[Federal Register Volume 65, Number 109 (Tuesday, June 6, 2000)]
[Rules and Regulations]
[Pages 35832-35838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14110]


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DEPARTMENT OF TRANSPORTATION

COAST GUARD

33 CFR Part 165

[CGD01-98-151]
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 amends the regulations at 33 CFR 165.100 that 
establish a Regulated Navigation Area (RNA) within the navigable waters 
of the First Coast Guard District. This Final Rule makes permanent the 
existing temporary authority of a Captain of the Port (COTP) to issue 
exemptions from the positive control of barges provisions of the RNA. 
These exemptions are authorized in limited circumstances in which an 
applicant employs equivalent levels of safety in the operation of 
vessels towing tank barges. This Final Rule removes the expiration date 
set in the Interim Rule for the exemption authority. The exemption 
authority is consistent with requirements of the relevant provisions of 
the Coast Guard Authorization Act of 1998, and with the purposes of 
environmental protection regulations to reduce the risk of oil spills 
in the marine environment, while accounting for the impact of the RNA 
on small entities.

DATES: This Final Rule is effective 1 July 2000.

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: 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

    After the oil spill that resulted from the grounding of the Tank 
Barge NORTH CAPE off the coast of Rhode Island in 1996, a group 
comprised of operators of towing vessels and tank barges, environmental 
organizations, State agencies, and Coast Guard officials, formed the 
Regional Risk Assessment Team (RRAT). The purpose of the RRAT was to 
review operating procedures for tugs and barges in the Northeast. The 
RRAT issued a report that included recommended actions to minimize 
risks peculiar to the transportation of petroleum in the waters of the 
First Coast Guard District.
    On October 13, 1998, the Coast Guard published in the Federal 
Register (63 FR 54639) a Notice of Proposed Rulemaking (NPRM) entitled 
``Regulated Navigation Area: Navigable Waters within the First Coast 
Guard District.'' That NPRM addressed many of the issues that the RRAT 
also addressed.
    On November 13, 1998, Congress enacted the Coast Guard 
Authorization Act of 1998 (Act). Section 311 of the Act required the 
Coast Guard, under authority delegated by the Secretary of 
Transportation, to promulgate regulations for the safety of towing 
vessels and tank barges in waters of the Northeast not later than 
December 31, 1998. Section 311(b)(1)(B) of the Act required the Coast 
Guard to fully consider each recommendation from the RRAT report. On 
December 30, 1998, the Coast Guard published in the Federal Register 
(63 FR 71764) a Final Rule establishing the RNA for the waters of the 
Northeast.
    After publication of the Final Rule, several companies in the 
towing and tank barge industry affected by the RNA notified the Coast 
Guard that they were concerned about the economic impact of the RNA's 
positive barge control provisions. Acting on these concerns, the Coast 
Guard published an Interim Rule in the Federal Register (64 FR 12746) 
on March 15, 1999, that temporarily authorized COTPs to exempt vessels 
from the positive barge control provisions based upon equivalent levels 
of safety. The Interim Rule also sought out comments on the economic 
impact of the positive barge control provisions on small entities. We 
conducted a public meeting on April 16, 1999 in New Haven, CT. The 
meeting was attended by 13 individuals, and there were 8 speakers.

Background and Purpose

    Prior to publication of the Interim Rule, 33 CFR 165.100(d)(1)(i) 
required that single-hull tank barges carrying petroleum and operating 
in the navigable waters of the First Coast Guard District either be 
towed by a tug equipped with twin-screws and two engines, or be 
escorted by a second tug. Double-hull tank barges and certain small 
barges in confined waters were exempt from this requirement. The 
positive control provision in the RNA addressed the hazards associated 
with operating single-hull tank barges with single-screw tugs in the 
First Coast Guard District waters. However, it provided little 
flexibility to address special circumstances. This Final Rule provides 
COTPs with the authority to address special circumstances. This 
exemption authority is consistent with RRAT report that had recommended 
that the Coast Guard establish a regulatory provision authorizing 
exemptions in limited circumstances.
    Under the final regulations, the COTP may consider exempting 
operators from the positive barge control provision upon the operator's 
demonstration of equivalent measures of safety. The exemptions, if 
granted, would result in the continued use of a single-screw and/or 
single-engine tug to tow a single-hull tank barge without an escort tug 
on the navigable waters of the First Coast Guard District. In 
determining whether to grant an exemption of the positive control 
provisions, the COTP will consider a variety of factors including, but 
not limited to, the availability of timely on-call tug assistance, the 
time of transit, the route, the weather, environmental factors, the 
amount and grade of cargo, the existence and sufficiency of anchoring 
and retrieval equipment on a manned barge, transits in protected 
waters, and the construction of the tank barge, as well as the 
operators' overall safety record.
    Requests for exemptions must be submitted in writing to each COTP 
in whose zone the barge intends to operate. Operators whose vessels 
transit multiple COTP zones must apply for the exemption from each 
COTP. COTPs will consult with each other in such cases. The Final Rule 
is responsive to the needs of small businesses, and gives the COTP the 
flexibility to weigh risk while continuing to safeguard the 
environment.
    This rule makes permanent the exemption process of the Interim 
Rule, which is set to expire on June 30, 2000. Because of the need to 
keep that exemption process authority, under U.S.C. 553(d)(1), this 
rule is effective in less than 30 days. Additionally, to remain 
responsive to industry needs while continuing to protect the 
environment and for the other reasons stated in the preamble of this 
rule, the Coast Guard finds good cause under 553 U.S.C. (d)(3) for 
making this rule effective in less than 30 days.

[[Page 35833]]

Discussion of Comments and Changes

    The Coast Guard received 84 written comments on the Interim Rule, 
contained in 9 individual letters to the docket; we received another 22 
comments at the public meeting.

General Comments

    Several comments generally questioned the effectiveness of the RNA 
on improving safety. Five comments stated that single-screw tugs have 
decided safety advantages over twin-screw tugs, especially in narrow 
channels, shallow drafts, and tight bends where the danger to safe 
navigation is increased. A related comment suggested that, rather than 
try to eliminate a whole class of vessels, the Coast Guard eliminate or 
minimize risk as much as possible.
    The overall purpose of the RNA is to improve safety and reduce the 
risk of an oil spill in First Coast Guard District waters. We believe 
that these regulations are effective safety measures, because they 
require operational planning, increase underway safety communications, 
and improve emergency response preparation. While single-screw tugs may 
have advantages, they do not have a redundant control system to serve 
as backup in the event the primary system fails to avoid a collision or 
grounding. We have not eliminated single-screw tug operation.
    The RNA does not preclude the use of single-screw tugs, but it does 
generally require that tank barges under tow by these tugs employ an 
escort. Single-screw, or single-engine tugs may continue to tow double-
hull barges, or seek an exemption for towing a tank barge with a 
capacity of less than 25,000 barrels in an area of limited depth or 
width. The Final Rule adds another exemption authority to address 
unique situations in which an equivalent level of safety is provided by 
the operator. By applying the RNA's measures together with those safety 
measures included in the two national rulemakings for Fire Protection 
[64 FR 56257] and Emergency Control Measures [65 FR 31806], the Coast 
Guard will lower the risk of pollution due to spills from tank barges.
    Two comments suggested that the Coast Guard create a matrix to 
assess risk and screen vessels for safety. Consideration for continued 
service should be based on safety factors that will prevent oil 
pollution. Some companies already employ numerous operational and 
equipment precautions to ensure safety; these are things that should be 
determining factors in assessing risk. A related comment suggested that 
the RNA include a ``grandfather'' clause permitting those small 
entities that have been hauling petroleum with single-screw tugs prior 
to January 29, 1999, to continue this method of transporting.
    We agree that a matrix may be a useful tool for COTPs to gauge risk 
factors when considering requests for exemption in some cases. A COTP 
is not limited in the way he or she evaluates an application. However, 
we note that the use of a single matrix in each of the five different 
COTP zones would be difficult in light of risks that may be unique to a 
particular COTP zone. Companies that employ preventive measures would 
be advised to identify those measures in any application for exemption 
under this Final Rule. The COTP will evaluate those measures in the 
equivalency determination. The result may have the same effect as 
``grandfathering'' in some cases.
    Three comments focused on the importance of the tug operator, and 
suggested enhanced qualification and skill standards consistent with 
the 1995 amendments to the International Convention on Standards of 
Training, Certification and Watchkeeping for Seafarers (STCW).
    The Coast Guard encourages operators, on their own initiative, to 
increase training and improve their professional skills to further good 
marine practices. This rule does not preclude any owner of a tank barge 
from adherence to higher watchkeeping standards. However, Coast Guard 
District Commanders, including the First District Commander, do not 
generally have independent authority to establish STCW requirements.
    Several comments urged that the Coast Guard establish procedures 
for transforming the temporary exemption into a permanent program, and 
that such a program would comply with the meaning and intent of the 
RRAT, which recommended waivers in certain instances.
    We agree. This Final Rule makes a permanent exemption authority 
consistent with the recommendations of the RRAT report. The purpose of 
the Interim Rule was to solicit comments on the measures of positive 
control in the RNA, particularly those from small businesses. Following 
the period for public comment, and having held a public meeting, the 
Coast Guard re-evaluated the risks posed by the continued use of a 
single-screw tug while operating on the temporary exemption. Since we 
inserted the authority into the RNA, COTPs have evaluated 38 
applications under the temporary exemption authority and granted 32 
exemptions. Although no oil spills have been associated with vessels 
operating under the exemption, we acknowledge that the data is limited 
to a relatively brief one-year period of time.
    One comment suggested that the Coast Guard establish a committee to 
study, in detail, how many small entities are involved and the type and 
extent of economic dislocation caused by the regulation. The Office of 
Advocacy of the Small Business Administration (SBA) has maintained that 
the use of general statistics is not an effective way to determine the 
impact of a regulation on any particular small business and that 
``Small Entity'' does not adequately segment the small towing firms 
affected.
    The Coast Guard relied upon the SBA definition of small entity when 
promulgating this Final Rule. The SBA regulations require the use of 
their small entity definition in the various industries unless the 
agency has promulgated specific definitions. The Coast Guard obtained 
sufficient information when we re-opened the docket with the Interim 
Rule and conducted additional analysis of the impact on small 
businesses. The Coast Guard notified over 180 owners of tugs and tank 
barges in the Northeast, to inform them of the rulemaking and solicit 
the request for comments from small entities to describe the impact of 
the positive barge control provisions.
    Several comments addressed the cost and safety of towing gear for 
anchoring and emergencies. They stated that the practice of picking up 
loose barges with emergency towing gear would place personnel and 
equipment in peril. Another comment stated that an engine-room fire 
aboard any tug, single or twin-screw, would render that tug helpless as 
all engine compressors, steering, and electric wiring are in one engine 
room.
    Anchoring systems and firefighting were not the purpose of this 
rule. These issues were, however, addressed by the national 
rulemakings, Emergency Control Measures for Tank Barges, and Fire 
Protection previously noted.

Comments on Particular Features of Preamble

Comments on Applicability of Rule
    One comment recommended that Sec. 165.100(d)(1)(i) be amended to 
apply to only single-hull tank barges with a capacity of more than 
7,500 barrels of oil. The comment recommended a new exemption provision 
be established to allow COTPs to grant exemptions to single-hull tank 
barges of this capacity.

[[Page 35834]]

    We agree that COTPs should have authority to issue exemptions, and 
have amended the regulations to reflect this change. As such, COTPs may 
allow a tank barge owner to continue using a single-screw, single-
engine tug to tow the barge, provided they employ alternative measures 
for the positive control of the barge. Rather than limit the exemption 
criteria solely to barge capacity, however, this rule requires COTPs to 
consider a host of factors including the barge capacity.
    Two comments stated that to achieve its stated goal of reducing the 
risk of oil spills, the rulemaking's escort tug requirements should 
apply to tank ships as well as tank barges, or to neither. The rule 
does not address the considerably greater risks posed by tank ships but 
poses increased requirements only on tank barges that carry far less 
oil.
    It is true that the RNA does not address tank ships, and neither 
the RRAT nor the Act addressed that class of vessels. But we disagree 
that the escort tug should apply to neither tank ships nor tank barges 
as a result. Towing vessels provide the propulsion for tank barges but 
are largely unregulated. Tank ships are essentially a towing vessel and 
tank barge combined as an integral unit and are heavily regulated to 
reduce the risk of oil spills. In several respects, the RNA, combined 
with the two national rulemakings previously noted, attempts to raise 
the level of safety on tugs and tank barges to that of tank ship 
operations.
    Four comments stated their appreciation for the expanded exemption 
provisions of Sec. 165.100(d)(1)(iii) in the Interim Rule; however it 
claims that the exemption does not go far enough. Since the RNA is 
based on a single-hull versus double-hull distinction, it should follow 
the same timeline established by Congress in OPA 90 for the phase-out 
of single-hull tank vessels.
    Neither the RNA in general, nor the positive barge control 
provisions specifically, have any impact on the statutory phase-out 
period for single-hull tank vessels. The RNA, simply, imposes 
operational requirements on single-hull tank vessels until they are 
phased-out in accordance with law. By amending the positive control 
measures, this rule increases the opportunities for single-screw tugs 
to continue towing single-hull tank barges.
Comments on Background and Purpose
    Six comments state that this rulemaking imposes new regulations on 
the entire single-hull segment of the tank barge industry in the 
Northeast without properly documenting oil spills resulting from 
single-screw propulsion failures. The incident that prompted the 
legislation underlying this rulemaking had nothing to do with the 
number of screws on the tug.
    As the comment notes, legislation underlies the rulemaking. The RNA 
establishes four operational measures for the safety of towing vessels 
and tank barges. These measures are preventive in nature and are 
designed to increase safety in an emergency. Clearly, it was the intent 
of the Congress, the RRAT, and the Coast Guard to establish measures to 
improve the safety during tank barge transits. While the NPRM does 
identify 12 examples where a redundant propulsion system prevented a 
grounding or collision, neither the Coast Guard, nor the RRAT sought to 
make a comparison between tugs with redundant systems and those 
without. Instead, the intent was to increase the safety of tank barge 
transits by requiring a redundancy, or ensuring that those tugs without 
redundant systems had tug escorts.
Comments on Regulatory Analysis
    One comment stated that the Summary of Costs assigns arbitrary 
hourly cost figures for charter tugs, and does not address the fact 
that in some cases these vessels may not even be available. The comment 
states that the cost of $300 per hour is arbitrary when you consider 
different ports. Worse than the cost per hour is the issue of 
availability which is uncertain in some areas where no hourly figure 
can accurately estimate the rule's impact.
    We note these comments and have revised our analysis in response to 
the comments received during the comment period. The data published in 
the Summary of Costs were gathered from sources such as the Army Corps 
of Engineers (ACOE) Navigation Data Center, the Coast Guard's Marine 
Safety Information System, and included telephone surveys with a number 
of towing vessel and tank barge owners. The Coast Guard analyzed these 
data, which it published for public consideration. We have revisited 
our data sources and revised upward the number of impacted transits. 
The cost of $300 per hour was used after calling industry sources; we 
consider that figure to be a reasonable approximation. We note that no 
comments suggested a more appropriate estimate.
    One comment stated that the Summary of Costs provided no allowance 
for added down-time for tugs and barges while awaiting voyage plan 
approval, or while waiting for assist tugs to arrive. Additional costs 
are incurred as the result of the crew training for anchoring and 
pickup gear.
    We note these comments. The Voyage Plan is only required to be 
complete before departure, and does not require approval. The cost of 
crew training for anchoring and retrieval gear is the subject of a 
separate rulemaking published by Coast Guard Headquarters. However, we 
have added the cost of training when the escort tug is not familiar 
with the barge operations.
    Two comments stated that the Summary of Costs does not address the 
issue of lost opportunity costs to impacted companies and the 
communities they serve. When a barge cannot be used because both 
single-screw tugs are away with a tank barge, revenue is lost or 
delayed.
    We note these comments. In the short run, while impacted companies 
are realigning their assets in order to be in compliance with the RNA, 
there may be some lost profit opportunities for barges. We have taken 
this into account in our revised Summary of Costs. We note that with 
the exemptions this may not be a factor at all. We also note that since 
the interim regulations have been in effect, the Coast Guard has not 
received a single complaint of a petroleum shortage that was created as 
a result of these regulations.
    Four comments stated that the analysis does not properly address 
the substantial costs of purchasing additional tugs to comply with the 
positive control measures. Costs for additional tugs are prohibitively 
expensive for small businesses and could cause the business to close 
its doors.
    We disagree that the Coast Guard is requiring small businesses to 
purchase additional tugs. Instead, small businesses have other options 
available in Sec. 165.100(d)(1)(i) for continued service. The COTP may 
grant exemptions to those small businesses that employ alternative 
safety measures for their current vessels.
    Four comments state that compelling the use of twin-screw tugs has 
forced an unfair economic hardship on small businesses, and has 
seriously depressed the value of single-screw tugs. The analysis does 
not quantify or address the rulemaking's effect on single-screw tugs, 
whose value has fallen by about a third since this rulemaking was 
proposed. Additionally, two comments stated that their small company 
made a large investment in a single-skin barge before they became aware 
of the rulemaking. The new regulation has drastically changed their 
financial equation that served as the basis to purchase this barge.

[[Page 35835]]

    We agree that the rulemaking may have placed an economic burden on 
certain small businesses. After publication of the Final Rule on 
December 30, 1998, the Coast Guard heard from several small tug and 
tank barge companies claiming that they had been unaware of the 
rulemaking, and had failed to submit comments to the docket voicing 
their opinion. As a result, the Coast Guard reopened the docket to 
learn more about the affects of the positive control measures on their 
small businesses. In response to the comments received, the First 
District Commander has amended the regulations to permit companies that 
own single-screw tugs to continue in the tank barge service, provided 
alternative safety measures are approved by the COTP. The new exemption 
may reduce the unexpected costs for those companies that receive 
exemptions, and will thereby offer them relief for continued service.
    Four comments stated that the analysis appears faulty and does not 
explain how the Regulatory Assessment led the Coast Guard to enact 
extra burdens on the operators of single-screw tugs. The analysis shows 
a tug escort rule effectiveness of $67,561.55 per barrel of oil not 
spilled which seems way too high. The $32,103 cost-effectiveness figure 
published in the Federal Register was high. It looks like the Coast 
Guard may require the transportation industry to spend over $12 million 
without preventing any oil from spilling.
    We disagree that the RNA will not prevent oil spills from tank 
barges. However, we have revised the regulatory assessment; a copy is 
available in the docket.
    One comment asked whether the Coast Guard wasn't already doing 
enough with regulations to prevent another NORTH CAPE scenario. Other 
rulemakings, such as Fire Suppression and the Emergency Control 
Measures for Tank Barges, will all reduce the likelihood of oil 
spilling from barges. Benefit figures for the RNA may be lower because 
another rule would have prevented many accidents from happening. Under 
that rule as proposed, a single-hull barge being towed will be fitted 
with an anchoring system required by a separate rulemaking. The 
analysis does not properly address how the rulemaking for Emergency 
Control Measures for Tank Barges and other OPA 90 rulemakings will 
prevent groundings.
    We note these comments. The analysis did take into account the 
potential benefits of these other rulemakings. Please see the 
``Benefits'' section of the Regulatory Assessment available in the 
docket.
    One comment asked whether this rulemaking imposed operational 
conditions, which are, instead, actually equipment regulations that 
require a second engine and a second screw for the tugs.
    The RNA does not contain an option for installing a second engine 
and second screw. Any such actions would be taken independent of the 
RNA, even though the result may be that the affected tug would be 
subject to fewer RNA requirements.
    One comment stated that the rulemaking should be declared null and 
void because the rule makes no mention of hazardous areas or hazardous 
conditions.
    We disagree that the RNA was not based on hazardous conditions. The 
premise of this rulemaking was the inherent risks associated with the 
waterborne transportation of petroleum products in the Northeast, which 
is subject to high-risk transit areas. As a heavily industrialized and 
oil-dependent region of the country, the Northeast is subject to a high 
volume of tank barge traffic, particularly during the winter months, 
due to the demand for home heating oil. These operating conditions 
include dangerous and often violent winter storms that are unique to 
the region, and therefore create substantial hazards for the vessel's 
crew and the environment. As described in the rulemaking's Background 
and Purpose of the NPRM, the First Coast Guard District has experienced 
289 marine casualties involving tank barges from 1992 through 1996. 
Given this high number of tank barge-related casualties and the 
potential for another major pollution incident, the Coast Guard 
promulgated this RNA as required by law, citing these hazardous 
conditions.
    One comment stated that the Coast Guard should explain why it wants 
to place tug escort rules in 33 CFR part 165 when there are regulations 
on tug escorts found in 33 CFR part 168. While the Coast Guard did not 
require tug escorts in the waters of the First District during the 1994 
rulemaking, the commentor asks what has changed between 1994 and 1999? 
Accident histories do not justify the change of position.
    We disagree, and note that these regulations are the result of the 
NORTH CAPE spill in January 1996. We also find that Part 165 is the 
appropriate subpart for these regional regulations. This subpart 
permits the District Commander to control vessel traffic operating 
conditions within his area of responsibility. As it establishes a RNA, 
this rulemaking is limited to those waters under the authority of the 
First District Commander. Accident histories have long been a source of 
legislated governance of the marine-transportation industry; the most 
noteworthy of which is the Oil Pollution Act of 1990 which was the 
result in large part from the grounding of the EXXON VALDEZ.
    One comment stated that their company lost revenue because the rule 
went into effect at the end of the industry's season. There are 
customers that will not hire tug companies even if they hold 
exemptions. This rulemaking creates an unjust situation for small 
entities that are trying to comply with the law. Additionally, one 
comment stated that this rule will have a significant economic impact 
on their business. To purchase a new twin-screw, twin-engine tug will 
cost $25,000 per month in a mortgage payment. The requirements will not 
affect large businesses, but may put smaller businesses out of 
business.
    We have amended the rulemaking to ease the economic burden on small 
entities. By allowing the COTP to grant exemptions for single-screw 
tugs to continue in towing tank barges, the First District Commander is 
responsive to the concerns of small entities. This amendment offers 
relief to those small entities that might experience economic hardship 
by offering them the option of applying for an exemption for continued 
service from the COTP.
    One comment stated that all federal agencies are required to 
identify alternative regulatory approaches for small business, small 
governmental jurisdictions and non-profit organizations.
    We agree that the Coast Guard is responsible for considering the 
economic impact on small entities. As such, the Coast Guard believes 
that this amended rulemaking satisfies the requirements of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) by offering 
alternatives to small businesses in Sec. 165.100(d)(1)(iii) that will 
allow them to continue to tow tank barges in the Northeast and 
accordingly does not place a substantial impact on a significant number 
of small businesses.

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

[[Page 35836]]

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 and 
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.
    Over the period of analysis, the present value of total damages and 
deaths avoided by the rule would be $2,192,473 (1998 dollars). Total 
pollution avoided by the rule would be 1,368.65 barrels. These figures 
are different from those obtained in earlier Regulatory Assessments due 
to updating and improvement of the data and 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 Tank Barges: Data from the First District 
and U.S. Army Corps of Engineers indicated that there are 21,640 
transits occurring within the District each year. Of these transits, we 
estimate 1.95%, or 421, 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. Over the period of analysis, the present value total cost of 
the escort or assist tug escorts would be $21,608,076 (1998 dollars).
    Another cost of the tug-escort requirement is the cost to 
familiarize the crew of the escort tug if they are not familiar with 
the anchor and breakaway gear of the barge they will escort. We 
estimate this training would be necessary for 60% of the transits and 
the training would take an average of one hour. Over the period of 
analysis, the present value total cost of training would be $215,911.
    This requirement also may cause some businesses to incur other 
costs. First, the resale prices of the existing single-screw tugs in 
the First Coast Guard District may be slightly lower for at least some 
period due to this rulemaking. We estimate the present value total cost 
from lost resale value would be $150,000. Second, in the short run, 
while impacted companies are realigning their assets in order to be in 
compliance with the tug-escort requirement, there may be some lost 
profit opportunities for barges. We estimate the present value total 
cost in terms of lost profit would be $50,000. With permanent waivers, 
we expect the impact of lost profit or lost resale value may be 
reduced.
    The present value total cost of the positive-control requirement 
would be $22,023,987 ($21,608,076 + $215,911 + $150,000 + $50,000 = 
$22,023,987).
    (2) Enhanced Communications: This rule would require the person(s) 
on watch on a towing vessel to make approximately eight securite calls 
during the average transit in the First District. The cost of this 
requirement to the operator would be the time added to the crews' watch 
duties per transit and/or the diminished productivity per transit as a 
result of this requirement.
    Each securite call would take about 0.00833 hours (or 0.5 minutes) 
per transit. This time represents the number of hours (or minutes) that 
a crewmember would give up doing other activities during a transit. We 
assume that the master makes half of the securite calls and the mate 
makes the other half. Based on a rate of $350 per 12-hour day, we 
estimate the average hourly wage for a master of a towing vessel would 
be $29.17. Based on a rate of $250 per 12-hour day, we estimate the 
average hourly rate for a mate would be $20.83. As each person makes 4 
calls per transit, the total labor time and total labor cost per 
transit would be 0.0666 hours/transit and $1.67/transit, respectively 
(8 calls/transit  x  0.00833 hours/call = 0.0666 hours/transit and 
[($29.17/hour  x  0.033 hours/transit) + ($20.83/hour  x  0.033 hours/
transit) = $1.67/transit]).
    With 11,902 transits of petroleum-laden tank barges (55% of 21,640 
total transits) within the First Coast Guard District each year, the 
total annual time burden of this requirement would be 792.67 hours, and 
the potential opportunity cost would be $19,837 per year ($1.6667/
transit  x  11,902 transits/year = $19,837/year). Over the period of 
analysis, the present value total cost of this requirement would be 
$187,393 in 1998 dollars.
    Given the existing practices that occur during typical watch 
duties, we expect the time necessary to make each call would not 
increase the time spent performing watch duties nor decrease 
productivity of either crewmember on watch. Without an increase in 
labor time devoted to watch duties or decrease in productivity, the 
financial cost of the enhanced-communications requirement would be $0.
    (3) Voyage Planning: Currently we estimate 21,640 transits of tank 
barges in the First Coast Guard District each year. The Coast Guard 
estimates that 90% (or 19,476) of these transits already are in 
compliance with this proposed requirement. Thus, 10% or 2,164 transits 
currently lack a voyage plan. Further data from the First Coast Guard

[[Page 35837]]

District indicates that 55% of the annual transits involve petroleum-
laden tank barges. Therefore, we estimate that 55% or 1,190 of the 
2,164 petroleum-laden tank barge transits currently lack a voyage plan.
    For each transit, as a representative of the owner or operator, the 
master of the towing vessel spends approximately 0.5 hours (or 30 
minutes) preparing a voyage plan. The average wage rate for a towing 
vessel master is estimated to be $29.17 per hour. The annual cost of 
voyage planning would be $17,357 ($29.17/hour  x  0.5 hours/transit  x  
1,190 transits/year = $17,357/year). Over the period of analysis, the 
present value total cost of the voyage-planning requirement would be 
$163,965 (in 1998 dollars).
    (4) Restricted Navigation Areas: This proposed requirement would 
establish two restricted navigation areas that would bar the traffic of 
towing vessels with petroleum-laden tank barges. These two areas are 
Fishers Island Sound and the eastern portion of Cape Cod Bay. 
Historically and currently there has been no traffic of towing vessels 
with petroleum-laden tank barges operating within either of these two 
areas. Thus, the cost of the restricted navigation requirement would be 
$0.

Summary

    The present value total cost of this rule would be $22,187,952 
($22,023,987 for positive control of barges + $0 for enhanced 
communications + $163,965 for voyage planning + $0 for restricted 
navigation areas = $22,187,952). In terms of cost-effectiveness, this 
rule would prevent 1,368.65 barrels of pollution at a cost of $16,212 
per barrel.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider 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 would require the following:
    (1) positive control measures for tank barges, which require an 
escort or assist tug during all transits involving towing vessels not 
equipped with twin-screw/twin-engine propulsion, and that are engaged 
in towing petroleum-laden single-hull tank barges in the First Coast 
Guard District;
    (2) operators of vessels towing petroleum-laden tank barges 
initiate and broadcast securite calls on radio identifying their 
position at specified locations during a transit in the First District;
    (3) a voyage plan be prepared prior to a petroleum-laden tank barge 
voyage within the First District; and
    (4) two restricted navigation areas within the First District that 
would bar traffic of towing vessels with petroleum-laden tank barges.
    The maximum estimated cost of this regulation would be $22,187,952 
with the majority of the cost (or 99%) being the cost of the positive-
control requirement. The voyage-planning requirement would have an 
estimated cost of $163,965, while the enhanced-communications and 
restricted-navigation-areas requirements would be expected to have zero 
financial cost.
    We estimate there are currently 11,902 petroleum-laden tank barge 
transits within the First District per year. We estimate that 
approximately 95% of the towing vessels that tow petroleum-laden tank 
barges in the First District are twin-screw, which do not require 
positive control measures. Also exempted from the positive-control 
requirement would be all double-hull tank barges that currently make up 
29% of the tank barge fleet. Consequently, we estimate that 421 
transits would be impacted by the positive-control requirement.
    The Small Business Administration, in 13 CFR 121, defines small 
businesses by either the number of employees or by the amount of a 
company's receipts in dollars. For examples, a business in the towing-
&-tugboat-services industry that has annual revenue no greater than $5 
million is a small entity. However, a business in the water-
transportation-of-freight industry that has no more than 500 employees 
would be a small entity. The Coast Guard does not collect revenue nor 
number-of-employee information from the businesses it regulates; 
however, information can be obtained from sources such as Dun & 
Bradstreet or the U.S. Census. According to Dun & Bradstreet 
Marketplace 1999, the percentage of companies nationally with annual 
revenue equal to or less than $5 million in the towing-&-tugboat-
services industry (SIC Code 4492) is about 86%. Regionally, for 
companies that are located in one of the states within the boundaries 
of the First District which are in SIC Code 4492, approximately 90% 
would be considered a small entity. For water transportation of 
freight, n.e.c. (SIC Code 4449), the percentage of companies nationally 
with a maximum of 500 employees is approximately 95%, while for 
companies located in one of the states within the boundaries of the 
First Coast Guard District that percentage is approximately 95% as 
well.
    The Coast Guard's Marine Safety Management System (MSMS) database 
identifies 34 different companies that own tank barges certificated 
under subchapter O or D within the boundaries of the First District. 
The MSMS database also identifies 124 different companies located in 
one of the states within the boundaries of the First District that own 
towing vessels. These towing vessels are not owned strictly by 
companies that are engaged in towing & tugboat services or water 
transportation of freight. Other owners of towing vessels include 
construction companies and governments.
    It is the businesses who 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 vessels and barge owners, the majority of which are small 
entities, may be affected by the positive-control requirement if they 
can no longer provide tug service at a competitive price due to the 
requirement that they employ an escort or assist tug.
    On March 15, 1999, an Interim Rule allowed the local COTP to 
authorize temporary exemptions to the positive-control requirement 
established in the December 30, 1998, Final Rule. Since inserting this 
authority into the rule, thirty-two temporary exemptions have been 
granted with no pollution incidents. These exemptions expire June 30, 
2000. Comments from industry have requested that the Coast Guard 
establish procedures that would transform the temporary exemption into 
a permanent exemption. In an effort to reduce the impact of the 
positive-control requirement, this Final Rule allows the COTP to 
authorize exemptions to the positive-control requirement, and removes 
the temporary nature of the exemptions that were granted in the Interim 
Rule. Accordingly, 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

[[Page 35838]]

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

    The Final Rule calls for no collection of information under the 
Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.].

Impact on Federalism

    This rule would revise the rules at 33 CFR 165.100(d)(1)(iii) that 
address navigational safety, and voyage planning for towing vessels. We 
have analyzed this rule in accordance with the principles and criteria 
contained in Executive Order 13132. It is well settled that States are 
preempted from establishing any requirements for tank vessels and the 
vessels that tow them in the categories of design, construction, 
alteration, repair, maintenance, operation, equipping, personnel 
qualification, and manning. See the decision of the Supreme Court in 
the consolidated cases of United States v. Locke and Intertanko v. 
Locke ______ U.S. ______, 2000 U.S. LEXIS 1895 (March 6, 2000). Thus, 
this entire rule falls within preempted categories. Because States may 
not promulgate rules the categories set out, preemption is not an issue 
under that Order.

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 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 ``Determination of 
Categorical Exclusion'' 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 [AMENDED]

    1. The citation of authority for Part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.

    2. Revise Sec. 165.100(d)(1)(iii) to read as follows:


Sec. 165.100  Regulated Navigation Area: Navigable Waters within the 
First Coast Guard District

* * * * *
    (d) * * *
    (1) * * *
    (iii) The cognizant Captain of the Port (COTP), upon written 
application, may authorize an exemption from the requirements of 
paragraph (d)(1)(i) of this section for--
    (A) Any tank barge with a capacity of less than 25,000 barrels, 
operating in an area with limited depth or width such as a creek or 
small river; or
    (B) Any tank barge operating on any waters within the COTP Zone, if 
the operator demonstrates to the satisfaction of the COTP that the 
barge employs an equivalent level of safety to that provided by the 
positive control provisions of this section. Each request for an 
exemption under this paragraph must be submitted in writing to the 
cognizant COTP no later than 7 days before the intended transit.
* * * * *

    Dated: May 26, 2000.
Robert F. Duncan,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard 
District.
[FR Doc. 00-14110 Filed 6-5-00; 8:45 am]
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