[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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