[Federal Register Volume 69, Number 155 (Thursday, August 12, 2004)]
[Rules and Regulations]
[Pages 49813-49816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18473]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-148]
RIN 1625-AA87


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary security zone for 
all waters of the Potomac River, from the Woodrow Wilson Memorial 
Bridge upstream to the Francis Scott Key Bridge, including the water of 
the Anacostia River downstream from the Highway 50 Bridge to the 
confluence of the Potomac River. This security zone is needed to 
protect vessels, waterfront

[[Page 49814]]

facilities, the public, and other surrounding areas from destruction, 
loss, or injury caused by sabotage, subversive acts, accidents, or 
other actions of a similar nature performed by individuals or groups 
reacting to current world events. All vessels engaged in commercial 
service are prohibited from entering this security zone unless 
authorized by the Captain of the Port or designated representative.

DATES: This rule is effective from 8 a.m. EDT August 3, 2004, through 8 
a.m. EDT November 30, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket 
are part of docket [CGD05-04-148] and are available for inspection or 
copying at Commander, Coast Guard Activities Baltimore, 2401 Hawkins 
Point Road, Baltimore, MD 21226-1791 between 8 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald Houck, Waterways Management 
Branch, at Commander, Coast Guard Activities Baltimore, 2401 Hawkins 
Point Road, Baltimore, MD 21226-1791, telephone number (410) 576-2674.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation under 5 U.S.C. 553 (b)(B). The Coast Guard finds that good 
cause exists for not publishing an NPRM. The Coast Guard operates under 
a three-tiered system of Maritime Security (MARSEC) conditions that are 
aligned with the color-coded Homeland Security Advisory System 
Conditions (HSAS). The Department of Homeland Security has recently 
raised the HSAS to color Orange based in part on threats to specific 
targets within the Washington D. C. metro area and, as a result, 
portions of the surrounding maritime environment has been elevated to 
the second highest level of alert, MARSEC II. Vessel control measures 
for the Coast Guard to establish heightened deterrence and detection of 
terrorist activities in the port are necessary.
    Additionally, the Maritime Administration recently issued MARAD 
Advisory 03-06 (221500ZDEC 03) 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. Further, the heightened security posture of the 
country and U.S. maritime interests, described below, continues. The 
publication of an NPRM is contrary to the public interest insofar as 
urgent action is required to address the ongoing threat to U.S. 
maritime transportation interests.
    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 prevent waterborne acts of 
sabotage or 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 
impracticable and contrary to the public interest.

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 Captain of the Port Baltimore 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 temporary 
security zone for all waters of the Potomac River, from the Woodrow 
Wilson Memorial Bridge upstream to the Francis Scott Key Bridge, 
including the water of the Anacostia River downstream from the Highway 
50 Bridge to the confluence of the Potomac River.
    All vessels engaged in commercial service are prohibited from 
entering, moving within, or remaining in this security zone unless 
authorized by the COTP Baltimore or designated representative. Vessels 
engaged in commercial service desiring to enter the security zone may 
request COTP authorization to enter the security zone by contacting the 
COTP Baltimore or COTP representative by telephone at (202) 767-1194, 
or U.S. Coast Guard Station Washington, DC on VHF-FM channels 16 or 
23A. To allow adequate time to review each request, we recommend that 
these vessels contact the COTP Activities Baltimore or designated 
representative prior to the desired entry into the security zone.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    Although this rule restricts the access of vessels engaged in 
commercial service within the regulated area, the effect of this rule 
will not be significant because: (i) The COTP Activities Baltimore may 
authorize access to the security zone on a case by case basis; (ii) the 
security zone will be in effect for a limited duration; and (iii) the 
Coast Guard will make notifications via maritime advisories so vessels 
engaged in commercial service can adjust their plans accordingly.

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 may affect the following entities, some of which 
may be small entities: the owners or operators of vessels engaged in 
commercial service intending to transit the waters of the Potomac 
River, from the Woodrow Wilson Memorial Bridge upstream to the Francis 
Scott Key Bridge, including the water of the Anacostia River

[[Page 49815]]

downstream from the Highway 50 Bridge to the confluence of the Potomac 
River from 8 a.m. EDT August 3, 2004, through 8 a.m. EDT November 30, 
2004. This rule will not have a significant economic impact on a 
substantial number of small entities for the reasons enumerated under 
the Regulatory Evaluation above.

Assistance for Small Entities

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

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 Commandant Instruction M16475.1D, 
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 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 because this rule is not expected to result 
in any significant environmental impact as described in NEPA. A final 
``Environmental Analysis Check List'' and a final ``Categorical 
Exclusion Determination'' will be available 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(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. From 8 a.m. EDT August 3, 2004, through 8 a.m. EDT November 30, 
2004, add temporary Sec.  165.T05-148 to read as follows:


Sec.  165.T05-148  Security Zone; Potomac River, Washington, DC and 
Arlington and Fairfax Counties, VA.

    (a) Location. The following area is a security zone: All waters of 
the Potomac

[[Page 49816]]

River, from the Woodrow Wilson Memorial Bridge upstream to the Francis 
Scott Key Bridge, including the water of the Anacostia River downstream 
from the Highway 50 Bridge to the confluence of the Potomac River, 
extending the entire width of the river.
    (b) Definitions. (1) For the purposes of this section, Captain of 
the Port means the Commander, U.S. Coast Guard Activities Baltimore, 
and any Coast Guard commissioned, warrant, or petty officer who has 
been authorized by the Commander, U.S. Coast Guard Activities Baltimore 
to act as a designated representative on his or her behalf.
    (2) Commercial service includes any type of trade or business 
involving the carriage of goods or persons for hire, except services 
performed by a vessel on U.S. government service.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.33 apply to all persons and vessels in the security zone, or 
approaching the security zone.
    (2) All persons and vessels in the security zone, or approaching 
the security zone, shall comply with the instructions of the Captain of 
the Port. 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.
    (3) All vessels engaged in commercial service are prohibited from 
entering this security zone unless authorized by the Captain of the 
Port or his or her designated representative. Vessels engaged in 
commercial service seeking authorization to enter the security zone 
should contact the Captain of the Port or designated representative by 
telephone at 202-767-1194, or U.S. Coast Guard Station Washington, DC 
on VHF channels 16 or 23A.

    Dated: August 3, 2004.
Curtis A. Springer,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
[FR Doc. 04-18473 Filed 8-11-04; 8:45 am]
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