[Federal Register Volume 75, Number 208 (Thursday, October 28, 2010)]
[Rules and Regulations]
[Pages 66309-66315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27235]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 161 and 165

[Docket No. USCG-1998-4399]
RIN 1625-AA58


Vessel Traffic Service Lower Mississippi River

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a Vessel Traffic Service (VTS) 
on the Lower Mississippi River and is transferring certain vessel 
traffic management (VTM) provisions of the Mississippi River, 
Louisiana--Regulated Navigation Area to the VTS. This final rule 
establishes a mandatory participation VTS by implementing current 
voluntary practices and operating procedures. This rule facilitates 
vessel transits, enhances good order, promotes safe navigation, and 
improves existing waterway operating measures. The rule also proposes 
minor conforming revisions to the existing VTM provisions and related 
regulations.

DATES: This final rule is effective December 27, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-1998-4399 and are available for inspection or 
copying at the 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, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-1998-4399 in the ``Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Lieutenant Commander Jim Larson, Office of Shore Forces 
(CG-7413), Coast Guard; telephone 202-372-1554, e-mail 
<a href="/cdn-cgi/l/email-protection#83c9e2eee6f0add4adcfe2f1f0ecedc3f6f0e0e4adeeeaef"><span class="__cf_email__" data-cfemail="d09ab1bdb5a3fe87fe9cb1a2a3bfbe90a5a3b3b7febdb9bc">[email protected]</span></a>. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
    A. Vessel Traffic Services
    B. Stakeholder Involvement
V. Discussion of Comments and Changes
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

AIS Automatic Identification System
DHS Department of Homeland Security
LMR Lower Mississippi River
LMRWSAC Lower Mississippi River Waterways Safety Advisory Committee
NDG National Dialogue Group
NPRM Notice of Proposed Rulemaking
PAWSS Port and Waterways Safety Systems
PWSA Ports and Waterways Safety Act
PWSSC Ports and Waterways Safety Systems Committee
SNPRM Supplemental Notice of Proposed Rulemaking
VTC Vessel Traffic Center
VTM Vessel Traffic Management
VTS Vessel Traffic Service

II. Regulatory History

    On April 26, 2000, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled ``Vessel Traffic Service Lower Mississippi 
River'' (65 FR 24516) and requested comments during a 90-day comment 
period. Due to several requests for additional time to comment, on 
August 18, 2000, the Coast Guard published a notice (65 FR 50479) 
reopening the comment period until December 1, 2000. The Coast Guard 
received 23 letters containing three comments in response to the NPRM.
    On September 20, 2000, the Coast Guard published a notice of public 
meeting (65 FR 56843) announcing the time and place of a public 
meeting. On October 24, 2000, the Coast Guard held the meeting in New 
Orleans, LA, to receive comments on the proposed rule. Twenty-four 
people attended the meeting and two people spoke.
    On November 12, 2009, the Coast Guard published a supplemental 
notice of proposed rulemaking (SNPRM) entitled ``Vessel Traffic Service 
Lower Mississippi River'' (74 FR 58223). The SNPRM addressed important 
changes to maritime operations that have taken

[[Page 66310]]

place since the NPRM was published,\1\ specifically: (1) The Coast 
Guard has installed and operationally tested a computer based Vessel 
Traffic Management (VTM) system that utilizes Automatic Identification 
System (AIS), closed circuit television cameras (CCTV), radar, and VHF 
radio communications to monitor and advise vessel traffic on the Lower 
Mississippi River (LMR), (2) the Vessel Traffic Service (VTS) Center is 
now fully staffed by trained and certified Coast Guard civilian 
employees augmented by two onsite Pilot Advisors, (3) remote traffic 
control light tower operations have been transitioned to the VTS 
Center, (4) AIS is now fully integrated with the Coast Guard traffic 
management systems throughout the United States,\2\ and (5) the Coast 
Guard established a voluntary participation VTS in LMR.\3\ In the 
SNPRM, we also addressed the comments received on the NPRM.
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    \1\ For a more complete discussion of the reasons the Coast 
Guard published an SNPRM see 74 FR 58223.
    \2\ For a more complete discussion of AIS Carriage Requirement 
see the Coast Guard ``Automatic Identification System; Vessel 
Carriage Requirement'' final rule published on October 22, 2003, 68 
FR 60559.
    \3\ The Coast Guard established a voluntary participation VTS in 
the LMR in 2004 that has been continuously operated since that time.
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    We received one letter containing two comments in response to the 
SNPRM, which are discussed later in this preamble.

III. Basis and Purpose

    This final rule is issued, pursuant to the Ports and Waterways 
Safety Act (PWSA), as amended, (codified at 33 U.S.C. 1221 et seq.), to 
establish VTSs in the United States. Title I of the PWSA authorizes the 
Secretary to promulgate regulations to establish and maintain VTSs 
consisting of measures for controlling or supervising vessel traffic to 
protect the marine environment. 33 U.S.C. 1223, 1231.
    The Coast Guard operates 12 VTSs in the United States. A VTS 
provides navigation and safety information that enables mariners to 
make informed decisions during their voyage. In the past, the Coast 
Guard operated variations of a VTS in the New Orleans area. 
Unfortunately, these efforts were hindered by budget constraints, the 
limitations of voluntary participation, and the temporary or part-time 
nature of the VTS operation; none of these proved to be a permanent or 
complete solution to the challenges of navigating the LMR.
    This rule establishes mandatory participation for certain classes 
of vessels in the VTS LMR area. It amends vessel traffic measures 
within the Mississippi River Regulated Navigation Area and formalizes 
the existing, voluntary VTS on the LMR. Additionally, this rule updates 
certain operating practices, adopts standard traffic management 
procedures, and informs mariners of certain services provided by VTS 
LMR.

IV. Background

A. Vessel Traffic Services

    Since disestablishment of the VTS in New Orleans in the 1980s, the 
Coast Guard, as directed by the Oil Pollution Act of 1990 (OPA 90, Pub. 
L. 101-380), has:
    (1) Validated the need for VTSs in certain ports;
    (2) Made participation mandatory in all VTS ports established in 
the National VTS regulations; and
    (3) Invested in infrastructure improvement to VTS equipment and 
standardized operating procedures across all United States VTSs.
    In 1997, the Coast Guard established the Ports and Waterways Safety 
System (PAWSS) acquisition project to address waterway users' needs and 
place a greater emphasis on partnerships with industry to reduce risk 
in the marine environment. As part of PAWSS, the Coast Guard 
immediately convened a National Dialogue Group (NDG) comprised of 
maritime and waterway community stakeholders to identify the needs of 
waterway users with respect to VTM and VTS systems. The Coast Guard 
sponsored these discussions, which were hosted by the Committee on 
Maritime Advanced Information Systems under the auspices of the Marine 
Board of the National Research Council. Those stakeholders, 
representing all major sectors of the U.S. and foreign-flagged maritime 
industry, port authorities, pilots, the environmental community, and 
the Coast Guard, were tasked to: (1) Identify the information needs of 
waterway users to ensure safe passage; (2) assist in establishing a 
process to identify candidate waterways for VTM improvements and VTS 
installations; and (3) identify the basic elements of a VTS. The goal 
of the NDG was to provide a foundation for the development of an 
approach to VTM that would meet the shared government, industry, and 
public objective of ensuring the safety of vessel traffic in U.S. ports 
and waterways in a technologically sound and cost effective way.
    A federally operated and locally adopted VTM facility has been in 
place in New Orleans Harbor since the 1930s. In an effort to assist the 
mariner, safeguard the port, ensure good order, and improve safety, the 
local maritime community implemented the Algiers Point Control Lights. 
This system evolved from local river pilots standing watch using 
lanterns and whistle signals to a 24-hour, federally staffed 
communication station with twin control light towers at Governor 
Nicholls Street Wharf and Gretna Lights. Although not formally 
recognized as a VTS, the Algiers Point Control Lights have provided 
longstanding traffic management services.
    Vessel movement in the vicinity of Algiers Point/Crescent area is 
currently subject to regulatory provisions established in 33 CFR 
165.810(c). The primary objective of the existing regulatory system in 
33 CFR 165.810(c) is to provide an orderly traffic flow around Algiers 
Point.
    Algiers Point is one of the most challenging bends to safely 
navigate on the Mississippi River, particularly in high water 
conditions. In one of the busiest industrial harbors in the world, 
vessels must negotiate a 120-degree bend in the river amidst constantly 
changing hydrographic conditions, congested waters, and various bridges 
and piers. Mandatory vessel traffic measures, represented by the light 
signals, are utilized to lessen the potential for mishap during periods 
of high water. The consequences of improper navigation in this segment 
of the river are both significant and well-documented. Since 1991, 
there have been multiple reportable marine casualties within the area 
covered by this rulemaking. The failure to safely transit this area can 
quickly lead to a mishap that causes substantial property damage, 
serious environmental and economic consequences, and even loss of life.
    The existing Control Light operation in and around Algiers Point 
has proven valuable in some measures of VTM; however, these measures 
are narrow in scope, limited to a small area, and only operated during 
periods of high water. The limited scope of the facility has caused 
further problems at times: Equipment, staffing, and location 
limitations have sometimes hindered the light operator's ability to 
ensure the overall safety and efficiency of anticipated vessel traffic 
beyond the immediate vicinity of Algiers Point.
    The Coast Guard and local mariners recognize that this segment of 
the waterway warrants great vigilance. The nature of vessel traffic 
within this area and the anticipated increase in traffic requires that 
certain vessel traffic measures are active at all times or at

[[Page 66311]]

least available at a moment's notice. The availability of these 
measures can best be assured by operating a Vessel Traffic Center (VTC) 
for Algiers Point within the framework of a VTS. A VTC is a shoreside 
facility from which the VTS operates and has the communications 
capability to interact with marine traffic and respond to developing 
situations.
    Through implementation of a continuously-operating VTC at Algiers 
Point within the framework of the mandatory LMR VTS being created by 
this rule, the Coast Guard seeks to overcome the limited scope of the 
existing Control Light operation and use the enhanced system 
capabilities of the mandatory LMR VTS to improve navigation safety on 
and around both Algiers Point and the entire LMR.
    The procedures and practices in this rule concerning Algiers Point 
VTC are essentially the same as those currently used in the Algiers 
Point. This final rule simply moves the Algiers Point provisions from 
current 33 CFR 165.810(c) to new 33 CFR 161.65(c) to integrate the 
Algiers Point VTC into the VTS LMR and to consolidate all VTS LMR 
regulations under one section.

B. Stakeholder Involvement

    The Coast Guard recognizes that a VTS on the LMR is a valuable 
asset to all stakeholders that may be impacted by what happens on or 
near the waterway either directly or indirectly. In addition, many of 
the stakeholders who regularly utilize the waterway have advised us 
that to achieve success, the VTS must meet the needs of the waterway 
users while imposing the least burden.
    In 1997, the Coast Guard formed the Ports and Waterways Safety 
Systems Committee (PWSSC). The Coast Guard created this ad-hoc 
committee, a subcommittee under the Lower Mississippi River Waterway 
Safety Advisory Committee (LMRWSAC), of maritime, port community, 
government, and public stakeholders to define user requirements for a 
VTS that would accomplish the overall goals of safety and efficiency 
for the entire LMR. Since its formation, the PWSSC met several times, 
and the product of these meetings was a conceptual baseline VTS plan 
(see document USCG-1998-4399-0003 at http://www.regulations.gov) 
endorsed by the LMRWSAC. Key recommendations of this plan involved the 
need to implement AIS technology and to incorporate AIS as a key 
component of any VTS implementation. The currently operating, voluntary 
participation VTS on the LMR, established in 2004, incorporated full 
use of AIS technology.

V. Discussion of Comments and Changes

    We received one response containing two comments and a request for 
a public meeting in response during the SNPRM comment period that ended 
on January 11, 2010. The Coast Guard determined that no significant 
issues were raised in the request which would have justified holding 
such a meeting and none was held.
    The first comment recommended against the modeling of VTS LMR after 
VTS operations in Morgan City, Louisiana, and in Houston-Galveston, 
Texas, stating that those ``VTS zones do not adequately fit the unique 
operating conditions of the LMR. The Coast Guard agrees in part. 
Although the VTM system used at VTS LMR is similar to the systems used 
in both Morgan City and Houston-Galveston, and some VTS operations are 
standardized through all Coast Guard VTS Centers, the operations of VTS 
LMR have been tailored to the unique nature of the Mississippi River, 
including the unique operating requirements at Algiers Point, as 
evidenced by the presence of Pilot advisors in the VTC and the special 
operating requirements being imposed at Algiers Point.
    The second comment requested that a working group be established 
under the auspices of the LMRWSAC to address future changes to the VTS 
system. The Coast Guard agrees that port stakeholders should be 
involved in any major changes to VTS operations. To the extent that a 
future change to VTS operations would require a change to the governing 
regulations such a regulation change would require a rulemaking. As 
part of the rulemaking process the public and port stakeholders would 
have ample opportunity to participate. Further, and the Coast Guard 
intends to continue to consult with the State of Louisiana, the 
affected state and federal pilot's associations, vessel operators, 
users, and all other affected stakeholders on VTS operations. However, 
at this time the Coast Guard is not planning any significant changes to 
VTS operations on the LMR and therefore does not see the need to 
establish a separate working group. The Coast Guard encourages 
stakeholders to provide feedback on VTS operations by contacting VTS 
LMR.
    No changes to the rule text have been made in response to these 
comments. The text of the final rule is the same as the text proposed 
in the SNPRM. For a complete discussion of the rule, please see the 
discussion included in the SNPRM at 74 FR 58227.

VI. Regulatory Analyses

    We developed this 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.

A. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    Comments on the proposed rule are summarized in the Discussion of 
Comments and Changes section of this preamble. The Coast Guard received 
no comments that altered our assessment of impacts in the SNPRM. We 
have found no additional data or information that changed our findings 
in the SNPRM. We have adopted the assessment in the SNPRM for this rule 
as final. Since vessels presently follow the rules outlined in this 
final rule, the Coast Guard believes that this final rule will only 
have a minimal economic impact.
    This final rule will establish a VTS on the LMR and transfer 
certain VTM provisions of the Mississippi River, Louisiana--Regulated 
Navigation Area to the VTS. The rule will implement current practices 
and procedures appropriate to an AIS-based VTS.
    Based on data from the Coast Guard Marine Information for Safety 
and Law Enforcement database, we estimate the rule will affect 1,796 
U.S.-flagged vessels with hailing ports from mile 242.4 Above Head of 
Passes, which is near Baton Rouge, to the territorial sea boundary, and 
an estimated 2,294 foreign-flagged vessels.
    The requirements for compliance with this rule include:
    <bullet> Certain classes of commercial vessels will be required to 
carry functioning AIS equipment and to employ the AIS equipment while 
operating within the VTS.
    <bullet> Commercial vessels not required to carry AIS equipment 
will be required to follow established reporting procedures via 
radiotelephone when operating within the VTS area.
    <bullet> The Coast Guard will maintain an operational VTC to 
monitor and direct traffic within the VTS.
    In 2003, the Coast Guard published a final rule that harmonized the 
AIS carriage and standardization requirements contained in the Maritime 
Transportation Security Act of 2002

[[Page 66312]]

with the requirements of the International Convention for the Safety of 
Life at Sea (SOLAS), that established AIS carriage requirements for 
commercial vessels (33 CFR part 164). Because of this prior regulation, 
all U.S.-flagged commercial vessels that are required to carry AIS 
equipment for operation in the VTS under this rule have been in 
compliance since 2004. Similarly, foreign-flagged vessels have been 
required to carry AIS equipment under the SOLAS Convention since 2004. 
A list of the categories of commercial vessels and the dates of 
compliance for AIS carriage are shown in Table 1.
    While this rule will establish a mandatory participation VTS, its 
principal effect will be to codify current practices. The AIS carriage 
requirements of this rule have been implemented through prior 
regulations and we expect that there will not be additional costs to 
either industry or government resulting from this rule.

         Table 1--Commercial Vessels: AIS Carriage Requirements
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                                AIS currently
       Class of vessel             required          Compliance date
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Self-propelled vessels 65      Yes............  December 31, 2004.
 feet or more in length in
 commercial service and on an
 international voyage
 (excludes passenger and
 fishing vessels).
Passenger vessels of 150       Yes............  July 1, 2003.
 gross tons or more on an
 international voyage.
Tankers on international       Yes............  July 1, 2003.
 voyages, regardless of
 tonnage.
Vessels of 50,000 gross tons   Yes............  July 1, 2004.
 or more, other than tankers
 or passenger ships, on
 international voyages.
Vessels of 300 gross tons or   Yes............  December 31, 2004.
 more but less than 50,000
 gross tons, other than
 tankers or passenger ships.
Self-propelled vessels of 65   Yes, when        December 31, 2004.
 feet or more in length in      operating in a
 commercial service (excludes   VTS or Vessel
 fishing vessels and            Movement
 passenger vessels              Reporting
 certificated to carry less     System (VMRS).
 than 151 passengers for
 hire).
Towing vessels 26 feet or      Yes, when        December 31, 2004.
 more in length and more than   operating in a
 600 horsepower in commercial   VTS or VMRS.
 service.
Passenger vessels              Yes, when        December 31, 2004.
 certificated to carry more     operating in a
 than 150 passengers for hire.  VTS or VMRS.
Fishing vessels..............  No.............  ........................
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    Commercial vessels that are not required to carry AIS equipment 
must maintain radiotelephone communication with the VTC while 
traversing the VTS. These requirements have been in place since July 
1982, when the Coast Guard established specific radiotelephone 
frequencies and reporting procedures for vessels operating in the 
Mississippi River, LA-Regulated Navigation Area.
    The Coast Guard has operated a VTC from a shoreside facility in 
downtown New Orleans since late 1999. This VTC provides the core 
communications and monitoring functions for the VTS.
    The procedures and practices of this rule are the same as those 
currently in use at the Algiers Point/Crescent area of the VTS. 
Currently, commercial vessel movements in the VTS traverse the Algiers 
Point/Crescent area and current compliance with the rules of this area 
fulfills the requirements of the larger VTS.
    As with the costs of the rule, the benefits were also realized 
through vessel compliance with the prior regulations that established 
AIS and radiotelephone carriage requirements and the VTC operations 
center. The principal benefit of changing VTS participation from 
voluntary to mandatory is to codify current practices that increase the 
efficiency of vessel operations on the LMR by consolidating and 
standardizing vessel operating procedures.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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.
    In the NPRM, the Coast Guard certified under 5 U.S.C. 605(b) that 
the proposed rule would not have a significant economic impact on a 
substantial number of small entities. We received no comments on this 
certification and have made no changes that would alter our assessment 
of the impacts in the NPRM.
    Vessels are presently following the procedures outlined in this 
final rule, thus the adoption of these rules would not have a 
significant economic impact on a substantial number of small entities.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this final rule will not have a significant economic impact on a 
substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking.
    If the rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult with: Lieutenant 
Commander Jim Larson, Office of Shore Forces (CG-7413), Coast Guard; 
telephone 202-372-1554, e-mail <a href="/cdn-cgi/l/email-protection#246e454941570a730a684556574b4a64515747430a494d48"><span class="__cf_email__" data-cfemail="8fc5eee2eafca1d8a1c3eefdfce0e1cffafcece8a1e2e6e3">[email protected]</span></a>.
    The Coast Guard will not retaliate against small entities that 
question or complain about this rule or any policy or action of the 
Coast Guard. Small businesses may send comments on the actions of 
Federal employees who enforce, or otherwise determine compliance with, 
Federal regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

[[Page 66313]]

E. 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 proposed rule under that Order and have 
determined that it has implications for federalism. A summary of the 
impact of federalism in this rule follows.
    Title I of the Ports and Waterways Safety Act (PWSA) (33 U.S.C. 
1221 et seq.) authorizes the Secretary to issue regulations to 
establish and maintain vessel traffic services consisting of measures 
for controlling or supervising vessel traffic to protect the marine 
environment. In enacting PWSA in 1972, Congress found that advance 
planning and consultation with the affected States and other 
stakeholders was necessary to develop and implement a VTS. The Coast 
Guard, throughout the development of the VTS on the Lower Mississippi 
River, has consulted with the State of Louisiana, the affected State 
and Federal pilot's associations, vessel operators, users, and all 
affected stakeholders. Maritime conflict preemption principles apply to 
PWSA Title I. The Coast Guard has determined, after considering the 
factors developed by the Supreme Court in the consolidated cases of 
United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 
1135 (March 6, 2000), that by enacting Chapter 25 of the Ports and 
Waterways Safety Act, Congress intended that Coast Guard regulations 
have preemptive impact over State law regarding vessel traffic services 
in United States ports and waterways. Therefore, the regulations 
proposed in this rulemaking for operation and equipment required on 
vessels preempt any State laws or regulations on the same subject 
matter.
    Nevertheless, the Coast Guard recognizes the key role State and 
local governments may have in making regulatory determinations. The 
State of Louisiana and the Coast Guard have worked closely throughout 
the development of these regulations. Additionally, Sections 4 and 6 of 
Executive Order 13132 require that for any rules with preemptive 
effect, the Coast Guard shall provide elected officials of affected 
State and local governments and their representative national 
organizations the notice and opportunity for appropriate participation 
in any rulemaking proceedings, and to consult with such officials early 
in the rulemaking process. This participation and consultation has 
taken place within the Ports and Waterways Safety Systems Committee 
(PWSSC), which was formed in 1997. This ad-hoc committee of maritime, 
port community, and public stakeholders has met several times, and the 
product of these meetings was a conceptual baseline VTS plan (see U.S. 
Coast Guard Docket USCG-1998-4399-0003 at http://www.regulations.gov). 
The State of Louisiana was an active participant of PWSSC meetings and 
contributed to this plan. The Coast Guard will continue to consult with 
the State of Louisiana, the Governor's Task Force on Maritime Industry, 
as well as all affected stakeholders during implementation.
    The preemptive impact of this rule is codified in new 33 CFR 161.6. 
New Sec.  161.6 is slightly modified from the version proposed in the 
SNPRM to more accurately reflect that maritime conflict preemption 
principles apply to the regulations in this part. The preemptive impact 
of new Sec.  161.6 is unchanged from the preemptive impact of proposed 
Sec.  161.6.

F. 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. This rule would not impose an 
unfunded mandate.

G. Taking of Private Property

    This rule will 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.

H. Civil Justice Reform

    This 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.

I. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children From Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination With Indian Tribal Governments, 
because it does 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.

K. Energy Effects

    We have analyzed this 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.

L. 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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this 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 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human

[[Page 66314]]

environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph 34(g) and (i) of the Instruction. This rule 
involves implementing current practices to facilitate vessel transit, 
promote safe navigation and improve existing waterway operating 
measures. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects

33 CFR Part 161

    Harbors, Navigation (water), Reporting and recordkeeping 
requirements, Vessels, Waterways.

33 CFR Part 165

    Harbors, Navigation (water), Reporting and recordkeeping 
requirements, Vessels, Waterways.

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For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 161 and 165 as follows:

PART 161--VESSEL TRAFFIC MANAGEMENT

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1. The authority citation for part 161 continues to read as follows:

    Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70119; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


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2. In Sec.  161.2, revise paragraph (3) of the definition of Hazardous 
Vessel Operating Condition to read as follows:


Sec.  161.2  Definitions.

* * * * *

Hazardous Vessel Operating Condition

* * * * *
    (3) Vessel characteristics that affect or restrict maneuverability, 
such as cargo or tow arrangement, trim, loaded condition, underkeel or 
overhead clearance, speed capabilities, power availability, or similar 
characteristics, which may affect the positive control or safe handling 
of the vessel or the tow.
* * * * *

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3. Add Sec.  161.6 to read as follows:


Sec.  161.6  Preemption.

    The regulations in this part have preemptive impact over State laws 
or regulations on the same subject matter. The Coast Guard has 
determined, after considering the factors developed by the Supreme 
Court in U.S. v. Locke, 529 U.S. 89 (2000), that by enacting Chapter 25 
of the Ports and Waterways Safety Act (33 U.S.C. 1221 et seq.), 
Congress intended that Coast Guard regulations preempt State laws or 
regulations regarding vessel traffic services in United States ports 
and waterways.

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4. In Sec.  161.12, in Table 161.12(c)--
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a. In footnote 6, remove the words ``VTS Lower Mississippi River and''; 
and
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b. Amend Table 161.12(c) by revising the entries to New Orleans 
Traffic, to read as follows.


Sec.  161.12  Vessel operating requirements.

* * * * *

                          Table 161.12(c)--VTS and VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 Center MMSI \1\ call sign                     Designated frequency (channel  designation)--purpose \2\         Monitoring area 3 4
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Lower Mississippi River--0036699952:
    New Orleans traffic....................................  156.550 MHz (Ch. 11).......................................  The navigable waters of the
                                                                                                                           Lower Mississippi River below
                                                                                                                           29[deg]55.3' N 089[deg]55.6'
                                                                                                                           W (Saxonholm Light) at 86.0
                                                                                                                           miles Above Head of Passes
                                                                                                                           (AHP), extending down river
                                                                                                                           to Southwest Pass, and,
                                                                                                                           within a 12 nautical mile
                                                                                                                           radius around 28[deg]54.3' N
                                                                                                                           089[deg]25.7' W (Southwest
                                                                                                                           Pass Entrance Light at 20.1
                                                                                                                           miles Below Head of Passes.
    New Orleans traffic....................................  156.600 MHz (Ch. 12).......................................  The navigable waters of the
                                                                                                                           Lower Mississippi River
                                                                                                                           bounded on the north by a
                                                                                                                           line drawn perpendicular on
                                                                                                                           the river at 29[deg]55'30'' N
                                                                                                                           and 090[deg]12'46'' W (Upper
                                                                                                                           Twelve Mile Point) at 109.0
                                                                                                                           miles AHP and on the south by
                                                                                                                           a line drawn perpendicularly
                                                                                                                           at 29[deg]55.3' N
                                                                                                                           089[deg]55.6' W (Saxonholm
                                                                                                                           Light) at 86.0 miles AHP.
    New Orleans traffic....................................  156.250 MHz (Ch. 05A)......................................  The navigable waters of the
                                                                                                                           Lower Mississippi River below
                                                                                                                           30[deg]38.7' N 091[deg]17.5'
                                                                                                                           W (Port Hudson Light) at
                                                                                                                           254.5 miles AHP bounded on
                                                                                                                           the south by a line drawn
                                                                                                                           perpendicular on the river at
                                                                                                                           29[deg]55'30'' N and
                                                                                                                           090[deg]12'46'' W (Upper
                                                                                                                           Twelve Mile Point) at 109.0
                                                                                                                           miles AHP.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Maritime Mobile Service Identifier (MMSI) is a unique nine-digit number assigned by the Federal Communications Commission (FCC) that identifies ship
  stations, ship earth stations, coast stations, coast earth stations, and group calls for use by a digital selective calling (DSC) radio, an INMARSAT
  ship earth station or AIS. AIS requirements are set forth in Sec.  Sec.   161.21 and 164.46 of this subchapter. The requirements set forth in Sec.
  Sec.   161.21 and 164.46 of this subchapter apply in those areas denoted with an MMSI number.
\2\ In the event of a communication failure, difficulties, or other safety factors, the Center may direct or permit a user to monitor and report on any
  other designated monitoring frequency or the bridge-to-bridge navigational frequency, 156.650 MHz (Channel 13) or 156.375 MHz (Channel 67), to the
  extent that doing so provides a level of safety beyond that provided by other means. The bridge-to-bridge navigational frequency, 156.650 MHz (Ch.
  13), is used in certain monitoring areas where the level of reporting does not warrant a designated frequency.
\3\ All geographic coordinates (latitude and longitude) are expressed in North American Datum of 1983 (NAD 83).
\4\ Some monitoring areas extend beyond navigable waters. Although not required, users are strongly encouraged to maintain a listening watch on the
  designated monitoring frequency in these areas. Otherwise, they are required to maintain watch as stated in 47 CFR 80.148.

* * * * *

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5. Add Sec.  161.65 to read as follows:


Sec.  161.65  Vessel Traffic Service Lower Mississippi River.

    (a) The Vessel Traffic Service (VTS) area consists of navigable 
waters of the Lower Mississippi River (LMR) below 30[deg]38.7' N 
91[deg]17.5' W (Port Hudson Light at 254.5 miles Above Head of Passes 
(AHP)), the Southwest Pass, and

[[Page 66315]]

those within a 12-nautical mile radius around 28[deg]54.3' N 
89[deg]25.7' W (Southwest Pass Entrance Light at 20.1 miles Below Head 
of Passes).
    (b) The Algiers Point VTS Special Area consists of the navigable 
waters of the LMR bounded on the north by a line drawn from 
29[deg]57.62' N 90[deg]02.61' W to 29[deg]57.34' N 90[deg]02.60' W and 
on the south by a line drawn from 29[deg]56.89' N 90[deg]03.72' W to 
29[deg]56.93' N 90[deg]03.34' W (95.0 and 93.5 miles AHP) during 
periods of high water--that is, when the Carrolton Gage reads 8.0 feet 
or above on a rising stage or 9.0 feet or above on a falling stage, or 
under any other water conditions the Captain of the Port (COTP) deems 
necessary.
    (c) Additional Algiers Point VTS Special Area Operating 
Requirements. The following additional requirements are applicable in 
the Algiers Point VTS Special Area:
    (1) A vessel movement reporting system (VMRS) user must abide by 
the signals of the Governor Nicholls Street Wharf, 29[deg]57.6' N 
90[deg]03.4' W, and Gretna, 29[deg]55.5' N 90[deg]03.7' W, Control 
Lights (94.3 and 96.6 miles AHP, respectively) in the following manner:
    (i) Green Light--May proceed as intended.
    (ii) Red Light--Do not proceed, unless otherwise directed by the 
VTS.
    (iii) No Light--Do not proceed, immediately notify VTS and await 
further directions.

    Note to Sec.  161.65(c)(1):  To provide advance notification to 
downbound vessels, a traffic repeater signal of Gretna Light is 
located at Westwego, LA, 29[deg]54.8' N; 90[deg]08.3' W (101.4 miles 
AHP).

    (2) A vessel awaiting a signal change or VTS directions must keep 
clear of other vessels transiting the area.
    (d) The Eighty-one Mile Point VTS Special Area consists of 
navigable waters of the LMR between 167.5 miles AHP and 187.9 miles 
AHP.
    (e) Additional Eighty-one Mile Point VTS Special Area Operating 
Requirements. The following additional requirements are applicable in 
the Eighty-one Mile Point VTS Special Area:
    (1) Prior to proceeding upriver past 167.5 miles AHP, Sunshine 
Bridge, vessels must contact VTS New Orleans on VHF Channel 5A to 
check-in. Vessels must provide name and destination, confirm proper 
operation of their automated identification system (AIS) if required 
under 33 CFR 164.46, and, if applicable, size of tow and number of 
loaded and empty barges. At 173.7 miles AHP, Bringier Point Light, 
ascending vessels must contact VTS New Orleans and provide a follow-on 
position check. At both check-in and follow-on position check, VTS New 
Orleans will advise the vessel on traffic approaching Eighty-one Mile 
Point.
    (2) Prior to proceeding downriver past 187.9 miles AHP COS-MAR 
Lights, vessels must contact VTS New Orleans on VHF Channel 5A to 
check-in. Vessels must provide name and destination, confirm proper 
operation of their AIS if required under 33 CFR 164.46, and, if 
applicable, size of tow and number of loaded and empty barges. At 183.9 
miles AHP, Wyandotte Chemical Dock Lights, descending vessels must 
contact VTS New Orleans and provide a follow-on position check. At both 
check-in and follow-on position check, VTS New Orleans will advise the 
vessel on traffic approaching Eighty-one Mile Point.
    (3) All vessels getting underway between miles 167.5 and 187.9 AHP 
must check-in with VTS New Orleans on VHF Channel 5A immediately prior 
to getting underway and must comply with the respective ascending and 
descending check-in and follow-on points listed in paragraphs (e)(1) 
and (2) of this section.
    (4) Fleet vessels must checkin with VTS New Orleans if they leave 
their respective fleet or if they move into the main channel. Fleet 
vessels are not required to checkin if they are operating exclusively 
within their fleet.
    (f) Reporting Points. Table 161.65(f) lists the VTS Lower 
Mississippi River Reporting Points.

                                              Table 161.65(f)--VTS Lower Mississippi River Reporting Points
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Designator                   Geographic name       Geographic description       Latitude/ Longitude/ mile marker              Notes
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...................................  Algiers Canal Forebay..  88.0 AHP                  29[deg]56.6' N; 90[deg]10.1' W           Upbound transiting
                                                                                                                                   Algiers Point Special
                                                                                                                                   Area.
B...................................  Industrial Canal.......  92.7 AHP                  29[deg]57.2' N; 90[deg]01.68' W          Upbound transiting
                                                                                                                                   Algiers Point Special
                                                                                                                                   Area.
C...................................  Crescent Towing Smith    93.5 AHP                  29[deg]57.50' N; 90[deg]02.62' W         Upbound Towing vessels
                                       Fleet.                                                                                      transiting Algiers
                                                                                                                                   Point Special Area.
D...................................  Marlex Terminal (Naval   99.0 AHP                  29[deg]54.65' N; 90[deg]05.87' W         Downbound transiting
                                       Ships).                                                                                     Algiers Point Special
                                                                                                                                   Area.
E...................................  Huey P Long Bridge.....  106.1 AHP                 29[deg]55.40' N; 89[deg]57.7' W          Downbound transiting
                                                                                                                                   Algiers Point Special
                                                                                                                                   Area.
--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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6. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 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.


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7. In Sec.  165.810--
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a. Remove and reserve paragraph (c);
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b. Remove and reserve paragraph (g); and
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c. Add a note at the end of the section to read as follows:


Sec.  165.810  Mississippi River, LA-regulated navigation area.

* * * * *

    Note to Sec.  165.810: Control Light provisions (previously 
referenced in paragraph (c) of this section) used to manage vessel 
traffic during periods of high waters in the vicinity of Algiers 
Point are located in 33 CFR 161.65(c). The special operating 
requirements (previously referenced in paragraph (g) of this 
section) used to manage vessel traffic in the vicinity of Eighty-one 
Mile Point are located in 33 CFR 161.65(e).


    Dated: October 22, 2010.
Vincent B. Atkins,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Capabilities.
[FR Doc. 2010-27235 Filed 10-27-10; 8:45 am]
BILLING CODE 9110-04-P


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