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26 May 2007
[Federal Register: May 25, 2007 (Volume 72, Number 101)]
[Rules and Regulations]
[Page 29250-29254]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my07-7]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 234
[DoD-2006-OS-0031; 0790-AI09]
Conduct on the Pentagon Reservation
AGENCY: Department of Defense, Washington Headquarters Services.
ACTION: Final rule.
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SUMMARY: This rule administrative revises DoD policy concerning conduct
on the Pentagon Reservation and Raven Rock Mountain Complex. In 2003,
Congress amended 10 U.S.C. 2674(g) so that the ``Pentagon Reservation''
also included the land and physical facilities at the Raven Rock
Mountain Complex. Given this amendment, the Department has recognized
the need to amend rules and regulations under 32 CFR Part 234 so that
they are applicable to Raven Rock Mountain Complex. Therefore, minor
and administrative changes to the rules and regulations were necessary.
DATES: Effective Date: May 25, 2007.
FOR FURTHER INFORMATION CONTACT: Bill Brazis, Office of General
Counsel, Washington Headquarters Services, 1155 Defense Pentagon Room
1D197, Washington, DC 20301-1155.
SUPPLEMENTARY INFORMATION:
Justification for Final Rule
Because the amendments and revisions to this final rule are only
administrative in nature, it is impracticable and contrary to the
public interest to precede it with a notice of proposed rulemaking and
an opportunity for public comment. The administrative corrections
described in this rule are necessary to make the rules applicable to
Raven Rock Mountain Complex, which is now part of the Pentagon
Reservation. The additional changes are nonsubstantive in nature.
Therefore, the Department finds that there is good cause under section
553(b)(3)(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq.)
to make these corrections and changes without first issuing a notice of
proposed rulemaking. For the same reasons, the Department finds that
there is good cause under section 553(d)(3) of the Administrative
Procedure Act to make this final rule effective immediately.
The Department has identified six sections requiring minor changes
and has recognized the need to add one additional section.
The first change is in the definition of ``Authorized person'' in
Sec. 234.1. The definition of ``Authorized person'' now refers to an
employee or agent of the Pentagon Force Protection Agency, formerly
known as the Defense Protective Service.
The second change is in the definition of ``Pentagon Reservation''
under Sec. 234.1. Because Raven Rock Mountain Complex is now
considered part of the ``Pentagon Reservation,'' as specified in 10
U.S.C. 2674(g), the description of the area of land known as Raven Rock
Mountain Complex was added to the definition of ``Pentagon
Reservation'' under Sec. 234.1.
The third change is the amendment of the language of Sec. 234.3.
In Sec. 234.3(d), the Department added ``Installation Commander'' to
the list of authorized personnel who can review applications for
permits for certain activities on the Pentagon Reservation, including
Raven Rock Mountain Complex. Raven Rock Mountain Complex is under the
custody and control of an ``Installation Commander.''
The fourth change is the amendment of the language of Sec. 234.8.
This section prohibited willfully destroying or damaging private and
government property. The word ``and'' was changed to ``or'' to prohibit
damaging private or government property on the Pentagon Reservation.
Courts have misconstrued this section to only prohibit the destroying
or damaging of both private and government property, but not such
property individually.
The fifth change is the amendment to Sec. 234.9. Previously, this
section prohibited using or possessing fireworks or firecrackers,
except with permission of the Pentagon Building Management Office. The
amendment seeks to prohibit using or possessing such items entirely.
Furthermore, the words ``Installation Commander'' were added to
paragraphs 234.9 (a) and (c) as authorized personnel who can review
applications for permits for certain activities on the Pentagon
Reservation, including Raven Rock Mountain Complex.
The sixth change is an amendment to the language of Sec. 234.10.
``Defense Protective Service'' was changed to ``Pentagon Force
Protection Agency or the Installation Commander'' as the agency or
person who can authorize carrying of a weapon at the Pentagon or Raven
Rock Mountain Complex.
The seventh change is an amendment to the language of Sec. 234.11.
``Defense Protective Service'' was changed to ``Pentagon Force
Protection Agency''. In addition, the word ``Installation Commander''
was added as a person who can authorize the use of alcoholic beverages
for certain events at Raven Rock Mountain Complex.
The eighth change is a revision to Sec. 234.15, governing the use
of visual and recording devices. Previously, the use of cameras and
visual recording devices was prohibited in restricted areas or in
internal offices without the approval of the Office of the Assistant to
the Secretary of Defense for Public Affairs. This section was revised
to prohibit all photography on the Pentagon Reservation and Raven Rock
Mountain Complex without approval of the Pentagon Force Protection
Agency, the Installation Commander, or the Office of
[[Page 29251]]
the Assistant to the Secretary of Defense for Public Affairs.
Furthermore, it shall be unlawful to make any photograph, sketch,
picture, drawing, map or graphical representation of the Pentagon
Reservation and Raven Rock Mountain Complex without first obtaining the
necessary permission.
The ninth change is a revision to Sec. 234.18. Previously, parking
regulations were enforced in accordance with Administrative Instruction
(AI) Number 88.\1\ This document has been renamed ``The Pentagon
Parking Program.'' This section was revised to reflect that change. In
addition, the word ``Installation Commander'' was added to the list of
personnel that can authorize new parking regulations or restrictions at
the Pentagon and at Raven Rock Mountain Complex.
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\1\ Copies may be obtained at http://www.dtic.mil/whs/directives/corres/ins2.html
.
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It has been certified that this rule is not a significant rule as
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.
Further, it has been certified that this rule will not have a
significant economic impact on a substantial number of small entities
because it affects only those entities and persons who are on the
Pentagon Reservation. Finally, it has been certified that this rule
does not impose any reporting or record keeping requirements under the
Paperwork Reduction Act of 1995.
0
Accordingly, chapter I of title 32 of the Code of Federal Regulations
under the authority of 10 U.S.C. 301 is amended by revising part 234 to
read as follows:
PART 234--CONDUCT ON THE PENTAGON RESERVATION
Sec.
234.1 Definitions.
234.2 Applicability.
234.3 Admission to property.
234.4 Trespassing.
234.5 Compliance with official signs.
234.6 Interfering with agency functions.
234.7 Disorderly conduct.
234.8 Preservation of property.
234.9 Explosives.
234.10 Weapons.
234.11 Alcoholic beverages and controlled substances.
234.12 Restriction on animals.
234.13 Soliciting, vending, and debt collection.
234.14 Posting of materials.
234.15 Use of visual recording devices.
234.16 Gambling.
234.17 Vehicles and traffic safety.
234.18 Enforcement of parking regulations.
234.19 Penalties and effect on other laws.
Authority: 10 U.S.C. 131 and 2674(c).
Sec. 234.1 Definitions.
As used in this part.
Authorized person. An employee or agent of the Pentagon Force
Protection Agency, or any other Department of Defense employee or agent
who has delegated authority to enforce the provisions of this part.
Operator. A person who operates, drives, controls, otherwise has
charge of, or is in actual physical control of a mechanical mode of
transportation or any other mechanical equipment.
Pentagon Reservation. Area of land and improvements thereon,
located in Arlington, Virginia, on which the Pentagon Office Building,
Federal Building Number 2, the Pentagon heating and sewage treatment
plants, and other related facilities are located. Pursuant to 10 U.S.C.
674, the Pentagon Reservation also includes the area of land known as
Raven Rock Mountain Complex (``RRMC''), located in Adams County,
Pennsylvania, and Site ``C,'' which is located in Washington County,
Maryland, and other related facilities. The Pentagon Reservation shall
include all roadways, walkways, waterways, and all areas designated for
the parking of vehicles.
Permit. A written authorization to engage in uses or activities
that are otherwise prohibited, restricted, or regulated.
Possession. Exercising direct physical control or dominion, with or
without ownership, over property.
State law. The applicable and nonconflicting laws, statutes,
regulations, ordinances, and codes of the state(s) and other political
subdivision(s) within whose exterior boundaries the Pentagon
Reservation or a portion thereof is located.
Traffic. Pedestrians, ridden or herded animals, vehicles, and other
conveyances, either singly or together, while using any road, path,
street, or other thoroughfare for the purposes of travel.
Vehicle. Any vehicle that is self-propelled or designed for self-
propulsion, any motorized vehicle, and any vehicle drawn by or designed
to be drawn by a motor vehicle, including any device in, upon, or by
which any person or property is or can be transported or drawn upon a
highway, hallway, or pathway; to include any device moved by human or
animal power, whether required to be licensed in any state or
otherwise.
Weapons. Any loaded or unloaded pistol, rifle, shotgun, or other
device which is designed to, or may be readily converted to, expel a
projectile by the ignition of a propellant, by compressed gas, or by
spring power; any bow and arrow, crossbow, blowgun, spear gun, hand-
thrown spear, slingshot, irritant gas device, explosive device, or any
other implement designed to discharge missiles; any other weapon,
device, instrument, material, or substance, animate or inanimate that
is used for or is readily capable of, causing death or serious bodily
injury, including any weapon the possession of which is prohibited
under the laws of the state in which the Pentagon Reservation or
portion thereof is located; except that such term does not include a
pocket knife with a blade of less than 2\1/2\ inches in length.
Sec. 234.2 Applicability.
The provisions of this part apply to all areas, lands, and waters
on or adjoining the Pentagon Reservation and under the jurisdiction of
the United States, and to all persons entering in or on the property.
They supplement those penal provisions of Title 18, United States Code,
relating to crimes and criminal procedure and those provisions of State
law that are federal criminal offenses by virtue of the Assimilative
Crimes Act, 18 U.S.C. 13.
Sec. 234.3 Admission to property.
(a) Access to the Pentagon Reservation or facilities thereon shall
be restricted in accordance with AI Number 30 \2\ and other applicable
Department of Defense rules and regulations in order to ensure the
orderly and secure conduct of Department of Defense business. Admission
to facilities or restricted areas shall be limited to employees and
other persons with proper authorization. Forward written requests for
copies of the document to Washington Headquarters Services, Executive
Services Division, Freedom of Information Division, 1155 Defense
Pentagon, Washington, DC 20301-1155.
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\2\ Copies may be obtained at http://www.dtic.mil/whs/directives/corres/ins2.html
.
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(b) All persons entering or upon the Pentagon Reservation shall,
when required and/or requested, display identification to authorized
persons.
(c) All packages, briefcases, and other containers brought into,
on, or being removed from facilities or restricted areas on the
Pentagon Reservation are subject to inspection and search by authorized
persons. Persons entering on facilities or restricted areas who refuse
to permit an inspection and search will be denied entry.
(d) Any person or organization desiring to conduct activities
anywhere on the Pentagon Reservation shall file an application for
permit with the applicable Building Management Office
[[Page 29252]]
or Installation Commander. Such application shall be made on a form
provided by the Department of Defense and shall be submitted in the
manner specified by the Department of Defense. Violation of the
conditions of a permit issued in accordance with this section is
prohibited and may result in the loss of access to the Pentagon
Reservation.
Sec. 234.4 Trespassing.
(a) Trespassing, entering, or remaining in or upon property not
open to the public, except with the express invitation or consent of
the person or persons having lawful control of the property, is
prohibited. Failure to obey an order to leave under paragraph (b) of
this section, or reentry upon property after being ordered to leave or
not reenter under paragraph (b) of this section, is also prohibited.
(b) Any person who violates a Department of Defense rule or
regulation may be ordered to leave the Pentagon Reservation by an
authorized person. A violator's reentry may also be prohibited.
Sec. 234.5 Compliance with official signs.
Persons on the Pentagon Reservation shall at all times comply with
official signs of a prohibitory, regulatory, or directory nature.
Sec. 234.6 Interfering with agency functions.
The following are prohibited:
(a) Interference. Threatening, resisting, intimidating, or
intentionally interfering with a government employee or agent engaged
in an official duty, or on account of the performance of an official
duty.
(b) Violation of a lawful order. Violating the lawful order of a
government employee or agent authorized to maintain order and control
public access and movement during fire fighting operations, search and
rescue operations, law enforcement actions, and emergency operations
that involve a threat to public safety or government resources, or
other activities where the control of public movement and activities is
necessary to maintain order and public health or safety.
(c) False information. Knowingly giving a false or fictitious
report or other false information:
(1) To an authorized person investigating an accident or violation
of law or regulation, or
(2) On an application for a permit.
(d) False report. Knowingly giving a false report for the purpose
of misleading a government employee or agent in the conduct of official
duties, or making a false report that causes a response by the
government to a fictitious event.
Sec. 234.7 Disorderly conduct.
A person commits disorderly conduct when, with intent to cause
public alarm, nuisance, jeopardy, or violence, or knowingly or
recklessly creating a risk thereof, such person commits any of the
following prohibited acts:
(a) Engages in fighting or threatening, or in violent behavior.
(b) Uses language, an utterance, or gesture, or engages in a
display or act that is obscene, physically threatening or menacing, or
done in a manner that is likely to inflict injury or incite an
immediate breach of the peace.
(c) Makes noise that is unreasonable, considering the nature and
purpose of the actor's conduct, location, time of day or night, and
other factors that would govern the conduct of a reasonably prudent
person under the circumstances.
(d) Creates or maintains a hazardous or physically offensive
condition.
(e) Impedes or threatens the security of persons or property, or
disrupts the performance of official duties by Department of Defense
employees, or obstructs the use of areas such as entrances, foyers,
lobbies, corridors, concourses, offices, elevators, stairways,
roadways, driveways, walkways, or parking lots.
Sec. 234.8 Preservation of property.
Willfully destroying or damaging private or government property is
prohibited. The throwing of articles of any kind from or at buildings
or persons, improper disposal of rubbish, and open fires are also
prohibited.
Sec. 234.9 Explosives.
(a) Using, possessing, storing, or transporting explosives,
blasting agents or explosive materials is prohibited, except pursuant
to the terms and conditions of a permit issued by the applicable
Building Management Office or Installation Commander. When permitted,
the use, possession, storage and transportation shall be in accordance
with applicable Federal and State law.
(b) Using or possessing fireworks or firecrackers is prohibited.
(c) Violation of the conditions established by the applicable
Building Management Office or Installation Commander or of the terms
and conditions of a permit issued in accordance with this section is
prohibited and may result in the loss of access to the Pentagon
Reservation.
Sec. 234.10 Weapons.
(a) Except as otherwise authorized under this section, the
following are prohibited:
(1) Possessing a weapon.
(2) Carrying a weapon.
(3) Using a weapon.
(b) This section does not apply to any agency or Department of
Defense component that has received prior written approval from the
Pentagon Force Protection Agency or the Installation Commander to
carry, transport, or use a weapon in support of a security, law
enforcement, or other lawful purpose while on the Pentagon Reservation.
Sec. 234.11 Alcoholic beverages and controlled substances.
(a) Alcoholic beverages. The consumption of alcoholic beverages or
the possession of an open container of an alcoholic beverage within the
Pentagon Reservation is prohibited unless authorized by the Director,
Washington Headquarters Services, or his designee, the Installation
Commander, or the Heads of the Military Departments, or their
designees. Written notice of such authorizations shall be provided to
the Pentagon Force Protection Agency.
(b) Controlled substances. The following are prohibited:
(1) The delivery of a controlled substance, except when
distribution is made by a licensed physician or pharmacist in
accordance with applicable law. For the purposes of this paragraph,
delivery means the actual, attempted, or constructive transfer of a
controlled substance.
(2) The possession of a controlled substance, unless such substance
was obtained by the possessor directly from, or pursuant to a valid
prescription or order by, a licensed physician or pharmacist, or as
otherwise allowed by Federal or State law.
(c) Presence on the Pentagon Reservation when under the influence
of alcohol, a drug, a controlled substance, or any combination thereof,
to a degree that may endanger oneself or another person, or damage
property, is prohibited.
Sec. 234.12 Restriction on animals.
Animals, except guide dogs for persons with disabilities, shall not
be brought upon the Pentagon Reservation for other than official
purposes.
Sec. 234.13 Soliciting, vending, and debt collection.
Commercial or political soliciting, vending of all kinds,
displaying or distributing commercial advertising, collecting private
debts or soliciting alms upon the Pentagon Reservation is prohibited.
This does not apply to:
(a) National or local drives for funds for welfare, health, or
other purposes as
[[Page 29253]]
authorized by 5 CFR parts 110 and 950, Solicitation of Federal Civilian
and Uniformed Services Personnel for Contributions to Private Voluntary
Organizations, issued by the U.S. Office of Personnel Management under
Executive Order 12353, 3 CFR, 1982 Comp., p. 139, as amended.
(b) Personal notices posted on authorized bulletin boards, and in
compliance with building rules governing the use of such authorized
bulletin boards, advertising to sell or rent property of Pentagon
Reservation employees or their immediate families.
(c) Solicitation of labor organization membership or dues
authorized by the Department of Defense under the Civil Service Reform
Act of 1978.
(d) Licensees, or their agents and employees, with respect to space
licensed for their use.
(e) Solicitations conducted by organizations composed of civilian
employees of the Department of Defense or members of the uniformed
services among their own members for organizational support or for the
benefit of welfare funds for their members, after compliance with the
requirements of Sec. 234.3(d).
Sec. 234.14 Posting of materials.
Posting or affixing materials, such as pamphlets, handbills, or
fliers on the Pentagon Reservation is prohibited except as provided by
Sec. 234.13(b) or when conducted as part of activities approved by the
applicable Building Management Office or Installation Commander under
Sec. 234.3(d).
Sec. 234.15 Use of visual recording devices.
(a) The use of cameras or other visual recording devices on the
Pentagon Reservation is prohibited, unless the use of such items are
approved by the Pentagon Force Protection Agency, the Installation
Commander, or the Office of the Assistant to the Secretary of Defense
for Public Affairs.
(b) It shall be unlawful to make any photograph, sketch, picture,
drawing, map or graphical representation of the Pentagon Reservation
without first obtaining permission of the Pentagon Force Protection
Agency, Installation Commander, or the Office of the Assistant to the
Secretary of Defense for Public Affairs.
Sec. 234.16 Gambling.
Gambling in any form, or the operation of gambling devices, is
prohibited. This prohibition shall not apply to the vending or exchange
of chances by licensed blind operators of vending facilities for any
lottery set forth in a State law and authorized by the provisions of
the Randolph-Sheppard Act (20 U.S.C. 107, et seq.).
Sec. 234.17 Vehicles and traffic safety.
(a) In general. Unless specifically addressed by regulations in
this part, traffic and the use of vehicles within the Pentagon
Reservation are governed by State law. Violating a provision of State
law is prohibited.
(b) Open container of an alcoholic beverage. (1) Each person within
a vehicle is responsible for complying with the provisions of this
section that pertain to carrying an open container. The operator of a
vehicle is the person responsible for complying with the provisions of
this section that pertain to the storage of an open container.
(2) Carrying or storing a bottle, can, or other receptacle
containing an alcoholic beverage that is open or has been opened, or
whose seal is broken, or the contents of which have been partially
removed, within a vehicle on the Pentagon Reservation is prohibited.
(3) This section does not apply to:
(i) An open container stored in the trunk of a vehicle or, if a
vehicle is not equipped with a trunk, an open container stored in some
other portion of the vehicle designed for the storage of luggage and
not normally occupied by or readily accessible to the operator or
passengers; or
(ii) An open container stored in the living quarters of a motor
home or camper.
(4) For the purpose of paragraph (a)(3)(i) of this section, a
utility compartment or glove compartment is deemed to be readily
accessible to the operator and passengers of a vehicle.
(c) Operating under the influence of alcohol, drugs, or controlled
substances. (1) Operating or being in actual physical control of a
vehicle is prohibited while:
(i) Under the influence of alcohol, a drug or drugs, a controlled
substance or controlled substances, or any combination thereof, to a
degree that renders the operator incapable of safe operation; or
(ii) The alcohol concentration in the operator's blood or breath is
0.08 grams or more of alcohol per 100 milliliters of blood or 0.08
grams or more of alcohol per 210 liters of breath. Provided, however,
that if State law that applies to operating a vehicle while under the
influence of alcohol establishes more restrictive limits of alcohol
concentration in the operator's blood or breath, those limits supersede
the limits specified in this paragraph.
(2) The provisions of paragraph (c)(1) of this section shall also
apply to an operator who is or has been legally entitled to use alcohol
or another drug.
(3) Tests.
(i) At the request or direction of an authorized person who has
probable cause to believe that an operator of a vehicle within the
Pentagon Reservation has violated a provision of paragraph (c)(1) of
this section, the operator shall submit to one or more tests of the
blood, breath, saliva, or urine for the purpose of determining blood
alcohol, drug, and controlled substance content.
(ii) Refusal by an operator to submit to a test is prohibited and
may result in detention and citation by an authorized person. Proof of
refusal may be admissible in any related judicial proceeding.
(iii) Any test or tests for the presence of alcohol, drugs, and
controlled substances shall be determined by and administered at the
direction of an authorized person.
(iv) Any test shall be conducted by using accepted scientific
methods and equipment of proven accuracy and reliability operated by
personnel certified in its use.
(4) Presumptive levels.
(i) The results of chemical or other quantitative tests are
intended to supplement the elements of probable cause used as the basis
for the arrest of an operator charged with a violation of this section.
If the alcohol concentration in the operator's blood or breath at the
time of the testing is less than the alcohol concentration specified in
paragraph (c)(1)(ii) of this section, this fact does not give rise to
any presumption that the operator is or is not under the influence of
alcohol.
(ii) The provisions of paragraphs (c)(3) and (c)(4)(i) of this
section are not intended to limit the introduction of any other
competent evidence bearing upon the question of whether the operator,
at the time of the alleged violation, was under the influence of
alcohol, a drug or drugs, or a controlled substance or controlled
substances, or any combination thereof.
Sec. 234.18 Enforcement of parking regulations.
Parking regulations for the Pentagon Reservation shall be enforced
in accordance with the Pentagon Reservation Parking Program and State
law; violating such provisions is prohibited. A vehicle parked in any
location without authorization, or parked contrary to the directions of
posted signs or markings, shall be subject to removal at the owner's
risk and expense, in addition to any penalties imposed. The Department
of Defense assumes no responsibility for the payment of any fees or
costs related to such removal which may be charged
[[Page 29254]]
to the owner of the vehicle by the towing organization. This section
may be supplemented from time to time with the approval of the
Director, Washington Headquarters Services, or his designee, or the
Installation Commander, by the issuance and posting of such parking
directives as may be required, and when so issued and posted such
directive shall have the same force and effect as if made a part
hereof.
Sec. 234.19 Penalties and effect on other laws.
(a) Whoever shall be found guilty of willfully violating any rule
or regulation enumerated in this part is subject to the penalties
imposed by Federal law for the commission of a Class B misdemeanor
offense.
(b) Whoever violates any rule or regulation enumerated in this part
is liable to the United States for a civil penalty of not more than
$1,000.
(c) Nothing in this part shall be construed to abrogate any other
Federal laws.
Dated: May 18, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E7-10022 Filed 5-24-07; 8:45 am]
BILLING CODE 5001-06-P