22722 Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 

requires marketers to make certain 

disclosures clearly and conspicuously? 

If so, why, and how? If not, why not? 

(15) What potentially unfair or 

deceptive practices concerning the 

marketing of prenotification negative 

option plans, if any, are not covered by 

the Rule? 

(a) What evidence, such as empirical 

data, consumer perception studies, or 

consumer complaints, demonstrates 

whether there is widespread existence 

of such practices? Please provide this 

evidence. 

(b) What evidence demonstrates that 

such practices cause consumer injury? 

Please provide this evidence. 

(c) With reference to such practices, 

should the Rule be modified? If so, why, 

and how? If not, why not? 

(16) What potentially unfair or 

deceptive practices concerning the 

marketing of negative option plans, not 

covered by the Rule, are occurring in the 

marketplace? 

(a) What evidence, such as empirical 

data, consumer perception studies, or 

consumer complaints, demonstrates 

whether there is widespread existence 

of such practices? Please provide this 

evidence. 

(b) What evidence demonstrates that 

such practices cause consumer injury? 

Please provide this evidence. 

(c) With reference to such practices, 

should the Rule be modified? If so, why, 

and how? If not, why not? 

(17) What modifications, if any, 

should be made to the Rule to account 

for changes in relevant technology or 

economic conditions? 

(a) What evidence supports the 

proposed modifications? 

(b) How would these modifications 

affect the costs and benefits of the Rule 

for consumers and businesses, 

particularly small businesses? 

(18) Does the Rule overlap or conflict 

with other federal, state, or local laws or 

regulations? If so, how? 

(a) What evidence supports the 

asserted conflicts? 

(b) With reference to the asserted 

conflicts, should the Rule be modified? 

If so, why, and how? If not, why not? 

(c) Is there evidence concerning 

whether the Rule has assisted in 

promoting national consistency with 

respect to the marketing and operation 

of prenotification negative option plans? 

If so, please provide that evidence. 

(19) Are there foreign or international 

laws, regulations, or standards with 

respect to negative option plans that the 

Commission should consider as it 

reviews the Rule? If so, what are they? 

(a) Should the Rule be modified in 

order to harmonize with these 

international laws, regulations, or 

standards? If so, why, and how? If not, 

why not? 

(b) How would such harmonization 

affect the costs and benefits of the Rule 

for consumers and businesses, 

particularly small businesses? 

(20) Do current or impending changes 

in technology affect whether and how 

the Rule should be modified? 

List of Subjects in 16 CFR Part 306 

Negative Options, Trade practices. 

Authority: 15 U.S.C. 41-58. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. E9–11226 Filed 5–13–09: 8:45 am] 

BILLING CODE 6750–01–S 

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. 

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 Eva.VanCamp@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–2009–0139), 

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 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 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 81⁄2 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 


sroberts on PROD1PC70 with PROPOSALS
22724 Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 

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 § 165.816 to read as follows 

§ 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 


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Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 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] 

BILLING CODE P 


sroberts on PROD1PC70 with PROPOSALS