35832 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

Dated: June 1, 2000.

R.E. Bennis,

Captain, U.S. Coast Guard, Captain of the

Port, New York.

[FR Doc. 00–14111 Filed 6–1–00; 4:28 pm]

BILLING CODE 4910–15–U

DEPARTMENT OF TRANSPORTATION

COAST GUARD

33 CFR Part 165

[CGD01–98–151]

RIN 2115–AE84

Regulated Navigation Area: Navigable

Waters Within the First Coast Guard

District

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

SUMMARY: The Coast Guard amends the

regulations at 33 CFR 165.100 that

establish a Regulated Navigation Area

(RNA) within the navigable waters of

the First Coast Guard District. This Final

Rule makes permanent the existing

temporary authority of a Captain of the

Port (COTP) to issue exemptions from

the positive control of barges provisions

of the RNA. These exemptions are

authorized in limited circumstances in

which an applicant employs equivalent

levels of safety in the operation of

vessels towing tank barges. This Final

Rule removes the expiration date set in

the Interim Rule for the exemption

authority. The exemption authority is

consistent with requirements of the

relevant provisions of the Coast Guard

Authorization Act of 1998, and with the

purposes of environmental protection

regulations to reduce the risk of oil

spills in the marine environment, while

accounting for the impact of the RNA on

small entities.

DATES: This Final Rule is effective 1 July

2000.

ADDRESSES: Documents as indicated in

this preamble are available for

inspection or copying at Commander

(m), First Coast Guard District, 408

Atlantic Ave., Boston, MA 02210–3350.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Rich Klein, c/o Commander

(m), First Coast Guard District, 408

Atlantic Ave., Boston, MA 02210–3350;

telephone 617–223–8243.

SUPPLEMENTARY INFORMATION:

Regulatory History

After the oil spill that resulted from

the grounding of the Tank Barge

NORTH CAPE off the coast of Rhode

Island in 1996, a group comprised of

operators of towing vessels and tank

barges, environmental organizations,

State agencies, and Coast Guard

officials, formed the Regional Risk

Assessment Team (RRAT). The purpose

of the RRAT was to review operating

procedures for tugs and barges in the

Northeast. The RRAT issued a report

that included recommended actions to

minimize risks peculiar to the

transportation of petroleum in the

waters of the First Coast Guard District.

On October 13, 1998, the Coast Guard

published in the Federal Register (63

FR 54639) a Notice of Proposed

Rulemaking (NPRM) entitled ‘‘Regulated

Navigation Area: Navigable Waters

within the First Coast Guard District.’’

That NPRM addressed many of the

issues that the RRAT also addressed.

On November 13, 1998, Congress

enacted the Coast Guard Authorization

Act of 1998 (Act). Section 311 of the Act

required the Coast Guard, under

authority delegated by the Secretary of

Transportation, to promulgate

regulations for the safety of towing

vessels and tank barges in waters of the

Northeast not later than December 31,

1998. Section 311(b)(1)(B) of the Act

required the Coast Guard to fully

consider each recommendation from the

RRAT report. On December 30, 1998,

the Coast Guard published in the

Federal Register (63 FR 71764) a Final

Rule establishing the RNA for the waters

of the Northeast.

After publication of the Final Rule,

several companies in the towing and

tank barge industry affected by the RNA

notified the Coast Guard that they were

concerned about the economic impact of

the RNA’s positive barge control

provisions. Acting on these concerns,

the Coast Guard published an Interim

Rule in the Federal Register (64 FR

12746) on March 15, 1999, that

temporarily authorized COTPs to

exempt vessels from the positive barge

control provisions based upon

equivalent levels of safety. The Interim

Rule also sought out comments on the

economic impact of the positive barge

control provisions on small entities. We

conducted a public meeting on April 16,

1999 in New Haven, CT. The meeting

was attended by 13 individuals, and

there were 8 speakers.

Background and Purpose

Prior to publication of the Interim

Rule, 33 CFR 165.100(d)(1)(i) required

that single-hull tank barges carrying

petroleum and operating in the

navigable waters of the First Coast

Guard District either be towed by a tug

equipped with twin-screws and two

engines, or be escorted by a second tug.

Double-hull tank barges and certain

small barges in confined waters were

exempt from this requirement. The

positive control provision in the RNA

addressed the hazards associated with

operating single-hull tank barges with

single-screw tugs in the First Coast

Guard District waters. However, it

provided little flexibility to address

special circumstances. This Final Rule

provides COTPs with the authority to

address special circumstances. This

exemption authority is consistent with

RRAT report that had recommended

that the Coast Guard establish a

regulatory provision authorizing

exemptions in limited circumstances.

Under the final regulations, the COTP

may consider exempting operators from

the positive barge control provision

upon the operator’s demonstration of

equivalent measures of safety. The

exemptions, if granted, would result in

the continued use of a single-screw and/

or single-engine tug to tow a single-hull

tank barge without an escort tug on the

navigable waters of the First Coast

Guard District. In determining whether

to grant an exemption of the positive

control provisions, the COTP will

consider a variety of factors including,

but not limited to, the availability of

timely on-call tug assistance, the time of

transit, the route, the weather,

environmental factors, the amount and

grade of cargo, the existence and

sufficiency of anchoring and retrieval

equipment on a manned barge, transits

in protected waters, and the

construction of the tank barge, as well

as the operators’ overall safety record.

Requests for exemptions must be

submitted in writing to each COTP in

whose zone the barge intends to operate.

Operators whose vessels transit multiple

COTP zones must apply for the

exemption from each COTP. COTPs will

consult with each other in such cases.

The Final Rule is responsive to the

needs of small businesses, and gives the

COTP the flexibility to weigh risk while

continuing to safeguard the

environment.

This rule makes permanent the

exemption process of the Interim Rule,

which is set to expire on June 30, 2000.

Because of the need to keep that

exemption process authority, under

U.S.C. 553(d)(1), this rule is effective in

less than 30 days. Additionally, to

remain responsive to industry needs

while continuing to protect the

environment and for the other reasons

stated in the preamble of this rule, the

Coast Guard finds good cause under 553

U.S.C. (d)(3) for making this rule

effective in less than 30 days.

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 35833

Discussion of Comments and Changes

The Coast Guard received 84 written

comments on the Interim Rule,

contained in 9 individual letters to the

docket; we received another 22

comments at the public meeting.

General Comments

Several comments generally

questioned the effectiveness of the RNA

on improving safety. Five comments

stated that single-screw tugs have

decided safety advantages over twinscrew tugs, especially in narrow

channels, shallow drafts, and tight

bends where the danger to safe

navigation is increased. A related

comment suggested that, rather than try

to eliminate a whole class of vessels, the

Coast Guard eliminate or minimize risk

as much as possible.

The overall purpose of the RNA is to

improve safety and reduce the risk of an

oil spill in First Coast Guard District

waters. We believe that these

regulations are effective safety

measures, because they require

operational planning, increase

underway safety communications, and

improve emergency response

preparation. While single-screw tugs

may have advantages, they do not have

a redundant control system to serve as

backup in the event the primary system

fails to avoid a collision or grounding.

We have not eliminated single-screw tug

operation.

The RNA does not preclude the use of

single-screw tugs, but it does generally

require that tank barges under tow by

these tugs employ an escort. Singlescrew, or single-engine tugs may

continue to tow double-hull barges, or

seek an exemption for towing a tank

barge with a capacity of less than 25,000

barrels in an area of limited depth or

width. The Final Rule adds another

exemption authority to address unique

situations in which an equivalent level

of safety is provided by the operator. By

applying the RNA’s measures together

with those safety measures included in

the two national rulemakings for Fire

Protection [64 FR 56257] and

Emergency Control Measures [65 FR

31806], the Coast Guard will lower the

risk of pollution due to spills from tank

barges.

Two comments suggested that the

Coast Guard create a matrix to assess

risk and screen vessels for safety.

Consideration for continued service

should be based on safety factors that

will prevent oil pollution. Some

companies already employ numerous

operational and equipment precautions

to ensure safety; these are things that

should be determining factors in

assessing risk. A related comment

suggested that the RNA include a

‘‘grandfather’’ clause permitting those

small entities that have been hauling

petroleum with single-screw tugs prior

to January 29, 1999, to continue this

method of transporting.

We agree that a matrix may be a

useful tool for COTPs to gauge risk

factors when considering requests for

exemption in some cases. A COTP is not

limited in the way he or she evaluates

an application. However, we note that

the use of a single matrix in each of the

five different COTP zones would be

difficult in light of risks that may be

unique to a particular COTP zone.

Companies that employ preventive

measures would be advised to identify

those measures in any application for

exemption under this Final Rule. The

COTP will evaluate those measures in

the equivalency determination. The

result may have the same effect as

‘‘grandfathering’’ in some cases.

Three comments focused on the

importance of the tug operator, and

suggested enhanced qualification and

skill standards consistent with the 1995

amendments to the International

Convention on Standards of Training,

Certification and Watchkeeping for

Seafarers (STCW).

The Coast Guard encourages

operators, on their own initiative, to

increase training and improve their

professional skills to further good

marine practices. This rule does not

preclude any owner of a tank barge from

adherence to higher watchkeeping

standards. However, Coast Guard

District Commanders, including the

First District Commander, do not

generally have independent authority to

establish STCW requirements.

Several comments urged that the

Coast Guard establish procedures for

transforming the temporary exemption

into a permanent program, and that

such a program would comply with the

meaning and intent of the RRAT, which

recommended waivers in certain

instances.

We agree. This Final Rule makes a

permanent exemption authority

consistent with the recommendations of

the RRAT report. The purpose of the

Interim Rule was to solicit comments on

the measures of positive control in the

RNA, particularly those from small

businesses. Following the period for

public comment, and having held a

public meeting, the Coast Guard reevaluated the risks posed by the

continued use of a single-screw tug

while operating on the temporary

exemption. Since we inserted the

authority into the RNA, COTPs have

evaluated 38 applications under the

temporary exemption authority and

granted 32 exemptions. Although no oil

spills have been associated with vessels

operating under the exemption, we

acknowledge that the data is limited to

a relatively brief one-year period of

time.

One comment suggested that the

Coast Guard establish a committee to

study, in detail, how many small

entities are involved and the type and

extent of economic dislocation caused

by the regulation. The Office of

Advocacy of the Small Business

Administration (SBA) has maintained

that the use of general statistics is not

an effective way to determine the

impact of a regulation on any particular

small business and that ‘‘Small Entity’’

does not adequately segment the small

towing firms affected.

The Coast Guard relied upon the SBA

definition of small entity when

promulgating this Final Rule. The SBA

regulations require the use of their small

entity definition in the various

industries unless the agency has

promulgated specific definitions. The

Coast Guard obtained sufficient

information when we re-opened the

docket with the Interim Rule and

conducted additional analysis of the

impact on small businesses. The Coast

Guard notified over 180 owners of tugs

and tank barges in the Northeast, to

inform them of the rulemaking and

solicit the request for comments from

small entities to describe the impact of

the positive barge control provisions.

Several comments addressed the cost

and safety of towing gear for anchoring

and emergencies. They stated that the

practice of picking up loose barges with

emergency towing gear would place

personnel and equipment in peril.

Another comment stated that an engineroom fire aboard any tug, single or twinscrew, would render that tug helpless as

all engine compressors, steering, and

electric wiring are in one engine room.

Anchoring systems and firefighting

were not the purpose of this rule. These

issues were, however, addressed by the

national rulemakings, Emergency

Control Measures for Tank Barges, and

Fire Protection previously noted.

Comments on Particular Features of

Preamble

Comments on Applicability of Rule

One comment recommended that

§ 165.100(d)(1)(i) be amended to apply

to only single-hull tank barges with a

capacity of more than 7,500 barrels of

oil. The comment recommended a new

exemption provision be established to

allow COTPs to grant exemptions to

single-hull tank barges of this capacity.

35834 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

We agree that COTPs should have

authority to issue exemptions, and have

amended the regulations to reflect this

change. As such, COTPs may allow a

tank barge owner to continue using a

single-screw, single-engine tug to tow

the barge, provided they employ

alternative measures for the positive

control of the barge. Rather than limit

the exemption criteria solely to barge

capacity, however, this rule requires

COTPs to consider a host of factors

including the barge capacity.

Two comments stated that to achieve

its stated goal of reducing the risk of oil

spills, the rulemaking’s escort tug

requirements should apply to tank ships

as well as tank barges, or to neither. The

rule does not address the considerably

greater risks posed by tank ships but

poses increased requirements only on

tank barges that carry far less oil.

It is true that the RNA does not

address tank ships, and neither the

RRAT nor the Act addressed that class

of vessels. But we disagree that the

escort tug should apply to neither tank

ships nor tank barges as a result. Towing

vessels provide the propulsion for tank

barges but are largely unregulated. Tank

ships are essentially a towing vessel and

tank barge combined as an integral unit

and are heavily regulated to reduce the

risk of oil spills. In several respects, the

RNA, combined with the two national

rulemakings previously noted, attempts

to raise the level of safety on tugs and

tank barges to that of tank ship

operations.

Four comments stated their

appreciation for the expanded

exemption provisions of

§ 165.100(d)(1)(iii) in the Interim Rule;

however it claims that the exemption

does not go far enough. Since the RNA

is based on a single-hull versus doublehull distinction, it should follow the

same timeline established by Congress

in OPA 90 for the phase-out of singlehull tank vessels.

Neither the RNA in general, nor the

positive barge control provisions

specifically, have any impact on the

statutory phase-out period for singlehull tank vessels. The RNA, simply,

imposes operational requirements on

single-hull tank vessels until they are

phased-out in accordance with law. By

amending the positive control measures,

this rule increases the opportunities for

single-screw tugs to continue towing

single-hull tank barges.

Comments on Background and Purpose

Six comments state that this

rulemaking imposes new regulations on

the entire single-hull segment of the

tank barge industry in the Northeast

without properly documenting oil spills

resulting from single-screw propulsion

failures. The incident that prompted the

legislation underlying this rulemaking

had nothing to do with the number of

screws on the tug.

As the comment notes, legislation

underlies the rulemaking. The RNA

establishes four operational measures

for the safety of towing vessels and tank

barges. These measures are preventive

in nature and are designed to increase

safety in an emergency. Clearly, it was

the intent of the Congress, the RRAT,

and the Coast Guard to establish

measures to improve the safety during

tank barge transits. While the NPRM

does identify 12 examples where a

redundant propulsion system prevented

a grounding or collision, neither the

Coast Guard, nor the RRAT sought to

make a comparison between tugs with

redundant systems and those without.

Instead, the intent was to increase the

safety of tank barge transits by requiring

a redundancy, or ensuring that those

tugs without redundant systems had tug

escorts.

Comments on Regulatory Analysis

One comment stated that the

Summary of Costs assigns arbitrary

hourly cost figures for charter tugs, and

does not address the fact that in some

cases these vessels may not even be

available. The comment states that the

cost of $300 per hour is arbitrary when

you consider different ports. Worse than

the cost per hour is the issue of

availability which is uncertain in some

areas where no hourly figure can

accurately estimate the rule’s impact.

We note these comments and have

revised our analysis in response to the

comments received during the comment

period. The data published in the

Summary of Costs were gathered from

sources such as the Army Corps of

Engineers (ACOE) Navigation Data

Center, the Coast Guard’s Marine Safety

Information System, and included

telephone surveys with a number of

towing vessel and tank barge owners.

The Coast Guard analyzed these data,

which it published for public

consideration. We have revisited our

data sources and revised upward the

number of impacted transits. The cost of

$300 per hour was used after calling

industry sources; we consider that

figure to be a reasonable approximation.

We note that no comments suggested a

more appropriate estimate.

One comment stated that the

Summary of Costs provided no

allowance for added down-time for tugs

and barges while awaiting voyage plan

approval, or while waiting for assist tugs

to arrive. Additional costs are incurred

as the result of the crew training for

anchoring and pickup gear.

We note these comments. The Voyage

Plan is only required to be complete

before departure, and does not require

approval. The cost of crew training for

anchoring and retrieval gear is the

subject of a separate rulemaking

published by Coast Guard Headquarters.

However, we have added the cost of

training when the escort tug is not

familiar with the barge operations.

Two comments stated that the

Summary of Costs does not address the

issue of lost opportunity costs to

impacted companies and the

communities they serve. When a barge

cannot be used because both singlescrew tugs are away with a tank barge,

revenue is lost or delayed.

We note these comments. In the short

run, while impacted companies are

realigning their assets in order to be in

compliance with the RNA, there may be

some lost profit opportunities for barges.

We have taken this into account in our

revised Summary of Costs. We note that

with the exemptions this may not be a

factor at all. We also note that since the

interim regulations have been in effect,

the Coast Guard has not received a

single complaint of a petroleum

shortage that was created as a result of

these regulations.

Four comments stated that the

analysis does not properly address the

substantial costs of purchasing

additional tugs to comply with the

positive control measures. Costs for

additional tugs are prohibitively

expensive for small businesses and

could cause the business to close its

doors.

We disagree that the Coast Guard is

requiring small businesses to purchase

additional tugs. Instead, small

businesses have other options available

in § 165.100(d)(1)(i) for continued

service. The COTP may grant

exemptions to those small businesses

that employ alternative safety measures

for their current vessels.

Four comments state that compelling

the use of twin-screw tugs has forced an

unfair economic hardship on small

businesses, and has seriously depressed

the value of single-screw tugs. The

analysis does not quantify or address

the rulemaking’s effect on single-screw

tugs, whose value has fallen by about a

third since this rulemaking was

proposed. Additionally, two comments

stated that their small company made a

large investment in a single-skin barge

before they became aware of the

rulemaking. The new regulation has

drastically changed their financial

equation that served as the basis to

purchase this barge.

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 35835

We agree that the rulemaking may

have placed an economic burden on

certain small businesses. After

publication of the Final Rule on

December 30, 1998, the Coast Guard

heard from several small tug and tank

barge companies claiming that they had

been unaware of the rulemaking, and

had failed to submit comments to the

docket voicing their opinion. As a

result, the Coast Guard reopened the

docket to learn more about the affects of

the positive control measures on their

small businesses. In response to the

comments received, the First District

Commander has amended the

regulations to permit companies that

own single-screw tugs to continue in the

tank barge service, provided alternative

safety measures are approved by the

COTP. The new exemption may reduce

the unexpected costs for those

companies that receive exemptions, and

will thereby offer them relief for

continued service.

Four comments stated that the

analysis appears faulty and does not

explain how the Regulatory Assessment

led the Coast Guard to enact extra

burdens on the operators of single-screw

tugs. The analysis shows a tug escort

rule effectiveness of $67,561.55 per

barrel of oil not spilled which seems

way too high. The $32,103 costeffectiveness figure published in the

Federal Register was high. It looks like

the Coast Guard may require the

transportation industry to spend over

$12 million without preventing any oil

from spilling.

We disagree that the RNA will not

prevent oil spills from tank barges.

However, we have revised the

regulatory assessment; a copy is

available in the docket.

One comment asked whether the

Coast Guard wasn’t already doing

enough with regulations to prevent

another NORTH CAPE scenario. Other

rulemakings, such as Fire Suppression

and the Emergency Control Measures for

Tank Barges, will all reduce the

likelihood of oil spilling from barges.

Benefit figures for the RNA may be

lower because another rule would have

prevented many accidents from

happening. Under that rule as proposed,

a single-hull barge being towed will be

fitted with an anchoring system

required by a separate rulemaking. The

analysis does not properly address how

the rulemaking for Emergency Control

Measures for Tank Barges and other

OPA 90 rulemakings will prevent

groundings.

We note these comments. The

analysis did take into account the

potential benefits of these other

rulemakings. Please see the ‘‘Benefits’’

section of the Regulatory Assessment

available in the docket.

One comment asked whether this

rulemaking imposed operational

conditions, which are, instead, actually

equipment regulations that require a

second engine and a second screw for

the tugs.

The RNA does not contain an option

for installing a second engine and

second screw. Any such actions would

be taken independent of the RNA, even

though the result may be that the

affected tug would be subject to fewer

RNA requirements.

One comment stated that the

rulemaking should be declared null and

void because the rule makes no mention

of hazardous areas or hazardous

conditions.

We disagree that the RNA was not

based on hazardous conditions. The

premise of this rulemaking was the

inherent risks associated with the

waterborne transportation of petroleum

products in the Northeast, which is

subject to high-risk transit areas. As a

heavily industrialized and oildependent region of the country, the

Northeast is subject to a high volume of

tank barge traffic, particularly during

the winter months, due to the demand

for home heating oil. These operating

conditions include dangerous and often

violent winter storms that are unique to

the region, and therefore create

substantial hazards for the vessel’s crew

and the environment. As described in

the rulemaking’s Background and

Purpose of the NPRM, the First Coast

Guard District has experienced 289

marine casualties involving tank barges

from 1992 through 1996. Given this high

number of tank barge-related casualties

and the potential for another major

pollution incident, the Coast Guard

promulgated this RNA as required by

law, citing these hazardous conditions.

One comment stated that the Coast

Guard should explain why it wants to

place tug escort rules in 33 CFR part 165

when there are regulations on tug

escorts found in 33 CFR part 168. While

the Coast Guard did not require tug

escorts in the waters of the First District

during the 1994 rulemaking, the

commentor asks what has changed

between 1994 and 1999? Accident

histories do not justify the change of

position.

We disagree, and note that these

regulations are the result of the NORTH

CAPE spill in January 1996. We also

find that Part 165 is the appropriate

subpart for these regional regulations.

This subpart permits the District

Commander to control vessel traffic

operating conditions within his area of

responsibility. As it establishes a RNA,

this rulemaking is limited to those

waters under the authority of the First

District Commander. Accident histories

have long been a source of legislated

governance of the marine-transportation

industry; the most noteworthy of which

is the Oil Pollution Act of 1990 which

was the result in large part from the

grounding of the EXXON VALDEZ.

One comment stated that their

company lost revenue because the rule

went into effect at the end of the

industry’s season. There are customers

that will not hire tug companies even if

they hold exemptions. This rulemaking

creates an unjust situation for small

entities that are trying to comply with

the law. Additionally, one comment

stated that this rule will have a

significant economic impact on their

business. To purchase a new twinscrew, twin-engine tug will cost $25,000

per month in a mortgage payment. The

requirements will not affect large

businesses, but may put smaller

businesses out of business.

We have amended the rulemaking to

ease the economic burden on small

entities. By allowing the COTP to grant

exemptions for single-screw tugs to

continue in towing tank barges, the First

District Commander is responsive to the

concerns of small entities. This

amendment offers relief to those small

entities that might experience economic

hardship by offering them the option of

applying for an exemption for continued

service from the COTP.

One comment stated that all federal

agencies are required to identify

alternative regulatory approaches for

small business, small governmental

jurisdictions and non-profit

organizations.

We agree that the Coast Guard is

responsible for considering the

economic impact on small entities. As

such, the Coast Guard believes that this

amended rulemaking satisfies the

requirements of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.) by

offering alternatives to small businesses

in § 165.100(d)(1)(iii) that will allow

them to continue to tow tank barges in

the Northeast and accordingly does not

place a substantial impact on a

significant number of small businesses.

Regulatory Assessment

This rule is not a significant

regulatory action under 3(f) of Executive

Order 12866 and does not require an

assessment of potential costs and

benefits under section 6(a)(3) of that

Order. It has not been reviewed by the

Office of Management and Budget

(OMB) under that Order. It is not

significant under the regulatory policies

and procedures of the Department of

35836 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

Transportation (DOT) (44 FR 11040;

February 26, 1979).

A Regulatory Assessment under

paragraph 10e of the regulatory policies

and procedures of DOT is available in

the docket for inspection or copying

where indicated under ADDRESSES. A

summary of the Assessment follows:

Summary of Benefits

The principal benefits of this rule are

protection against oil spillage, human

casualties, and property damage that

may result from navigation-related

incidents of tank barges and towing

vessels while underway in the navigable

waters of the First Coast Guard District.

Quantifiable benefits accrue from

averted pollution measured in barrels of

oil not spilled, averted injuries and

deaths, and averted damage to vessels

and property measured in dollars.

Using information from the Coast

Guard Marine Safety Management

System from January 1, 1992, to

December 31, 1996, we reviewed 96

tank barge casualty cases. These

casualties involved vessels that were

underway within the boundaries of the

First Coast Guard District and which

would have been affected by this rule if

it had been in effect. This period

represents some post OPA–90

experience, is long enough to survey a

significant number of casualties, and

short enough to avoid old problems

which are now solved. These 96 cases

provided the pool from which the

benefits are estimated. During this base

period, there was no reported oil spilled

from double-hull barges.

For all four measures, we reviewed

each casualty case report to assess

whether the casualty could have been

prevented or diminished in severity by

this rule. A team of Coast Guard

analysts assigned an effectiveness

degree to which each measure would

have positively affected each casualty

case. We tabulated data on deaths and

injuries, oil spillage, and dollar totals

reported for damage to the tank barges,

towing vessels, piers, or other

structures, and estimated benefits for

each measure adjusted to the accurate

degree of effectiveness.

Over the period of analysis, the

present value of total damages and

deaths avoided by the rule would be

$2,192,473 (1998 dollars). Total

pollution avoided by the rule would be

1,368.65 barrels. These figures are

different from those obtained in earlier

Regulatory Assessments due to updating

and improvement of the data and

methodology.

Summary of Costs

Businesses that use tank barge and

towing vessels within the geographic

boundaries of the First District, as well

as the tank barge and towing vessel

industries themselves, will bear the

majority of the costs of this rule.

The cost of this rule is the sum of

costs from the requirements for positive

control for barges, enhanced

communications, voyage planning, and

restricted navigation areas. These

anticipated costs recognize that many of

the towing vessels and tank barges

operating within the geographic

boundaries of the First District are

already in compliance with these

requirements.

(1) Positive Control for Tank Barges:

Data from the First District and U.S.

Army Corps of Engineers indicated that

there are 21,640 transits occurring

within the District each year. Of these

transits, we estimate 1.95%, or 421,

involve a single-hull, petroleum-laden

tank barge being towed by a tug without

twin engines or twin screws, and thus,

this rule would require an escort or

assist tug. The cost of an escort or assist

tug is $300 an hour. It is assumed this

escort or assist tug would, on average,

spend 20 hours in round trip service on

each transit. The cost of the tug for a

single transit would therefore be $6,000.

Over the period of analysis, the present

value total cost of the escort or assist tug

escorts would be $21,608,076 (1998

dollars).

Another cost of the tug-escort

requirement is the cost to familiarize the

crew of the escort tug if they are not

familiar with the anchor and breakaway

gear of the barge they will escort. We

estimate this training would be

necessary for 60% of the transits and the

training would take an average of one

hour. Over the period of analysis, the

present value total cost of training

would be $215,911.

This requirement also may cause

some businesses to incur other costs.

First, the resale prices of the existing

single-screw tugs in the First Coast

Guard District may be slightly lower for

at least some period due to this

rulemaking. We estimate the present

value total cost from lost resale value

would be $150,000. Second, in the short

run, while impacted companies are

realigning their assets in order to be in

compliance with the tug-escort

requirement, there may be some lost

profit opportunities for barges. We

estimate the present value total cost in

terms of lost profit would be $50,000.

With permanent waivers, we expect the

impact of lost profit or lost resale value

may be reduced.

The present value total cost of the

positive-control requirement would be

$22,023,987 ($21,608,076 + $215,911 +

$150,000 + $50,000 = $22,023,987).

(2) Enhanced Communications: This

rule would require the person(s) on

watch on a towing vessel to make

approximately eight securite ́ calls

during the average transit in the First

District. The cost of this requirement to

the operator would be the time added to

the crews’ watch duties per transit and/

or the diminished productivity per

transit as a result of this requirement.

Each securite ́ call would take about

0.00833 hours (or 0.5 minutes) per

transit. This time represents the number

of hours (or minutes) that a

crewmember would give up doing other

activities during a transit. We assume

that the master makes half of the

securite ́ calls and the mate makes the

other half. Based on a rate of $350 per

12-hour day, we estimate the average

hourly wage for a master of a towing

vessel would be $29.17. Based on a rate

of $250 per 12-hour day, we estimate

the average hourly rate for a mate would

be $20.83. As each person makes 4 calls

per transit, the total labor time and total

labor cost per transit would be 0.0666

hours/transit and $1.67/transit,

respectively (8 calls/transit × 0.00833

hours/call = 0.0666 hours/transit and

[($29.17/hour × 0.033 hours/transit) +

($20.83/hour × 0.033 hours/transit) =

$1.67/transit]).

With 11,902 transits of petroleumladen tank barges (55% of 21,640 total

transits) within the First Coast Guard

District each year, the total annual time

burden of this requirement would be

792.67 hours, and the potential

opportunity cost would be $19,837 per

year ($1.6667/transit × 11,902 transits/

year = $19,837/year). Over the period of

analysis, the present value total cost of

this requirement would be $187,393 in

1998 dollars.

Given the existing practices that occur

during typical watch duties, we expect

the time necessary to make each call

would not increase the time spent

performing watch duties nor decrease

productivity of either crewmember on

watch. Without an increase in labor

time devoted to watch duties or

decrease in productivity, the financial

cost of the enhanced-communications

requirement would be $0.

(3) Voyage Planning: Currently we

estimate 21,640 transits of tank barges in

the First Coast Guard District each year.

The Coast Guard estimates that 90% (or

19,476) of these transits already are in

compliance with this proposed

requirement. Thus, 10% or 2,164

transits currently lack a voyage plan.

Further data from the First Coast Guard

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 35837

District indicates that 55% of the annual

transits involve petroleum-laden tank

barges. Therefore, we estimate that 55%

or 1,190 of the 2,164 petroleum-laden

tank barge transits currently lack a

voyage plan.

For each transit, as a representative of

the owner or operator, the master of the

towing vessel spends approximately 0.5

hours (or 30 minutes) preparing a

voyage plan. The average wage rate for

a towing vessel master is estimated to be

$29.17 per hour. The annual cost of

voyage planning would be $17,357

($29.17/hour × 0.5 hours/transit × 1,190

transits/year = $17,357/year). Over the

period of analysis, the present value

total cost of the voyage-planning

requirement would be $163,965 (in 1998

dollars).

(4) Restricted Navigation Areas: This

proposed requirement would establish

two restricted navigation areas that

would bar the traffic of towing vessels

with petroleum-laden tank barges.

These two areas are Fishers Island

Sound and the eastern portion of Cape

Cod Bay. Historically and currently

there has been no traffic of towing

vessels with petroleum-laden tank

barges operating within either of these

two areas. Thus, the cost of the

restricted navigation requirement would

be $0.

Summary

The present value total cost of this

rule would be $22,187,952 ($22,023,987

for positive control of barges + $0 for

enhanced communications + $163,965

for voyage planning + $0 for restricted

navigation areas = $22,187,952). In

terms of cost-effectiveness, this rule

would prevent 1,368.65 barrels of

pollution at a cost of $16,212 per barrel.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guard

must consider whether this rule will

have a significant economic impact on

a substantial number of small entities.

‘‘Small entities’’ include 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 rule would require the following:

(1) positive control measures for tank

barges, which require an escort or assist

tug during all transits involving towing

vessels not equipped with twin-screw/

twin-engine propulsion, and that are

engaged in towing petroleum-laden

single-hull tank barges in the First Coast

Guard District;

(2) operators of vessels towing

petroleum-laden tank barges initiate and

broadcast securite calls on radio

identifying their position at specified

locations during a transit in the First

District;

(3) a voyage plan be prepared prior to

a petroleum-laden tank barge voyage

within the First District; and

(4) two restricted navigation areas

within the First District that would bar

traffic of towing vessels with petroleumladen tank barges.

The maximum estimated cost of this

regulation would be $22,187,952 with

the majority of the cost (or 99%) being

the cost of the positive-control

requirement. The voyage-planning

requirement would have an estimated

cost of $163,965, while the enhancedcommunications and restrictednavigation-areas requirements would be

expected to have zero financial cost.

We estimate there are currently

11,902 petroleum-laden tank barge

transits within the First District per

year. We estimate that approximately

95% of the towing vessels that tow

petroleum-laden tank barges in the First

District are twin-screw, which do not

require positive control measures. Also

exempted from the positive-control

requirement would be all double-hull

tank barges that currently make up 29%

of the tank barge fleet. Consequently, we

estimate that 421 transits would be

impacted by the positive-control

requirement.

The Small Business Administration,

in 13 CFR 121, defines small businesses

by either the number of employees or by

the amount of a company’s receipts in

dollars. For examples, a business in the

towing-&-tugboat-services industry that

has annual revenue no greater than $5

million is a small entity. However, a

business in the water-transportation-offreight industry that has no more than

500 employees would be a small entity.

The Coast Guard does not collect

revenue nor number-of-employee

information from the businesses it

regulates; however, information can be

obtained from sources such as Dun &

Bradstreet or the U.S. Census.

According to Dun & Bradstreet

Marketplace 1999, the percentage of

companies nationally with annual

revenue equal to or less than $5 million

in the towing-&-tugboat-services

industry (SIC Code 4492) is about 86%.

Regionally, for companies that are

located in one of the states within the

boundaries of the First District which

are in SIC Code 4492, approximately

90% would be considered a small

entity. For water transportation of

freight, n.e.c. (SIC Code 4449), the

percentage of companies nationally with

a maximum of 500 employees is

approximately 95%, while for

companies located in one of the states

within the boundaries of the First Coast

Guard District that percentage is

approximately 95% as well.

The Coast Guard’s Marine Safety

Management System (MSMS) database

identifies 34 different companies that

own tank barges certificated under

subchapter O or D within the

boundaries of the First District. The

MSMS database also identifies 124

different companies located in one of

the states within the boundaries of the

First District that own towing vessels.

These towing vessels are not owned

strictly by companies that are engaged

in towing & tugboat services or water

transportation of freight. Other owners

of towing vessels include construction

companies and governments.

It is the businesses who hire the

towing vessels and tank barges for

transporting their goods that directly

incur the costs of this rulemaking by

having to pay for the escorts or assist

tugs. However, some towing vessels and

barge owners, the majority of which are

small entities, may be affected by the

positive-control requirement if they can

no longer provide tug service at a

competitive price due to the

requirement that they employ an escort

or assist tug.

On March 15, 1999, an Interim Rule

allowed the local COTP to authorize

temporary exemptions to the positivecontrol requirement established in the

December 30, 1998, Final Rule. Since

inserting this authority into the rule,

thirty-two temporary exemptions have

been granted with no pollution

incidents. These exemptions expire June

30, 2000. Comments from industry have

requested that the Coast Guard establish

procedures that would transform the

temporary exemption into a permanent

exemption. In an effort to reduce the

impact of the positive-control

requirement, this Final Rule allows the

COTP to authorize exemptions to the

positive-control requirement, and

removes the temporary nature of the

exemptions that were granted in the

Interim Rule. Accordingly, the Coast

Guard certifies under 5 U.S.C. 605(b)

that this final rule will not have a

significant economic impact on a

substantial number of small entities.

Assistance for Small Entities

In accordance with section 213(a) of

the Small Business Regulatory

Enforcement Fairness Act of 1996 (Pub.

L. 104–121), the Coast Guard offered to

assist small entities in understanding

the rule so that they can better evaluate

its effects on them and participate in the

rulemaking. Commander (m), First Coast

Guard District, provided explanatory

35838 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

information to a number of individuals

by telephone.

The Small Business and Agriculture

Regulatory Enforcement Ombudsman

and 10 Regional Fairness Boards were

established to receive comments from

small businesses about enforcement by

Federal agencies. The Ombudsman will

annually evaluate enforcement and rate

each agency’s responsiveness to small

business. If you wish to comment on

enforcement by the Coast Guard, call 1–

888–REG–FAIR (1–888–734–3247).

Collection of Information

The Final Rule calls for no collection

of information under the Paperwork

Reduction Act of 1995 [44 U.S.C. 3501

et seq.].

Impact on Federalism

This rule would revise the rules at 33

CFR 165.100(d)(1)(iii) that address

navigational safety, and voyage

planning for towing vessels. We have

analyzed this rule in accordance with

the principles and criteria contained in

Executive Order 13132. It is well settled

that States are preempted from

establishing any requirements for tank

vessels and the vessels that tow them in

the categories of design, construction,

alteration, repair, maintenance,

operation, equipping, personnel

qualification, and manning. See the

decision of the Supreme Court in the

consolidated cases of United States v.

Locke and Intertanko v. Locke lll

U.S. lll, 2000 U.S. LEXIS 1895

(March 6, 2000). Thus, this entire rule

falls within preempted categories.

Because States may not promulgate

rules the categories set out, preemption

is not an issue under that Order.

Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA) [Pub. L.

104–4, 109 Stat. 48] requires Federal

agencies to assess the effects of certain

regulatory actions on State, local, and

tribal governments, and the private

sector. UMRA requires a written

statement of economic and regulatory

alternatives for rules that contain

Federal mandates. A ‘‘Federal mandate’’

is a new or additional enforceable duty

imposed on any State, local, or tribal

government, or the private sector. If any

Federal mandate causes those entities to

spend, in the aggregate, $100 million or

more in any one year, the UMRA

analysis is required. This Final Rule

would not impose Federal mandates on

any State, local, or tribal governments,

or the private sector.

Environment

The Coast Guard considered the

environmental impact of this rule and

concluded that under figure 2–1,

paragraphs 34(g) and (i) of Commandant

Instruction M16475.1C, this rule is

categorically excluded from further

environmental documentation. A

‘‘Determination of Categorical

Exclusion’’ is available in the docket for

inspection or copying where indicated

under ADDRESSES.

List of Subjects in 33 CFR Part 165

Marine safety, Navigation (water),

Reporting and recordkeeping

requirements, Waterways.

For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR part 165 as follows:

PART 165 [AMENDED]

1. The citation of authority for Part

165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191;

33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49

CFR 1.46.

2. Revise § 165.100(d)(1)(iii) to read as

follows:

§ 165.100 Regulated Navigation Area:

Navigable Waters within the First Coast

Guard District

* * * * *

(d) * * *

(1) * * *

(iii) The cognizant Captain of the Port

(COTP), upon written application, may

authorize an exemption from the

requirements of paragraph (d)(1)(i) of

this section for—

(A) Any tank barge with a capacity of

less than 25,000 barrels, operating in an

area with limited depth or width such

as a creek or small river; or

(B) Any tank barge operating on any

waters within the COTP Zone, if the

operator demonstrates to the satisfaction

of the COTP that the barge employs an

equivalent level of safety to that

provided by the positive control

provisions of this section. Each request

for an exemption under this paragraph

must be submitted in writing to the

cognizant COTP no later than 7 days

before the intended transit.

* * * * *

Dated: May 26, 2000.

Robert F. Duncan,

Captain, U.S. Coast Guard, Acting

Commander, First Coast Guard District.

[FR Doc. 00–14110 Filed 6–5–00; 8:45 am]

BILLING CODE 4910–15–U

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD05–00–018]

RIN 2115–AA97

Safety Zone; Ocean View Beach Park,

Chesapeake Bay, VA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is

establishing a temporary safety zone for

the Shore Thing Independence Day

Celebration fireworks display to be held

at the Ocean View Beach Park,

Chesapeake Bay, Virginia. This action

will restrict vessel traffic on the

Chesapeake Bay within a 500-foot

radius of the fireworks display, which

will be fired from shore. The safety zone

is necessary to protect mariners and

spectators from the hazards associated

with the fireworks display.

DATES: This rule is effective from 9 p.m.

until 10 p.m. on July 1, 2000.

ADDRESSES: You may mail comments

and related material to USCG Marine

Safety Office Hampton Roads, 200

Granby Street, Norfolk, VA, or deliver

them to the same address between 8

a.m. and 4 p.m., Monday through

Friday, except Federal holidays. USCG

Marine Safety Office Hampton Roads

maintains the public docket for this

rulemaking. Comments and materials

received from the public, as well as

documents indicated in this preamble as

being available in the docket, will

become part of this docket and will be

available for inspection or copying at

the above address between 8 a.m. and 4

p.m., Monday through Friday, except

Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Chief Petty Officer Roddy Corr, project

officer, USCG Marine Safety Office

Hampton Roads, telephone number

(757) 441–3290.

SUPPLEMENTARY INFORMATION:

Request for Comments

Although this rule is being published

as a temporary final rule without prior

notice, an opportunity for public

comment is nevertheless desirable to

ensure the rule is both reasonable and

workable. Accordingly, we encourage

you to submit comments and related

material. If you do so, please include

your name and address, identify the

docket number for the rulemaking

(CGD05–00–018), indicate the specific

section of this document to which each

comment applies, and give the reason