[Federal Register Volume 71, Number 60 (Wednesday, March 29, 2006)]
[Proposed Rules]
[Pages 15649-15656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3014]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 161 and 165

[CGD01-04-133]
RIN 1625-AA11


Regulated Navigation Area; Buzzards Bay, MA; Navigable Waterways 
With the First Coast Guard District

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Subsequent to an Advance Notice of Proposed Rulemaking 
published in the October 26, 2004, edition of the Federal Register, the 
Coast Guard proposes to revise the regulations governing the Regulated 
Navigation Area (RNA) in First Coast Guard District waters to require 
that certain tank vessels and tug/barge combinations transiting 
Buzzards Bay, Massachusetts be accompanied by escort tugs and federally 
licensed pilots. The Coast Guard also proposes to establish a Vessel 
Movement Reporting System (VMRS) for Buzzards Bay and to require 
mandatory participation in the VMRS by vessels subject to the Vessel 
Bridge-to-Bridge VHF Radiotelephone regulations, including tug/barge 
combinations. Participation in the Buzzards Bay VMRS could be 
accomplished either automatically through a vessel's Automatic 
Identification System (AIS) or via VHF radiotelephone. The purpose of 
this proposed rulemaking is to reduce the likelihood of an incident 
that might result in a collision, allision, or grounding and the 
aftermath discharge or release of oil or hazardous material into the 
navigable waters of the United States.

DATES: Comments and related material must reach the Coast Guard on or 
before June 27, 2006.

ADDRESSES: The Commanding Officer, U.S. Coast Guard Sector Southeastern 
New England maintains the public docket for this notice. 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 Sector 
Southeastern New England, 20 Risho Avenue, East Providence, RI 02914-
1208.
    (2) Fax to 401-435-2399.
    (3) Electronically via e-mail at [email protected].
    (4) The entire public docket may be viewed at the Coast Guard 
Sector Southeastern New England Web site at http://www.uscg.mil/d1/units/msoprov/.

FOR FURTHER INFORMATION CONTACT: Mr. Edward G. LeBlanc at Coast Guard 
Sector Southeastern New England, Providence, RI, 401-435-2351.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to submit comments and related material pertaining 
specifically to the navigation safety and waterways management aspects 
of the proposed rule. If you do so, please include your name and 
address, identify the docket number for this rulemaking (CGD01-04-133), 
and give the reason for each comment. You

[[Page 15650]]

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 Sector Southeastern New England, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meetings

    We do not intend to hold additional public meetings on this 
proposed rule. As part of the Advance Notice of Proposed Rulemaking 
announced in the October 26, 2004, edition of the Federal Register, 
(Vol. 69, No. 206, pages 62427 to 62430) two public meetings were held 
to obtain direct feedback from the public on November 16, 2004, at the 
New Bedford Whaling Museum, and on November 17, 2004, at the 
Massachusetts Maritime Academy. Comments received at those meetings, as 
well as written comments, are summarized below. You may submit a 
request for an additional public meeting to the address contained in 
ADDRESSES above, explaining why an additional public meeting would be 
beneficial. If we determine that an additional public meeting is 
necessary, we will hold one at a time and place announced by a later 
notice in the Federal Register.

Background and Purpose

    This NPRM is subsequent to an Advance Notice of Proposed Rulemaking 
(ANPRM) published on October 26, 2004 in Volume 69, No. 206, pages 
62427 to 62430 of the Federal Register, under the heading ``Navigation 
and Waterways Management Improvements, Buzzards Bay, MA''. 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. An estimated 80% of those tank barges 
were single hull vessels. Note that the term ``single hull'' and other 
terms used in this proposed rule have the same meaning as those found 
in Title 33, Code of Federal Regulations (CFR), Sec.  165.100(b).
    Since 1969 there have been several incidents of tank barge 
groundings with oil spills in Buzzards Bay. These include the grounding 
of the tank barge Florida in 1969 with a spill of approximately 175,000 
gallons of No. 2 fuel oil; the grounding of the tank barge Bouchard in 
1977 with a spill of approximately 81,000 gallons of No. 2 fuel oil; 
the grounding of the tank barge ST-85 in 1986 with a spill of 
approximately 119,000 gallons of gasoline; the grounding of the tug 
Marie J. Turecamo and its asphalt-laden barge in 1999; the grounding of 
the tug Mary Turecamo and its barge Florida in 1999 carrying 4.7 
million gallons of No. 6 fuel oil; and the grounding of the barge B-120 
in April 2003 with a spill of No. 6 oil estimated to be of 
approximately 22,000 to 98,000 gallons.
    Groundings, allisions, or collisions of tank barges or other laden 
vessels could lead to a discharge or release of oil or other hazardous 
materials, as demonstrated by the incidents noted above, with 
potentially adverse impacts to people, property, the coastal and 
maritime environment, and the local economy. The purpose of these 
proposed regulations for navigation safety and waterways management 
improvements in Buzzards Bay is to reduce the likelihood of another 
incident that might result in the discharge or release of oil or 
hazardous material, or other serious harm, on the navigable waters of 
the United States.
    After a previous oil spill from the tank barge North Cape off of 
Point Judith, Rhode Island, in 1996, the Coast Guard chartered a 
Regional Risk Assessment Team (RRAT), comprised of government, 
commercial, and environmental entities, to examine navigation safety 
issues within New England waters. The RRAT recommended, and the Coast 
Guard implemented, a RNA that imposed certain requirements on single-
hulled tank barges transiting New England waters, including Buzzards 
Bay. Regulations governing the RNA in First Coast Guard District waters 
are contained in 33 CFR Sec.  165.100.
    Subsequent to an oil spill in Buzzards Bay in April, 2003, noted 
above, the Coast Guard sponsored a Ports and Waterways Safety 
Assessment (PAWSA), which was conducted by a cross-section of key 
Buzzards Bay waterways users and stakeholders, resulting in numerous 
suggestions for improving navigation safety in the Bay. The safety 
assessment process is a disciplined approach to identify major waterway 
safety hazards, estimate risk levels, evaluate potential mitigation 
measures, and set the stage for implementation of selected measures to 
reduce risk. The process involves convening a select group of waterway 
users/stakeholders and conducting a two-day structured workshop to meet 
these objectives. The assessment process represents a significant part 
of joint public-private sector planning for mitigating risk in 
waterways. When applied consistently and uniformly in a number of 
waterways, the process is expected to provide a basis for making best 
value decisions for risk mitigation investments, both on the local and 
national level. For further information on PAWSA visit: http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_home.htm.
    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, is available in the docket. Automatic Identification System 
(AIS) is a data transmission system for ship-to-ship, ship-to-shore, 
and shore-to-ship communication adopted by the International Maritime 
Organization (IMO). AIS shipboard equipment consists of a transceiver 
that continually transmits and receives vessel navigational information 
(position, course, speed, etc.) over VHF-FM maritime frequencies. AIS 
units operating in proximity to each other automatically create a 
virtual network. Shore stations can also join these virtual networks, 
and they may receive shipboard AIS signals, perform network and 
frequency management and send additional broadcast or individual 
informational messages to AIS equipped vessels.

[[Page 15651]]

    As of December 31, 2004, AIS is required on most commercial vessels 
either navigating abroad or within a Vessel Traffic Service area. (See 
33 CFR Sec.  164.46.) Under a separate regulatory initiative, the Coast 
Guard sought public comments on the notion of expanding AIS 
requirements beyond the regulations of 33 CFR Sec.  164.46. Expansion 
of AIS requirements may apply to Buzzards Bay and/or tug/barge 
combinations. This initiative is still in progress. See Federal 
Register Vol. 68, No. 128 of July 1, 2003, pages 39369 to 39371 and 
docket [USCG 2003-14787] at http://dms.dot.gov/.
    The National Oceanic and Atmospheric Administration (NOAA), at the 
request of the Coast Guard, has already overlaid Recommended Routes on 
navigational charts for Rhode Island Sound, Narragansett Bay, and 
Buzzards Bay. These recommended Routes are currently included on all 
new editions of charts 13205, 13218, 13221, and 13230. To allow maximum 
operating flexibility to meet differing conditions and situations, at 
this time the Coast Guard is not proposing to make the recommended 
vessel routes depicted on these charts mandatory.
    Currently, an escort tug is required in Buzzards Bay only for 
single hull tank barges, unless the single hull tank barge is being 
towed by a primary towing vessel with twin-screw propulsion and with a 
separate system for power to each screw. Consequently, the vast 
majority of tug and barge combinations transiting Buzzards Bay (of 
which most barges are single hull) employ tugs with twin screws and 
twin engines, but with no additional positive control.
    On October 26, 2004, the Coast Guard published an Advance Notice of 
Proposed Rule Making (ANPRM) that sought public comments regarding the 
necessity and type, if any, of additional navigation safety measures 
that might be implemented within Buzzards Bay (See Federal Register, 
Vol. 69, No. 206, pages 62427 to 62430). Approximately forty written 
comments were received. Additionally, two public meetings were held to 
obtain direct feedback from the public on November 16, 2004, at the New 
Bedford Whaling Museum, and on November 17, 2004, at the Massachusetts 
Maritime Academy. There were 76 and 47 speakers offering comments at 
each meeting, respectively. Written comments, and a roster of speakers 
from each meeting, are available for viewing in the docket at http://www.uscg.mil/d1/units/msoprov/.
    Comments (both oral and written) generally fell within the 
following categories:
    Root Cause: Comments noted that the root cause of most maritime 
incidents in Buzzards Bay could be attributed to human error rather 
than equipment failure, hazardous weather, or other factors.
    The Coast Guard agrees that the root cause of many maritime 
incidents and casualties, including the B-120 oil spill in Buzzards 
Bay, may be attributed to human factors. Consequently, in this 
rulemaking the Coast Guard proposes certain measures such as mandatory 
pilotage by a federally licensed pilot, escort tugs, and a vessel 
monitoring system, to reduce the likelihood that human factors may 
cause an accident, and to mitigate the adverse impact of any casualties 
that may occur.
    Pilotage: Comments noted that the proficiency standards for 
federally licensed pilots were inadequate and in need of revision, and 
that federally licensed pilots were generally not as experienced in 
tug/barge navigation as were the captains of the tugs themselves.
    Currently, to obtain a Federal pilot's license (or endorsement) to 
operate a vessel in Buzzards Bay, a person must pass a comprehensive 
examination, which includes, but is not limited to, performing a chart 
sketch of the area, demonstrating proficiency in the use of 
navigational aids, and maneuvering and handling ships in high winds, 
tides, and currents. Further, a person must complete a specific number 
of round trips and demonstrate specialized knowledge of the waters for 
which the license (or endorsement) is issued.
    The Coast Guard considers these proficiency standards to be 
sufficient for monitoring and guiding the movements of tug/barge 
combinations through Buzzards Bay.
    Crewing: Comments noted that the crewing requirements for tugs 
towing barges were inadequate, and recommend increased crewing 
requirements.
    The Coast Guard concurs with the view that current crewing 
requirements may be insufficient for the navigational demands 
associated with transiting Buzzards Bay, and so has proposed in this 
rule to require a federally licensed pilot in addition to the crew to 
advise the master and assist in the navigation of the vessel.
    Cost/Availability of Escort Tug: Comments expressed concern 
regarding the cost of escort tugs and pilotage, and also the 
availability, or lack of, escort tugs within Buzzards Bay of sufficient 
capability to provide escort services.
    Based on interviews with representatives from various components of 
the maritime industry, the Coast Guard considers escort tug capacity to 
be sufficient to meet the projected demand for escort tugs. In our 
Regulatory Evaluation that accompanies this rulemaking and is available 
in the docket (CGD01-04-133), the Coast Guard projects that the demand 
for escort tugs will decrease over time as progressively fewer transits 
of Buzzards Bay are made with single hull tank barges. Also, in our 
Regulatory Evaluation we have documented anticipated costs associated 
with escort tugs and federally licensed pilots and found those costs, 
when compared to the benefits realized by the avoidance of vessel 
casualties and oil spills, to be reasonable.
    Definition of Escort Tug: Comments noted that ``escort tug'' should 
be well-defined in any regulation, and also provided suggestions on 
what that definition should include.
    ``Escort tug'' as used in this proposed rule has the same meaning 
as the description of escort tug already found in 33 CFR 165.100(d), 
i.e., the escort tug must be of ``sufficient capability to promptly 
push or tow the tank barge away from danger or grounding in the event 
of--
    (A) A propulsion failure;
    (B) A parted tow 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.''
    Aids to Navigation: Comments expressed a need for improved aids to 
navigation within Buzzards Bay, including a wave height indicator at 
the Buzzards Bay tower, a weather buoy at the east end of the Cape Cod 
Canal, and auxiliary navigation channels adjacent to the Buzzards Bay 
recommended vessel route.
    The Coast Guard has reviewed the aids to navigation system in 
Buzzards Bay and has re-positioned several buoys, and has plans to 
install some new lighted aids and ranges, particularly in Cleveland 
Ledge and Hog Island channels, in 2006 or 2007, pending funding. 
Additionally, the National Oceanic and Atmospheric Administration 
(NOAA) operates a wave height indicator at the Buzzards Bay tower.
    Increased Navigation Risks Due to Presence of Escort Tugs: Comments 
noted that escort tugs themselves could increase danger due to 
additional vessels in the constrained channels of Buzzards Bay and the 
Cape Cod Canal.
    Voluntary use of escort tugs in Buzzards Bay and the Cape Cod Canal

[[Page 15652]]

has long been practiced with no adverse impacts on the ability of other 
vessels to navigate safely. The amount of good water in lower Buzzards 
Bay is considered sufficient for vessels to navigate safely, even with 
the addition of escort tugs. Additionally, the U.S. Army Corps of 
Engineers' authority for (and control of) the Cape Cod Canal 
encompasses in their entirety the constrained waterways of Cleveland 
Ledge Channel, Hog Island Channel, and the canal itself (the canal land 
cut). On those few occasions (primarily in winter when home heating oil 
deliveries increase) where several tugs with tows and escort tug may 
converge, or approach converging, near one of these constrained 
waterways, the Corps would direct vessel traffic to minimize risk of 
collision. Lastly, this proposed rule includes establishment of a 
Vessel Movement Reporting System (VMRS) in Buzzards Bay that would 
provide for monitoring of all tug and tank vessel traffic in the Bay, 
and would provide an opportunity for the Coast Guard to issue 
advisories should traffic be congested to a point that adversely 
affects navigation safety. Consequently, because most tug and tank 
vessel operators that routinely navigate in Buzzards Bay are already 
familiar with the Corps' requirements and practices for transiting the 
Cape Cod Canal, and because VMRS would add an additional means to 
monitor vessel traffic, it is felt that tug and tank vessel operators 
should experience little or no difficulty accommodating an escort tug 
in accordance with this proposed rule.
    Increased Danger to Pilots: Comments suggested there may be 
increased danger to a pilot required to embark either an escort tug or 
primary tug (i.e., the tug towing the tank vessel) from a pilot boat, 
where no special accommodations to embark a pilot at sea are normally 
available on a tug.
    The Coast Guard recognizes the danger inherent in pilots embarking 
escort tugs or primary tug while underway within Buzzards Bay. In this 
proposed rule we permit the federally licensed pilot to monitor the 
navigation of the tug/barge combination from the escort tug, assuming 
the federally licensed pilot would embark the escort tug pierside 
before departing for its escort duty. This practice has been in effect 
since at least March 10, 2004, when Bouchard Transportation Company 
agreed to accommodate federally licensed pilots in this manner.
    Recommendation for Draft Restrictions: Comments noted that an 
effective way to improve navigation safety and reduce the likelihood of 
a spill would be to reduce the allowable draft of laden barges 
transiting Buzzards Bay.
    Regulations in 33 CFR 157.455 currently address under-keel 
clearance requirements (i.e., ``draft restrictions'') for single-hull 
tank vessels. Those regulations require, among other things, that 
owners/operators of single-hull tank barges provide written guidance to 
towing vessel masters regarding under-keel clearance, and include 
factors to consider such as controlling depth of water, deepest 
navigation draft, weather, and other environmental conditions. While 
under-keel clearance restrictions may expand the margin of error 
afforded tank vessels being towed through Buzzards Bay, the Bay remains 
a confined waterway and history has demonstrated that such regulations 
alone are insufficient to attain the level of navigation safety 
required for Buzzards Bay. For example, despite being subject to (and 
complying with) these under-keel clearance regulations, tank vessels 
continue to ground and spill oil in Buzzards Bay, notably the barge 
Florida in 1999 and the barge B-120 in 2003. Additionally, more severe 
under-keel clearance requirements would most likely reduce the amount 
of oil carried each transit and thus may have the unintended 
consequence of actually increasing the risk of vessel casualties and 
oil spills as more vessel traffic would be required to carry a similar 
amount of oil to meet demand for heating and electrical generation. 
Lastly, should draft restrictions result in additional voyages with 
smaller cargoes of oil, the cost of the delivery would rise and would 
almost assuredly be passed to consumers. Consequently, the Coast Guard 
considers under-keel regulations in addition to those already found in 
33 CFR 157.455 to be unnecessary as they would not add significant 
value in terms of preventing an incident.
    Miscellaneous: Some comments noted that current regulations were 
insufficient to prevent accidents and spills in Buzzards Bay; others 
commented that current regulations were sufficient, if only they were 
properly enforced. Other comments suggested that, as an alternative to 
escort tugs, rescue tugs be strategically stationed in Buzzards Bay, 
ready to respond at a moment's notice. Although the comments did not 
specifically recommend the nature or specific mission of a ``rescue 
tug,'' generally a rescue tug is considered to be a dedicated tugboat 
equipped to respond and provide assistance to distressed vessels, 
primarily by towing. Rescue tugs typically have capabilities for 
pumping, fire fighting, and pollution response. Normally a rescue tug 
is continuously manned and ``on station'', which means it is either at 
its berth or assigned location (e.g., a designated anchorage) ready for 
immediate dispatch, or underway presumably involved in a rescue. 
Evaluations of the potential benefit of rescue tugs in other waterways 
of the country (specifically, Puget Sound) have determined them to be a 
high-cost, low-benefit alternative as they have little or no capability 
to prevent collisions, allisions, or groundings, which is a primary 
goal of this proposed rule. (See ``Regulatory Assessment, Use of Tugs 
to Protect Against Oil Spills, in the Puget Sound Area'', Report Number 
9522-022, November 15, 1999, available in the docket.)
    The Coast Guard examined both our current regulations and our 
enforcement policies and determined that additional regulations, as 
proposed in this rule, were required to achieve our goal of preventing 
vessel casualties and spills within Buzzards Bay.

Discussion of Proposed Rule

    The proposed amendments to the current First Coast Guard District 
RNA would require that all single-hull tank barges carrying 5000 or 
more barrels of oil or other hazardous material and being towed through 
Buzzards Bay, meet the following requirements:
    1. Be accompanied by an escort tug between the west entrance to 
Buzzards Bay and the east end of the Cape Cod Canal.
    2. Be accompanied by a federally licensed pilot, who may remain on 
the escort tug vessel, to monitor the navigation of the tug/barge, and 
to advise the master of the tug/barge accordingly.
    Additionally, this rule proposes to establish a Vessel Movement 
Reporting System (VMRS) (33 CFR part 161, subpart B) within Buzzards 
Bay to monitor the movements of all vessels subject to Vessel Bridge-
to-Bridge VHF Radiotelephone regulations (33 CFR part 26), either by 
AIS, and/or via voice reporting via VHF radiotelephone. Daily 
operations of the VMRS would be monitored and managed by the U.S. Army 
Corps of Engineers at its Cape Cod Canal control center on behalf of 
the Coast Guard. (The Corps has indicated its willingness and ability 
to perform this function.) The Coast Guard would retain authority to 
enforce this proposed rule and other regulations to ensure navigation 
safety. Should the VMRS proposed in this rule ultimately be 
established, the Coast Guard and the U.S. Army Corps of Engineers will 
enter into a Memorandum of Understanding to delineate the functions and

[[Page 15653]]

responsibilities of each agency in operating the VMRS. This MOU will be 
a public record and would be available in the final docket CGD01-04-
133.
    This proposed rule is needed for navigation safety reasons to 
protect people, property, waterways users, the environment, and the 
economy from the adverse affects of a spill of oil or other hazardous 
material. Vessels subject to this proposed rule would be required to 
have a escort tug and federally licensed pilot, and would also be 
required to participate in a Vessel Movement Reporting System.
    This regulation is proposed under the authority of 33 U.S.C. 1321, 
in addition to the authority contained in 33 CFR 1.05-1(g)(4). Vessels 
or persons violating this section would be subject to the civil or 
criminal penalties set forth in 33 U.S.C. 1232.

Regulatory Evaluation

    Executive Order 12866, ``Regulatory Planning and Review'', 58 FR 
51735, October 4, 1993, requires a determination whether a regulatory 
action is ``significant'' and therefore subject to review by the Office 
of Management and Budget (OMB) and subject to the requirements of the 
Executive Order. This rule is not significant under Executive Order 
12866 and has not been reviewed by OMB.
    During the period of analysis, 2006-2014, this rule is expected to 
cost approximately $3.9 million net present value (7 percent discount 
rate). A copy of the regulatory evaluation, which further describes the 
expected costs and benefits of this proposed rule, is posted in the 
docket and is available to the public at http://www.uscg.mil/d1/units/msoprov/.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which might be small entities: The owners or operators of tugs and/or 
single hull barges carrying 5000 or more barrels of oil or other 
hazardous materials and intending to transit or anchor in Buzzards Bay, 
Massachusetts.
    This proposed rule would not have a significant economic impact on 
a substantial number of small entities for the following reasons: This 
proposed rule requires escort tugs and federally licensed pilots only 
for single hull barges, which are being phased out of operation in 
accordance with the Oil Pollution Act of 1990 (OPA), specifically 46 
U.S.C. 3703a, and will be prohibited from operating effective January 
1, 2015. Additionally, the VMRS proposed in the rule making applies 
only to vessels subject to the bridge-to-bridge radiotelephone 
regulations in Sec.  26.03 (and therefore already equipped with VHF 
radios), so no additional costs will be incurred to participate in the 
VMRS. Those vessels with a type-approved, properly installed, 
operational AIS would be relieved from the voice reporting requirements 
as proposed in this rule making.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES above) explaining why you think it qualifies and how and to 
what degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Mr. Edward G. LeBlanc at Coast 
Guard Sector Southeastern New England, Providence, RI, 401-435-2351. 
The Coast Guard will not retaliate against small entities that question 
or complain about this rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
reports required by this rule are considered to be operational 
communications, transitory in nature, and, do not constitute a 
collection of information under the Paperwork Reduction Act.

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 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 of 
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. The regulations proposed in this notice of proposed rule 
would likewise touch categories of regulation reserved to the Federal 
Government, thus becoming further indicia of preemption.
    For example, section 11 of the Massachusetts Act purports to impose 
escort tug requirements on vessels operating in Buzzards Bay. The issue 
of escort tugs is already addressed in the regulations governing the 
First District RNA at 33 CFR 165.100 and further addressed in this 
notice. Section 11 also purports to make the recommended route depicted 
on the NOAA charts described earlier in this notice mandatory. The 
Coast Guard has decided not to make this route mandatory at this time. 
Section 17 of the Massachusetts Act purports to impose a state pilotage 
requirement on certain vessels engaged in the coastwise trade. It is 
the view of the Coast Guard that this provision is void by operation of 
law pursuant to 46 U.S.C. 8501. This notice of proposed rulemaking 
proposes pilotage by federally licensed pilots for single hull tank 
barges operating in Buzzards Bay.
    Because of the preemption issues described above, the Coast Guard 
will conduct a Federalism analysis pursuant to E.O. 13132 for any rules 
promulgated as a result of this notice. Sections 4 and 6 of E.O. 13132 
require that for any rules with preemptive effect, the Coast Guard 
shall provide elected officials of affected state and local governments 
and their representative national organizations

[[Page 15654]]

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 the Commonwealth of 
Massachusetts. In addition, at the public meetings held in November 
2004, the towns of Bourne, Marion, and Westport, Massachusetts also 
requested consultations, as did 10 other communities in the vicinity of 
Buzzards Bay through letters to the docket. Such consultations will 
continue throughout the rulemaking process and we invite comments from 
those who have expressed a desire to be consulted. We also 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.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this proposed rule would not result in such 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    As required under Commandant Instruction M16475.lD, which guides 
the Coast Guard in complying with the National Environmental Policy Act 
of 1969 (NEPA) (42 U.S.C. 4321-4370f), a preliminary ``Environmental 
Analysis Checklist'' was completed for this NPRM. The Checklist is 
available in the docket where indicated under ADDRESSES. The level of 
NEPA documentation for the Rule is recommended in the Checklist. 
Comments on this section will be considered before we make the final 
decision on whether or not the rule should be categorically excluded 
from further environmental review.

List of Subjects

33 CFR Part 161

    Harbors, Navigation (water), Reporting and recordkeeping 
requirements, Vessels, Waterways.

33 CFR Part 165

    Harbors, Marine Safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR parts 161 and 165 as follows:

PART 161--VESSEL TRAFFIC MANAGEMENT

    1. The authority citation for part 161 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. In Sec.  161.12, amend Table 161.12(c) by adding an entry for 
Buzzards Bay in alphabetical order to read as follows:


Sec.  161.12  Vessel operating requirements.

* * * * *

[[Page 15655]]



      Table 161.12(c).--VTS and VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring Areas
----------------------------------------------------------------------------------------------------------------
                                       Designated frequency (Channel designation)--
          Center MMSI \1\                              purpose \2\                        Monitoring area 3 4
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Buzzards Bay.......................
Traffic MMSI..............  156.600 MHz (Ch. 12)...........................  The waters 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''.
 
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Maritime Mobile Service Identifier (MMSI) is a unique nine-digit number assigned that identifies ship
  stations, ship earth stations, coast stations, coast earth stations, and group calls for use by a digital
  selective calling (DSC) radio, an INMARSAT ship earth station or AIS. AIS requirements are set forth in Sec.
  Sec.   161.21 and 164.46 of this subchapter apply in those areas denoted with a MMSI number.
\2\ In the event of a communication failure, difficulties or other safety factors, the Center may direct or
  permit a user to monitor and report on any other designated monitoring frequency or the bridge-to-bridge
  navigational frequency, 156.650 MHz (Channel 13) or 156.375 MHz (Ch. 67), to the extent that doing so provides
  a level of safety beyond that provided by other means. The bridge-to-bridge navigational frequency, 156.650
  MHz (Ch. 13), is used in certain monitoring areas where the level of reporting does not warrant a designated
  frequency.
\3\ All geographic coordinates (latitude and longitude) are expressed in North American Datum of 1983 (NAD 83).
\4\ Some monitoring areas extend beyond navigable waters. Although not required, users are strongly encouraged
  to maintain a listening watch on the designated monitoring frequency in these areas. Otherwise, they are
  required to maintain watch as stated in 47 CFR 80.148.

PART 165--WATERWAYS SAFETY; REGULATED NAVIGATION AREAS AND LIMITED 
ACCESS AREAS

    3. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, 160.5; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.

    4. Amend Sec.  165.100 by revising paragraphs (d)(1)(i) 
introductory text and (d)(1)(i)(G) and adding paragraph (d)(5) to read 
as follows:


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

* * * * *
    (d) Regulations--(1) Positive control for barges. (i) Except as 
provided in paragraph (d)(1)(iii) and paragraph (d)(5) 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 tug of sufficient 
capability to promptly push or tow the tank barge away from danger of 
grounding or collision in the event of--
* * * * *
    (G) Any other time a vessel may be operating in a Hazardous Vessel 
Operating Condition as defined in Sec.  161.2 of this chapter.
* * * * *
    (5) Special Buzzards Bay regulations. (i) For the purposes of this 
section, ``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' North, longitude 70[deg]-
11.7' West, to the Buzzards Bay Entrance Light in approximate position 
latitude 41[deg]-23.5' North, longitude 71[deg]-02.0' West, and then to 
the southwestern tangent of Cuttyhunk Island, Massachusetts, at 
approximate position latitude 41[deg]-24.6' North, longitude 70[deg]-
57.0' West, 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''.
    (ii) Additional positive control for barges. Except as provided in 
paragraph (d)(1)(iii) of this section, each single-hull tank barge 
transiting Buzzards Bay and carrying 5000 or more barrels of oil or 
other hazardous material must, in addition to its primary tug, be 
accompanied by an escort 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 tow line;
    (C) A loss of tow;
    (D) A fire;
    (E) Grounding;
    (F) A loss of steering; or
    (G) Any other time a vessel may be operating in a Hazardous Vessel 
Operating Condition as defined in Sec.  161.2 of this Chapter.
    (iii) Federal pilotage. Each single-hull tank barge transiting 
Buzzards Bay must be accompanied by a pilot holding an appropriately 
endorsed Federal first class pilot's license issued by the Coast Guard 
(``federally licensed pilot''). The federally licensed pilot may embark 
upon the primary tug, or may embark upon the escort tug. In either 
instance, the federally licensed pilot will monitor the navigation of 
the tug and tank barge and advise the master of the primary tug if/when 
the tank barge may be standing into danger.
    (iv) Vessel Movement Reporting System. Effective (date), all 
vessels subject to the Vessel Bridge-to-Bridge Radiotelephone 
regulations, Sec.  26.03, including tug/barge combinations, shall 
participate in the Buzzards Bay Vessel Movement Reporting System 
(VMRS). The purpose, intent, and applicability of VMRS Buzzards Bay are 
found in Sec.  161.15 and Sec.  161.16 of this chapter. The Buzzards 
Bay VMRS Vessel Movement Center (``Center'') is designated as the U.S. 
Army Corps of Engineers Cape Cod Canal Control, which can be reach via 
marine radio at VHF 156.600 MHz (VHF CH-12). All vessels will make 
reports via VHF CH-12, except those vessels with a properly operating 
Automatic Information System (AIS) that is broadcasting all required 
information in accordance with Sec.  161.18 of this chapter need not do 
so. The International Maritime Organization (IMO) Standard Ship 
Reporting System, found in Sec.  161.18,

[[Page 15656]]

will be used for the Buzzards Bay VMRS.
    (A) A VMRS Buzzards Bay user shall:
    (1) Not enter or get underway in the area without prior approval of 
the VMRS Center;
    (2) Not enter VMRS Buzzards Bay if a Hazardous Vessel Operating 
Condition or circumstance per Sec.  161.2 exists;
    (3) If towing astern, do so with as short a hawser as safety and 
good seamanship permits;
    (4) Not meet, cross, or overtake any other VMRS User in the area 
without prior approval of the VMRS center;
    (5) Before meeting, crossing, or overtaking any other VMRS User in 
the area, communicate on the designated vessel bridge-to-bridge 
radiotelephone frequency, intended navigation movements, and any other 
information necessary in order to make safe passing arrangements. This 
requirement does not relieve a vessel of any duty prescribed by the 
International Regulations for Prevention of Collisions at Sea, 1972 (72 
COLREGS) or the Inland Navigation Rules.
    (6) Make reports and provide other specific information required, 
and follow other VMRS participation guidelines, as contained in the 
Buzzards Bay VMRS Operating Manual and/or the Local Notice to Mariners, 
which will be published and available to the public at least 30 days 
prior to the effective implementation date of the Buzzards Bay VMRS.
* * * * *

    Dated: March 21, 2006.
David P. Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 06-3014 Filed 3-24-06; 4:14 pm]
BILLING CODE 4910-15-P