Document Headings

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                -                       the agency or agencies that issued and signed a document                    
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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [CGD05-05-101]
          - RIN 1625-AA00

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The Coast Guard is establishing a temporary safety zone in the Port of Baltimore, Maryland during the movement of the historic Sloop-of-War 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, to the Fort McHenry Angle on the Patapsco River, and return. This action will restrict vessel traffic in portions of Baltimore's Inner Harbor, the Northwest Harbor, and the Patapsco River.

# DATES:

This rule is effective from 2 p.m. to 7 p.m. local time on September 9, 2005.

# ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket CGD05-05-101 and are available for inspection or copying at Commander, U.S. Coast Guard Sector, Waterways Management Division, 2401 Hawkins Point Road, Baltimore, Maryland 21226, between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Ronald Houck, at Coast Guard Sector                               ( print page 49488)                            Baltimore, Waterways Management Division, at telephone number (410) 576-2674.                    

# 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. Publishing an NPRM is impracticable due to the unique nature of the rule and the fast-approaching effective date. The historic Sloop-of-War U.S.S. CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. Therefore, it is imperative that there be a clear transit route and a safe buffer zone around the U.S.S. CONSTELLATION and the vessels towing her.

                    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**                    . The Coast Guard expects a large recreational boating fleet to view the turn-around of the U.S.S. CONSTELLATION. To provide necessary safety measures to protect mariners against potential hazards associated with the turn-around, it is in the public interest to have a safety zone in place for the event which is scheduled to occur in less than 30 days.                

## Background and Purpose

On September 9, 2005, the U.S.S. CONSTELLATION Museum will conduct a turn-around of the historic Sloop-of-War U.S.S. CONSTELLATION in Baltimore, Maryland. The planned event includes the “dead ship” tow of the U.S.S. CONSTELLATION from its berth in Baltimore's Inner Harbor to the Fort McHenry Angle of the Patapsco River, a tug assisted turn-around of the vessel, then a “dead ship” tow return to its berth in Baltimore's Inner Harbor. In addition, an onboard salute with navy pattern cannon while off Fort McHenry National Monument and Historic Site is expected.

The Coast Guard anticipates a large recreational boating fleet during this event, scheduled on a late Friday afternoon during summer in Baltimore, Maryland. 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 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 Port of Baltimore.

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 Rule

The historic Sloop-of-War U.S.S. CONSTELLATION is scheduled to conduct a “turn-around” on September 9, 2005. The U.S.S. CONSTELLATION is scheduled to be towed from its berth, to Fort McHenry, and return, along a route of approximately 2.5 nautical miles (5 nautical miles total) that includes specified waters of Baltimore's Inner Harbor, the Northwest Harbor and the Patapsco River.

The safety of dead ship tow participants requires that spectator craft be kept at a safe distance from the intended route during this evolution. The Coast Guard is establishing a temporary moving safety zone around the U.S.S. CONSTELLATION “turn-around” participants on September 9, 2005, to ensure the safety of participants and spectators immediately prior to, during, and following the dead ship tow. The safety zone will extend 200 yards ahead of or 100 yards outboard or aft of the historic Sloop-of-War U.S.S. CONSTELLATION.

## 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. 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. This finding is based on the limited size of the zone, the minimal time that vessels will be restricted from the zone, and that vessels may safely transit a portion of Baltimore's Inner Harbor, the Northwest Harbor, and the Patapsco River, around the zone. In addition, the zone will be well publicized to allow mariners to make alternative plans for transiting the affected area, and vessels that may need to enter the zone may request permission on a case-by-case basis from the Captain of the Port (COTP) Baltimore, Maryland.

## 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 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 Baltimore's Inner Harbor, the Northwest Harbor, and the Patapsco River in the Port of Baltimore, Maryland. Because the zone is of limited size and duration, it is expected that there will be minimal disruption to the maritime community. Before the effective period, the Coast Guard will 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, which are more likely to be small entities, may transit around the zones and may request permission from the COTP Baltimore on a case-by-case basis to enter the zone.

## 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).                          ( print page 49489)    

## 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, 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. This rule established a safety zone.

                    A final “Environmental Analysis Check List” and a final “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

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(g), 6.04-1, 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 § 165.T05-101 to read as follows: 

§ 165.T05-101 

                            (a)                             *Definitions.*                             For the purposes of this section—                        

*Captain of the Port, Baltimore, Maryland*                             means the Commander, Coast Guard Sector Baltimore 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 or her behalf.                        

*U.S.S. CONSTELLATION “turn-around” participants*                             means the U.S.S. CONSTELLATION, its support craft and the accompanying towing vessels.                        

                            (b)                             *Location.*                             The following area is a moving safety zone: all waters within 200 yards ahead of or 100 yards outboard or aft of the historic Sloop-of-War U.S.S. CONSTELLATION, while operating in Baltimore's Inner Harbor, the Northwest Harbor and the Patapsco River, Baltimore, Maryland.                        

                            (c)                             *Regulations.*                             (1) The general regulations governing safety zones, found in Sec. 165.23, apply to the safety zone described in paragraph (b) of this section.                        

(2) With the exception of U.S.S. CONSTELLATION “turn-around” participants, entry into or remaining in this zone is prohibited, unless authorized by the Captain of the Port, Baltimore, Maryland.

                            (3) Persons or vessels requiring entry into or passage through the moving safety zone must first request authorization from the Captain of the Port, Baltimore, Maryland to seek permission to transit the area. The Captain of the Port, Baltimore, Maryland can be contacted at telephone number (410) 576-2693 or on Marine Band Radio VHF Channel 16 (156.8 MHz). The Coast Guard vessels enforcing this                                   ( print page 49490)                                section can be contacted on 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 person or vessel shall proceed as directed. If permission is granted, all persons or vessels must comply with the instructions of the Captain of the Port, Baltimore, Maryland, and proceed at the minimum speed necessary to maintain a safe course while within the zone.                        

                            (d)                             *Enforcement.*                             The U.S. Coast Guard may be assisted in the patrol and enforcement of the zone by Federal, State and local agencies.                        

                            (e)                             *Effective period.*                             This section will be enforced from 2 p.m. to 7 p.m. local time on September 9, 2005.                        

Dated: August 11, 2005.

Curtis A. Springer,

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

[FR Doc. 05-16792 Filed 8-23-05; 8:45 am]

BILLING CODE 4910-15-P