Vessel Traffic Service Updates, Including Establishment of Vessel Traffic Service Requirements for Port Arthur, Texas and Expansion of VTS Special Operating Area in Puget Sound

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is revising and updating the Vessel Traffic Service (VTS) regulations in 33 CFR Part 161. The revision makes participation in the VTS in Port Arthur, TX mandatory and expands it to include Lake Charles, LA; consolidates and expands a VTS Special Area in Puget Sound, WA; adds the designated frequencies for the Maritime Mobile Service Identifiers (MMSIs) for Louisville, KY and Los Angeles/Long Beach, CA; and updates the definitions and references in Sailing Plan requirements. The changes made by this rule will align regulations with the current operating procedures of the VTSs affected, with the benefit of creating regulatory efficiency.

DATES:

This final rule is effective September 20, 2013.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-1024 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to http://www.regulations.gov,, inserting USCG-2011-1024 in the “Search” box, and then clicking “Search.”

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Mr. Mike Sollosi, Office of Navigation Systems (CG-NAV), Coast Guard; telephone 202-372-1545, email Mike.M.Sollosi@uscg.mil. If you have questions on viewing the docket, call Ms. Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations

II. Basis and Purpose

III. Background

IV. Regulatory History

V. Discussion of Comments and Changes

VI. Regulatory Analyses

A. Regulatory Planning and Review

B. Small Entities

C. Assistance for Small Entities

D. Collection of Information

E. Federalism

F. Unfunded Mandates Reform Act

G. Taking of Private Property

H. Civil Justice Reform

I. Protection of Children

J. Indian Tribal Governments

K. Energy Effects

L. Technical Standards

M. Environment

I. Abbreviations

AIS Automatic Identification System

FR Federal Register

MMSI Maritime Mobile Service Identifier

NDG National Dialogue Group

NPRM Notice of Proposed Rulemaking

PAWSA Port and Waterway Safety Assessment

PAWSS Port and Waterways Safety System

PWSA Ports and Waterways Safety Act

SOLAS International Convention for the Safety of Life at Sea

U.S.C. United States Code

SNPRM Supplemental notice of proposed rulemaking

VMRS Vessel Movement Reporting System

VTM Vessel Traffic Management

VTS Vessel Traffic Service

II. Basis and Purpose

This final rule is issued, pursuant to the Ports and Waterways Safety Act (PWSA) (33 U.S.C. 1221 et seq.), to establish VTSs in the United States. Title I of the PWSA authorizes the Secretary of Homeland Security (Secretary) to promulgate regulations to establish and maintain VTSs consisting of measures for controlling or supervising vessel traffic to protect the marine environment. As amended by section 4107(a)(1) and (2) of the Oil Pollution Act of 1990 (33 U.S.C. 1223(a)(1) and (2)), the PWSA gives the Secretary the authority to create, operate and expand VTSs and to make participation in the VTS mandatory for appropriate vessels.

This final rule changes VTS Port Arthur from a voluntary compliance system to a mandatory compliance system and also expands the VTS Port Arthur area to include Lake Charles, LA. The Coast Guard decided on this course of action due to the findings of the Port and Waterways Safety Assessments (PAWSAs) that were conducted in Port Arthur, TX in 1999 and in Lake Charles, LA in 2000, which indicated that a VTS is a necessary risk mitigation tool.

Additionally, due to increased vessel traffic in Puget Sound, WA, this final rule modifies and expands the current VTS Special Area to include the waters of Bellingham Bay, western Padilla Bay and the Saddlebag route that is located east of Guemes Island, in the vicinity of Vendovi Island. Those categories of vessels, defined in 33 CFR 161.16 and 161.55, that operate in this single consolidated VTS Special Area will be subject to the VTS Special Area operating requirements of 33 CFR 161.13.

Finally, this rule makes two minor updates to the VTS regulations in 33 CFR 161.12 and 161.19, respectively. The first update adds Marine Mobile Service Identifier (MMSI) numbers for VTSs Los Angeles/Long Beach and Louisville. As described in footnote 1 of Table 161.12(c), an MMSI is a unique nine-digit number assigned to ship stations, ship earth stations, coast stations, coast earth stations, and group calls for use by a digital selective calling (DSC) radio, an INMARSAT ship earth station, or Automatic Identification System (AIS). In short, an MMSI number is essentially a call sign that mariners use to identify those stations. The first update also amends footnote 1 of Table 161.12(c) for the purpose of establishing that the addition of MMSI numbers to VTSs Louisville and Los Angeles-Long Beach does not, through this rulemaking, impose AIS equipment carriage requirements for vessels operating in those areas for the reasons explained under the “Regulatory History” of this preamble. The second update, an edit to Sailing Plan requirements in 33 CFR 161.19, replaces an outdated reference to Dangerous cargo with an updated reference to Certain dangerous cargo, as defined in 33 CFR 160.204.

III. Background

In the late 1990s, the Coast Guard convened a national dialogue group (NDG) comprised of maritime and waterway community stakeholders to identify the needs of waterway users with respect to Vessel Traffic Management (VTM) and VTS systems. Those stakeholders, representing port authorities, pilots, environmental conservationists, the Coast Guard, and all major sectors of the U.S. and foreign flag shipping industry were tasked to identify the information needs of waterway users to help ensure safe passage, help establish a process to identify candidate waterways for VTM improvements and VTS installations, and identify the basic elements of a VTS. The intent of the NDG was to provide the foundation for an approach to VTM that would meet the stakeholders' shared objective of improving vessel traffic safety in U.S. ports and waterways in a technologically sound and cost-effective way.

A major outcome of the NDG was the development of the PAWSA process, which the Coast Guard established to open a dialogue with waterway users and port stakeholders to help identify needed VTM improvements, and to determine candidate VTS waterways. The PAWSA process provides a formal structure for identifying risk factors and evaluating potential mitigation measures. The process requires the participation of experienced waterway users having local expertise in navigation, waterway conditions, and port safety. In addition, the Coast Guard includes non-maritime industry stakeholders in the process to ensure that important environmental, public safety, and economic considerations are given appropriate attention as risk-mitigation measures are selected.

The Coast Guard has conducted 47 PAWSA workshops in U.S. ports since 1999, when the PAWSA process was developed, including one in Port Arthur, TX, on September 21-23, 1999, and one in Lake Charles, LA, on April 25-26, 2000. The Port Arthur, TX and Lake Charles, LA PAWSA reports are publicly available on the NAVCEN Web site at http://www.navcen.uscg.gov/?pageName=pawsaFinalReports and in the docket for this rulemaking (USCG-2011-1024). Based on the mitigation recommendations contained in these PAWSA reports, as well as the existence of port infrastructure to support VTS efforts, the Coast Guard determined that Port Arthur, TX and Lake Charles, LA have a valid need for a Coast Guard-operated VTS.

As a result of the Port Arthur PAWSA workshop, which determined that a VTS would provide the greatest potential to mitigate risk in the port, the Coast Guard added Port Arthur to the Port and Waterways Safety System (PAWSS) acquisition project. The PAWSS project's goal was to install a computer-based VTM system in VTS ports. Installation of the VTS system in Port Arthur, TX began in 2004 and finished in February 2006.

Although this rule changes VTS Port Arthur from a voluntary system to a mandatory compliance system for vessels transiting VTS Port Arthur, it does not alter vessel operations nor impose new costs on industry or the Coast Guard because, under 33 CFR 164.46(a)(3), all vessels which would be affected by changing VTS Port Arthur to a mandatory VTS system are already required to be equipped with AIS. Because AIS carriage requirements are the sole cost item for vessels to comply with VTS requirements; have been in force since December 31, 2004; and currently include the VTS Port Arthur area under Table 161.12(c) in 33 CFR 161.12; we have determined that changing VTS Port Arthur to a mandatory VTS will not alter current vessel operations or impose new costs on either the industry or the Coast Guard. This final rule also expands the currently voluntary VTS Port Arthur area to include Lake Charles, LA. The 2000 Lake Charles PAWSA study supported the establishment of a VTS in Lake Charles, LA. Coast Guard data pertaining to commercial vessel activities indicate that commercial vessels that transit the expansion area of Lake Charles, LA also satisfy the AIS carriage requirements established under 33 CFR 164.46(a)(3).

In addition to making participation in VTS Port Arthur mandatory, this final rule consolidates and expands the two VTS Special Areas in Puget Sound, WA. A VTS Special Area is defined in 33 CFR 161.2 as “a waterway within a VTS area in which special operating requirements apply.” The Coast Guard typically institutes a VTS Special Area when geographic or other conditions, such as a concentration of vessels or vessels carrying particularly hazardous cargoes, make a portion of the waterway an inherently dangerous navigational area.

When the federal regulations for vessel traffic services were first implemented in 1994 (59 FR 36316, July 15, 1994), the Coast Guard instituted two VTS Special Areas within VTS Puget Sound. These VTS Special Areas serve to avoid having large vessels impeding, meeting, overtaking or crossing each other in the constricted waters between the San Juan Islands in Puget Sound, WA. In addition to the two existing VTS Special Areas in Puget Sound, special operating requirements have traditionally been issued in the expansion area by VTS Puget Sound due to the relatively restricted nature of these waters. This final rule incorporates the waters of the two existing VTS Special Areas and the waters currently covered by these special operating requirements into a single consolidated VTS Special Area. Because this final rule consolidates existing vessel operating procedures within VTS Puget Sound, the Coast Guard does not anticipate that the expansion of this VTS Special Area will alter current vessel operations or impose new regulatory costs on industry. The consolidation simplifies compliance with these traffic management requirements by consolidating them into one.

IV. Regulatory History

On September 10, 2012, the Coast Guard published a notice of proposed rulemaking (NPRM) in the Federal Register entitled, “Vessel Traffic Service Updates, Including Establishment of Vessel Traffic Service Requirements for Port Arthur, Texas and Expansion of VTS Special Operating Area in Puget Sound” (77 FR 55439). The Coast Guard followed the publication of the NPRM with a correction on October 18, 2012 with the same title (77 FR 64076). In the correction, we explained that because adding MMSI designations to VTS Louisville and VTS Los Angeles-Long Beach would prematurely impose AIS equipment costs for owners and operators of the vessel types identified in 33 CFR 164.46(a)(3), the Coast Guard was issuing a correction in order to remove AIS carriage equipment requirements for vessels operating in those two Vessel Traffic Service (VTS) areas. AIS carriage equipment requirements are set forth in §§ 161.21 and 164.46 of this subchapter and generally apply in those areas denoted with an MMSI number. However, because we did not intend to impose AIS carriage requirements through this rulemaking for VTS Louisville and VTS Los Angeles/Long Beach, we amended footnote 1 of Table 161.12(c) to specifically remove AIS requirements for vessels operating in those VTS areas. We received no comments on the NPRM or on the correction. No public meeting was requested and none was held.

V. Discussion of Comments and Changes

We did not receive any comments or requests for a public meeting during the NPRM's 90-day comment period that ended on December 10, 2012. After publication of the NPRM, we noticed that the coordinates of the monitoring areas printed in regulations at Table 161.12(c), and §§ 161.55 and 161.70 are formatted inconsistently. In this final rule, therefore, we are reformatting the coordinates contained in Table 161.12(c) and §§ 161.55 and 161.70 so that all coordinates are consistently represented in a format that includes “degree-minute-decimal.” Additionally, we are reformatting an entry in Table 161.12(c) specific to the St. Mary's River for greater clarity. This reformatting does not alter the location or position of the monitoring area specific to the St. Mary's River. As an example to show this, we have uploaded a chart of the St. Mary's River from De Tour Passage to Munuscong Lake to the public docket. Because none of the changes to the coordinates in Table 161.12(c) and §§ 161.55 and 161.70 alter the location or position of any of the monitoring areas set forth in regulation, the changes are not substantive. A supplemental notice of proposed rulemaking (SNPRM) is, therefore, unnecessary and would delay completion of this rulemaking. Thus, we find good cause under 5 U.S.C. 552(b)(B) to proceed with publication of this final rule without an SNPRM. Other than these formatting corrections to the coordinates listed in the monitoring areas under Table 161.12(c) and §§ 161.55 and 161.70, no changes to the rule have been made and the text of the final rule is the same as the text in the NPRM and in the correction to the NPRM. For a complete discussion of the rule, please see the discussion included in the NPRM at 77 FR 55439.

VI. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on several of these statutes or executive orders.

A. Regulatory Planning and Review

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the final rule has not been reviewed by the Office of Management and Budget.

We received no public comments, additional information, or data that would alter our assessment of the NPRM. Therefore, we adopt the Preliminary Regulatory Analysis for the NPRM as final. A summary of the analysis follows:

This final rule establishes mandatory participation for the VTS area in Port Arthur, TX, and includes Lake Charles, LA as part of this VTS area. This rule also consolidates and expands the VTS Special Areas in the area of Puget Sound, WA to include Bellingham Channel, western Padilla Bay and the Saddlebag route east of Guemes Island.

The VTS in Port Arthur, TX was installed in 2004 and became fully operational in February 2006. Currently VTS Port Arthur operates as a voluntary system. This rule makes participation in the VTS mandatory for all vessels that are required to carry AIS equipment.

Because AIS carriage is required by regulation under 33 CFR 164.46 for commercial vessels, including those vessels that would be affected by this rule, we expect that there would not be additional costs to either industry or government resulting from this rule. A list of the categories of commercial vessels and the dates of compliance for AIS carriage are shown in Table 1.

The principal benefits of changing VTS participation from voluntary to mandatory will be to codify current practices and to provide VTS Port Arthur with full VTS authorities to direct and manage traffic.

The final rule also consolidates and slightly expands the current VTS Special Area in the VTS Puget Sound area. This rule expands the zone in which VTS personnel control entry into and movement within the Special Area. VTS Puget Sound has imposed operating conditions in this consolidated VTS Special Area since the VTS national regulations were established in 1994. The final rule simply codifies into regulation the current practices already in place in the consolidated VTS Special Area and will not result in additional requirements for vessels.

Due to the constricted waters within the San Juan Islands, special operating requirements have been instituted since the VTS national regulations were first implemented in 1994 to avoid the risk of large vessels meeting, overtaking or crossing in this area. VTS Puget Sound has consistently issued measures or directions to enhance navigation and vessel safety by imposing special operating requirements for all vessels operating in Bellingham Channel, western Padilla Bay, and the Saddlebag route east of Guemes Island and in the vicinity of Vendovi Island due to the relatively restricted nature of these waters. Therefore, we do not expect that the expansion of this VTS Special Area will alter vessel operations.

Other minor administrative changes include updating the table in 33 CFR 161.12(c) to include the MMSI numbers for VTS Los Angeles/Long Beach and VTS Louisville. Updating the table to add these MMSI numbers will not result in any costs for vessel owners or operators, because this final rule revises Note 1 to Table 161.12(c) to specifically exclude users of VTS Louisville and VTS Los Angeles/Long Beach from AIS carriage equipment requirements. This final rule also amends 33 CFR 161.19(f) by changing the reference from “Dangerous cargo . . . as defined in 33 CFR 160.203” to “Certain dangerous cargo . . . as defined in 33 CFR 160.204.” The final rule also removes the references to §§ 160.211 and 160.213 because these sections no longer exist in the CFR. We expect these administrative changes to result in no additional costs to the public or industry.

B. Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises 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 AIS carriage requirements were implemented by a prior regulation in 33 CFR 164.46, and all vessels which will be required to participate in the VTS are currently equipped to follow the regulations of their individual VTS areas. In addition, the consolidation and slight expansion of the VTS Special Area in Puget Sound, WA merely codifies current operational practices, and will result in no additional equipment requirements. As a result, we expect that this final rule will not impose additional costs on vessel owners and operators transiting within the VTS areas of either Port Arthur, TX or Puget Sound, WA.

Therefore, 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.

C. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

D. Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Vessels affected by this rule will already be covered under OMB collection of information 1625-0112.

E. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in the Executive Order. Our analysis follows.

Title I of the Ports and Waterways Safety Act (PWSA) (33 U.S.C. 1221 et seq.) authorizes the Secretary to issue regulations to establish and maintain vessel traffic services consisting of measures for controlling or supervising vessel traffic to protect the marine environment. By enacting the PWSA in 1972, Congress declared that advance planning and consultation with the affected States and other stakeholders is necessary when developing measures for the control or supervision of vessel traffic or for protecting navigation or the marine environment. Throughout the development of each of the subject VTSs the Coast Guard has consulted with the pertinent State and/or local government entities as well as the affected pilots' associations, vessel operators, VTS users, and all affected stakeholders, using Port and Waterways Safety Assessments. This interaction is more fully described elsewhere in this document.

The Coast Guard has determined, after considering the factors developed by the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000), that by enacting Chapter 25 of the PWSA, Congress intended to preempt the field of vessel traffic services in United States ports and waterways. Therefore, the regulations in this rulemaking have preemptive impact over any State laws or regulations that may be enacted on the same subject matter. The preemptive impact of this final rule is codified in 33 CFR 161.6.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, Sections 4 and 6 of Executive Order 13132 require that for any rules with preemptive effect, the Coast Guard will provide elected officials of affected State and local governments and their representative national organizations, notice and opportunity for appropriate participation in any rulemaking proceedings, and to consult with such officials early in the rulemaking process.

The Coast Guard invited affected State and local governments and their representative national organizations to indicate their desire for participation and consultation in this rulemaking process by submitting comments. We received no comments.

F. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

G. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

H. Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

I. Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

J. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

K. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

L. Technical Standards

The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

M. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a) and (i) of the Instruction. This rule involves administrative changes, changing regulations in aid of navigation, and updating vessel traffic services. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 161

• Harbors
• Navigation (water)
• Reporting and recordkeeping requirements
• Vessels
• Waterways

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 161 as follows:

PART 161—VESSEL TRAFFIC MANAGEMENT

1. The authority citation for part 161 continues to read as follows:

Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. 70114, 70119; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. In § 161.12, revise Table 161.12(c) to read as follows:

3. In § 161.19, revise paragraph (f) to read as follows:

4. In § 161.55, revise paragraph (b) and paragraph (c) introductory text to read as follows:

5. Add § 161.70 to read as follows: