[Federal Register Volume 69, Number 147 (Monday, August 2, 2004)]
[Proposed Rules]
[Pages 46122-46124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17529]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-04-135]
RIN 1625-AA00


Safety Zone; Upper Chesapeake Bay, Patapsco and Severn Rivers, MD

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a temporary safety zone 
on portions of the upper Chesapeake Bay and its tributaries during the 
movement of the U.S.S. Constellation. This action is necessary to 
provide for the safety of life on navigable waters during the dead ship 
tow of the vessel from its berth in Baltimore, Maryland to the United 
States Naval Academy seawall in Annapolis, Maryland, and return. This 
action will restrict vessel traffic in portions of the Patapsco River 
(including the Inner Harbor and the Northwest Harbor), Chesapeake Bay 
and Severn River.

DATES: Comments and related material must reach the Coast Guard on or 
before September 16, 2004.

ADDRESSES: You may mail comments and related material to Commander, 
U.S. Coast Guard Activities, 2401 Hawkins Point Road, Building 70, 
Waterways Management Branch, Baltimore, Maryland, 21226-1791. Coast 
Guard Activities Baltimore, Waterways Management Branch, maintains the 
public docket for this rulemaking. Comments and material received from 
the public, as well as documents indicated in this preamble as being 
available in the docket, will become part of this docket and will be 
available for inspection or copying at Commander, U.S. Coast Guard 
Activities, 2401 Hawkins Point Road, Building 70, Port Safety, Security 
and Waterways Management Branch, Baltimore, Maryland 21226-1791 between 
8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Ron Houck, at Coast Guard 
Activities Baltimore, Port Safety, Security and Waterways Management 
Branch, at telephone number (410) 576-2674 or (410) 576-2693.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (CGD05-04-
135), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, 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.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Coast Guard Activities Baltimore, 
Waterways Management Branch, 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 U.S.S. Constellation Museum is celebrating the 150th 
anniversary of the launch of the U.S.S. Constellation in 2004, and to 
commemorate this occasion, is sponsoring a dead ship tow of the 
historic sloop-of-war U.S.S. Constellation on October 26, 2004, from 
Baltimore, Maryland to Annapolis, Maryland. The event will mark the 23 
years that the ship was stationed at the Naval Academy as a training 
vessel, from 1871 to 1893. Planned events include an eight-hour dead 
ship tow of the U.S.S. Constellation with an onboard salute with navy 
pattern cannon while off Fort McHenry National Monument and Historic 
Site. A return dead ship tow of the U.S.S. Constellation to Baltimore, 
Maryland is expected to occur on November 1, 2004.
    The Coast Guard anticipates a large recreational boating fleet 
during this event. Operators should expect significant vessel 
congestion along the planned route.
    The purpose of this rule is to promote maritime safety and protect 
participants and the boating public in the Port of Baltimore, in the 
approaches to Baltimore Harbor, and the Severn River immediately prior 
to, during, and after the scheduled event. The rule will provide for a 
clear transit route for the participating vessels, and provide a safety 
buffer around the participating vessels while they are in transit. The 
rule will impact the movement of all vessels operating in the specified 
areas of the upper Chesapeake Bay and its tributaries.
    Interference with normal port operations will be kept to the 
minimum considered necessary to ensure the safety of life on the 
navigable waters immediately before, during, and after the scheduled 
event.

Discussion of Proposed Rule

    The historic sloop-of-war U.S.S. Constellation is scheduled to be 
towed ``dead ship'' on October 26, 2004. The U.S.S. Constellation is 
scheduled to be towed from its berth at Pier 1, Baltimore, Maryland to 
the Naval Academy seawall, Annapolis, Maryland, to take place along a 
route of approximately 30 nautical miles one-way, that includes 
specified waters of the Patapsco River (including the Inner Harbor and 
the Northwest Harbor), Chesapeake Bay and Severn River. On

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November 1, 2004, a dead ship tow of the U.S.S. Constellation to return 
to Pier 1, Baltimore, Maryland from the Naval Academy seawall, 
Annapolis, Maryland is expected to occur.
    The safety of dead ship tow participants requires that persons and 
vessels be kept at a safe distance from the intended route during this 
evolution. The Coast Guard proposes to establish a temporary moving 
safety zone around the U.S.S. Constellation dead ship tow participants 
on October 26, 2004 and on November 1, 2004, to ensure the safety of 
participants immediately prior to, during, and following the dead ship 
tow.

Regulatory Evaluation

    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. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.

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 anchor in portions of the 
Patapsco River (including the Inner Harbor and the Northwest Harbor), 
Chesapeake Bay and Severn River, Maryland. Because the zone is of 
limited size and duration, it is expected that there would be minimal 
disruption to the maritime community. Before the effective period, the 
Coast Guard would issue maritime advisories widely available to users 
of the river to allow mariners to make alternative plans for transiting 
the affected areas. In addition, smaller vessels not constrained by 
their draft, which are more likely to be small entities, may transit 
around the zone and request permission from the COTP Baltimore on a 
case-by-case basis to enter the zone.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed 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 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT. 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 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

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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 Commandant Instruction 
M16475.lD, 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 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 because this rule establishes a safety 
zone.
    A draft ``Environmental Analysis Check List'' and a draft 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

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(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.

    2. Add temporary Sec.  165.T05-135 to read as follows:


Sec.  165.T05-135  Safety Zone; Upper Chesapeake Bay, Patapsco and 
Severn Rivers, MD.

    (a) Definitions.
    Captain of the Port. The Captain of the Port means the Commander, 
Coast Guard Activities Baltimore or any Coast Guard commissioned, 
warrant, or petty officer who has been authorized by the Captain of the 
Port to act on his behalf.
    U.S.S Constellation dead ship tow participants. Includes the U.S.S 
Constellation, and its accompanying towing and pre-designated emergency 
egress vessels.
    (b) Location. The following area is a moving safety zone: all 
waters of the Patapsco River (including the Inner Harbor and the 
Northwest Harbor), Chesapeake Bay and Severn River, surface to bottom, 
within 200 yards ahead of and 100 yards outboard and aft of the 
historic sloop-of-war U.S.S Constellation, while operating from 
Baltimore, Maryland to Annapolis, Maryland, and return.
    (c) Regulations. (1) All persons are required to comply with the 
general regulations governing safety zones found in Sec.  165.23 of 
this part.
    (2) Persons or vessels requiring entry into or passage through a 
safety zone must first request authorization from the Captain of the 
Port or his designated representative. The Coast Guard vessels 
enforcing this section can be contacted on VHF Marine Band Radio, 
channels 13 and 16. The Captain of the Port can be contacted at (410) 
576-2693.
    (3) No vessel movement is allowed within the safety zone unless 
expressly authorized by the Captain of the Port or his designated 
representative.
    (d) Enforcement period. This section will be enforced from 7 a.m. 
to 5 p.m. on October 26, 2004, and from 7 a.m. to 5 p.m. on November 1, 
2004.

    Dated: July 22, 2004.
Jonathan C. Burton,
Commander, U.S. Coast Guard, Acting Captain of the Port, Baltimore, 
Maryland.
[FR Doc. 04-17529 Filed 7-30-04; 8:45 am]
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