[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Proposed Rules]
[Pages 40651-40654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16252]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0322]
RIN 1625-AA11


Regulated Navigation Area; Special Buzzards Bay Vessel 
Regulation, Buzzards Bay, MA

AGENCY: Coast Guard, DHS.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Coast Guard is seeking comments and feedback on how best 
to enhance environmental protections and navigation safety outlined in 
the Special Buzzards Bay regulations. Specifically, the Coast Guard is 
seeking comments related to potential modifications of the current 
mandatory pilotage, escort tug, and Vessel Movement Reporting System 
(VMRS) Buzzards Bay requirements. The Coast Guard intends to use this 
input to propose new requirements on barges carrying 5,000 or more 
barrels of oil or other hazardous material.

DATES: Comments and related material must be received by the Coast 
Guard on or before October 7, 2013.
    Requests for public meetings must be received by the Coast Guard on 
or before July 29, 2013.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2011-0322. To view documents mentioned in this preamble as 
being available in the docket, go to http://www.regulations.gov, type 
the docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on 
``Open Docket Folder'' on the line associated with this rulemaking. You 
may also visit the Docket Management Facility in Room W12-140 on the 
ground floor of the Department of Transportation West Building, 1200 
New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
    You may submit comments, identified by docket number, using any one 
of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329. See the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for further instructions on 
submitting comments. To avoid duplication, please use only one of these 
three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. John J. Mauro, Waterways Management Division, U.S. 
Coast Guard First District, (617) 223-8355, email 
[email protected]. If you have questions on viewing or submitting 
material to the docket, call Barbara Hairston, Program Manager, Docket 
Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

AIS Automatic Identification System
ANPRM Advanced Notice of Proposed Rulemaking
AWO American Waterways Operators
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MOSPA Massachusetts Oil Spill Prevention and Response Act
RCP Responsible Carrier Program
RNA Regulated Navigation Area
RA Technical Risk Assessment
VMRS Vessel Movement Reporting System

A. Executive Summary

    Having weighed sometimes competing, but fundamentally important 
goals of environmental protection, concerns of the local community, 
judicious use of public funds, restrained exercise of governmental 
regulation, facilitation of maritime commerce, and the standardization 
of safety regulations to avoid the fragmentation of regulatory regimes 
as a vessel transits across State

[[Page 40652]]

or regional boundaries, we now seek to develop the next phase of 
comprehensive, balanced, and effective risk mitigation measures for 
Buzzards Bay. In particular, we want to update the following areas:
     Federal Pilotage. The Coast Guard believes laden tank 
barges transiting Buzzards Bay and carrying 5,000 or more barrels of 
oil or other hazardous material should be under the direction and 
control of an independent pilot regardless of whether those tank barges 
are single or double hull.
     Reporting and participation requirements of the VMRS 
Buzzards Bay. The Coast Guard believes amending the reporting and 
participation requirements of the VMRS Buzzards Bay to focus on that 
population of marine traffic that is laden with 5,000 or more barrels 
of oil or hazardous material, rather than all marine traffic, will 
enhance navigation safety and marine environmental protection. The 
intent is that the VMRS will still be manned on a 24 x 7 basis.
     Escort Tugs. The Coast Guard believes that under certain 
conditions (e.g. adverse weather, equipment limitations), double hull 
tank barges laden with 5,000 or more barrels of oil or hazardous 
material may require a tug escort. Single-hull tank barges will 
continue to require tug escorts under all circumstances. The Coast 
Guard notes that single hull tank barges are to be phased out January 
1, 2015.

B. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov, or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered as having been received by the Coast Guard when 
it is received at the Docket Management Facility. We recommend that you 
include your name and a mailing address, an email address, or a 
telephone number in the body of your document so that we can contact 
you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    If you submit your comments 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 comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on Open Docket Folder on the line associated with this 
rulemaking. You may also visit the Docket Management Facility in Room 
W12-140 on the ground floor of the Department of Transportation West 
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before July 29, 2013, using one of the methods 
specified under ADDRESSES. Please explain why you believe a public 
meeting would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

C. Regulatory History and Information

    The Oil Pollution Act of 1990 (OPA 90) resulted in sweeping changes 
to the way oil and chemical transportation is conducted in the United 
States and throughout the world. This wide-ranging legislation required 
changes in virtually every aspect of the oil transportation industry. 
It involved new construction requirements, operational changes, 
response planning, licensing and manning mandates, and increased 
liability limits.
    One significant pollution prevention standard in OPA 90 was the 
requirement that new tank barges and vessels be of double- hull 
construction. This provision also required that existing single-hull 
tank vessels (including barges) be retrofitted with a double hull or be 
phased out of operation entirely by January 1, 2015.
    In 1998, in response to the January 1996 grounding of a single-hull 
tank barge off Moonstone Beach in Rhode Island that resulted in the 
release of approximately 880,000 gallons of 2 fuel oil, the 
Coast Guard established an RNA for the navigable waters of the First 
Coast Guard District. The RNA required any single-hull tank barge 
carrying petroleum as bulk cargo to be accompanied by an escort or 
assist tug unless towed by a tug equipped with twin-screws and two 
engines independent of each other and capable of maintaining control of 
the tank barge in the event of a loss of one of the engines. It also 
stipulated that the escort or assist tug must be of sufficient 
capability to push or tow the tank barge promptly away from danger, and 
noted that the use of double-hull barges would remove the need for 
twin-screw, twin-engine tugs.
    In response to the April 2003 grounding of the oil-laden barge B-
120, which spilled approximately 98,000 gallons of No. 6 oil into 
Buzzards Bay, the Coast Guard undertook several studies and 
assessments, facilitated public discussion and ultimately implemented 
additional measures to improve navigation safety and protect the marine 
environment. Those measures included aids-to-navigation improvements 
and adoption of a voluntary recommended vessel route (``green lanes'') 
in 2004, followed in 2007 by an updated RNA that contained requirements 
for escort tugs, federally licensed pilots, and creation of a VMRS; 
these enhancements were accompanied by widely expanded use of AIS. 
These changes were intended to reduce the navigation and environmental 
risks associated with tank barges laden with

[[Page 40653]]

5,000 or more barrels of petroleum product or other hazardous material.
    Since 2007, the American Waterways Operators (AWO) Responsible 
Carrier Program (RCP) and the emerging Coast Guard Towing Vessel 
Inspection Program have also served to reduce the likelihood of a 
material or human factor-related incident through vessel design and 
equipment standards, maintenance programs, staffing and certification 
programs, and compliance programs. For more information about the Coast 
Guard Towing Vessel Inspection Program, see the notice of proposed 
rulemaking published at 76 FR 49976. For more information about the AWO 
RCP, please see their Web site: http://www.americanwaterways.com/commitment_safety/index.html.

D. Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are hazardous 
or in which hazardous conditions are determined to exist. See 33 U.S.C. 
1231 and Department of Homeland Security Delegation No. 0170.1.
    In 2012, the Coast Guard and Massachusetts Department of 
Environmental Protection (Mass DEP) contracted with the Homeland 
Security Systems Engineering Development Institute (HS-SEDI) to provide 
a technical risk assessment (RA) and evaluation of measures to further 
reduce the level of potential risk of an oil spill in Buzzards Bay and 
the Cape Cod Canal (The RA will be provided in the docket).
    The RA noted that double-hull tank barge requirements, which become 
fully effective in January 2015, have increasingly resulted in a 
significant reduction in the probability of an oil spill after a marine 
incident that culminated in a collision, allision, or grounding. The 
double hull requirement is noted as one of the primary contributors to 
risk reduction in Buzzards Bay.
    The purpose of this proposed rulemaking is to provide for safety on 
the navigable waters in the regulated area.

E. Discussion of the Proposed Rule

    The Coast Guard plans to use the results of this RA to evaluate the 
current level of federal regulation for Buzzards Bay and the Cape Cod 
Canal, and to determine whether changes are necessary to the VMRS, 
federal pilots, and/or tug escort system requirements in order to 
enhance safety in the marine environment and further reduce the 
potential for oil spills.
    VMRS: We believe that the current regulations regarding the VMRS 
need revision, in that the majority of vessels currently monitored do 
not pose significant threats of pollution incidents. As currently 
written, the regulations direct watch stander focus from the higher 
risk population of oil and hazardous cargo laden tank barges to the 
much broader population of nearly ALL vessels transiting in Buzzards 
Bay. In addition, in a comparative ranking of measures that would 
mitigate risk of an oil spill, the RA ranked the VMRS as one of the 
less effective options for preventing spills in Buzzards Bay. 
Therefore, we believe that the public would be best served if the VMRS 
were to focus specifically on the highest risk vessels that transit 
Buzzards Bay, (oil laden tank barges carrying 5,000 or more barrels of 
petroleum or other hazardous cargo) rather than ALL vessels.
    Certain classes of vessels that frequent Buzzards Bay and are 
currently subject to the VMRS regulations, such as commercial fishing 
vessels and ferries, usually have a maximum capacity of 250 barrels of 
petroleum (primarily for fuel). This is well below the 5,000-barrel 
threshold considered to be a significant threat to the environment as 
defined in the 2007 regulations that implemented several navigation 
safety measures in Buzzards Bay and established the VMRS. (See 72 FR 
50052.)
    More than 20,000 commercial cargo vessels, tankers, tugs, barges, 
passenger vessels, and commercial fishing vessels pass through Buzzards 
Bay each year, along with thousands of smaller recreational boats. Of 
those, roughly 600 are tank barges laden with 5,000 or more barrels of 
petroleum or other hazardous material. When viewed in combination with 
the increased measures already implemented along with those that we 
propose to put in place (including mandatory pilotage and condition-
based tug escorts), the need for this additional control for tank 
barges laden with LESS than 5,000 barrels of petroleum or other 
hazardous material is no longer necessary and counter-productive as it 
diffuses watch stander attention from the higher risk target 
population.
    Changing certain reporting and participation requirements of the 
Buzzards Bay VMRS to more closely focus monitoring activity on tank 
barges laden with 5,000 or more barrels of petroleum or other hazardous 
material would reduce reporting and participation on certain other 
classes of vessels, and permit marine controllers to focus more closely 
on the intended vessel population--tank barges laden with 5,000 or more 
barrels of petroleum product or other hazardous material--thereby 
reducing costs and improving navigation safety in Buzzards Bay.
What changes to the VMRS Buzzards Bay reporting and participation 
requirements are being considered by the Coast Guard?
    Only tank barges laden with 5,000 or more barrels of petroleum or 
other hazardous material (both single hull and double hull) would be 
required to submit intentions and position reports, and would be 
actively monitored as they transited through Buzzards Bay by the VMRS 
control center at the Cape Cod Canal. All other classes of vessels 
(such as ferries and commercial fishing vessels) that currently 
participate in the VMRS in either an ``active'' or ``passive'' capacity 
(per the VMRS User Manual) would be exempt from VMRS requirements and 
would not be actively monitored by the VMRS control center.
What would not change from the current VMRS Buzzards Bay reporting and 
participation requirements?
    1. All vessels subject to the Bridge-To-Bridge Radiotelephone Act 
(i.e., primarily commercial vessels, including ferries and commercial 
fishing vessels, but not including recreational vessels) would still be 
required to monitor the VMRS radio frequency (channel 13 VHF-FM) at all 
times while operating within the VMRS area and respond promptly when 
hailed. (See Pub. L. 92-63; 85 Stat. 164; 33 U.S.C. 1201-1208; 33 CFR 
26; 47 CFR 80.1001-80.1023; 46 CFR 7).
    2. All vessels (including recreational vessels) would still be 
required to observe the Inland Rules of the Road (See Pub. L. 96-591; 
94 Stat. 3415; 33 U.S.C. 2001-2038; 33 CFR 84-90).
    3. All current reporting and participation requirements for tank 
barges laden with 5,000 or more barrels of petroleum or other hazardous 
material will continue to be in effect.
    4. VMRS Buzzards Bay Control will continue to be staffed and 
operated by U.S. Army Corps of Engineers, Cape Cod Canal.
    Federal Pilots: The existing regulation states that each single 
hull tank barge transiting Buzzards Bay 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 pilots license 
issued by the Coast Guard. Pilots are required to embark, direct, and 
control from the primary tug during transits of Buzzards Bay. The new 
regulation would extend this requirement to double hulls as well

[[Page 40654]]

so that all oil or hazardous material-laden tank barges carrying 5,000 
or more barrels of petroleum or other hazardous material would require 
pilots under all circumstances. The RA acknowledges that the 
independent pilotage requirement proposed provides additional decision 
support and experience on the tug when transiting Buzzards Bay, and 
significantly reduces the probability of a human factor-induced 
incident.
    Escort Tugs: The Coast Guard is considering establishing certain 
thresholds, the exceedance of which would trigger the requirement for 
an escort tug for double-hull tank barges laden with 5,000 or more 
barrels of oil or hazardous material. These thresholds could be 
expressed in terms of meteorological conditions such as wind speed, 
wave height or visibility, or any other factors deemed appropriate, 
such as equipment limitations or defects. Specifically, the Coast Guard 
seeks the input of operators, pilots, industry associations, 
regulators, members of the Area Committee, and concerned citizens on 
the potential threshold conditions which would trigger the requirement 
of an escort tug for double-hull tank barges laden with 5,000 or more 
barrels of oil or hazardous material.
    Once these threshold conditions are fixed, industry would have the 
flexibility to determine if the need to transit during these high-risk 
periods is offset by the additional cost of the escort, or if a delay 
in transit awaiting more favorable conditions is a better option.
    In a comparative ranking of measures that would mitigate risk of an 
oil spill, the RA quotes a National Academy of Science study indicating 
that double hulls result in a 75 to 83 percent reduction in the 
probability of a spill, should a grounding, collision or allision 
occur. Therefore, escort tugs would continue to accompany all single-
hulled tank barges laden with 5,000 or more barrels of petroleum or 
other hazardous material through Buzzards Bay until single-hulled tank 
barges are phased out January 1, 2015.

F. Information Requested

    This advance notice of proposed rulemaking invites public comment 
on the merits, advantages, and disadvantages of changing certain vessel 
reporting and participation requirements of the Buzzards Bay VMRS; 
Federal Pilots, not a member of the crew, on board tugs towing both 
single- and double-hulled tank barges; and Escort Tugs for double-hull 
tank barges during adverse conditions.

G. Preliminary Regulatory Analysis

    This document is issued under authority of 5 U.S.C. 552(a) and 33 
CFR 1.05-30.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. 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. 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 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.
    As noted previously in our 2007 rulemaking (See 72 FR 50052), the 
Coast Guard believes that State law is preempted on the subjects 
discussed in this ANPRM, specifically with regard to the subjects of 
vessel routing, manning, and tug escort requirements in Buzzards Bay.
    Nevertheless, the Coast Guard recognizes the key role State and 
local governments may have in making regulatory determinations. 
Sections 4 and 6 of Executive Order 13132 require that for any rules 
with preemptive effect, the Coast Guard shall provide elected officials 
of affected State and local governments and their representative 
national organizations the notice and opportunity for appropriate 
participation in any rulemaking proceedings, and to consult with such 
officials early in the rulemaking process.
    Therefore, we invite affected State and local governments and their 
representative national organizations to indicate their desire for 
participation and consultation in this rulemaking process by submitting 
comments to this notice. In accordance with Executive Order 13132, the 
Coast Guard will provide a federalism impact statement to document (1) 
the extent of the Coast Guard's consultation with State and local 
officials that submit comments to this advanced notice of proposed 
rulemaking, (2) a summary of the nature of any concerns raised by State 
or local governments and the Coast Guard's position thereon, and (3) 
the extent to which the concerns of State and local officials have been 
met. We will also report to the Office of Management and Budget any 
written communications with the States.

    Dated: May 30, 2013.
D.B. Abel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2013-16252 Filed 7-5-13; 8:45 am]
BILLING CODE 9110-04-P