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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [Docket No. USCG-2008-0902] 
          - RIN 1625-AA87 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing a temporary security zone encompassing certain waters of the Potomac River. This action is necessary to prevent terrorist acts and incidents immediately before, during and after a dedication ceremony held at The Pentagon on September 11, 2008. This rule prohibits vessels and people from entering the security zone and requires vessels and persons in the security zone to depart the security zone, unless specifically exempt under the provisions in this rule or granted specific permission from the Coast Guard Captain of the Port Baltimore. 

# DATES:

This rule is effective from 6 a.m. through 11 a.m. on September 11, 2008. 

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0902 and are available online at                         *http://www.regulations.gov*. They are also available for inspection or copying at two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and the Commander, U.S. Coast Guard Sector Baltimore, 2401 Hawkins Point Road, Building 70, Waterways Management Division, Baltimore, Maryland 21226-1791 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call Mr. Ronald Houck, at Coast Guard Sector Baltimore, Waterways Management Division, at telephone number (410) 576-2674 or (410) 576-2693. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. 

#                     SUPPLEMENTARY INFORMATION:                          ( print page 51720)    

## Regulatory Information 

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the publication of an NPRM is impracticable and contrary to the public interest as immediate action is necessary to protect The Pentagon, high-ranking United States officials and the public from security threats during a dedication ceremony on September 11, 2008. This temporary security zone of short duration is necessary to coordinate security operations and establish a secure environment. 

                    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the                     **Federal Register**                    . The measures contemplated by the rule are intended to protect The Pentagon, high-ranking United States officials and the public by preventing waterborne acts of terrorism, which terrorists have demonstrated a capability to carry out. Immediate action is needed to defend against and deter these terrorist acts. Any delay in the effective date of this rule is contrary to public and national interests.                 

## Background and Purpose 

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. Due to increased awareness that future terrorist attacks are possible the Coast Guard, as lead federal agency for maritime homeland security, has determined that the Coast Guard Captain of the Port must have the means to be aware of, deter, detect, intercept, and respond to asymmetric threats, acts of aggression, and attacks by terrorists on the American homeland while still maintaining our freedoms and sustaining the flow of commerce. This security zone is part of a comprehensive port security regime designed to safeguard human life, vessels, and waterfront facilities against sabotage or terrorist attacks. 

The Captain of the Port Baltimore is establishing a security zone to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against The Pentagon, high-ranking United States officials and the public at large, and the surrounding waterfront areas and communities in the District of Columbia and Virginia. The security zone is necessary to safeguard life and property on the navigable waters immediately before, during, and after the scheduled event. This zone will help the Coast Guard prevent persons from bypassing the security measures established on shore during the event. 

## Discussion of Rule 

On September 11, 2008, several high-ranking United States officials will gather at The Pentagon Memorial during an official dedication ceremony by the Department of Defense. The Pentagon Memorial honors victims of the 9/11 attack on The Pentagon. The ceremony will take place in The Pentagon South parking lot and at The Pentagon Memorial site. The event will begin at approximately 8 a.m. 

The Coast Guard is establishing a temporary security zone on certain waters of the Potomac River in Washington, DC. This zone, within the Boundary Channel and Pentagon Lagoon, is bounded on the west by a line running north to south from points along the shoreline at 38°52′50″ N/077°03′25″ W, thence to 38°52′49″ N/077°03′25″ W; and bounded on the east by a line running northwest to southeast from points along the shoreline at 38°52′34″ N/077°02′48″ W, thence to 38°52′32″ N/077°02′46″ W. The zone is approximately 1,500 yards in length and will be in effect from 6 a.m. through 11 a.m. on September 11, 2008. Unauthorized persons in the area at the time this security zone is implemented must immediately proceed out of the zone. Except for public vessels and vessels at berth, mooring or at anchor, this rule temporarily requires all persons in the designated security zone as defined by this rule to immediately depart the security zone. Entry into this security zone is prohibited, unless specifically authorized by the Captain of the Port, Baltimore, Maryland. U.S. Coast Guard personnel will be provided to prevent the movement of unauthorized persons into the zone. Federal, state, and local agencies may assist the Coast Guard in the enforcement of this rule. 

## Regulatory Analyses 

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. 

## Regulatory Planning and Review 

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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. There is no expected vessel traffic associated with commercial fishing during the 5-hour effective period, and vessels may seek permission and be granted from the Captain of the Port Baltimore to enter and transit the zone. 

## 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 will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to operate, transit or anchor on the Potomac River, all waters of the Potomac River, within the Boundary Channel and Pentagon Lagoon, from shoreline to shoreline, bounded on the west by a line running north to south from points along the shoreline at 38°52′50″ N/077°03′25″ W, thence to 38°52′49″ N/077°03′25″ W; and bounded on the east by a line running northwest to southeast from points along the shoreline at 38°52′34″ N/077°02′48″ W, thence to 38°52′32″ N/077°02′46″ W, from 6 a.m. through 11 a.m. on September 11, 2008. This security zone will not have a significant economic impact on a substantial number of small entities, because it will be effective for only 5 hours and vessels may seek and be granted permission from the Captain of the Port Baltimore to enter and transit the zone.                           ( print page 51721)    

## Assistance for Small Entities 

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. 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). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. 

## Collection of Information 

This rule calls 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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. 

## Taking of Private Property 

This rule will 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 does not create 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. 

## 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. 

## Technical Standards 

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. 

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. 

## Environment 

We have analyzed this rule under Department of Homeland Security Management Directive 5100.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded under the Instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g.), of the Instruction, from further environmental documentation. This rule establishes a security zone. 

                    An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under                     **ADDRESSES**                    .                 

# List of Subjects in 33 CFR Part 165

      - Harbors
      - Marine safety
      - Navigation (water)
      - Reporting and recordkeeping requirements
      - Security measures
      - Vessels
      - Waterways

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 

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 temporary § 165.T05-0902 to read as follows: 

§ 165.T05-0902 

                            (a)                             *Definitions.*                             For the purposes of enforcement of this section,                             *Captain of the Port Baltimore*                             means the Commander, U.S. Coast Guard Sector Baltimore, Maryland and any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Commander, U.S. Coast Guard Sector Baltimore, Maryland to act as a designated representative on his behalf.                         

                            (b)                             *Regulated Area.*                             The following area is a security zone: All waters of the Potomac River, within the Boundary Channel and Pentagon Lagoon, from                                   ( print page 51722)                                shoreline to shoreline, bounded on the west by a line running north to south from points along the shoreline at 38°52′50″ N/077°03′25″ W, thence to 38°52′49″ N/077°03′25″ W; and bounded on the east by a line running northwest to southeast from points along the shoreline at 38°52′34″ N/077°02′48″ W, thence to 38°52′32″ N/077°02′46″ W (Datum NAD 1983).                         

                            (c)                             *Regulations.*                             (1) The general regulations governing security zones found in § 165.33 of this part apply to the security zone described in paragraph (b) of this section.                         

(2) Entry into or remaining in this zone is prohibited unless authorized by the Captain of the Port Baltimore or his designated representative. Except for public vessels and vessels at berth, mooring or at anchor, all vessels in this zone are to depart the security zone. 

(3) Persons desiring to transit the area of the security zone must first obtain authorization from the Captain of the Port Baltimore. To seek permission to transit the area, the Captain of the Port Baltimore can be contacted at telephone number (410) 576-2693. The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port Baltimore and proceed at the minimum speed necessary to maintain a safe course while within the zone. 

                            (d)                             *Enforcement*. The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State, and local agencies.                         

                            (e)                             *Enforcement period.*                             This section will be enforced from 6 a.m. through 11 a.m. on September 11, 2008.                        

Dated: August 28, 2008. 

Brian D. Kelley, 

Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.

[FR Doc. E8-20659 Filed 9-4-08; 8:45 am] 

BILLING CODE 4910-15-P