17 December 2008

[Federal Register: December 17, 2008 (Volume 73, Number 243)]
[Rules and Regulations]               
[Page 76536-76539]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de08-7]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1001]
RIN 1625-AA87

 
Security Zone; Potomac and Anacostia Rivers, Washington, DC, 
Arlington and Fairfax Counties, VA, and Prince George's County, MD

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 and Anacostia Rivers. This 
action is necessary to ensure the security of persons and property, and 
to prevent terrorist acts or incidents before, during, and after 
scheduled activities associated with the 2009 U.S. Presidential 
Inauguration. This rule prohibits vessels and persons from entering the 
security zone and requires vessels and persons in the security zone to 
depart the security zone during the effective time frame, and to 
immediately depart the security zone when requested to do so by 
government authorities.

DATES: This rule is effective from 4 a.m. on January 14, 2009, through 
10 p.m. on January 25, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-1001 and are available online by going to 
http://www.regulations.gov, selecting the Advanced Docket Search option 
on the right side of the screen, inserting USCG-2008-1001 in the Docket 
ID box, pressing Enter, and then clicking on the item in the Docket ID 
column. This material is 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,

[[Page 76537]]

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 Ronald L. Houck, Waterways Management Division, at 
410-576-2674 or 2693. If you have questions on viewing the docket, call 
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On October 27, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled ``Security Zone; Potomac and Anacostia Rivers, 
Washington, DC, Arlington and Fairfax Counties, VA, and Prince George's 
County, MD'' in the Federal Register (73 FR 63663). We received one 
letter commenting on the proposed rule. No public meeting was 
requested, and none was held.

Background and Purpose

    The Coast Guard 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 proposed 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 proposing to establish a 
security zone to address the aforementioned security concerns and to 
take steps to prevent the catastrophic impact that a terrorist attack 
against the large gatherings of high-ranking United States officials, 
the public at large, and surrounding waterfront areas and communities 
would have. The proposed security zone is necessary to safeguard life 
and property on the navigable waters before, during, and after 
scheduled activities associated with the 2009 U.S. Presidential 
Inauguration and will help the Coast Guard prevent vessels or persons 
from bypassing the security measures established on shore for the 
events and engaging in waterborne terrorist actions during the highly-
publicized events.

Discussion of Comments and Changes

    The Coast Guard received one comment in response to the NPRM. No 
public meeting was requested and none was held. What follows is a 
review of, and the Coast Guard's response to, the issues that were 
presented by the commenter concerning the proposed regulations.
    The commenter, who was anonymous, stated that although they agree a 
secure perimeter is needed for the U.S. Presidential Inauguration, they 
do not agree that certain details of the security zone, such as the 
enforcement period and boundaries, should be provided to the general 
public beforehand. The commentor believes such information could be 
used by an adversary to devise a plan to circumvent the government's 
security efforts.
    The Administrative Procedures Act directs Federal agencies to 
ensure that adequate notice is provided to the public concerning 
actions that the Federal Government is considering for implementation. 
In addition, we do not feel that issuing the proposed rule adversely 
affects the patrol and enforcement of the security zone.

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 vessel traffic associated 
with recreational boating and commercial fishing during the effective 
period, and vessels may seek permission 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 would affect the following entities, some of which 
might be small entities: The owners or operators of vessels intending 
to operate or transit on (1) all waters of the Potomac River, from 
shoreline to shoreline, bounded on the north by the Francis Scott Key 
(U.S. Route 29) Bridge, downstream to and bounded on the south from a 
position at latitude 38[deg]46'42'' N, longitude 077[deg]02'55'' W on 
the Virginia shoreline to a position at latitude 38[deg]46'42'' N, 
longitude 077[deg]01'33'' W on the Maryland shoreline, including the 
waters of the Georgetown Channel Tidal Basin; and (2) all waters of the 
Anacostia River, from shoreline to shoreline, bounded on the north by 
the New York Avenue (U.S. Route 50) Bridge, downstream to and bounded 
on the south by its confluence with the Potomac River. This security 
zone would not have a significant economic impact on a substantial 
number of small entities because vessels with compelling interests that 
outweigh the port's security needs may be granted waivers from the 
requirements of the security zone.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered 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

[[Page 76538]]

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 will be 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, 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, 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 Sec.  165.T05-1001 to read as follows:


Sec.  165.T05-1001  Security Zone; Potomac and Anacostia Rivers, 
Washington, DC, Arlington and Fairfax Counties, VA, and Prince George's 
County, MD.

    (a) Location. The following area is a security zone: (1) All waters 
of the Potomac River, from shoreline to shoreline, bounded on the north 
by the Francis Scott Key (U.S. Route 29) Bridge, downstream to and 
bounded on the south from a position at latitude 38[deg]46'42'' N, 
longitude 077[deg]02'55'' W on the Virginia shoreline to a position at 
latitude 38[deg]46'42'' N, longitude 077[deg]01'33'' W on the Maryland 
shoreline, including the waters of the Georgetown Channel Tidal Basin; 
and
    (2) All waters of the Anacostia River, from shoreline to shoreline, 
bounded on the north by the New York Avenue (U.S. Route 50) Bridge, 
downstream to and bounded on the south by its confluence with the 
Potomac River.
    (b) Definitions. As used in this section:
    Captain of the Port Baltimore means the Commander, U.S. Coast Guard 
Sector Baltimore, Maryland.
    Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been authorized by the Captain of the 
Port Baltimore to assist in enforcing the security zone described in 
paragraph (a) of this section.
    (c) Regulations. (1) All persons are required to comply with the 
general regulations governing security zones found in 33 CFR 165.33.
    (2) Entry into or remaining in this zone is prohibited unless 
authorized by the Coast Guard Captain of the Port Baltimore. Vessels 
already at berth, mooring, or anchor at the time the security zone is 
implemented do not have to depart the security zone. All vessels 
underway within this security zone at the time it is implemented are to 
depart the zone. The Captain of the Port Baltimore may, in his 
discretion, grant waivers or exemptions to this rule, either on a case-
by-case basis or categorically to a particular class of vessel that 
otherwise is subject to adequate control measures.
    (3) Persons desiring to transit the area of the security zone must 
first obtain authorization from the Captain of the Port Baltimore or 
his designated representative. To seek permission to transit the area, 
the Captain of the Port

[[Page 76539]]

Baltimore and his designated representatives can be contacted at 
telephone number 410-576-2693 or on Marine Band Radio, VHF-FM channel 
16 (156.8 MHz). 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, or other Federal, State, or 
local agency 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 or his designated representative and 
proceed at the minimum speed necessary to maintain a safe course while 
within the zone.
    (4) Enforcement. The U.S. Coast Guard may be assisted in the patrol 
and enforcement of the zone by Federal, State, and local agencies.
    (d) Enforcement period. This section will be enforced from 4 a.m. 
on January 14, 2009, through 10 p.m. on January 25, 2009.

    Dated: December 5, 2008.
Austin J. Gould,
Commander, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland, 
Acting.
[FR Doc. E8-29726 Filed 12-16-08; 8:45 am]

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