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5 September 2008
[Federal Register: September 5, 2008 (Volume 73, Number 173)]
[Rules and Regulations]
[Page 51719-51722]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se08-5]
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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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