
[Federal Register: August 18, 2009 (Volume 74, Number 158)]
[Proposed Rules]
[Page 41646-41648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18au09-15]

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DATES: The proposed rule is withdrawn on August 18, 2009.

ADDRESSES: The docket for this withdrawn rulemaking is available for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/.
    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]

BILLING CODE 4910-15-P
