[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Rules and Regulations]
[Pages 32275-32280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13641]



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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, Harvey Canal, Algiers Canal, New Orleans, LA



AGENCY: Coast Guard, DHS.



ACTION: Interim rule with request for comments.



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SUMMARY: The Coast Guard is establishing a regulated navigation area 

(RNA) to prohibit all vessels from being within the Inner Harbor 

Navigation Canal (IHNC), Harvey Canal, and Algiers Canal during severe 

hurricane conditions. Vessels will not be permitted to stay in the RNA 

past 24 hours in advance of and through the storm passage, except those 

vessels moored pursuant to mooring plans approved by the Captain of the 

Port. Alternate routes exist for vessels to transit around or depart 

from the RNA. This RNA is needed to protect the floodwalls, levees, and 

adjacent communities within the IHNC, Harvey, and Algiers Canals from 

potential hazards associated with vessels being in this area during a 

hurricane.



DATES: This interim rule is effective in the CFR on June 8, 2010. This 

rule is effective with actual notice for purposes of enforcement on May 

21, 2010. Comments and related material must be received by the Coast 

Guard on or before July 8, 2010. Requests for public meetings must be 

received by the Coast Guard on or before June 18, 2010.



ADDRESSES: You may submit comments identified by docket number USCG-

2009-0139 using any one of the following methods:

    (1) Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov.

    (2) Fax: 202-493-2251.

    (3) Mail: Docket Management Facility (M-30), U.S. Department of 

Transportation, West Building Ground Floor, Room W12-140, 1200 New 

Jersey Avenue SE., Washington, DC 20590-0001.

    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 

p.m., Monday through Friday, except Federal holidays. The telephone 

number is 202-366-9329.

    To avoid duplication, please use only one of these four methods. 

See the ``Public Participation and Request for Comments'' portion of 

the SUPPLEMENTARY INFORMATION section below for instructions on 

submitting comments.



FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 

rule, call or e-mail Lieutenant Commander (LCDR) Marty Daniels, Coast 

Guard; telephone 504-565-5044, e-mail [email protected]. If 

you have questions on viewing or submitting material to the docket, 

call Renee V. Wright, Program Manager, Docket Operations, telephone 

202-366-9826.



SUPPLEMENTARY INFORMATION:



Public Participation and Request for Comments



    We encourage you to participate in this rulemaking by submitting 

comments and related materials. All comments received will be posted, 

without change, to http:[sol][sol]www.regulations.gov and will include



[[Page 32276]]



any personal information you have provided.



Submitting Comments



    If you submit a comment, please include the docket number for this 

rulemaking (USCG-2009-0139), indicate the specific section of this 

document to which each comment applies, and provide a reason for each 

suggestion or recommendation. You may submit your comments and material 

online (via http:[sol][sol]www.regulations.gov) or by fax, mail, or 

hand delivery, but please use only one of these means. If you submit a 

comment online via www.regulations.gov, it will be considered received 

by the Coast Guard when you successfully transmit the comment. If you 

fax, hand deliver, or mail your comment, it will be considered as 

having been received by the Coast Guard when it is received at the 

Docket Management Facility. We recommend that you include your name and 

a mailing address, an e-mail address, or a telephone number in the body 

of your document so that we can contact you if we have questions 

regarding your submission.

    To submit your comment online, go to 

http:[sol][sol]www.regulations.gov, click on the ``submit a comment'' 

box, which will then become highlighted in blue. In the ``Document 

Type'' drop down menu select ``Proposed Rule'' and insert ``USCG-2009-

0139'' in the ``Keyword'' box. Click ``Search'' then click on the 

balloon shape in the ``Actions'' column. If you submit your comments by 

mail or hand delivery, submit them in an unbound format, no larger than 

8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 

submit comments by mail and would like to know that they reached the 

Facility, please enclose a stamped, self-addressed postcard or 

envelope. We will consider all comments and material received during 

the comment period and may change the rule based on your comments.



Viewing Comments and Documents



    To view comments, as well as documents mentioned in this preamble 

as being available in the docket, go to 

http:[sol][sol]www.regulations.gov, click on the ``read comments'' box, 

which will then become highlighted in blue. In the ``Keyword'' box 

insert ``USCG-2009-0139'' and click ``Search.'' Click the ``Open Docket 

Folder'' in the ``Actions'' column. You may also visit the Docket 

Management Facility in Room W12-140 on the ground floor of the 

Department of Transportation West Building, 1200 New Jersey Avenue, 

SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. We have an agreement with the 

Department of Transportation to use the Docket Management Facility.



Privacy Act



    Anyone can search the electronic form of comments received into any 

of our dockets by the name of the individual submitting the comment (or 

signing the comment, if submitted on behalf of an association, 

business, labor union, etc.). You may review a Privacy Act notice 

regarding our public dockets in the January 17, 2008, issue of the 

Federal Register (73 FR 3316).



Public Meeting



    We do not now plan to hold a public meeting. But you may submit a 

request for one on or before 10 days after date of publication in the 

Federal Register, using one of the four methods specified under 

ADDRESSES. Please explain why you believe a public meeting would be 

beneficial. If we determine that one would aid this rulemaking, we will 

hold one at a time and place announced by a later notice in the Federal 

Register.



Regulatory Information



    On 14 May, 2009 we published a notice of proposed rulemaking (NPRM) 

entitled ``Regulated Navigation Area; Gulf Intracoastal Waterway, Inner 

Harbor Navigation Canal, New Orleans, LA'' in the Federal Register (74 

FR 22722). No public hearings were held. We received 7 comments on the 

proposed rule.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 

exists for making this rule effective less than 30 days after 

publication in the Federal Register. A 30 day delay would be contrary 

to the public interest in avoiding floodwall or levee damage, and 

resulting flooding, in the event of a hurricane or other storm surge. 

The interim rule establishes a regulated navigation area that would be 

enforced only in the relatively infrequent event of such conditions. 

The hurricane season begins on June 1 of each year and a 30 day delay 

would leave the New Orleans area unprotected by this RNA for the first 

portion of the 2010 hurricane season.



Basis and Purpose



    The legal basis for this interim rule is the Coast Guard's 

authority to establish regulated navigation areas under 33 CFR part 165 

and the statutes and delegation cited therein. The purpose of this 

interim rule is to establish an RNA to protect floodwalls and levees in 

the New Orleans area from possible storm surge damage from moored 

barges and vessels, and to avoid damaging flooding in the New Orleans 

area that could result from any resulting damage to floodwalls and 

levees. We request public comments on this interim rule and will amend 

or rescind it if public comments indicate a need to do so. Moreover, we 

intend to reevaluate the need for the RNA established by this interim 

rule, upon completion of the U.S. Army Corps of Engineers Gulf 

Intracoastal Waterway Surge Barrier project and the West Closure 

Complex project, both scheduled for completion by June 1, 2011.

    During Hurricanes Katrina and Gustav, multiple barges and vessels 

were moored next to or nearby floodwalls and levees surrounding the 

City of New Orleans. During Hurricane Gustav, several vessels broke 

free in the Inner Harbor Navigation Canal and nearly damaged the 

Almonaster Street Bridge. If the storm surge had been higher, they 

might have struck and damaged nearby floodwalls, re-creating the 

flooding of New Orleans that followed Katrina. As a result, following 

the 2008 hurricane season, the State of Louisiana requested that the 

Coast Guard prohibit vessels from the IHNC, in New Orleans. Subsequent 

to this request, the Coast Guard determined that certain regions in the 

New Orleans area are at risk of flooding from vessels which might break 

free during a storm and damage floodwalls and levees. This interim rule 

attempts to respond to these perceived risks.



Discussion of Comments and Changes



    We received 7 comments in response to our NPRM. Some of these were 

received late but all late comments were reviewed and considered.

    One commenter expressed three concerns with the NPRM's proposed 

RNA: (1) It could eliminate a safe haven for over 100 barges that 

currently take refuge in the proposed restricted area during hurricane 

conditions; (2) it did not adequately address waivers; and (3) it did 

not address when it would terminate. The commenter also made two 

requests of the Coast Guard: (1) To identify alternate locations for 

vessels to moor during hurricanes to mitigate the risk from barges 

breaking away and causing damage; and (2) to establish a Command Center 

with the U.S. Army Corps of Engineers (USACE) and area stakeholders to 

identify the locking priority of USACE equipment located in the RNA 

before it takes effect.

    There are many other waterways throughout the Eighth District in 

which vessels can travel and moor. The Coast Guard does not feel that a 

specific safe



[[Page 32277]]



haven needs to be identified. The interim rule allows vessels applying 

for a waiver to stay in the RNA pending approval of the waiver by the 

Captain of the Port, New Orleans (COTP).

    With regard to termination of the RNA, the need for the RNA will be 

reevaluated upon completion of the U.S. Army Corps of Engineers' 

(USACE) Gulf Intracoastal Waterway Surge Barrier and West Closure 

Complex projects, which is anticipated by June 1, 2011. Since the 

publication of the NPRM, the USACE equipment located in the RNA has 

been reduced by 75% and the Coast Guard does not feel that a Command 

Center is needed to address this issue any longer. We will continue to 

cooperate with the maritime industry to ensure an efficient locking 

process is in place based on Joint Hurricane Team Protocols.

    One commenter requested that the Algiers Canal be included in the 

RNA due to the potential for flooding of the New Orleans west bank area 

if a breakaway vessel caused a breach of the canal levees. The Coast 

Guard agrees and has added the Algiers Canal, from the Algiers Lock to 

the intersection of the Algiers Canal and the Harvey Canal, in this 

interim rule.

    One commenter suggested that a contingency plan be developed for 

vessels that are prevented from departing the Inner Harbor Navigation 

Canal, due to a bridge or lock malfunction, prior to experiencing 

severe hurricane conditions. The Coast Guard agrees and this interim 

rule provides ways to request a waiver from the COTP if a vessel is 

prevented from departure due to a bridge or lock malfunction.

    One commenter conveyed that the Harvey and Algiers Canals have 

traditionally been safe havens for vessels escaping the weather and 

water fluctuations on the Mississippi River. Concern was also expressed 

for the volume of equipment that would have to be evacuated from the 

Harvey Canal. The Coast Guard understands that the Harvey and Algiers 

Canals have been used as safe havens and considered this when drafting 

this interim rule. The interim rule addresses this concern by allowing 

vessels to stay in the RNA if they have mooring plans approved by the 

COTP. Concerns regarding the evacuation of equipment are largely 

resolved with the reduction of USACE construction equipment by 75% 

since last year. Vessel and equipment congestion transiting through 

these areas will continue to be tempered as time progresses. 

Additionally, some congestion during evacuation will be relieved by the 

interim rule's waiver options; vessels with waivers will not be 

required to depart.

    One commenter was concerned about the lack of tugs and personnel 

available to move equipment, the amount of time it would take to move 

equipment, and the congestion that would result from moving equipment 

out of the RNA. Additionally, the commenter was concerned about the 

inclusion of the Algiers Canal in the RNA due to the protection it 

affords vessels and equipment in the canal, and the vulnerability that 

would be created for the equipment and vessels by requiring evacuation 

of this area. The concerns regarding the equipment have been resolved 

by the 75% reduction in construction traffic in the regulated areas 

throughout the past year, and the Coast Guard believes that there will 

be a significant number of vessels and facilities which could have 

approved mooring plans. Therefore, with the reduced number of vessels 

that would need to be evacuated, the Coast Guard feels that the 

availability of tugs and personnel would be sufficient to move the 

equipment remaining in the RNA in the given amount of time. The Coast 

Guard notes the concern regarding inclusion of the Algiers Canal but 

feels that it needs to be included as a RNA. Concerns regarding the 

congestion that would result from moving equipment out of the RNA are 

reduced with the lower level of construction activity and the 

anticipated number of vessels with approved mooring plans.

    One commenter requested that the Coast Guard conduct outreach 

efforts to provide companies with adequate notice about the rule. The 

commenter also requested that the RNA be implemented as a temporary 

measure to address the possibility of vessel breakaways until the new 

West Closure Complex flood protection system is constructed just west 

of the RNA. The concern regarding outreach has been addressed; the 

Coast Guard has and will continue to conduct outreach efforts to 

provide adequate notice for this rule. With the publication of this 

interim rule, the public has a second opportunity to provide comments 

on the RNA. The Coast Guard agrees with the reevaluation of the need 

for the RNA upon the completion of the West Closure Complex. This 

interim rule will be reevaluated upon completion of the USACE Gulf 

Intracoastal Waterway Surge Barrier project and the West Closure 

Complex project, both scheduled for completion by June 1, 2011.

    Jefferson Parish officials called a public meeting to learn more 

about the issues after some of their constituents received COTP orders 

informing them that they were not able to remain in their current 

location in the event of a hurricane during the 2009 season. Vessel and 

facility operators were ordered to immediately remove vessels and any 

other objects that might break free and cause damage, in anticipation 

of the imminent arrival of a hurricane. The COTP issued these orders as 

a result of previous events that occurred during the landfall of 

Hurricane Gustav, which made it clear to the COTP that preemptive 

measures must be taken to prevent damage to or destruction of bridges, 

floodwalls, and other structures on, in, or adjacent to the navigable 

waters on the IHNC. The COTP attended this meeting on August 13, 2009. 

A synopsis of this meeting can be found on the public docket. Based on 

comments received from the public at the meeting, we included in this 

interim rule the opportunity for vessels to request waivers to remain 

in the RNA.



Discussion of Rule



    Under the interim rule, all vessels are prohibited from being 

within the Inner Harbor Navigation Canal, Harvey Canal, and Algiers 

Canal during severe hurricane conditions. Those conditions include:

    (1) Predicted winds of 74 miles per hour (mph) or more and/or a 

predicted storm surge of 8 feet or more for the Inner Harbor Navigation 

Canal;

    (2) Predicted winds of 111 mph or more and/or a predicted storm 

surge of 10.5 feet or more for the Harvey and Algiers Canals through 

post storm landfall, or other hurricane or tropical storm conditions as 

determined by the Captain of the Port; or

    (3) Other hurricane or tropical storm conditions expected to 

inflict significant damage to low lying and vulnerable shoreline areas, 

as determined by the COTP through National Weather Service/Hurricane 

Center weather predictions.

    The affected areas include:

    (1) The Inner Harbor Navigation Canal from Mile Marker 22 (West of 

Chef Menteur Pass) on the Gulf Intracoastal Waterway, west through the 

Gulf Intracoastal Waterway and the Inner Harbor Navigation Canal, out 

to Lake Ponchartrain and to the Mississippi River in New Orleans, LA;

    (2) The Harvey Canal, between the Lapalco Boulevard Bridge and the 

intersection of the Harvey Canal and the Algiers Canal; and

    (3) The Algiers Canal, from the Algiers Lock to the intersection of 

the Algiers Canal and the Harvey Canal.

    Vessels will not be permitted to stay in these areas past 24 hours 

in advance of and through the storm passage,



[[Page 32278]]



except with a mooring plan approved by the Captain of the Port. In the 

event that a particularly dangerous storm is predicted to have winds 

and/or storm surge which significantly exceeds the conditions outlined 

above, the Captain of the Port could implement the provisions of this 

regulated navigation area 72 hours in advance of the above stated 

conditions.

    The surge levels of concern were determined to be at 8 feet for the 

IHNC and 10.5 feet for the Algiers and Harvey Canals respectively 

through collaboration between the U.S. Coast Guard, the National 

Weather Service (NWS), the National Oceanic and Atmospheric 

Administration (NOAA), and the U.S. Army Corps of Engineers (USACE). 

Currently, in the Harvey and Algiers Canals, a surge of 10.5 feet is 

required for vessels to reach and cause damage to floodwalls and 

levees. A surge of 8 feet is required to overtop portions of the Gulf 

Intracoastal Waterway floodgate, which will be protecting the IHNC from 

storm surge beginning in May 2010.

    The need for the RNA will be reevaluated upon completion of the 

U.S. Army Corps of Engineers' Gulf Intracoastal Waterway Surge Barrier 

project and the West Closure Complex. Both are scheduled to be 

completed by June 1, 2011. The surge barriers are designed to reduce 

the risk of storm damage to some of the area's most vulnerable areas--

New Orleans East, metro New Orleans, the 9th Ward, St. Bernard Parish, 

Gretna, and Algiers. These projects aim to protect these areas from 

storm surge coming from the Gulf of Mexico via adjacent bodies of 

water. This interim rule provides the necessary measures to protect the 

port infrastructure until these projects are completed. We intend to 

reevaluate these measures at that time. Under the interim rule, the 

COTP could impose measures, such as requirements for additional standby 

vessels, in addition to the barge mooring regulations in 33 CFR 

165.803. Transient vessels (such as vessels from Houma, Fourchon, 

Lafitte, etc.) will only be permitted to seek safe haven in these areas 

during a hurricane if they have a prearranged agreement with a facility 

in the RNA, or a COTP-approved waiver for sheltering in place.

    Alternate routes exist for vessels to transit around or depart from 

the areas affected by this interim rule.

    We do not anticipate that this interim rule would need to be 

enforced very often. Historically, it would have been implemented only 

three times over the past five year period: For Hurricanes Cindy, 

Katrina, and Gustav.



Regulatory Analyses



    We developed this interim rule after considering numerous statutes 

and executive orders related to rulemaking. Below we summarize our 

analyses based on 13 of these statutes or executive orders.



Regulatory Planning and Review



    This rule is not a significant regulatory action under section 3(f) 

of Executive Order 12866, Regulatory Planning and Review. This interim 

rule intends to regulate only during specified time periods and based 

on comments received and addressed and anticipated approved mooring 

plans, this interim rule will not reach the level of a significant 

regulatory action, requiring no assessment of potential costs and 

benefits under section 6(a)(3) of the Executive Order. The Office of 

Management and Budget has not reviewed it under that Order.



Small Entities



    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 

considered whether this interim rule would have a significant economic 

impact on a substantial number of small entities. The term ``small 

entities'' comprises small businesses, not-for-profit organizations 

that are independently owned and operated and are not dominant in their 

fields, and governmental jurisdictions with populations of less than 

50,000.

    The Coast Guard certifies under 5 U.S.C. 605(b) that this interim 

rule would not have a significant economic impact on a substantial 

number of small entities. This interim rule would affect the following 

entities, some of which might be small entities: The owners or 

operators of vessels intending to transit or anchor in the defined area 

effective in advance implementation of the measures of this interim 

rule. Small entities have the option of sheltering in place during 

tropical cyclone activity by submitting, and having approved, a mooring 

plan that explains how the small entity intends to ensure safe 

conditions on the navigable waterways during a hurricane. In addition, 

alternate routes for vessel traffic exist for transit around or 

departure from the area before the Regulated Navigation Area goes into 

effect.

    If you think that your business, organization, or governmental 

jurisdiction qualifies as a small entity and that this interim 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.



Collection of Information



    This interim rule would call for no new collection of information 

under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).



Federalism



    A rule has implications for federalism under Executive Order 13132, 

Federalism, if it has a substantial direct effect on State or local 

governments and would either preempt State law or impose a substantial 

direct cost of compliance on them. We have analyzed this interim rule 

under that Order and have determined that it does not have implications 

for federalism.



Unfunded Mandates Reform Act



    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 

requires Federal agencies to assess the effects of their discretionary 

regulatory actions. In particular, the Act addresses actions that may 

result in the expenditure by a State, local, or tribal government, in 

the aggregate, or by the private sector of $100,000,000 or more in any 

one year. Though this interim rule would not result in such an 

expenditure, we do discuss the effects of this rule elsewhere in this 

preamble.



Taking of Private Property



    This interim 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.



Civil Justice Reform



    This interim rule meets applicable standards in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 

litigation, eliminate ambiguity, and reduce burden.



Protection of Children



    We have analyzed this interim rule under Executive Order 13045, 

Protection of Children from Environmental Health Risks and Safety 

Risks. This interim rule is not an economically significant rule and 

would not create an environmental risk to health or risk to safety that 

might disproportionately affect children.



Indian Tribal Governments



    This interim 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



[[Page 32279]]



Federal Government and Indian tribes, or on the distribution of power 

and responsibilities between the Federal Government and Indian tribes.



Energy Effects



    We have analyzed this interim rule under Executive Order 13211, 

Actions Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use. We have determined that it is not a ``significant 

energy action'' under that order because it is not a ``significant 

regulatory action'' under Executive Order 12866 and is not likely to 

have a significant adverse effect on the supply, distribution, or use 

of energy. The Administrator of the Office of Information and 

Regulatory Affairs has not designated it as a significant energy 

action. Therefore, it does not require a Statement of Energy Effects 

under Executive Order 13211.



Technical Standards



    The National Technology Transfer and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use voluntary consensus standards 

in their regulatory activities unless the agency provides Congress, 

through the Office of Management and Budget, with an explanation of why 

using these standards would be inconsistent with applicable law or 

otherwise impractical. Voluntary consensus standards are technical 

standards (e.g., specifications of materials, performance, design, or 

operation; test methods; sampling procedures; and related management 

systems practices) that are developed or adopted by voluntary consensus 

standards bodies.

    This interim rule does not use technical standards. Therefore, we 

did not consider the use of voluntary consensus standards.



Environment



    We have analyzed this interim rule under Department of Homeland 

Security Management Directive 023-01 and Commandant Instruction 

M16475.lD, which guide the Coast Guard in complying with the National 

Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 

have concluded this action is one of a category of actions that do not 

individually or cumulatively have a significant effect on the human 

environment. This interim rule involves establishing a regulated 

navigation area in the Inner Harbor Navigation Canal (IHNC), Harvey 

Canal and Algiers Canal which is categorically excluded under figure 2-

1, paragraph (34)(g) of the Instruction. An environmental analysis 

checklist supporting this determination is 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 interim rule.



List of Subjects in 33 CFR Part 165



    Harbors, Marine safety, Navigation (water), Reporting and 

recordkeeping requirements, Security measures, Waterways.



0

For the reasons discussed in the preamble, the Coast Guard amends 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. 1226, 46 U.S.C. Chapter 701, 3306, 3703, 50 

U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L. 

107-295, 116 Stat. 2064; Department of Homeland Security Delegation 

No. 0170.1.





0

2. Add Sec.  165.838 to read as follows:





Sec.  165.838  Regulated Navigation Area; New Orleans Area of 

Responsibility, New Orleans, LA



    (a) Regulated Navigation Area. The following is a regulated 

navigation area (RNA):

    (1) The Inner Harbor Navigation Canal (IHNC) from Mile Marker 22 

(west of Chef Menteur Pass) on the Gulf Intracoastal Waterway, west 

through the Gulf Intracoastal Waterway and the Inner Harbor Navigation 

Canal, out to Lake Ponchartrain and to the Mississippi River in New 

Orleans, LA;

    (2) The Harvey Canal, between the Lapalco Boulevard Bridge and the 

intersection of the Harvey Canal and the Algiers Canal of the 

Intracoastal Waterway; and

    (3) The Algiers Canal, from the Algiers Lock to the intersection of 

the Algiers Canal and the Harvey Canal.

    (b) Definitions. As used in this section:

    COTP means the Captain of the Port, New Orleans; and

    Floating vessel means any floating vessel to which the Ports and 

Waterways Safety Act, 33 U.S.C. 1221 et seq., applies.

    (c) Enforcement. (1) The provisions of this paragraph (c) will be 

enforced only 24 hours in advance of, and during the duration of, any 

of the following predicted weather conditions:

    (i) Predicted winds of 74 miles per hour (mph) or more or a 

predicted storm surge of 8 feet or more for the Inner Harbor Navigation 

Canal;

    (ii) Predicted winds of 111 mph or more and/or a predicted storm 

surge of 10.5 feet or more for the Harvey or Algiers Canals through 

post storm landfall, or other hurricane or tropical storm conditions as 

determined by the COTP; or

    (iii) Other hurricane or tropical storm conditions expected to 

inflict significant damage to low lying and vulnerable shoreline areas, 

as determined by the COTP through National Weather Service/Hurricane 

Center weather predictions.

    (2) In the event that a particularly dangerous storm is predicted 

to have winds or storm surge significantly exceeding the conditions 

specified in paragraphs (c)(1)(i) through (c)(1)(iii) of this section, 

the COTP may begin enforcement 72 hours in advance of the predicted 

conditions.

    (3) During enforcement:

    (i) All floating vessels are prohibited from entering or remaining 

in the RNA except pending approval of a waiver request made in 

accordance with paragraph (d) of this section or as authorized by a 

waiver approved by the COTP in accordance with paragraph (d);

    (ii) 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, or as authorized by a waiver 

approved by the COTP in accordance with paragraph (d) of this section.

    (4) The COTP will announce enforcement periods through Marine 

Safety Information Bulletins and Safety Broadcast Notices to Mariners.

    (d) Waivers. (1) Upon request of the vessel owner or operator, the 

COTP may waive any provision of paragraph (c) of this section, if the 

COTP finds that the vessel's proposed operation can be conducted safely 

under the terms of that waiver.

    (2) A request for waiver must be in writing, except as provided by 

paragraph (d)(3) of this section, and must describe or provide:

    (i) The reason for requesting the waiver;

    (ii) The vessel's current operations;

    (iii) The name of any intended mooring facility, the specific 

mooring location within that facility, and a list of vessels routinely 

engaged in business at that facility;

    (iv) The vessel's proposed operation during the RNA enforcement 

period, including intended mooring arrangements that comply with 33 CFR 

165.803 and the mooring facility's equipment for supporting those 

arrangements; and

    (v) Contact information for the vessel owner or operator during the 

RNA enforcement period.



[[Page 32280]]



    (3) Under unusual circumstances due to time constraints, such as 

the malfunction of a bridge or lock within the RNA, the person in 

charge of a vessel may orally request an immediate waiver from the 

COTP, but the vessel owner or operator must send written confirmation 

of the request, containing the information required by paragraph (d)(2) 

of this section, to the COTP within five days of the oral request.

    (4) The COTP may condition approval of a waiver request on the 

vessel owner's or operator's taking measures additional to those 

proposed in the waiver request, and may terminate a waiver at any time, 

if the COTP deems it necessary to provide safety.

    (e) 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.

    (f) Notice of enforcement. The COTP will notify the maritime 

community of periods during which this regulated navigation area will 

be enforced by providing advance notice through a Marine Safety 

Information Bulletin and Safety Broadcast Notice to Mariners.



    Dated: May 24, 2010.

J.E. Tunstall,

Captain, U.S. Coast Guard, Commander, Eighth Coast Guard District, 

Acting.

[FR Doc. 2010-13641 Filed 6-7-10; 8:45 am]

BILLING CODE 9110-04-P