[Federal Register Volume 73, Number 173 (Friday, September 5, 2008)]
[Rules and Regulations]
[Pages 51719-51722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20659]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0902]
RIN 1625-AA87


Security Zone; Potomac River, Boundary Channel and Pentagon 
Lagoon, Washington, DC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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:

[[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[deg]52'50'' N/077[deg]03'25'' W, thence to 38[deg]52'49'' N/
077[deg]03'25'' W; and bounded on the east by a line running northwest 
to southeast from points along the shoreline at 38[deg]52'34'' N/
077[deg]02'48'' W, thence to 38[deg]52'32'' N/077[deg]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[deg]52'50'' N/
077[deg]03'25'' W, thence to 38[deg]52'49'' N/077[deg]03'25'' W; and 
bounded on the east by a line running northwest to southeast from 
points along the shoreline at 38[deg]52'34'' N/077[deg]02'48'' W, 
thence to 38[deg]52'32'' N/077[deg]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.

[[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.

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


Sec.  165.T05-0902  Security Zone; Potomac River, Boundary Channel and 
Pentagon Lagoon, Washington, DC.

    (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

[[Page 51722]]

shoreline to shoreline, bounded on the west by a line running north to 
south from points along the shoreline at 38[deg]52[min]50[sec] N/
077[deg]03[min]25[sec] W, thence to 38[deg]52[min]49[sec] N/
077[deg]03[min]25[sec] W; and bounded on the east by a line running 
northwest to southeast from points along the shoreline at 
38[deg]52[min]34[sec] N/077[deg]02[min]48[sec] W, thence to 
38[deg]52[min]32[sec] N/077[deg]02[min]46[sec] W (Datum NAD 1983).
    (c) Regulations. (1) The general regulations governing security 
zones found in Sec.  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]
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