[Federal Register Volume 74, Number 92 (Thursday, May 14, 2009)]
[Proposed Rules]
[Pages 22722-22725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11303]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0139]
RIN 1625-AA11


Regulated Navigation Area; Gulf Intracoastal Waterway, Inner 
Harbor Navigation Canal, New Orleans, LA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes for a rule to prohibit all floating 
vessels from being within an area in the Inner Harbor Navigation Canal 
from Mile Marker 22 (west of Chef Menteur Pass) on the Gulf 
Intracoastal Waterway, west through the Gulf Intracoastal Waterway and 
Inner Harbor Navigation Canal out to Lake Ponchartrain and the 
Mississippi River in New Orleans, LA. This regulated navigation area 
would also apply to part of the Harvey Canal, between Lapalco Boulevard 
Bridge and the intersection of the Harvey Canal and the Algiers 
Alternate Route of the Intracoastal Waterway. This action is necessary 
to protect the high-risk areas in the flood protection for New Orleans. 
The proposed rule will protect the floodwalls in the designated areas 
of the Inner Harbor Navigation Canal and the Harvey Canal from damage 
caused by drifting vessels by excluding vessels from the area under 
certain weather conditions.

DATES: Comments and related material must be received by the Coast 
Guard on or before June 15, 2009. Requests for public meetings must be 
received by the Coast Guard on or before June 15, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0139 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 four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Lieutenant Commander (LCDR) Eva Van Camp, Coast 
Guard; telephone (504) 846-5923; e-mail [email protected]. 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-2009-0139), 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 (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by

[[Page 22723]]

the Coast Guard when it is received at the Docket Management Facility. 
We recommend that you include your name and a mailing address, an e-
mail address, or a telephone 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-2009-0139'' 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 comments 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-2009-0139 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 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. 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 on or before June 15, 2009 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting 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

    During Hurricanes Katrina and Gustav, multiple barges and vessels 
were moored next to or nearby floodwalls surrounding the city of New 
Orleans. Following the 2008 hurricane season, the Coast Guard 
determined there are areas in the New Orleans area that are at high 
risk of potential damage to floodwalls. If a vessel breaks away and 
hits a floodwall, there is the possibility for the vessel to damage the 
floodwall and cause a breach resulting in flooding of areas of New 
Orleans. This regulated navigation area is needed to protect the 
floodwalls within the Inner Harbor Navigation Canal (IHNC) and Harvey 
Canal from potential hazards associated with vessels being in this area 
during a storm.

Discussion of Proposed Rule

    All floating vessels are prohibited from being within an area in 
the IHNC from Mile Marker 22 (west of Chef Menteur Pass) on the Gulf 
Intracoastal Waterway, west through the Gulf Intracoastal Waterway and 
Inner Harbor Navigation Canal out to Lake Ponchartrain and the 
Mississippi River in New Orleans, LA. This regulated navigation area 
would also apply to part of the Harvey Canal, between Lapalco Boulevard 
Bridge and the intersection of the Harvey Canal and the Algiers 
Alternate Route of the Intracoastal Waterway. This rule would be in 
effect 24 hours prior to expected gale force winds (Yankee Port 
Condition) through post storm landfall or other hurricane or tropical 
storm conditions as determined by the Captain of the Port New Orleans, 
LA.

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.

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 would affect the following 
entities, some of which might be small entities: The owners or 
operators of vessels intending to moor, transit or anchor in the 
defined area effective 24 hours prior to expected gale force winds 
(Yankee Port Condition) through post storm landfall or other hurricane 
or tropical storm conditions as determined by the Captain of the Port 
New Orleans, LA.
    This regulated navigation area would not have a significant 
economic impact on a substantial number of small entities for the 
following reasons. This regulated navigation area would be activated 24 
hours prior to expected gale force winds (Yankee Port Condition) 
through post storm landfall or other hurricane or tropical storm 
conditions as determined by the Captain of the Port New Orleans, LA. 
Vessels intending to moor, transit, or anchor in the defined area are 
subject to enforcement. Vessel traffic could find an alternate route 
for transit or depart the area before the regulated navigation area 
goes into effect.
    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.
    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 LCDR Eva Van Camp. The Coast 
Guard will not retaliate against small entities that question or 
complain about this

[[Page 22724]]

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 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 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 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(g), of the Instruction and neither an environmental assessment nor 
an environmental impact statement is required. This rule involves the 
establishing, disestablishing, or changing a regulated navigation area. 
A preliminary ``Environmental Analysis Check List'' supporting this 
determination is 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 the 
discovery of a significant environmental impact from this proposed 
rule.

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, 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.

    2. Add Sec.  165.816 to read as follows


Sec.  165.816  Regulated Navigation Area: New Orleans Area of 
Responsibility, New Orleans, LA

    (a) Regulated navigation area. The following is a regulated 
navigation area for the Inner Harbor Navigation Canal from Mile Marker 
22 (west of Chef Menteur Pass) on the Gulf Intracoastal Waterway, west 
through the Gulf Intracoastal Waterway and Inner Harbor Navigation 
Canal out to Lake Ponchartrain and the Mississippi River in New 
Orleans, LA. This regulated navigation area also applies to part of the 
Harvey Canal, between Lapalco Boulevard Bridge and the intersection of 
the Harvey Canal and the Algiers Alternate Route of the Intracoastal 
Waterway. It will be in effect 24 hours prior to expected gale force 
winds (Yankee Port Condition) through post storm landfall, or other 
hurricane or tropical storm conditions as determined by the Captain of 
the Port New Orleans, LA.
    (b) Unless otherwise authorized by the Captain of the Port New 
Orleans, LA, all floating vessels are prohibited from being in the 
Inner Harbor Navigation Canal from Mile Marker 22 (west of Chef Menteur 
Pass) on the Gulf Intracoastal Waterway, west through the Gulf 
Intracoastal Waterway and Inner

[[Page 22725]]

Harbor Navigation Canal out to Lake Ponchartrain and the Mississippi 
River in New Orleans, LA. Also, all floating vessels are prohibited 
from the Harvey Canal between Lapalco Boulevard Bridge and the 
intersection of the Harvey Canal and the Algiers Alternate Route of the 
Intracoastal Waterway.
    (c) These designated areas shall not be used a safe haven.
    (d) Definitions. As used in this section.
    (1) The COTP means The Captain of the Port New Orleans, LA.
    (2) Person in Charge includes any owner, agent, pilot, master, 
officer, operator, supervisor, crewmember, dispatcher, or other person 
navigating, controlling, directing, or otherwise responsible for the 
movement, action, securing or security of any vessel, barge, tier, 
fleet, or fleeting facility subject to the regulation in this section.
    (e) Waivers: (1) The COTP may, upon written request, except as 
allowed in paragraph (3) of this subsection, waive any regulation in 
this section if it is found that the purposed operation can be 
conducted safely under the terms of that waiver.
    (2) Each written request for a waiver must state the need for the 
waiver and describe the proposed operation.
    (3) Under unusual circumstances due to time constraints the person 
in charge may orally request an immediate waiver from the COTP. The 
written request must be submitted within five working days of the oral 
request.
    (4) The COTP may at any time terminate any waiver issued under this 
subsection.
    (f) The COTP will notify the maritime community of periods during 
which this regulated navigation area will be enforced by providing 
advance notice through a Marine Safety Information Bulletin and Safety 
Broadcast Notice to Mariners.

    Dated: 29 April 2009.
J.R. Whitehead,
Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. E9-11303 Filed 5-13-09; 8:45 am]
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