[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Rules and Regulations]
[Pages 18058-18061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8093]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0133]
RIN 1625-AA00


Safety Zone; Patapsco River, Northwest and Inner Harbors, 
Baltimore, MD

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone upon 
certain waters of the Patapsco River, Northwest Harbor and Inner Harbor 
during the movement of the historic sloop-of-war USS CONSTELLATION on 
May 27, 2010. This action is necessary to provide for the safety of 
life on navigable waters during the tow of the vessel from its berth at 
the Inner Harbor in Baltimore, Maryland, to a point on the Patapsco 
River near the Fort McHenry National Monument and Historic Shrine in 
Baltimore, Maryland, and its return. This action will restrict vessel 
traffic in portions of the Patapsco River, Northwest Harbor, and Inner 
Harbor during the event.

DATES: This rule is effective from 2 p.m. May 27, 2010 through 7 p.m. 
June 3, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0133 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0133 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Mr. Ronald Houck, Sector Baltimore 
Waterways Management Division, Coast Guard; telephone 410-576-2674, e-
mail [email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because it is contrary to public interest to 
delay the effective date of this rule. Delaying the effective date 
would be contrary to the safety zone's intended objectives since 
immediate action is needed to protect persons and vessels against the 
hazards associated with the movement of an historic vessel being towed 
on confined navigable waters. Such hazards include damages and injuries 
caused by collisions with other vessels and navigational obstructions 
and hazards caused by vessel sinkings.
    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. Due to the need for immediate 
action, the restriction of vessel traffic is necessary to protect life, 
property and the environment; therefore, a 30-day notice is 
impracticable. Delaying the effective date would be contrary to the 
safety zone's intended objectives of protecting persons and vessels 
involved in the event, and enhancing public and maritime safety.

Background and Purpose

    The Historic Ships in Baltimore Museum is planning to conduct a 
``turn-around'' ceremony involving the sloop-of-war USS CONSTELLATION 
in Baltimore, Maryland on Thursday, May 27, 2010. Planned events 
include a three-hour, round-trip tow of the USS CONSTELLATION in the 
Port of Baltimore, with an onboard salute with navy pattern cannon 
while the historic vessel is positioned off Fort McHenry National 
Monument and Historic Site. Beginning at 3 p.m., the historic Sloop-of-
War USS CONSTELLATION will be towed ``dead ship,'' which means that the 
vessel will be underway without the benefit of mechanical or sail 
propulsion.

[[Page 18059]]

The return dead ship tow of the USS CONSTELLATION to its berth in the 
Inner Harbor is expected to occur immediately upon execution of a tug-
assisted turn-around of the USS CONSTELLATION on the Patapsco River 
near Fort McHenry. The Coast Guard anticipates a large recreational 
boating fleet during this event, scheduled on a late Thursday afternoon 
during the Memorial Day Holiday weekend in Baltimore, Maryland. 
Operators should expect significant vessel congestion along the planned 
route. In the event of inclement weather, the ``turn-around'' will be 
rescheduled on Thursday, June 3, 2010.
    To address safety concerns during the event, the Captain of the 
Port, Baltimore, Maryland is establishing a safety zone upon certain 
waters of the Patapsco River, Northwest Harbor and Inner Harbor. The 
safety zone will help the Coast Guard provide for a clear transit route 
for the participating vessels, and provide a safety buffer around the 
participating vessels while they are in transit. Due to the need to 
promote maritime safety and protect participants and the boating public 
in the Port of Baltimore immediately prior to, during, and after the 
scheduled event, a temporary safety zone is necessary for this type of 
event.

Discussion of Rule

    A regulation establishing a permanent safety zone for this annual 
event, with an enforcement period from 2 p.m. through 7 p.m. annually 
on the Friday following Labor Day, has already been published and is 
detailed at 33 CFR 165.512. However, due to a change in scheduling for 
this calendar year, this event is planned for Thursday, May 27, 2010. 
The historic sloop-of-war USS CONSTELLATION is scheduled to be towed 
``dead ship'' from its berth at Pier 1 in Baltimore's Inner Harbor to a 
point on the Patapsco River near Fort McHenry National Monument and 
Historic Shrine, Baltimore, Maryland, along a one-way, planned route of 
approximately four nautical miles, that includes specified waters of 
the Patapsco River, Northwest Harbor and Inner Harbor. After being 
turned-around, the USS CONSTELLATION will be returned to its original 
berth at Pier 1, Inner Harbor, Baltimore, Maryland. Due to the need to 
safeguard dead ship tow participants and prevent vessels or persons 
from approaching the USS CONSTELLATION along the intended route 
immediately prior to, during, and following the scheduled towing 
evolution, vessel traffic will be restricted on certain waters of the 
Patapsco River, Northwest Harbor and Inner Harbor.
    The Captain of the Port Baltimore, Maryland is establishing a 
temporary moving safety zone around the USS CONSTELLATION dead ship tow 
participants from 2 p.m. through 7 p.m. on May 27, 2010, and if 
necessary due to inclement weather, from 2 p.m. through 7 p.m. on June 
3, 2010. The regulated area includes all waters within 200 yards ahead 
of or 100 yards outboard or aft of the historic sloop-of-war USS 
CONSTELLATION while operating in the Inner Harbor, the Northwest Harbor 
and the Patapsco River. Vessels underway at the time this safety zone 
is implemented will immediately proceed out of the zone. With the 
exception of USS CONSTELLATION ``turn-around'' participants, entry into 
this zone is prohibited unless authorized by the Captain of the Port or 
his designated representative. U.S. Coast Guard patrol vessels will be 
provided to prevent the movement of persons and vessels in the 
regulated area. The Captain of the Port will issue Broadcast Notices to 
Mariners to publicize the safety zone and notify the public of changes 
in the status of the zone. Such notices will continue until the event 
is complete.

Regulatory Analyses

    We developed this 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 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. Although this safety zone restricts 
vessel traffic through the affected area, the effect of this regulation 
will not be significant due to the limited size and duration that the 
regulated area will be in effect. In addition, notifications will be 
made to the maritime community via marine information broadcasts so 
mariners may 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 
might be small entities: The owners or operators of vessels intending 
to operate or transit through or within the safety zone during the 
enforcement period. The safety zone will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons. The safety zone is of limited size and duration. 
Smaller vessels not constrained by their draft, which are more likely 
to be small entities, may transit around the safety zone. Maritime 
advisories will be widely available to the maritime community before 
the effective period.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offer to assist small 
entities in understanding the rule so that they can 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

[[Page 18060]]

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 (adjusted for 
inflation) 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 cause 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 Department of Homeland Security 
Management Directive 023-01 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 concluded 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule involves establishing a temporary safety 
zone.
    An environmental analysis checklist and a categorical exclusion 
determination are 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.

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, 3306, 
3703; 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.

0
2. Add Sec.  165.T05-0133 to read as follows:


Sec.  165.T05-0133  Safety Zone; Patapsco River, Northwest and Inner 
Harbors, Baltimore, MD

    (a) Location. The following area is a safety zone: all waters 
within 200 yards ahead of or 100 yards outboard or aft of the historic 
Sloop-of-War USS CONSTELLATION while operating in the Inner Harbor, the 
Northwest Harbor and the Patapsco River.
    (b) Definitions. As used in this section:
    (1) Captain of the Port Baltimore means the Commander, U.S. Coast 
Guard Sector Baltimore, Maryland.
    (2) Designated representative means any Coast Guard commissioned, 
warrant, or petty officer who has been authorized by the Captain of the 
Port Baltimore to assist in enforcing the safety zone described in 
paragraph (a) of this section.
    (3) USS CONSTELLATION ``turn-around'' participants means the USS 
CONSTELLATION, its support craft and the accompanying towing vessels.
    (c) Regulations. (1) All persons are required to comply with the 
general regulations governing safety zones found in 33 CFR 165.23.
    (2) With the exception of USS CONSTELLATION ``turn-around'' 
participants, 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 safety zone. All vessels underway 
within this safety zone at the time it is implemented are to depart the 
zone.
    (3) Persons desiring to transit the area of the safety zone must 
first request 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 
lights, or other means, the operator of a vessel shall proceed as 
directed. If

[[Page 18061]]

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 2 p.m. 
through 7 p.m. on May 27, 2010, and if necessary due to inclement 
weather, from 2 p.m. through 7 p.m. on June 3, 2010.

    Dated: March 25, 2010.
Mark P. O'Malley,
Captain, U.S. Coast Guard, Captain of the Port Baltimore, Maryland.
[FR Doc. 2010-8093 Filed 4-8-10; 8:45 am]
BILLING CODE 9110-04-P