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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 100 
          - [Docket No. USCG-2009-0107] 
          - RIN 1625-AA08 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

The Coast Guard proposes to establish temporary special local regulations for “U.S. Naval Air Station Patuxent River Air Expo 2009”, an aerial demonstration to be held over the waters of the Patuxent River adjacent to Patuxent River, Maryland. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This proposed action would restrict vessel traffic in portions of the Patuxent River during the aerial demonstration. 

# DATES:

                        Comments and related material must either be submitted to our online docket via                         *http://www.regulations.gov*                         on or before April 23, 2009 or reach the Docket Management Facility by that date.                     

# ADDRESSES:

You may submit comments identified by docket number USCG-2009-0107 using any one of the following methods: 

                        (1)                         *Federal eRulemaking Portal: http://www.regulations.gov.*

                        (2)                         *Fax:*                         202-493-2251.                     

                        (3)                         *Mail:*                         Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue,  SE., Washington, DC 20590-0001.                     

                        (4)                         *Hand delivery:*                         Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.                     

                        To avoid duplication, please use only one of these methods. For instructions on submitting comments, see the “Public Participation and Request for Comments” portion of the                         **SUPPLEMENTARY INFORMATION**                         section below.                     

# FOR FURTHER INFORMATION CONTACT:

                        If you have questions on this proposed rule, call Dennis Sens, Project Manager, Fifth Coast Guard District, Prevention Division, at 757-398-6204 or e-mail at                         *Dennis.M.Sens@uscg.mil.*                         If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.                     

# SUPPLEMENTARY INFORMATION:

## Public Participation and Request for Comments 

                    We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to                     *http://www.regulations.gov*                     and will include any personal information you have provided.                 

## Submitting Comments 

If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0107), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. 

                    To submit your comment online, go to                     *http://www.regulations.gov,*                     select the Advanced Docket Search option on the right side of the screen, insert “USCG-2009-0107” in the Docket ID box, press Enter, and then click on the balloon shape in the Actions column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8                    1/2                     by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.                 

## Viewing Comments and Documents 

                    To view comments, as well as documents mentioned in this preamble as being available in the docket, go to                     *http://www.regulations.gov,*                     select the Advanced Docket Search option on the right side of the screen, insert USCG-2009-0107 in the Docket ID box, press Enter, and then click on the item in the Docket ID column. You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue,  SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the Fifth Coast Guard District, Prevention Division, 431 Crawford Street, Portsmouth, VA 23704 between 10 a.m. and 2 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.                 

## Privacy Act 

                    Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the                     **Federal Register**                     (73 FR 3316).                 

## Public Meeting 

                    We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility 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 

On May 23, 2009 and May 24, 2009, U.S. Naval Air Station Patuxent River, Maryland will sponsor the “Patuxent River Air Expo ′09”. The public event will consist of military and civilian aircraft performing low-flying, high speed precision maneuvers and aerial stunts over both the airfield at Naval Air Station Patuxent River and the waters of the Patuxent River. Federal Aviation Administration restrictions require that portions of the Blue Angels and aerobatic performance boxes take place over the waters of the Patuxent River. In addition to the air show dates, on May 21, 2009 and May 22, 2009, military and civilian aircraft performing in the air show will conduct practice and demonstration maneuvers and stunts over both the airfield at Naval Air Station Patuxent River and specified waters of the Patuxent River. To provide for the safety of participants, spectators and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the air shows, practices and demonstrations, and during other scheduled activities related to the air show. 

## Discussion of Proposed Rule 

                    The Coast Guard proposes to establish temporary special local regulations on specified waters of the Patuxent River. The regulated area includes waters of                           ( print page 12288)                        the lower Patuxent River, located between Fishing Point and the base of the break wall marking the entrance to the East Seaplane Basin at Naval Air Station Patuxent River, which is approximately 500 yards long and 900 yards wide. The regulated area also includes waters of the lower Patuxent River, located between Hog Point and Cedar Point, which is approximately 2,000 yards long and 167 yards wide. The temporary special local regulations will be in effect from 9 a.m. on May 21, 2009 through 6 p.m. on May 24, 2009. The effect will be to restrict general navigation in the regulated area during the event and during scheduled activities related to the air show. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the enforcement period. The Patrol Commander will notify the public of specific enforcement times by Marine Radio Safety Broadcast. A 75-yard restricted area, enforced by the Commanding Officer, U.S. Naval Air Station, Patuxent River, Maryland, is described in Title 33 Code of Federal Regulations, Section 334.180. These regulations, extending beyond the restricted area, are needed to control vessel traffic during the event to enhance safety of participants, spectators and transiting vessels.                 

## Regulatory Analyses 

We developed this proposed 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 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. 

Although this proposed rule prevents traffic from transiting a portion of the Patuxent River during the air show event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so. 

## 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 rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this segment of the Patuxent River during the event. This regulation will not have a significant impact on a substantial number of small entities because it will be enforced only during the air show. In some cases, vessels may be able to safely transit around or through the regulated area at various times with the permission of the Patrol Commander. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly. 

                    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this 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 Fifth Coast Guard District listed under                     **FOR FURTHER INFORMATION CONTACT**                     at the beginning of this rule. The Coast Guard will not retaliate against small entities that question or complain about this proposed 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                           ( print page 12289)                        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 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 Department of Homeland Security Directive 0023.1 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 made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. Therefore, this rule is categorically excluded, under section 2.B.2. Figure 2-1, paragraph 34(h), of the Instruction and neither an environmental assessment nor an environmental impact statement is required. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. A preliminary environmental analysis check list supporting this determination will be available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. We seek any comments or information that may lead to discovery of a significant environmental impact from this proposed rule. 

# List of Subjects in 33 CFR Part 100

      - Marine safety
      - Navigation (water)
      - Reporting and recordkeeping requirements
      - Waterways

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: 

# PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 

1. The authority citation for part 100 continues to read as follows: 

Authority:33 U.S.C. 1233. 

2. Add a temporary section, § 100.35-T05-0107 to read as follows: 

§ 100.35-T05-0107 

                            (a)                             *Regulated area.*                             The following locations are regulated areas:                         

(1) All waters of the lower Patuxent River, near Solomons, Maryland, located between Fishing Point and the base of the break wall marking the entrance to the East Seaplane Basin at Naval Air Station Patuxent River, within an area bounded by a line connecting position latitude 38°17′39″ N, longitude 076°25′47″ W; thence to latitude 38°17′47″ N, longitude 076°26′00″ W; thence to latitude 38°18′09″ N, longitude 076°25′40″ W; thence to latitude 38°18′00″ N, longitude 076°25′25″ W, located along the shoreline at U.S. Naval Air Station Patuxent River, Maryland. 

(2) All waters of the lower Patuxent River, near Solomons, Maryland, located between Hog Point and Cedar Point, within an area bounded by a line drawn from a position at latitude 38°18′41″ N, longitude 076°23′43″ W; to latitude 38°18′16″ N, longitude 076°22′35″ W; thence to latitude 38°18′12″ N, longitude 076°22′37″ W; thence to latitude 38°18′36″ N, longitude 076°23′46″ W, located adjacent to the shoreline at U.S. Naval Air Station Patuxent River, Maryland. All coordinates reference Datum NAD 1983. 

                            (b)                             *Definitions:*                             (1)                             *Coast Guard Patrol Commander*                             means a commissioned, warrant, or petty officer of the U.S. Coast Guard who has been designated by the Commander, Coast Guard Sector Baltimore.                         

                            (2)                             *Official Patrol*                             means any vessel assigned or approved by Commander, Coast Guard Sector Baltimore with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.                         

                            (c)                             *Special local regulations:*                             (1) Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.                         

(2) The operator of any vessel in the regulated area must: 

(i) Stop the vessel immediately when directed to do so by the Coast Guard Patrol Commander or any Official Patrol. 

(ii) Proceed as directed by the Coast Guard Patrol Commander or any Official Patrol. 

                            (d)                             *Enforcement period:*                             This section will be enforced as follows:                         

(1) During the air show practice from 9 a.m. to 5 p.m. on May 21, 2009. 

(2) Air show practice and modified show from 9 a.m. to 5 p.m. on May 22, 2009. 

(3) “Meet the Performers Party” (at Cedar Point Officers' Club) performance from 6 p.m. to 9 p.m. on May 22, 2009. 

(4) Air show performances from 9 a.m. to 5 p.m. May 23 and 24, 2009. 

Dated: March 16, 2009. 

Neil O. Buschman, 

Captain, U.S. Coast Guard, Commander, Fifth Coast Guard District, Acting.

 [FR Doc. E9-6426 Filed 3-23-09; 8:45 am] 

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