E7-16479. Security Zone; M/V Odyssey III, Global Air Chiefs Conference, Upper Potomac River, Washington, DC

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary security zone in certain waters of the Upper Potomac River surrounding the motor vessel Odyssey III, a 230-foot passenger vessel. This action is necessary in order to ensure the security of high-ranking public officials and safeguard the public at large against terrorist acts or incidents during activities associated with a dinner cruise held in conjunction with the Global Air Chiefs Conference, in Washington, DC, on September 23, 2007. This rule prohibits vessels and people from entering the security zone and requires vessels and persons in the security zone to depart the zone, unless specifically exempt under the provisions in this rule or granted specific permission from the Coast Guard Captain of the Port Baltimore, Maryland, or his designated representative.

DATES:

This rule is effective from 3 p.m. through 5 p.m. on September 23, 2007.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD05-07-080 and are available for inspection or copying at Coast Guard Sector Baltimore, Waterways Management Division, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mr. Ronald Houck, at Coast Guard Sector Baltimore, Waterways Management Division, at telephone number [phone] or [phone].

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 is establishing this temporary security zone to coordinate security operations and establish a secure environment for this highly visible and publicized event. The publication of an NPRM is impracticable and contrary to the public interest as there is not sufficient time to publish an NPRM and get comments before issuing a final rule.

Background and Purpose

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.

In this particular rulemaking, to address the aforementioned security concerns before, during, and after the highly-publicized public event, and to take steps to prevent the catastrophic impact that a terrorist attack against high-ranking public officials and the public at large before, during, and after a dinner cruise held on the Upper Potomac River for visiting foreign dignitaries would have on the public interest, the Captain of the Port, Baltimore, Maryland is establishing a security zone upon waters of the Upper Potomac River, encompassing an area 100 yards in all directions around the passenger vessel Odyssey III while moored, underway or anchored on the Upper Potomac River. This security zone will help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against a large number of participants during the event. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on the passenger vessel Odyssey III would have on the large number of participants, and the surrounding area and communities, a security zone is prudent for this type of event.

Discussion of Rule

From September 20, 2007, through September 29, 2007, the U.S. Air Force Chief of Staff (CSAF) will host the Global Air Chiefs Conference, in Washington, DC. In conjunction with this event, the CSAF has invited his counterparts from around the world to attend a dinner cruise on the Upper Potomac River on board the passenger vessel Odyssey III. The cruise will occur on Sunday, September 23, 2007. This security zone is necessary to prevent vessels or persons on waters of the Upper Potomac River, encompassing an area 100 yards in all directions around the passenger vessel Odyssey III while moored, underway or anchored, from approaching the vessel and thereby bypassing the security measures for the event established by the United States Air Force Office of Special Investigations. Vessel traffic in the Upper Potomac River will be restricted. Except for Public vessels and vessels at berth, mooring or at anchor, this rule requires all vessels in the designated security zone, as defined by this rule, underway at the time this security zone is implemented to immediately proceed out of the security zone. Entry into this zone is prohibited unless authorized by the Captain of the Port or his designated representative. The Captain of the Port will issue Notices to Mariners to publicize the security zone and notify the public of changes in the status of the zone. Such notices will continue until the event has concluded.

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.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule prevents traffic from transiting a portion of the Upper Potomac River during the event, the effect of this rule will not be significant due to the limited size and duration of the security zone, the extensive notifications that will be made to the maritime community via marine information broadcasts, and vessel traffic not constrained by draft will be able to safely transit around the zone.

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 will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to operate, remain or anchor on the Upper Potomac River, encompassing an area 100 yards in all directions around the passenger vessel Odyssey III while moored, underway or anchored on the Upper Potomac River, from 3 p.m. to 5 p.m. on September 23, 2007. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for 2 hours, and vessels not constrained by draft, which usually are small entities, may safely transit around the zone. In addition, the Coast Guard will issue maritime advisories which will be widely available to users of the Upper Potomac River before the effective period.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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). 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.

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.lD and Department of Homeland Security Management Directive 5100.1, which guide 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. This rule establishes a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

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 amends 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 temporary § 165.T05-080 to read as follows:

§ 165.T05-080

Security Zone; M/V Odyssey III, Global Air Chiefs Conference, Upper Potomac River, Washington, DC.

(a) Definitions. (1) For purposes of this section, designated representative means the Commander, Coast Guard Sector Baltimore, Maryland or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port, Baltimore, Maryland to act on his behalf.

(b) Location. The following area is a security zone: All waters of the Upper Potomac River, encompassing an area 100 yards in all directions around the motor vessel Odyssey III while moored, underway or anchored on the Upper Potomac River.

(c) Regulations. (1) The general security zone regulations in 33 CFR part 165, subpart D, apply to the security zone described in paragraph (a) of this section.

(2) Entry into or remaining in this zone is prohibited unless authorized by the Coast Guard Captain of the Port, Baltimore, Maryland, or his designated representative.

(3) Persons or vessels requiring entry into or passage through the security zone must first request authorization from the Captain of the Port, Baltimore, or his designated representative, for permission to transit the area. The Captain of the Port, Baltimore, Maryland can be contacted at telephone number [phone]. 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, Maryland, or his designated representative, and proceed at the minimum speed necessary to maintain a safe course while within the zone.

(4) 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 3 p.m. through 5 p.m. on September 23, 2007.

Dated: August 7, 2007.

Brian D. Kelley,

Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.