[Federal Register: December 3, 2004 (Volume 69, Number 232)]
[Proposed Rules]               
[Page 70211-70214]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de04-14]                         

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-210]
RIN 1625-AA00

 
Security Zone; Potomac and Anacosta Rivers, Washington, DC and 
Arlington and Fairfax Counties, Virginia

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to establish a temporary security 
zone from January 14 through January 25, 2005, encompassing certain 
waters of the Potomac and Anacosta Rivers in order to safeguard a large 
number of high-ranking officials and spectators from terrorist acts and 
incidents. This action is necessary to provide for the security of 
persons and property, and prevent terrorist acts or incidents during 
the 2005 Presidential Inauguration activities in Washington, DC. This 
rule would prohibit vessels and persons from entering the security zone 
and require 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: Comments and related material must reach the Coast Guard on or 
before January 3, 2005.

ADDRESSES: You may mail comments and related material to Commander, 
Coast Guard Activities Baltimore, 2401 Hawkins Point Road, Building 70, 
Waterways Management Branch, Baltimore, Maryland 21226-1791. Coast 
Guard Activities Baltimore, Waterways Management Branch, maintains the 
public docket for this rulemaking. Comments and material received from 
the public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
available for inspection or copying at Coast Guard Activities 
Baltimore, Waterways Management Branch, between 8 a.m. and 3 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Houck, at Coast Guard 
Activities Baltimore, Waterways Management Branch, at telephone number 
(410) 576-2674 or (410) 576-2693.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD05-04-
210), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
that your submission reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them. If, as we anticipate, we make this 
temporary final rule effective less than 30 days after publication in 
the Federal Register, we will explain in that publication, as required 
by 5 U.S.C. (d)(3), our good cause for doing so.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request

[[Page 70212]]

for a meeting by writing to Coast Guard Activities Baltimore, Waterways 
Management Branch, at the address under ADDRESSES explaining why one 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a 
separate notice in the Federal Register.

Background and Purpose

    The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised 
U.S. shipping interests to maintain a heightened state of alert against 
possible terrorist attacks. MARAD more recently issued Advisory 03-06 
informing operators of maritime interests of increased threat 
possibilities to vessels and facilities and a higher risk of terrorist 
attack to the transportation community in the United States. 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 proposes to establish a security 
zone for the 2005 Presidential Inauguration activities in Washington, 
DC to address the aforementioned security concerns and to take steps to 
prevent the catastrophic impact that a terrorist attack against a large 
gathering of high-ranking officials and spectators in Washington, DC, 
would have. This security zone applies to all waters of the Potomac 
River from shoreline to shoreline bounded by the Woodrow Wilson 
Memorial Bridge upstream to the Key Bridge, including the waters of the 
Anacostia River downstream from the Highway 50 Bridge to the confluence 
with the Potomac River, including the waters of the Georgetown Channel 
Tidal Basin, from January 14 through January 25, 2005. Vessels underway 
at the time this security zone is implemented will immediately proceed 
out of the zone. We will issue Broadcast Notices to Mariners to further 
publicize the security zone. This security zone is issued under 
authority contained in 50 U.S.C. 191 and 33 U.S.C. 1226.
    Except for Public vessels and vessels at berth, mooring or at 
anchor, this rule temporarily requires all vessels in the designated 
security zone as defined by this rule to depart the security zone. 
However, the Captain of the Port 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.

Discussion of Proposed Rule

    On Thursday, January 20, 2005, the U.S. Presidential Inauguration 
will take place at the U.S. Capitol in Washington, DC. The 2005 
Presidential Inauguration activities will include several Inaugural 
balls, parades and receptions. The security zone will be in effect from 
January 14 through January 25, 2005.

Regulatory Evaluation

    This proposed 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. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    The operational restrictions of the security zone are tailored to 
provide the minimal interruption of vessel operations necessary to 
provide immediate, improved security for persons, vessels, and the 
waters of the Potomac River in Washington, DC. Additionally, this 
security zone is temporary in nature and vessels and facilities can the 
Captain of the Port for a waiver of the requirements of the security 
zone. Any hardships experienced by persons or vessels are outweighed by 
the national interest in protecting high ranking officials and the 
public at large from the devastating consequences of acts of terrorism, 
and from sabotage or other subversive acts, accidents, or other causes 
of a similar nature.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed 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 a portion of 
the Potomac River, from the surface to the bottom, from the Woodrow 
Wilson Memorial Bridge upstream to the Key Bridge, including the waters 
of the Anacostia River downstream from the Highway 50 Bridge to the 
confluence with the Potomac River, including the waters of the 
Georgetown Channel Tidal Basin. This security zone will 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.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact the person listed 
under FOR FURTHER INFORMATION CONTACT. 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.

[[Page 70213]]

Collection of Information

    This proposed rule would call 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 proposed 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 proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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. We 
invite your comments on how this proposed rule might impact tribal 
governments, even if that impact may not constitute a ``tribal 
implication'' under the Order.

Energy Effects

    We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.lD, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded 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.
    Under figure 2-1, paragraph (34)(g) of the Instruction, an 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' are not required for this rule. Comments on this 
section will be considered before we make the final decision on whether 
to categorically exclude this rule from further environmental review.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.
    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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; 50 U.S.C. 191, 195; 33 CFR 
1.05-1(g), 6.04-1, 6.04-6, and 160.5; Department of Homeland 
Security Delegation No. 0170.1.

    2. Add Sec.  165.T05-210 to read as follows:


Sec.  165.T05-210  Security Zone; Potomac River, Washington, DC and 
Arlington and Fairfax Counties, Virginia.

    (a) Definitions. For the purposes of this section, Captain of the 
Port Baltimore means the Commander, U.S. Coast Guard Activities 
Baltimore, Maryland and any Coast Guard commissioned, warrant, or petty 
officer who has been authorized by the Commander, U.S. Coast Guard 
Activities Baltimore, Maryland to act as a designated representative on 
his or her behalf.
    (b) Location. The following area is a security zone: All waters of 
the Potomac River, from shoreline to shoreline, bounded by the Woodrow 
Wilson Memorial Bridge upstream to the Key Bridge, and all waters of 
the Anacostia River, from shoreline to shoreline, downstream from the 
Highway 50 Bridge to the confluence with the Potomac River, including 
the waters of the Georgetown Channel Tidal Basin.
    (c) Regulations. (1) The general regulations governing safety zones 
found in Sec.  165.33 of this part apply to the security zone described 
in paragraph (b).
    (2) Entry into or remaining in this zone is prohibited unless 
authorized by the Coast Guard Captain of the Port Baltimore. Except for 
Public vessels and vessels at berth, mooring or at anchor, all vessels 
in this zone are to depart the security zone. However, the Captain of 
the Port may, in his discretion grant

[[Page 70214]]

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. 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 VHF Marine Band 
Radio, VHF 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.
    (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) Effective period. This section will be effective from 4 a.m. 
local time on January 14, 2005, through 10 p.m. local time on January 
25, 2005.

    Dated: November 23, 2004.
Curtis A. Springer,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
[FR Doc. 04-26669 Filed 12-2-04; 8:45 am]

BILLING CODE 4910-15-U