
[Federal Register: June 8, 2010 (Volume 75, Number 109)]
[Rules and Regulations]               
[Page 32275-32280]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn10-15]                         

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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 William.M.Daniels@uscg.mil. 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

