[Federal Register: March 29, 2006 (Volume 71, Number 60)]
[Proposed Rules]
[Page 15649-15656]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr06-27]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 161 and 165
[CGD01-04-133]
RIN 1625-AA11
Regulated Navigation Area; Buzzards Bay, MA; Navigable Waterways
With the First Coast Guard District
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Subsequent to an Advance Notice of Proposed Rulemaking
published in the October 26, 2004, edition of the Federal Register, the
Coast Guard proposes to revise the regulations governing the Regulated
Navigation Area (RNA) in First Coast Guard District waters to require
that certain tank vessels and tug/barge combinations transiting
Buzzards Bay, Massachusetts be accompanied by escort tugs and federally
licensed pilots. The Coast Guard also proposes to establish a Vessel
Movement Reporting System (VMRS) for Buzzards Bay and to require
mandatory participation in the VMRS by vessels subject to the Vessel
Bridge-to-Bridge VHF Radiotelephone regulations, including tug/barge
combinations. Participation in the Buzzards Bay VMRS could be
accomplished either automatically through a vessel's Automatic
Identification System (AIS) or via VHF radiotelephone. The purpose of
this proposed rulemaking is to reduce the likelihood of an incident
that might result in a collision, allision, or grounding and the
aftermath discharge or release of oil or hazardous material into the
navigable waters of the United States.
DATES: Comments and related material must reach the Coast Guard on or
before June 27, 2006.
ADDRESSES: The Commanding Officer, U.S. Coast Guard Sector Southeastern
New England maintains the public docket for this notice. Comments and
documents will become part of this docket and will be available for
inspection and copying at the same address between 8 a.m. and 3 p.m.
Monday through Friday, except federal holidays. You may submit comments
and related material by:
(1) Mail or delivery to Commanding Officer, U.S. Coast Guard Sector
Southeastern New England, 20 Risho Avenue, East Providence, RI 02914-
1208.
(2) Fax to 401-435-2399.
(3) Electronically via e-mail at EleBlanc@msoprov.uscg.mil.
(4) The entire public docket may be viewed at the Coast Guard
Sector Southeastern New England Web site at http://www.uscg.mil/d1/units/msoprov/
.
FOR FURTHER INFORMATION CONTACT: Mr. Edward G. LeBlanc at Coast Guard
Sector Southeastern New England, Providence, RI, 401-435-2351.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to submit comments and related material pertaining
specifically to the navigation safety and waterways management aspects
of the proposed rule. If you do so, please include your name and
address, identify the docket number for this rulemaking (CGD01-04-133),
and give the reason for each comment. You
[[Page 15650]]
may submit your comments and material by mail, hand delivery, fax, or
electronic means to the project officer at the addresses or phone
numbers listed under FOR FURTHER INFORMATION CONTACT, but please submit
your comments and material by only one means. If you submit them 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 them by mail and would like to know that they reached U.S. Coast
Guard Sector Southeastern New England, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Public Meetings
We do not intend to hold additional public meetings on this
proposed rule. As part of the Advance Notice of Proposed Rulemaking
announced in the October 26, 2004, edition of the Federal Register,
(Vol. 69, No. 206, pages 62427 to 62430) two public meetings were held
to obtain direct feedback from the public on November 16, 2004, at the
New Bedford Whaling Museum, and on November 17, 2004, at the
Massachusetts Maritime Academy. Comments received at those meetings, as
well as written comments, are summarized below. You may submit a
request for an additional public meeting to the address contained in
ADDRESSES above, explaining why an additional public meeting would be
beneficial. If we determine that an additional public meeting is
necessary, we will hold one at a time and place announced by a later
notice in the Federal Register.
Background and Purpose
This NPRM is subsequent to an Advance Notice of Proposed Rulemaking
(ANPRM) published on October 26, 2004 in Volume 69, No. 206, pages
62427 to 62430 of the Federal Register, under the heading ``Navigation
and Waterways Management Improvements, Buzzards Bay, MA''. Congress
designated Buzzards Bay as an Estuary of National Significance in 1985,
one of only five estuaries in the U.S. so designated. The Bay has some
of Massachusetts' most productive shellfish beds. It interacts with
three very different marine systems, the Atlantic Ocean to the south,
Vineyard Sound to the east, and Cape Cod Bay to the north. In 2002,
there were nearly 10,000 commercial vessel transits and over 1200 tank
barge transits in Buzzards Bay. An estimated 80% of those tank barges
were single hull vessels. Note that the term ``single hull'' and other
terms used in this proposed rule have the same meaning as those found
in Title 33, Code of Federal Regulations (CFR), Sec. 165.100(b).
Since 1969 there have been several incidents of tank barge
groundings with oil spills in Buzzards Bay. These include the grounding
of the tank barge Florida in 1969 with a spill of approximately 175,000
gallons of No. 2 fuel oil; the grounding of the tank barge Bouchard in
1977 with a spill of approximately 81,000 gallons of No. 2 fuel oil;
the grounding of the tank barge ST-85 in 1986 with a spill of
approximately 119,000 gallons of gasoline; the grounding of the tug
Marie J. Turecamo and its asphalt-laden barge in 1999; the grounding of
the tug Mary Turecamo and its barge Florida in 1999 carrying 4.7
million gallons of No. 6 fuel oil; and the grounding of the barge B-120
in April 2003 with a spill of No. 6 oil estimated to be of
approximately 22,000 to 98,000 gallons.
Groundings, allisions, or collisions of tank barges or other laden
vessels could lead to a discharge or release of oil or other hazardous
materials, as demonstrated by the incidents noted above, with
potentially adverse impacts to people, property, the coastal and
maritime environment, and the local economy. The purpose of these
proposed regulations for navigation safety and waterways management
improvements in Buzzards Bay is to reduce the likelihood of another
incident that might result in the discharge or release of oil or
hazardous material, or other serious harm, on the navigable waters of
the United States.
After a previous oil spill from the tank barge North Cape off of
Point Judith, Rhode Island, in 1996, the Coast Guard chartered a
Regional Risk Assessment Team (RRAT), comprised of government,
commercial, and environmental entities, to examine navigation safety
issues within New England waters. The RRAT recommended, and the Coast
Guard implemented, a RNA that imposed certain requirements on single-
hulled tank barges transiting New England waters, including Buzzards
Bay. Regulations governing the RNA in First Coast Guard District waters
are contained in 33 CFR Sec. 165.100.
Subsequent to an oil spill in Buzzards Bay in April, 2003, noted
above, the Coast Guard sponsored a Ports and Waterways Safety
Assessment (PAWSA), which was conducted by a cross-section of key
Buzzards Bay waterways users and stakeholders, resulting in numerous
suggestions for improving navigation safety in the Bay. The safety
assessment process is a disciplined approach to identify major waterway
safety hazards, estimate risk levels, evaluate potential mitigation
measures, and set the stage for implementation of selected measures to
reduce risk. The process involves convening a select group of waterway
users/stakeholders and conducting a two-day structured workshop to meet
these objectives. The assessment process represents a significant part
of joint public-private sector planning for mitigating risk in
waterways. When applied consistently and uniformly in a number of
waterways, the process is expected to provide a basis for making best
value decisions for risk mitigation investments, both on the local and
national level. For further information on PAWSA visit: http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_home.htm
.
The PAWSA report suggested, in part, that the risk for oil or
hazardous material discharge in Buzzards Bay is relatively high, and
that one method of reducing that risk, among many that were suggested,
might be to ``establish requirements for escort tugs.'' (The PAWSA
report is available in docket CGD01-04-133. See ADDRESSES above on
procedures to access the docket.) The PAWSA also recommended that
Recommended Routes be established to help assist vessel traffic and
provide safer transit routes for commercial vessels.
Additionally, in a letter from several members of the U.S.
Congressional delegation from Massachusetts, the Coast Guard was asked
to consider measures similar to those recommended in the PAWSA,
specifically: assist tugs, Recommended Routes, and an Automatic
Identification System (AIS). This letter, along with the Coast Guard's
response, is available in the docket. Automatic Identification System
(AIS) is a data transmission system for ship-to-ship, ship-to-shore,
and shore-to-ship communication adopted by the International Maritime
Organization (IMO). AIS shipboard equipment consists of a transceiver
that continually transmits and receives vessel navigational information
(position, course, speed, etc.) over VHF-FM maritime frequencies. AIS
units operating in proximity to each other automatically create a
virtual network. Shore stations can also join these virtual networks,
and they may receive shipboard AIS signals, perform network and
frequency management and send additional broadcast or individual
informational messages to AIS equipped vessels.
[[Page 15651]]
As of December 31, 2004, AIS is required on most commercial vessels
either navigating abroad or within a Vessel Traffic Service area. (See
33 CFR Sec. 164.46.) Under a separate regulatory initiative, the Coast
Guard sought public comments on the notion of expanding AIS
requirements beyond the regulations of 33 CFR Sec. 164.46. Expansion
of AIS requirements may apply to Buzzards Bay and/or tug/barge
combinations. This initiative is still in progress. See Federal
Register Vol. 68, No. 128 of July 1, 2003, pages 39369 to 39371 and
docket [USCG 2003-14787] at http://dms.dot.gov/.
The National Oceanic and Atmospheric Administration (NOAA), at the
request of the Coast Guard, has already overlaid Recommended Routes on
navigational charts for Rhode Island Sound, Narragansett Bay, and
Buzzards Bay. These recommended Routes are currently included on all
new editions of charts 13205, 13218, 13221, and 13230. To allow maximum
operating flexibility to meet differing conditions and situations, at
this time the Coast Guard is not proposing to make the recommended
vessel routes depicted on these charts mandatory.
Currently, an escort tug is required in Buzzards Bay only for
single hull tank barges, unless the single hull tank barge is being
towed by a primary towing vessel with twin-screw propulsion and with a
separate system for power to each screw. Consequently, the vast
majority of tug and barge combinations transiting Buzzards Bay (of
which most barges are single hull) employ tugs with twin screws and
twin engines, but with no additional positive control.
On October 26, 2004, the Coast Guard published an Advance Notice of
Proposed Rule Making (ANPRM) that sought public comments regarding the
necessity and type, if any, of additional navigation safety measures
that might be implemented within Buzzards Bay (See Federal Register,
Vol. 69, No. 206, pages 62427 to 62430). Approximately forty written
comments were received. Additionally, two public meetings were held to
obtain direct feedback from the public on November 16, 2004, at the New
Bedford Whaling Museum, and on November 17, 2004, at the Massachusetts
Maritime Academy. There were 76 and 47 speakers offering comments at
each meeting, respectively. Written comments, and a roster of speakers
from each meeting, are available for viewing in the docket at http://www.uscg.mil/d1/units/msoprov/
.
Comments (both oral and written) generally fell within the
following categories:
Root Cause: Comments noted that the root cause of most maritime
incidents in Buzzards Bay could be attributed to human error rather
than equipment failure, hazardous weather, or other factors.
The Coast Guard agrees that the root cause of many maritime
incidents and casualties, including the B-120 oil spill in Buzzards
Bay, may be attributed to human factors. Consequently, in this
rulemaking the Coast Guard proposes certain measures such as mandatory
pilotage by a federally licensed pilot, escort tugs, and a vessel
monitoring system, to reduce the likelihood that human factors may
cause an accident, and to mitigate the adverse impact of any casualties
that may occur.
Pilotage: Comments noted that the proficiency standards for
federally licensed pilots were inadequate and in need of revision, and
that federally licensed pilots were generally not as experienced in
tug/barge navigation as were the captains of the tugs themselves.
Currently, to obtain a Federal pilot's license (or endorsement) to
operate a vessel in Buzzards Bay, a person must pass a comprehensive
examination, which includes, but is not limited to, performing a chart
sketch of the area, demonstrating proficiency in the use of
navigational aids, and maneuvering and handling ships in high winds,
tides, and currents. Further, a person must complete a specific number
of round trips and demonstrate specialized knowledge of the waters for
which the license (or endorsement) is issued.
The Coast Guard considers these proficiency standards to be
sufficient for monitoring and guiding the movements of tug/barge
combinations through Buzzards Bay.
Crewing: Comments noted that the crewing requirements for tugs
towing barges were inadequate, and recommend increased crewing
requirements.
The Coast Guard concurs with the view that current crewing
requirements may be insufficient for the navigational demands
associated with transiting Buzzards Bay, and so has proposed in this
rule to require a federally licensed pilot in addition to the crew to
advise the master and assist in the navigation of the vessel.
Cost/Availability of Escort Tug: Comments expressed concern
regarding the cost of escort tugs and pilotage, and also the
availability, or lack of, escort tugs within Buzzards Bay of sufficient
capability to provide escort services.
Based on interviews with representatives from various components of
the maritime industry, the Coast Guard considers escort tug capacity to
be sufficient to meet the projected demand for escort tugs. In our
Regulatory Evaluation that accompanies this rulemaking and is available
in the docket (CGD01-04-133), the Coast Guard projects that the demand
for escort tugs will decrease over time as progressively fewer transits
of Buzzards Bay are made with single hull tank barges. Also, in our
Regulatory Evaluation we have documented anticipated costs associated
with escort tugs and federally licensed pilots and found those costs,
when compared to the benefits realized by the avoidance of vessel
casualties and oil spills, to be reasonable.
Definition of Escort Tug: Comments noted that ``escort tug'' should
be well-defined in any regulation, and also provided suggestions on
what that definition should include.
``Escort tug'' as used in this proposed rule has the same meaning
as the description of escort tug already found in 33 CFR 165.100(d),
i.e., the escort tug must be of ``sufficient capability to promptly
push or tow the tank barge away from danger or grounding in the event
of--
(A) A propulsion failure;
(B) A parted tow line;
(C) A loss of tow;
(D) A fire;
(E) Grounding;
(F) A loss of steering; or
(G) Any other casualty that affects the navigation or seaworthiness
of either vessel.''
Aids to Navigation: Comments expressed a need for improved aids to
navigation within Buzzards Bay, including a wave height indicator at
the Buzzards Bay tower, a weather buoy at the east end of the Cape Cod
Canal, and auxiliary navigation channels adjacent to the Buzzards Bay
recommended vessel route.
The Coast Guard has reviewed the aids to navigation system in
Buzzards Bay and has re-positioned several buoys, and has plans to
install some new lighted aids and ranges, particularly in Cleveland
Ledge and Hog Island channels, in 2006 or 2007, pending funding.
Additionally, the National Oceanic and Atmospheric Administration
(NOAA) operates a wave height indicator at the Buzzards Bay tower.
Increased Navigation Risks Due to Presence of Escort Tugs: Comments
noted that escort tugs themselves could increase danger due to
additional vessels in the constrained channels of Buzzards Bay and the
Cape Cod Canal.
Voluntary use of escort tugs in Buzzards Bay and the Cape Cod Canal
[[Page 15652]]
has long been practiced with no adverse impacts on the ability of other
vessels to navigate safely. The amount of good water in lower Buzzards
Bay is considered sufficient for vessels to navigate safely, even with
the addition of escort tugs. Additionally, the U.S. Army Corps of
Engineers' authority for (and control of) the Cape Cod Canal
encompasses in their entirety the constrained waterways of Cleveland
Ledge Channel, Hog Island Channel, and the canal itself (the canal land
cut). On those few occasions (primarily in winter when home heating oil
deliveries increase) where several tugs with tows and escort tug may
converge, or approach converging, near one of these constrained
waterways, the Corps would direct vessel traffic to minimize risk of
collision. Lastly, this proposed rule includes establishment of a
Vessel Movement Reporting System (VMRS) in Buzzards Bay that would
provide for monitoring of all tug and tank vessel traffic in the Bay,
and would provide an opportunity for the Coast Guard to issue
advisories should traffic be congested to a point that adversely
affects navigation safety. Consequently, because most tug and tank
vessel operators that routinely navigate in Buzzards Bay are already
familiar with the Corps' requirements and practices for transiting the
Cape Cod Canal, and because VMRS would add an additional means to
monitor vessel traffic, it is felt that tug and tank vessel operators
should experience little or no difficulty accommodating an escort tug
in accordance with this proposed rule.
Increased Danger to Pilots: Comments suggested there may be
increased danger to a pilot required to embark either an escort tug or
primary tug (i.e., the tug towing the tank vessel) from a pilot boat,
where no special accommodations to embark a pilot at sea are normally
available on a tug.
The Coast Guard recognizes the danger inherent in pilots embarking
escort tugs or primary tug while underway within Buzzards Bay. In this
proposed rule we permit the federally licensed pilot to monitor the
navigation of the tug/barge combination from the escort tug, assuming
the federally licensed pilot would embark the escort tug pierside
before departing for its escort duty. This practice has been in effect
since at least March 10, 2004, when Bouchard Transportation Company
agreed to accommodate federally licensed pilots in this manner.
Recommendation for Draft Restrictions: Comments noted that an
effective way to improve navigation safety and reduce the likelihood of
a spill would be to reduce the allowable draft of laden barges
transiting Buzzards Bay.
Regulations in 33 CFR 157.455 currently address under-keel
clearance requirements (i.e., ``draft restrictions'') for single-hull
tank vessels. Those regulations require, among other things, that
owners/operators of single-hull tank barges provide written guidance to
towing vessel masters regarding under-keel clearance, and include
factors to consider such as controlling depth of water, deepest
navigation draft, weather, and other environmental conditions. While
under-keel clearance restrictions may expand the margin of error
afforded tank vessels being towed through Buzzards Bay, the Bay remains
a confined waterway and history has demonstrated that such regulations
alone are insufficient to attain the level of navigation safety
required for Buzzards Bay. For example, despite being subject to (and
complying with) these under-keel clearance regulations, tank vessels
continue to ground and spill oil in Buzzards Bay, notably the barge
Florida in 1999 and the barge B-120 in 2003. Additionally, more severe
under-keel clearance requirements would most likely reduce the amount
of oil carried each transit and thus may have the unintended
consequence of actually increasing the risk of vessel casualties and
oil spills as more vessel traffic would be required to carry a similar
amount of oil to meet demand for heating and electrical generation.
Lastly, should draft restrictions result in additional voyages with
smaller cargoes of oil, the cost of the delivery would rise and would
almost assuredly be passed to consumers. Consequently, the Coast Guard
considers under-keel regulations in addition to those already found in
33 CFR 157.455 to be unnecessary as they would not add significant
value in terms of preventing an incident.
Miscellaneous: Some comments noted that current regulations were
insufficient to prevent accidents and spills in Buzzards Bay; others
commented that current regulations were sufficient, if only they were
properly enforced. Other comments suggested that, as an alternative to
escort tugs, rescue tugs be strategically stationed in Buzzards Bay,
ready to respond at a moment's notice. Although the comments did not
specifically recommend the nature or specific mission of a ``rescue
tug,'' generally a rescue tug is considered to be a dedicated tugboat
equipped to respond and provide assistance to distressed vessels,
primarily by towing. Rescue tugs typically have capabilities for
pumping, fire fighting, and pollution response. Normally a rescue tug
is continuously manned and ``on station'', which means it is either at
its berth or assigned location (e.g., a designated anchorage) ready for
immediate dispatch, or underway presumably involved in a rescue.
Evaluations of the potential benefit of rescue tugs in other waterways
of the country (specifically, Puget Sound) have determined them to be a
high-cost, low-benefit alternative as they have little or no capability
to prevent collisions, allisions, or groundings, which is a primary
goal of this proposed rule. (See ``Regulatory Assessment, Use of Tugs
to Protect Against Oil Spills, in the Puget Sound Area'', Report Number
9522-022, November 15, 1999, available in the docket.)
The Coast Guard examined both our current regulations and our
enforcement policies and determined that additional regulations, as
proposed in this rule, were required to achieve our goal of preventing
vessel casualties and spills within Buzzards Bay.
Discussion of Proposed Rule
The proposed amendments to the current First Coast Guard District
RNA would require that all single-hull tank barges carrying 5000 or
more barrels of oil or other hazardous material and being towed through
Buzzards Bay, meet the following requirements:
1. Be accompanied by an escort tug between the west entrance to
Buzzards Bay and the east end of the Cape Cod Canal.
2. Be accompanied by a federally licensed pilot, who may remain on
the escort tug vessel, to monitor the navigation of the tug/barge, and
to advise the master of the tug/barge accordingly.
Additionally, this rule proposes to establish a Vessel Movement
Reporting System (VMRS) (33 CFR part 161, subpart B) within Buzzards
Bay to monitor the movements of all vessels subject to Vessel Bridge-
to-Bridge VHF Radiotelephone regulations (33 CFR part 26), either by
AIS, and/or via voice reporting via VHF radiotelephone. Daily
operations of the VMRS would be monitored and managed by the U.S. Army
Corps of Engineers at its Cape Cod Canal control center on behalf of
the Coast Guard. (The Corps has indicated its willingness and ability
to perform this function.) The Coast Guard would retain authority to
enforce this proposed rule and other regulations to ensure navigation
safety. Should the VMRS proposed in this rule ultimately be
established, the Coast Guard and the U.S. Army Corps of Engineers will
enter into a Memorandum of Understanding to delineate the functions and
[[Page 15653]]
responsibilities of each agency in operating the VMRS. This MOU will be
a public record and would be available in the final docket CGD01-04-
133.
This proposed rule is needed for navigation safety reasons to
protect people, property, waterways users, the environment, and the
economy from the adverse affects of a spill of oil or other hazardous
material. Vessels subject to this proposed rule would be required to
have a escort tug and federally licensed pilot, and would also be
required to participate in a Vessel Movement Reporting System.
This regulation is proposed under the authority of 33 U.S.C. 1321,
in addition to the authority contained in 33 CFR 1.05-1(g)(4). Vessels
or persons violating this section would be subject to the civil or
criminal penalties set forth in 33 U.S.C. 1232.
Regulatory Evaluation
Executive Order 12866, ``Regulatory Planning and Review'', 58 FR
51735, October 4, 1993, requires a determination whether a regulatory
action is ``significant'' and therefore subject to review by the Office
of Management and Budget (OMB) and subject to the requirements of the
Executive Order. This rule is not significant under Executive Order
12866 and has not been reviewed by OMB.
During the period of analysis, 2006-2014, this rule is expected to
cost approximately $3.9 million net present value (7 percent discount
rate). A copy of the regulatory evaluation, which further describes the
expected costs and benefits of this proposed rule, is posted in the
docket and is available to the public at http://www.uscg.mil/d1/units/msoprov/
.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities.
This proposed rule would affect the following entities, some of
which might be small entities: The owners or operators of tugs and/or
single hull barges carrying 5000 or more barrels of oil or other
hazardous materials and intending to transit or anchor in Buzzards Bay,
Massachusetts.
This proposed rule would not have a significant economic impact on
a substantial number of small entities for the following reasons: This
proposed rule requires escort tugs and federally licensed pilots only
for single hull barges, which are being phased out of operation in
accordance with the Oil Pollution Act of 1990 (OPA), specifically 46
U.S.C. 3703a, and will be prohibited from operating effective January
1, 2015. Additionally, the VMRS proposed in the rule making applies
only to vessels subject to the bridge-to-bridge radiotelephone
regulations in Sec. 26.03 (and therefore already equipped with VHF
radios), so no additional costs will be incurred to participate in the
VMRS. Those vessels with a type-approved, properly installed,
operational AIS would be relieved from the voice reporting requirements
as proposed in this rule making.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES above) explaining why you think it qualifies and how and to
what degree this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule 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 contact Mr. Edward G. LeBlanc at Coast
Guard Sector Southeastern New England, Providence, RI, 401-435-2351.
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.
Collection of Information
This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The
reports required by this rule are considered to be operational
communications, transitory in nature, and, do not constitute a
collection of information under the Paperwork Reduction Act.
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. The U.S. Supreme Court, in the cases
of United States v. Locke, 529 U.S. 89 (2000) and Ray v. Atlantic
Richfield Co., 435 U.S. 151 (1978) has ruled that certain categories of
regulation issued pursuant to the Ports and Waterways Safety Act of
1972, as amended, are reserved exclusively to the Coast Guard, and that
state regulation in these areas is preempted.
On August 4, 2004, the Commonwealth of Massachusetts enacted
Chapter 251 of the Acts of 2004, an Act Relative to Oil Spill
Prevention and Response in Buzzard's Bay and other Harbors and Bays of
the Commonwealth. It is the view of the Coast Guard that several
provisions of the Massachusetts Act touch categories of regulation
reserved to the Federal Government and are preempted per the rulings in
Locke and Ray. The regulations proposed in this notice of proposed rule
would likewise touch categories of regulation reserved to the Federal
Government, thus becoming further indicia of preemption.
For example, section 11 of the Massachusetts Act purports to impose
escort tug requirements on vessels operating in Buzzards Bay. The issue
of escort tugs is already addressed in the regulations governing the
First District RNA at 33 CFR 165.100 and further addressed in this
notice. Section 11 also purports to make the recommended route depicted
on the NOAA charts described earlier in this notice mandatory. The
Coast Guard has decided not to make this route mandatory at this time.
Section 17 of the Massachusetts Act purports to impose a state pilotage
requirement on certain vessels engaged in the coastwise trade. It is
the view of the Coast Guard that this provision is void by operation of
law pursuant to 46 U.S.C. 8501. This notice of proposed rulemaking
proposes pilotage by federally licensed pilots for single hull tank
barges operating in Buzzards Bay.
Because of the preemption issues described above, the Coast Guard
will conduct a Federalism analysis pursuant to E.O. 13132 for any rules
promulgated as a result of this notice. Sections 4 and 6 of E.O. 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
[[Page 15654]]
the notice and opportunity for appropriate participation in any
rulemaking proceedings, and to consult with such officials early in the
rulemaking process. Although it is the view of the Coast Guard that
certain sections of the Massachusetts law are preempted for reasons
independent of any potential rulemaking action here, in order to comply
with the spirit of E.O. 13132, the Coast Guard has already begun
consultations with the state government of the Commonwealth of
Massachusetts. In addition, at the public meetings held in November
2004, the towns of Bourne, Marion, and Westport, Massachusetts also
requested consultations, as did 10 other communities in the vicinity of
Buzzards Bay through letters to the docket. Such consultations will
continue throughout the rulemaking process and we invite comments from
those who have expressed a desire to be consulted. We also invite other
affected state and local governments and their representative national
organizations to indicate their desire for participation and
consultation in the rulemaking process by submitting comments to this
notice.
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 proposed rule would not result in such
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would not effect 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 proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
Environment
As required under Commandant Instruction M16475.lD, which guides
the Coast Guard in complying with the National Environmental Policy Act
of 1969 (NEPA) (42 U.S.C. 4321-4370f), a preliminary ``Environmental
Analysis Checklist'' was completed for this NPRM. The Checklist is
available in the docket where indicated under ADDRESSES. The level of
NEPA documentation for the Rule is recommended in the Checklist.
Comments on this section will be considered before we make the final
decision on whether or not the rule should be categorically excluded
from further environmental review.
List of Subjects
33 CFR Part 161
Harbors, Navigation (water), Reporting and recordkeeping
requirements, Vessels, Waterways.
33 CFR Part 165
Harbors, Marine Safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR parts 161 and 165 as follows:
PART 161--VESSEL TRAFFIC MANAGEMENT
1. The authority citation for part 161 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(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
2. In Sec. 161.12, amend Table 161.12(c) by adding an entry for
Buzzards Bay in alphabetical order to read as follows:
Sec. 161.12 Vessel operating requirements.
* * * * *
[[Page 15655]]
Table 161.12(c).--VTS and VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring Areas
----------------------------------------------------------------------------------------------------------------
Designated frequency (Channel designation)--
Center MMSI \1\ purpose \2\ Monitoring area 3 4
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Buzzards Bay.......................
Traffic MMSI.............. 156.600 MHz (Ch. 12)........................... The waters east and north
of a line drawn from the
southern tangent of
Sakonnet Point, Rhode
Island, in approximate
position latitude 41[deg]-
27.2'N, longitude 70[deg]-
11.7'W, to the Buzzards
Bay Entrance Light in
approximate position
latitude 41[deg]-23.5'N,
longitude 71[deg]-02.0'W,
and then to the
southwestern tangent of
Cuttyhunk Island,
Massachusetts, at
approximate position
latitude 41[deg]-24.6'N,
longitude 70[deg]-57.0'W,
and including all of the
Cape Cod Canal to its
eastern entrance, except
that the area of New
Bedford Harbor within the
confines (north of) the
hurricane barrier, and
the passages through the
Elizabeth Islands, would
not be considered to be
``Buzzards Bay''.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Maritime Mobile Service Identifier (MMSI) is a unique nine-digit number assigned 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 apply in those areas denoted with a 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 (Ch. 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.
PART 165--WATERWAYS SAFETY; REGULATED NAVIGATION AREAS AND LIMITED
ACCESS AREAS
3. 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(g), 6.04-1, 6.04-6, 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
4. Amend Sec. 165.100 by revising paragraphs (d)(1)(i)
introductory text and (d)(1)(i)(G) and adding paragraph (d)(5) to read
as follows:
Sec. 165.100 Regulated Navigation Area: Navigable waters within the
First Coast Guard District.
* * * * *
(d) Regulations--(1) Positive control for barges. (i) Except as
provided in paragraph (d)(1)(iii) and paragraph (d)(5) of this section,
each single-hull tank barge, unless being towed by a primary towing
vessel with twin-screw propulsion and with a separate system for power
to each screw, must be accompanied by an escort tug of sufficient
capability to promptly push or tow the tank barge away from danger of
grounding or collision in the event of--
* * * * *
(G) Any other time a vessel may be operating in a Hazardous Vessel
Operating Condition as defined in Sec. 161.2 of this chapter.
* * * * *
(5) Special Buzzards Bay regulations. (i) For the purposes of this
section, ``Buzzards Bay'' is the body of water east and north of a line
drawn from the southern tangent of Sakonnet Point, Rhode Island, in
approximate position latitude 41[deg]-27.2' North, longitude 70[deg]-
11.7' West, to the Buzzards Bay Entrance Light in approximate position
latitude 41[deg]-23.5' North, longitude 71[deg]-02.0' West, and then to
the southwestern tangent of Cuttyhunk Island, Massachusetts, at
approximate position latitude 41[deg]-24.6' North, longitude 70[deg]-
57.0' West, and including all of the Cape Cod Canal to its eastern
entrance, except that the area of New Bedford harbor within the
confines (north of) the hurricane barrier, and the passages through the
Elizabeth Islands, would not be considered to be ``Buzzards Bay''.
(ii) Additional positive control for barges. Except as provided in
paragraph (d)(1)(iii) of this section, each single-hull tank barge
transiting Buzzards Bay and carrying 5000 or more barrels of oil or
other hazardous material must, in addition to its primary tug, be
accompanied by an escort tug of sufficient capability to promptly push
or tow the tank barge away from danger of grounding or collision in the
event of--
(A) A propulsion failure;
(B) A parted tow line;
(C) A loss of tow;
(D) A fire;
(E) Grounding;
(F) A loss of steering; or
(G) Any other time a vessel may be operating in a Hazardous Vessel
Operating Condition as defined in Sec. 161.2 of this Chapter.
(iii) Federal pilotage. Each single-hull tank barge transiting
Buzzards Bay must be accompanied by a pilot holding an appropriately
endorsed Federal first class pilot's license issued by the Coast Guard
(``federally licensed pilot''). The federally licensed pilot may embark
upon the primary tug, or may embark upon the escort tug. In either
instance, the federally licensed pilot will monitor the navigation of
the tug and tank barge and advise the master of the primary tug if/when
the tank barge may be standing into danger.
(iv) Vessel Movement Reporting System. Effective (date), all
vessels subject to the Vessel Bridge-to-Bridge Radiotelephone
regulations, Sec. 26.03, including tug/barge combinations, shall
participate in the Buzzards Bay Vessel Movement Reporting System
(VMRS). The purpose, intent, and applicability of VMRS Buzzards Bay are
found in Sec. 161.15 and Sec. 161.16 of this chapter. The Buzzards
Bay VMRS Vessel Movement Center (``Center'') is designated as the U.S.
Army Corps of Engineers Cape Cod Canal Control, which can be reach via
marine radio at VHF 156.600 MHz (VHF CH-12). All vessels will make
reports via VHF CH-12, except those vessels with a properly operating
Automatic Information System (AIS) that is broadcasting all required
information in accordance with Sec. 161.18 of this chapter need not do
so. The International Maritime Organization (IMO) Standard Ship
Reporting System, found in Sec. 161.18,
[[Page 15656]]
will be used for the Buzzards Bay VMRS.
(A) A VMRS Buzzards Bay user shall:
(1) Not enter or get underway in the area without prior approval of
the VMRS Center;
(2) Not enter VMRS Buzzards Bay if a Hazardous Vessel Operating
Condition or circumstance per Sec. 161.2 exists;
(3) If towing astern, do so with as short a hawser as safety and
good seamanship permits;
(4) Not meet, cross, or overtake any other VMRS User in the area
without prior approval of the VMRS center;
(5) Before meeting, crossing, or overtaking any other VMRS User in
the area, communicate on the designated vessel bridge-to-bridge
radiotelephone frequency, intended navigation movements, and any other
information necessary in order to make safe passing arrangements. This
requirement does not relieve a vessel of any duty prescribed by the
International Regulations for Prevention of Collisions at Sea, 1972 (72
COLREGS) or the Inland Navigation Rules.
(6) Make reports and provide other specific information required,
and follow other VMRS participation guidelines, as contained in the
Buzzards Bay VMRS Operating Manual and/or the Local Notice to Mariners,
which will be published and available to the public at least 30 days
prior to the effective implementation date of the Buzzards Bay VMRS.
* * * * *
Dated: March 21, 2006.
David P. Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 06-3014 Filed 3-24-06; 4:14 pm]
BILLING CODE 4910-15-P