[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Proposed Rules]
[Pages 77655-77657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22153]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD08-06-023]
RIN 1625-AA11


Regulated Navigation Area; Atchafalaya River, Berwick Bay, 
Berwick Bay, LA

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to remove both paragraph (f)(4) and 
the note located at the end of the section from 33 CFR 165.811. Coast 
Guard Vessel Traffic Service (VTS) Berwick Bay has determined that the 
Southern Pacific Railroad (SPRR) Bridge visual displays are no longer 
necessary due to updated VTS technologies and procedures that actively 
inform towing vessels that the rules of 33 CFR 165.811 are in effect at 
the time of entry into the VTS. This action will relieve the owner of 
the SPRR Bridge and the Coast Guard from maintaining antiquated visual 
displays and related equipment.

DATES: Comments and related material must reach the Coast Guard on or 
before January 26, 2007.

ADDRESSES: You may mail comments and related material to Commander 
(dpw), Eighth Coast Guard District, 500 Poydras Street, New Orleans, LA 
70130-3310. The Eighth Coast Guard District's Waterways 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, are part of docket [CGD08-
06-023] and are available for inspection or copying at The Hale Boggs 
Federal Building, 500 Poydras Street (RM 1230), New Orleans, LA 70130-
3310, between 8 a.m. and 3:30 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Brian Hofferber 
or Chief Warrant Officer Edgardo Estrada, Eighth Coast Guard District's 
Waterways Branch, at telephone 504-671-2326.

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 [CGD08-06-
023], 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 
81/2 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. However, you may 
submit a request for a meeting by writing to the Eighth Coast Guard 
District's Waterways Branch address under ADDRESSES explaining why one 
would be beneficial. If we determine that a public meeting 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

    BNSF Railway Company, the owner of the Southern Pacific Railroad 
(SPRR) Bridge, has requested to change visual displays requirements for 
the SPRR Bridge set forth in 33 CFR 165.811. In September 2005, the 
visual displays atop the SPRR Bridge were destroyed by Hurricane Rita 
and have not been restored. Prior to their destruction, the visual 
displays consisted of two vertically arranged red balls by day and two 
vertically arranged flashing white lights by night. The displays were 
maintained by the bridge owner and were activated upon direction by the 
Coast Guard Vessel Traffic Service (VTS) Berwick Bay during high water 
periods as specified in 33 CFR 165.811. Prior to the current 
implementation of VTS Berwick Bay, the use of visual displays on the 
SPRR Bridge served as the primary means of advising towing vessels that 
the provisions of 33 CFR 165.811 were in effect, or were anticipated to 
be placed into effect, in order to reduce the risk of mishaps involving 
towing vessels and the local bridges crossing the waterway. The 
destruction of the displays by Hurricane

[[Page 77656]]

Rita and the subsequent request by BNSF Railway Company for their 
discontinuance prompted discussion within the Coast Guard as to the 
necessity of the visual displays. Coast Guard VTS Berwick Bay concluded 
that the visual displays are antiquated and no longer serve as a 
primary means to advise towing vessels that the requirements of 33 CFR 
165.811 are in effect. VTS Berwick Bay now directly advises mariners as 
to which navigation rules are in effect at the time of the vessel entry 
into the VTS regulated navigation area.

Discussion of Proposed Rule

    Coast Guard Vessel Traffic Service (VTS) Berwick Bay has determined 
that the SPRR Bridge visual displays required by 33 CFR 165.811(f)(4) 
are no longer necessary due to updated VTS technologies and procedures. 
Towing vessels subject to 33 CFR 165.811 during high water periods are 
now required to check into VTS Berwick Bay before the SPRR Bridge 
displays become visible during transit. Upon entry, subject vessels are 
advised directly by the VTS as to which regulations are in effect. 
Removal of subpart (f)(4) eliminates antiquated visual display 
requirements from 33 CFR 165.811 as the primary means of notice and 
relieves the owner of the SPRR Bridge from continued maintenance costs. 
Vessels which are not subject to 33 CFR 165.811(f)(4) need not be 
informed that the requirements of the regulated navigation area are in 
effect, but may request such information at any time from the Berwick 
Bay Vessel Traffic Center (VTC) via telephone or VHF-FM 11, 13, or 16; 
from VHF-FM radio Broadcast Notices to Mariners; or from the current 
U.S. Army Corps of Engineers' river gauge readings (published on the 
Internet).

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.
    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 proposed rule eliminates existing visual display requirements 
from a list of notice requirements under 33 CFR 165.811(f) which have 
been superseded by improved procedures for notification. This proposed 
rule change neither imposes any additional costs to the public nor 
eliminates significant benefits.

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 is neutral to all business 
entities as it changes the means by which all vessel operators are 
provided notice from a visual display to direct advisories from VTS 
Berwick Bay.
    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 (Public Law 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 individuals 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 will 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 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 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

[[Page 77657]]

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 Commandant Instruction 
M16475.lD, and Department of Homeland Security Management Directive 
5100.1, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have 
made a preliminary determination 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, we believe that this rule should be 
categorically excluded, under figure 2-1, paragraph (32)(e), of the 
Instruction, from further environmental documentation. Under figure 2-
1, paragraph (32)(e), of the Instruction, an ``Environmental Analysis 
Check List'' is not required for this rule. Comments on this section 
will be considered before we make the final decision on whether to 
categorically exclude this rule 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.


Sec.  165.811  [Amended]

    2. In Sec.  165.811, remove paragraph (f)(4) and the note located 
at the end of the section.

    Dated: December 4, 2006.
J.R. Whitehead,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
 [FR Doc. E6-22153 Filed 12-26-06; 8:45 am]
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