Ports and waterways safety: benefit analysis,

[Federal Register: November 24, 1998 (Volume 63, Number 226)]

[Proposed Rules]

[Page 64937-64941]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr24no98-39]

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Chapter I

[USCG-1998-4501]

RIN 2115-AF68

Improvements to Marine Safety in Puget Sound-Area Waters

AGENCY: Coast Guard, DOT.

ACTION: Advance notice of proposed rulemaking.

SUMMARY: The Coast Guard seeks public comment on potential rules that would improve marine safety in Puget Sound-Area waters including Puget Sound, the Strait of Juan de Fuca, passages around and through the San Juan Islands, and the Olympic Coast National Marine Sanctuary. Based on a recent determination by the Secretary of Transportation regarding the status of marine safety in the Puget Sound-area, the Coast Guard will soon begin a comprehensive cost-benefit analysis to study the feasibility of implementing new safety measures, including extended tug escort requirements for certain vessels and a dedicated pre-positioned rescue vessel. Public input will help focus the cost-benefit analysis and help us develop any future proposed rules that may be necessary.

DATES: Comments must reach the Docket Management Facility on or before May 24, 1999. Please submit comments relating to the cost-benefit analysis as soon as possible, preferably by December 24, 1998.

ADDRESSES: You may mail comments to the Docket Management Facility

[USCG-1998-4501] , U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001, or deliver them to room PL-401, located on the Plaza level of the Nassif Building at the same address, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

The Docket Management Facility maintains the public docket for this rulemaking. Comments, and documents as indicated in this preamble, will become part of this docket and will be available for inspection or copying at room PL-401, located on the Plaza level of the Nassif Building at the same address, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also access this docket on the Internet at http://dms.dot.gov.

A copy of the International Private Sector Tug-of-Opportunity System (ITOS) Report to Congress is available in the public docket at the above addresses or on the Internet at http://www.uscg.mil/hq/g-m/ nmc/genpub.htm. You may also obtain a copy by calling the project manager at the Coast Guard number in FOR FURTHER INFORMATION CONTACT.

A copy of the Puget Sound Additional Hazards Study, formally titled ``Scoping Risk Assessment: Protection Against Oil Spills in the Marine Waters of Northwest Washington State,'' is available in the public docket at the above addresses and from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, telephone 800-553-6847, fax 703-321-8547. The report may be ordered as document PB97-205488 and the technical appendices to the report as document PB97-205470.

FOR FURTHER INFORMATION CONTACT: For information concerning this document, call Commander T.M. Close, Human Element and Ship Design Division, U.S. Coast Guard, telephone 202-267-2997. For questions on viewing, or submitting material to, the docket, call Dorothy Walker, Chief, Documents, Department of Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages you to participate in this potential rulemaking by submitting written data, views, or arguments. If you submit comments, you should include your name and address, identify this document [USCG-1998-4501] and the specific section or question in this document to which your comments apply, and give the reason for each comment. Please submit all comments and attachments in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for copying and electronic filing. If you want acknowledgment of receipt of your comments, you should enclose a stamped, self-addressed postcard or envelope.

The Coast Guard will consider all comments received during the comment period.

No public meeting is planned. You may request a public meeting by submitting a comment requesting one to the address under ADDRESSES. The request should include the reasons why a meeting would be beneficial and recommended locations for the meeting. If it is determined that a meeting should be held, we will announce the time and place in a later notice in the Federal Register.

Background and Purpose

During the last two and a half years, the Coast Guard and the Office of the Secretary of Transportation (OST), in cooperation with the State of Washington, the maritime industry, and other local stakeholders, have assessed marine safety in Puget Sound-area waters. The goal of all involved parties is to ensure a high degree of safety and environmental protection for the area's waterways.

On April 26, 1996, the White House issued the ``Department of Transportation Action Plan to Address Vessel and Environmental Safety on Puget Sound-Area Waters.'' This Action Plan consists of three elements. The first element is to establish criteria for and facilitate the development of a private-sector system to provide timely emergency response to vessels in distress in the Strait of Juan de Fuca and near the Olympic Coast National Marine Sanctuary. The second element is to determine the adequacy of all vessel safety and environmental protection

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measures in Puget Sound-area waters. The third and final element is to determine whether any hazard scenarios warrant consideration of additional casualty prevention or response measures.

International Tug of Opportunity System

Section 401 of the Alaska Power Administration Asset Sale and Termination Act (November, 1995) directed the Coast Guard to submit a plan to Congress outlining the most cost-effective means of implementing an international, private-sector, tug-of-opportunity system (ITOS). The Coast Guard, after working in cooperation with a cross section of the maritime industry, submitted reports to Congress in January and December of 1997.

A voluntary ITOS is now in effect in the Puget Sound area, with over 80 tugs participating in the system. The ITOS provides a means to identify tugs that may be in the vicinity of a vessel in distress. Participating tugs are equipped with Automatic Identification System (AIS) transponders that automatically report their positions to the Marine Exchange of Puget Sound.

Puget Sound Additional Hazards Study

In 1997, the Department of Transportation conducted a broad assessment of the probabilities and consequences of marine accidents in Puget Sound-area waters, including Puget Sound, the Strait of Juan de Fuca, passages around and through the San Juan Islands, and the offshore waters of the Olympic Coast National Marine Sanctuary. This assessment, formally titled ``Scoping Risk Assessment: Protection Against Oil Spills in the Marine Waters of Northwest Washington State'' but commonly called the ``Puget Sound Additional Hazards Study,'' was conducted by the Volpe National Transportation Systems Center with significant stakeholder participation. A key element of this Study was a panel of recognized safety and environmental protection experts who provided information, opinions, and recommendations regarding the current safety system. The Study was completed in July 1997. Since that time, the Coast Guard and the Office of the Secretary of Transportation have continued outreach efforts and solicited input from State officials and the public on how to proceed based on the recommendations of the Additional Hazards Study.

Secretary's Determination

The Secretary of Transportation has determined that while the many existing elements of the region's marine transportation system comprise a system that is safe, there is always room for improvement. The Secretary's Determination and the Department's Announcement regarding additional risk mitigation measures appear in the ``Notices'' section of this issue of the Federal Register. The Secretary found that consideration of additional safety measures is warranted to address the risks of collisions, powered groundings, and drift groundings.

Announcement on Additional Measures

Accompanying the Secretary's Determination, the Department released an announcement regarding additional risk mitigation measures. Some additional measures can be implemented immediately, while others require more thorough evaluation before any future implementation.

A promising measure to reduce the risk of collisions and powered groundings is improved waterway management, such as modifications to the Traffic Separation Schemes (TSS) at the western approach to the Strait of Juan de Fuca. The Thirteenth Coast Guard District is starting a Port Access Study in consultation with the Canadian Government, as well as State and local stakeholders. This study will provide recommendations for TSS modifications.

The Department also announced ongoing enhancements to the Coast Guard's existing Port State Control Program to increase attention to English language proficiency and increase information-sharing with Canadian authorities. The Port State Control Program keeps substandard foreign-flag vessels out of U.S. waters. Further, the Department announced several other human element measures that help reduce risk by improving crew effectiveness and performance. These measures address fatigue prevention and improved communications. The Captain of the Port of Puget Sound is implementing these measures with Canadian and Washington State counterparts through the enforcement of recent International treaties and through ongoing Coast Guard programs.

The Announcement also described efforts to fully evaluate potential additional measures to prevent a drift grounding in the event of a loss of steering or propulsion. While ITOS provides risk reduction for drift groundings, there are concerns that a sufficient number of tugs may not be present in the western Strait of Juan de Fuca and in offshore areas in the course of routine commercial service.

To address this concern, the Department announced an effort to study the effectiveness of ITOS. In addition, the Coast Guard and the State of Washington will fund and manage an analysis of the costs and additional risk reduction benefits that would be afforded by extended tug escorts for commercial vessels or by a pre-positioned rescue vessel. These analyses will begin immediately and should be completed by the end of next summer.

Regulatory History

Section 4116(c) of the Oil Pollution Act of 1990 (OPA 90) requires two tug escorts for single-hull tankers over 5,000 gross tons transporting oil in Prince William Sound, Alaska, and Rosario Strait and Puget Sound, Washington (including those portions of the Strait of Juan de Fuca east of Port Angeles, Haro Strait, and the Strait of Georgia subject to United States jurisdiction). The single-hull tankers to which that requirement applies will be incrementally phased out. By 2015, all single-hull tankers entering U.S. waters will be replaced by double hull tankers. The Coast Guard published a final rule (CGD 91- 202) on August 19, 1994, implementing the OPA 90 escort requirements. Those regulations are codified in 33 CFR part 168. Costs and benefits were not a central issue for that rulemaking because the escort requirements were specifically required by statute. In addition, industry was incurring significant escort-related costs under existing state escort regulations in both Alaska and Washington. Since 1975, the State of Washington has required escorts for certain loaded single and double hull tankers transiting east of Port Angeles.

OPA 90 also gives the Secretary authority to extend the two-tug escort requirement to other U.S. waters, as appropriate. In an Advance Notice of Proposed Rulemaking (ANPRM) published on April 27, 1993 (CGD 91-202a), the Coast Guard sought public comment on: (1) What U.S. waters, other than in the Puget Sound area east of Port Angeles, should have an escort vessel requirement, (2) what vessels should be required to comply with an escort rule, and (3) what the escort vessels should be expected to do. In the ANPRM, the Coast Guard suggested that the Ports and Waterways Safety Act (PWSA) might provide authority for more flexible escort requirements than OPA 90, such as the use of single, high-performance escort vessels (instead of the two-tug escort required under OPA 90). Several public meetings were held on the ANPRM. In the Notice of Public Meeting and Request for Comments

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published on December 21, 1994, the Coast Guard expanded its discussion of its PWSA authority.

Hundreds of comments were received in response to both the 1993 ANPRM and the 1994 Request for Comments and during the several public meetings. Several comments supported extending tug-escort requirements for Puget Sound-area waters beyond the OPA 90-mandated area; these comments are included in this new docket. In general, there was no consensus among the comments. Most were subjective and without supporting data. For example, arguments against escorts frequently cited substantial adverse economic impact but did not include cost analyses. Similarly, recommendations for escorts frequently cited environmental sensitivity to oil spills but did not include analyses of the navigational hazards to vessels. Therefore, it was difficult to proceed with a rulemaking without the needed cost-benefit information.

Extending escort requirements beyond the OPA 90 mandated areas is discretionary and subject to much greater economic scrutiny, particularly in light of Congressional and Administration concerns for the cost-effectiveness of Federal regulations (Executive Order 12866, for example). Further complicating the issue was the broad geographic application of the previous ANPRM which could include any waters of the U.S. For these reasons, the Coast Guard elected to defer work on that rulemaking project (CGD 91-202a) until ITOS and the Additional Hazards Study are addressed and more cost-benefit information is gathered.

Under authority of the PWSA (33 U.S.C. 1223-1224), the Coast Guard has initiated this new potential rulemaking to address additional safety measures, including extended tug escorts and a dedicated pre- positioned rescue vessel, focusing specifically on Puget Sound-area waters.

Discussion of Measures for Further Evaluation

Extended Tug Escorts

In the upcoming cost-benefit analysis announced by the Department, the Coast Guard and the State of Washington will evaluate the potential of extending the current tug-escort requirement (applicable to single- hull tankers over 5,000 gross tons) west of the line connecting New Dungeness Light with Discovery Island light to include a wider range of commercial vessels transiting the entire Strait of Juan de Fuca.

The Additional Hazards Study raised several issues regarding extended tug escorts. Increasing the vessel escort area would benefit escorted vessels in the event of propulsion or steering loss by preventing some powered and drift groundings. An escort might also reduce the risk of collisions for the escorted vessel. In addition, extending tug-escort requirements could potentially increase the number of vessels available for ITOS, which is a concern for the area west of Port Angeles.

Extending tug escort requirements only for single-hull tankers could lead to the collapse of ITOS, as the voluntary tank-vessel participants would no longer have a reason to pay for a redundant safety system. Should ITOS collapse, the risk for non-tank vessels would potentially increase due to the loss of this safety system. Similarly, the risk of drift groundings for all vessels off the coast would increase. The potential increase in risk for non-tank vessels could be addressed by requiring escorts for all single-hull vessels carrying a significant amount of petroleum as cargo or as bunkers (ship fuel). Extending the escort requirements for single-hull tankers or requiring escorts for all single-hull vessels carrying a significant amount of petroleum would impose significant costs on those industries.

By extending the tug escort area, the time it would take for an escorted vessel to transit the Strait of Juan de Fuca would be lengthened (due to slower speeds while under escort), thus increasing its vulnerability. Further, the Additional Hazards Study classified the location near Port Angeles where tank vessels rendezvous with escort vessels as a significant risk. Shifting the rendezvous location to the entrance of the Strait of Juan de Fuca, closer to the Sanctuary and in less hospitable conditions, could increase the likelihood and consequences of spills.

Dedicated Pre-Positioned Rescue Vessel

The other measure to be addressed in the cost-benefit analysis is the concept of stationing a pre-positioned rescue vessel at the approaches to the Strait of Juan de Fuca. Such a vessel could help prevent drift groundings and could be outfitted to provide some initial salvage, spill response, and fire-fighting capabilities.

While a pre-positioned rescue vessel may be a valuable safety addition to Puget Sound-area waters, such a vessel would not significantly reduce the likelihood of collisions, powered groundings, or allisions. Its ability to reduce risk would be limited, because ITOS already addresses many of the same risks. Additionally, a requirement for such a vessel might require additional legislation. Finally, there are concerns regarding who would pay for such a vessel.

International Considerations

We must consider the international nature of the Puget Sound-area waterway when addressing potential new safety measures, such as extended tug escorts and a dedicated rescue vessel. While the Coast Guard has the authority to regulate all vessels within U.S. waters of the Strait, our enforcement authority does not extend to vessels in the outbound channel, which is predominately in Canadian waters. Any future extended tug escort requirement could not apply to Canadian waters without bilateral enactment.

Cost-benefit Analysis and Related Questions

As announced by the Department, the Coast Guard and the State of Washington will evaluate the degree of effectiveness of ITOS and jointly manage and fund a cost-benefit analysis of extended tug escorts and a dedicated rescue vessel. These analyses will assist the Coast Guard in developing a regulatory assessment for a future regulatory proposal, if deemed necessary. To help focus these analyses, the Coast Guard requests comments on the following questions, although comments on other issues addressed in this document are also welcome. In responding to a question, please explain your reasons for each answer, and follow the instructions under REQUEST FOR COMMENTS above.

1. Given the results of the Additional Hazards Study and existing safety measures currently in place, including existing Federal and state tug escort requirements for certain tank ships east of the New Dungeness-Discovery Island line; Vessel Traffic Services; Traffic Separation Schemes; the Coast Guard's Port State Control Program; and Coast Guard inspection of U.S. tank ships, cargo ships and passenger vessels, what improvements to marine safety in Puget Sound area-waters are most cost-effective?

2. Should tug escorts be required for all in-bound laden single- hull tank ships west of the line connecting New Dungeness Light with Discovery Island Light? If so, how far west should the escort begin? What costs would be associated with such an escort requirement? Should a bilateral agreement with Canada be pursued to require escorts for laden outbound

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   tankers? What costs would be associated with such a requirement?

3. Should tug escorts be required for all single-hull ships over a certain size? If so, what size would be appropriate? What costs would be associated with such an escort requirement? Are there criteria other than vessel size that should be considered (cargo carried, fuel capacity, vessel's flag, vessel's history of regulatory compliance, etc.)?

4. Is a single tug adequate as an escort? Why or why not? If so, what characteristics should a single escort tug have?

5. Should escorts be required throughout the year or only during certain seasons? How would a seasonal requirement affect costs?

6. Are there additional hazards created by establishing escort requirements? If so, what are they and what are the risks?

7. Should there be a dedicated rescue vessel pre-positioned in the Strait of Juan de Fuca? If so, where should it be located? Who should operate it? What costs are associated with such a vessel? Can it be in a Canadian port? Should such a vessel be in addition to or in place of extended escort requirements?

8. What characteristics should a dedicated rescue vessel have? Should it be a tug, a salvage vessel, an oil spill response vessel, or some other type of vessel? How would costs vary according to the type of vessel used?

9. Should a dedicated rescue vessel be pre-positioned throughout the year or only during certain seasons? How would a seasonal requirement affect costs?

10. Should the dedicated rescue vessel serve as an oil spill response vessel or a platform for oil spill mitigation equipment? If so, what type of and how much equipment should be on board? How much would this equipment cost?

11. Who should fund any vessel pre-positioned in the Strait of Juan de Fuca? How should the funds be collected?

12. Are there additional hazards created by establishing a dedicated rescue vessel in the Strait of Juan de Fuca? If so, what are they and what are the risks?

13. If tugs were hired specifically to be available to respond to potential ship emergencies in the Strait of Juan de Fuca when no other tugs happen to be in the region, would this arrangement adequately address risks, considering existing safety programs? What ships should such a requirement apply to? Who should pay for these tugs? What costs would be associated with such a requirement?

14. Since the Oil Pollution Act of 1990, what oil spills have occurred from shipboard sources in Puget Sound-area waters including the Strait of Juan de Fuca and approaches to the Strait? What controls would have helped to prevent these spills? What controls or countermeasures would have helped mitigate these spills once they occurred?

15. What types of oil spills would be prevented by escorting laden tankers through the Strait of Juan de Fuca and its approaches?

16. What types of oil spills would be prevented by pre-positioning a dedicated rescue vessel in the Strait of Juan de Fuca?

17. How do the consequences of an oil spill in Puget Sound-area waters compare with the consequences of an oil spill in other State of Washington waters? In other waters around the U.S.?

18. Are the response time estimates developed in the ITOS Report to Congress and ITOS Addendum Report accurate? If not, why not and what is a more accurate estimate?

    Preliminary Regulatory Assessment

    At this time, this rulemaking is not considered significant under section 3(f) of E.O. 12866; however, it is significant under the regulatory policies and procedures of the Department of Transportation

    [44 FR 11030 (February 26, 1979)] due to substantial public interest. The Coast Guard will prepare an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866 for any future rulemaking deemed necessary.

    The primary purpose of this advance notice is to solicit public comments to help the Coast Guard identify the costs and benefits of potential new safety measures to the extent that they exceed current statutory and regulatory requirements or current industry practices. We expect that public response to the questions and issues addressed in this document will help us prepare a regulatory assessment for any future rules that may be necessary. We seek your feedback on what costs you may incur should any of the proposed additional measures be required, as well as associated benefits.

    Small Entities

    Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the Coast Guard must consider whether any potential rulemaking would have significant economic impacts 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.

    Because we have not yet proposed specific requirements and because the number of affected small entities has not been identified, we cannot accurately estimate the potential impact on small entities at this time. The Coast Guard will address small entity issues as part of the planned cost-benefit analysis discussed in this document. The Coast Guard expects that comments received on this document will help it determine the number of potentially affected small entities, and weigh the impacts of various regulatory alternatives.

    Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-21], the Coast Guard wants to assist small entities to understand this document so they can better evaluate the potential effects of any future rulemaking on them and participate in the rulemaking process. If you believe that your small business, organization, or agency may be affected by this potential rulemaking, please explain how you could be affected, and tell us what flexibility or compliance alternatives the Coast Guard should consider to minimize the burden on you.

    If you have questions concerning this document, you may call the Coast Guard point of contact designated in FOR FURTHER INFORMATION CONTACT. We also maintain a small business regulatory assistance Web Page at http://www.uscg.mil/hq/g-m/regs/reghome.html which has current information on small entity issues and proposed Coast Guard regulations. To help small entities become more involved in this rulemaking, the Coast Guard will mail copies of this advance notice to Small Business Development Center (SBDC) State Offices in the Northwest for distribution to local SBDC offices and interested small businesses.

    Collection-of-Information

    Under the Paperwork Reduction Act [44 U.S.C. 3501 et seq.], the Office of Management and Budget (OMB) reviews each proposed rule that contains a collection-of-information requirement to determine whether the practical value of the information is worth the burden imposed by its collection. Collection-of-information requirements include reporting, record-keeping, notification, and other similar actions.

    The Coast Guard cannot yet estimate the paperwork burden associated with this potential rulemaking because it has not yet proposed any new requirements. If and when a specific regulatory

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    proposal is developed, the Coast Guard will prepare a request for OMB approval of any collection-of-information requirements.

    Federalism

    The Coast Guard has analyzed this advance notice under the principles and criteria contained in E.O. 12612. From the information available at this time, the Coast Guard cannot determine whether this potential rulemaking would have sufficient federalism implications to warrant the preparation of a Federalism Assessment. If and when a specific regulatory proposal is developed, the Coast Guard will address any federalism issues.

    Unfunded Mandates

    Under the Unfunded Mandates Reform Act [Pub. L. 104-4], the Coast Guard must consider whether this potential rulemaking would result in an annual expenditure by State, local, and tribal governments, or by the private sector, in the aggregate of $100 million (adjusted annually for inflation). The Act also requires (in Section 205) that the Coast Guard identify and consider a reasonable number of regulatory alternatives and, from those alternatives, select the least costly, most cost-effective, or least burdensome alternative that achieves the objective.

    The Coast Guard will address unfunded mandate issues as part of the cost-benefit analysis. Any information you can provide regarding unfunded mandate issues related to this proposal would be useful.

    Environment

    The Coast Guard has concluded that it is premature to make an assessment of environmental impact of any rules that might be adopted because no specific action is proposed at this time. The Coast Guard will conduct any required environmental assessment and appropriate documentation in accordance with Commandant Instruction M16475.1B before publication of any notice of proposed rulemaking. The Coast Guard invites comments addressing possible effects that this potential rulemaking may have on the environment or addressing possible inconsistencies with any Federal, State, or local law or administrative determinations relating to the environment.

    Dated: November 20, 1998. James M. Loy, Admiral, U.S. Coast Guard Commandant.

    [FR Doc. 98-31512Filed11-23-98; 8:45 am]

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