magazine Indian Island since 1998, including the expansion of 
the restricted area.
    The Corps has prepared an environmental assessment for this 
rulemaking action to expand the existing restricted area. Other 
Department of the Navy activities at this facility are outside of this 
rulemaking action, and will be addressed as appropriate through 
separate National Environmental Policy Act (NEPA) actions by the Navy.
    One commenter requested a public hearing, expressing concern that 
insufficient information was provided regarding the nature of the 
potentially hazardous conditions, from which the expanded restricted 
area is intended to provide protection for the public.
    This rulemaking action does not evaluate or implement any change to 
the nature or intensity of U.S. Navy operations at the Indian Island 
facility, but merely enlarges an existing restricted area in order to 
provide an additional safety and security buffer between the public and 
those activities. This rulemaking and its underlying evaluation focus 
on the environmental and public interest impacts of the expanded 
restricted area. It does not evaluate the impacts of present safety and 
security conditions at the Indian Island facility; any changes to those 
conditions will be evaluated, as appropriate, by the Navy. Because the 
commenter did not raise reasons for holding a public hearing reflecting 
concerns over the impacts of the expanded restricted area, we have 
determined that no valid public interest would be served by holding 
such a hearing.
    Pursuant to its authorities in section 7 of the Rivers and Harbors 
Act of 1917 (40 Stat. 266; 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 is 
amending its regulations at 33 CFR part 334 by modifying the restricted 
area at Sec.  334.1270. The enlarged area will be activated on an 
intermittent basis by the U.S. Navy.

Procedural Requirements

    a. Review Under Executive Order 12866. This rule is issued with 
respect to a military function of the Defense Department and the 
provisions of Executive Order 12866 do not apply.
    b. Review Under the Regulatory Flexibility Act. The rule has been 
reviewed under the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 
601) 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 
modification of this restricted area would have practically no economic 
impact on the public and no anticipated navigational hazard or 
interference with existing waterway traffic. Accordingly, the Corps 
certifies that this regulation will have no significant economic impact 
on small entities.
    c. Review Under the National Environmental Policy Act. Due to the 
administrative nature of this action and because there is no intended 
change in the use of the area, the Corps determined that this rule will 
not have a significant impact to the quality of the human environment 
and, therefore, preparation of an environmental impact statement is not 
required. An environmental assessment with a Finding of No Significant 
Impact has been prepared for this action in accordance with applicable 
regulations. It may be reviewed at the District office listed at the 
end of FOR FURTHER INFORMATION CONTACT, above.
    d. Unfunded Mandates Act. This rule does not impose an enforceable 
duty among the private sector and, therefore, is not a Federal private 
sector mandate and is not subject to the requirements of section 202 or 
205 of the Unfunded Mandates Reform Act (Pub. L. 104-4). We have also 
found under section 203 of the Act, that small governments will not be 
significantly or uniquely affected by this rulemaking.

List of Subjects in 33 CFR Part 334

    Danger zones, Marine safety, Navigation (water), Restricted areas, 
Waterways.


0
For the reasons set out in the preamble, the Corps amends 33 CFR part 
334 as follows:

PART 334--DANGER ZONE AND RESTRICTED AREA REGULATIONS

0
1. The authority citation for 33 CFR part 334 continues to read as 
follows:

    Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 
U.S.C. 3).


0
2. Section 334.1270 is revised to read as follows:


Sec.  334.1270  Port Townsend, Indian Island, Walan Point; naval 
restricted area.

    (a) The area. The waters of Port Townsend Bay bounded by a line 
commencing on the north shore of Walan Point at latitude 
48[deg]04[min]42[sec] North, longitude 122[deg]44[min]30[sec] West 
(Point A); thence to latitude 48[deg]04[min]50[sec] North, longitude 
122[deg]44[min]38[sec] West (Point B); thence to latitude 
48[deg]04[min]52[sec] North, longitude 122[deg]44[min]57[sec] West 
(Point C); thence to latitude 48[deg]04[min]44[sec] North, longitude 
122[deg]45[min]12[sec] West (Point D); thence to latitude 
48[deg]04[min]26[sec] North, longitude 122[deg]45[min]21[sec] West 
(Point E); thence to latitude 48[deg]04[min]10[sec] North, longitude 
122[deg]45[min]15[sec] West (Point F); thence to latitude 
48[deg]04[min]07[sec] North, longitude 122[deg]44[min]49[sec] West 
(Point G); thence to a point on the Walan Point shoreline at latitude 
48[deg]04[min]16[sec] North, longitude 122[deg]44[min]37[sec] West 
(Point H).
    (b) The regulations. This area is for the exclusive use of the U.S. 
Navy. No person, vessel, craft, article or thing shall enter the area 
without permission from the enforcing agency. The restriction shall 
apply during periods when ship loading and/or pier operations preclude 
safe entry. The periods will be identified by flying a red flag from 
the ship and/or pier.
    (c) Enforcement. The regulation in this section shall be enforced 
by Commander, Navy Region Northwest and such agencies and persons as 
he/she shall designate.

    Dated: December 18, 2008.
Jonathan A. Davis,
Acting Deputy Chief, Operations, Directorate of Civil Works.
 [FR Doc. E8-30590 Filed 12-22-08; 8:45 am]
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