E8-7935. Escort Vessels in Certain U.S. Waters

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of withdrawal and request for comments.

SUMMARY:

The Coast Guard announces its intent to withdraw a 1993 advance notice of proposed rulemaking (ANPRM). Because of the length of time since the ANPRM was published, the Coast Guard requests additional public comment before proceeding with withdrawal. The rulemaking deals with supplementing a statutory requirement that single-hulled oil tankers in Prince William Sound, Alaska, and Puget Sound, Washington, be accompanied through those waters by escort vessels. It would extend those requirements to other U.S. waters, and possibly to vessels other than single-hulled oil tankers. Subject to reconsideration in light of public comment, the Coast Guard believes that this rulemaking is inappropriate and inefficient and therefore not the best way to consider such extensions.

DATES:

Comments and related material must reach the Docket Management Facility on or before July 14, 2008.

ADDRESSES:

You may submit comments identified by Coast Guard docket number USCG-2006-23556 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:

(1) Online: http://www.regulations.gov.

(2) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(3) Hand delivery: Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(4) Fax: [phone].

FOR FURTHER INFORMATION CONTACT:

If you have questions on this notice, contact Lieutenant Commander Vivianne Louie, U.S. Coast Guard, telephone [phone] or e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We request public comment on our intent to withdraw this rulemaking. In particular, we are interested in comments that tell us:

• Why we should not withdraw this rulemaking;
• How to go about this rulemaking, if it continues; and
• What criteria should govern the extension of escort vessel requirements to waters other than Prince William Sound and Puget Sound, or to vessels other than single-hulled oil tankers.

All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

Submitting comments: If you submit a comment, please identify the docket number for this notice (USCG-2006-23556) and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES; but please submit your comments by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments received during the comment period.

Viewing comments and documents: To view comments, go to http://www.regulations.gov at any time. Enter the docket number for this rulemaking (USCG-2006-23556) in the Search box, and click “Go >>.” You may also visit the Docket Management Facility in room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act: Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

Changes in Docket Numbering

This notice is the first document published since 1994 for a rulemaking that began in 1993, under Coast Guard docket number CGD 91-202a. Until now, public comment letters and other material pertinent to CGD 91-202a were only available for public inspection at Coast Guard Headquarters in Washington, DC. Beginning in 1998, the Coast Guard adopted a new docket numbering system in order to make its Headquarters rulemaking documents available to the public on the Internet. The format of the new docketing system is incompatible with the “CGD” system that we used in 1993. Therefore, in order to complete the CGD 91-202a rulemaking in a way that makes our actions visible to the public on the http://www.regulations.gov Web site, we opened an Internet-compatible docket number, USCG-2006-23556. The public comments we received on CGD 91-202a will be placed in the http://www.regulations.gov docket for USCG-2006-23556.

Background and Purpose

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 identify any navigable waters of the United States on which single-hulled oil tankers over 5,000 gross tons should require escort vessels. OPA 90 specified that escort vessels must be provided in Prince William Sound, Alaska, and in Puget Sound, Washington. Requirements for escort vessels in Prince William Sound and Puget Sound were set in a rulemaking that was originally docketed as CGD 91-202, and completed in 2005 under docket number USCG-2003-14734; the final rule appears at 70 FR 55728 (Sep. 23, 2005), and the regulations appear in 33 CFR part 168. The CGD 91-202 rulemaking originally sought to deal with escort vessel requirements in waters other than Prince William Sound and Puget Sound, but in 1993 the Coast Guard opened a new docket, CGD 91-202a, to address those other waters. Public meetings held in 1993, in Anchorage and Valdez, Alaska, and in Seattle, Washington, addressed both rulemakings.

In an advance notice of proposed rulemaking (ANPRM; 58 FR 25766, April 27, 1993) issued under docket number CGD 91-202a, the Coast Guard asked for public comment on three general questions: (1) Whether escort vessel requirements should apply to any navigable waters of the United States other than Prince William Sound and Puget Sound; (2) whether escort vessel requirements should apply to vessels other than single-hulled oil tankers; and (3) what an escort vessel should be expected to do. In its discussion, the ANPRM listed numerous subsidiary questions to put the general questions in perspective.

In 1994, the Coast Guard published a notice of meeting and request for comments (59 FR 65741, Dec. 21, 1994) to follow up on the ANPRM. The 1994 notice said that numerous comments had been received in response to the ANPRM, but that they lacked consensus and tended to be based on subjective arguments without supporting data. The notice acknowledged that the 1993 ANPRM had been issued before publication of the Prince William Sound and Puget Sound regulations in 33 CFR part 168, and included no special guidance on how waterways should be evaluated or nominated for escort vessel requirements. Accordingly, the 1994 notice sought to engage the public's assistance in developing criteria for evaluating the navigational risks of a waterway, and how to determine if escorting is an effective strategy to offset those risks. Noting that OPA 90 called for oil tankers to have two escort vessels and that, in some circumstances, this could be undesirable, the notice stated that any escort vessel requirements for waters other than Prince William Sound or Puget Sound would rely on PWSA in addition to OPA 90.

The 1994 notice proposed 13 criteria, derived from the PWSA, for use in determining when escort vessels are necessary, and illustrated the scope of each criterion through a set of follow-on questions. It announced a public meeting in Washington, DC on January 23, 1995, and asked for comment on these and other criteria that could be used in evaluating waterways with respect to escorting.

Discussion of Comments

In response to the 1993 ANPRM and 1994 notice, the Coast Guard received nearly 700 written comments as well as the oral testimony of hundreds of attendees at four public meetings. We thank all these commenters for their interest. For convenience, we discuss the comments under four subheadings:

Escort vessel criteria. We received many thoughtful comments analyzing the 13 criteria we proposed and offering background information or constructive criticism. Most of these commenters stressed the importance of understanding local waters and the specific vessels and cargoes transiting those waters. A number of commenters suggested development of a nationwide risk assessment program, in order to allocate escort vessel or other safety resources in an objective way that prioritizes where those resources can do the most good. A nationwide risk assessment program may be a good concept but it would be very expensive and time-consuming to implement. The reliability of such an assessment would be hard to validate, making its usefulness questionable.

We agree with many commenters that local conditions are very important in determining what safety measures should be taken. If the need for specific resources in specific waters can be shown, it is better to focus directly on addressing that need, than on the more conceptual exercise of ranking that need relative to the needs of other areas. For many years the Coast Guard has sponsored Ports and Waterway Safety Assessments (PAWSAs) that bring public and private stakeholders together to identify major safety hazards in specific local waterways, evaluate potential mitigation measures including escorting, and set the stage for implementing selected measures. You can get more information about PAWSAs at http://www.navcen.uscg.gov/​mwv/​projects/​pawsa/​PAWSA_​home.htm, or read reports on any of the 38 PAWSAs conducted to date, at http://www.navcen.uscg.gov/​mwv/​projects/​pawsa/​PAWSA_​FinalReports.htm. We believe that the PAWSA program provides a more comprehensive alternative for evaluating local risks and conditions. Therefore, we think it is neither appropriate nor beneficial to continue developing nationwide Coast Guard escort vessel criteria within the context of this 1993 rulemaking.

Escort vessel effectiveness. Most commenters who discussed the effectiveness of escort vessels agreed that different “escorts” have different capabilities, and that under certain conditions it is unrealistic to think that escorts will provide added safety. While some commenters recommended that we specify the capabilities desired in an escort vessel, many others pointed out that escort vessels should be considered as just one of many tools available for enhancing the safety of specific waters, along with aids to navigation, local regulated navigation areas, vessel traffic services, response vessels, or other means. We agree with these commenters that any consideration of escort vessels should begin by assessing specific local conditions and analyzing other possible safety measures. As previously described, the Coast Guard's PAWSA program can provide this assessment and analysis. Therefore, we think it is neither appropriate nor beneficial to continue a nationwide Coast Guard assessment of escort vessel effectiveness within the context of this 1993 rulemaking.

Specific waters other than Cook Inlet; vessels other than single-hulled oil tankers. Numerous commenters made recommendations for or against requiring escort vessels in specific waters other than Prince William Sound or Puget Sound. A few commenters also recommended extending escort vessel requirements to vessels other than single-hulled oil tankers. As noted above, we have concluded that any such requirements should be considered by the Coast Guard at a local level, in light of local conditions and the possibility of increased effectiveness of alternative safety measures. The Coast Guard's PAWSA program can provide that consideration. Therefore, we think it is neither appropriate nor beneficial to continue the consideration of escort vessels for use in specific waters or with specific types of vessel within the nationwide context of this 1993 rulemaking.

Cook Inlet. Between 1993 and 1995, hundreds of commenters focused on whether or not escort vessels should be required in Cook Inlet, Alaska. Those opposed to requiring escort vessels in Cook Inlet tended to cite favorable local conditions, the availability of alternative safety measures, and adverse economic impact as their reasons. Those in favor of requiring escort vessels in Cook Inlet tended to cite unfavorable local conditions, the superiority of escort vessels to other possible safety measures, and the economic and environmental risks posed by tanker traffic as their reasons. The Coast Guard has carefully considered the 1993-1995 comments, but finds that they are inconclusive on the merits of extending escort vessel requirements to Cook Inlet. Further study, in light of current conditions, would be needed before the Coast Guard would propose such an extension.

In 2000, a Ports and Waterways Safety Assessment was conducted for Cook Inlet. The PAWSA report is available at http://www.navcen.uscg.gov/​mwv/​projects/​pawsa/​PAWSA_​FinalReports.htm. It noted a “significant drop off in oil spills” over the preceding 5 years, and listed 9 “existing mitigations” in place to control the risk from petroleum cargoes. Although escort vessels for oil tankers were considered, they were not among the new mitigation measures adopted by the PAWSA final report.

The Coast Guard understands that concerns over navigational safety in Cook Inlet persist. We take these concerns seriously, because they relate directly to two of the Coast Guard's strategic goals: Maritime safety and maritime stewardship.

The Alaska-based Coast Guard Seventeenth District is planning to conduct additional studies of the local waterways in an effort to more fully define the need for risk reduction measures or other mitigating factors in areas such as Cook Inlet, Prince William Sound and the Aleutian Islands. Any findings from these risk assessments would be addressed in local Coast Guard policies or rulemakings. Therefore, we think it is neither appropriate nor beneficial to continue considering Cook Inlet's navigational safety within the nationwide context of this 1993 rulemaking.

Conclusion

The Coast Guard has tentatively decided that nationwide Coast Guard action to extend statutory escort vessel requirements is not advisable, and that escort vessels may be required in other waters or for vessels other than single-hulled oil tankers only after specific Coast Guard consideration of local conditions and possible alternative safety measures. We request public comment on this tentative decision. If, after receiving public comment, we affirm this tentative decision, we will withdraw the rulemaking, using another Federal Register notice to do so.

Please note that, regardless of our final decision to withdraw or continue this rulemaking, you may request Coast Guard regulatory action for specific U.S. waters, by using the Coast Guard rulemaking petition process detailed in 33 CFR 1.05-20. Send your request to the Marine Safety and Security Council (CG-0943), United States Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001.

Dated: April 4, 2008.

Brian M. Salerno,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine, Safety, Security and Stewardship.