[Federal Register Volume 72, Number 168 (Thursday, August 30, 2007)]
[Rules and Regulations]
[Pages 50052-50059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16844]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 161 and 165

[CGD01-04-133]
RIN 1625-AB17


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard revises 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 pilots 
operating under a properly endorsed Federal pilot's license. The Coast 
Guard establishes a Vessel Movement Reporting System (VMRS) for 
Buzzards Bay, and requires mandatory participation in the VMRS by 
vessels subject to the Vessel Bridge-to-Bridge VHF Radiotelephone 
regulations, including tug/barge combinations. The purpose of this rule 
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: This rule is effective November 28, 2007.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of the docket and are available for inspection and copying at 
the offices of Commander, Coast Guard Sector Southeastern New England, 
East Providence office, 20 Risho Avenue, East Providence, RI 02914, 
between 8 a.m. and 3 p.m. Monday through Friday, except Federal 
holidays.

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

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On March 29, 2006, the Coast Guard published a Notice of Proposed 
Rulemaking (NPRM) in Volume 71, No. 60, pages 15649 to 15656 of the 
Federal Register, under the heading ``Navigation and Waterways 
Management Improvements, Buzzards Bay, MA''. We received 17 comments on 
the proposed rule. No public meeting was requested and none was held. 
Pursuant to issues and obligations discussed in Federalism below, on 
September 13, 2006, the Coast Guard held a consultation meeting for 
Massachusetts cities and towns that border Buzzards Bay. The city of 
New Bedford and the town of Westport sent representatives to this 
meeting and were consulted on the Coast Guard's actions with respect to 
this rulemaking process and their federalism implications. On October 
11, 2006, the Coast Guard held a similar consultative meeting with the 
Acting Commissioner of the

[[Page 50053]]

Massachusetts Department of Environmental Protection.

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 1,200 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 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 significant incidents of tank 
barge groundings with oil spills in Buzzards Bay. These included 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 single hull 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 to people, property, the 
coastal and maritime environment, and the local economy. The purpose of 
these navigation safety and waterways management regulations for 
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 Regulated Navigation Area (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 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 involved 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 provides a basis for making best value decisions 
for risk mitigation investments, both on the local and national level. 
For further information on the PAWSA project go to: 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 Vessel Routes be established to help assist vessel traffic 
and provide a safer transit route 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.
    The Automatic Identification System (AIS) is a maritime navigation 
safety communications system standardized by the International 
Telecommunication Union (ITU) and adopted by the International Maritime 
Organization (IMO) that provides vessel information, including the 
vessel's identity, type, position, course, speed, navigational status 
and other safety-related information automatically to appropriately 
equipped shore stations, other ships, and aircraft; receives 
automatically such information from similarly fitted ships; monitors 
and tracks ships; and exchanges data with shore-based facilities.
    As of December 31, 2004, AIS is required on most commercial vessels 
either navigating abroad or within a Vessel Traffic Service (VTS) area, 
such as VTS New York. (See 33 CFR 164.46.) As the vast majority of tug/
barge combinations that transit Buzzards Bay are either traveling from 
or to New York and hence must participate in New York's VTS, they 
already carry AIS. The Coast Guard plans to propose expanding AIS 
requirements in the future. Regardless of whether a tug/barge 
combination is equipped with AIS, under this rule it must still 
participate in the Vessel Movement Reporting System (VMRS) by either 
AIS or VHF radiotelephone.
    The National Oceanic and Atmospheric Administration (NOAA), at the 
request of the Coast Guard, has already overlaid recommended vessel 
routes on navigational charts for Rhode Island Sound, Narragansett Bay, 
and Buzzards Bay. These recommended vessel 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 making 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 employ 
tugs with twin screws and twin engines, but with no additional positive 
control.

Discussion of Comments and Changes

    On March 29, 2006, the Coast Guard published a Notice of Proposed 
Rule Making (NPRM) that proposed amending the current First Coast Guard 
District RNA to require that all single hull tank barges carrying 5,000 
or more barrels of oil or other hazardous material and being towed 
through Buzzards Bay:

[[Page 50054]]

    1. Participate in a Vessel Movement Reporting System (VMRS) (33 CFR 
part 161, subpart B) managed by the U.S. Army Corps of Engineers at its 
Cape Cod Canal control center on behalf of the Coast Guard.
    2. Be accompanied by a federally licensed pilot, who could remain 
on the escort tug vessel, to monitor the navigation of the tug/barge, 
and to advise the master of the tug/barge accordingly.
    3. Be accompanied by an escort tug between the west entrance to 
Buzzards Bay and the east end of the Cape Cod Canal.
    Seventeen comments were received in response to the NPRM. All late 
comments received were reviewed and considered. Nine comments concerned 
the provision in the NPRM that would allow pilots, in times of adverse 
weather, to remain on the escort tug and to advise the master of the 
primary tug (i.e., the vessel actually towing the tank barge) from the 
escort tug. The comments noted that a pilot executing his/her pilotage 
duties from any vessel other than the primary tug would add little or 
no value, and may even increase danger due to confusion and 
communications difficulties.
    The Coast Guard concurs with these comments. Accordingly, the 
provision to permit pilots to advise the master of a primary tug from 
an escort tug has been removed. Consequently, when this rule applies, 
pilots will be required to embark the primary tug during transits of 
Buzzards Bay.
    Three comments urged that pilots be required to embark the primary 
tug only from a pilot boat, not an escort tug. Comments noted that 
pilot boats are better designed for such transfers of people between 
two underway vessels, and would be safer than permitting a transfer 
between a tug escort and primary tug. Many factors must be considered 
when deciding what constitutes a safe transfer between two underway 
vessels (e.g., an escort tug and primary tug, or a pilot boat and 
primary tug), including the design of each vessel, weather, physical 
abilities of the person transferring, etc. These decisions are better 
left to those actually on-scene and are not addressed in this rule.
    Three comments asked that state-licensed pilots be required in 
addition to or in place of federally licensed pilots. One comment 
suggested that pilotage requirements similar to those for Prince 
William Sound, Alaska, be adopted for Buzzards Bay. In Prince William 
Sound, pilots are required to be state-licensed, but operate under 
their federal pilot's license. The Coast Guard notes that the pilotage 
requirement to which the commenter refers was enacted by Congress as 
part of Oil Pollution Act of 1990, Pub. L. 101-380, and that both the 
Prince William Sound requirement and the request that the Coast Guard 
adopt a similar requirement in Buzzards Bay by this regulation is 
contrary to the generally applicable Congressional scheme for state-
federal pilotage of vessels in Chapter 85 of Subtitle II of Title 46, 
U.S. Code.
    The Coast Guard has looked carefully at whether, as a matter of 
federal regulatory exercise of authority, it can vary that generally 
applicable state-federal pilotage scheme and has concluded that it is 
without authority to do so. Unlike the Congressionally mandated Prince 
William Sound state-federal pilotage requirements, this regulation is 
being promulgated under the Ports and Waterways Safety Act, Public Law 
92-340, section 5 (33 U.S.C. 1223(a)(4)). Authority under this Act is 
not so broad as to support a provision mandating the carriage of a 
state pilot where such a provision is contrary to the usual 
Congressional scheme prohibiting states from requiring a state licensed 
or commissioned pilot on a vessel subject to inspection under part B of 
subtitle II of Title 46, or is subject to inspection under chapter 37 
of that Title.
    An examination of the legislative history of that provision shows 
that nowhere did Congress mention imposing a State commissioned pilot 
in addition to or in lieu of a Federal pilot on vessels operating on 
the navigable waters of the United States. Given the long standing 
Congressional scheme for division of responsibility among Federal and 
State pilotage on vessels, which these comments would run counter to, 
and the absence of any legislative history that would suggest that 
Congress intended the words ``operating condition'' to include 
authority to promulgate a regulation that runs counter to that scheme, 
the Coast Guard is without authority to promulgate such a regulation. 
Accordingly, the Coast Guard does not adopt the suggestion in these 
comments.
    One comment requested that the Coast Guard conduct a cost-benefit 
analysis to demonstrate that the benefits of this rule outweigh the 
cost.
    As noted in the NPRM and contained in the docket for this rule 
(CGD01-04-133), a Regulatory Evaluation was conducted in March 2006. 
That evaluation found that this rule would prevent approximately 500 
barrels of oil from being spilled into Buzzards Bay, would have a 
negligible impact on consumer energy costs, and would not have a 
significant economic impact on a substantial number of small entities.
    Some comments stated it was unclear if the pilotage requirement was 
for a federally licensed pilot in addition to the vessel's master, or 
if a master (or other crewmember) holding a Federal pilot's license 
could also serve as pilot while transiting Buzzards Bay.
    The requirement in this rule is for a federally licensed pilot in 
addition to the vessel's master and crew. Under this rule, neither a 
master of a primary tug nor any member of its crew may serve as pilot 
while transiting Buzzards Bay. It is intended that the federally 
licensed pilot be an additional navigation resource to the master and 
crew of the vessel.
    Some comments recommended this rule, particularly the escort tug 
requirement, apply to single hull tank ships in addition to barges.
    The PAWSA report specifically addresses the hazards associated with 
single hull tank barges and was used as an indicator and resource for 
this rule. There is no indication in the PASWA that tank ships 
represent a similar risk of pollution. Consequently, this rule applies 
only to single hull tank barges, not tank ships.
    Some comments asked for clarification on whether or not federally 
licensed pilots are required aboard escort tugs. They are not.
    The requirement is for a federally licensed pilot to be aboard the 
primary tug towing a single hull tank barge.
    Three written comments stated that the requirement for escort tugs 
should apply to double hull tanks vessels in addition to single hull 
tank vessels. At the consultative meeting discussed elsewhere in this 
preamble, the Massachusetts Department of Environmental Protection also 
urged that all tank vessels transiting Buzzards Bay, both single and 
double hull, be required to have an escort tug.
    The majority of tank barge casualties in Buzzards Bay have been 
caused by groundings, and the bottom characteristics of the area are 
generally rocky. Double hulls provide sufficient protection against 
this type of casualty, and there has never been a major oil spill from 
a double hull tank barge grounding in Buzzards Bay. Therefore, the 
Coast Guard does not feel it is necessary to require tug escorts for 
double hull tank barges at this time. Additionally, the Coast Guard 
considers that, as adopted in this rule, its three-pronged approach to 
navigation safety ((1) Mandatory participation in a Vessel Movement 
Reporting System (VMRS); (2) a federally licensed pilot and (3) a tug 
escort for single hull tank barges)

[[Page 50055]]

constitutes a redundant vessel accident and pollution prevention system 
that will provide a sufficient measure of safety for tank vessels 
transiting Buzzards Bay.
    Two comments suggested that use of the currently-existing (and 
voluntary) recommended vessel route in Buzzards Bay be mandated for 
commercial vessels.
    The Coast Guard recognizes that, in light of variations in 
visibility, traffic density, tides and currents, and other on-scene 
conditions, and given the uniqueness of vessel and tow configurations 
and handling characteristics, prudent seamanship (and the Rules of the 
Road) may dictate departure from any given vessel route. The Coast 
Guard wishes to avoid creating any situation in which a mariner may 
feel constrained to follow a set route when conditions may warrant an 
alternative approach.
    Importantly, the VMRS established by this rule will provide the 
Coast Guard the capability to monitor tank vessel movements in Buzzards 
Bay, including the capability to ascertain vessel intentions before 
entering the Bay. Most, if not all, tank vessels currently use the 
recommended vessel route voluntarily. Through the VMRS established by 
this rule, the Coast Guard will be able to monitor vessels as they 
transit the recommended vessel route to query and respond appropriately 
should a vessel deviate from the route without good and sufficient 
reason, including, but not limited to, proceeding to an anchorage, or 
briefly exiting the route to allow an approaching vessel to pass. 
Consequently, the Coast Guard considers the voluntary recommended 
vessel route, when combined with the enhanced ability to monitor the 
usage thereof, to provide an ample measure of safety.
    While no comments addressed the proposed requirement that VMRS 
Buzzard's Bay users attain ``approval'' from the VMRS center (1) Prior 
to entering into, or getting underway within, the VMRS area; and (2) 
prior to meeting, crossing, or overtaking other VMRS users; in keeping 
with the monitoring--vice directive--function of a Vessel Movement 
Reporting System, the word ``approval'' was changed to better reflect 
the requirement that vessels ``notify'' the VMRS before undertaking the 
aforementioned actions.
    Two comments suggested that escort tugs should have minimum 
horsepower or bollard pull requirements.
    This rule amends the currently existing Regulated Navigation Area 
(RNA) for waters within the First Coast Guard District. As defined in 
the current RNA, an escort tug is a vessel of ``sufficient capability 
to promptly push or tow the tank barge away from danger of grounding or 
collision * * *'' That definition is the product of several 
recommendations made by a Regional Risk Assessment Team (RRAT) 
chartered by the Coast Guard in 1996 to examine tug and barge operation 
and navigation procedures in the waters of the First Coast Guard 
District. The RRAT was composed of operators of towing vessels and tank 
barges, environmental groups, state agencies, and Coast Guard 
officials. In the Coast Guard Authorization Act of 1998 (Pub. L. 105-
383), Congress directed the Coast Guard to adopt the recommendations of 
the RRAT. Consequently, the Coast Guard believes that definition is 
sufficient for this amendment to the existing RNA.
    One comment requested that oil spill response vessels (OSRVs) and 
oil spill response barges (OSRBs) be exempt from these regulations. The 
commenter was concerned that, after one or more of these vessels had 
been called to respond to an oil spill in Buzzards Bay, its exit from 
the Bay (after recovering spilled oil) may be delayed due to the 
requirements of these regulations.
    The Coast Guard considers these regulations to be important for all 
single hull tank barges carrying oil or petroleum products in 
sufficient quantity, including OSRVs and OSRBs, so as to enhance 
navigation safety and environmental protection in Buzzard's Bay. 
Further, we view the impacts of this regulation to be minimal on an 
OSRV or OSRB. Consequently, we did not provide the requested exemption.
    One comment asked that the Commonwealth of Massachusetts be 
included in any partnership between the Coast Guard and the Army Corps 
of Engineers to operate a Vessel Movement Reporting System (VMRS) for 
Buzzards Bay.
    The Coast Guard and Army Corps of Engineers are finalizing a 
Memorandum of Agreement that will delineate the functions and 
responsibilities of each agency in operating the VMRS. This MOA, once 
executed, will be added in the final docket for this rule. The 
Massachusetts Department of Environmental Protection has been and will 
remain a key partner in the planning and operation of the VMRS for 
Buzzards Bay.
    In addition to the 17 comments received, two joint letters from 
U.S. Representatives Barney Frank, William D. Delahunt, and James P. 
McGovern were sent to the Commandant of the Coast Guard on July 26, 
2006, and September 14, 2006, respectively. Both letters urged the 
Coast Guard to adopt navigation safety provisions for Buzzards Bay 
similar to those provided for in a Massachusetts oil spill prevention 
law which had recently been overturned by a Federal court. 
Specifically, the Representatives requested that the Coast Guard:
    1. Institute minimum watch and manning requirements for oil tankers 
and barges;
    2. Mandate the use of State pilots to assist in navigating Buzzards 
Bay;
    3. Mandate the use of tugboat escorts for all oil barges;
    4. Institute mandatory navigational routes through state waters; 
and
    5. Mandate a certificate of at least $1 billion in financial 
backing to dock in Massachusetts, unless the shipping companies take 
special safety measures, such as using double hulls.
    Although the Coast Guard did not adopt a state pilot requirement, 
the Coast Guard did adopt a requirement that the primary tug towing a 
single hull tank barge in Buzzards Bay have on board a federally 
licensed pilot, in addition to the vessel's master and normal crew 
complement. Thus, the provisions of this rule, along with other 
currently existing Federal statutes and regulations, will sufficiently 
address each of the Representatives' concerns for the following 
reasons:
    1. Federal regulations at 46 CFR 15 comprehensively regulate 
manning and watchstanding on tank vessels and tugs. Additionally, 33 
CFR 164.13(c) specifically requires tankers to have at least two 
licensed deck officers on watch on the bridge;
    2. This rule requires that a federally licensed pilot be employed 
in addition to the normal crew for the transit of any single hull tank 
barge through Buzzards Bay;
    3. This rule requires escort tugs, in addition to the primary tug, 
for all single hull tank barges transiting Buzzards Bay;
    4. For the reasons discussed in this Notice, while use of the 
recommended vessel route in Buzzards Bay will not be mandatory, vessel 
movements within the route will be monitored through the Vessel 
Movement Reporting System established by this rule; and
    5. Under Title VI of the Coast Guard and Maritime Transportation 
Act of 2006 (Pub. L. 109-241), the financial liability limits for 
vessel oil discharge removal costs and damages under the Oil Pollution 
Act of 1990 (33 U.S.C. 2704) were amended, and the Financial 
Responsibility for Water Pollution regulations at 33 CFR part 138 will 
be amended accordingly via separate rulemaking. For further information 
on

[[Page 50056]]

this rulemaking, see docket USCG-2005-21780 at http://dms.dot.gov/, or 
contact Mr. Benjamin White at Coast Guard National Pollution Fund 
Center at 202-493-6863.

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 rule, is posted in the docket and 
is available for inspection and copying at the offices of Commander, 
Coast Guard Sector Southeastern New England, East Providence office, 20 
Risho Avenue, East Providence, RI 02914, between 8 a.m. and 3 p.m. 
Monday through Friday, except Federal holidays.
    No comments to the NPRM were received challenging the content of 
the regulatory evaluation, nor claiming a significant adverse economic 
impact should this rule be implemented as proposed. Nonetheless, to 
confirm the conclusions of the regulatory evaluation that this rule 
would not create a significant adverse impact on small entities, the 
Coast Guard reviewed selected economic data for the period of time 
between the evaluation's original publication in March 2006 and the 
publication of this rule in July 2007. A comparison of the regulatory 
evaluation's forecast of tug and barge activity with actual transits 
validated those projections. For example, the regulatory evaluation 
projected that there would be 234 transits of loaded tank barges 
through Buzzards Bay in 2006. The actual number was 208, only an 11% 
deviation from the projection. A review of more recent cost data 
associated with tug escort and pilot fees, when compared with revenue 
data of the small businesses most affected by this rule, also confirmed 
the fundamental finding of the regulatory evaluation, which is that the 
cost of compliance with this rule will not have a significant economic 
impact on a substantial number of small entities.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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 rule 
would not have a significant economic impact on a substantial number of 
small entities.
    This 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 5,000 or more barrels of oil or other hazardous 
materials and intending to transit or anchor in Buzzards Bay, 
Massachusetts.
    This rule would not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
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 established by this rulemaking 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 Coast Guard-approved, properly installed, operational 
AIS would be relieved from the voice reporting requirements implemented 
by this rule.

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 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.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). 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 rule calls 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 regulations 
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. In general, only the federal 
government may regulate the design, construction, alteration, repair, 
maintenance, operation, equipping, personnel qualification, and manning 
of tank vessels. Similarly, where the Coast Guard enacts regulations--
such as those implemented by this final rule--that control vessel 
traffic or are otherwise intended to protect navigation and the marine 
environment, or affirmatively determines that such regulation is 
unnecessary or inappropriate, a state may not enact rules that conflict 
with the Coast Guard's determination in that area, including situations 
in which the State rules are identical to the federal rules.
    The Coast Guard believes that by operation of law and our Agency 
determination, State law is preempted on the subjects covered by this 
rulemaking. The Coast Guard's affirmative decisions: (1) Not to 
institute mandatory ship routes, but to monitor use of the existing 
recommend routes

[[Page 50057]]

via the Vessel Movement Reporting System created by this rule; (2) to 
require a federally licensed pilot in addition to the normal crew 
aboard a tug towing a single hull tank barge thorough Buzzard's Bay, 
but not to require any other modifications to the applicable manning 
requirements; and (3) to require an escort tug in addition to the 
primary tug, for all single hull tank barges transiting Buzzard's Bay, 
but not for other vessels; each represent a considered determination of 
the appropriate level of regulation to ensure navigation safety and 
environmental protection. As such, the Coast Guard has determined that 
any other non-Coast Guard schemes relating to vessel routing, manning, 
and tug escort requirements in Buzzards Bay are preempted.
    To the extent not otherwise already preempted, this rule is 
intended to, and does, preempt those provisions of Massachusetts' ``Act 
Relative to Oil Spill Prevention and Response in Buzzards Bay and Other 
Harbors and Bays of the Commonwealth,'' (``MOSPA'') regarding enhanced 
manning requirements for tank barges and tow vessels in Buzzards Bay, 
see Mass. Gen. Laws ch. 21M Sec.  4, and tugboat escorts for certain 
waters, see id. Sec.  6. Further, it is the Coast Guard's view that, by 
Operation of Law, MOSPA's provisions regarding mandatory vessel routes 
in Massachusetts waters, see id. Sec.  5; and compulsory State 
pilotage, see Mass. Gen. Laws ch. 103 Sec.  21, are likewise preempted. 
See U.S. v. Massachusetts, 440 F.Supp.2d 24 (D.Mass., 2006), remanded 
on other grounds--F.3d--, 2007 WL 1775913 (1st Cir., June 21, 2007) 
(NO. 06-2361, 06-2362).
    In accordance with E.O. 13132 for regulations with preemptive 
effect, the following federalism impact statement is provided to 
document (1) The extent of the Coast Guard's consultation with State 
and local officials, (2) a summary of the nature of their concerns and 
the Coast Guard's position thereon, and (3) a statement of the extent 
to which the concerns of State and local officials have been met.
    The Coast Guard provided elected officials of affected state and 
local governments notice and an opportunity to consult on this 
rulemaking. Ten Massachusetts municipalities surrounding Buzzards Bay 
indicated that they wished to participate, as did the Commonwealth of 
Massachusetts. Accordingly, the Coast Guard engaged the towns of 
Bourne, Dartmouth, Fairhaven, Gosnold, Marion, Mattapoisett, Wareham, 
Westport, Falmouth, the city of New Bedford, and the Massachusetts 
Department of Environmental Protection (``DEP'') to discuss their 
concerns. On September 13, 2006, after inviting all parties desiring 
consultative status to participate, the Coast Guard met with 
representatives from the city of New Bedford and the town of Westport. 
On October 11, 2006, the Coast Guard met with the Acting Commissioner 
of DEP. Representatives from the towns of Bourne, Fairhaven, Marion, 
and Mattapoisett, and representatives from DEP, spoke at public 
hearings held on this rulemaking. Ten municipalities (Bourne, Buzzards 
Bay, Dartmouth, Fairhaven, Gosnold, Marion, Mattapoisett, New Bedford, 
Wareham, and Westport) submitted statements regarding recommended oil 
spill prevention measures for Buzzard's Bay. We also received 
additional written comments to the docket from the towns of Bourne and 
Mattapoisett, the Massachusetts Attorney General, and DEP.
    In general, all consulting state and local officials agreed upon 
the need for increased oil spill prevention measures in Buzzard's Bay 
and certain other Massachusetts' waters. The consulted parties' 
concerns related to the specific mechanisms to accomplish this goal. 
Essentially, the consulted parties encouraged the Coast Guard to enact 
regulations that would require (1) Implementation of a mandatory, Coast 
Guard-administered vessel movement system (2) mandatory use of the 
existing ``recommended vessel route,'' (3) State-licensed (vice 
federally licensed) pilots aboard certain tank barges, and (4) escort 
tugs for both single and double hull tank barges.
    As discussed in greater detail in Discussion of comments and 
changes, above, the Coast Guard is establishing a Vessel Movement 
Reporting System (VMRS) as urged.
    Regarding mandatory ship routes in Buzzard's Bay, as previously 
indicated, the Coast Guard wishes to avoid creating any situation in 
which a mariner may feel constrained to follow a set route when 
operating or weather conditions may warrant an alternative approach. 
Thus, use of the already existing recommended vessel routes in Buzzards 
Bay will not be mandatory. Vessel movement along these recommended 
routes, however, will now be closely tracked through the VMRS 
established by this rule.
    For reasons also set forth above, the Coast Guard is without the 
authority to require that a tug have a Federal pilot that is also 
licensed or commissioned by the State. The Coast Guard is, however, 
requiring a federally licensed pilot aboard vessels towing certain 
single hulled tank barges through Buzzard's Bay as an additional 
navigation resource to the master and crew of the vessel.
    With respect to the issue of requiring escort tugs for only single 
hull tank barges, as opposed to both single and double hulled barges, 
the Coast Guard believes that mandatory participation in a VMRS, the 
requirement to embark and employ a federally licensed pilot, and a tug 
escort requirement together provide a sufficient measure of safety for 
tank vessels transiting Buzzards Bay. Accordingly, the Coast Guard 
believes that the concerns for navigation safety and environmental 
protection underlying the specific recommendations of the consulted 
State and localities will be met by the regulations promulgated by this 
final rule.

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 rule would not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will 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 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 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 rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial

[[Page 50058]]

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 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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g) and (34)(i) of the Instruction, from 
further environmental documentation. This rule fits the category 
selected from paragraph (34)(g) and (34)(i), as it amends a currently 
existing Regulated Navigation Area and establishes a VMRS.
    An ``Environmental Analysis Check List'' and ``Categorical 
Exclusion Determination'' are available in the docket where indicated 
under ADDRESSES.

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, and Waterways.


0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 161 and 165 as follows:

PART 161--VESSEL TRAFFIC MANAGEMENT

0
1. The authority citation for part 161 continues to read as follows:

    Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70117; Pub. L. 
107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. In Sec.  161.12, add an entry for Buzzard's Bay, in alphabetical 
order, and renumber footnotes 5 and 6 to read footnotes 6 and 7. Add a 
new footnote 5 to table 161.12(c) to read as follows:


Sec.  161.12  Vessel operating requirements.

* * * * *

      Table 161.12(c).--VTS and VMRS Centers, Call Signs/MMSI, Designated Frequencies, and Monitoring Areas
----------------------------------------------------------------------------------------------------------------
                                              Designated frequency
          Center MMSI call sign             (channel designation)--                 Monitoring area
                                                    purpose
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Buzzards Bay
    Buzzards Bay Control \5\............  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, is not considered to
                                                                        be ``Buzzards Bay''.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
 Notes:
 * * * * * * *
\5\ In addition to the vessels denoted in Section 161.16 of this chapter, requirements set forth in subpart B of
  this chapter also apply to any vessel transiting VMRS Buzzards Bay when equipped with a bridge-to-bridge
  radiotelephone as defined in part 26 of this chapter.
 * * * * * * *

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

0
3. The authority citation for part 165 is amended to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 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


0
4. In Sec.  165.100--
0
a. Revise paragraphs (d)(1)(i) introductory text and (d)(1)(i)(G) to 
read as set out below; and
0
b. Add paragraph (d)(5) to read as follows:

[[Page 50059]]

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

* * * * *
    (d) * * *
    (1) * * *
    (i) Except as provided in paragraph (d)(1)(iii) and paragraph 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, is not 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 5,000 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 subchapter.
    (iii) Federal Pilotage. Each single hull tank barge transiting 
Buzzards Bay and carrying 5,000 or more barrels of oil or other 
hazardous material must be under the direction and control of a pilot, 
who is not a member of the crew, operating under a valid, appropriately 
endorsed, Federal first class pilot's license issued by the Coast Guard 
(``federally licensed pilot''). Pilots are required to embark, direct, 
and control from the primary tug during transits of Buzzards Bay.
    (iv) Vessel Movement Reporting System. In addition to the vessels 
denoted in Sec.  161.16 of this chapter, requirements set forth in 
subpart B of this part also apply to any vessel transiting VMRS 
Buzzards Bay when equipped with a bridge-to-bridge radiotelephone as 
defined in part 26 of this chapter.
    (A) A VMRS Buzzards Bay user must:
    (1) Not enter or get underway in the area without first notifying 
the VMRS Center;
    (2) Not enter VMRS Buzzards Bay if a Hazardous Vessel Operating 
Condition or circumstance per Sec.  161.2 of this Subchapter 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 first notifying 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 (33 
U.S.C. 1602(c)) or the Inland Navigation Rules (33 U.S.C. 2005).
* * * * *

    Dated: August 17, 2007.
T.S. Sullivan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E7-16844 Filed 8-29-07; 8:45 am]
BILLING CODE 4910-15-P