[Federal Register Volume 69, Number 206 (Tuesday, October 26, 2004)]
[Proposed Rules]
[Pages 62427-62430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23963]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-133]
RIN 1625-AA11


Navigation and Waterways Management Improvements, Buzzards Bay, 
MA

AGENCY: Coast Guard, DHS.

ACTION: Advance notice of proposed rulemaking; notice of public 
meetings.

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SUMMARY: The Coast Guard is considering amending the existing Regulated 
Navigation Area for navigable waters within the First Coast Guard 
District, to require additional navigation safety measures within 
Buzzards Bay, including tug escorts and use of Recommended Routes. This 
advance notice of proposed rulemaking seeks public comment on the 
merits, advantages, and disadvantages of any amendment to the 
currently-existing RNA that would require tug escort of tank barges 
transiting Buzzards Bay, Massachusetts. In addition, the Coast Guard 
seeks comments on the merits of formally designating the existing 
Recommended Route in Buzzard's Bay.

[[Page 62428]]


DATES: 
    1. Comments are due on or before December 27, 2004.
    2. Public hearings will be held at 7:30 p.m. on November 16, 2004, 
and at 7:30 p.m. on November 17, 2004.

ADDRESSES: The Commanding Officer, U.S. Coast Guard Marine Safety 
Office Providence maintains the public docket for this ANPRM. Comments 
and documents will become part of this docket and will be available for 
inspection and copying at the same address between 8 a.m. and 3 p.m. 
Monday through Friday, except Federal holidays. You may submit comments 
and related material by:
    (1) Mail or delivery to Commanding Officer, U.S. Coast Guard Marine 
Safety Office Providence, 20 Risho Avenue, East Providence, RI, 02914-
1208.
    (2) Fax to 401-435-2399.
    (3) Electronically via e-mail at [email protected].
    The public hearing locations are:
    (1) New Bedford Whaling Museum, 18 Johnny Cake Hill, New Bedford, 
MA; and
    (2) Massachusetts Maritime Academy, 101 Academy Drive, Buzzard's 
Bay, MA.

FOR FURTHER INFORMATION CONTACT: If you have questions on this ANPRM, 
address mail to, or call, e-mail, or fax, Mr. Edward G. LeBlanc, c/o 
Commanding Officer, U.S. Coast Guard Marine Safety Office Providence, 
20 Risho Avenue, East Providence, RI 02914-1208, telephone 401-435-
2351, or e-mail at [email protected], or fax 401-435-2399.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    We encourage you to participate by submitting comments and related 
material. If you do so, please include your name and address, identify 
the docket number for this ANPRM (CGD01-04-133), indicate the specific 
section of this document to which each comment applies, and give the 
reason for each comment. You may submit your comments and material by 
mail, hand delivery, fax, or electronic means to the project officer at 
the addresses or phone numbers listed under FOR FURTHER INFORMATION 
CONTACT, but please submit your comments and material by only one 
means. If you submit them by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached U.S. Coast Guard Marine Safety Office 
Providence, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period.

Public Meetings

    We intend to hold two public meetings to receive comments on this 
ANPRM. The times, dates, and locations for these meetings are:
    (1) 7:30 p.m., Tuesday, November 16th, 2004, New Bedford Whaling 
Museum, 18 Johnny Cake Hill, New Bedford, MA; and
    (2) 7:30 p.m. Wednesday, November 17th, 2004, Massachusetts 
Maritime Academy, 101 Academy Drive, Buzzards Bay, MA.

Background and Purpose

    Congress designated Buzzards Bay as an Estuary of National 
Significance in 1985, one of only five estuaries in the U.S. so 
designated. The Bay has some of Massachusetts' most productive 
shellfish beds. It interacts with three very different marine systems, 
the Atlantic Ocean to the south, Vineyard Sound to the east, and Cape 
Cod Bay to the north. In 2002, there were nearly 10,000 commercial 
vessel transits and over 1200 tank barge transits in Buzzards Bay, and 
an estimated 80% of those tank barges were single hull vessels. Since 
1969 there have been several significant incidents of tank barge 
groundings and tank barge groundings with oil spills in Buzzards Bay, 
including the grounding of the tank barge Florida in 1969 with a spill 
of approximately 175,000 gallons of No. 2 fuel oil; the grounding of 
the tank barge Bouchard in 1977 with a spill of approximately 81,000 
gallons of No. 2 fuel oil; the grounding of the tank barge ST-85 in 
1986 with a spill of approximately 119,000 gallons of gasoline; the 
grounding of the tug Marie J. Turecamo and its asphalt-laden barge in 
1999; the grounding of the tug Mary Turecamo and its barge Florida in 
1999 carrying 4.7 million gallons of No. 6 fuel oil; and the grounding 
of the barge B-120 in April 2003 with a spill of No. 6 oil estimated to 
be of approximately 22,000 to 98,000 gallons. Groundings or collisions 
of tank barges could lead to a significant discharge or release of oil 
or other hazardous materials, as demonstrated by the incidents noted 
above, with potentially significant adverse impacts on the coastal and 
maritime environment, and the local economy. The purpose of examining 
strategies for navigation and waterways management improvements in 
Buzzards Bay is to reduce the likelihood of another accident that might 
result in the discharge or release of oil or hazardous material into 
the navigable waters of the United States.
    After a previous oil spill from the tank barge North Cape off of 
Point Judith, Rhode Island, in 1996, the Coast Guard chartered a 
Regional Risk Assessment Team (RRAT), comprised of government, 
commercial, and environmental entities, to examine navigation safety 
issues within New England waters. The RRAT recommended, and the Coast 
Guard implemented, a Regulated Navigation Area (RNA) that imposed 
certain requirements on single-hulled tank barges transiting New 
England waters, including Buzzards Bay. Subsequent to an oil spill in 
Buzzards Bay in April, 2003, noted above, the Coast Guard sponsored a 
Ports and Waterways Safety Assessment (PAWSA), which was conducted by a 
cross-section of key Buzzards Bay waterways users and stakeholders, 
resulting in numerous suggestions for improving navigation safety in 
the Bay. The PAWSA report suggested, in part, that the risk for oil or 
hazardous material discharge in Buzzards Bay is relatively high, and 
that one method of reducing that risk, among many that were suggested, 
might be to ``establish requirements for escort tugs.'' (The PAWSA 
report is available in docket CGD01-04-133. See ADDRESSES above on 
procedures to access the docket.) The PAWSA also recommended that 
Recommended Routes be established to help assist vessel traffic and 
provide safer transit routes for commercial vessels. Additionally, in a 
letter from several members of the U.S. Congressional delegation from 
Massachusetts, the Coast Guard was asked to consider measures similar 
to those recommended in the PAWSA, specifically: Assist tugs, 
Recommended Routes, and an Automatic Identification System (AIS). This 
letter, along with the Coast Guard's response, in available in the 
public docket.
    AIS is currently the subject of a separate Coast Guard rulemaking 
process. See docket USCG-2003-14878, 68 FR 39369, or at http://dms.dot.gov/. Under the AIS rule, tank barges, among others, transiting 
Buzzards Bay would be required to carry AIS, although an implementation 
date for that carriage requirement has not yet been established, except 
for certain vessels on international voyages. Additionally, the Coast 
Guard Marine Safety Office, Providence, RI, has requested that Buzzards 
Bay be designated a Vessel Movement Reporting System under 33 CFR 161 
to monitor the movements of certain vessels, including tank barges 
under tow, within Buzzards Bay. That request is currently under review 
by

[[Page 62429]]

Coast Guard headquarters in Washington, DC. A copy of this request is 
available in the public docket for this ANPRM (CGD01-04-133).
    The National Oceanic and Atmospheric Administration (NOAA), at the 
request of the Coast Guard, has already indicated Recommended Routes on 
navigational charts for Rhode Island Sound, Narragansett Bay, and 
Buzzards Bay. These recommended Routes are currently included on all 
new editions of charts 13205, 13218, 13221, and 13230. Currently, an 
escort tug is required in Buzzards Bay only for single hull tank 
barges, unless the single hull tank barge is being towed by a primary 
towing vessel with twin-screw propulsion and with a separate system for 
power to each screw. Consequently, the vast majority of tug and barges 
transiting Buzzards Bay (of which most barges are single hull) employ 
tugs with twin screws and twin engines, but with no additional positive 
control. The Coast Guard is considering a regulation that would require 
a tug escort of all tank barges carrying oil or hazardous material 
regardless of the towing vessel's propulsion configuration, to ensure 
positive control of the tank vessel.

Discussion of Proposed Regulation

    The Coast Guard is considering a regulation that would require tug 
escorts of all laden tank barges. The Coast Guard is also seeking 
comments on the merits of formally designating the existing Recommended 
Route, currently in place in Buzzards Bay.
    For the purposes of this Notice, the following terms are as defined 
in 46 U.S.C. 2101:
    Tank vessel is defined as ``a vessel that is constructed or adapted 
to carry, or that carries, oil or hazardous material in bulk as cargo 
or cargo residue.''
    Barge is defined as a non-self-propelled vessel.
    Oil is defined as ``oil of any type or in any form, including 
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes 
except dredged spoil.''
    Hazardous material is defined as ``a liquid material or substance 
that is flammable or combustible; designated a hazardous substance 
under section 311(b) of the Federal Water Pollution Control Act (33 
U.S.C. 1231); or designated a hazardous material under 49 U.S.C. 
5103(a)''.
    For the purposes of this Notice, ``tank barge'' is a non-self-
propelled vessel constructed or adapted to carry, or that carries, oil 
or hazardous material in bulk as cargo or cargo residue.
    For the purposes of this Notice, the following term is as defined 
in 33 CFR 165.100, ``Regulated Navigation Area: Navigable waters within 
the First Coast Guard District:''
    Tug escort is an escort or assist tug ``of sufficient capability to 
promptly push or tow the tank (vessel) away from danger of grounding or 
collision in the event of a propulsion failure; a parted towing line; a 
loss of tow; a fire; grounding; a loss of steering; or any other 
casualty that affects the navigation or seaworthiness of either 
vessel.''
    For the purposes of this Notice,
    Buzzards Bay is the body of water east and north of a line drawn 
from the southern tangent of Sakonnet Point, Rhode Island, in 
approximate position latitude 41[deg]27.2' N, longitude 70[deg]11.7' W, 
to the Buzzards Bay Entrance Light in approximate position latitude 
41[deg]23.5' N, longitude 71[deg]02.0' W, and then to the southwestern 
tangent of Cuttyhunk Island, Massachusetts, at approximate position 
latitude 41[deg]24.6' N, longitude 70[deg]57.0' W, and including all of 
the Cape Cod Canal to its eastern entrance, except that the area of New 
Bedford harbor within the confines (north of) the hurricane barrier, 
and the passages through the Elizabeth Islands, would not be considered 
to be Buzzards Bay.
    Recommended Route is the light green-shaded route contained on the 
most recent editions of NOAA navigational charts 13230 and 13218, and 
accompanied by a ``Note'' on each chart which reads ``Recommended 
Routes for deep draft vessels (including tugs and barges) entering and 
departing Rhode Island Sound, Block Island Sound, Narragansett Bay, and 
Buzzards Bay. While not mandatory, deep draft commercial vessels 
(including tugs and barges) are requested to follow the Recommended 
Routes at the master's discretion. Other vessels, while not excluded 
from these Recommended Routes, should exercise caution in and around 
these areas and monitor VHF channel 16 or 13 for information concerning 
deep draft vessels (including tugs and barges) transiting these routes. 
See U.S. Coast Pilot Section 2, Chapter 5, 6 or 7 as appropriate.'' 
These Recommended Routes are not part of the internationally recognized 
and approved Narragansett Bay Traffic Lane and Buzzards Bay Traffic 
Lane in Rhode Island Sound, and have not been formally adopted by the 
Coast Guard.

Questions

    We invite the public to answer the following questions. Any 
additional information provided on this topic is welcome. In responding 
to each question, please identify the question to which your response 
applies, and explain your reasoning as fully as possible so that we can 
carefully weigh the consequences and impacts of any future regulatory 
actions the Coast Guard may take.
    In preparing your responses to these questions, please indicate 
your position in the maritime industry, if applicable.

Tug Escorts

    1. What would constitute an effective ``tug escort?'' Does the 
definition in this ANPRM suffice?
    2. What would be the costs, if any, to tank barge owners, 
operators, and consumers, of requiring a tug escort for all tank barges 
transiting Buzzards Bay?
    3. What would be the economic impact to small entities, if any, of 
a requirement that all tank barges have tug escorts? ``Small entities'' 
is as defined by Regulatory Flexibility Act [5 U.S.C. 601], and 
generally refers to an enterprise or business that ``is independently 
owned and operated and which is not dominant it its field of 
operation.''
    4. Would a requirement that all tank barges have tug escorts cause 
a shortage of tug availability in the Buzzards Bay or Northeast U.S. 
areas? If so, what are the likely, potential economic impacts? Would 
rates for hiring tugs in the Buzzards Bay or Northeast U.S. areas 
change significantly as a result of such a requirement? If so, how much 
would rates change?
    5. Are there alternatives to tug escorts, such as increased manning 
or pilotage requirements on tugs, or double hulls on barges, that would 
provide an equivalent or improved level of navigational safety in 
Buzzards Bay?

Vessel Routing

    6. Would a requirement that tank barges under tow, and with tug 
escort, use the Recommended Route in Buzzards Bay currently displayed 
on NOAA charts have any adverse economic or navigation safety impacts?
    7. Are there other alternatives to required routing that would 
enhance navigational safety in Buzzard's Bay, such as a Recommended 
Route approved by the International Maritime Organization? If so, 
should such a route differ from the Recommended Route currently shown 
on navigational charts?
    Comments are not limited to the preceding questions and are invited 
on any aspect of the proposed regulation.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on state or local 
governments and would either preempt State law or

[[Page 62430]]

impose a substantial direct cost of compliance on them. The U.S. 
Supreme Court, in the cases of United States v. Locke, 529 U.S. 89 
(2000) and Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) has ruled 
that certain categories regulation issued pursuant to the Ports and 
Waterways Safety Act of 1972, as amended, are reserved exclusively to 
the Coast Guard, and that state regulation in these areas is preempted.
    On August 4, 2004, the Commonwealth of Massachusetts enacted 
Chapter 251 of the Acts of 2004, an Act Relative to Oil Spill 
Prevention and Response in Buzzard's Bay and Other Harbors and Bays of 
the Commonwealth. It is the view of the Coast Guard that several 
provisions of the Massachusetts Act touch categories of regulation 
reserved to the Federal Government and are preempted per the rulings in 
Locke and Ray. It is likely that any regulations promulgated as a 
result of this advance notice of proposed rulemaking would likewise 
touch categories of regulation reserved to the Federal Government, thus 
becoming further indicia of preemption.
    Section 17 of the Massachusetts Act purports to impose a state 
pilotage requirement on certain vessels engaged in the coastwise trade. 
It is the view of the Coast Guard that this provision is void by 
operation of law pursuant to 46 U.S.C. Sec.  8501. Coast Guard 
regulations promulgated as a result of this advance notice of proposed 
rulemaking may also address pilotage.
    Because of the preemption issues described above, the Coast Guard 
will conduct a Federalism analysis pursuant to E.O. 13132 for any rules 
promulgated as a result of this notice. Sections 4 and 6 of E.O. 13132 
require that for any rules with preemptive effect, the Coast Guard 
shall provide elected officials of affected state and local governments 
and their representative national organizations the notice and 
opportunity for appropriate participation in any rulemaking 
proceedings, and to consult with such officials early in the rulemaking 
process. Although it is the view of the Coast Guard that certain 
sections of the Massachusetts law are preempted for reasons independent 
of any potential rulemaking action here, in order to comply with the 
spirit of E.O. 13132, the Coast Guard has already begun consultations 
with the state government of Commonwealth of Massachusetts. We invite 
other affected state and local governments and their representative 
national organizations to indicate their desire for participation and 
consultation in the rulemaking process by submitting comments to this 
notice.

    Dated: October 14, 2004.
David Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 04-23963 Filed 10-25-04; 8:45 am]
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