Coast Guard, DHS.
Supplemental notice of proposed rulemaking and notice of public meeting.
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.
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.
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., Start Printed Page 34294Monday 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.
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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 Brandon.J.Sullivan@uscg.mil. If you have questions on viewing or submitting material to the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone (202) 366-9826.
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Start Supplemental 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 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.
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 Start Printed Page 34295Guard 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 Start Printed Page 34296as 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 Start Printed Page 34297meet 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 11/4 inch diameter, and natural or synthetic rope must have at least the breaking strength of three parts of 11/4 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.Start Printed Page 34298
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.
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.
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End List of Subjects
- Marine safety
- Navigation (water)
- Reporting and recordkeeping requirements
- Security measures
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
Start Amendment Part
1. The authority citation for part 165 continues as follows: End Amendment Part
PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
Start Amendment Part
2. Revise § 165.838 to read as follows: End Amendment Part
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.Start Printed 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.
(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 Start Printed Page 34300Hurricane 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 11/4 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 11/4 inch diameter wire rope; or
(iii) Fixed rigging that is at least equivalent to three parts of 11/4 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;
(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.
End Supplemental Information
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