[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Rules and Regulations]
[Pages 18095-18107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7899]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 393
[Docket No. MARAD-2010-0035]
RIN 2133-AB70
America's Marine Highway Program
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Final rule.
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SUMMARY: On October 9, 2008, the Department of Transportation published
an interim final rule that established America's Marine Highway
Program, under which the Secretary will designate marine highway
corridors and identify and support short sea transportation projects to
expand domestic water transportation services as an alternative means
of moving containerized and wheeled freight cargoes; mitigate the
economic, environmental and energy costs of landside congestion;
integrate the marine highway into the transportation planning process;
and research improvements in efficiencies and environmental
sustainability. This action is required by Public Law 110-140, the
Energy Independence and Security Act of 2007. The interim final rule
solicited comments, which are discussed in the ``Section by Section
Review'' below and incorporated in this final rule. In addition, the
interim final rule sought recommendations for designation of Marine
Highway Corridors. This rule adopts the interim final rule, addresses
Marine Highway Corridors (and continues to solicit recommendations for
Marine Highway Corridor recommendations), and establishes eligibility
requirements, criteria and information necessary to apply for
designation as a Marine Highway Project by the Secretary of
Transportation. Solicitations from applicants desiring Marine Highway
Project designation will be initiated through notification in the
Federal Register at a future date. This rule also sets forth the manner
in which the Department of Transportation will identify and recommend
solutions to impediments to expanded use of marine highways and lays
the groundwork for coordinating with States, private transportation
providers, and local and Tribal governments, and conducting research
related to marine highway development. The program should improve
system capacity and efficiency, air quality, highway safety, and
national security.
DATES: This final rule is effective April 9, 2010.
FOR FURTHER INFORMATION CONTACT: Michael Gordon, Office of Intermodal
System Development, Marine Highways and Passenger Services, at (202)
366-5468, via e-mail at [email protected], or by writing to the
Office of Marine Highways and Passenger Services, MAR-520, Suite W21-
315, 1200 New Jersey Avenue, SE., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Background
Following the current economic slowdown, experts project that
cargoes moving through our ports will return to pre-recession levels.
In fact, freight tonnage of all types, including exports, imports, and
domestic shipments, is expected to grow 73 percent by 2035 from 2008
levels [``Freight Facts and Figures 2009'', U.S. Department of
Transportation, Federal Highway Administration, Office of Freight
Management and Operations; Table 2-1; November 2009]. The development
of a capable, cost-effective, safe and resilient transportation system
is essential to handling the movement of this cargo in a manner that is
efficient with respect to cost, energy usage, and environmental
consequences. Since nearly all international cargos move along our
surface transportation corridors to access or depart from seaports,
which are major gateways for commerce, getting such cargoes to and from
the major seaports could involve more usage of marine corridors to and
from smaller and medium-sized maritime ports.
The challenges faced by our nation's transportation planners and
policymakers involve making better use of existing infrastructure,
addressing the need for more capacity in our freight corridors, and
reducing the environmental impacts of transportation. In recent years,
it has become increasingly evident that the Nation's existing road and
rail infrastructure cannot adequately meet our future transportation
needs. Land-based infrastructure expansion opportunities are limited in
many critical bottleneck areas due to geography or very high right-of-
way acquisition costs. This is particularly severe in urban areas where
there are additional concerns about emissions from transportation
sources. Investments in additional infrastructure, particularly
highways, must consider the full costs to society of more greenhouse
gas emissions and pollutants and, potentially, the need to pay for such
emissions in future transportation fees. Accordingly, new road and rail
investments may not be feasible, desirable, or cost-beneficial in many
instances.
The cost of expanding our existing land-based transportation
systems, along with transportation efficiency and environmental
concerns, has caused many policymakers to re-focus on the underutilized
transportation capacity of the Nation's waterways. To help address
these challenges, America's Marine Highways can represent a viable
alternative where water transportation is an option. Expanding the
Marine Highways can be done in a way that reduces emissions, will
require less new infrastructure than land transportation alternatives,
generates significant fuel savings, and can increase resiliency in the
surface transportation system. The Marine Highways, consisting of more
than 25,000 miles of inland, intracoastal, and coastal waterways, have
considerable room for expansion. [U.S. Army Corps of Engineers,
``Waterborne Commerce of the United States'' (2005).] In fact, while
the inland river system, Great Lakes, and coastal fleets still move a
billion metric tons of cargo each year, less than 4 percent of the
Nation's domestic freight (by volume) now moves by water. However, this
is down from 1957 levels, when over 31 percent moved by water
[``National Transportation Statistics 2009,'' U.S. Department of
Transportation, Research and Innovative Technology Administration--
Bureau of Transportation Statistics; Table 1-52: Freight Activity in
the United States: 1993, 1997, 2002, and 2007].
Water transportation can be expanded quickly and at little
incremental cost to meet freight traffic needs. In addition to offering
abundant and reliable capacity under normal conditions, waterways
provide critical resiliency to the transportation system during
emergencies when land-based freight and passenger delivery systems are
damaged. Especially in urban areas, the movement of both freight and
passengers by waterway can represent an excellent opportunity to
improve
[[Page 18096]]
livability and quality of life for communities.
In recognition of the growing need to address concerns about land-
based transportation efficiencies and sustainability, Congress enacted
the Energy Independence and Security Act of 2007 (Energy Act), a sub-
title of which requires the Secretary of Transportation (Secretary) to
``establish a short sea transportation program and designate short sea
transportation projects to be conducted under the program to mitigate
surface congestion'' [Energy Independence and Security Act of 2007,
Subtitle C--Marine Transportation; Sec. 1121 Short Sea Transportation
Initiative]. Among the primary program objectives listed in the Energy
Act is to reduce surface congestion to maximize public benefits that
include, but are not limited to, improved air quality, highway safety,
and national security. Of principal concern to the Energy Act is the
movement of intermodal containerized and wheeled cargos which currently
move largely by rail and truck, often under congested surface
conditions.
The America's Marine Highway Program envisioned by the Department
of Transportation will implement the Energy Act's requirements for
short sea shipping by working to bring about a seamless, energy-
efficient, and climate-friendly transportation system through the
creation and expansion of domestic water transportation services. To
achieve these overall objectives, the program will include the
development of marine highway corridors, identification and support of
specific marine highway projects, the integration of the marine highway
into the transportation planning process, and research to improve
efficiencies and environmental sustainability. This will be
accomplished through an organized outreach effort to State and local
governments, private transportation providers and Tribal governments,
by leveraging recent discretionary Federal transportation grants (the
Transportation Investments Generating Economic Recovery, or ``TIGER,''
Program) to realize the inherent advantages of these types of services,
and working to remove impediments and identify incentives to optimize
system performance.
The goal of America's Marine Highway Program is to develop and
integrate these services into the overall transportation system in a
self-sustaining, commercially-viable manner that also recognizes the
public benefits these services create. The Marine Highway will enable
more goods and people to travel by water where possible, striking a
more equitable capacity balance between highway, rail and Marine
Highway surface routes, making it more likely our country will realize
the benefits sought by the Congress.
Discussion of Comments Received
The Department of Transportation received 95 documents reflecting
319 comments, including almost 60 corridor recommendations, to the
interim final rule during the public comment period ending February 6,
2009. The largest group of commenters was 32 port authorities, followed
by 21 private interests representing various types of carriers, 14
organizations representing maritime and environmental interests and 12
State departments of transportation. The remaining comments came from
Congressional representatives, individual private interests, and city/
county transportation and planning entities. The vast majority of
comments were supportive of the Marine Highway Program.
Generally speaking, comments received can be separated into five
categories:
The first category of comments consisted of more than 60 comments
in general agreement with the rulemaking and did not propose any
changes to the rule.
The second category of comments contained nearly 40 suggestions
that would require changes to the Energy Independence and Security Act
of 2007, United States Code or other Federal Statutes and, therefore,
could not be incorporated into the rule. Where appropriate, these
comments are summarized in the section-by-section discussion.
The third category of comments consisted of more than 100 corridor
recommendations, endorsements of recommendations, or comments that
addressed specific services, systems, proposals or geographic areas. Of
these, 30 are related either to the definition of Marine Highway
Corridors, or suggestions on how to interpret corridors as they are
defined in the Interim Final Rule. Ten comments supported corridor
recommendations made by other entities. Corridor recommendations are
addressed in section 393.3 (Marine Highway Corridors) of this rule.
Another ten comments in this grouping were deemed more appropriate to
the development of potential future Marine Highway Project applications
and are not addressed in this rule.
The fourth category of about 40 comments consisted of remarks and
suggestions that are either beyond the scope of the Marine Highway
Program, or determined not appropriate incorporation for incorporation
in the final rule. However, because these may be helpful to other
programs, they have been provided to appropriate Federal entities and
summarized in the applicable section-by-section discussion.
Six comments in this category proposed that the Marine Highway
Program be fully funded through upcoming Surface Transportation
Reauthorization. One comment proposed that the Department of
Transportation receive funding to execute the research component of the
program in order to establish a nationwide approach to the challenges
facing vessel and terminal design, construction, and other system
needs. Another suggested that the Department of Transportation identify
research funding to examine issues related to Marine Highway
Implementation. Nine other comments proposed inclusion of Canadian
Maritime Provinces and Mexico in the program. Other suggestions
addressed worker compensation rights, maritime academies, and other
activities beyond the scope of the Marine Highway Program. Numerous
comments (40) proposed specific incentives or solutions to perceived
impediments to expansion of the marine highways. Of these, the greatest
number of comments (13) focused on the degree to which collection of
Harbor Maintenance Tax acts as an impediment to the development of the
Marine Highway Program and all proposed waiving the tax for domestic
waterborne freight and passenger movements. This ad valorem tax is
charged on cargoes imported to the U.S. and pays for channel dredging
that allows access for deep draft ships to U.S. ports. However, in its
current form, the same cargo is subjected to the tax a second time if
it moves from the port of arrival to another U.S. destination by water.
The tax is not charged if this second movement of the cargo is by
landside modes.
The final category of comments contained more than 75 suggestions
that could be implemented at the discretion of the Secretary of
Transportation. The Department of Transportation was open to all
suggestions in this category and gave them careful consideration. These
comments, along with the Department of Transportation's response, are
captured in the section-by-section discussion that follows.
Section-by-Section Discussion
This section discusses comments submitted on each section of the
rule
[[Page 18097]]
along with an explanation of any changes that have been made from the
Interim Rule to the Final Rule. All references to revisions or changes
refer/pertain to language that was originally proposed in the Interim
Final Rule, as amended.
Section 393.0
The Department of Transportation received 28 comments specifically
pertaining to the summary and environmental assessment portions of the
program introduction. Six comments related to types of cargo covered by
the Marine Highway Program and nine comments pertained to the inclusion
of Mexico and Canada's Maritime Provinces. These comments will be
addressed in section 393.2 (Definitions). While many comments asserted
that expanding Marine Highway use will have positive impacts on the
environment, five commenters made specific recommendations regarding
this section. These comments are discussed below.
Environmental Considerations
The Department of Transportation received comments from five
respondents on this section regarding three general areas: National
Environmental Policy Act compliance, the Endangered Species Act, and
the Clean Air Act, which are addressed individually below:
National Environmental Policy Act (NEPA): Commenters suggested that
a programmatic environmental review be conducted for the America's
Marine Highway Program prior to issuance of the final rule to comply
with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321 et seq.). The proposed rule for the America's Marine Highway
Program is promulgating procedural rules for how Marine Highway
Corridors will be designated, and the procedure for proposing Marine
Highway Projects. These new regulations do not amount to a major
Federal action requiring NEPA analysis because the regulations are
procedural in nature and only set forth protocol for future actions
that would be subject to NEPA. See Piedmont Environmental Council v.
Federal Energy Regulatory Commission, 558 F.3d 304, 315-17 (4th Cir.
2009). Designation of Marine Highway Corridors will only identify
existing landside corridors that could, in the future, benefit from
marine transportation. The location, scope and nature of any new or
expanded services are not yet known. In addition, the extent of any
Federal action, including funding (if any) is not yet known. Conducting
an environmental review pursuant to NEPA will not provide a meaningful
analysis until: (1) There is a concrete determination of what role the
Federal government might play in encouraging such services, (2) the
geographic footprint of the program is determined and; (3) potential
Marine Highway projects are proposed. Without this information, a NEPA
analysis would not present a credible forward look and would therefore
not be a useful tool for basic program planning. Once project
applications are received, an environmental review under NEPA will be
conducted to assess the environmental effects of the proposed
project(s). See Piedmont, 558 F.3d at 317 (4th Cir. 2009). The
Environmental Considerations and other sections of the rule were
revised to reflect this and to clarify the topic.
--Part of section 393.3(d) was separated into section 393.3(c) in order
to more clearly note the procedural requirements for submitting
requests for corridor designations and the actions which may be taken
by the Department of Transportation after a corridor has been
designated.
--Section 393.4(d) has been supplemented to include language that
indicates the Department of Transportation will also evaluate projects
or groups of projects along a corridor based on the results of an
environmental review.
--Section 393.4(e)(3) has been supplemented to include language to
provide greater guidance on the information necessary for the
Department of Transportation to conduct the environmental review of the
proposed project or groups of projects along a corridor.
One commenter noted that the Maritime Administration is required to
comply with its own Administrative Order 600-1 (Procedures for
Considering Environmental Impacts). As required by the order, the
Coordinator of Environmental Activities has been, and will continue to
be consulted regarding the program to ensure appropriate and timely
actions and compliance with the Agency order. Additionally, to ensure a
continuing dialogue with environmental interests, the Department of
Transportation is establishing a new advisory board under section
393.5(e) to identify impediments and recommend solutions to increased
use of the Marine Highway.
These respondents also noted that, in evaluating the overall
benefits or impacts on the public and the environment and other
factors, all aspects should be considered, including shifts in routes
and congestion, redistribution of land-based transportation and cargo
handling infrastructure, and negative impacts of new or increased
waterway use. The Department of Transportation agrees that there are a
number of factors that will have to be considered and appreciates the
respondents' suggestions. The Department intends to use the Marine
Highway Project application and review process to identify the
appropriate factors and collect relevant information for the assessment
including whether or not some individual projects should be grouped
(e.g., along a corridor) under a single NEPA analysis as appropriate.
Endangered Species Act: Two respondents recommended that the
Department of Transportation take actions, as appropriate under the
Endangered Species Act (ESA), including commencement of the
consultation process under section 7 of the ESA. Without specific
project proposals, however, this action would be premature for this
rulemaking.
Clean Air Act: Two commenters noted that approval of individual
Marine Highway Projects may involve specific actions under the Clean
Air Act in cases where State Implementation Plans are required. The
Department of Transportation notes the comment and continues to work
closely with the EPA in development of this program.
Green Shipping Design and Operation: Two commenters noted that
there are a number of affirmative actions that the Department of
Transportation can take to maximize the benefits and minimize any
adverse impacts of Marine Highway services, both in the short and long
term. The Department of Transportation agrees. The Department of
Transportation has engaged government and academia to begin development
of a program that recognizes the activities of Marine Highway service
providers (both afloat and shoreside) that exceed current standards of
responsibility in emissions reduction, energy conservation, ballast and
discharge water management, endangered species protection, and other
categories. Several elements of projects are also intended to address
environmental responsibility, including potential relief for surface
transportation congestion related environmental, energy or safety
benefits (in the form of reduced vehicle miles traveled). In addition,
language in Section 393.4(e) (Application for Designation as a Marine
Highway Project) has been revised to both encourage participation in
and provide documentation of participation
[[Page 18098]]
in environmental or other conservation programs.
Section 393.1 Purpose
The Agency received only one comment regarding this section. The
commenter suggested expanding the statement regarding the goals of
Marine Highway Project Designations (Section 393.1(b)(2)) to go beyond
designating Marine Highway Projects solely to ``mitigate landside
congestion,'' arguing that the summary goes on to further identify the
goal of providing ``greatest benefit to the public.'' While the Act
specified the purpose of project designation, the Government
Accountability Office (GAO), in a report on this topic entitled,
``Freight Transportation: Short Sea Shipping Option Shows Importance of
Systematic Approach to Public Investment Decisions (July 2005)'' (GAO-
05-768, July 2005), proposed that public involvement should be
determined based on ``public benefits,'' with which the Department of
Transportation concurs. This paragraph (and the Purpose statement in
Section 393.4(b)) was revised to more clearly articulate these
complementary objectives.
Section 393.2 Definitions
The Agency received more than 30 comments that are best addressed
in this section. Comments focused on the definition, scope or
application of Marine Highway Corridors, proposed means of configuring
or grouping corridors and water routes that have no corresponding
landside transportation corridors, the inclusion of Mexico as well as
expanded portions of Canada in the program, cargos to be included
within the scope of the program, and entities eligible to be Project
Sponsors.
Marine Highway Corridor: The Department of Transportation received
11 comments addressing the definition of a Marine Highway Corridor, or
suggesting how corridors should be viewed. Comments included whether a
port/terminal is included in a ``Marine Highway Corridor,'' and
suggested that smaller ports and terminals, including niche ports that
handle specific commodities and passengers should be included in
corridors. After further consideration of these comments and the
intended purpose of Marine Highway Corridors, the Department of
Transportation amended the definition to be broader and more
descriptive of the land route that Marine Highway expansion would
benefit than the waterways, ports and terminals that actually provide
the relief. This is more consistent with the Act's language that calls
for the designation of short sea transportation routes as ``extensions
of the surface transportation system,'' and its purpose to ``focus
public and private efforts to use the waterways to relieve landside
congestion along coastal corridors.''
Several comments suggested delineation of routes by either National
or Regional significance, and proposed that short distance, cross
harbor or inter-terminal services can also provide significant relief.
The Department of Transportation concurs that both short and long
distance services could offer considerable benefit, and amended the
definition of Marine Highway Corridors to include ``crossings'' and
``connectors'' to address short-distance or regionally significant
routes.
Additionally, several comments were received that indicated either
an assumption or a recommendation to include routes or services that do
not have a landside alternative, and cannot therefore relieve landside
congestion. These include routes and services to Hawaii, Guam and other
territorial islands. Because these routes (and services) cannot meet
the program's stated purpose of relieving landside congestion, the
Department of Transportation believes the inclusion of these routes or
associated services falls outside the scope of the Act, and cannot be
part of the Marine Highway Program. This clarification has been
incorporated in the definition of Marine Highway Corridor.
Marine Highway (or Short Sea Transportation): The Department of
Transportation received nine comments recommending the inclusion of
Mexico and the Maritime Provinces of Canada in the definition of Marine
Highway under this program. In crafting this definition, the Department
of Transportation was mindful of the Act that authorized this program,
which did not include Mexico, or these portions of Canada in its
language. Therefore the international portion of the definition was not
changed. However, it is worth noting that--outside the scope of this
program--the Department of Transportation entered into a tri-lateral
agreement in May 2006 with Canada and Mexico to seek opportunities to
work together and expand short sea shipping services where practicable,
and this initiative will continue to receive the Department of
Transportation support outside of this program. Six comments were
received proposing that eligible cargos be expanded to include bulk,
break-bulk and heavy lift cargo. However, Section 55605 of the Energy
Act defines short sea transportation as ``carriage by vessel of cargo
that is contained in intermodal cargo containers and loaded by crane on
the vessel or loaded on the vessel by means of wheeled technology''
(also reflected in ``Summary'' section of the Interim Final Rule). The
Department of Transportation believes that the addition of bulk, break-
bulk or heavy lift cargos would go beyond the scope of the authorizing
legislation. However, three comments suggested that car floats or rail
ferries (vessels equipped with railroad track sections to accommodate
wheeled rail cars) be included in the program and the Department of
Transportation agrees this meets the scope of the Energy Act. The
definition of Roll-on/Roll-off (RO/RO) vessel was expanded to include
rail floats.
Project Sponsor: Two comments proposed that private entities be
eligible as project sponsors based on the assertion that not doing so
adds a layer of difficulty that does not advance the purpose of the
rule. The purpose of requiring that project sponsors be public sector
entities is that the Department of Transportation believes that, should
Federal funding later become available, it is not generally appropriate
for the Federal government to select individual companies as the
recipient of public funds. Rather, it is appropriate for the Federal
government to identify those projects whose stated public benefits,
offsetting savings to Federally-funded infrastructure, and likelihood
to be sustainable in the long term, represent the best potential for
return on public investment. It is up to the regional, State or local
public sector project sponsor (including Tribal governments) to
identify--through open competition--the private sector entity or
entities most able perform the proposed service(s). In light of this
approach, the final rule remains unchanged and reflects public sector
sponsorship for both marine highway corridors and projects.
Marine Highway Project: One comment suggested that projects should
include services that facilitate transfer from international-to-
domestic maritime services. Others were unsure if transportation of
passengers by water is eligible under the program. The Department of
Transportation added language to include a definition of Marine Highway
Projects under this section to better clarify the intent and
eligibility criteria for projects.
Where appropriate, language elsewhere in the rule was changed to be
consistent with these definitions.
Section 393.3 Marine Highway Corridors
The agency received more than 100 comments regarding Marine Highway
Corridors. Of these, 59 were
[[Page 18099]]
recommendations for designation of specific corridors and several
others endorsed a recommendation made by another entity. Other comments
addressed the process of corridor designation, noted the benefits of
designating corridors, and proposed options that could provide
regional, local and border crossing benefits.
Generally speaking, respondents supported designation of Marine
Highway Corridors, although one commenter indicated corridors may
become a ponderous process with limited benefit. Conversely, another
respondent believes it is a valuable way to enlarge the circle of
support and engagement and facilitates cooperative arrangements. One
commenter expressed concern that both Corridor recommendations and
Project applications could require onerous and costly research for
entities ill equipped to do so.
Ten comments cited the public benefits of marine highways,
including reduced emissions per ton-mile of commercial carriage on the
water in contrast to truck or rail. Another ten comments focused on the
various consortiums that are, or should be, engaged in the development
of marine highways, citing the need for public involvement at the
local/State and Federal levels as well as from Tribal governments for
private service providers (i.e., carriers), or public-private
partnerships. No changes to the rule were necessary in response to
these comments, as public benefit and the development of stakeholder
coalitions are already key elements of the program.
Numerous comments endorsed the concept of corridor designation and
incorporation of DOT's Corridors of the Future and proposed that
corridors include ports (both large and small), or ``marine exits,''
harbor crossings and sub-corridors. The Department of Transportation
recognizes that major arteries alone, such as the ``Corridors of the
Future'' and others, might not fully encompass these concepts and added
the terms ``connectors'' and ``crossings'' to Section 393.2
(Definitions). Connectors will provide substantial linkages to the
larger corridors and crossings will be defined as short-distance routes
that provide relief to congested border crossings, bridges or tunnels
or offer a much shorter route than the landside alternative. Section
393.3 was revised to clarify how Marine Highway Corridors will be
described and defined and the roles connectors and crossings will play
in conjunction with the larger Marine Highway Corridors.
Fifty-nine Marine Highway Corridor recommendations were received in
response to the Interim Final Rule. The Department of Transportation is
working closely with potential Corridor sponsors to combine
complimentary and interconnecting corridor proposals and develop
recommended Marine Highway connectors and crossings that offer shorter,
but potentially significant, water-bridges and linkages that can
relieve significant bottlenecks at the local and regional level.
Corridors, connectors and crossings that receive designation by the
Secretary will be published on the Maritime Administration's Marine
Highway Web site (http://www.marad.dot.gov/ships_shipping_landing_page/mhi_home/mhi_home.htm).
Section 393.4 Marine Highway Projects
While several comments received were specific to a single project,
marine highway service or geographic area, more than 30 comments
related to the content, designation process, or evaluation criteria for
Marine Highway Projects. These comments are addressed in this section.
Three commenters noted the complexity of coordinating multiple
agencies and entities when projects involve origins and destinations
separated by relatively long distances and involving numerous
jurisdictions. The Department of Transportation acknowledges this
challenge and believes that the proposed approach of designating
project sponsors and developing coalitions is an appropriate way to
address multi-jurisdictional coordination.
Four comments recommended that the Department of Transportation
recognize the benefits of dual-use vessels in Marine Highway Projects.
This capability would allow vessels in commercial service to be
available to the Department of Defense (DOD) should the need arise.
While the Departments of Transportation and Defense recognize the
considerable potential for this concept to provide sealift capacity,
and are working together toward a dual-use capability with the limited
funding that the Department of Defense has available for the
incorporation of National Defense Features, policy and protocols are
not yet in place to develop a dual-use capability. No changes to the
rule are currently warranted, however, future development of the
America's Marine Highway Program will incorporate dual-use programs
when feasible.
Several comments pertained to Marine Highway Project Applications
and the criteria by which they will be evaluated. Five commenters
recommended that the Department of Transportation recognize the public
benefits that new or expanded services offer in terms of transportation
system resiliency and redundancy, especially following natural or man-
made events that can cripple landside corridors. The Department of
Transportation has modified both the information required in the
application (Section 393.4(e)) and the evaluation criteria to reflect
this public benefit. Another comment pointed out the additional public
benefit that shifting oversize and overweight containerized or
trailerized cargo from roadways can offer because these cargos cause a
disproportionate amount of damage to road surfaces, bridges and
tunnels. Language was added to Section 393.4(e)(1)(D) and the
evaluation criteria to address this benefit.
One commenter asserted that project designation should be based
primarily on the ability to demonstrate a clear path to profitability.
While the Department of Transportation agrees that the ability of a
project to ultimately become self supporting is an important criterion,
a path to profitability alone does not establish a rationale for
governmental involvement in the project, which should instead be based
on the potential to produce public benefits. This is also consistent
with a public investment approach proposed by the Government
Accountability Office report, entitled, ``Freight Transportation: Short
Sea Shipping Option Shows Importance of Systematic Approach to Public
Investment Decisions (July 2005)'' (GAO-05-768, July 2005). However, to
better clarify this methodology, both the information required in
project applications and the weight-based criteria were reorganized in
the final rule. Additionally, in recognition that confidential business
information may be required to adequately describe the finance plan, a
section was added to protect confidential business information.
Two commenters believe that the Marine Highway Program needs strong
support throughout DOT's leadership and inquired about the process and
means by which Marine Highway Project applications will be evaluated,
designated and supported by the Federal government. An inter-agency
review team, consisting of both the Department of Transportation and
non-Department of Transportation representation will be established for
this purpose. Section 393.4(e)(6) titled ``Evaluation Process'' was
inserted into the final rule to address this.
Nine comments were received that recommended the Department of
[[Page 18100]]
Transportation establish standard measures to quantify benefits of
proposed Marine Highway Projects. Suggestions included specifying the
use of ``ton-miles'' and including a formula to convert to/from twenty-
foot equivalent unit (TEU) and forty-foot equivalent unit (FEU) using
standard weights. Commenters recommended including standards for diesel
emissions, fuel savings, and standards to quantify savings in highway
maintenance and bridge maintenance, as well as safety benefits on a
per-mile basis. The Department of Transportation believes that
development and use of uniform measures, to the extent practicable,
would benefit applicants, improve objective review of applications and
set the stage for consistent performance measures for projects that
receive designation by the Secretary. The Department of Transportation
concurs that standards of measure and some basic baseline measures
would be beneficial, but applicants should be encouraged to use more
accurate or localized data and measures, when available. Section
393.4(e)(3) was added in the final rule, addressing this issue, but the
actual standards and measures will be posted on the Maritime
Administration's Web site to enable refinement and updating over time.
One commenter noted that, after initial designation, a corridor
could expand beyond the original scope in the designation. While the
Department of Transportation intends that the Marine Highway Corridors
be broadly defined and inclusive of all related ports, both large and
small, it is recognized that specific projects could (and hopefully
will) find expansion opportunities after designation by the Secretary
of Transportation. To address this possibility, Section 393.4(e)(5) was
amended to establish a process by which this can be achieved.
Section 393.5 Incentives, Impediments and Solutions
A total of 60 comments were received that either recommended
incentives, or identified and recommended solutions for impediments to
increased use of America's Marine Highway. Many of these comments could
be interpreted as proposing an incentive or addressing specific
impediments. Commenters proposed incentives including tax credits,
reduced emissions incentives, accelerated depreciation and other
mechanisms for shippers, service providers, shipyards and other
stakeholders. Other comments recommended subsidies to reduce start-up
risk, use of Congestion Mitigation and Air Quality (CMAQ) funding, and
other vehicles to stimulate new services and vessel construction. While
no changes to the rule were warranted by these comments, the Department
of Transportation appreciates the thoughtful suggestions and will take
them into consideration in meeting the Energy Act's requirement to
develop and propose short-term incentives that would encourage the use
of the Marine Highway.
Comments that identified or recommended solutions to impediments to
increased use of the Marine Highway had several areas of focus. The
greatest number of comments (13) identified the Harbor Maintenance Tax
(HMT) as an impediment and recommended waiving HMT for domestic
waterborne shipments. One commenter noted that with 18 Federal
departments and agencies playing a role in marine transportation policy
and operations, the lack of a comprehensive regulatory structure in
general represents an impediment to marine highway growth. The 24-hour
advance notice requirement for U.S.-Canada services was also identified
as an impediment, as the duration of most of these voyages is well
under 24 hours. Other comments proposed funding mechanisms for
infrastructure, weight handling equipment and port-connectors,
increased dredging in the Great Lakes, short-term or temporary
modifications to the Jones Act, streamlining or modification of the
Title XI loan guarantee program, and changes to worker compensation
policy, among other items. No statutory authority currently exists to
implement these recommendations. Therefore, no changes to the rule were
warranted by these comments, however, the Department of Transportation
appreciates this input and will provide these comments to the advisory
board that the Energy Act calls for to examine these issues.
One commenter indicated that the program needs to be incorporated
into the policies and programs of several Federal departments to
address various impediments to marine highway expansion. The Department
of Transportation intends to include several key governmental agencies
on the advisory board to address these issues, but no change to the
rule is needed to achieve this outcome.
Section 393.6 Research on Marine Highway Transportation
The Department received one comment specific to section 393.6. The
commenter recommended that the Department of Transportation direct
funding for the Maritime Administration to sponsor Marine Highway
Research and Development centers that would be provided through Surface
Transportation Reauthorization, and be primarily aimed at vessel design
(including dual-use DOD/commercial capabilities) and interfacing port/
terminal design with emerging vessel characteristics. This comment is
beyond the scope of the rulemaking and does not impact the final rule.
Program Description
In this rulemaking, the Department of Transportation adopts as
final, with some minor and clarifying changes, the America's Marine
Highway Program established by the October 9, 2008, Interim Final Rule.
This rulemaking also sets forth more specific procedures for
recommendations for designation of Marine Highway Corridors, and
separate procedures for applications for Marine Highway Projects.
Rulemaking Analyses and Notices
Executive Order 12866 and Department of Transportation Regulatory
Policies and Procedures
This rulemaking is not significant under section 3(f) of Executive
Order 12866, and as a consequence, the Office of Management and Budget
(OMB) did not review the rule. This rulemaking is also not significant
under the Regulatory Policies and Procedures of the Department (44 FR
11034; February 26, 1979). It is also not considered a major rule for
purposes of Congressional review under Public Law 104-121. Designation
of Marine Highway Corridors and Marine Highway Projects does not have
an immediate economic impact. Following designation, individual
Corridor and Project components that may have an economic impact will
be determined as they are identified.
Executive Order 13132
We analyzed this rulemaking in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism'') and have
determined that it does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. The
regulations herein have no substantial effects on the States, the
current Federal-State relationship, or the current distribution of
power and responsibilities among local officials. No State, local
government or Tribal government raised concerns about federalism in
comments regarding the interim final rule. Therefore, we did not
consult with State and local officials on
[[Page 18101]]
this procedural rule. However, we will act as partners with States and
local officials in transportation planning and supporting individual
projects under this program.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires us to assess the impact
that regulations will have on small entities. After analysis of this
final rule, the Department of Transportation certifies that this rule
will not have a significant economic impact on a substantial number of
small entities, because this rule merely sets forth procedures.
Environmental Impact Analysis
We have analyzed this final rule for purposes of compliance with
the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.) and we have concluded that designation of Marine Highway
Corridors does not have an immediate environmental impact. Designation
of Marine Highway Corridors will only identify existing landside
corridors that could, in the future, accommodate and benefit from
expanded marine transportation. The location, scope and nature of any
new or expanded services is not yet known. The promulgation of these
procedural rules does not therefore significantly affect the
environment. In addition, the extent of any Federal action, including
funding (if any) is not yet known. NEPA analysis will be conducted
when: (1) There is a concrete determination of what role the Federal
government might play in encouraging such services, (2) the geographic
footprint of the program is determined and; (3) potential Marine
Highway projects are proposed. Until this information is available, a
NEPA analysis would not present a credible forward look and would
therefore not be a useful tool for basic program planning. NEPA
analysis will be commenced as soon as sufficient information is
available.
Paperwork Reduction Act
This regulation establishes new requirements for designation of a
Marine Highway Project and republishes the requirements in MARAD-2008-
0096 for designation of a Marine Highway Corridor. Persons seeking
designation of a Corridor or Project (if within a designated Marine
Highway Corridor) under America's Marine Highway Program are required
to submit a written application via U.S. Mail or electronically via
http://www.regulations.gov (MARAD-2010-0022). Measurements and
standards (criteria) for designation of a Marine Highway Project will
be published on the Maritime Administration's Web site (http://www.marad.dot.gov/ships_shipping_landing_page/mhi_home/mhp_trans_planning/mhp_trans_planning.htm). The format will also be provided.
The information collected will be used to review recommendations
for designation as a Marine Highway Corridor or Project and evaluate
applications for designation as ``America's Marine Highway Corridor''
or ``America's Marine Highway Project.'' (The Department of
Transportation will keep business information confidential if marked
accordingly.) Designated projects will also be published on the
Maritime Administration's Web site (http://www.marad.dot.gov/ships_shipping_landing_page/mhi_home/mhp_project_recommendations/mhp_project_recommendations.htm).
The Office of Management and Budget (OMB) will be requested to
review and approve the information collection requirements under the
Paperwork Reduction Act of 1995 (44 U.S.C. Sec. 3501, et seq.).
Unfunded Mandates Reform Act
This rulemaking does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either State, local, or Tribal governments,
in the aggregate, or to the private sector, and is the least burdensome
alternative that achieves this objective of U.S. policy. Department
guidance requires the use of a revised threshold figure of $141.3
million, which is the value of $100 million in 1995 after adjusting for
inflation.
Consultation and Coordination With Indian Tribal Governments
Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments, dated November 6, 2000, seeks to establish regular
and meaningful consultation and collaboration with Tribal officials in
the development of Federal policies that have Tribal implications, to
strengthen the United States government-to-government relationships
with Indian Tribal Governments, and to reduce the imposition of
unfunded mandates upon Indian Tribes. At this time we believe that
designation of Marine Highway Corridors and Marine Highway Projects
does not have an impact on Indian Tribal Governments. Following
designation, individual Corridor and Project components that may have
an impact on Indian Tribes will be determined as they are identified.
The Department of Transportation will consult with those Indian Tribal
Governments that may be affected by these designations on factors
pertaining to program implementation.
Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.regulations.gov.
List of Subjects in 46 CFR Part 393
Marine Highway, Short sea transportation, Vessels.
0
Accordingly, the Department of Transportation amends 46 CFR Chapter II
by revising part 393 to read as follows:
PART 393--AMERICA'S MARINE HIGHWAY PROGRAM
Sec.
393.1 Purpose.
393.2 Definitions.
393.3 Marine Highway Corridors.
393.4 Marine Highway Projects.
393.5 Incentives, Impediments and Solutions.
393.6 Research on Marine Highway Transportation.
Authority: Energy Independence and Security Act of 2007,
Sections 1121, 1122, and 1123 of Public Law 110-140, enacted into
law on December 19, 2007 (121 Stat. 1492).
Sec. 393.1 Purpose.
(a) This part prescribes final regulations establishing a short sea
transportation program as set forth in Sections 1121, 1122, and 1123 of
the Energy Independence and Security Act of 2007, enacted into law on
December 19, 2007.
(b) The purpose of America's Marine Highway Program is described in
Section 1121. Section 1121 states that ``[t]he Secretary shall
designate short sea transportation routes as extensions of
[[Page 18102]]
the surface transportation system to focus public and private efforts
to use the waterways to relieve landside congestion along coastal
corridors.'' America's Marine Highway Program consists of four primary
components:
(1) Marine Highway Corridor Designations. This regulation
establishes the goals and methods by which specific Marine Highway
Corridors (including Connectors and Crossings) will be identified and
designated by the Secretary of Transportation. The purpose of
designating Marine Highway Corridors is to integrate America's Marine
Highway into the surface transportation system. The Marine Highway
Corridors will serve as extensions of the surface transportation
system. They are commercial coastal, inland, and intracoastal waters of
the United States, described in terms of the specific landside
transportation routes (road or rail line) that they supplement. They
support the movement of passengers and cargo along these specified
routes and mitigate the effects of landside congestion, such as
increased emissions and energy inefficiencies. In addition to
corridors, the Secretary may designate Marine Highway ``Connectors''
and ``Crossings'' as described in paragraphs (h)(1) and (h)(2) of Sec.
393.2. Through America's Marine Highway Program, the Department will
encourage the development of multi-jurisdictional coalitions and focus
public and private efforts and investment on shifting freight and
passengers from at- or near capacity landside routes to more
effectively utilize Marine Highway Corridors.
(2) Marine Highway Project Designations. This regulation
establishes the goals and methods by which specific Marine Highway
Projects will be identified and designated by the Secretary of
Transportation. The purpose is to designate projects that, if
successfully implemented, expanded, or otherwise enhanced, would reduce
external costs and provide the greatest benefit to the public. Closely
linked to congestion relief, public benefits can include, but are not
limited to, reduced emissions, including greenhouse gases, reduced
energy consumption, reduced costs associated with landside
transportation infrastructure maintenance savings, improved safety and
transportation system resiliency and redundancy. Additional
consideration will be given to Marine Highway Projects that represent
the most cost-effective option among other modal improvements.
Designated Marine Highway Projects may receive direct support from the
Department as described in this section.
(3) Incentives, Impediments and Solutions. This section outlines
how the Department, in partnership with public and private entities,
will identify potential incentives, seek solutions to impediments to
encourage utilization of America's Marine Highway and incorporate it,
including ferries, in State, regional, local, and Tribal government
transportation planning.
(4) Research. This section describes the research that the
Department, working with the Environmental Protection Agency, will
conduct to support America's Marine Highway, within the limitations of
available resources, and to encourage multi-State planning. Research
would include environmental and transportation impacts (benefits and
costs), technology, vessel design, and solutions to impediments to the
Marine Highway.
(c) In addition, vessels engaged in Marine Highway operations may
apply for Capital Construction Fund (CCF) benefits. This program was
created to assist owners and operators of U.S.-flag vessels in
accumulating the capital necessary for the modernization and expansion
of the U.S. merchant marine by encouraging construction,
reconstruction, or acquisition of vessels through the deferment of
Federal income taxes on certain deposits of money placed into a CCF.
Sec. 393.2 Definitions.
For the purposes of this part:
(a) Administrator. The Maritime Administrator, Maritime
Administration, U.S. DOT, who has been authorized by the Secretary of
Transportation to administer America's Marine Highway Program.
(b) Applicant. An entity that applies for designation of a Marine
Highway Corridor or Project under this regulation.
(c) Coastwise Shipping Laws. Laws, including the Jones Act, as set
forth in Chapter 551 of Title 46, United States Code.
(d) Corridor Sponsor. An entity that recommends a Corridor
(including a Connector or Crossing, as described below) for designation
as a Marine Highway Corridor. Corridor sponsors must be public
entities, including but not limited to, Metropolitan Planning
Organizations, State governments (including Departments of
Transportation), port authorities and Tribal governments, who may
submit recommendations for designation as a Marine Highway Corridor.
(e) Department. The U.S. Department of Transportation (DOT).
(f) Domestic Trade. Trade between points in the United States.
(g) Lift-on/Lift-off (LO/LO) Vessel. A vessel of which the loading
and discharging operations are carried out by cranes and derricks.
(h) Marine Highway Corridor. A water transportation route that
serves as an extension of the surface transportation system that can
help mitigate congestion-related impacts along a specified land
transportation route. It is identified and described in terms of the
land transportation route that it supplements, and must, by
transporting freight or passengers, provide measurable benefits to the
surface transportation route in the form of traffic reductions, reduced
emissions, energy savings, improved safety, system resiliency, and/or
reduced infrastructure costs. Routes that cannot relieve landside
congestion (i.e.; those to/from islands) are not eligible for
designation under this program. In addition to ``Corridors,''
prospective sponsors can recommend Marine Highway ``Connectors'' and
``Crossings'' for designation as described in paragraphs (h)(1) and
(h)(2) of this section:
(1) Marine Highway Connectors are routes that will provide
substantial linkages to or between the larger corridors, and serve, in
conjunction with a corridor, to move freight and/or passengers into,
out of or within a region.
(2) Marine Highway Crossings are routes that provide relief to
congested border crossings, bridges, and tunnels or offer a shorter
route than the landside alternative. Although they may not parallel a
corridor or connector, crossings may provide relief to a corridor or
connector, or to local or regional passenger and freight transportation
systems. Crossings may include cross-harbor and inter-terminal
passenger and/or freight services.
(i) Marine Highway Project. A new Marine Highway service, or
expansion of an existing service, that receives support from the
Department and provides public benefit by transporting passengers and/
or freight (container or wheeled) in support of all or a portion of a
Marine Highway Corridor, Connector or Crossing. Projects are proposed
by a project sponsor and designated by the Secretary under this
program.
(j) Marine Highway (or Short Sea Transportation): The carriage by
vessel of passengers and/or cargo (intermodal containers, trailers, car
floats, rail ferries and other cargoes loaded by wheeled technology)
that is loaded at a port in the United States and unloaded either at
another port in the United States, or that
[[Page 18103]]
is loaded at a port in the United States and unloaded at a port in
Canada located in the Great Lakes-Saint Lawrence Seaway System, or
loaded at a port in Canada located in the Great Lakes-Saint Lawrence
Seaway System and unloaded at a port in the United States. For the
purposes of this specific program, routes and services that do not
offer potential relief to a landside transportation route (i.e.; to/
from islands) do not fall within this definition.
(k) Project sponsor. Project sponsors must be public entities,
including but not limited to, Metropolitan Planning Organizations,
State governments (including State Departments of Transportation), port
authorities and Tribal governments, who may submit applications for
designation as a Marine Highway Project.
(l) Roll-on/Roll-off (RO/RO) Vessel. Any vessel that has ramps
allowing cargo to be loaded and discharged by means of wheeled vehicles
so that cranes are not required. This includes, but is not limited to
trailers, car floats and ferries, including rail ferries.
(m) Secretary. The Secretary of Transportation.
(n) United States Documented Vessel. A vessel documented under 46
U.S.C. Chapter 121.
Sec. 393.3 Marine Highway Corridors.
(a) Summary. The purpose of this section is to designate specific
routes as Marine Highway Corridors (including Connectors and
Crossings). Corridors will be designated by the Secretary. The goal of
this designation process is to accelerate the development of multi-
State and multi-jurisdictional Marine Highway Corridors to relieve
landside congestion. Designation will encourage public/private
partnerships, and help focus investment on those Marine Highway
Corridors that offer the maximum potential public benefit in
congestion-related emissions reduction, energy efficiency, safety and
other areas. Corridors already designated as ``Corridors of the
Future'' under DOT's National Strategy to Reduce Congestion that have
commercial waterways that parallel or can otherwise benefit them will
be fast-tracked for designation as Marine Highway Corridors.
(b) Objectives. The primary objectives of the designation of Marine
Highway Corridors are to:
(1) Establish Marine Highway Corridors as ``extensions of the
surface transportation system'' as provided by Section 1121 of the
Energy Independence and Security Act of 2007.
(2) Develop multi-jurisdictional coalitions that focus public and
private efforts to use the waterways to relieve congestion-related
impacts along land transportation routes for freight and passengers.
(3) Obtain public benefit by shifting freight and passengers in
measurable terms from land transportation routes to Marine Highway
Corridors. In addition, public benefits can include, but are not
limited to, reduced emissions, including greenhouse gases, reduced
energy consumption, landside infrastructure maintenance savings,
improved safety, and added system resiliency. Additional consideration
will be given to Marine Highway Projects that represent the most cost-
effective option among other modal improvements and projects that
reduce border delays.
(4) Identify potential savings that could be realized by providing
an alternative to land transportation infrastructure construction and
maintenance.
(c) Designation of Marine Highway Corridors. The Department will
continue to accept Marine Highway Corridor recommendations from
prospective Corridor sponsors. Corridor sponsors must be public
entities, including but not limited to, Metropolitan Planning
Organizations, State governments (including State Departments of
Transportation), port authorities and Tribal governments. In addition
to ``Corridors,'' prospective sponsors may recommend Marine Highway
``Connectors'' and ``Crossings'' for designation by the Secretary (see
definitions). The Secretary will make Marine Highway Corridor
designations. In certain cases the Secretary of Transportation may
designate a Marine Highway Corridor, Connector or Crossing without
receipt of a recommendation. The Department will publish all Marine
Highway Corridors that receive designation by the Secretary on the
Maritime Administration's Web site. Interested parties are encouraged
to visit http://www.marad.dot.gov/ships_shipping_landing_page/mhi_home/mhi_home.htm for the current list of Designated Corridors. When
responding to specific solicitations for Marine Highway Corridors,
Connectors and Crossings by the Secretary of Transportation, the
sponsors should provide the following information in the
recommendation:
(1) Physical Description of Proposed Marine Highway Corridor.
Describe the proposed Marine Highway Corridor (including Connector or
Crossing), and its connection to existing or planned transportation
infrastructure and intermodal facilities. Include key navigational
factors such as available draft, channel width, bridge or lock
clearance and identify if they could limit service.
(2) Surface Transportation Corridor Served. Provide a summary of
the land transportation route that the Marine Highway would benefit.
Include a description of the route, its primary users, the nature,
locations and occurrence of travel delays, urban areas affected, and
other geographic or jurisdictional issues that impact its overall
operation and performance.
(3) Involved Parties. Provide the organizational structure of the
parties recommending the Corridor designation including business
affiliations, and private sector stakeholders. Multi-jurisdictional
coalitions may include State Departments of Transportation,
Metropolitan Planning Organizations, municipalities and other
governmental entities (including Tribal) that have been engaged.
Include the extent to which they support the corridor designation.
Provide any affiliations with environmental groups or civic
associations.
(4) Passengers and Freight. Identify the number of likely
passengers and/or quantity of freight that are candidates for shifting
to water transportation on the proposed Marine Highway Corridor. If
known, include specific shippers, manufacturers, distributors or other
entities that could benefit from a Marine Highway alternative, and the
extent to which these entities have been engaged.
(5) Congestion Reduction. Describe the extent to which the proposed
Corridor could relieve landside congestion in measurable terms. Include
any known offsetting land transportation infrastructure savings (either
construction or maintenance) that would result from the project.
(6) Public benefits. Provide, if known, the savings over status quo
in emissions, including greenhouse gases, energy consumption, landside
infrastructure maintenance costs, safety and system resiliency. Specify
if the Marine Highway Corridor represents the most cost-effective
option among other modal improvements. Include consideration of the
implications future growth may have on the proposal.
(7) Impediments. Describe known or anticipated obstacles to
shifting capacity to the proposed Marine Highway Corridor. Include any
strategies, either in place or proposed, to deal with the impediments.
(d) Scope of Department Support. Marine Highway Corridors,
Connectors and Crossings that receive designation will be posted on a
Web site maintained by the Maritime Administration. The Department of
Transportation will coordinate with Corridor sponsors to
[[Page 18104]]
identify the most appropriate actions to support the Corridors. Support
could include any of the following, as appropriate and within agency
resources:
(1) Promote the Corridor with appropriate governmental, State,
local and Tribal government transportation planners, private sector
entities or other decision-makers.
(2) Coordinate with ports, State Departments of Transportation,
Metropolitan Planning Organizations, localities, other public agencies
(including Tribal governments) and the private sector to support the
designated corridor. Efforts can be aimed at obtaining access to land
or terminals, developing landside facilities and infrastructure, and
working with Federal, regional, State, local, and Tribal governmental
entities to remove barriers to self-supporting operations.
(3) Pursue memorandums of agreement with other Federal entities to
transport Federally owned or generated cargo using waterborne
transportation along the Marine Highway Corridor, when practical or
available.
(4) Assist with collection and dissemination of data for the
designation and delineation of Marine Highway Corridors as available
resources permit.
(5) Work with Federal entities and regional, State, local and
Tribal governments to include designated Corridors in transportation
planning.
(6) Bring specific impediments to the attention of the advisory
board chartered to address such barriers.
(7) Conduct research on issues specific to designated Corridors as
available resources permit.
(8) Utilize current or future Federal funding mechanisms, as
appropriate, to support the Corridor.
(9) Communicate with designated Corridor coalitions to provide
ongoing support and identify lessons learned and best practices for the
overall Marine Highway program.
Sec. 393.4 Marine Highway Projects.
(a) Summary. The purpose of this section is to designate projects
that, if successfully implemented, expanded, or otherwise enhanced,
would reduce external costs and provide the greatest benefit to the
public. In addition to congestion relief, public benefits can include,
but are not limited to, reduced emissions, including greenhouse gases,
reduced energy consumption, landside infrastructure maintenance
savings, and improved safety. The Department will give additional
consideration to Marine Highway Projects that represent the most cost-
effective option among other modal improvements or reduce border
crossing delays. Some Marine Highway Projects can also provide public
benefit by offering routes that are more resilient to natural or human
incidents that interrupt surface transportation, or provide additional,
redundant surface transportation options. Designation can help focus
public and private investment on pre-identified projects that offer the
maximum potential public benefit. Designated Marine Highway Projects
may receive support from the Department as described in this section.
(b) Objectives. The primary objectives of the designation of Marine
Highway Projects are to:
(1) Reduce landside congestion-related impacts.
(2) Identify proposed water transportation services that represent
the greatest public benefit as measured in reduced emissions, including
greenhouse gases, reduced energy consumption, landside infrastructure
maintenance savings and improved safety.
(3) Identify potential savings with water transportation projects
that represent the most cost-effective option among other modal
improvements or reduce border crossing delays.
(4) Improve surface transportation system resiliency and provide
additional options.
(5) Focus resources on those projects that offer the greatest
likelihood of successful operation.
(6) Develop best practices for the Marine Highway Program.
(7) Provide specific examples, with performance measures and
quantifiable outcomes, of successful Marine Highway Projects for
demonstration of the benefits of water transportation.
(c) Designation of Marine Highway Projects. The Department will
solicit applications for designation as specific Marine Highway
Projects. Applications will be accepted from a Project sponsor. Project
sponsors must be public entities, including but not limited to,
Metropolitan Planning Organizations, State governments (including State
Departments of Transportation), port authorities and Tribal
governments. Project sponsors are encouraged to develop coalitions and
public/private partnerships with the common objective of developing the
specific Marine Highway Project. Potential partners can include vessel
owners and operators, third party logistics providers, trucking
companies, shippers, railroads, port authorities, State, regional,
local and Tribal government transportation planners, environmental
interests or any combination of entities working in collaboration under
a single application. Candidate Projects can start a new operation or
be an existing Marine Highway operation where expansion or improvements
present maximum public benefit. Applications must meet the requirements
of coastwise shipping laws and all applicable Federal, State and local
laws.
(d) Action by the Department of Transportation. The Department will
evaluate and select Projects based on an analysis and technical review
of the information provided by the applicant. The Department will also
evaluate projects based on the results of an environmental analysis.
Projects that support a designated Marine Highway Corridor (or
Connector or Crossing), receive a favorable technical review, and meet
other criteria as defined in 46 CFR 393.4(e), may be nominated by the
Maritime Administrator for selection by the Secretary. Upon designation
as a Marine Highway Project, the Department will coordinate with the
Project sponsor to identify the most appropriate Departmental actions
to support the project. Department support could include any of the
following, as appropriate and within agency resources:
(1) Promote the service with appropriate governmental, regional,
State, local or Tribal government transportation planners, private
sector entities or other decision makers.
(2) Coordinate with ports, State Departments of Transportation,
Metropolitan Planning Organizations, localities, other public agencies
and the private sector to support the designated service. Efforts can
be aimed at identifying resources, obtaining access to land or
terminals, developing landside facilities and infrastructure, and
working with Federal, regional, State, local or Tribal governmental
entities to remove barriers to success.
(3) Pursue memorandums of agreement with other Federal entities to
transport Federally owned or generated cargo using the services of the
designated project, when practical or available.
(4) In cases where transportation infrastructure is needed, Project
sponsors may request to be included on the Secretary of
Transportation's list of high-priority transportation infrastructure
projects under Executive Order 13274, ``Environmental Stewardship and
Transportation Infrastructure Project Review.'' For these projects,
Executive Order 13274 provides that Federal agencies shall, to the
maximum extent practicable, expedite their reviews for relevant permits
or other approvals and take related actions as necessary, consistent
[[Page 18105]]
with available resources and applicable laws.
(5) Assist with developing individual performance measures for
Marine Highway Projects.
(6) Work with Federal entities and regional, State, local and
Tribal governments to include designated Projects in transportation
planning.
(7) Bring specific impediments to the attention of the advisory
board chartered to address these barriers.
(8) Conduct research on issues specific to Marine Highway Projects.
(9) Utilize current or future Federal funding mechanisms, as
appropriate, to support the Projects.
(10) Maintain liaison with sponsors and representatives of
designated Projects to provide ongoing support and identify lessons
learned and best practices for other projects and the overall Marine
Highway program.
(e) Application for Designation as a Marine Highway Project. This
section specifies the criteria that the Department will use to evaluate
Marine Highway Project applications. Applicants should provide the
following:
(1) Applications for Proposed Projects. When responding to specific
solicitations for Marine Highway Projects by the Department, describe
the overall operation of the proposed project, including which ports
and terminals will be served, number and type of vessels, size,
quantity and type of cargo and/or passengers, routes, frequency, and
other relevant information. Applicants should also include the
following information in their project applications:
(i) Marine Highway Corridor(s). Identify which, if known,
designated Marine Highway Corridors, Connectors or Crossings will be
utilized.
(ii) Organization. Provide the organizational structure of the
proposed project, including business affiliations, environmental, non-
profit organizations and governmental or private sector stakeholders.
(iii) Partnerships.
(A) Private Sector participation. Identify private sector partners
and describe their levels of commitment. Private sector partners can
include terminals, vessel operators, shipyards, shippers, trucking
companies, railroads, third party logistics providers, shipping lines,
labor, workforce and other entities deemed appropriate by the
Secretary.
(B) Public Sector partners: Identify State Departments of
Transportation, Metropolitan Planning Organizations, municipalities and
other governmental entities (including Tribal) that have been engaged
and the extent to which they support the service. Include any
affiliations with environmental groups or civic associations.
(C) Documentation. Provide documents affirming commitment or
support from entities involved in the project.
(iv) External cost savings and public benefit.
(A) Potential relief to surface transportation travel delays.
Describe the extent to which the proposed project will relieve landside
congestion in measurable terms now and in the future, such as
reductions in vehicle miles traveled. Include the landside routes that
stand to benefit from the water transportation operation.
(B) Emissions benefits. Address the savings, in quantifiable terms,
now and in the future over the current practice in emissions, including
greenhouse gas emissions, criteria air pollutants or other
environmental benefits the project offers.
(C) Energy savings. Provide an analysis of potential reductions in
energy consumption, in quantifiable terms, now and in the future over
the current practice.
(D) Landside transportation infrastructure maintenance savings. To
the extent the data is available, indicate, in dollars per year, the
projected savings of public funds that would result from a proposed
project in road or railroad maintenance or repair, including pavement,
bridges, tunnels or related transportation infrastructure. Include the
impacts of accelerated infrastructure deterioration caused by vehicles
currently using the route, especially in cases of oversize or
overweight vehicles.
(E) Safety improvements. Describe, in measurable terms, the
projected safety improvements that would result from the proposed
operation.
(F) System resiliency and redundancy. To the extent data is
available describe, if applicable, how a proposed Marine Highway
Project offers a resilient route or service that can benefit the
public. Where land transportation routes serving a locale or region are
limited, describe how a proposed project offers an alternative and the
benefit this could offer when other routes are interrupted as a result
of natural or man-made incidents.
(v) Capacity Alternatives. In cases where a Marine Highway Project
is proposed as an alternative to constructing new land transportation
capacity, indicate, in quantifiable terms, whether the proposed project
represents the most cost-beneficial option among other modal
improvements. Include in the comparison an analysis of the full range
of benefits expected from the project. Include the projected savings in
life-cycle costs of publicly maintained infrastructure.
(vi) Business Planning. Indicate the degree to which the proposed
project is associated with a service that is self-supporting:
(A) Financial plan. Provide the project's financial plan and
provide projected revenues and expenses. Include labor and operating
costs, drayage, fixed and recurring infrastructure and maintenance
costs, vessel or equipment acquisition or construction costs, etc.
Include any anticipated changes in local or regional freight or
passenger transportation, policy or regulations, ports, industry,
corridors, or other developments affecting the project.
(B) Demand for services. Identify shippers that have indicated an
interest in and level of commitment to the proposed service, or
describe the specific commodities, market, and shippers the service
will attract, and the extent to which these entities have been engaged.
In the case of services involving passengers, provide indicators of
demand for the service, anticipated volumes and other factors that
indicate likely utilization of the service. Include a marketing
strategy, if one is in place.
(C) Analysis. Provide, (or reference, if publicly available) market
or transportation system research, data, and analysis used to develop
or support the business model.
(vii) Proposed Project Timeline. Include a proposed project
timeline with estimated start dates and key milestones. Include the
point in the timeline at which the enterprise is anticipated to attain
self-sufficiency (if applicable).
(viii) Support. Describe any known or anticipated obstacles to
either implementation or long-term success of the project. Include any
strategies, either in place or proposed, to mitigate impediments. In
the event that public sector financial support is being sought,
describe the amount, form and duration of public investment required.
(ix) Environmental Considerations. Applicants must provide all
information on hand that would assist the Department in conducting
environmental analysis of the proposed project under the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.)
(2) Cost and Benefits. The Department believes that benefit-cost
analysis (BCA), including the monetization and discounting of costs and
benefits to a common unit of measurement in present-day dollars, is
important. The systematic process of comparing
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expected benefits and costs helps decision-makers organize information
about, and evaluate trade-offs between alternative transportation
investments. However, we also recognize that development of a thorough
BCA can be prohibitively costly to applicants, especially in cases
where Federal funding is not currently available. Applicants should
provide a BCA, if one is available. At a minimum, applicants should
provide estimates of the project's expected benefits in external cost
savings and public benefit and costs of capacity alternatives [sections
393.4(e)(1)(iv) and 393.4(e)(1)(v)].
(3) Standards and Measures. The Department will post, on the
Maritime Administration's Web site, (http://www.marad.dot.gov) proposed
standards (i.e.: the definition and use of ton-miles, measures of
landside congestion, etc.) and measures that, lacking more specific or
technically supported applicant-provided data, will be used by the
Department to evaluate applications. Some examples of measures are the
use of a standard cargo tonnage per container, fuel consumption rates,
vehicle emissions and safety data for various transportation options,
and baseline maintenance, repair and construction costs for surface
transportation infrastructure. While we recognize that these standards
and measures may not be ideal, the intent is to establish a minimal
baseline by which to evaluate external costs and public benefits of
transportation options. In the event applicants provide more specific
and supported measures, they will be used in evaluating the potential
benefits and costs of a project.
(4) Protection of Confidential Business Information. All
information submitted as part of or in support of an application shall
use publicly available data or data that can be made public and
methodologies that are accepted by industry practice and standards, to
the extent possible. If your application includes information that you
consider to be trade secret or confidential commercial or financial
information, please do the following:
(i) Note on the front cover that the submission ``Contains
Confidential Business Information (CBI);''
(ii) Mark each affected page ``CBI;'' and
(iii) Clearly highlight or otherwise denote the CBI portions. The
Department protects such information from disclosure to the extent
allowed under applicable law. In the event the Department receives a
Freedom of Information Act (FOIA) request for the information, the
Department will follow the procedures described in its FOIA regulations
at 49 CFR Sec. 7.17. Only information that is ultimately determined to
be confidential under that procedure will be exempt from disclosure
under FOIA.
(5) Contents of Application. When responding to specific
solicitations for Marine Highway Projects by the Department, applicants
should include all of the information requested by Section 393.4(e)(1)
and (2) above organized in a manner consistent with the elements set
forth in that section. The Department reserves the right to ask any
applicant to supplement the data in its application, but expects
applications to be complete upon submission. The narrative portion of
an application should not exceed 20 pages in length. The narrative
should address all relevant information contained in paragraphs
(e)(1)(i) through (ix) of Sec. 393.4. Documentation supporting the
assertions made in the narrative portion may also be provided in the
form of appendices, but limited to relevant information. Applications
may be submitted electronically via the Federal Register (http://www.regulations.gov). Applications submitted in writing must include
the original and three copies and must be on 8.5'' x 11'' single spaced
paper, excluding maps, Geographic Information Systems (GIS)
representations, etc. In the event that the sponsor of a Marine Highway
Project that has already been designated by the Secretary seeks a
modification to the designation because of a change in project scope,
an expansion of the project, or other significant change to the
project, the project sponsor should request the change in writing to
the Secretary via the Administrator of the Maritime Administration. The
request should contain any changed or new information that is relevant
to the project.
(6) Evaluation Process. Upon receipt by the Maritime Administrator,
the application will be evaluated using the criteria outlined above
during a technical review and an environmental analysis. The review
will assess factors such as project scope, impact, public benefit,
environmental effect, offsetting costs, cost to the Government (if
any), the likelihood of long-term self-supporting operations, and its
relationship with Marine Highway Corridors once designated (See section
393.3 Marine Highway Corridors). Additional factors may be considered
during the evaluation process. Upon completion of the technical review,
applications will be forwarded to an inter-agency review team as
described below. The Department will establish an inter-agency team to
review each application received during the solicitation period
(solicitation periods will be established via a future Federal Register
Notice). The evaluation team will be led by the Office of the Secretary
and will include members of the Maritime Administration, other
Department of Transportation Operating Administrations, and as
appropriate, representation from other Federal agencies and other
representatives, as needed. The inter-agency team will evaluate
applications using criteria that establishes the degree to which a
proposed project can; reduce external cost and provide public benefit;
offer a lower-cost alternative to increasing capacity in the Corridor,
and; demonstrate the likelihood the service associated with the project
will become self-supporting in a specified and reasonable timeframe.
The Department will assign ratings of ``highly recommended,''
``recommended,'' or ``not recommended'' for each application based on
the criteria set forth in section 393.4(e)(1) and (2) of this rule.
Specific numerical scores will not be assigned. Within the overall
criteria of External Cost Savings and Public Benefit, elements
paragraphs (e)(1)(iv)(A) through (e)(1)(iv)(D) of this section will
receive greater weight than will paragraphs (e)(1)(iv)(E) and
(e)(1)(iv)(F) of this section. For the Business Planning elements, only
paragraphs (e)(1)(vi)(A) and (e)(1)(vi)(B) of this section will be
weighted; paragraph (e)(1)(vi)(C) of this section will be reviewed to
assess the degree to which future projections such as operating costs
and freight/passenger demand are accurate and reliable. Projects that
have been deemed ``highly recommended'' and ``recommended'' will be
placed on a preliminary list of projects for designation. The Secretary
will make final designations in a manner that provides a balance
between geographic regions and business models (i.e. among freight and
passenger, expansion and new service, and existing vessel/terminal and
new construction) to the degree this can be achieved. Prospective
project sponsors will be notified as to the status of their application
in writing once a determination has been made.
(7) Performance Monitoring. (i) Once designated projects enter the
operational phase (either start of a new service, or expansion of
existing service), the Department will evaluate them regularly to
determine if the project's objectives are being achieved.
(ii) Overall project performance will be in one of three
categories--exceeds, meets, or does not meet original projections in
each of the three areas defined below:
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Public benefit. Does the project meet the stated goals in shifting
specific numbers of vehicles (number of trucks, rail cars or
automobiles) off the designated landside routes? Other public benefits,
including energy savings, reduced emissions, and safety improvements
will be assumed to be a direct derivative of either numbers of vehicles
shifted, or vehicle/ton miles avoided, unless specific factors change
(such as a change in vessel fuel or emissions).
Public cost. Is the overall cost to the Federal government (if any)
on track with estimates at the time of designation? The overall cost to
the Federal government represents the amount of Federal investment
(i.e. direct funding, loan guarantees or similar mechanisms) reduced by
the offsetting savings the project represents (road/bridge wear and
tear avoided, infrastructure construction or expansion deferred).
Timeliness factor. Is the project on track for the point at which
the enterprise is projected to attain self-sufficiency? For example, if
the project was anticipated to attain self-sufficiency after 36 months
of operation, is it on track at the point of evaluation to meet that
objective? This can be determined by assessing revenues, freight and
passenger trends, expenses and other factors established in the
application review process.
Sec. 393.5. Incentives, Impediments and Solutions.
(a) Summary. The purpose of this section is to identify short term
incentives and solutions to impediments in order to encourage use of
the Marine Highway for freight and passengers.
(b) Objectives. This section is aimed at increasing the use of the
Marine Highways through the following primary objectives:
(1) Encourage the integration of Marine Highways in transportation
plans at the State, regional, local and Tribal levels.
(2) Develop short term incentives aimed at expanding existing or
starting new Marine Highway operations.
(3) Identify and seek solutions to impediments to the Marine
Highway.
(c) Federal, State, Local, Regional and Tribal Transportation
Planning. The Department will coordinate with Federal, State, local and
Tribal governments and Metropolitan Planning Organizations to develop
strategies to encourage the use of America's Marine Highways for
transportation of passengers and cargo. The Department will:
(1) Work with these entities to assess plans and develop
strategies, where appropriate, to incorporate Marine Highway
transportation, including ferries, and other marine transportation
solutions for regional and interstate transport of freight and
passengers in their statewide and metropolitan transportation plans.
(2) Facilitate groups of States and multi-State transportation
entities to determine how Marine Highway transportation can address
traffic delays, bottlenecks, and other interstate transportation
challenges to their mutual benefit.
(3) Identify other Federal agencies that have jurisdiction over the
project, or which currently provide funding for components of the
project, in order to determine the extent to which those agencies
should be consulted with and invited to assist in the coordination
process.
(4) Consult with Federal Highway Administration, Federal Motor
Carrier Safety Administration, Federal Railroad Administration, Federal
Transit Administration and other entities within DOT, as appropriate,
for support and to evaluate costs and benefits of proposed Marine
Highway Corridors and Projects.
(d) Short-Term Incentives. The Department will develop proposed
short-term incentives to encourage the use, initiation, or expansion of
Marine Highway services in consultation with shippers and other
participants in transportation logistics, and government entities, as
appropriate.
(e) Impediments and Solutions. The Department will either establish
a board, or modify an existing body, in accordance with the Federal
Advisory Committee Act (FACA), whose role is to identify impediments
that hinder effective use of the Marine Highways and recommend
solutions. The Board will meet regularly and report its findings and
recommended solutions to the Maritime Administrator. Board membership
will include, among others, representation by Federal Departments and
Agencies, State Departments of Transportation, Metropolitan Planning
Organizations and other local public entities including Tribal
governments and private sector stakeholders. The Department will take
actions, as appropriate, to address impediments to the Marine Highways.
Sec. 393.6. Research on Marine Highway Transportation.
(a) Summary. The Department will work in consultation with the
Environmental Protection Agency and other entities as appropriate,
within the limits of available resources, to conduct research in
support of America's Marine Highway or in direct support of designated
Marine Highway Corridors and Projects.
(b) Objectives. The primary objectives of selected research
Projects are to:
(1) Identify and quantify environmental and transportation-related
benefits that can be derived from utilization of the Marine Highways as
compared to other modes of surface transportation.
(2) Identify existing or emerging technology, vessel design, and
other improvements that would reduce emissions, increase fuel economy,
and lower costs of Marine Highway transportation and increase the
efficiency of intermodal transfers.
Dated: April 1, 2010.
By Order of the Administrator.
Julie P. Agarwal,
Acting Secretary, Maritime Administration.
[FR Doc. 2010-7899 Filed 4-7-10; 11:15 am]
BILLING CODE 4910-81-P