Regulated Navigation Area: Navigable Waters Within the First Coast Guard District

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD1-98-151]

RIN 2115-AE84

Regulated Navigation Area: Navigable Waters Within the First

Coast Guard District

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent Regulated

Navigation Area (RNA) within the navigable waters of the First Coast

Guard District to increase operational safety for towing vessels and

tank barges. This rulemaking implements section 311(b)(1)(A), Pub. L.

105-383, Coast Guard Authorization Act of 1998, and requires four

measures for towing vessels and tank barges operating in the waters of

the Northeastern United States: positive control for barges, enhanced

communications, voyage planning, and areas of restricted navigation.

These measures should reduce the risk of oil spills from the many tank

barges operating in the waters of the region, and so to reduce the risk

of environmental damage to the unique and extremely sensitive marine

environment.

DATES: This final rule is effective January 29, 1999.

ADDRESSES: Documents as indicated in this preamble are available for

inspection or copying at Commander (m), First Coast Guard District, 408

Atlantic Ave., Boston, MA 02210-3350.

FOR FURTHER INFORMATION CONTACT: For questions on this rule, contact

Lieutenant Rich Klein, c/o Commander (m), First Coast Guard District,

408 Atlantic Ave., Boston, MA 02210-3350; telephone 617-223-8243.

SUPPLEMENTARY INFORMATION:

Regulatory History

On October 13, 1998, the Coast Guard published a notice of proposed

rulemaking (NPRM) entitled ``Regulated Navigation Area: Navigable

Waters Within the First Coast Guard District'' in the Federal Register

(63 FR 54639). On November 13, 1998, the Coast Guard Authorization Act

of 1998 (Act) was enacted into law. Section 311 of the Act requires the

Commandant, under

[[Page 71765]]

delegated authority from the Secretary of Transportation, to promulgate

regulations for towing vessel and tank barge safety. The First District

Commander, under authority delegated from the Commandant, is addressing

those areas that are within his authority, by creating a regulated

navigation area. The Coast Guard received 12 letters commenting on the

proposed rulemaking. No public meeting was requested, and none was

held.

Background and Purpose

This final rule will improve the navigational safety for towing

vessels and tank barges operating in the waters of the Northeastern

United States. Between January 1992 and December 1996, there were 289

marine casualties involving tank barges in the First Coast Guard

District. Not all of these casualties were major or significant, but

several resulted in oil spills.

During 1996 and 1997, there were 12 marine casualties involving

engine failure with tugs while they were towing tank barges in the

waters of the First Coast Guard District. At least four of those tank

barges were loaded with a combined cargo totaling about 21 million

gallons of petroleum products. In each of the 12 instances, the towing

vessel was able to mitigate the casualty by switching propulsion to the

second engine, which was sufficient to control the barge. None of the

casualties resulted in any pollution.

Development of the Report of the Regional Risk Assessment Team

(RRAT)

On June 5 and 6, 1996, the Commander of the First Coast Guard

District hosted a two-day Workshop on Safety of Towing Vessels and Tank

Barges at the Massachusetts Maritime Academy. Nearly 150 people

gathered to discuss goals for the safety of the marine environment, and

economic and operational considerations of the tank barge industry in

the Northeast. The participants represented the Coast Guard, the

industry, the States of New York, Connecticut, Rhode Island, and Maine,

the Commonwealth of Massachusetts, and various environmental interests.

The RRAT was chartered and established by the American Waterways

Operators and Coast Guard National Quality Steering Committee on July

10, 1996. The 25-member team, with similar representative stakeholders

from the two-day workshop, conducted a risk assessment of the tank

barge transportation network in the Northeastern United States. The

RRAT's report, entitled REGIONAL RISK ASSESSMENT OF PETROLEUM

TRANSPORTATION ON THE WATERS OF THE NORTHEAST UNITED STATES, and

completed February 6, 1997, examined current operational and

navigational practices for towing vessels and tank barges operating in

the Northeast. Although it did not evaluate the measures for cost-

effectiveness, it developed ten measures to improve the safe navigation

of these vessels, eight of which were recommended for rulemaking. This

rule codifies four of those eight measures that are within the First

District Commander's authority to address by the rulemaking. The

remaining recommendations for rulemaking will become the subjects of

national rulemaking.

This rule takes a regional approach responsive to the particular

risks inherent in the transportation of petroleum products on the

waterways in the Northeastern United States. The network of sounds,

estuaries, coastal ponds, and shallow coastal shelves hosts one of the

most prolific habitats for marine life in the nation. This sensitive

region contains 4 of the 20 Estuaries of National Significance,

designated by Section 320 of the Federal Clean Water Act--Long Island

Sound, Narragansett Bay, Buzzards Bay, and Casco Bay--and 5 of the 22

National Estuarine Research Reserves established to monitor the health

of the nation's most valued estuaries. Moreover, the shelves

encompassing the Great South Channel, Massachusetts Bay, and Cape Cod

Bay provide the seasonal habitat for the Northern Right Whale, one of

the world's most endangered species of whale with a population of only

about 300. One of the whale's primary food sources, plankton, is

particularly susceptible to damage from oil spills.

In addition, the fishing grounds of the Northeastern United States

are among the most productive in the world. It is estimated that over

25,000 vessels are employed in the Northwest Atlantic Ocean fisheries

trade. The threat to the productive fishing grounds from a tank barge

spill further supports the need for this rule.

In the aftermath of the NORTH CAPE oil spill as described in the

NPRM, several states in the Northeast drafted or enacted legislation to

regulate the tank barge industry. The Rhode Island legislature enacted

an Oil Spill Pollution Prevention and Control Act, which it amended

with a Tank Vessel Safety Act (codified as Chapter 32 of its Public

Laws). Further, Maine officials are considering a legislative

initiative to regulate the petroleum transportation industry. The

states' differing legislative initiatives might result in inconsistent

regulation of the industry.

The several operating conditions codified in this rule will reduce

the risks to the marine environment posed by tank barges transporting

oil in the region without imposing undue economic burden on the

industry.

Discussion of Comments and Changes

The Coast Guard received 33 comments on the NPRM, contained in 12

individual letters to the docket.

General

Four comments stated that the rulemaking was a step in the right

direction. They noted that this rule codified some of the already-

standard practices being used by prudent tugboat operators. They also

noted that the rule would help close the safety gap that exists when a

tug, not normally engaged in the petroleum trade, must move a barge

carrying petroleum products.

Three comments stated that the proposed rule addressed only four of

the eight operational measures contained in the recommendations of the

RRAT. The comments noted that the RRAT made many recommendations, some

targeted for inclusion in a regional rule applicable to the entire

First Coast Guard District. The comments urged that we adopt all of the

regulatory recommendations of the RRAT. We acknowledge the comments,

but find that adoption of the remaining four recommendations is beyond

the scope of this rulemaking. Those remaining recommendations for

rulemaking from the RRAT are Manning, Anchoring and Barge Retrieval

Systems, Navigation Safety Equipment, and Crew Fatigue: The Human

Factor. While the RRAT considered the remaining recommendations also

suitable for regional rulemaking, they are not authorized subjects for

an RNA, and are thus beyond the authority of the First District

Commander. On a national level, Coast Guard Headquarters is also

publishing today in the Federal Register, rules on emergency control

measures for tank barges, USCG-1998-4443, RIN 2115-AF65.

Two comments noted the Coast Guard is taking a regional approach

for four of the eight measures recommended by the RRAT, and that the

remaining four measures would be addressed in a future national

rulemaking. The same two comments expressed concern about efforts by

individual States to enact their own requirements on safety and the

environment, thereby creating a confusing patchwork of rules. They

strongly supported the Coast Guard's efforts to implement new

requirements

[[Page 71766]]

on a national basis. The comments recommended that the Coast Guard

minimize the potential for varying requirements or interpretations of

them. The commenters agree that the enhanced communications

requirements and navigational restrictions are appropriate for regional

rulemaking. They also recommend that positive control of barges and

voyage planning be addressed on a national, rather than a regional,

basis. We agree with the comment that the rulemaking for enhanced

communications and navigation restriction areas are appropriate for

regional rulemaking, however, due to the unique environment of the

region we disagree that positive control of barges and voyage planning

should be addressed by national rulemaking. As such, section 311 of the

Coast Guard Authorization Act of 1998 requires the Coast Guard to

implement these regional rules with a detailed explanation of any RRAT

recommendation that is not adopted.

One comment noted that two of the proposed measures showed some

promise for their potential ability to allow increased awareness of and

protection to endangered and threatened species. It recommended that

the section on voyage planning require vessel operators to review

relevant sections of the Coast Pilot that pertain to Right Whales and

to participate in the program called the Right Whale Early Warning

System (EWS). The comment also questioned whether we had considered

including some measure in the rule that would aid in the protection of

the critical habitat in the Great South Channel which, like Cape Cod

Bay, is a critical habitat for the Northern Right Whales. The Coast

Guard is committed to utilizing its existing authorities to carry out

programs that conserve and protect endangered species. These

regulations will beneficially effect endangered species and their

critical habitats by promoting safe, environmentally sound vessel

operations in marine environment in general, including protected

species and their habitat. This final rule does require voyage planning

within the First District to include review of the Coast Pilot for the

area to be transited. The Coast Pilots covering those areas with

concentrations of whales have been updated with information concerning

the Northern Right Whales. Although the Great South Channel is beyond

the scope of this rulemaking, EWS and Coast Pilot information available

for that area will be available to commercial vessels. The EWS is an

important protective measure for endangered whales. Currently, the EWS

includes the use of information from private and Coast Guard aircraft

that conduct aerial surveys over areas of high use by endangered

whales. The position of whales detected by the aircraft is reported to

a shore-based unit for further dissemination via notice to mariners or

NAVTEX. Coast Guard vessels routinely report whales sightings to

operational commanders for further rebroadcast. As currently

configured, however, the EWS does not involve the use of private

vessels for reporting sightings because of concerns including the lack

of resources to process and validate such information. Validation was

considered a key issue because commercial vessels do not typically have

observers trained in marine mammal identification and are required to

keep their distance (at least 500 yards) from the whales. This comment

will be provided to the New England Right Whale Recovery Implementation

Team, which provides guidance to the EWS, for their consideration.

Information gathered by the EWS is available to commercial vessels and

they will be advised how to access that information as part of the

upcoming Mandatory Ship Reporting System (MSR). The Coast Guard

Authorization Act of 1998 contains new legislative authority to

implement and enforce two MSRs, consistent with international law, for

Cape Cod Bay, Massachusetts Bay and Great South Channel. The MSR is an

important protective measure to conserve endangered species such as the

Northern Right Whale and is designed to involve large commercial

vessels. The MSR system, in part, will pass important information to

the ships operating at sea before those ships enter critical habitat or

other areas of reported high concentrations of whales. The new MSR

authority will be implemented by separate regulations being developed

by the Coast Guard, with assistance from the National Marine Fisheries

Service which has primary responsibility for administration of the

Endangered Species Act for endangered whales. For these reasons, no

change has been made to the final rule due to these comments.

One comment objected to the reference in the NPRM that, upon

promulgation of this final rule certain state laws enacted under the

Rhode Island Tank Vessel Safety Act, 46 Rhode Island General Laws

(R.I.G.L.) Sec. 12.6 (Act) would become null and void, as they would be

preempted by the new federal regulations. The comment stated that the

Act adopted, nearly verbatim, the language of the RRAT regulatory

recommendations. The comment stated that until all the RRAT

recommendations are adopted, the supersession provision (46 R.I.G.L.

Sec. 12.6-12) is inoperative, and that subsection by subsection

supersession is not encompassed within the Act. We disagree.

In an analogous circumstance, Courts interpreting the doctrine of

Federal preemption consider, as a matter of course, specific

subsections of state legislative and regulatory action for preemption,

while allowing other subsections to stand. See Ray v. Atlantic

Richfield Co., 435 U.S. 151 (1979); International Association of

Independent Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th

Cir. 1998). More importantly, the operation of the Rhode Island

supersession statute, while reflective of the Rhode Island

Legislature's desire for, and willingness to accede to Federal

regulation, is not determinative in a Federal preemption analysis.

Therefore, the analysis of the preemptive effects of this final rule

remain largely unaltered from those described in the Notice of Proposed

Rulemaking.

Positive Control for Barges

One comment supported the requirement for twin-screw towing vessels

to accompany single-hull petroleum-laden barges, and also noted that

tank barges meeting the definition of double-hull vessels in 33 CFR

157.03 are not subject to the twin-screw requirement. However, the

comment noted that the proposed rule did not discuss double-bottom

barges or its applicability to them. The comment mentioned that the

RRAT discussed double-hull and double-bottom barges and concluded that

both offered enhanced environmental protection. It suggested that both

types of barges be exempt from the twin-screw requirement. We disagree.

While the RRAT did provide the possibility for the continued use of

double-bottom barges, such barges do not provide the same level of

environmental protection as double-hull tank barges. This final rule

does not preclude the continued use of double-bottom tank barges; it

does require them to be towed by tugs with twin-screws and two engines

or, alternatively, that they be accompanied by an escort or assist tug.

Two comments stated that the RRAT had recommended an exemption for

single-screw vessels towing single-hull barges on restricted routes and

had not envisioned the elimination entirely of single-screw towing

vessels. The comments recommended that the Captain of the Port (COTP)

should have latitude to grant a waiver after

[[Page 71767]]

considering all safety aspects, and that the waiver be valid for the

prolonged service of the barge. The two comments recommended that the

language found in the RRAT report concerning waivers available to

single-screw towing vessels be placed in this final rule. We disagree,

and point out that single-screw towing vessels may continue to tow

double-hull tank barges, and may also tow other tank barges subject to

the escort or assist tug requirement. Further, this final rule allows

the COTP to authorize an exemption from the escort or assist tug

requirement for single-screw towing vessels towing tank barges with a

capacity of less than 25,000 barrels in areas of limited depth or

width. The rule does not limit COTP discretion in applying the

exemption which may be available for the prolonged service of the

barge.

One comment recommended that the requirements of this rule apply to

all towing vessels, regardless of their tow, not just those towing tank

barges carrying petroleum oil in bulk as cargo in the RNA. We disagree

and find this comment beyond the scope of this rulemaking, which is

aimed at reducing the risks associated with the waterborne

transportation of petroleum products, and is authorized by section 311

of the Coast Guard Authorization Act of 1998. This rulemaking stemmed

from recommendations made by the RRAT's view on the hazards associated

with the transportation of petroleum oils by barges. The Coast Guard

will consider the future application of this rule to tank barges

carrying other oils or chemicals and may initiate a rulemaking to

address that situation.

One comment noted that when a tank ship is being operated in

pilotage waters there must be two licensed officers in the wheelhouse.

The comment further noted that this requirement is not practicable on a

24-hour basis for most tugs; however, it recommended that in certain

areas of the RNA this might be a good practice. The comment recommended

an additional licensed officer be required in the wheelhouse when the

vessel is towing in the operating areas of VTS New York, the Race, the

Cape Cod Canal, and entrances of harbors where traffic is more

concentrated. We agree with the comment that increased manning in the

wheelhouse may be a good operating procedure, and we point out that it

remains the watch officer's prerogative to summon an additional

watchstander or lookout for assistance in areas of dense traffic.

However, we disagree with a requirement for two licensed officers based

on a comparison between a tank ship and a towing vessel, noting the

differences in equipment, manning requirements, and vessel dynamics.

Because 46 U.S.C. 8104(h) limits the amount of time that a licensed

towing vessel operator can work, not to exceed 12 hours in a

consecutive 24-hour period, a towing vessel on a voyage of less than 12

hours may operate with only a single licensed watch officer. Although

many towing vessels have two watch officers, the alternate licensed

officer may be resting before relief. Manning regulations are not

within the limited authority of the First District Commander and are

beyond the scope of this rulemaking.

One comment recommended changing 33 CFR 165.100(d)(1)(i) to read

``* * * primary towing vessel with twin-screw propulsion and/or single

screw with a separate system of providing power * * *''. It reasoned

that an articulated tug and barge (ATB) is usually equipped with twin

engines and a single screw. The comment noted that this type of

arrangement is capable of switching from one engine to the other to

maintain propulsion, while maneuverability and handling are heightened

through the use of a single screw, which is capable of turning 360 deg.

within a kort nozzle (a propeller shroud designed to enhance thrust).

The comment noted that to convert ATBs from single-screw to twin-screw

would be cost-prohibitive. It also noted that our Background and

Purpose mentioned 12 reported incidents involving engine failures

aboard towing vessels. It stated that these casualties avoided serious

harm because the tugs involved switched to the second engine. The

comment noted that the statistics did not reflect whether a twin-screw

configuration was a mitigating factor in these incidents. We note this

comment. Of the 12 casualties, 2 were mitigated by the use of the

towing vessel's alternate steering system. Additionally, the NPRM

contained a summary of a potential major pollution incident on August

25, 1998, that was mitigated by the towing vessel's alternate steering

system when one of two screws became fouled in the towing hawser.

However, we disagree with the acceptance of a single-screw towing

vessel except when towing double-hull tank barges, or when exempted by

the COTP while operating in areas of limited depth or width. The use of

twin-screw and two-engine towing vessels ensures that the tug is

capable of maintaining the navigational control of the tank barge in

the event of a loss of the primary component. Although the single-screw

ATB may have enhanced maneuverability, it does not provide a backup

means of steering should the primary screw become fouled or damaged.

Further, the single-screw ATB described in the comment is not

prohibited from towing tank barges in the First Coast Guard District.

The final rule does not prohibit the use of single-screw vessels to tow

tank barges; it does, however, require that they be escorted by a

second towing vessel. Single-screw towing vessels may also tow double-

hull tank barges which are exempt from the twin-screw, two-engine

requirement, or upon COTP exemption may tow a single hull tank barge

with a capacity of less than 25,000 barrels in areas of limited depth

and width.

One comment noted that emergency steering and fendering systems are

addressed in 33 CFR 157.460; it mentioned that the vessels towing

single-hull tank barges must have twin-screw propulsion with separate

control systems to each propeller. It wanted to know whether this rule

applied to ATBs operating in the pushing mode. The comment asked

whether this type of vessel would get special consideration for its

unique twin engine, single-screw configuration and be declared exempt

from this rule. We note the comment, but find it beyond the scope of

this rulemaking. Though the ATBs may provide a propulsion redundancy,

without a secondary steering system, these single-screw ATBs would not

qualify for any special consideration other than is available for

single-screw towing vessels.

One comment stated that the Coast Guard has granted exemptions for

specialized towing configurations such as integrated tug-and-barge

(ITB) units. It noted that Coast Guard Navigation and Vessel Inspection

Circular (NVIC) 2-81 classifies ITBs into two categories, including one

that accepts them as a single vessel (tug and barge together). The

comment asked whether we could categorize ATBs in a like manner and

grant them a similar exemption as it applies to requirements for escort

tugs in the First District. The comment stated that if the ATBs were

recognized by the Coast Guard and placed in a special class, and if

they did not require escort tugs, then this outcome may affect

companies' decisions to operate this type of tugboat in the Northeast.

We find this comment beyond the scope of this rulemaking. While the

referenced NVIC described a national policy determination by Commandant

(G-M), no such policy exists for ATBs. Such a request is more

appropriately addressed by Commandant (G-M).

One comment recommended that the word ``immediately'' be removed

from proposed section 165.100(d)(1)(iv). It noted that the use of the

term implies

[[Page 71768]]

that the watch officer should ignore potentially more important duties

such as crewmember safety or vessel control to make the required call

for assistance. It suggested that we adopt language comparable to that

under 46 CFR 4.05-1. We disagree that the notification requirement

implies that the watch officer should ignore more urgent crewmember or

vessel safety concerns to call for an escort or assist vessel. Further,

the requirement of 46 CFR 4.05-1 is to ensure Coast Guard notification

following a marine casualty, while the intent of Sec. 165.100(d)(1)(iv)

is to provide an escort or assist vessel for assistance.

One comment expressed concern with the proposal to require the use

of twin-screw and two engine towing vessels when towing single-hull

tank barges. The comment noted that because twin-screw and two engine

towing vessels are designed for enhanced maneuverability, the screws

are placed as far as possible off the centerline on each side of the

vessel. With the loss of one screw, the thrust from the remaining screw

would result in an imbalance that would prevent steady navigation. We

disagree. While the loss of the primary screw on a towing vessel may

cause navigational difficulties due to the thrust of the secondary

screw, the vessel would still have the capability to maneuver using the

rudders. The purpose of having the redundant propulsion and steering

system is to provide the capability to avoid a collision or grounding

in the event the primary system fails.

One comment noted that instead of prohibiting the use of single

engine towing vessels when towing single-hull tank barges, the Coast

Guard should consider a requirement for the barge to be towed by two

towing vessels. We point out that single engine towing vessels are not

prohibited from towing single-hull tank barges by this rulemaking.

Instead, single engine towing vessels may continue in operation

provided they are: escorted by a second towing vessel, towing double-

hull tank barges, or receive an exemption from the COTP for transiting

in areas of limited depth or width as provided in

Sec. 165.100(d)(1)(iii).

Enhanced Communications

One comment supported the requirement for additional securite

calls. It also noted that the VTS further enhances the information-

sharing network in a port, and that the required securite calls would

encourage communications that would enhance safety in the marine

environment.

Included in the final rulemaking are three minor clerical changes,

reordering of the securite calls by proximity, and the addition of two

securite call locations which were recommended by the RRAT report but

were omitted from the NPRM. The clerical changes include the correct

spelling for Execution Rocks Light, Cable and Anchor Reef Buoy, Falkner

Island Light, and Cape Cod Canal. Neither the clerical changes, nor the

modifications to the securite calls, are significant. These changes do

not affect the Regulatory Assessment estimates or cost benefit

analysis.

Voyage Planning

One comment stated that the RRAT had recognized that the elements

of a voyage plan could be identified to develop a template, but added

that the specifics of a plan would need to be adapted to the geographic

area traversed and to the specific equipment used. The comment

maintained that a requirement to consider company-specific guidelines

for under-keel clearance in ports and berths is feasible and required

by 33 CFR 157.455. It further noted that local regulatory requirements

might not be feasible because they may be non-existent. It recommended

that the rule incorporate language to the effect that, where services,

information, and standards are available, they be considered in the

development of voyage plans. We agree that if information is available,

then it should be considered when developing the voyage plan. However,

because it is not possible to regulate consideration, we have not

amended the final rule. Instead, we support the prudent mariner's use

of whatever information is available to assist in creation of a voyage

plan.

Two comments noted that the proposed rule also refers to several

requirements that are part of existing rules, such as to record forward

and after drafts of the vessel, to report to VTS, and to consult

specific publications that must be aboard the vessel. The comments

could not understand how existing requirements interface with this

rule, and they recommended that, to avoid redundancy, the RNA cross-

reference existing regulatory requirements and that they be considered

in the development of voyage plans. We note the comments but find them

beyond the scope of this rulemaking.

Two comments clarified that the RRAT had noted both that the

``watch officer'' is the appropriate individual to modify a voyage plan

and that this person could be the master or mate. The comments stated

that the RRAT had never envisioned that the master be the only person

authorized to modify a voyage plan. The comments recommended that the

rule allow the master, mate, or other person intricately involved in

the development of the plan be authorized to modify and execute the

plan. We agree and point out that while 33 CFR 165.13(a) places the

responsibility for the vessel's operation on the master, the watch

officer should be able to modify the voyage plan in accordance with the

need for safe navigation. As such, we have modified the final rule to

reflect that change.

One comment noted that under the proposed rule a modified voyage

plan for transits in a limited geographical area would have to include

weather, sea state, and tidal conditions. The comment also noted that

these factors may not be significantly different from one part of the

area to another, and weather forecasts may not be available for a

particular area, either. The comment concluded that the specifics of a

voyage plan for a port complex need not be as detailed as those for a

coastal transit of significant duration. The comment suggested that

current weather has only to be noted in the vessel's log at time of

transit. We agree. Although in some instances the towing vessel is not

required to carry a log, it remains common practice for the industry.

As long as the weather is accounted for in the voyage plan or the

vessel's log book, an entry in either will satisfy the requirement. The

final rule has been changed accordingly.

One comment noted that an owner or operator of a tank barge may

prepare a modified voyage plan for an intra-port transit of not more

than four hours. It further noted that, because of constraints on

berthing availability, an operator loads cargo early and then the

vessel proceeds at reduced speed to take advantage of favorable tide

conditions at its final destination. This operating method may result

in an intra-port transit of greater than four hours, even though

distance traveled is minimal. The comment recommended that the modified

voyage plan be acceptable for all intra-port transits and that the

four-hour limitation be deleted. We disagree. The abbreviated voyage

plan came about in the first place as an alternative to reduce the

amount of required information, taking into account the short intra-

port transit of a tug and barge. Although intra-port transits may not

require the same planning, the intention of the four-hour time limit

was to avoid the inherent risks present in a longer voyage where risk

is heightened, especially in ports of high-density traffic.

One comment noted that Sec. 165.100(d)(3)(ii)(A) is very similar to

[[Page 71769]]

46 CFR 35.05-15(b)(1)(iv). It is recommended that we modify 46 CFR part

35 so as to include cargo quantities and to cover all barges, not just

unmanned ones, and that we then cross-refer to it in 33 CFR

165.100(d)(3). The comment further stated that any effort by the Coast

Guard to consolidate its rules would be greatly appreciated by the

regulated community. We note the comment but find it beyond the scope

of this rulemaking because 46 CFR part 35 is a national rule.

Navigation Restricted Areas

A comment supported the designation of Fisher's Island and the

eastern part of Cape Cod as Navigation Restricted Areas.

One comment noted that the proposed rule would preclude mariners

from seeking and hiding underneath the hook of Cape Cod while waiting

for bad weather to subside. We disagree. The rule simply requires any

tank barge desiring to operate in the designated area to obtain

authorization from the COTP. Thus, a towing vessel may request such

authorization in the event of an emergency to avoid endangering the

vessel.

Regulatory Assessment

This rule is not a significant regulatory action under 3(f) of

Executive Order 12866 and does not require an assessment of potential

costs and benefits under section 6(a)(3) of that Order. It has not been

reviewed by the Office of Management and Budget (OMB) under that Order.

It is not significant under the regulatory policies and procedures of

the Department of Transportation (DOT) (44 FR 11040; February 26,

1979).

A Regulatory Assessment under paragraph 10e of the regulatory

policies and procedures of DOT is available in the docket for

inspection or copying where indicated under ADDRESSES. A summary of the

Assessment follows:

Summary of Benefits

The principal benefits of this rule are protection against oil

spillage, human casualties, and property damage that may result from

navigation-related incidents of tank barges and towing vessels while

underway in the navigable waters of the First Coast Guard District.

Quantifiable benefits accrue from averted pollution measured in barrels

of oil not spilled, averted injuries and deaths, and averted damage to

vessels and property measured in dollars.

Using information from the Coast Guard Marine Safety Management

System from January 1, 1992, to December 31, 1996, we reviewed 96 tank

barge casualty cases. These casualties involved vessels that were

underway within the boundaries of the First Coast Guard District which

would have been affected by this rule if it had been in effect. This

period represents some post OPA-90 experience, is long enough to survey

a significant number of casualties, and short enough to avoid old

problems which are now solved. These 96 cases provided the pool from

which the benefits are estimated. During this base period, there was no

reported oil spilled from double-hull barges.

For all four measures, we reviewed each casualty case report to

assess whether the casualty could have been prevented or diminished in

severity by this rule. A team of Coast Guard analysts assigned an

effectiveness degree to which each measure would have positively

affected each casualty case. We tabulated data on deaths and injuries,

oil spillage, and dollar totals reported for damage to the tank barges,

towing vessels, piers, or other structures, and estimated benefits for

each measure adjusted to the accurate degree of effectiveness.

The assessment indicated that, until the phase-out of single-hull

tank vessels (Sec. 4115(a) of OPA 90), the requirements of this RNA

would bring total benefits of $454,365 in averted damage to vessels and

property (1998 dollars); $155,107 in averted deaths (1998 dollars); and

384.85 barrels of oil in averted pollution. These numbers are different

from those in the Preliminary Regulatory Assessment due to a refinement

of the phase-out methodology.

Summary of Costs

Businesses that use tank barge and towing vessels within the

geographic boundaries of the First District, as well as the tank barge

and towing vessel industries themselves, will bear the majority of the

costs of this rule.

The cost of this rule is the sum of costs from the requirements for

positive control for barges, enhanced communications, voyage planning,

and restricted navigation areas. These anticipated costs recognize that

many of the towing vessels and tank barges operating within the

geographic boundaries of the First District are already in compliance

with these requirements.

(1) Positive Control for Barges: Data from the U.S. Army Corps of

Engineers indicated that there are approximately 12,892 transits

occurring within the District each year. Of these transits, we estimate

1.95%, or 251, involve a single-hull, petroleum-laden tank barge being

towed by a tug without twin engines or twin screws, and thus, this rule

would require an escort or assist tug. The cost of an escort or assist

tug is $300 an hour. It is assumed this escort or assist tug would, on

average, spend 20 hours in round trip service on each transit. The cost

of the tug for a single transit would therefore be $6,000. Discounting

to 1998 dollars, and factoring in the phase-out of single-hull tank

barges, we calculate the costs of these tugs at $12,796,834.

(2) Enhanced Communications: This rule would require the operator

of a towing vessel to make approximately eight securite calls during

the average transit in the First District. Each securite call would

take about 30 seconds or 4 minutes each transit. The securite calls

will be placed by the person on watch and it is assumed that the master

and the mate each make half of the securite calls. The average daily

billing rate for a towing vessel's master is $400, while the average

daily billing rate for a towing vessel's mate is $270. Based on an

eight-hour day, the opportunity cost of the securite call rule for each

transit is $2.79. We estimated that 55% of the 12,892 annual transits,

7,091 transits, involve oil-laden tank barges. With 7,091 transits

within the First District each year affected by the enhanced

communications rule, discounting to 1998 dollars, we calculate the

opportunity cost of enhanced communications at $186,892. However, these

enhanced communications requirements do not truly represent a cost upon

the towing vessel operator. The securite calls will become a routine

task of the person on watch, and will neither cause this person to

spend additional time performing watch duties, nor detract from the

time available for performing existing duties. Therefore, the total

cost of enhanced communications is $0.

(3) Voyage Planning: For each transit, as a representative of the

owner or operator, the master of the towing vessel spends approximately

30 minutes preparing the voyage plan. Again, the average daily billing

rate for a towing vessel's master is $400. We estimated that 55% of the

annual transits involve oil-laden tank barges. Further, using data from

the American Waterway Operators, we assumed that 90% of the transits

are already in compliance with this rule. For the 12,892 transits

within the First District each year, voyage planning will affect 709

transits. The cost of voyage planning, discounted to 1998 dollars,

would be $167,461.

(4) Navigation Restriction Areas: Currently all towing vessels and

tank barges operating within the geographic boundaries of the First

District, avoid operating in the areas of Fishers Island

[[Page 71770]]

Sound and the eastern portion of Cape Cod Bay addressed in this rule.

The cost of navigation restriction area is $0.

SUMMARY: The total present value of the costs of this rule (1998

dollars) would be $12,964,345 [$12,796,834 for positive control of

barges + $0 for enhanced communications + $167,461 for voyage planning

+ $0 for navigation restriction areas]. In terms of cost-effectiveness,

this rule would prevent future pollution in the First District at a

cost of $32,103 per barrel of oil not spilled.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard considered whether this rule will have a significant

economic impact on a substantial number of small entities. ``Small

entities'' include 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 rule requires that all transits involving towing vessels that

are not equipped with twin-screw and twin-engine propulsion and are

engaged in towing petroleum-laden tank barges in the navigable waters

of the First Coast Guard District, employ escorts or assist tugs.

It is primarily the businesses that hire the towing vessels and

tank barges for transporting their goods that directly incur the costs

of this rulemaking by having to pay for the escorts or assist tugs.

However, some towing-vessel companies, most of which are small

entities, may be indirectly affected by this rule if they can no longer

provide tug service at a competitive price because of the requirement

that they employ escorts or assist tugs.

These companies do have alternatives available, under which they

may use their towing vessels without twin-screws or twin engines for,

say, pushing barges in narrow rivers or pushing freight barges.

Additionally, with only 5% of all towing vessels not having the

necessary propulsion equipment, nearly all the towing companies are

already in compliance. Further, information from towing vessel

operators indicate that they already select against the use of their

towing vessels without twin screws or twin engines for the practice of

towing petroleum-laden tank barges. Finally, the cost of escorts or

assist tugs is low in comparison with the cost of replacing or retro-

fitting all their vessels without twin screws or twin engines with a

compliant propulsion system.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that

this final rule will not have a significant economic impact on a

substantial number of small entities.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory

Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard

offered to assist small entities in understanding the rule so that they

can better evaluate its effects on them and participate in the

rulemaking. Commander (m), First Coast Guard District, provided

explanatory information to a number of individuals by telephone.

The Small Business and Agriculture Regulatory Enforcement Ombudsman

and 10 Regional Fairness Boards were established to receive comments

from small businesses about enforcement by Federal agencies. The

Ombudsman will annually evaluate enforcement and rate each agency's

responsiveness to small business. If you wish to comment on enforcement

by the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

This final rule provides for a collection of information under the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

As required by 5 U.S.C. 3507(d), the Coast Guard submitted a copy

of this rule to the Office of Management and Budget (OMB) for its

review of the collection of information. No collection of information-

specific comments were submitted to the docket in response to the NPRM.

OMB has approved the collection. The section number is

Sec. 165.100(d)(3), and the corresponding approval number from OMB is

OMB Control Number 2115-0637, which expires on November 30, 2001.

Persons are not required to respond to a collection of information

unless it displays a currently valid OMB Control Number.

Federalism

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612. It has been determined

that there will be some preemptive impacts on the Rhode Island Tank

Vessel Safety Act, 46 R.I.G.L. Sec. 12.6. Specifically, the rules on

positive control for barges [33 CFR Sec. 165.100(d)(1)] will preempt 46

R. I. G. L. Sec. 12.6-8(a)(3) on the same subject. The rules on

enhanced communications [33 CFR Sec. 165.100(d)(2)] will preempt 46 R.

I. G. L. Sec. 12.6-8(b) on the same subject. The rules on voyage

planning [33 CFR Sec. 165.100(d)(3)] will preempt 46 R. I. G. L.

Sec. 12.6-8(c) on the same subject. However, the Rhode Island Tank

Vessel Safety Act, at 46 R.I.G.L. Sec. 12.6-12 presaged preemption of

this sort. The other provisions of 46 R.I.G.L. Sec. 12.6, although

still subject to a separate preemption analysis, remain unaffected by

this final rule. No other states within the regulated navigation area

have enacted a similar regime. Therefore, it has been determined that

this rule does not have sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.

L. 104-4, 109 Stat. 48, requires Federal agencies to assess the effects

of certain regulatory actions on State, local, and tribal governments,

and the private sector. UMRA requires a written statement of economic

and regulatory alternatives for final rules that contain Federal

mandates. A ``Federal mandate'' is a new or additional enforceable duty

imposed on any State, local, or tribal government, or the private

sector. If any Federal mandate causes those entities to spend, in the

aggregate $100 million or more in any one year, the UMRA analysis is

required. This final rule would not impose Federal mandates on any

State, local, or tribal governments, or the private sector.

Environment

The Coast Guard considered the environmental impact of this rule

and concluded that under figure 2-1, paragraphs 34(g) and (i) of

Commandant Instruction M16475.1C, this rule is categorically excluded

from further environmental documentation. A ``Categorical Exclusion

Determination'' is available in the docket for inspection or copying

where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

Marine safety, Navigation (water), Reporting and recordkeeping

requirements, Waterways.

For the reasons discussed in the preamble, the Coast Guard amends

33 CFR part 165, as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 is revised to read as

follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Sec. 311, Pub. L. 105-

383; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.

2. Add Sec. 165.100 to read as follows:

Sec. 165.100 Regulated Navigation Area: Navigable waters within the

First Coast Guard District.

(a) Regulated navigation area. All navigable waters of the United

States, as

[[Page 71771]]

that term is used in 33 CFR 2.05-25(a), within the geographic

boundaries of the First Coast Guard District, as defined in 33 CFR

3.05-1(b).

(b) Definitions. Terms used in this section have the same meaning

as those found in 33 CFR 157.03. Single-hull identifies any tank barge

that is not a double-hull tank barge.

(c) Applicability. This section applies to primary towing vessels

engaged in towing tank barges carrying petroleum oil in bulk as cargo

in the regulated navigation area, or as authorized by the District

Commander.

(d) Regulations--(1) Positive control for barges. (i) Except as

provided in paragraph (d)(1)(iii) of this section, each single-hull

tank barge, unless being towed by a primary towing vessel with twin-

screw propulsion and with a separate system for power to each screw,

must be accompanied by an escort or assist tug of sufficient capability

to promptly push or tow the tank barge away from danger of grounding or

collision in the event of--

(A) A propulsion failure;

(B) A parted towing line;

(C) A loss of tow;

(D) A fire;

(E) Grounding;

(F) A loss of steering; or

(G) Any other casualty that affects the navigation or seaworthiness

of either vessel.

(ii) Double-hull tank barges are exempt from paragraph (d)(1)(i) of

this section.

(iii) The cognizant Captain of the Port (COTP) may authorize an

exemption from the requirements of paragraph (d)(1)(i) of this section

for any tank barge with a capacity of less than 25,000 barrels, to

operate in an area with limited depth or width such as a creek or small

river. Each request for an exemption under this section must be

submitted in writing to the cognizant COTP.

(iv) The operator of a towing vessel engaged in towing any tank

barge must immediately call for an escort or assist tug to render

assistance in the event of any of the occurrences identified in

paragraph (d)(1)(i) of this section.

(2) Enhanced communications. Each vessel engaged in towing a tank

barge must communicate by radio on marine band or Very High Frequency

(VHF) channel 13 or 16, and issue securite calls on marine band or VHF

channel 13 or 16, upon approach to the following places:

(i) Execution Rocks Light (USCG Light List No. [LLNR] 21440).

(ii) Matinecock Point Shoal Buoy (LLNR 21420).

(iii) 32A Buoy (LLNR 21380).

(iv) Cable and Anchor Reef Buoy (LLNR 21330).

(v) Stratford Middle Ground Light (LLNR 21260).

(vi) Old Field Point Light (LLNR 21275).

(vii) Approach to Stratford Point from the south (NOAA Chart

12370).

(viii) Falkner Island Light (LLNR 21170).

(ix) TE Buoy (LLNR 21160).

(x) CF Buoy (LLNR 21140).

(xi) PI Buoy (LLNR 21080).

(xii) Race Rock Light (LLNR 19815).

(xiii) Valiant Rock Buoy (LLNR 19825).

(xiv) Approach to Point Judith in vicinity of Block Island ferry

route.

(xv) Buzzards Bay Entrance Light (LLNR 630).

(xvi) Buzzards Bay Midchannel Lighted Buoy (LLNR 16055)

(xvii) Cleveland East Ledge Light (LLNR 16085).

(xviii) Hog Island buoys 1 (LLNR 16130) and 2 (LLNR 16135).

(xix) Approach to the Bourne Bridge.

(xx) Approach to the Sagamore Bridge.

(xxi) Approach to the eastern entrance of Cape Cod Canal.

(3) Voyage planning. (i) Each owner or operator of a towing vessel

employed to tow a tank barge shall prepare a written voyage plan for

each transit of the tank barge.

(ii) The watch officer is authorized to make modifications to the

plan and validate it as necessary.

(iii) Except as provided in paragraph (d)(3)(iv) of this section,

each voyage plan must contain:

(A) A description of the type, volume, and grade of cargo.

(B) Applicable information from nautical charts and publications,

including Coast Pilot, Coast Guard Light List, and Coast Guard Local

Notice to Mariners, for the destination(s).

(C) Current and forecasted weather, including visibility, wind, and

sea state for the destination(s).

(D) Data on tides and tidal currents for the destination(s).

(E) Forward and after drafts of the tank barge, and under-keel and

vertical clearances for each port and berthing area.

(F) Pre-departure checklists.

(G) Calculated speed and estimated times of arrival at proposed

waypoints.

(H) Communication contacts at Vessel Traffic Service (VTS) (if

applicable), bridges, and facilities, and port-specific requirements

for VHF radio.

(I) The master's standing orders detailing closest points of

approach, special conditions, and critical maneuvers.

(iv) Each owner or operator of a tank barge on an intra-port

transit of not more than four hours may prepare a voyage plan that

contains:

(A) The information described in paragraphs (d)(3)(iii)(D) and (E)

of this section.

(B) Current weather conditions including visibility, wind, and sea

state. This information may be entered in either the voyage plan or

towing vessel's log book.

(C) The channels of VHF radio to monitor.

(D) Other considerations such as availability of pilot, assist tug,

berth, and line-handlers, depth of berth at mean low water, danger

areas, and securite calls.

(4) Navigation restriction areas. Unless authorized by the

cognizant COTP, no tank barge may operate in--

(i) The waters of Cape Cod Bay south of latitude 42 deg. 5' North

and east of longitude 70 deg. 25' West; or

(ii) The waters of Fishers Island Sound east of longitude 72 deg.

2' West, and west of longitude 71 deg. 55' West.

Dated: December 18, 1998.

[FR Doc. 98-34414 Filed 12-24-98; 8:54 am]

BILLING CODE 4910-15-P