Daily Rules, Proposed Rules, and Notices of the Federal Government
(2) Fax to 401-435-2399.
(3) Electronically via e-mail at
(4) The entire public docket may be viewed at the Coast Guard Sector Southeastern New England Web site at
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
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
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
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 § 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:
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
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.
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 § 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 § 164.46. Expansion of AIS requirements may apply to Buzzards Bay and/or tug/barge combinations. This initiative is still in progress. See
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
Comments (both oral and written) generally fell within the following categories:
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.
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.
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.
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.
“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),
(A) A propulsion failure;
(B) A parted tow line;
(C) A loss of tow;
(D) A fire;
(F) A loss of steering; or
(G) Any other casualty that affects the navigation or seaworthiness of either vessel.”
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.
Voluntary use of escort tugs in Buzzards Bay and the Cape Cod Canal
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.
Regulations in 33 CFR 157.455 currently address under-keel clearance requirements (
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.
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
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.
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
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 § 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
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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
Harbors, Navigation (water), Reporting and recordkeeping requirements, Vessels, Waterways.
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:
1. The authority citation for part 161 continues to read as follows:
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 § 161.12, amend Table 161.12(c) by adding an entry for Buzzards Bay in alphabetical order to read as follows:
3. The authority citation for part 165 continues to read as follows:
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 § 165.100 by revising paragraphs (d)(1)(i) introductory text and (d)(1)(i)(G) and adding paragraph (d)(5) to read as follows:
(G) Any other time a vessel may be operating in a Hazardous Vessel Operating Condition as defined in § 161.2 of this chapter.
(A) A propulsion failure;
(B) A parted tow line;
(C) A loss of tow;
(D) A fire;
(F) A loss of steering; or
(G) Any other time a vessel may be operating in a Hazardous Vessel Operating Condition as defined in § 161.2 of this Chapter.
(A) A VMRS Buzzards Bay user shall: