[Federal Register Volume 78, Number 110 (Friday, June 7, 2013)]
[Proposed Rules]
[Pages 34293-34300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13272]
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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: Supplemental notice of proposed rulemaking and notice of public
meeting.
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SUMMARY: This supplemental notice of proposed rulemaking (SNPRM)
proposes revisions to the existing Regulated Navigation Area (RNA)
established to protect the floodwalls and levees in the New Orleans
area from possible storm surge damage caused by floating vessels. The
Coast Guard proposes to revise the areas where floating vessels are
prohibited and other areas where floating vessels will be restricted
within the Gulf Intracostal Waterway (GIWW), the Inner Harbor
Navigation Canal (IHNC), the Harvey Canal, and the Algiers Canal. This
action is necessary for the flood protection of high-risk areas
throughout the Greater New Orleans Area when a tropical event threatens
to approach and impact the area.
DATES: Comments and related material must be received by the Coast
Guard on or before August 6, 2013. A public meeting will be held in New
Orleans, LA, to discuss this regulated navigation area on June 20,
2013, at 5 p.m. local time.
ADDRESSES: Written comments. You may submit comments identified by
docket number using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail or Delivery: 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. Deliveries
accepted between 9 a.m. and 5 p.m.,
[[Page 34294]]
Monday through Friday, except federal holidays. The telephone number is
202-366-9329.
See the ``Public Participation and Request for Comments'' portion
of the SUPPLEMENTARY INFORMATION section below for further instructions
on submitting comments. To avoid duplication, please use only one of
these three methods.
Public meeting. The June 20, 2013 public meeting will be held in
the Georges Auditorium, located in the Professional Schools and Science
Building at Dillard University, 2601 Gentilly Boulevard, New Orleans,
LA 70122.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LCDR Brandon Sullivan, Sector New Orleans Waterways
Division, U.S. Coast Guard; telephone (504) 365-2281, email
[email protected]. If you have questions on viewing or
submitting material to the docket, call Barbara Hairston, Program
Manager, Docket Operations, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
SNPRM Supplemental Notice of Proposed Rulemaking
CPRA Coastal Protection Restoration Authority
HSDRRS Hurricane Storm Damage Risk Reduction System
USACE United Stated Army Corps of Engineers
COTP Captain of the Port
IHNC Inner Harbor Navigation Canal
GIWW Gulf Intracoastal Waterway
MM Mile Marker
RNA Regulated Navigational Area
A. 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.
1. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking, 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 at
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, 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 the Coast Guard when
it is received at the Docket Management Facility. We recommend that you
include your name and a mailing address, an email 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,
type the docket number (USCG-2009-0139) in the ``SEARCH'' box and click
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with
this rulemaking.
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.
2. 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,
type the docket number (USCG-2009-0139) in the ``SEARCH'' box and click
``SEARCH.'' Click on Open Docket Folder on the line associated with
this rulemaking. 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.
3. 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 FR
(73 FR 3316).
4. Public Meeting
We plan to hold one public meeting on June 20, 2013, at 5 p.m.
local time at Dillard University located at 2601 Gentilly Boulevard,
New Orleans, LA 70122. This meeting will be held in the Georges
Auditorium, located in the Professional Schools and Science Building.
The gate guard at this institution will instruct each participant of
the exact location on the campus. The Coast Guard will draft minutes of
this meeting and post them to the public docket for review. For
information on facilities or services for individuals with disabilities
or to request special assistance at the public meeting, contact the
person named in the FOR FURTHER INFORMATION CONTACT section, above.
B. Regulatory History and Information
On May 14, 2009, the Coast Guard published a notice of proposed
rulemaking (NPRM) entitled ``Regulated Navigation Area; Gulf
Intracoastal Waterway, Inner Harbor Navigation Canal, Harvey Canal,
Algiers Canal, New Orleans, LA'' in the Federal Register (74 FR 22722).
No public meetings were held. The Coast Guard received seven comments
on the proposed rule. On June 8, 2010, the Coast Guard published an
interim rule entitled ``Regulated Navigation Area; Gulf Intracoastal
Waterway, Inner Harbor Navigation Canal, New Orleans, LA'' in the FR
(75 FR 32275) and provided responses to all comments to the NPRM. The
intent behind establishing the RNA as an Interim Rule was to put into
place interim restrictions providing the necessary protections at the
time and until the final floodwalls and storm protection systems were
completed and final specifications received. The interim rule stated
that the Coast Guard would reevaluate the RNA upon completion of the
USACE Hurricane and Storm Damage Risk Reduction System (HSDRRS). With
the HSDRRS being fully operational for the 2013 hurricane season, the
Coast Guard, with input from Federal, State and local agencies
determined that the RNA is still necessary.
In this SNPRM, the Coast Guard proposes changes to the requirements
of the RNA from those in the interim rule. In developing these
requirements, the Coast Guard established an RNA Work Group comprised
of Federal, State, and local flood protection authorities, and port
industry representatives. We held three meetings with this work group
and used input from the group to address the protections still
necessary and developed the restrictions to provide those protections.
The minutes from those meetings are available for public viewing on the
docket. In addition to the work group meetings, the Coast
[[Page 34295]]
Guard considered the findings of joint assessments of the canal system
conducted by the USACE and industry representatives through aerial over
flights and patrols by waterborne assets. Also, in the drafting of this
SNPRM, the Coast Guard has met formally with the USACE six times to
ensure close alignment with their goals and concerns. The Coast Guard
seeks public input on this SNPRM and its associated documents in the
docket.
C. Basis and Purpose
The legal basis for this SNPRM is the Ports and Waterways Safety
Act (PWSA), 33 U.S. Code 1221 et seq., as well as the Coast Guard's
authority to establish RNAs under 33 CFR part 165. The purpose of this
SNPRM is to permanently establish the RNA to protect floodwalls and
levees in the New Orleans area from possible storm damage caused by
moored barges and vessels, and to avoid flooding in the New Orleans
area that could result from that storm damage.
This SNPRM proposes changes to the interim RNA to fit the needs now
that the flood protection system is complete. This SNPRM builds upon
the Interim Rule in place since 2010 to respond to these risks. Without
this RNA, when navigational structures within the HSDRRS are to be
closed because of an approaching storm, the Coast Guard would have to
individually order each vessel within the subject area to depart or to
comply with specific mooring arrangements. Issuing individual orders
places a significant administrative burden on the Coast Guard during a
time when important pre-storm preparations must also be made. By
proposing this rule, the Coast Guard is informing the public in advance
of the restrictions and requirements for vessels in the area during
periods of enforcement, thus eliminating the need for individual
Captain of the Port Orders.
An additional purpose of this RNA is to aid the Coast Guard in the
early identification of vessels that may not depart the RNA when
required. Under the PWSA, the Coast Guard has no authority to take
possession of, and move these vessels during emergency periods such as
the approach of a hurricane. Rather, Coast Guard enforcement is limited
to imposing civil or criminal penalties on anyone who fails to comply
with the requirements of an order or regulation issued under PWSA.
Therefore early identification of vessels that may be unwilling to
depart the area, or unable to remain safely moored within the area
during a storm, is extremely important as it will give the Coast Guard
time to consider alternatives and work with interagency authorities and
vessel & facility representatives to appropriately resolve the problem
well in advance of a storm.
D. Discussion of Comments and Proposed Changes to the Interim Rule
The Coast Guard received five comments to the interim rule
published in 2010. Collectively, these comments requested an extended
commenting period; supported the use of waivers and prearranged
agreements that would permit a vessel to remain in the RNA during a
closure; requested clarification on the requirements for a mooring plan
or prearranged agreement; and objected to the use of an 8' and 10.5'
storm surge as a trigger for activating the RNA. The requirements of
the RNA in this SNPRM are significantly different from those of the
interim rule. While these changes were not made in direct response to
the submitted comments, many of the changes do address some of the
issues raised by the submitted comments. For example, the technical
requirements for a mooring agreement and the elimination of storm surge
as a trigger for activating the RNA are described in more detail below.
One comment also urged the Coast Guard to disestablish the RNA when the
ACOE completed its flood control projects. However, the Coast Guard has
determined that this RNA is still necessary to protect the flood
control structures by ensuring that only those vessels that are safely
and securely moored remain within the area during a tropical weather
event.
Based on completion of the flood protection systems and the
specifications for those systems as provided to the Coast Guard, and to
further reduce the potential risks to the HSDRRS from floating vessels
during tropical events, the Coast Guard is proposing to expand the
geographic parameters of the RNA currently published at 33 CFR 165.838,
and to revise the requirements related to that area. The area of the
new proposed RNA includes: (1) The GIWW from Mile Marker (MM) 22 East
of Harvey Locks, west on the GIWW, including the Michoud Canal and the
IHNC, extending North \1/2\ mile from the Seabrook Flood Gate Complex
out into Lake Pontchartrain and South to the IHNC Lock; (2) The Harvey
Canal, between the Lapalco Boulevard Bridge and the confluence of the
Harvey Canal and the Algiers Canal; (3) the Algiers Canal, from the
Algiers Lock to the confluence of the Algiers Canal and the Harvey
Canal; and (4) the GIWW from the confluence of Harvey Canal and Algiers
Canal to MM 7.5 West of Harvey Locks.
These additional areas include the Michoud Canal on the GIWW, which
will protect the pumping stations located at the entrance of the
Michoud Canal. The COTP has also included the waters extending \1/2\
mile north from the Seabrook Flood Gate Complex out into Lake
Pontchartrain, to further reduce the potential risk to the Seabrook
Flood Gate Complex when the RNA is enforced. The Coast Guard is also
proposing inclusion of the waters of the GIWW at the confluence of
Harvey Canal and Algiers Canal to MM 7.5 West of Harvey Locks.
The Coast Guard proposes to enforce each portion of the RNA
beginning 24 hours prior to the closure of the main gate within that
portion of the flood protection system (IHNC Surge Barrier for the east
portion and West Closure Complex for the west portion). Closure of main
gates within the flood protection system was chosen as the RNA
enforcement trigger since it signals full implementation of actions
necessary to protect populated areas from hurricane-related flooding.
Closure of these structures also cuts off main egress routes for
vessels to comply with RNA requirements. When main gates are closed,
RNA implementation needs to be complete.
If the Coast Guard received notice of closure of any or all of the
flood protection structures within the HSDRRS less than 24 hours before
the closure, the RNA will be enforced upon the Coast Guard receiving
the notice. Additionally, in the event that a particularly dangerous
storm is predicted, the COTP may require all floating vessels to
evacuate the RNA beginning as early as 72 hours before predicted
closure of any flood protection closure structure, or upon notice that
particularly dangerous storm conditions are approaching, whichever is
less. This enforcement option is intended to give the COTP the
discretion to begin early enforcement of the RNA when a storm presents
a greater than usual threat, to better ensure the conditions of the RNA
are met. The Coast Guard has chosen not to include a specific
definition of ``particularly dangerous storm'' at this time, however
the Coast Guard does seek public comment on whether such a definition
is necessary, and the factors that should be considered when
determining if a storm qualifies as ``particularly dangerous.''
Early in the development of this SNPRM, the Coast Guard considered
including forecast wind and minimum standing water levels within the
canals
[[Page 34296]]
as triggers, in addition to gate closure, for the enforcement of the
RNA. The Coast Guard wants to make sure that RNA enforcement is
absolutely necessary, when water levels within the RNA are sufficiently
high for a floating vessel to potentially reach HSDRRS structures with
gates closed and pump stations functioning. However, at the request of
the Coast Guard, USACE supplied information that resulted in the Coast
Guard reassessing that position. USACE provided the Coast Guard with
new critical basin water elevations indicating an increased risk to the
HSDRRS from a floating vessel should water levels exceed 5ft in canals.
To reach this water level, the USACE indicated that with a 9 inch
rainfall event occurring within a 24-hour timeframe, water levels
within the RNA located west of the Mississippi River (Harvey and
Algiers Canals) could potentially increase from 3.8 ft (baseline level
for West Closure Complex gate closure) to 6.0 ft. Likewise, with the
same rainfall amounts occurring over the same timeframe, water levels
within the RNA East of the Mississippi River could potentially increase
from 3 ft (baseline level for IHNC gate closure) to 7 ft. The
likelihood of these rainfall amounts occurring during a tropical event,
coupled with storm path and severity forecast uncertainties, were
instrumental in the Coast Guard's decision to abandon these triggers.
The Coast Guard is proposing that all floating vessels be
prohibited from entering into or remaining in the RNA during the
enforcement period with some exceptions. In the Interim Rule, the Coast
Guard allows vessels to remain during RNA enforcement only if they have
an approved waiver from the COTP. These waivers are valid for one year
and require resubmission and approval each hurricane season. As a
result of comments from maritime industry representatives and flood
protection authorities voicing concern that an annual waiver process
may be subject to differing interpretations over time, and expressing a
desire for long-term consistency and predictability, the Coast Guard is
proposing to transition from a waiver system to a performance-based
system. This system includes minimum mooring, documentation, facility
oversight, and standby towing vessel requirements for vessels to remain
in certain lower risk portions of the RNA and will ensure consistent
enforcement and application over the long-term.
During the period of enforcement, floating vessels may remain in
the Michoud Canal at least \1/4\ mile north of the intersection of the
Michoud Canal and the GIWW, the GIWW from MM 14.5 EHL to MM 10 EHL, the
Algiers Canal, and the Harvey Canal provided they meet the requirements
proposed in this SNPRM. The USACE and the COTP agree if any vessels are
allowed to remain, these areas present the least risk because of the
elevation of floodwalls, distance of floodwalls from canal moorings,
construction of floodwalls, presence of pumping systems to reduce canal
water levels, and buildings and other obstructions between canals and
floodwalls. The Coast Guard seeks comments on other areas within the
GIWW that may be acceptable areas for floating vessels to remain if
they meet the minimum mooring requirements. However, based upon
information obtained from the USACE, the Coast Guard is not inclined to
allow any floating vessels to remain within the IHNC portion of the
Canal Basin due to the vulnerability of the HSDRRS to vessel strikes in
this location.
During the period of enforcement, vessels may transit through the
RNA en route to a destination outside of the RNA, given that there is
sufficient time to do so prior to the closure of a navigational
structure, or they may transit to a facility within the RNA with which
they have a prearranged mooring agreement. These types of transits will
be closely monitored and discussed within the Port Coordination Team
activated by the COTP as part of the Maritime Hurricane Contingency
Port Plan.
This SNPRM proposes to require additional information from
facilities located in the RNA that intend to keep vessels at the
facility during enforcement of the RNA. All facilities that have
vessels intending to remain within the areas allowed within this RNA
would have to develop an Annual Hurricane Operations Plan, readily
available for Coast Guard and USACE inspection. For the purpose of this
Rulemaking, facilities is defined as a fleeting, mooring, industrial
facility or marina along the shoreline at which vessels are or can be
moored and which owns, possesses, moors, or leases vessels located in
the area defined by this regulation that could pose a risk to the flood
protection system. This plan describes details of mooring arrangements
in accordance with the mooring requirements and conditions set forth in
this SNPRM and must be submitted by May 1st of each calendar year.
Information that must be included in this plan includes a diagram of
the facility and fleeting area, characteristics for each vessel the
facility intends to keep in the RNA during enforcement, and 24-hour
contact information for qualified individuals who are empowered to make
on-site decisions regarding pollution response and salvage.
Also, as part of the Annual Hurricane Operations Plan, a
professional engineer must clearly certify in the Hurricane Operations
Plan that the mooring arrangements are able to withstand winds of up to
140 mph, a water level of eleven feet, a current of four mph and a wave
height of three feet within the canal basin in the area defined in the
regulatory text section of paragraph (a)(1), and withstand winds of up
to 140 mph, a water level of eight feet, a current of four mph, and a
wave height of two and one half feet within the canal basin in the
areas defined in the regulatory text section of paragraphs (a)(2-4).
The Coast Guard is proposing these standards based on discussions and
technical information, including UFC 4-159 and American Society of
Civil Engineers (ASCE) 7, presented by the USACE at the RNA Work Group
Sessions and a letter between USACE and Coast Guard which has been
uploaded to the docket for review. The eleven and eight foot water
levels proposed in this RNA for the Annual Hurricane Operations Plan
are consistent with the USACE's recommendations in discussions with the
Coast Guard. Therefore, the Coast Guard is proposing a standard
consistent with maximum potential water levels within the designed
HSDRRS system as defined by the USACE. The Coast Guard is proposing the
140 mph wind speed, which is the maximum American Society of Civil
Engineers (ASCE) 7 three second gust velocity in the New Orleans area,
to decrease risk from a vessel breaking away from its mooring.
At least 72 hours prior to the predicted closure of the
navigational structures, the Coast Guard is proposing that those
facilities that have vessels that intend to remain within the allowable
portions of the RNA must submit a Storm Specific Verification Report to
the COTP New Orleans. The requirements for this report are located in
the Canal Hurricane Operations Plan, which is Enclosure Six to the
Sector New Orleans Maritime Hurricane Contingency Port Plan, http://homeport.uscg.mil/nola. The Coast Guard believes the COTP should have
situational awareness of vessels that intend to remain within the RNA
before a specific tropical event triggers RNA activation. The purpose
of this report, therefore, is to capture any changes occurring since
the facility prepared its Annual Hurricane Operations Plan, and permit
verification that those changes
[[Page 34297]]
meet the requirements set forth in this SNPRM. This will also enable
the COTP to better determine the number of vessels required to evacuate
the canals. Coast Guard Port Assessment Team members will review the
information contained in the Storm Specific Verification Report to
ensure alignment with the Annual Hurricane Operations Plan.
As mentioned above, one purpose of the Annual Hurricane Operations
Plan is to ensure that vessels remaining within the RNA during
enforcement comply with the mooring requirements of this proposed rule.
Those requirements prohibit vessels from being secured to trees or
other vegetation, from being moored with frayed lines, from being
moored side to side unless secured to each other from fitting as close
to each corner of abutting sides as practicable, etc. These mooring
requirements also prescribe requirements for various types of rigging;
specifically that wire rope must be of at least 1\1/4\ inch diameter,
and natural or synthetic rope must have at least the breaking strength
of three parts of 1\1/4\ inch diameter wire rope. These specifications
are taken from existing mooring regulations found in 33 CFR 165.803 and
are familiar within the maritime industry in the COTP New Orleans Area
of Operations.
This SNPRM also requires detailed facility information be
maintained on all inspections required within this SNPRM by the
facility. This will ensure quality checks are provided to ensure
mooring standards and configurations are adequate. These facility led
inspections will be made available for COTP and USACE ``verification''
checks at all times during enforcement of the RNA.
The Coast Guard is also proposing a requirement for every facility
with eight or more vessels that are not under their own power to
maintain one tug on scene for every 50 vessels in case of an emergency.
E. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on a number of these statutes or executive orders.
1. 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,
as supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders.
In determining if this rule was a significant regulatory action,
the Coast Guard considered alternatives so as not to unduly impact the
segment of the economy impacted by the RNA. The Coast Guard
incorporated into the regulatory requirements a provision that enables
plans to be submitted with alternative minimum mooring requirements
which will be reviewed by the COTP on a case-by-case basis. This
provision enables the Coast Guard to review and allow mooring
alternatives such as piling systems that permanently moor a vessel not
intending to move from its berth that present an equal or greater level
of safety under the regulation in an effort to mitigate possible
regulatory and economic impacts. The Coast Guard also provided a series
of questions for industry comment with the sole purpose of determining
regulatory and economic impact. The questions were provided to those
entities that had submitted waivers to remain in the RNA under the
Interim Rule, along with the responses received, are available for
public viewing in the docket.
Based on responses to the questions, the Coast Guard modified the
proposed tug boat requirements for on-scene monitoring of vessels
during RNA enforcement. The Coast Guard originally contemplated
requiring each facility with three or more vessels to have one tug on-
scene for every 25 vessels. As a result of the Coast Guard's outreach
to industry with these questions and subsequent responses indicating an
unnecessary economic hardship, the Coast Guard modified this
requirement. This SNPRM proposes every facility with eight or more
vessels to maintain one tug for every 50 vessels which significantly
reduces the economic impact on industry but still provides a
substantial measure of safety in the event that tugs are required in an
emergency.
The Coast Guard is requesting comments on any proposed changes that
may have an economic hardship from any entity that may be affected by
this RNA.
2. Impact on Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered the impact of this proposed rule on small entities. The
Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule
will 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 transit or moor in the RNA during enforcement, and
the owners or operators or facilities in the RNA who intend to keep
vessels at their facility during enforcement of the RNA. On a case by
case basis, the Coast Guard will continue to review alternatives to the
minimum mooring requirements for those that have an equal or greater
measure of safety. This provision supports the Coast Guard's ongoing
effort to keep this rulemaking from having a significant economic
impact on a substantial number of small entities. Therefore small
entities have the option of remaining in place during RNA enforcement
by submitting, and having approved, an alternative mooring plan that
explains how the small entity intends to ensure safe conditions on the
navigable waterways during a tropical event. In addition, alternate
routes for vessel traffic exist for departure from the area before the
RNA 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.
3. Assistance for Small Entities
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. 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 person listed in the FOR FURTHER INFORMATION
CONTACT, above. The Coast Guard will not retaliate against small
entities that question or complain about this proposed rule or any
policy or action of the Coast Guard.
4. Collection of Information
This proposed rule will not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520.). While the Coast Guard did solicit information from the maritime
industry concerning this rulemaking, the Coast Guard did not ask
questions that would meet the guidelines of a new collection of
information.
[[Page 34298]]
5. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this proposed rule under that Order and
determined that this rule does not have implications for federalism.
6. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.
7. 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 (adjusted for
inflation) or more in any one year. Though this proposed rule would not
result in such expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
8. Taking of Private Property
This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
9. 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.
10. Protection of Children From Environmental Health Risks
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.
11. 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.
12. Energy Effects
This proposed rule is not a ``significant energy action'' under
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use 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.
13. Technical Standards
This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
14. Environment
We have analyzed this proposed rule under 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 that do not individually or
cumulatively have a significant effect on the human environment. This
proposed rule involves establishing a regulated navigation area as
defined within this regulation, which is categorically excluded under
figure 2-1, paragraph (34)(g) of the Instruction. An environmental
analysis checklist supporting this determination and a Categorical
Exclusion Determination are available in the docket where indicated
under ADDRESSES. 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
0
1. The authority citation for part 165 continues as follows:
Authority: 33 U.S.C. 1225, 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; Delegation No. 0170.1.
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
2. Revise Sec. 165.838 to read as follows:
Sec. 165.838 Regulated Navigation Area; Gulf Intracoastal Waterway,
Inner Harbor Navigation Canal, New Orleans, LA.
(a) Location. The following is a regulated navigation area (RNA):
(1) The Gulf Intracoastal Waterway (GIWW) from Mile Marker (MM) 22
East of Harvey Locks, west on the GIWW, including the Michoud Canal and
the Inner Harbor Navigation Canal (IHNC), extending North \1/2\ mile
from the Seabrook Flood Gate Complex out into Lake Pontchartrain and
South to the IHNC Lock.
(2) The Harvey Canal, between the Lapalco Boulevard Bridge and the
confluence of the Harvey Canal and the Algiers Canal;
(3) The Algiers Canal, from the Algiers Lock to the confluence of
the Algiers Canal and the Harvey Canal;
(4) The GIWW from the confluence of Harvey Canal and Algiers Canal
to MM 7.5 West of Harvey Locks
(b) Definitions. As used in this section:
(1) Breakaway means a floating vessel that is adrift and that is
not under its own power or the control of a towboat or its own power,
or secured to its moorings.
(2) COTP means the Captain of the Port, New Orleans;
(3) Facility means a fleeting, mooring, industrial facility or
marina along the shoreline at which vessels are or can be moored and
which owns, possesses, moors, or leases vessels located in the areas
described in paragraph (a) of this section.
(3) Fleet includes one or more tiers of barges.
(4) Fleeting or mooring facility means the area along the shoreline
at which vessels are or can be moored.
(5) Floating vessel means any floating vessel to which the Ports
and Waterways Safety Act, 33 U.S.C. 1221 et seq., applies.
[[Page 34299]]
(6) Mooring barge or spar barge means a barge moored to mooring
devices or secured to the ground by spuds, and to which other barges
may be moored.
(7) Mooring device includes a deadman, anchor, pile or other
reliable holding apparatus.
(8) Navigational structures are the Seabrook Floodgate Complex, the
IHNC Surge Barrier, and the West Closure Complex components of the
Hurricane and Storm Damage Risk Reduction System (HSDRRS).
(9) Person in charge includes any owner, agent, pilot, master,
officer, operator, crewmember, supervisor, 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 or mooring facility subject to the regulations in
this section.
(10) Tier means barges moored interdependently in rows or groups.
(11) Tropical Event means the time period immediately preceding,
during, and immediately following the expected impact of heavy weather
from a tropical cyclone.
(c) Enforcement.
(1) The provisions of paragraph (d) of this section will be
enforced during a tropical event beginning 24 hours in advance of the
predicted closure of the Lake Borne Surge Barrier structure within the
HSDRRS (IHNC & GIWW) in the area defined in paragraph (a)(1).
(2) The provisions of paragraph (d) of this section will be
enforced beginning 24 hours in advance of the predicted closure of the
West Closure Complex within the HSDRRS (Harvey & Algiers Canals) in the
area defined in paragraphs (a) (2)-(4) of this section.
(3) If the Coast Guard receives notice of a closure less than 24
hours before closure, the RNA will be enforced upon the COTP receiving
the notice of predicted closing.
(4) In the event that a particularly dangerous storm is predicted,
the COTP may require all floating vessels to evacuate the RNA beginning
as early as 72 hours before predicted closure of any navigational
structure or upon notice that particularly dangerous storm conditions
are approaching, whichever is less.
(5) The COTP will notify the maritime community of the enforcement
periods for this RNA through Marine Safety Information Bulletins and
Safety Broadcast Notices to Mariners.
(d) Regulations. All floating vessels are prohibited from entering
into or remaining in the RNA during the enforcement period described in
paragraph (c) of this section except as follows:
(1) Floating vessels may remain in the Harvey and Algiers Canals,
provided they are moored sufficiently to prevent a breakaway and meet
the minimum mooring requirements and conditions set forth in paragraphs
(f) and (g) of this section.
(2) Floating vessels may remain in the Michoud Canal at least \1/4\
mile north of the intersection of the Michoud Canal and the GIWW, the
GIWW from MM 15 EHL to MM 10 EHL, provided they are moored sufficiently
to prevent a breakaway and meet the minimum mooring requirements and
conditions set forth in paragraphs (f) and (g) of this section.
(3) During the period that the RNA is not enforced and before
closure of the navigational structures, vessels may transit through the
RNA en route to a destination outside of the RNA given there is
sufficient time to transit prior to the closure of a navigational
structure, or they may transit to a facility within the RNA with which
they have a prearranged agreement.
(4) The COTP may review on a case-by-case basis alternatives to
minimum mooring requirements and conditions set forth in paragraphs (f)
and (g) of this section and may approve a one-time deviation to these
requirements and conditions should they provide an equivalent level of
safety.
(e) Special Requirements for Facilities. In addition to the mooring
and towboat requirements discussed in paragraph (f) and (g) of this
section, Facilities within the area described in paragraph (a) that
have vessels intending to remain within the areas allowed in paragraph
(d)(1) and (2) shall comply with the below documentation and
maintenance requirements in order to obtain the COTP's approval for
their vessel(s) to remain in the closed RNA.
(1) Annual Hurricane Operations Plan: All facilities that have
vessels intending to remain within the areas allowed in paragraph
(d)(1) and (2) of this section shall develop an operations plan. The
operations plan shall be readily available by May 1st of each calendar
year for review by the COTP and the United States Army Corps of
Engineers (USACE). The Annual Hurricane Operations Plan shall include:
(i) A description of the maximum number of vessels the facility
intends to have remaining at any one time during hurricane season.
(ii) A detailed plan for any vessel(s) that are intended to be
sunk/grounded in place when the RNA is enforced if evacuation is not
possible.
(iii) A diagram of the waterfront facility and fleeting area.
(iv) Name, call sign, official number, and operational status of
machinery on board (i.e., engines, generators, fire fighting pumps,
bilge pumps, anchors, mooring machinery, etc.) each standby towboat.
(v) Characteristics for each vessel remaining at the fleeting or
mooring facility, as applicable (length, breadth, draft, air draft,
gross tonnage, hull type, horsepower, single or twin screw);
(vi) Details of mooring arrangements in accordance with mooring
requirements and conditions set forth in paragraphs (g) and (h) of this
section or COTP case-by-case approved deviations;
(vii) Certification by a professional engineer that the mooring
arrangements are able to withstand winds of up to 140 mph, a surge
water level of eleven feet, a current of four mph and a wave height of
three feet within the canal basin in the area defined in paragraph
(a)(1) of this section and a surge water level of eight feet, a current
of four mph, and a wave height of two and a half feet within the canal
basin in the area defined in paragraphs (a)(2)-(4) of this section;
(viii) Name, address and phone number of the owner/operator, and/or
agent of the facility/property.
(ix) 24-hour contact information for qualified individuals
empowered in writing by the owners/operators to make on-site decisions
and authorize expenditures for any required pollution response or
salvage.
(x) Full insurance disclosure to the COTP. Vessels moored to a
facility shall provide insurance information to the facility.
(2) Storm Specific Verification Report: 72 hours prior to predicted
closure of the navigational structures, those facilities which have
vessels that intend to remain within the RNA shall submit a Storm
Specific Verification Report to the COTP New Orleans. The requirements
for this Storm Specific Verification Report are located in the Canal
Hurricane Operations Plan, which is Enclosure Six to the Sector New
Orleans Maritime Hurricane Contingency Port Plan, http://homeport.uscg.mil/nola. The report shall include:
(i) Updated contact information, including names of manned
towboat(s) and individuals remaining on the towboat(s).
(ii) Number of vessels currently moored and mooring configurations
if less than stated in Annual Hurricane Operations Plan.
(iii) If the number of vessels exceeds the amount listed in the
Annual
[[Page 34300]]
Hurricane Operations Plan, describe process and timeframe for
evacuating vessels to bring total number of vessels into alignment with
the Annual Hurricane Operations Plan.
(3) The person in charge of a facility shall inspect each mooring
wire, chain, line and connecting gear between mooring devices and each
wire, line and connecting equipment used to moor each vessel, and each
mooring device. Inspections shall be performed according to the
following timelines and guidance:
(i) Annually between May 1 and June 1 of each calendar year; and
(ii) After vessels are added to, withdrawn from, or moved at a
facility, each mooring wire, line, and connecting equipment of each
barge within each tier affected by that operation; and
(iii) At least weekly between June 1 and November 30; and
(iv) 72 hours prior to predicted closure of the navigation
structures within this RNA; or within 6 hours of the predicted closure,
if the notice of predicted closure is less than 72 hours.
(4) The person who inspects moorings shall take immediate action to
correct any deficiency.
(5) Facility Records: The person in charge of a fleeting or mooring
facility shall maintain, and make available to the COTP, records
containing the following information:
(i) The time of commencement and termination of each inspection.
(ii) The name of each person who makes the inspection.
(iii) The identification of each vessel, barge entering or
departing the fleeting or mooring facility, along with the following
information:
(A) Date and time of entry and departure; and
(B) The names of any hazardous cargo which the vessel is carrying.
(6) The person in charge of a facility shall ensure continuous
visual surveillance of all vessels at the facility.
(7) The person who observes the vessels shall:
(i) Inspect for movements that are unusual for properly secured
vessels; and
(ii) Take immediate action to correct each deficiency.
(f) Mooring Requirements.
(1) No person may secure a vessel to trees or to other vegetation.
(2) No person may allow a vessel to be moored with unraveled or
frayed lines or other defective or worn mooring.
(3) No person may moor barges side to side unless they are secured
to each other from fittings as close to each corner of abutting sides
as practicable.
(4) No person may moor barges end to end unless they are secured to
each other from fittings as close to each corner of abutting ends as
practicable.
(5) A vessel may be moored to mooring devices if both ends of that
vessel are secured to mooring devices.
(6) Barges may be moored in tiers if each shoreward barge is
secured to mooring devices at each end.
(7) A vessel must be secured as near as practicable to each
abutting corner by:
(i) Three parts of wire rope of at least 1\1/4\ inch diameter with
an eye at each end of the rope passed around the timberhead, caval, or
button;
(ii) A mooring of natural or synthetic fiber rope that has at least
the breaking strength of three parts of 1\1/4\ inch diameter wire rope;
or
(iii) Fixed rigging that is at least equivalent to three parts of
1\1/4\ inch diameter wire rope.
(8) The person in charge shall ensure that all mooring devices,
wires, chains, lines and connecting gear are of sufficient strength and
in sufficient number to withstand forces that may be exerted on them by
moored vessels/barges.
(g) Towboat Requirements. The person in charge of a fleeting or
mooring facility must ensure:
(1) Each facility consisting of eight or more vessels that are not
under their own power must be attended by at least one radar-equipped
towboat for every 50 vessels.
(2) Each towboat required must be:
(i) Able to secure any breakaways;
(ii) Capable of safely withdrawing or moving any vessel at the
fleeting or mooring facility;
(iii) Immediately operational;
(iv) Radio-equipped;
(v) No less than 800 horsepower;
(vi) Within 500 yards of the vessels.
(3) The person in charge of each towboat required must maintain a
continuous guard on the frequency specified by current Federal
Communications Commission regulations found in Part 83 of Title 47,
Code of Federal Regulations; a continuous watch on the vessels moored
at facility; and report any breakaway as soon as possible to the COTP
via telephone, radio or other means of rapid communication.
(h) Prearranged agreement for safe haven. Transient vessels will
not be permitted to seek safe haven in the RNA except in accordance
with a prearranged agreement between the vessel and a facility within
the RNA.
(i) Penalties. Failure to comply with this section may result in
civil or criminal penalties pursuant to the Ports and Waterways Safety
Act, 33 U.S.C. 1221 et seq.
Dated: May 1, 2013.
R. A. Nash,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2013-13272 Filed 6-6-13; 8:45 am]
BILLING CODE 9110-04-P