No & IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. UNITED STATES OF AMERICA et al., Plaintiffs-Appellees,

Transcription

1 No & IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT UNITED STATES OF AMERICA et al., Plaintiffs-Appellees, COALITION FOR BUZZARDS BAY, Defendant-Appellant, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants, UNITED STATES COAST GUARD et al., Counter Defendants. UNITED STATES OF AMERICA et al., Plaintiffs-Appellees, v. COMMONWEALTH OF MASSACHUSETTS, et al., Defendants-Appellants, COALITION FOR BUZZARDS BAY, Defendant, UNITED STATES COAST GUARD et al., Counter Defendants-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BRIEF FOR THE FEDERAL APPELLEES TONY WEST Assistant Attorney General CARMEN ORTIZ United States Attorney MARK B. STERN (202) ANISHA S. DASGUPTA (202) Attorneys, Appellate Staff Civil Division, Room 7533 Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C

2 TABLE OF CONTENTS Page JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 5 A. Statutory and Regulatory Background The Ports and Waterways Safety Act The Coast Guard's Tug Escort and Vessel Manning Regulations... 7 B. The 2004 Massachusetts Statute C. This Court's Prior Decision D. Proceedings on Remand SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. The Coast Guard Has Validly Preempted Massachusetts' Tug Escort and Vessel Manning Requirements... 20

3 II. The Coast Guard Considered All Relevant Factors When Promulgating Its 2007 Final Rule For Buzzards Bay, And Its Determinations Are Amply Supported By The Administrative Record A. The Coast Guard's 2007 Rulemaking Considered All Relevant Statutory Factors, Including The Environmental Consequences Of The Final Rule The Coast Guard's Adoption Of A Tug Escort Rule The Coast Guard's Adoption Of A Vessel Manning Rule B. The Coast Guard Reasonably Determined That Its Final Rule Was Categorically Excluded From NEPA's Statutory Requirements CONCLUSION CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a)(7)(B) CERTIFICATE OF SERVICE ADDENDUM ii

4 TABLE OF AUTHORITIES Cases: Page: Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851 (9th Cir. 1999) Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104 (1st Cir. 1997)... 19, 20 Auer v. Robbins, 519 U.S. 452 (1997) Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60 (D.C. Cir. 1987) Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S. Ct (2009) Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004)... 39, 41, 44, 49 Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178 (8th Cir. 2001) Nevada v. Dep't of Energy, 457 F.3d 78 (D.C. Cir. 2006) Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)... 25, 26, 27 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) Save Our Heritage, Inc. v. FAA, 269 F.3d 49 (1st Cir. 2001)... 20, 41, 42, 43, 50 iii

5 Sierra Club v. Marsh, 976 F.2d 763 (1st Cir. 1992) United States v. Locke, 529 U.S. 89 (2000)... 13, 25, 26, 27 United States v. Massachusetts, 493 F.3d 1 (1st Cir. 2007)... 1, 2, 3, 12, 13, 14, 26, 27 Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc., 435 U.S. 519 (1978) Wyeth v. Levine, 129 S. Ct (2009)... 21, 22 Statutes: 28 U.S.C U.S.C U.S.C U.S.C Pub. L. No Pub. L. No , 116 Stat , 44 Wash. Rev. Code Ann Administrative Procedure Act 5 U.S.C U.S.C iv

6 Ports and Waterways Safety Act 33 U.S.C U.S.C. 1222(2) U.S.C. 1224(a)... 6, U.S.C. 4332(2)(C) U.S.C. 2101(34) U.S.C. 3703(a) U.S.C. 3703(a)(3) U.S.C. 3703(a)(4) U.S.C. 3703(a)(5)... 6 Pub. L. No , 86 Stat Pub. L. No , 92 Stat An Act Relative to Oil Spill Prevention and Response in Buzzards Bay and Other Harbors and Bays of the Commonwealth 2004 Mass. Acts 251 (Aug. 4, 2004) Mass. Acts 457 (Dec. 30, 2004) Mass. Gen. Laws ch. 21M Mass. Gen. Laws ch. 21M , 11, 21 Mass. Gen. Laws ch. 21M 4(a)... 11, 18, 25 v

7 Mass. Gen. Laws ch. 21M 4(b)... 11, 18, 25 Mass. Gen. Laws ch. 21M 4(c)... 11, 25 Mass. Gen. Laws ch. 21M , 12, 21 Mass. Gen. Laws ch. 21M 6(a)... 18, 23 Regulations: 33 C.F.R (b) C.F.R C.F.R (d)(1)(i)... 7, C.F.R (d)(1)(ii) C.F.R (d)(5)... 3, 8, C.F.R (d)(5)(ii)... 9, C.F.R (d)(5)(iii)... 9, 10, C.F.R C.F.R C.F.R (b)(4) C.F.R. Part , C.F.R. Part C.F.R. Part Fed. Reg (Oct. 13, 1998)... 22, 49 vi

8 63 Fed. Reg (Dec. 30, 1998) Fed. Reg (July 23, 2002) Fed. Reg (Oct. 26, 2004)... 8, 10, 17, 28, 36, 37, Fed. Reg (Mar. 29, 2006)... 8, 10, 17, 29, 30 33, 37, 38, Fed. Reg (Apr. 19, 2006)... 45, 46, 47, Fed. Reg (Aug. 30, 2007)... 3, 8, 10, 14, 17, 21, 22, 23, 25, 29, 30, 31, 38, vii

9 JURISDICTIONAL STATEMENT The United States filed suit, invoking the jurisdiction of the district court pursuant to 28 U.S.C and 28 U.S.C See Joint Appendix ( J.A. ) 31. Plaintiffs-intervenors invoked the district court s jurisdiction pursuant to 28 U.S.C J.A Following an appeal to this Court and this Court s remand to the district court, United States v. Massachusetts, 493 F.3d 1, 4-5 (1st Cir. 2007), the Commonwealth brought a counterclaim pursuant to 28 U.S.C. 1331, 28 U.S.C , and 5 U.S.C J.A The district court, on March 31, 2010, granted the motions for summary judgment of the United States and plaintiffs-intervenors. Id. at 491. The Commonwealth of Massachusetts and defendant-intervenor Coalition for Buzzards Bay filed timely notices of appeal on May 27, Id. at This Court has jurisdiction pursuant to 28 U.S.C STATEMENT OF THE ISSUES The district court held that certain provisions of Massachusetts law relating to vessels transporting oil in Buzzards Bay are preempted by federal law. The issues presented are:

10 1. Whether federal law preempts state requirements that all non selfpropelled oil tank vessels carrying 6,000 or more barrels of oil be accompanied by tug escorts. M.G.L. c. 21M, Whether federal law preempts state requirements governing personnel and manning of vessels towing 6,000 or more gallons of oil. M.G.L. c. 21M, Whether the Coast Guard s 2007 rulemaking complied with the requirements of the Administrative Procedure Act and the National Environmental Protection Act. STATEMENT OF THE CASE The United States filed this action against the Commonwealth of Massachusetts in 2005, seeking a declaratory judgment that certain provisions of a Massachusetts state law regulating navigation in Buzzards Bay, Massachusetts including the tug escort and vessel manning requirements at issue in this appeal were preempted by federal statutes and the Coast Guard s implementing regulations. See United States v. Massachusetts, 493 F.3d 1, 3-4 (1st Cir. 2007). Four shipping trade associations the American Waterways Operators, the International 2

11 Association of Independent Tanker Owners, the Chamber of Shipping of America, and BIMCO intervened as plaintiffs. The Coalition for Buzzards Bay intervened as a defendant. Id. at 4 n.3. Following the district court s grant of plaintiffs motions for judgment on the pleadings, see id, at 4, defendants appealed to this Court, which remanded for further consideration as to whether the Massachusetts Act s vessel manning requirements were field preempted under Title II of the Ports and Waterways Safety Act of 1972 ( PWSA ), see 493 F.3d at 12-13, or otherwise preempted by various federal requirements in the area of manning, including regulations promulgated under Title I of the PWSA, see 493 F.3d at 13. The Court also determined that further consideration was required as to whether the Coast Guard had clearly expressed an intention to preempt the Massachusetts Act s tug escort requirement. Id. at 19. Shortly after this matter was remanded for further proceedings, the Coast Guard promulgated its 2007 final rule for vessels transiting Buzzards Bay. 72 Fed. Reg (Aug. 30, 2007) (Final Rule); 33 C.F.R (d)(5) (Special Buzzards Bay regulations). The district court permitted the Commonwealth to amend its complaint to challenge the

12 rule as violative of the Administrative Procedure Act ( APA) and the National Environmental Protection Act ( NEPA ). On remand, the district court held that the Coast Guard s 2007 final rule for navigation in Buzzards Bay expressed a clear intention to preempt Massachusetts tug escort and vessel manning requirements, J.A. 494, and in fact validly preempted these state requirements, id. at The district court rejected the APA and NEPA challenges, concluding that the Coast Guard had provided sufficient opportunity for notice and comment on its determination that the state requirements at issue here were preempted, id. at 549, and had conducted a reasoned analysis of the environmental [e]ffects of its rulemaking, id. at 545. The Commonwealth and the Coalition for Buzzards Bay have appealed the district court s order entering judgment for the plaintiffs, id. at

13 STATEMENT OF FACTS A. Statutory and Regulatory Background The Ports and Waterways Safety Act. This suit involves the preemptive effect of regulations issued under the Ports and Waterways Safety Act of 1972 ( PWSA ) Pub. L. No , 86 Stat. 427, as amended by the Port and Tanker Safety Act of 1978 ( PTSA ), Pub. L. No , 5, 92 Stat. 1480, and subsequent Acts of Congress. The Department of Homeland Security is vested with authority to issue regulations implementing the statute, and that authority has been delegated to the Coast Guard. 2 Title I of the PWSA, codified at 33 U.S.C , governs navigation and waterways management, such as vessel traffic services, ship 1 Pertinent statutory and regulatory provisions are reproduced in the addendum to this brief. 2 Prior to the Homeland Security Act of 2002, which relocated the Coast Guard in the Department of Homeland Security, regulatory authority under these statutes had been vested in the Secretary of Transportation. See Pub. L. No (b) & (c), 116 Stat See also, e.g., 46 U.S.C. 2101(34) (general definition section, defining Secretary as secretary of the department housing the Coast Guard); 33 U.S.C. 1222(2) (same definition of Secretary in 33 U.S.C. Chapter 25, Ports and Waterways Safety Act). 5

14 routing, and tug escort requirements. In general, Title I authorizes, but does not require, the Secretary to issue regulations governing traffic at local ports and related matters, after taking into account all relevant factors concerning navigation and vessel safety [and] protection of the marine environment. 33 U.S.C. 1224(a). Title II of the PWSA, codified throughout Title 46 of the U.S. Code, establishes a comprehensive framework governing the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of tank vessels. 46 U.S.C. 3703(a). The statute requires the Coast Guard to promulgate regulations governing these subjects, including regulations that address equipment and appliances for... prevention and mitigation of damage to the marine environment, id. 3703(a)(3), the manning of vessels and the duties, qualifications, and training of the officers and crew, id. 3703(a)(4), and improvements in vessel maneuvering and stopping ability and other features that reduce the possibility of marine casualties, id. 3703(a)(5). However, in the Coast Guard Reauthorization Act of 1998, Congress required that the Coast Guard promulgate regulations 6

15 concerning towing vessel and barge safety for the waters of the Northeast. Pub. L. No , 311(b)(1)(A). 2. The Coast Guard s Tug Escort and Vessel Manning Regulations. Pursuant to these statutory directives, the Coast Guard has promulgated regulations generally requiring, among other things, that tank barges be under the direction and control of a licensed operator and, in many cases, under the direction and control of an individual qualified to serve as a pilot. See generally 46 C.F.R. Parts 15, 31, and 35. In 1998, the Coast Guard promulgated regulations governing the operations of towing vessels and tank barges transporting oil in navigable waters within the First Coast Guard District, which covers the navigable waters from Maine to northern New Jersey, including Buzzards Bay, Massachusetts. See 63 Fed. Reg , (Dec. 30, 1998); 33 C.F.R (b) (defining First Coast Guard District). The regulations require that each single hull tank barge, unless being towed by a primary towing vessel with twin-screw propulsion and with a separate system for power to each screw, must be accompanied by an escort tug C.F.R (d)(1)(i). 7

16 These regulations explicitly exclude double-hull tank barges from their requirements. Id (d)(1)(ii). In 2004, the Coast Guard issued a notice stating that it was considering amending these general regulations to require additional navigation safety measures for Buzzards Bay. See 69 Fed. Reg , (Oct. 26, 2004) (Advanced Notice of Proposed Rulemaking). In 2006, the Coast Guard gave notice of a proposed final rule imposing special tug-escort and vessel manning requirements for barges transiting Buzzards Bay, see 71 Fed. Reg (Mar. 29, 2006) (Notice of Proposed Rulemaking). In so doing, the Coast Guard explained that it had prepared an environmental checklist as part of its effort to comply with the National Environmental Policy Act ( NEPA ). The Coast Guard explained that it would consider comments before we make the final decision on whether or not the rule should be categorically excluded from further environmental review. Id. at In 2007, the Coast Guard promulgated the rule. See 72 Fed. Reg (Aug. 30, 2007) (Final Rule); 33 C.F.R (d)(5) (Buzzards Bay regulations). The Coast Guard s tug escort rule for Buzzards Bay provides that each single hull tank barge transiting Buzzards Bay and carrying 5,000 8

17 or more barrels of oil or other hazardous material must, in addition to its primary tug, be accompanied by an escort tug of sufficient capability to promptly push or tow the tank barge away from danger of grounding or 3 collision C.F.R (d)(5)(ii). The Coast Guard s manning rule for Buzzards Bay provides that [e]ach single hull tank barge transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must be under the direction and control of a pilot, who is not a member of the crew, operating under a valid, appropriately endorsed, Federal first class pilot s license issued by the Coast Guard and further provides that [p]ilots are required to embark, direct, and control from the primary tug during transits of Buzzards Bay. Id (d)(5)(iii). The regulation embodied affirmative decisions... to require a federally licensed pilot in addition to the normal crew aboard a tug towing a single hull tank barge [through] Buzzard s [sic] Bay, but not to require any other modifications to the applicable manning requirements and to require an 3 The Coast Guard s regulations provide that the term [t]ank barge means a tank vessel not equipped with a means of self-propulsion while the term [t]ank vessel means a vessel that is constructed or adapted primarily to carry, or that carries, oil or hazardous material in bulk as cargo and is subject to the jurisdiction of the United States. 33 C.F.R

18 escort tug in addition to the primary tug, for all single hull tank barges transiting Buzzards Bay, but not for other vessels. 72 Fed. Reg. at The Coast Guard therefore determined that any other non-coast Guard schemes relating to vessel routing, manning, and tug escort requirements in Buzzards Bay are preempted. See 72 Fed. Reg. at 50057; see also 69 Fed. Reg. at 62430; 71 Fed. Reg. at Having received no comments on its proposed use of environmental exclusions to comply with NEPA, the Coast Guard issued a categorical exclusion to accompany the final rule. J.A B. The 2004 Massachusetts Statute. In 2004, following an oil spill in Buzzards Bay, the Commonwealth of Massachusetts enacted the tug escort and vessel manning provisions at issue in this appeal, as part of An Act Relative to Oil Spill Prevention and Response in Buzzards Bay and Other Harbors and Bays of the Commonwealth, 2004 Mass. Acts 251 (Aug. 4, 2004), as amended by 2004 Mass. Acts (Dec. 30, 2004). The Massachusetts Act s manning provision requires that [t]he navigation watch on all tow vessels transiting Buzzards Bay and carrying 10

19 6,000 or more barrel of oil shall consist of at least 1 licensed deck officer or tow vessel operator, and that [t]hree licensed officers or tow vessel operators shall be on a tow vessel whenever the vessel is towing... a tank barge 4 carrying 6,000 or more barrels of oil in Buzzards Bay. M.G.L. c. 21M, 4(a). It further requires that tank barges must have at least two personnel on board at all times, one of whom must be a certified tankerman under federal law, unless the tank barge is not equipped to accommodate personnel on board or is carrying less than 6,000 barrels of oil. Id. 4(b). A tank barge which is underway, anchored or moored in the waters of Buzzards bay [sic] and which does not fulfill the minimum manning safety standards set forth in the provision is in violation of the provision unless such tank barge has a double hull. Id. 4(c). The Act s tug escort requirement states that [N]o tank vessel carrying 6,000 or more barrels of oil shall enter or transit any area of special interest within the waters of the commonwealth unless the tank vessel is accompanied 4 Under the Massachusetts Act, a tank barge is a tank vessel without a means of self-propulsion or a self-propelled tank vessel less than 40 meters, 130 feet, in overall length, and a tank vessel is a ship that is constructed or adapted to carry, or that carries, oil or other petroleum product in bulk as cargo and that... [is] subject to the jurisdiction of the commonwealth. M.G.L. c. 21M, 1. 11

20 by a tugboat escort. Id. 6(a). This requirement does not apply to a self-propelled tank vessel. Id. 6(b). C. This Court s Prior Decision. 1. The United States filed this action in 2005, seeking a declaration that certain provisions of the Massachusetts Act were preempted by federal statutes and the Coast Guard s implementing regulations. See Massachusetts, 493 F.3d at 4. The suit recognized that several additional provisions of the Massachusetts Act fell within the scope of the state s regulatory authority and did not intrude on federal regulatory regimes. Four shipping trade associations the American Waterways Operators, the International Association of Independent Tanker Owners, the Chamber of Shipping of America, and BIMCO intervened as plaintiffs. The Coalition for Buzzards Bay intervened as a defendant. Id. at 4 n The district court granted the plaintiffs motions for judgment on the pleadings and enjoined all of the challenged provisions of the Massachusetts Act. Id. at 4. Defendants appealed with respect to only some of the provisions 12

21 at issue. Ibid. Those provisions included the Massachusetts Act s tug escort 5 requirement and the Act s vessel manning requirements. Ibid. 3. This Court vacated the district court s entry of judgment and remanded for further proceedings. Ibid. The Court concluded that the district court had been premature in determining that the Act s vessel manning requirements were subject to field preemption under Title II of the PWSA, and remanded for fuller consideration of this issue in light of the framework set forth in United States v. Locke, 529 U.S. 89 (2000). See Massachusetts, 493 F.3d at The Court declined to consider whether various federal requirements in the area of manning, including regulations promulgated under Title I of the PWSA suffice to preempt Massachusetts vessel manning requirements, leaving this for the district court to consider on remand. Id. at Defendants also appealed the district court s blocking of a state requirement that tank vessels provide a certificate of financial assurance, the amount of which could be lowered by the state Department of Environmental Protection according to various non-exclusive criteria, some of which were defined by the Massachusetts Act. Massachusetts, 493 F.3d at 4, 20. This financial assurance requirement is not at issue in the present appeal. See J.A

22 The Court also concluded that remand was appropriate with respect to the Coast Guard s intention to preempt the Massachusetts Act s tug escort requirement. The Court determined that the statements accompanying the Coast Guard s 1998 rulemaking and 2004 advance notice of proposed rulemaking did not clearly express an intent to preempt the requirement, but noted that the Coast Guard s 2006 notice of proposed rulemaking specifically mentions the [state s] tug escort requirements for vessels in Buzzards Bay... and suggests, for the first time, that these requirements are preempted. Id. at 19. Accordingly, the Court observed that it may be that federal rules will be forthcoming that will pre-empt the State s present tug escort rule. Ibid. (brackets and internal quotation marks omitted). D. Proceedings on Remand. Shortly after this matter was remanded for further proceedings, the Coast Guard promulgated its 2007 final rule for vessels transiting Buzzards Bay. 72 Fed. Reg (Aug. 30, 2007) (Final Rule); 33 C.F.R (d)(5) (Special Buzzards Bay regulations). Massachusetts amended its complaint to add a challenge to the 2007 rule, contending that the Coast Guard failed to comply with certain 14

23 requirements of the Administrative Procedure Act ( APA ) and the National Environmental Policy Act ( NEPA ). J.A The district court concluded that the Coast Guard s 2007 final rule leav[es] no ambiguity regarding the [Coast Guard s] intention to preempt Massachusetts tug escort and vessel manning requirements. Id. at 494. The district court also determined that preemption of these state requirements was within the rulemaking authority granted to the Coast Guard by Congress. Id. at 496. The court observed that [t]he Supreme Court has twice decided that Congress granted the Coast Guard the authority under Title I of the PWSA to establish the proper (as opposed to merely the minimum) level of regulation. Id. at 513. The court further observed that the Coast Guard s regulations were stricter than the state requirements in some respects but less strict in others, id. at , and that, in promulgating these regulations, the Coast Guard [had] explained the choices it made, id. at 512, and determined that its rules set the proper level of regulation, id. at 514. The court therefore concluded that the Coast Guard had validly preempted Massachusetts tug escort and vessel manning requirements, pursuant to Title I of the PWSA. 15

24 The district court rejected Massachusetts APA and NEPA challenges to the 2007 final rule, concluding that the Coast Guard had conducted a reasoned analysis of the environmental [e]ffects of its rulemaking. Id. at 545. The court determined that, even assuming that NEPA had required the Coast Guard to produce a formal Environmental Assessment or Environmental Impact Statement, the Coast Guard s contrary determination was harmless because the substance of the Coast Guard s actual rulemaking analysis was the functional equivalent of what an environmental impact statement would have generated. Id. at 495. The court noted in particular that [t]he Commonwealth, when pressed at [a] hearing[,]... could not articulate any material environmental issue left unaddressed in the rulemaking process. Id. at The court also rejected Massachusetts claim that the Coast Guard provided insufficient opportunity for notice and comment on its determination that the state requirements at issue here were preempted, noting that the Coast Guard s 2006 final rule details the comment and consultation process as it ultimately played out with concerned local government officials, a process which clearly reflects that the Coast Guard s intention to preempt was well understood. Id. at

25 SUMMARY OF ARGUMENT 1. The Coast Guard s 2007 final rule establishes tug escort and vessel manning requirements for vessels transiting Buzzards Bay, Massachusetts, and explicitly states the Coast Guard s intention to preempt the tug escort and vessel manning provisions of the Massachusetts Act. The 2007 final rule reflects a decision to require a federally licensed pilot in addition to the normal crew aboard a tug towing a single hull tank barge through Buzzards Bay, but not to require any other modifications to the applicable manning requirements[.] See 72 Fed. Reg , (Aug. 30, 2007) (Final Rule). It also embodies an affirmative determination to require an escort tug in addition to the primary tug, for all single hull tank barges transiting Buzzard s [sic] Bay, but not for other vessels. Id. at The Coast Guard therefore determined that any other non-coast Guard schemes relating to vessel routing, manning, and tug escort requirements in Buzzards Bay are preempted. See id. at 50057; see also 69 Fed. Reg. at 62430; 71 Fed. Reg. at By its terms, the 2007 rule preempts the manning and tug escort provisions of the Commonwealth s Spill Act that are at issue on this appeal. 17

26 The Act s manning requirement requires that [t]hree licensed officers or tow vessel operators shall be on a tow vessel whenever the vessel is towing... a tank barge carrying 6,000 or more barrels of oil in Buzzards Bay. M.G.L. c. 21M, 4(a). It further requires that tank barges must have at least two personnel on board at all times, one of whom must be a certified tankerman under federal law, unless the tank barge is not equipped to accommodate personnel on board or is carrying less than 6,000 barrels of oil. Id. 4(b). The Act s tug escort requirement states that [N]o tank vessel carrying 6,000 or more barrels of oil shall enter or transit any area of special interest within the waters of the commonwealth unless the tank vessel is accompanied by a tugboat escort. Id. 6(a). It cannot seriously be controverted that these are requirements that the Coast Guard determined should not be imposed. 2. The Commonwealth urges that the rulemaking failed to consider relevant factors and thus failed to comport with the standards of the Administrative Procedure Act. The administrative record demonstrates, however, that the Coast Guard solicited comment on the anticipated content of its final rule, including its proposal to preempt any non-coast Guard tug escort and vessel manning requirements for Buzzards Bay. The 18

27 administrative record also establishes that the Coast Guard s rulemaking considered all of the statutory factors identified in the Ports and Waterways Safety Act, including the environmental impact of the Coast Guard s final rule. The Coast Guard did not conduct a separate environmental analysis under the National Environmental Policy Act ( NEPA ) because the rule falls within a categorical exclusion to NEPA s environmental analysis requirements under regulations of the Department of Homeland security. As the district court recognized, however, the rulemaking considered the same matters as would a NEPA assessment, including the topography of Buzzards Bay, the findings of prior local studies, and the findings of an earlier Coast Guard study comparing the relative risks of oil spillage posed by double-hull vessels as opposed to single-hulled vessels. Thus, even assuming that the Coast Guard should have issued a formal determination under NEPA, its error is harmless and should not occasion a remand. STANDARD OF REVIEW The district court s legal rulings are subject to de novo review in this Court. Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st 19

28 Cir. 1997). This Court reviews the Coast Guard s decision to promulgate the regulations at issue only to determine whether the Secretary's decision... was consonant with his statutory powers, reasoned, and supported by substantial evidence in the record. Ibid. Review of the Coast Guard s decision to invoke a categorical exclusion is governed by the Administrative Procedure Act s arbitrary and capricious standard, 5 U.S.C See Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 60 (1st Cir. 2001); Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1187 (8th Cir. 2001). ARGUMENT I. The Coast Guard Has Validly Preempted Massachusetts Tug Escort and Vessel Manning Requirements. In its prior decision, this Court concluded that it was not sufficiently clear whether the Coast Guard had preempted the tug escort and manning requirements of the Massachusetts statute. The Court also concluded that it was unclear whether the vessel manning requirements would fall within the field preemption of Title II of the PWSA and would thus be preempted without regard to implementing regulations. 20

29 Following this Court s ruling, the Coast Guard issued the regulations challenged on this appeal, which explicitly preempt the provisions of the 6 Massachusetts statute at issue. As the Coast Guard stated in the Final Rule: To the extent not otherwise already preempted, this rule is intended to, and does, preempt those provisions of [the Massachusetts Act] regarding enhanced manning requirements for tank barges and tow vessels in Buzzards Bay, see Mass. Gen. Laws ch. 21M 4, and tugboat escorts for certain waters, see id Fed. Reg. at The Coast Guard consulted with Commonwealth of Massachusetts, the Massachusetts Department of Environmental Protection, the Massachusetts Attorney General, and several towns and municipalities around Buzzards Bay. The towns and municipalities consulted included the towns of Bourne, Buzzards Bay, Dartmouth, Fairhaven, Gosnold, Marion, Mattapoisett, Wareham, Westport, Falmouth, and the city of New Bedford. 72 Fed. Reg. at It is not clear on what basis several of these towns now contend that they did not have the opportunity to participate and share with the [Coast Guard] the unique challenges of Buzzards Bay and to ensure the Coast Guard was fully informed and considered all relevant information in the decision-making process. Amicus Br (submitted by the towns of Bourne, Fairhaven, Falmouth, Gosnold, Marion, Mattapoisett, Wareham, Westport, and the city of New Bedford). The town of Rochester, which also joins in this amicus filing, never asked to meet with the Coast Guard, nor did it submit written comments. 72 Fed. Reg. at The consistency of the Coast Guard s intent and understanding on the issue of federal preemption distinguishes this case from Wyeth v. Levine, 129 S. Ct (2009), on which Massachusetts purports to rely 21

30 A. The Coast Guard s regulations provide that all single hull tank barges carrying oil as cargo in navigable waters from Maine to northern New Jersey must be accompanied by a tugboat escort or an assist tug, in addition to the primary towing vessel, unless the primary towing vessel meets specified propulsion requirements. 33 C.F.R (d)(1)(i). [S]ingle hull tank barge[s] transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must, in addition to [a] primary tug, be substantially (Commonwealth Br ). In Wyeth, the Supreme Court declined to credit a preemption determination that was contrary to Congress purposes and reversed the agency s longstanding position without providing a reasoned explanation. Id. at The Court observed that the agency s notice of proposed rulemaking had disclaimed any intention to include policies that have federalism implications or that preempt state law, and that the agency had articulated its position on preemption only in its final rule, without offering States or other interested parties notice or opportunity for comment. Ibid. (quotation marks omitted). Here, in contrast, the Coast Guard has maintained a consistent position on the preemptive effect of its regulatory determinations since it began promulgating permanent regulations for the regulated navigation area in which Buzzards Bay is located. See 63 Fed. Reg. 54,639 (Oct. 13, 1998) (notice of proposed rulemaking) (observing that Coast Guard s regulatory determinations would have preemptive impacts on existing state law ); J.A. 693 (response to Coast Guard letter of September 22, 2004, requesting that Massachusetts withhold execution and enforcement of its Oil Spill Act because the Act s provisions extended into areas regulated by the federal government). The absence of any conflict with Congressional intent also distinguishes this case from Wyeth. 22

31 accompanied by an escort tug of sufficient capability to promptly push or tow the tank barge away from danger of grounding or collision.... Id (d)(5)(ii). The Massachusetts Act requires tug escorts only for vessels carrying 6,000 or more barrels of oil and establishes no tug escort requirement for vessels carrying hazardous material. M.G.L. c. 21M, 6(a). Unlike the Coast Guard, however, Massachusetts has required tug escorts for double-hulled vessels a requirement that the Coast Guard has declined to impose for vessels traveling in navigable waters anywhere in the Northeast. As the Coast Guard has explained, its regulations reflect the affirmative decision[]....to require an escort tug in addition to the primary tug, for all single hull tank barges transiting Buzzard s [sic] Bay, but not for other vessels. 72 Fed. Reg. at (emphasis added). B. The Coast Guard s manning regulations generally require tank barges to be under the direction and control of a licensed operator and, in many cases, under the direction and control of an individual qualified to serve as a pilot. See 46 C.F.R. Part

32 The Coast Guard s vessel manning rule for Buzzards Bay provides that [e]ach single hull tank barge transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must be under the direction and control of a pilot, who is not a member of the crew, operating under a valid, appropriately endorsed, Federal first class pilot s license issued by the Coast Guard. 33 C.F.R (d)(5)(iii). The rule further provides that [p]ilots are required to embark, direct, and control from the primary tug during transits of Buzzards Bay. Ibid. The Coast Guard s regulations are broader than the vessel manning requirements of the Massachusetts Act in that they apply to hazardous materials in addition to oil, and apply at a lower cargo threshold (5,000 barrels versus 6,000 barrels). J.A Massachusetts, however, would require more crew members than the Coast Guard s regulations, and would extend its rule to vessels other than tank barges. Under the Massachusetts Act, [t]he navigation watch on all tow vessels transiting Buzzards bay and carrying 6,000 or more barrels of oil shall consist of at least 1 licensed deck officer or tow vessel operator, and [t]hree licensed officers or tow vessel operators shall be on a tow vessel whenever the vessel is towing... a tank 24

33 barge carrying 6,000 or more barrels of oil in Buzzards Bay. M.G.L. c. 21M, 4(a). Tank barges must have at least two personnel on board at all times, one of whom must be a certified tankerman under federal law, unless the tank barge is not equipped to accommodate personnel on board or is carrying less than 6,000 barrels of oil, Id. 4(b); id. 4(c) (excepting double-hulled tank barges). The Coast Guard has made clear that the absence of corresponding requirements in its regulations stems from an affirmative decision[]... to require a federally licensed pilot in addition to the normal crew aboard a tug towing a single hull tank barge [through] Buzzard s [sic] Bay, but not to require any other modifications to the applicable manning requirements. 72 Fed. Reg. at C. The Coast Guard s authority to preempt State law is not open to serious dispute. The Coast Guard is authorized under Title I of the PWSA to enact measures for controlling vessel traffic or for protecting navigation and the marine environment. United States v. Locke, 529 U.S. 89, 101 (2000). Reviewing regulations issued under Title I in Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), the Supreme Court determined that a 25

34 State tug-escort rule was subject to federal preemption if the Coast Guard, pursuant to its authority under Title I, has either promulgated [its] own tug requirement for the State s local waters or has decided that no such requirement should be imposed at all. Id. at The Court subsequently reaffirmed that understanding in United States v. Locke, rejecting a court of appeals determination that Ray retained little validity in light of subsequent action by Congress. 529 U.S. at 104. In concluding that [t]he Ray Court s interpretation of the PWSA is correct and controlling, the Court explained that the essential framework of Ray, and of the PWSA which it interpreted, are of continuing force, neither having been superseded by subsequent authority relevant to these cases. Ibid; see also 493 F.3d at 7 (Congress s subsequent action in passing the Oil Pollution Act did not constitute a reversal of Ray's preemption rules as to Title I and Title II of the PWSA ). 8 8 Massachusetts is thus plainly mistaken in claiming that the 1978 amendments to the PWSA eliminated the Coast Guard s authority to preempt State requirements. See Commonwealth Br. 50. As the district court correctly observed, Ray did not rely solely on the language modified by the 1978 amendments, J.A. 519, and the Supreme Court s 2000 decision in Locke refined and reaffirmed Ray without relying at all on the language modified by the 1978 amendments, id. at

35 As the Court explained in Locke, State laws that bear upon national and international maritime commerce benefit from no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers. 529 U.S. at 108; see also 493 F.3d at 6 ( Locke expressly repudiated any notion, which might have survived Ray, that there is any presumption of non-preemption of state rules ). The Court declared that even in the context of a regulation related to local waters, a federal official with an overview of all possible ramifications of a particular requirement might be in the best position to balance all the competing interests. Id. at 110 (citing Ray, 435 U.S. at 177). Accordingly, the relevant inquiry for Title I pre-emption [is] whether the Coast Guard has promulgated its own requirement on the subject or has decided that no such requirement should be imposed at all. Ibid. The Coast Guard has now imposed its own requirements with regard to vessel manning and tug escorts and has expressly determined that the differing requirements of Massachusetts law should not be imposed. 27

36 II. The Coast Guard Considered All Relevant Factors When Promulgating Its 2007 Final Rule For Buzzards Bay, And Its Determinations Are Amply Supported By The Administrative Record. Appellants offer a variety of challenges to the 2007 rulemaking, urging that the Coast Guard failed to comply with the National Environmental Policy Act, and did not adequately weigh the PWSA s statutory factors. They further contend that the Coast Guard s earlier rulemakings for Puget Sound and Prince William Sound constitute relevant precedent that the Coast Guard was required to address during its Buzzards Bay rulemaking. A. The Coast Guard s 2007 Rulemaking Considered All Relevant Statutory Factors, Including The Environmental Consequences Of The Final Rule. 1. The Coast Guard s Adoption Of A Tug Escort Rule. The Coast Guard opened its rulemaking for Buzzards Bay with a request for public comment on its proposal to adopt a regulation that would require a tug escort of all tank barges carrying oil or hazardous material regardless of the towing vessel s propulsion configuration. 69 Fed. Reg. at It solicited public feedback on, among other things, appropriate minimum requirements for escort tugs, the economic consequences of the proposed regulation, potential alternatives to the proposed regulation, and its 28

37 proposal to comply with NEPA by issuing a categorical exclusion. Ibid.; 71 Fed. Reg. at Several commentators, including the Commonwealth of Massachusetts and the members of Massachusetts U.S. Congressional delegation, suggested adoption of a rule resembling the requirements imposed by the Massachusetts Act. 72 Fed. Reg. at ; see also J.A. 636, 817, 835, 1014, Other commentators expressed concern about the cost and availability of appropriate tugs, and the concern that escort tugs themselves could increase danger due to additional vessels in the constrained channels of Buzzards Bay and the Cape Cod Canal. 71 Fed. Reg. at ; see also J.A. 826, 847, 936, 1027, Ultimately, the Coast Guard made the affirmative decision.... to require an escort tug in addition to the primary tug, for all single hull tank barges transiting Buzzard s [sic] Bay, but not for other vessels. 72 Fed. Reg. at (emphasis added). The Coast Guard explained that it had declined to apply a tug escort rule to single hull tank ships in addition to barges because the 2003 Ports and Waterways Safety Assessment of Buzzards Bay revealed no indication... that tank ships represent a similar 29

38 risk to single hulled vessels. 72 Fed. Reg. at 50054; see also J.A. 604, 606, (Ports and Waterways Safety Assessment for Buzzards Bay). The Coast Guard declined to apply the rule to double hull tank vessels in addition to single hull tank vessels based on its considered assessment of the relative risks presented by the two types of vessel. As the Coast Guard explained, whereas [t]he majority of tank barge casualties in Buzzards Bay have been caused by groundings, and the bottom characteristics of the area are generally rocky, [d]ouble hulls provide sufficient protection against this type of casualty, and there has never been a major oil spill from a double hull tank barge grounding in Buzzards Bay. 72 Fed. Reg. at In addition, to the extent its tug escort rule applied only to single hulled barges, the Coast Guard expected that, over time, there would be progressively fewer transits of Buzzards Bay... with single hull tank barges. 71 Fed. Reg. at 15651; see also J.A. 214 ( The Coast Guard rule, by requiring tug escorts for single-hull tank barges but not double-hull barges, creates an incentive for shippers to switch to double-hull barges... ). The Coast Guard explained that, in view of the lower risk posed by double-hulled vessels, sufficient protection for the transit of those vessels would be provided 30

39 by the Final Rule s requirements for [m]andatory participation in a Vessel Movement Reporting System and the presence of a federally licensed pilot. 72 Fed. Reg. at The Coast Guard s assessment of the relative risks posed by singlehulled as opposed to double-hulled vessels broadly accords with comments submitted during the rulemaking process by the Coalition for Buzzards Bay, which now challenges the Coast Guard s regulatory determination. During the rulemaking process, the Coalition submitted a statement setting forth its view that [t]he prevalence of aging single-hulled barges disproportionately puts Buzzards Bay at risk for oil spills. J.A The Coalition noted that, although about 74% of the East Coast s coastal oil barges have been converted to double-hulls[,]... only about 20% of the barges transporting oil through Buzzards Bay have double hulls. Id. at The Coalition identified this as a problem to be remedied, observing that, because safer double-hulled vessels are being used elsewhere[,]... Buzzards Bay is bearing the brunt of a dramatically disproportionate share of the remaining aging single-hulled vessels and an unreasonable share of the risk of oil spills within U.S. waters. Ibid. As the Coalition explained, [t]his disproportionate use 31

40 of single-hulled vessels in the Bay creates a disproportionate risk of a spill because single-hulled vessels are more likely than double-hulls to release cargo in the event of a collision, allision or grounding. Ibid. (emphasis added). The Coalition explained that [t]here is no question that single-hulled vessels pose a greater risk of a release of oil than the double-hulled vessels in the event of an accident, observing that [i]n recognition of this heightened risk, the federal Oil Pollution Act of 1990 (OPA 90) sets a schedule for phasing out single-hulled vessels, and further observing that [t]he implementation of this OPA 90 phase-out schedule has, in turn, resulted in a net reduction in oil spills on a nationwide basis. Id. at (emphasis added). Moreover, as Massachusetts has acknowledged in these proceedings, the Coast Guard s conclusion that groundings of single-hulled vessels pose a relatively greater risk of environmental harm than groundings of doublehulled vessels also accords with the findings of the 1999 Regulatory Assessment that the Coast Guard prepared in connection with its promulgation of regulations for Puget Sound, Washington State. See Commonwealth Br. 25 ( To be sure, there is a study in the Record for Puget 32

41 Sound, Washington[,] that indicates that double hulls reduce the risk of oil spills... ). That study determined that [d]ouble hulls on tank vessels significantly reduce the risk of spills from collision and grounding accidents for those vessels..., J.A. 883; see also id. at 926 ( [D]ouble hull tankers are projected to have 21% of the spills of single hull tankers, and double hull tank barges are projected to have 18% of the spills of single hull tank barges. ). In view of the significantly lower risks posed by double-hulled vessels, and the desirability of encouraging their use in Buzzards Bay, it was not unreasonable for the Coast Guard to promulgate a tug escort requirement that applied to single-hulled vessels only. To the extent that the Coast Guard s regulation also had the effect of addressing concerns about the increase[d] danger due to additional vessels in the constrained channels of Buzzards Bay, 71 Fed. Reg. at 15651, as well as concerns about the costs and availability of appropriate tugs, ibid., the regulation complies with the Coast Guard s statutory responsibility to take into account the factors set forth in the PWSA, 33 U.S.C. 1224(a) (requiring the Coast Guard to balance multiple relevant factors... including but not limited to the scope and degree of the risk or hazard involved, traffic volume, port and waterway 33

42 configurations, environmental factors, and economic impact and effects ). The district court correctly rejected the Commonwealth s claim (Commonwealth Br. 28) that the Coast Guard s rulemaking for Buzzards Bay improperly deviated from the non-preemptive approach that the Coast Guard has taken when promulgating tug escort rules for navigable waters on the west coast. As the district court observed, the decision to establish only [a] minimum level of regulation in Puget Sound in the early 1990s followed by a decision in 2007 (after a different regulatory process) to establish the appropriate level of regulation in Buzzards Bay hardly constitutes a deviation from long-standing and well-established practice. J.A. 527 (internal quotation marks omitted). As the Coast Guard has explained, [e]ach rulemaking is a discrete action that is assessed on its own merits. Id. at 210. The Coast Guard considers each area of the country individually when deciding whether to impose tug escort requirements on tank vessels and, if so, what those requirements should be. Id. at 214. The Commonwealth cannot analogize its tug escort rules to existing state tug escort rules in San Francisco and Puget Sound because, as the Coast Guard has explained, [t]he conditions in 34

43 those places... are distinct from those in Buzzards Bay. Ibid. Specifically, in San Francisco, there are no federal tug escort rules with which the state rule might conflict. Ibid. In Puget Sound, the existing state tug escort rules do not extend as broadly as Massachusetts tug escort requirements. Id. at 211; Wash. Rev. Code Ann These same considerations require rejection of Massachusetts claim (Commonwealth Br. 33) that the Coast Guard, in promulgating its tug escort rule, failed to consider a 2005 oil spill caused by a double-hulled barge in the Gulf of Mexico. As the Coast Guard has explained, [t]hat situation presented a unique set of facts a tanker struck a submerged, uncharted oil platform that sank during Hurricane Rita, piercing both hulls. Id. at 213. The Coast Guard reasonably concluded that [t]hese facts are unlikely to be repeated in Buzzards Bay and that, in any event, a tug escort would not prevent a barge from alliding with an uncharted obstruction, hidden by the water, such as the storm damaged oil platform. Ibid. These explanations, set forth in an agency declaration, find support in the relevant background to the Coast Guard s rulemaking for Buzzards Bay, which was motivated by the Bay s environmental significance, the volume of 35

44 commercial traffic on the Bay, the nature of this traffic (overwhelmingly single-hulled vessels), the existence of several significant incidents of... tank barge groundings with oil spills in Buzzards Bay, and the possibility that future [g]roundings or collisions of tank barges could lead to a significant discharge or release of oil or other hazardous materials,... with potentially significant adverse impacts on the coastal and maritime environment, and the local economy. 69 Fed. Reg. at They also find support in the rulemaking s incorporation of two previously conducted local studies a 1996 Regional Risk Assessment Team report examin[ing] navigation safety issues within New England waters and a 2003 Ports and Waterways Safety Assessment for Buzzards Bay produced by the Coast Guard in consultation with outside stakeholders including the Coalition for Buzzards Bay, the State of Massachusetts Department of Coastal Zone Management, the Massachusetts Department of Environmental Protection, the office of U.S. Senator John Kerry, and the office of U.S. Representative Bill Delahunt. Ibid.; see also J.A The 1996 report recommended the imposition of certain requirements on single-hulled tank barges transiting New England waters, including Buzzards Bay. 69 Fed. 36

45 Reg. at The 2003 Assessment result[ed] in numerous suggestions for improving navigation safety in the Bay, ibid., including the recommendations to increase the use of double-hulled vessels, J.A. 609, establish requirements for escort tugs, ibid., and adopt minimum safe manning standards, id. at The Coast Guard s Adoption Of A Vessel Manning Rule. The Coast Guard s advance notice of proposed rulemaking solicited public comment on whether there were alternatives to tug escorts, such as increased manning or pilotage requirements... that would provide an equivalent or improved level of navigational safety in Buzzards Bay. 69 Fed. Reg. at Several commentators suggested that the Coast Guard adopt increased crewing requirements for tugs towing barges, 71 Fed. Reg. at The Coast Guard agreed that current crewing requirements may be insufficient for the navigational demands associated with transiting Buzzards Bay, but concluded that the appropriate solution was to require a federally licensed pilot in addition to the crew to advise the master and assist in the navigation of the vessel. Ibid. In response to concerns that federally licensed pilots might not have adequate knowledge or experience to manage the 37

46 challenges of navigating in Buzzards Bay, the Coast Guard noted that the requirements for obtaining a Federal pilot s license (or endorsement) to operate a vessel in Buzzards Bay included specialized knowledge of the waters and proficiency in the use of navigational aids, and maneuvering and handling ships in high winds, tides, and currents. Ibid. The Coast Guard explained that it consider[ed] these proficiency standards to be sufficient for monitoring and guiding the movements of tug/barge combinations through Buzzards Bay. Ibid. The Coast Guard also evaluated a request, from members of the Massachusetts Congressional delegation, to institute minimum watch and manning requirements similar to those imposed by the Massachusetts Act. 72 Fed. Reg. at Ultimately, the Coast Guard concluded that the provisions of the final rule, along with other currently existing Federal statutes and regulations, provided sufficient watch and manning standards to ensure safe navigation on the Bay. Ibid. As the Coast Guard explained, [f]ederal regulations at 46 CFR 15 comprehensively regulate manning and watchstanding on tank vessels and tugs. Additionally, 33 CFR (c) specifically requires tankers to have at least two licensed deck officers on 38

47 watch on the bridge. Ibid. The Coast Guard further explained that the final rule added to these protections by requiring that a federally licensed pilot be employed in addition to the normal crew for the transit of any single hull tank barge through Buzzards Bay, requiring escort tugs, in addition to the primary tug, for all single hull tank barges transiting Buzzards Bay, and instituting a procedure for monitoring vessels through the Vessel Movement Reporting System established by this rule. Ibid. B. The Coast Guard Reasonably Determined That Its Final Rule Was Categorically Excluded From NEPA s Statutory Requirements. 1. As the Supreme Court has explained, [p]ersons challenging an agency's compliance with NEPA must structure their participation so that it... alerts the agency to the [parties ] position and contentions. Dep t of Transp. v. Public Citizen, 541 U.S. 752, 764 (2004) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resource Defense Council, Inc., 435 U.S. 519, 553 (1978)) (alterations in original). Applying that principle, the Court, in Public Citizen, refused to consider a claim that an agency should have considered alternatives to its proposed action in conducting an environmental assessment because petitioners had failed to raise that concern during the administrative process. 39

48 That principle applies here. The Coast Guard announced its intention to rely on a categorical exclusion in its Notice of Proposed Rulemaking, published in the federal register, and welcomed comments. See 71 Fed. Reg. at Defendants declined the Coast Guard s invitation and expressed no 9 concern about the use of a categorical exclusion. Nor did the Coast Guard receive any other comments relating to NEPA. As a result, the agency acted properly when it issued a categorical exclusion along with the final tug escort and vessel manning rules for Buzzards Bay. The Court, therefore, need not consider the specific NEPA argument advanced by appellants. 2. Were the Court to reach the question, however, it should affirm the district court s conclusion that any failure to comply with NEPA would constitute harmless error. The National Environmental Policy Act (NEPA) declares a broad 9 Because of an administrative error, the Coast Guard did not include the environmental checklist identified by the Notice of Proposed Rulemaking in the public docket. The Notice of Proposed Rulemaking does, however, announce the existence of that document and the Coast Guard s intention to rely on a categorical exclusion. Had appellants requested a copy of the environmental checklist, its omission from the public docket would surely have been discovered and corrected. Moreover, the federal register notice provided appellants with sufficient information to raise a concern that use of the proposed categorical exclusions was inappropriate. 40

49 national commitment to protecting and promoting environmental quality. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). NEPA itself does not mandate particular results in order to accomplish these ends. Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions. Public Citizen, 541 at (quoting Robertson, 490 U.S. at 350). These requirements include the preparation of an environmental impact statement if the agency determines that the proposed action will significantly affect[] the quality of the human environment. 42 U.S.C. 4332(2)(C). Allegations of a NEPA violation are analyzed for harmless error. This Court, like other courts of appeals, will only overturn an agency decision where a NEPA violation was prejudicial. Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 62 (1st Cir. 2001) (holding that remand for a differently named assessment, where the project s negative consequences have already been analyzed and found to be absent and the findings have been disclosed to the interested parties, is a waste of time ); accord Nevada v. Dep t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006) (listing cases). 41

50 Applying these principles, this Court in Save Our Heritage determined that it did not need to consider whether the agency had correctly construed its NEPA procedures because, even if the language of these procedures is read in petitioners favor, it makes no sense to remand for an environmental assessment where... [the agency] has already made a reasoned finding as to the environmental effects of its action. 269 F.3d at 61. As the Court explained, the agency had conducted earlier environmental studies evaluating the environmental considerations at issue in the agency s rulemaking, and petitioners mounted no challenge to the findings of these studies. Id. at Instead, petitioners offered only highly general claims about the agency s failure to consider particular issues, criticisms of the agency s factual assumptions, and abstract statements of disagreement by other entities. Id. at 60. As this Court noted, these objections were insufficient to require reversal of the agency s decision where the record established that the agency had considered all the relevant factors and petitioners had provided no basis for serious doubt about [the agency s] findings. Id. at 62. Here, the district court correctly determined that even if the Coast Guard was incorrect in determining that its rulemaking fell within a 42

51 categorical exclusion to NEPA s environmental analysis requirements, the Coast Guard s failure to prepare an environmental impact statement, or a threshold environmental assessment, was harmless error because... the Coast Guard conducted via the rulemaking process the very analysis that NEPA required it to make. J.A The district court found and the record reflects that, in promulgating its final rule, the Coast Guard considered the topography of Buzzards Bay, the findings of prior local studies, and the findings of an earlier Coast Guard study determining that double-hull vessels presented a considerably lower risk of oil spillage than single-hulled vessels. Id. at 546; see supra pp The further proceedings that appellants seek would therefore accomplish nothing beyond further expense and delay. 269 F.3d at 62 (internal quotation marks omitted). 3. In any event, the Coast Guard properly followed its NEPA procedures. As in Save Our Heritage, the agency here concluded that its determination fell within a general category of actions that the agency has determined are not likely to have a significant impact on the environment. Categorical exclusions of this kind are authorized by regulations of the 43

52 Council on Environmental Quality, which implements NEPA and has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement. Public Citizen, 541 U.S. at 757. Under these regulations, an agency may forgo the preparation of an environmental impact statement, and may also forgo the preparation of a threshold environmental assessment, 40 C.F.R , if the agency determines that its proposed action falls within a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations. 40 C.F.R The regulations further provide that any such procedures shall identify extraordinary circumstances in which a normally excluded action may have a significant environmental effect. Ibid. The Department of Homeland Security, of which the Coast Guard is part, see Pub. L. No (b) & (c), 116 Stat. 2135, has promulgated a directive for implementing NEPA that identifies categorical exclusions and also identifies extraordinary circumstances precluding an agency s reliance on a categorical exclusion. See 71 Fed. Reg (Apr. 4, 2006). The 44

53 directive states that [c]omponents may supplement this Directive, provided that any supplements are consistent with the Directive, and further provides that the directive shall prevail in case of any inconsistencies between the directive and an agency s supplementary procedures. Ibid. The Coast Guard, which had previously promulgated its own agency-specific NEPA procedures in an internal manual, was instructed to amend [its] procedures to conform to [the] Directive. Ibid. The Coast Guard s NEPA procedures provide for application of a categorical exclusion when the agency promulgates Regulations concerning vessel operation safety standards, 67 Fed. Reg , (July 23, 2002), and Regulations establishing, disestablishing, or changing Regulated Navigation Areas and security and safety zones, J.A Appellants do not dispute that these categorical exclusions are proper, or that they plainly apply to the Coast Guard s 2007 rulemaking for Buzzards Bay. Instead, appellants challenge the Coast Guard s determination that the rulemaking did not trigger any extraordinary circumstances requiring the preparation of an environmental assessment or an environmental impact statement. Because [t]he NEPA process involves an almost endless series of 45

54 judgment calls, Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987), agency decisions regarding NEPA are reviewed under the deferential standard of the Administrative Procedure Act. Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir. 1992). An agency s determination that a particular action falls within one of its categorical exclusions is reviewed under the arbitrary and capricious standard and an agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation. Alaska Center for the Environment v. U.S. Forest Service, 189 F.3d 851, 857 (9th Cir. 1999). The Department of Homeland Security s governing regulations identify, among the extraordinary circumstances precluding reliance on a categorical exclusion, circumstances where the proposed agency action is likely to involve a potential or threatened violation of a federal, state or local law or administrative determination imposed for the protection of the environment, or an effect on the quality of the human environment that is likely to be highly controversial in terms of scientific validity Fed. Reg. at The Coast Guard s NEPA procedures that predated the DHS rule 46

55 identified similar extraordinary circumstances, and the Coast Guard has reasonably interpreted the language of these procedures to conform to the Department of Homeland Security s governing regulations. Thus, the Coast Guard has explained that an action will present a potential or threatened violation of a pre-existing law or requirement imposed for the protection of the environment, J.A. 1180, when the agency undertakes an activity that requires a permit or will use agency employees or equipment in a manner that may pollute the air or water, or create noise in excess of an applicable legal standard, id. at 1187; see also 71 Fed. Reg. at Similarly, the Coast Guard has explained that the effects of an action are likely to be highly controversial if there is scientific controversy regarding the effects of the agency s actions on the environment. J.A The Coast Guard reasonably determined that its 2007 rulemaking was not likely to result in either of the foregoing circumstances. The 2007 final rule amended the Coast Guard s existing regulations to increase the operational safety requirements for towing vessels and tank barges in Buzzards Bay. It did not involve any proposals to employ agency individuals or equipment in an activity that required a permit or polluted the 47

56 environment in excess of an applicable legal standard. To the extent that there was controversy about the environmental effects of the Coast Guard s final rule, this controversy consisted of political opposition to the Coast Guard s intent and understanding that its regulatory actions for Northeast waters generally, and Buzzards Bay specifically, preempted any state law requirements addressed by the Coast Guard s rulemaking. None of the comments that the Coast Guard received from state and local governments raised any concerns about the scientific merits of the 2007 rule itself. See, e.g., J.A , , , , Massachusetts, in challenging this determination, claims that the Coast Guard s reliance on a categorical exclusion was improper because the 2007 rule was [i]nconsistent with a [s]tate [d]etermination [r]elating to the [e]nvironment, Commonwealth Br. 15, and, allegedly, decreased the level of environmental protection for Buzzards Bay, id. at 13. The former argument is based on an erroneous construction of the NEPA procedures promulgated by the Department of Homeland Security and the Coast Guard, which plainly focus on the potential for a violation of pre-existing law, not on the potential for inconsistency between state and federal regulatory 48

57 determinations. The latter argument fails in light of the Coast Guard s determination that its regulations would increase the level of protection for Buzzards Bay relative to the Coast Guard s existing regulations for the waters of the Northeast, which, the Coast Guard concluded, had already preempted the tug escort and vessel manning provisions of the Massachusetts Act. 63 Fed. Reg. at 54,639; 69 Fed. Reg. at 62430; 72 Fed. Reg. at ; see also J.A Also without merit is Massachusetts claim that the Coast Guard misinterpreted the meaning of controversy for purposes of the agency s categorical exclusion procedures. The Coast Guard interprets that extraordinary circumstance as applying only where the effects of an otherwise categorically excluded activity engender scientific controversy, and its interpretation is controlling unless plainly erroneous or inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452, (1997) (quotation marks omitted); see also Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S. Ct. 2458, 2468 (2009). The Coast Guard s interpretation sensibly effectuates the purpose of NEPA, which addresses the environmental effects of governmental action, not political opposition. See Public Citizen, 49

58 514 U.S. at (NEPA requires agencies to undertake analyses of the environmental impact of their proposals and actions ). As this Court observed in Save Our Heritage, based on the language of its categorical exclusion procedures, an agency may reasonably conclude that whether a project is environmentally controversial does not depend on whether vocal opponents exist but on whether reasonable disagreement exists over the project s risk of causing environmental harm. 269 F.3d at 61 (citing, as an example of regulatory language that could support this interpretation, 40 C.F.R (b)(4), which looks to [t]he degree to which the effects on the quality of the human environment are likely to be highly controversial ). The Coalition does not identify any basis for its position, other than adverting to a passing criticism of the Coast Guard by the district court (Coalition Br ), which expressed skepticism of the Coast Guard s determination that an environmental assessment was unnecessary. As the district court correctly concluded, however, even if the Coast Guard should have conducted an [environmental impact statement ( EIS )] or [an environmental assessment ( EA )], the failure to make that assessment was harmless error because... the Coast Guard conducted via rulemaking the 50

59 very analysis... which would have been made via ES [sic] or EIS should it have determined that one was required..., J.A CONCLUSION For the foregoing reasons, the district court s judgment should be affirmed. Respectfully submitted, s/ Anisha S. Dasgupta TONY WEST Assistant Attorney General CARMEN ORTIZ United States Attorney MARK B. STERN (202) ANISHA S. DASGUPTA (202) Attorneys, Appellate Staff Civil Division, Room 7533 Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C DECEMBER

60 CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a)(7)(B) I hereby certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 10,028 words. s/ Anisha S. Dasgupta Anisha S. Dasgupta

61 CERTIFICATE OF SERVICE I hereby certify that on December 13, 2010, I filed the foregoing Brief for the Federal Appellees through the Court s ECF system, which will cause it to be served on the following counsel, and I also served a copy on the following counsel by electronic mail and first-class U.S. Mail: Pierce Owen Cray Seth Schofield MA Attorney General's Office 1 Ashburton Pl. Boston, MA Amy E. Boyd Jonathan Mark Ettinger Foley Hoag LLP 155 Seaport Blvd. Seaport World Trade Center West Boston, MA Jeffrey Orenstein Reed Smith 1301 K Street Suite East Tower Washington, DC s/ Anisha S. Dasgupta Anisha S. Dasgupta U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 7533 Washington, DC (202) anisha.dasgupta@usdoj.gov

62 ADDENDUM

63 TABLE OF CONTENTS Ports and Waterways Safety Act, Title I (2006) 33 U.S.C a-1 33 U.S.C a-1 33 U.S.C a-2 33 U.S.C a-2 Coast Guard s 2007 Final Rule for Buzzards Bay 33 C.F.R a-4 An Act Relative to Oil Spill Prevention and Response in Buzzards Bay and Other Harbors and Bays of the Commonwealth (2004) Mass. Gen. Laws. c. 21M 1... a-7 Mass. Gen. Laws. c. 21M 4... a-8 Mass. Gen. Laws. c. 21M 6... a-9

64 33 U.S.C Statement of policy The Congress finds and declares-- Ports and Waterways Safety Act (2006) (a) that navigation and vessel safety, protection of the marine environment, and safety and security of United States ports and waterways are matters of major national importance; (b) that increased vessel traffic in the Nation's ports and waterways creates substantial hazard to life, property, and the marine environment; (c) that increased supervision of vessel and port operations is necessary in order to-- (1) reduce the possibility of vessel or cargo loss, or damage to life, property, or the marine environment; (2) prevent damage to structures in, on, or immediately adjacent to the navigable waters of the United States or the resources within such waters; (3) insure that vessels operating in the navigable waters of the United States shall comply with all applicable standards and requirements for vessel construction, equipment, manning, and operational procedures; and (4) insure that the handling of dangerous articles and substances on the structures in, on, or immediately adjacent to the navigable waters of the United States is conducted in accordance with established standards and requirements; and (d) that advance planning is critical in determining proper and adequate protective measures for the Nation's ports and waterways and the marine environment, with continuing consultation with other Federal agencies, State representatives, affected users, and the general public, in the development and implementation of such measures. 33 U.S.C Definitions As used in this chapter, unless the context otherwise requires-- (1) Marine environment means the navigable waters of the United States and the land and resources therein and thereunder; the waters and fishery resources of any area over which the United States asserts exclusive fishery management authority; the seabed and subsoil of the Outer Continental Shelf of the United States, the resources thereof and the waters superjacent thereto; and the recreational, economic, and scenic values of such waters and resources. (2) Secretary means the Secretary of the department in which the Coast Guard is operating, except that Secretary means the Secretary of Transportation with respect to the application of this chapter to the Saint Lawrence Seaway. (3) State includes each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the United States Virgin Islands, the Trust Territories of the Pacific Islands, the Commonwealth of the Northern Marianas, and any other commonwealth, territory, or possession of the United States. (4) United States, when used in geographical context, means all the States thereof. a-1

65 (5) Navigable waters of the United States includes all waters of the territorial sea of the United States as described in Presidential Proclamation No of December 27, U.S.C Considerations by Secretary In carrying out his duties and responsibilities under section 1223 of this title, the Secretary shall-- (a) take into account all relevant factors concerning navigation and vessel safety, protection of the marine environment, and the safety and security of United States ports and waterways, including but not limited to-- (1) the scope and degree of the risk or hazard involved; (2) vessel traffic characteristics and trends, including traffic volume, the sizes and types of vessels involved, potential interference with the flow of commercial traffic, the presence of any unusual cargoes, and other similar factors; (3) port and waterway configurations and variations in local conditions of geography, climate, and other similar factors; (4) the need for granting exemptions for the installation and use of equipment or devices for use with vessel traffic services for certain classes of small vessels, such as self-propelled fishing vessels and recreational vessels; (5) the proximity of fishing grounds, oil and gas drilling and production operations, or any other potential or actual conflicting activity; (6) environmental factors; (7) economic impact and effects; (8) existing vessel traffic services; and (9) local practices and customs, including voluntary arrangements and agreements within the maritime community; and (b) at the earliest possible time, consult with and receive and consider the views of representatives of the maritime community, ports and harbor authorities or associations, environmental groups, and other parties who may be affected by the proposed actions. 33 U.S.C Regulations (a) In general In accordance with the provisions of section 553 of Title 5, the Secretary shall issue, and may from time to time amend or repeal, regulations necessary to implement this chapter. (b) Procedures The Secretary, in the exercise of this regulatory authority, shall establish procedures for consulting with, and receiving and considering the views of all interested parties, including a-2

66 (1) interested Federal departments and agencies, (2) officials of State and local governments, (3) representatives of the maritime community, (4) representatives of port and harbor authorities or associations, (5) representatives of environmental groups, (6) any other interested parties who are knowledgeable or experienced in dealing with problems involving vessel safety, port and waterways safety, and protection of the marine environment, and (7) advisory committees consisting of all interested segments of the public when the establishment of such committees is considered necessary because the issues involved are highly complex or controversial. a-3

67 (5) Persons desiring to enter the safety zone may request permission from the Captain of the Port Boston via VHF Channel 16 or via telephone at (617) l safe- (d) Enforcement Period. This rule will be enforced from midnight June 11, 2009, until midnight July 25, EFFECTIVE DATE NOTE: By USCG , U8CG , 74 FR 29425, June 22, 2009, temporary 165.TO TOI-0512 was added, effective from mid- midnight June 11, 2009 through midnight July 25, Regulated Navigation Area: Navigable waters within the First Coast Guard District. (a) Regulated navigation area. All nav- navigable waters of the United States, as that term is used in 33 CFR 2.36, within the geographic boundaries of the First Coast Guard District, as defined in 33 CFR (b). (b) Definitions. Terms used in this section have the same meaning as those found in 33 CFR Singlehull identifies any tank barge that is not a double-hull tank barge. (c) Applicability. This section applies to primary towing vessels engaged in towing tank barges carrying petroleum oil in bulk as cargo in the regulated navigation area, or as authorized by the District Commander. (d) Regulations-(1) Positive control for barges. (i) Except as provided in para- paragraph (d)(1)(iii) and paragraph 5 of this section, each single hull tank barge, unless being towed by a primary tow towing vessel with twin-screw propulsion and with a separate system for power to each screw, must be accompanied by an escort tug of sufficient capability to promptly push or tow the tank barge away from danger of grounding or col- collision in the event of- (A) A propulsion failure; (B) A parted towing line; Single- (C) A loss of tow; (D) A fire; (E) Grounding; (F) A loss of steering; or (G) Any other time a vessel may be operating in a Hazardous Vessel Oper- Operating Condition as defined in 16l of this Chapter. (ii) Double-hull tank barges are exempt from paragraph (d)(1)(i) of this section. ex- 33 CFR Ch. I 1 ( Edition) (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 satisfac- satisfaction of the COTP that the barge employs an equivalent level of safety to that provided by the positive control em- 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. (iv) The operator of a towing vessel engaged in towing any tank barge must immediately call for an escort or assist tug to render assistance in the event of any of the occurrences identified in paragraph (d)(i)(i) (d)(1)(i) of this section. (2) Enhanced communications. Each vessel engaged in towing a tank barge must communicate by radio on marine band or Very High Frequency (VHF) channel 13 or 16, and issue security calls on marine band or VHF channel 13 or 16, upon approach to the following places: (i) Execution Rocks Light (USCG Light List No. [LLNR] 21440). (ii) Matinecock Point Shoal Buoy (LLNR 21420). (iii) 32A Buoy (LLNR 21380). (iv) Cable and Anchor Reef Buoy (LLNR 21330). (v) Stratford Middle Ground Light (LLNR 21260). (vi) Old Field Point Light (LLNR 21275). (vii) Approach to Stratford Point from the south (NOAA Chart 12370). (viii) Falkner Island Light (LLNR 21170). (ix) TE Buoy (LLNR 21160). (x) CF Buoy (LLNR 21140). (xi) PI Buoy (LLNR 21080). (xii) Race Rock Light (LLNR 19815). (xiii) Valiant Rock Buoy (LLNR 19825). (xiv) Approach to Point Judith in vicinity of Block Island ferry route. vi- (xv) Buzzards Bay Entrance Light (LLNR 630). 644 a-4 HeinOnline -- CFR

68 Coast Guard, DHS (xvi) Buzzards Bay Midchannel Lighted Buoy (LLNR 16055) (xvii) Cleveland East Ledge Light Light- (LLNR 16085). (xviii) Hog Island buoys 1 (LLNR 16130) and 2 (LLNR 16135). (xix) Approach to the Bourne Bridge. (xx) Approach to the Sagamore Bridge. (xxi) Approach to the eastern entrance of Cape Cod Canal. en- (3) Voyage planning. (i) Each owner or operator of a towing vessel employed to tow a tank barge shall prepare a written voyage plan for each transit of the tank barge. (ii) The watch officer is authorized to make modifications to the plan and validate it as necessary. (iii) Except as provided in paragraph (d)(3)(iv) of this section, each voyage plan must contain: (A) A description of the type, volume, and grade of cargo. (B) Applicable information from nau- nautical charts and publications, including Coast Pilot, Coast Guard Light List, and Coast Guard Local Notice to Mariners, for the destination(s). (C) Current and forecasted weather, Mari- including visibility, wind, and sea state for the destination(s). (D) Data on tides and tidal currents for the destination(s). (E) Forward and after drafts of the tank barge, and under-keel and vertical clearances for each port and berthing area. (F) Pre-departure checklists. (G) Calculated speed and estimated times of arrival at proposed waypoints. (H) Communication contacts at Vessel Traffic Service (VTS) (if applica- applica Vesble), bridges, and facilities, and portspecific requirements for VHF radio. (I) The master's standing orders de detailing closest points of approach, spe special conditions, and critical maneu maneu- portvers. (iv) Each owner or operator of a tank barge on an intra-port transit of not more than four hours may prepare a voyage plan that contains: (A) The information described in paragraphs (d)(3)(iii)(d) and (E) of this section. (B) Current weather conditions including visibility, wind, and sea state. This information may be entered in eiin ther the voyage plan or towing vessel's log book. (C) The channels of VHF radio to monitor. (D) Other considerations such as availability of pilot, assist tug, berth, and line-handlers, depth of berth at mean low water, danger areas, and security calls. (4) Navigation restriction areas. Unless se- authorized by the cognizant COTP, no tank barge may operate in- (i) The waters of Cape Cod Bay south of latitude 42o5 42 5' ' North and east of lon- longitude 70 25' ' West; or (ii) The waters of Fishers Island Sound east of longitude ' ' West, and west of longitude 71O55 71"55' ' West. (5) Special Buzzards Bay regulations. (i) For the purposes of this section, "Buzzards Bay" is the body of water east and north of a line drawn from the southern tangent of Sakonnet Point, Rhode Island, in approximate position latitude ' ' North, longitude ' West, to the Buzzards Bay Entrance Light in approximate position latitude 41' ' ' North, longitude 71 _ En- 02.0' West, and then to the south- southwestern tangent of Cuttyhunk Island, Massachusetts, at approximate posi- position latitude 41"-24.6' ' North, longitude ' ' West, and including all of the Cape Cod Canal to its eastern entrance, except that the area of New Bedford harbor within the confines (north) of the hurricane barrier, and the passages through the Elizabeth Islands, is not considered to be "Buzzards Bay". (ii) Additional positive control for barges. Except as provided in paragraph (d)(1)(iii) of this section, each single hull tank barge transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must, in addition to its primary tug, be accompanied by an escort tug of sufficient capability to promptly push or tow the tank barge away from danger of grounding or collision in the event of- (A) A propulsion failure; (B) A parted tow line; (C) A loss of tow; (D) A fire; (E) Grounding; (F) A loss of steering; or suffi- 645 a-5 HeinOnline -- CFR

69 a-6 HeinOnline -- CFR (G) Any other time a vessel may be operating in a Hazardous Vessel Operating Condition as defined in of Oper- this subchapter. (iii) Federal pilotage. Each single hull tank barge transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must be under the direction and control of a pilot, who is not a member of the crew, operating under a valid, appropriately endorsed, Federal first class pilot's license issued by the Coast Guard ("fed ("fed- lierally licensed pilot"). Pilots are re- required to embark, direct, and control from the primary tug during transits of Buzzards Bay. (iv) In addition to the vessels denoted in of this chapter, requirements set forth in subpart B of 33 CFR part 161 also apply to any vessel transiting VMRS Buzzards Bay required to carry a bridge-to-bridge radiotelephone by Part 26 of this chapter. (A) A VMRS Buzzards Bay user must: (1) Not enter or get underway in the area without first notifying the VMRS Center; (2) Not enter VMRS Buzzards Bay if a Hazardous Vessel Operating Condition or circumstance per of this Sub Sub-. chapter exists; (3) If towing astern, do so with as short a hawser as safety and good seamanship permits; (4) Not meet, cross, or overtake any other VMRS user in the area without first notifying the VMRS center; (5) Before meeting, crossing, or over overtaking any other VMRS user in the area, communicate on the designated vessel bridge-to-bridge radiotelephone frequency, intended navigation move movements, and any other information nec necessary in order to make safe passing arrangements. This requirement does not relieve a vessel of any duty pre pre- seascribed by the International Regulations for Prevention of Collisions at Sea, 1972 (33 U.S.C. 1602(c)) or the In- In Regulaland Navigation Rules (33 U.S.C. 2005). (B) [Reserved] (e) In addition to the authority for this part 165, this section is also au- 33 CFR Ch. 1 I ( Edition) thorized under authority of section 311, Pub. L [CGDI , [CGDl , 63 FR 71770, Dec. 30, 1998, as amended by CGD , CGDOl , 64 FR 12749, Mar. 15, 1999; USCG , USCG-199!}-5832, 64 FR 34715, June 29, 1999; CGD , CGDOl , 65 FR 35838, June 6, 2000; CGD , 72 FR 50058, Aug. 30, 2007; CGD , 72 FR 70780, Dec. 13, 2007; USCG , 73 FR 35016, June 19, 2008] Kittery, Maine-regulated navigation area. (a) The following is a regulated navi- navigation area-waters within the boundaries of a line beginning at 43 04'50" 43004'50" N, bound '52" 70o44'52" W; then to 43104'52" 43 04'52" N, 70144'53" 70 44'53" W; then to 43*04' '59" " N, 70 44'46" 70144'46" W; then to 43105' '05" " N, 70 44'32" 70144'32 " W; then to 43 05'03" 43O05'03" N, 70 44'30" 70144'30" W; then to the beginning point. point. be- (b) Regulations. No vessel may oper- operate in this area at a speed in excess of five miles per hour Security Zone: Walkers Point, Kennebunkport ME. (a) Location. The following area is a security zone: From point of land located on Cape Arundel at latitude ' 43'20.4 ' North, longitude Iongitude ' ' West; thence to a point point approximately 500 yards southwest of Walkers Point lo- lo located at latitude ' 43'20.2' North, lon- longitude ' 070'27.9 ' West; thence to a point located approximately 500 yards south of Walkers Point at latitude ' ' North, longitude ' 070o27.6' West; thence to a point located approximately southeast of Walkers Point at latitude 43'20.4' ' North, longitude ' ' West; thence to an unnamed point point of land lo- located at ' 43'20.9' North, longitude ' ' West; thence along the shoreline of Walkers Point to the beginning point. The aforementioned offshore po- positions are approximated by white buoys marked in orange indicating an exclusionary area. (b) Regulations. (1) In accordance with the general regulations in of this part, entry into this zone is pro- prohibited unless authorized by the Cap- Captain of the Port, Portland, Maine. Sec- Section also contained other general requirements. shore- (2) No person may swim upon or below the surface of the water within the boundaries of this security zone. [CGDI , 54 FR 13883, Apr. 6, 1989]