[Federal Register: August 12, 2004 (Volume 69, Number 155)]
[Rules and Regulations]
[Page 49813-49816]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au04-12]
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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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