[Federal Register: October 26, 2004 (Volume 69, Number 206)]
[Proposed Rules]
[Page 62427-62430]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc04-22]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-04-133]
RIN 1625-AA11
Navigation and Waterways Management Improvements, Buzzards Bay,
MA
AGENCY: Coast Guard, DHS.
ACTION: Advance notice of proposed rulemaking; notice of public
meetings.
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SUMMARY: The Coast Guard is considering amending the existing Regulated
Navigation Area for navigable waters within the First Coast Guard
District, to require additional navigation safety measures within
Buzzards Bay, including tug escorts and use of Recommended Routes. This
advance notice of proposed rulemaking seeks public comment on the
merits, advantages, and disadvantages of any amendment to the
currently-existing RNA that would require tug escort of tank barges
transiting Buzzards Bay, Massachusetts. In addition, the Coast Guard
seeks comments on the merits of formally designating the existing
Recommended Route in Buzzard's Bay.
[[Page 62428]]
DATES:
1. Comments are due on or before December 27, 2004.
2. Public hearings will be held at 7:30 p.m. on November 16, 2004,
and at 7:30 p.m. on November 17, 2004.
ADDRESSES: The Commanding Officer, U.S. Coast Guard Marine Safety
Office Providence maintains the public docket for this ANPRM. Comments
and documents will become part of this docket and will be available for
inspection and copying at the same address between 8 a.m. and 3 p.m.
Monday through Friday, except Federal holidays. You may submit comments
and related material by:
(1) Mail or delivery to Commanding Officer, U.S. Coast Guard Marine
Safety Office Providence, 20 Risho Avenue, East Providence, RI, 02914-
1208.
(2) Fax to 401-435-2399.
(3) Electronically via e-mail at EleBlanc@msoprov.uscg.mil.
The public hearing locations are:
(1) New Bedford Whaling Museum, 18 Johnny Cake Hill, New Bedford,
MA; and
(2) Massachusetts Maritime Academy, 101 Academy Drive, Buzzard's
Bay, MA.
FOR FURTHER INFORMATION CONTACT: If you have questions on this ANPRM,
address mail to, or call, e-mail, or fax, Mr. Edward G. LeBlanc, c/o
Commanding Officer, U.S. Coast Guard Marine Safety Office Providence,
20 Risho Avenue, East Providence, RI 02914-1208, telephone 401-435-
2351, or e-mail at EleBlanc@msoprov.uscg.mil, or fax 401-435-2399.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate by submitting comments and related
material. If you do so, please include your name and address, identify
the docket number for this ANPRM (CGD01-04-133), indicate the specific
section of this document to which each comment applies, and give the
reason for each comment. You may submit your comments and material by
mail, hand delivery, fax, or electronic means to the project officer at
the addresses or phone numbers listed under FOR FURTHER INFORMATION
CONTACT, but please submit your comments and material by only one
means. If you submit them by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached U.S. Coast Guard Marine Safety Office
Providence, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period.
Public Meetings
We intend to hold two public meetings to receive comments on this
ANPRM. The times, dates, and locations for these meetings are:
(1) 7:30 p.m., Tuesday, November 16th, 2004, New Bedford Whaling
Museum, 18 Johnny Cake Hill, New Bedford, MA; and
(2) 7:30 p.m. Wednesday, November 17th, 2004, Massachusetts
Maritime Academy, 101 Academy Drive, Buzzards Bay, MA.
Background and Purpose
Congress designated Buzzards Bay as an Estuary of National
Significance in 1985, one of only five estuaries in the U.S. so
designated. The Bay has some of Massachusetts' most productive
shellfish beds. It interacts with three very different marine systems,
the Atlantic Ocean to the south, Vineyard Sound to the east, and Cape
Cod Bay to the north. In 2002, there were nearly 10,000 commercial
vessel transits and over 1200 tank barge transits in Buzzards Bay, and
an estimated 80% of those tank barges were single hull vessels. Since
1969 there have been several significant incidents of tank barge
groundings and tank barge groundings with oil spills in Buzzards Bay,
including the grounding of the tank barge Florida in 1969 with a spill
of approximately 175,000 gallons of No. 2 fuel oil; the grounding of
the tank barge Bouchard in 1977 with a spill of approximately 81,000
gallons of No. 2 fuel oil; the grounding of the tank barge ST-85 in
1986 with a spill of approximately 119,000 gallons of gasoline; the
grounding of the tug Marie J. Turecamo and its asphalt-laden barge in
1999; the grounding of the tug Mary Turecamo and its barge Florida in
1999 carrying 4.7 million gallons of No. 6 fuel oil; and the grounding
of the barge B-120 in April 2003 with a spill of No. 6 oil estimated to
be of approximately 22,000 to 98,000 gallons. Groundings or collisions
of tank barges could lead to a significant discharge or release of oil
or other hazardous materials, as demonstrated by the incidents noted
above, with potentially significant adverse impacts on the coastal and
maritime environment, and the local economy. The purpose of examining
strategies for navigation and waterways management improvements in
Buzzards Bay is to reduce the likelihood of another accident that might
result in the discharge or release of oil or hazardous material into
the navigable waters of the United States.
After a previous oil spill from the tank barge North Cape off of
Point Judith, Rhode Island, in 1996, the Coast Guard chartered a
Regional Risk Assessment Team (RRAT), comprised of government,
commercial, and environmental entities, to examine navigation safety
issues within New England waters. The RRAT recommended, and the Coast
Guard implemented, a Regulated Navigation Area (RNA) that imposed
certain requirements on single-hulled tank barges transiting New
England waters, including Buzzards Bay. Subsequent to an oil spill in
Buzzards Bay in April, 2003, noted above, the Coast Guard sponsored a
Ports and Waterways Safety Assessment (PAWSA), which was conducted by a
cross-section of key Buzzards Bay waterways users and stakeholders,
resulting in numerous suggestions for improving navigation safety in
the Bay. The PAWSA report suggested, in part, that the risk for oil or
hazardous material discharge in Buzzards Bay is relatively high, and
that one method of reducing that risk, among many that were suggested,
might be to ``establish requirements for escort tugs.'' (The PAWSA
report is available in docket CGD01-04-133. See ADDRESSES above on
procedures to access the docket.) The PAWSA also recommended that
Recommended Routes be established to help assist vessel traffic and
provide safer transit routes for commercial vessels. Additionally, in a
letter from several members of the U.S. Congressional delegation from
Massachusetts, the Coast Guard was asked to consider measures similar
to those recommended in the PAWSA, specifically: Assist tugs,
Recommended Routes, and an Automatic Identification System (AIS). This
letter, along with the Coast Guard's response, in available in the
public docket.
AIS is currently the subject of a separate Coast Guard rulemaking
process. See docket USCG-2003-14878, 68 FR 39369, or at http://dms.dot.gov/.
Under the AIS rule, tank barges, among others, transiting
Buzzards Bay would be required to carry AIS, although an implementation
date for that carriage requirement has not yet been established, except
for certain vessels on international voyages. Additionally, the Coast
Guard Marine Safety Office, Providence, RI, has requested that Buzzards
Bay be designated a Vessel Movement Reporting System under 33 CFR 161
to monitor the movements of certain vessels, including tank barges
under tow, within Buzzards Bay. That request is currently under review
by
[[Page 62429]]
Coast Guard headquarters in Washington, DC. A copy of this request is
available in the public docket for this ANPRM (CGD01-04-133).
The National Oceanic and Atmospheric Administration (NOAA), at the
request of the Coast Guard, has already indicated Recommended Routes on
navigational charts for Rhode Island Sound, Narragansett Bay, and
Buzzards Bay. These recommended Routes are currently included on all
new editions of charts 13205, 13218, 13221, and 13230. Currently, an
escort tug is required in Buzzards Bay only for single hull tank
barges, unless the single hull tank barge is being towed by a primary
towing vessel with twin-screw propulsion and with a separate system for
power to each screw. Consequently, the vast majority of tug and barges
transiting Buzzards Bay (of which most barges are single hull) employ
tugs with twin screws and twin engines, but with no additional positive
control. The Coast Guard is considering a regulation that would require
a tug escort of all tank barges carrying oil or hazardous material
regardless of the towing vessel's propulsion configuration, to ensure
positive control of the tank vessel.
Discussion of Proposed Regulation
The Coast Guard is considering a regulation that would require tug
escorts of all laden tank barges. The Coast Guard is also seeking
comments on the merits of formally designating the existing Recommended
Route, currently in place in Buzzards Bay.
For the purposes of this Notice, the following terms are as defined
in 46 U.S.C. 2101:
Tank vessel is defined as ``a vessel that is constructed or adapted
to carry, or that carries, oil or hazardous material in bulk as cargo
or cargo residue.''
Barge is defined as a non-self-propelled vessel.
Oil is defined as ``oil of any type or in any form, including
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes
except dredged spoil.''
Hazardous material is defined as ``a liquid material or substance
that is flammable or combustible; designated a hazardous substance
under section 311(b) of the Federal Water Pollution Control Act (33
U.S.C. 1231); or designated a hazardous material under 49 U.S.C.
5103(a)''.
For the purposes of this Notice, ``tank barge'' is a non-self-
propelled vessel constructed or adapted to carry, or that carries, oil
or hazardous material in bulk as cargo or cargo residue.
For the purposes of this Notice, the following term is as defined
in 33 CFR 165.100, ``Regulated Navigation Area: Navigable waters within
the First Coast Guard District:''
Tug escort is an escort or assist tug ``of sufficient capability to
promptly push or tow the tank (vessel) away from danger of grounding or
collision in the event of a propulsion failure; a parted towing line; a
loss of tow; a fire; grounding; a loss of steering; or any other
casualty that affects the navigation or seaworthiness of either
vessel.''
For the purposes of this Notice,
Buzzards Bay is the body of water east and north of a line drawn
from the southern tangent of Sakonnet Point, Rhode Island, in
approximate position latitude 41[deg]27.2' N, longitude 70[deg]11.7' W,
to the Buzzards Bay Entrance Light in approximate position latitude
41[deg]23.5' N, longitude 71[deg]02.0' W, and then to the southwestern
tangent of Cuttyhunk Island, Massachusetts, at approximate position
latitude 41[deg]24.6' N, longitude 70[deg]57.0' W, and including all of
the Cape Cod Canal to its eastern entrance, except that the area of New
Bedford harbor within the confines (north of) the hurricane barrier,
and the passages through the Elizabeth Islands, would not be considered
to be Buzzards Bay.
Recommended Route is the light green-shaded route contained on the
most recent editions of NOAA navigational charts 13230 and 13218, and
accompanied by a ``Note'' on each chart which reads ``Recommended
Routes for deep draft vessels (including tugs and barges) entering and
departing Rhode Island Sound, Block Island Sound, Narragansett Bay, and
Buzzards Bay. While not mandatory, deep draft commercial vessels
(including tugs and barges) are requested to follow the Recommended
Routes at the master's discretion. Other vessels, while not excluded
from these Recommended Routes, should exercise caution in and around
these areas and monitor VHF channel 16 or 13 for information concerning
deep draft vessels (including tugs and barges) transiting these routes.
See U.S. Coast Pilot Section 2, Chapter 5, 6 or 7 as appropriate.''
These Recommended Routes are not part of the internationally recognized
and approved Narragansett Bay Traffic Lane and Buzzards Bay Traffic
Lane in Rhode Island Sound, and have not been formally adopted by the
Coast Guard.
Questions
We invite the public to answer the following questions. Any
additional information provided on this topic is welcome. In responding
to each question, please identify the question to which your response
applies, and explain your reasoning as fully as possible so that we can
carefully weigh the consequences and impacts of any future regulatory
actions the Coast Guard may take.
In preparing your responses to these questions, please indicate
your position in the maritime industry, if applicable.
Tug Escorts
1. What would constitute an effective ``tug escort?'' Does the
definition in this ANPRM suffice?
2. What would be the costs, if any, to tank barge owners,
operators, and consumers, of requiring a tug escort for all tank barges
transiting Buzzards Bay?
3. What would be the economic impact to small entities, if any, of
a requirement that all tank barges have tug escorts? ``Small entities''
is as defined by Regulatory Flexibility Act [5 U.S.C. 601], and
generally refers to an enterprise or business that ``is independently
owned and operated and which is not dominant it its field of
operation.''
4. Would a requirement that all tank barges have tug escorts cause
a shortage of tug availability in the Buzzards Bay or Northeast U.S.
areas? If so, what are the likely, potential economic impacts? Would
rates for hiring tugs in the Buzzards Bay or Northeast U.S. areas
change significantly as a result of such a requirement? If so, how much
would rates change?
5. Are there alternatives to tug escorts, such as increased manning
or pilotage requirements on tugs, or double hulls on barges, that would
provide an equivalent or improved level of navigational safety in
Buzzards Bay?
Vessel Routing
6. Would a requirement that tank barges under tow, and with tug
escort, use the Recommended Route in Buzzards Bay currently displayed
on NOAA charts have any adverse economic or navigation safety impacts?
7. Are there other alternatives to required routing that would
enhance navigational safety in Buzzard's Bay, such as a Recommended
Route approved by the International Maritime Organization? If so,
should such a route differ from the Recommended Route currently shown
on navigational charts?
Comments are not limited to the preceding questions and are invited
on any aspect of the proposed regulation.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on state or local
governments and would either preempt State law or
[[Page 62430]]
impose a substantial direct cost of compliance on them. The U.S.
Supreme Court, in the cases of United States v. Locke, 529 U.S. 89
(2000) and Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) has ruled
that certain categories regulation issued pursuant to the Ports and
Waterways Safety Act of 1972, as amended, are reserved exclusively to
the Coast Guard, and that state regulation in these areas is preempted.
On August 4, 2004, the Commonwealth of Massachusetts enacted
Chapter 251 of the Acts of 2004, an Act Relative to Oil Spill
Prevention and Response in Buzzard's Bay and Other Harbors and Bays of
the Commonwealth. It is the view of the Coast Guard that several
provisions of the Massachusetts Act touch categories of regulation
reserved to the Federal Government and are preempted per the rulings in
Locke and Ray. It is likely that any regulations promulgated as a
result of this advance notice of proposed rulemaking would likewise
touch categories of regulation reserved to the Federal Government, thus
becoming further indicia of preemption.
Section 17 of the Massachusetts Act purports to impose a state
pilotage requirement on certain vessels engaged in the coastwise trade.
It is the view of the Coast Guard that this provision is void by
operation of law pursuant to 46 U.S.C. Sec. 8501. Coast Guard
regulations promulgated as a result of this advance notice of proposed
rulemaking may also address pilotage.
Because of the preemption issues described above, the Coast Guard
will conduct a Federalism analysis pursuant to E.O. 13132 for any rules
promulgated as a result of this notice. Sections 4 and 6 of E.O. 13132
require that for any rules with preemptive effect, the Coast Guard
shall provide elected officials of affected state and local governments
and their representative national organizations the notice and
opportunity for appropriate participation in any rulemaking
proceedings, and to consult with such officials early in the rulemaking
process. Although it is the view of the Coast Guard that certain
sections of the Massachusetts law are preempted for reasons independent
of any potential rulemaking action here, in order to comply with the
spirit of E.O. 13132, the Coast Guard has already begun consultations
with the state government of Commonwealth of Massachusetts. We invite
other affected state and local governments and their representative
national organizations to indicate their desire for participation and
consultation in the rulemaking process by submitting comments to this
notice.
Dated: October 14, 2004.
David Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 04-23963 Filed 10-25-04; 8:45 am]
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