[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