[Federal Register Volume 69, Number 31 (Tuesday, February 17, 2004)]
[Rules and Regulations]
[Pages 7367-7369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3397]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[COTP New Orleans-03-029]
RIN 1625-AA00


Safety Zone; Lower Mississippi River, Mile Marker 88.1 to 90.4 
Above Head of Passes, New Orleans, LA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the Lower Mississippi River (LMR), beginning at mile marker 88.1 and 
ending at mile marker 90.4 Above Head of Passes, extending the entire 
width of the river. This safety zone is needed to protect persons and 
vessels from the potential safety hazards associated with the weekly 
upbound and downbound transit of the Cruise Ship (C/S) CONQUEST beneath 
the Entergy Corporation power cables located at mile marker 89.2. Entry 
into this zone is prohibited unless specifically authorized by the 
Captain of the Port New Orleans or a designated representative.

DATES: This rule is effective from February 16, 2004, to February 16, 
2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket [COTP New Orleans 03-024] and are 
available for inspection or copying at Marine Safety Office New 
Orleans, 1615 Poydras Street, New Orleans, LA, 70112 between 8 a.m. and 
4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant (LT) Richard Paciorka, 
Marine Safety Office New Orleans, at (504) 589-4222.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
rule. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause 
exists for not publishing an NPRM, and under 5 U.S.C. 553(d)(3), good 
cause exists for making this rule effective less than 30 days after 
publication in the Federal Register. Publishing an NPRM and delaying 
its effective date would be contrary to public interest since immediate 
action is needed to protect vessels and mariners from the hazards 
associated with the weekly upbound and downbound transit of the Cruise 
Ship (C/S) CONQUEST under the Entergy Corporation power cable, Lower 
Mississippi River (LMR), mile marker 89.2, Above Head of Passes, New 
Orleans, Louisiana.

Background and Purpose

    On August 18, 2003, the Coast Guard published a temporary final 
rule entitled ``Safety Zone; Lower Mississippi River, Above Head of 
Passes, Mile Marker 88.1 to 90.4, New Orleans, LA'' in the Federal 
Register (68 FR 49356). The temporary final was established to protect 
persons, mariners and vessels from the potential safety hazards 
associated with the weekly upbound and downbound transit of the C/S 
CONQUEST as it proceeds beneath the Entergy Corporation power cables 
located at mile marker 89.2. This temporary final rule expired at 8 
p.m. C.s.t. on January 11, 2004. The Captain of the Port New Orleans 
has determined the safety hazards associated with the C/S CONQUEST's 
inbound and outbound transit underneath the power cables continue to 
exist.
    The C/S CONQUEST has an air draft of 210 feet and is home ported at 
the Julia Street Wharf located at mile marker 95.3. The Entergy 
Corporation power cables are at a height of 229.9 feet North American 
Vertical Datum (NAVD) at the center of the LMR. The power cables 
increase in height to a maximum of 366.4 feet NAVD on the East bank of 
the LMR and a maximum of 361.1 feet NAVD on the West bank of the LMR. 
The C/S CONQUEST requires a minimum air gap of 10 feet between itself 
and the Entergy Corporation power cables to prevent electrical arcing. 
When the river stage at the Carrollton gauge reads 10 feet or higher, 
the vessel must maneuver within 400 to 600 feet of the East bank or 
within 400 to 700 feet of the West bank to maintain the minimum air gap 
necessary to safely transit under the Entergy Corporation power cables. 
Other vessels transiting between mile marker 88.1 and 90.4 may restrict 
the maneuverability of the C/S CONQUEST through the safe passage lanes 
and possibly result in harm to life or damage to the cruise ship, the 
power cable, or nearby vessels.
    This safety zone is needed to protect persons, mariners and vessels 
from the potential safety hazards associated with the weekly upbound 
and downbound transit of the C/S CONQUEST as it proceeds beneath the 
Entergy Corporation power cables located at mile marker 89.2. This rule 
would only be enforced when the Carrolton gauge reads 10 feet or 
higher.
    It is anticipated that the Entergy Corporation will complete the 
burial of

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new power cables and removal of existing overhead cables by January 
2005. Once this occurs, the safety hazards that necessitate this safety 
zone will cease to exist.

Discussion of Rule

    This rule establishes a temporary safety zone for the LMR, 
beginning at mile marker 88.1 and ending at mile marker 90.4 Above Head 
of Passes, extending the entire width of the river. This safety zone 
will only be enforced when the river stage at the Carrollton gauge 
reads 10 feet or higher. This safety zone is needed to protect persons 
and vessels from the potential safety hazards associated with the 
weekly upbound and downbound transit of the C/S CONQUEST as it proceeds 
beneath the Entergy Corporation power cables located at mile marker 
89.2. Entry into this zone is prohibited unless specifically authorized 
by the Captain of the Port New Orleans or a designated representative. 
This prohibition would be effective one-half hour prior to the C/S 
CONQUEST arriving at the power cables and would continue in effect 
until the vessel safely passes underneath the power cables. The C/S 
CONQUEST is anticipated to arrive at the power cables at 3:45 a.m. and 
at 6:30 p.m. every Sunday. These arrival times are based on the 
predicted cruise schedule for the C/S CONQUEST and area subject to 
change. The Captain of the Port New Orleans will inform the public via 
broadcast notice to mariners of the enforcement periods for the safety 
zone.
    This rule also prohibits vessels from anchoring in the New Orleans 
Emergency Anchorage below mile marker 90.4, which is the location of 
Chalmette Slip, and 350 yards upriver of the Belle Chasse Launch 
Service's West Bank Dock. Vessels anchored in this area could restrict 
the maneuverability of the C/S CONQUEST through safe passage lanes and 
possibly result in harm to life or damage to the cruise ship, the power 
cables, or nearby vessels. Vessels anchored within the New Orleans 
Emergency Anchorage are already required by 33 CFR 110.195(a)(16) to 
obtain permission from the Captain of the Port New Orleans prior to 
anchoring. The New Orleans General Anchorage extends from mile 90.1 to 
90.9 on the LMR, and only 0.3 miles of the anchorage will be affected 
by this rule. This prohibition would be effective two hours prior to 
the C/S CONQUEST's arrival or departure from its berth and would remain 
effective until the vessel safely passes under the power cables.
    This rule allows moored vessels to remain moored within the safety 
zone.

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 rule to be so minimal that a 
full Regulatory Evaluation under the regulatory procedures of DHS is 
unnecessary. The Coast Guard has met with members of the local maritime 
industry including Carnival Cruise Lines, Entergy, the New Orleans Port 
Commission, pilots associations, owners of waterfront facilities 
located within or adjacent to the zone as well as agents and shipping 
companies to discuss safety concerns associated with the transit and 
measures to reduce the impact of the safety zone on the local maritime 
community.
    This rule only affects maritime traffic for short periods of time. 
The impact on routine navigation is expected to be minimal as the 
safety zone will only be in effect for two hours, twice each week. 
Additionally, this safety zone will only be enforced when the Carrolton 
gauge reads 10 feet or higher. The Captain of the Port New Orleans or a 
designated representative may permit movements within the safety zone 
that do not impact the passage of the C/S CONQUEST, further limiting 
the impact of the safety zone.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule has 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 does 
not have a significant economic impact on a substantial number of small 
entities. This rule affects the following entities, some of which may 
be small entities: the owners or operators of crew boats, towing 
vessels, deep draft vessels, and occasional commercial fishing vessels 
intending to transit or anchor between mile marker 88.1 and mile marker 
90.4, Lower Mississippi River, Above Head of Passes, while the C/S 
CONQUEST is transiting this area upbound or downbound. This safety zone 
does not have a significant economic impact on a substantial number of 
small entities for the following reasons: (1) This rule would only be 
enforced when the river stage at the Carrollton gauge reads 10 feet or 
higher, (2) The safety zone would only be enforced during the period of 
time it takes the C/S CONQUEST to transit the area of the safety zone, 
which is estimated to take approximately two hours in each direction, 
(3) The C/S CONQUEST normally makes these transits once a week, usually 
on Sunday, and (4) the Captain of the Port New Orleans or a designated 
representative may permit movements within the zone that do not impact 
the passage of the C/S CONQUEST, further limiting the impact of the 
zone.
    If you are a small business entity and are significantly affected 
by this regulation please contact LT Richard Paciorka, Marine Safety 
Office New Orleans, at (504) 589-4222.

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 this 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).

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

[[Page 7369]]

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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule does not affect 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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
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. A final ``Environmental Analysis Check 
List'' 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; 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.

0
2. Reinstate and revise temporary Sec. 165.T08-090 to read as follows:


Sec. 165.T08-090  Safety Zone; Lower Mississippi River, Mile Marker 
88.1 to 90.4, Above Head of Passes, New Orleans, LA.

    (a) Location. The following area is a safety zone: the entire width 
of the Lower Mississippi River, Above Head of Passes, beginning at mile 
marker 88.1, which is the location of the lower end of the Algiers Lock 
fore bay, and ending at mile marker 90.4, which is the location of the 
Chalmette Slip and 350 yards upriver of the Belle Chasse Launch 
Service's West Bank Dock.
    (b) Effective dates. This section is effective from February 16, 
2004 to February 16, 2005.
    (c) Enforcement period. This rule will be enforced only when the 
Carrolton gauge reads 10 feet or higher during the effective period. 
When the Carrolton gauge reads 10 feet or higher, this section will be 
enforced every Sunday from 1:45 a.m. to 3:45 a.m. and from 4:30 p.m. to 
6:30 p.m. These periods of enforcement are based on the predicted 
cruise schedule for the C/S CONQUEST and are subject to change. The 
Captain of the Port New Orleans will inform the public via broadcast 
notice to mariners of the enforcement periods for the safety zone.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec. 165.23 of this part, entry into this zone is prohibited to all 
people, mariners and vessels 30 minutes prior to the C/S CONQUEST's 
arrival at the power cables, unless authorized by the Captain of the 
Port New Orleans.
    (2) Vessels are prohibited from anchoring in the New Orleans 
Emergency Anchorage or the New Orleans General Anchorage below mile 
marker 90.4, which is the location of the Chalmette Slip, and 350 yards 
upriver of the Belle Chasse Launch Service's West Bank Dock. This 
prohibition is effective two hours prior to the arrival and departure 
of the C/S CONQUEST or until it safely passes under the power cables.
    (3) Moored vessels are permitted to remain within the safety zone.
    (4) The Captain of the Port New Orleans will inform the public via 
broadcast notice to mariners of the enforcement periods for the safety 
zone.
    (5) Vessels requiring entry into or passage through the zone during 
the enforcement period must request permission from the Captain of the 
Port New Orleans or a designated representative. Designated 
representatives include the Vessel Traffic Center (VTC) and on-scene 
U.S. Coast Guard patrol personnel. The VTC may be contacted on VHF 
Channel 67 or by telephone at (504) 589-2780. On-scene U.S. Coast Guard 
patrol personnel may be contacted on VHF channel 67.
    (6) All persons and vessels shall comply with the instructions of 
the Captain of the Port New Orleans, the Vessel Traffic Center, and 
designated on-scene U.S. Coast Guard patrol personnel. On-scene U.S. 
Coast Guard patrol personnel include commissioned, warrant, and petty 
officers of the U.S. Coast Guard.

    Dated: December 22, 2003.
R.W. Branch,
Captain, U.S. Coast Guard, Captain of the Port New Orleans.
[FR Doc. 04-3397 Filed 2-13-04; 8:45 am]
BILLING CODE 4910-15-P