[Federal Register Volume 69, Number 86 (Tuesday, May 4, 2004)]
[Proposed Rules]
[Pages 24552-24554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10112]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-057]
RIN 1625-AA00


Security Zone; Potomac River, Washington, DC and Arlington and 
Fairfax Counties, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary security 
zone, May 27 through May 30, 2004, encompassing the waters of the 
Potomac River in order to safeguard a large number of high-ranking 
officials and spectators from terrorist acts and incidents. This action 
is necessary to ensure the safety of persons and property, and prevent 
terrorist acts or incidents. 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: Comments and related material must reach the Coast Guard on or 
before May 19, 2004.

ADDRESSES: You may mail comments and related material to Commander, 
U.S. Coast Guard Sector Baltimore, 2401 Hawkins Point Road, Building 
70, Ports and Waterways Department, Baltimore, Maryland, 21226-1791. 
The Ports and Waterways Department of Coast Guard Sector Baltimore 
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 the Ports and 
Waterways Department of Coast Guard Sector Baltimore between 8 a.m. and 
4 p.m., Monday through Friday, except Federal holidays.

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

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-
057), 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--because of the 
closeness of the event, we make the final rule effective less than 30 
days after publication in the Federal Register, we will explain our 
good cause for doing so in the final rule, as required by 5 U.S.C. 
553(d)(3).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Ports and Waterways Department 
of Coast Guard Sector Baltimore at the address under ADDRESSES 
explaining why one would be beneficial. If we determine that one would 
aid this rulemaking, we will hold

[[Page 24553]]

one at a time and place announced by a separate notice in the Federal 
Register.

Background and Purpose

    Terrorist attacks on September 11, 2001, inflicted catastrophic 
human casualties and property damage. These attacks highlighted the 
terrorists' ability and desire to utilize multiple means in different 
geographic areas to increase their opportunities to successfully carry 
out their mission, thereby maximizing loss of life and destruction of 
property using multiple terrorist acts.
    Since the September 11, 2001 terrorist attacks on the World Trade 
Center in New York, the Pentagon in Arlington, Virginia and Flight 93 
in Pennsylvania, the Federal Bureau of Investigation (FBI) has issued 
several warnings concerning the potential for additional terrorist 
attacks within the United States. The threat of maritime attacks is 
real as evidenced by the October 2002 attack on a tank vessel off the 
coast of Yemen and the prior attack on the USS COLE. These attacks 
manifest a continuing threat to U.S. assets as described in the 
President's finding in Executive Order 13273 of August 21, 2002 (67 FR 
56215, September 3, 2002) that the security of the U.S. is endangered 
by the September, 11, 2001 attacks and that such disturbances continue 
to endanger the international relations of the United States. See also 
Continuation of the National Emergency with Respect to Certain 
Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of 
the National Emergency With Respect to Persons Who Commit, Threaten To 
Commit, or Support Terrorism, (67 FR 59447, September 20, 2002). The 
ongoing hostilities in Afghanistan and conflict in 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.
    The Captain of the Port 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 a large gathering 
of spectators and high-ranking officials at or near the National Mall 
in Washington, DC would have. This temporary security zone applies to 
all waters of the Georgetown Channel of the Potomac River, from the 
surface to the bottom, between the Long Railroad Bridge to the 
Arlington Memorial Bridge and all waters in between, including the 
waters of the Georgetown Channel Tidal Basin from May 27 through May 
30, 2004. 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 
and any revisions to the 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 COTP 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 Saturday, May 29, 2004, nearly 59 years after the end of World 
War II, the National World War II Memorial will be dedicated in 
Washington, DC at 2 p.m. local time. The Memorial Day weekend 
celebration on the National Mall will culminate an 11-year effort to 
honor America's World War II generation. The official dedication 
celebration will span 4 days, and includes several ``Tribute to a 
Generation'' dedication events. The security zone will be in effect 
from May 27 through May 30, 2004.

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 
appeal to 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 rule will affect the following entities, 
some of which may be small entities: the owners or operators of vessels 
intending to operate or transit on the Georgetown Channel of the 
Potomac River, from the surface to the bottom, between the Long 
Railroad Bridge (the most eastern bridge of the 5-span, Fourteenth 
Street Bridge complex) to the Arlington Memorial Bridge and all waters 
in between, 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 Mr. Ronald L. 
Houck, at Coast Guard Sector Baltimore, Waterways

[[Page 24554]]

Management Branch, at telephone number (410) 576-2674.

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 affect 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.

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; 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 Sec.  165.T05-057 to read as follows:


Sec.  165.T05-057  Security Zone; Potomac River, Washington, DC and 
Arlington and Fairfax Counties, Virginia.

    (a) Location. The following area is a security zone: All waters of 
the Georgetown Channel of the Potomac River, from the surface to the 
bottom, between the Long Railroad Bridge (the most eastern bridge of 
the 5-span, Fourteenth Street Bridge complex) to the Arlington Memorial 
Bridge and all waters in between, including the waters of the 
Georgetown Channel Tidal Basin.
    (b) Regulations. (1) Entry into or remaining in this zone is 
prohibited unless authorized by the Coast Guard Captain of the Port, 
Baltimore, Maryland. 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 COTP 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.
    (2) Persons desiring to transit the area of the security zone may 
contact the Captain of the Port at telephone number 410-576-2693 or on 
VHF channel 16 (157.8 MHz) to seek permission to transit the area. If 
permission is granted, all persons and vessels must comply with the 
instructions of the Captain of the Port or his or her designated 
representative.
    (c) Authority. In addition to 33 U.S.C. 1231 and 50 U.S.C. 191, the 
authority for this section includes 33 U.S.C. 1226.
    (d) Effective period. This section is effective from 4 a.m. local 
time on May 27, 2004, through 10 p.m. local time on May 30, 2004.

    Dated: April 2, 2004.
Curtis A. Springer,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
[FR Doc. 04-10112 Filed 5-3-04; 8:45 am]
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