[Federal Register Volume 63, Number 250 (Wednesday, December 30, 1998)]
[Rules and Regulations]
[Pages 71764-71771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34414]


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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