E8-30590. Naval Restricted Area, Port Townsend, Indian Island, Walan Point, WA

AGENCY:

U.S. Army Corps of Engineers, DoD.

ACTION:

Final rule.

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 [e-mail].

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 11/2 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 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 § 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

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

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).

2. Section 334.1270 is revised to read as follows:

§ 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°04′42″ North, longitude 122°44′30″ West (Point A); thence to latitude 48°04′50″ North, longitude 122°44′38″ West (Point B); thence to latitude 48°04′52″ North, longitude 122°44′57″ West (Point C); thence to latitude 48°04′44″ North, longitude 122°45′12″ West (Point D); thence to latitude 48°04′26″ North, longitude 122°45′21″ West (Point E); thence to latitude 48°04′10″ North, longitude 122°45′15″ West (Point F); thence to latitude 48°04′07″ North, longitude 122°44′49″ West (Point G); thence to a point on the Walan Point shoreline at latitude 48°04′16″ North, longitude 122°44′37″ 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.