[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Proposed Rules]
[Pages 63663-63666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25435]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1001]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary security 
zone encompassing certain waters of the Potomac and Anacostia Rivers in 
order to safeguard high-ranking government officials and the public-at-
large before, during, and after scheduled activities associated with 
the 2009 Presidential Inauguration. This security zone will be in 
effect between January 14, 2009 and January 25, 2009.

DATES: Comments and related material must reach the Coast Guard on or 
before November 26, 2008.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2008-1001 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
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 or submitting material to the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-1001), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and a mailing address, 
an e-mail address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, 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.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov at 
any time. Enter the docket number for this rulemaking (USCG-2008-1001) 
in the Search box, and click ``Go >>.'' You may also visit either the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays; or 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.

[[Page 63664]]

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility 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 later notice in the Federal Register.

Background and Purpose

    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 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 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 Proposed Rule

    On Tuesday, January 20, 2009, the U.S. Presidential Inauguration 
will take place at the U.S. Capitol in Washington, DC. Activities 
associated with the 2009 Presidential Inauguration in and near the 
District of Columbia will include several Inaugural balls, parades and 
receptions. The proposed zone will be in effect from January 14, 2009 
through January 25, 2009. The proposed zone will cover (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[min]42[sec] 
N, longitude 077[deg]02[min]55[sec] W on the Virginia shoreline to a 
position at latitude 38[deg]46[min]42[sec] N, longitude 
077[deg]01[min]33[sec] 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 rule requires that entry into or remaining in this security 
zone is prohibited unless authorized by the Coast Guard Captain of the 
Port Baltimore. Vessels already at berth, mooring, or anchor in the 
security zone at the time the security zone is implemented do not have 
to depart the zone. All vessels underway within this security zone at 
the time it is implemented are to depart the 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. 
To seek permission to transit the area, the Captain of the Port 
Baltimore can be contacted at telephone number 410-576-2693 or on 
Marine Band Radio, VHF-FM channel 16 (156.8 MHz). Coast Guard vessels 
enforcing this section can be contacted on Marine Band Radio, VHF-FM 
channel 16 (156.8 MHz). The Coast Guard will issue Broadcast Notices to 
Mariners to further publicize the security zone.

Regulatory Analyses

    We developed this proposed 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 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. 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 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 (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[min]42[sec] 
N, longitude 077[deg]02[min]55[sec] W on the Virginia shoreline to a 
position at latitude 38[deg]46[min]42[sec] N, longitude 
077[deg]01[min]01[sec] 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.
    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 (Pub. L. 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

[[Page 63665]]

small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact Mr. Ronald Houck, at Coast Guard Sector Baltimore, Waterways 
Management Division, at telephone number (410) 576-2674 or (410) 576-
2693. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

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.

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 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 
made a preliminary determination under the Instruction that this action 
is not likely to have a significant effect on the human environment. An 
environmental analysis checklist supporting this preliminary 
determination is available in the docket where indicated under 
ADDRESSES. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this proposed 
rule.
    We seek any comments or information that may lead to the discovery 
of a significant environmental impact from this proposed rule.

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, 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.T05-1001 to read as follows:


Sec.  165.T05-1001  Security Zone; Potomac and Anacostia Rivers, 
Washington, DC, Arlington and Fairfax Counties, VA, and Prince Georges 
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

[[Page 63666]]

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 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: October 6, 2008.
Brian D. Kelley,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
 [FR Doc. E8-25435 Filed 10-24-08; 8:45 am]
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