[Federal Register Volume 74, Number 158 (Tuesday, August 18, 2009)]
[Proposed Rules]
[Pages 41646-41648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19705]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 168

[Docket No. USCG-2006-23556, Formerly CGD91-202a]
RIN 1625-AA10, Formerly RIN 2115-AE56


Escort Vessels in Certain U.S. Waters

AGENCY: Coast Guard, DHS.

ACTION: Proposed rule; withdrawal.

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SUMMARY: The Coast Guard is withdrawing its proposed rule concerning 
the extension of escort vessel requirements in place for single hulled 
oil tankers in Prince William Sound, Alaska, and Puget Sound, 
Washington, to other U.S. waters and to other types of vessels. The 
Coast Guard has concluded that a rulemaking of national scope, such as 
this, is neither necessary nor advisable given the existence of more 
locally oriented options for considering escort vessel requirements.

DATES: The proposed rule is withdrawn on August 18, 2009.

ADDRESSES: The docket for this withdrawn rulemaking is available for 
inspection or copying at the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. You may also find 
this docket on the Internet by going to http://www.regulations.gov, 
selecting the Advanced Docket Search option on the right side of the 
screen, inserting USCG-2006-23556 in the Docket ID box, pressing Enter, 
and then clicking on the item in the Docket ID column.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
notice, call Lieutenant Bryson Spangler at (202) 372-1357. If you have 
questions on viewing material in the docket, call Ms. Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Background

    The Coast Guard has broad authority under the Ports and Waterways 
Safety Act (PWSA, 33 U.S.C. 1221 et seq.) to control vessel traffic in 
navigable waters of the United States. In addition, section 4116(c) of 
the Oil Pollution Act of 1990 (OPA 90, Pub. L. 101-380) required the 
Coast Guard to initiate a rulemaking ``to define those areas [including 
Prince William Sound, Alaska and Puget Sound, Washington] on which 
single hulled tankers over 5,000 gross tons transporting oil in bulk 
shall be escorted by at least two towing vessels * * * or other vessels 
considered appropriate by the Secretary.'' The present rulemaking was 
opened in response to the OPA 90 Sec.  4116(c) requirement and also in 
order to consider escort vessel requirements under PWSA.
    This rulemaking was split off from another rulemaking in 1993; for 
the history of the parent rulemaking see its final rule (70 FR 55728, 
Sep. 23, 2005). For this rulemaking, we previously published an advance 
notice of proposed rulemaking (ANPRM; 58 FR 25766, Apr. 27, 1993), a 
notice of meeting and request for comments (59 FR 65741, Dec. 21, 
1994), and a notice of withdrawal and request for comments (73 FR 
20232, Apr. 15, 2008). Further background information appears in the 
April 2008 notice.
    The April 2008 notice proposed the withdrawal of this rulemaking, 
based on our tentative conclusion that nationwide Coast Guard action to 
extend statutory escort vessel requirements is not advisable, and that 
escort vessel requirements for waters other than Puget and Prince 
William Sounds, or for vessels other than single hulled oil tankers, 
should be imposed only after local level Coast Guard consideration of 
specific local needs, conditions, and available alternatives. We asked 
for public comment on the proposed withdrawal.

Discussion of Comments

    In response to our April 2008 notice, we received 17 letters 
containing 55 comments. We thank those who commented for their 
interest.
    Twelve comments concerned the need for specific action in Cook 
Inlet, Alaska, or other local waters. We acknowledge these comments, 
but restate our position that the need for escort vessels or other 
protective measures in specific waters should be assessed under PWSA. 
Therefore, requests for protective measures in specific waters should 
be addressed to the local Coast Guard sector commander. A list of Coast 
Guard sectors appears, as part of a comprehensive list of Coast Guard 
units, at http://www.uscg.mil/top/units/.
    Five comments asserted that we have not satisfied our obligations 
under Sec.  4116(c) of OPA 90, or that withdrawal of the rulemaking at 
this stage would violate OPA 90. We do not agree that further action is 
required under OPA 90 or that withdrawal of this rulemaking would 
violate that act. In 2000, the United States Court of Appeals for the 
District of Columbia Circuit stated that ``it is not at all obvious 
whether Sec.  4116(c) actually forces the Coast Guard itself to come up 
with the names of, and instigate rulemaking regarding possible `other 
waters,''' and held that that section ``does not create a sufficiently 
clear duty regarding `other waters' to merit mandamus relief.'' In re 
Bluewater Network, 234 F.3d 1305 at 1306 (DC Cir. 2000). Nevertheless, 
the Coast Guard sought to comply with any possible requirement for 
regulatory action under Sec.  4116(c) by initiating this rulemaking. 
After considering public comment on our 1993 ANPRM, we concluded in 
1994 that ``there is no need to prescribe an absolute minimum of two 
escort vessels'' in other waters, and that ``designating any other U.S. 
waters for escorting requirements will be accomplished using the Coast 
Guard's authority under * * * PWSA, which allows greater flexibility 
concerning the ships to be escorted and the number of escort vessels to 
be required.'' 59 FR at 65743. The Coast Guard stands by its conclusion 
that Sec.  4116(c) of OPA 90 requires no further consideration under 
this rulemaking.
    Nine comments criticized our proposed reliance on local assessments 
under PWSA. These comments pointed to alleged flaws in the local 
assessment process or argued for national standards and timelines to 
guide local assessments, and most stated that PWSA is not an adequate 
substitute for continuing this rulemaking under OPA 90. Later in this 
document, we discuss the Coast Guard PWSA assessment process and 
provide links to additional information. The PWSA assessment process 
provides a uniform methodology that can be applied across the nation, 
and we are always open to considering specific ideas for improving it.
    To address two specific concerns that critics of the PWSA process 
raised: First, the process generally allows for more public input than 
some commenters realize. It provides a structured way to make sure all 
significant local stakeholders are represented and participate. 
Assessment workshops are locally publicized, open to the public, and 
allow for public

[[Page 41647]]

comment. Second, it is true that PWSA assessments may not lead to 
immediate action, because the implementation of assessment 
recommendations may carry its own procedural requirements. However, 
those additional procedural requirements serve public purposes of their 
own, and compliance with those requirements within the focused context 
of a specific body of water may take less time than compliance on a 
national basis. For example, it could be quicker and easier to prepare 
National Environmental Policy Act documentation for a specific bay or 
inlet than it would be to do so for all U.S. bays or inlets. For these 
reasons, we conclude that the PWSA process is an adequate substitute 
for analysis under OPA 90.
    Two comments disagreed with our notice's tentative conclusion that 
national scope rulemaking is neither appropriate nor beneficial, and 
suggested that established OPA 90 performance standards, and 
operational requirements under 33 CFR 168.50, provide a suitable 
framework for national action. We do not agree. OPA 90 mandated escort 
vessel protection for Puget Sound and Prince William Sound, and 33 CFR 
168.40 makes 33 CFR 168.50 applicable only to those waters. As 
previously discussed, we determined in 1994 that there was no need to 
extend those requirements to other waters. In 1994, we also noted 
several limitations or potential problems with applying OPA 90 
standards to other waters, where those standards ``may significantly 
increase costs without any commensurate increase in environmental 
protection'' and could even be counterproductive. 59 FR at 65742.
    Two comments cited 46 U.S.C. 3703(a)(5) as requiring the Coast 
Guard to regulate vessel maneuvering and stopping ability, and other 
features that reduce the possibility of marine casualties, and 
contended that this statute clearly contemplates a nationwide rule 
regarding the use of escort vessels. The cited statute does not require 
the use of escort vessels, and is implemented in pertinent part by 
Coast Guard navigation safety regulations in 33 CFR Part 164.
    Five comments took issue with our notice's reference to 33 CFR 
1.05-20, which provides for citizen petitions for Coast Guard 
rulemaking. These comments said that Congress gave the Coast Guard 
responsibility for investigating escort vessel needs, and that it is 
inappropriate for the Coast Guard to shift that responsibility to the 
public. We do not mean to imply that 33 CFR 1.05-20 transfers any 
responsibilities from the Coast Guard to the public. However, it does 
provide a way for people to direct the Coast Guard's attention to 
specific issues and to hear from us on how we intend to respond. If we 
agree that the petition merits regulatory action, we will initiate that 
action, and if we do not agree, we will inform the petitioner and 
maintain the response in a public file open for inspection.
    Three comments criticized our notice for implying that the proposed 
withdrawal reflects Coast Guard resource constraints, suggesting that 
we approach Congress for additional resources or draw on Oil Spill 
Liability Trust Fund money to overcome those constraints. Our notice 
stated that a ``nationwide risk assessment program may be a good idea 
but it would be very expensive and time-consuming to implement.'' 
However, our reasons for not pursuing such a program were broader than 
its expense or difficulty. Rather, we noted that a nationwide risk 
assessment program ``would be hard to validate, making its usefulness 
questionable,'' and that it would be a ``conceptual exercise'' relative 
to assessments of the need for ``specific resources in specific 
waters.'' These statements were in line with our 1994 conclusion that 
there was no need to continue national assessments under OPA 90 and 
that PWSA would be the basis for any further Coast Guard assessment of 
protective measures in specific waters.
    Seven comments requested that, if we proceed with withdrawal, we 
expressly state that this action would not preempt States from imposing 
their own escort vessel requirements. The Coast Guard's position is 
that States are preempted from imposing their own escort vessel 
requirements in certain waters where we have either established or 
declined to establish special navigation or other requirements based on 
our assessment of the conditions in those waters. However, the 
withdrawal of this rulemaking, in and of itself, is not intended to 
have a preemptive or non-preemptive effect, one way or the other, on 
any particular State escort requirement, as it is not an assessment of 
the conditions of any specific waters.
    One comment offered numerous criteria that could guide local Coast 
Guard units in determining which waters should have escort vessel 
requirements, and numerous suggestions for how local assessments should 
be conducted. As we discuss later in this document, our current PWSA 
assessment methodology has been professionally developed, tested, and 
refined, and provides a satisfactory uniform tool for assessing local 
needs and safety control measures.
    Two comments called for extending escort vessel requirements to 
other cargos, or based on specific factors, which were discussed in 
those comments. These comments do not affect our conclusion that this 
particular rulemaking should be withdrawn, but they could have 
relevance in any future assessment of the needs of specific waters. If 
you think certain cargos or factors need to be addressed with 
protective measures for a specific waterway, please contact your local 
Coast Guard sector commander. A list of Coast Guard sectors appears, as 
part of a comprehensive list of Coast Guard units, at http://www.uscg.mil/top/units/ units/.
    One comment urged us to give shippers an early indication that 
further escort vessel requirements are contemplated, so that they can 
design multipurpose escort vessels to meet multiple regulatory 
requirements. As part of the rulemaking process the Coast Guard 
evaluates and solicits comments on the most efficient manner of 
implementation and would do the same with any new vessel escort 
requirements.
    One comment criticized the proposed withdrawal as part of a 
disturbing Coast Guard trend to leave rulemakings unfinished and 
environmental and safety objectives unmet. The Coast Guard does not 
agree with this characterization. We will not impose new regulations 
without adequate evidence that they are warranted, especially if they 
have a national scope. In this case, we have concluded that this 
rulemaking should be withdrawn, and that the needs of specific waters 
should be assessed under PWSA. Environmental protection of local waters 
and the overall marine safety of those waters are best placed in the 
hands of local Coast Guard officials, who can best provide oversight 
and vigilance in these matters.
    Two comments requested additional documentation of the rationale 
for our April 2008 notice, and one of these requested an extension of 
that notice's public comment period in order to provide time to review 
the additional documentation. There is no additional documentation of 
any relevance. The rationale for withdrawal of this rulemaking is fully 
provided in the April 2008 notice and in previous notices published 
under this rulemaking, and we do not think an extension of the public 
comment period would provide any public benefit.
    One comment asked for a response to a 1995 rulemaking petition 
regarding

[[Page 41648]]

the expansion of escort vessel requirements in the western region of 
the Strait of Juan de Fuca, and asked for the response to take into 
account all relevant studies conducted since 1995. We have been unable 
to locate any documentation of such a petition, but will entertain a 
new petition submitted under 33 CFR 1.05-20. Petitions should be 
addressed to the Executive Secretary, Marine Safety and Security 
Council (CG-0943), U.S. Coast Guard, 2100 Second St., SW., Stop 7121, 
Washington, DC 20593-7121.
    One comment from the Makah Tribal Council, an Indian Tribe, 
requested government-to-government consultation with the Coast Guard 
prior to withdrawal. That consultation took place on April 23, 2009, 
and is documented as Document ID USCG-2006-23556-0050.1 in the docket 
for this rulemaking.
    One comment expressed support for our proposed withdrawal.

PWSA Assessments

    Under PWSA, the principal Coast Guard tool for assessing and 
controlling risks in local waterways is the Ports and Waterways Safety 
Assessment (PAWSA). Since 1998, the Coast Guard has conducted almost 40 
PAWSAs for waterways around the country, and in a typical year there is 
funding for three additional PAWSAs, with priority given to waterways 
likely to be at greatest risk.
    PAWSAs employ a uniform methodology that was developed by academic 
experts and refined through four years of workshops involving 
stakeholders from industry, port authorities, and the environmental 
community among others. The goal, throughout, was to develop a process 
that could evaluate risk and work toward long term solutions, tailored 
to local circumstances, that is both cost effective and meets the needs 
of waterway users and stakeholders.
    The PAWSA methodology provides a formal structure for identifying 
risk factors and evaluating potential mitigation measures through 
expert inputs. Each PAWSA is conducted in a public workshop setting 
that brings together local waterway users, environmentalists, public 
safety figures, economic experts, and other local stakeholders. The 
methodology supplies a weighting tool to take into account the relative 
expertise of each workshop participant. During the workshop, 
participants discuss and assign numerical ratings to the local 
waterway's safety risks in the following areas:
     Quality of local vessels and crews;
     Number of vessels and their interaction with each other;
     Winds, currents, and weather;
     Physical properties affecting vessel maneuverability;
     Likely immediate impacts of a waterway accident, such as a 
collision or hazardous material spill; and
     Possible long term vessel traffic, economic, or 
environmental consequences of a waterway accident.
    Security risks are not included in the PAWSA risk analysis because 
they are analyzed separately by the Coast Guard through port 
vulnerability and security assessments. PAWSA workshop participants 
also discuss and assign numerical ratings to navigational systems, 
emergency response capabilities, and other measures currently in place, 
or that could be adopted, to control each risk.
    PAWSA computer software uses input from the workshop participants 
to generate risk assessments in several categories, and to assess the 
effectiveness of current or potential control measures. Workshop 
participants then review the computer-generated results, and can revise 
their input if they feel their initial ratings produced a false picture 
of local conditions.
    You can get more information about PAWSAs, including contact 
information for the Coast Guard's Office of Waterways Management PAWSA 
Project Officer, at http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_home.htm, or read reports on any of the PAWSAs conducted to date 
at  http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_FinalReports.htm. If you have comments or suggestions about PAWSAs 
generally, contact the Project Officer. If you think a specific 
waterway should be the focus of a future PAWSA, contact the Project 
Officer, or contact the relevant Coast Guard sector commander. In your 
recommendation, you should address the bulleted local waterway safety 
risks cited earlier in this discussion, as fully and specifically as 
possible. A list of Coast Guard sectors, as part of a comprehensive 
list of Coast Guard units, can be found at  http://www.uscg.mil/top/units/.

Withdrawal

    The Coast Guard withdraws this rulemaking, which concerns the 
extension, to other U.S. waters and to other types of vessels, of those 
escort vessel requirements that apply to single hulled oil tankers in 
Prince William Sound, Alaska, and Puget Sound, Washington. We have 
concluded that a rulemaking of national scope under the authority of 
OPA 90 is neither necessary nor advisable given the availability of 
PWSA assessments of the needs, in specific local waters, for escort 
vessels or other protective measures.

Authority

    We issue this notice of withdrawal under the authority of the Ports 
and Waterways Safety Act, 33 U.S.C. 1221 et seq., and section 4116(c) 
of the Oil Pollution Act of 1990, Public Law 101-380.

    Dated: August 11, 2009.
F. J. Sturm,
Acting Director, Commercial Regulations and Standards, U.S. Coast 
Guard.
[FR Doc. E9-19705 Filed 8-17-09; 8:45 am]
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