Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Proposed Rules 62427

In a final rule published March 29, 

2002 (67 FR 15102), the FHWA said it 

was preparing to issue a notice of 

proposed rulemaking (NPRM) to 

consider an extension from three inches 

(the current U.S. exclusion standard) to 

four inches in the distance that nonproperty carrying devices could 

protrude from the sides of commercial 

motor vehicles. The NPRM was 

eventually published under FHWA 

Docket No. 2001–10370 on July 29, 2002 

(67 FR 48994). 

Because of concerns raised by several 

respondents to this NPRM, in particular 

the absence of research on the effects of 

such an increase, the FHWA determined 

it appropriate to issue a supplemental 

notice of proposed rulemaking 

(SNPRM). On March 12, 2004, the 

FHWA published an SNPRM requesting 

further public comment on the proposal 

under Docket No. FHWA–2003–16164 

(65 FR 11997). By issuing the SNPRM, 

the FHWA sought to obtain information 

that would document the experience of 

others in undertaking similar changes to 

vehicle width exclusion standards or 

monitoring and evaluating vehicle 

crashes caused by contact with width 

exclusive devices. Our goal was to 

ascertain whether there might be any 

known operating or safety repercussions 

that could result from the one-inch 

increase. 

The FHWA received 3 comments in 

response to the SNPRM. None of these 

provided any more definitive 

information to make the required 

determination that the proposed 

expansion of the width exclusion is 

needed to promote commercial motor 

vehicle safety and efficiency. We 

received comments from an individual, 

the Truck Manufacturers Association 

(TMA), and the Advocates for Highway 

and Automobile Safety (AHAS). 

Discussion of Comments 

The individual commented that a 

Federal rule requiring all States to allow 

an extra inch on each side of 

commercial motor vehicles (CMVs) for 

non-cargo carrying devices on the 

National Network (NN) and reasonable 

access routes would be more efficient 

than each State issuing its own 

overwidth permits. Nevertheless, she 

opposed such a rule because issuing a 

special permit would be different than 

allowing a whole class of ‘‘humongous’’

vehicles. It appears that her objection 

was not so much directed at an extra 

inch for safety or energy conserving 

devices, but at the overall size of trucks, 

which is beyond the scope of this 

rulemaking action.

The TMA stated that the FHWA 

would be unable to find answers 

concerning possible effects of allowing 

the additional inch for excluded 

devices. It noted that this situation was 

not surprising, given the ‘‘obscure and 

essentially unresearchable nature of the 

underlying question—namely, will one 

inch of additional width of a vehicle, all 

things else being equal, cause more 

crashes?’’ It noted that the proposed 

change would not increase the width 

dimensions of the vehicle per se, but 

only the attached, excludable non-cargo 

carrying devices. The TMA stated that 

the change in ‘‘encroachments’’ of these 

devices would be ‘‘extremely small,’’

would make ‘‘researching the crash 

cause and effect relationship’’ very 

difficult, and would ‘‘not [be] readily 

identifiable in crash data bases.’’ The 

TMA concluded that, ‘‘given the de 

minimus nature’’ of the change, and the 

benefits to NAFTA harmonization 

efforts, it would support the one-inch 

increase proposed in the NPRM and 

SNPRM. 

Repeating its earlier objections to the 

NPRM, the AHAS again opposed the 

proposal for the one-inch change in the 

exclusion provisions. Referring to the 

FHWA’s request for information in the 

SNPRM, it concluded that ‘‘the FHWA 

has acknowledged [in the SNPRM] the 

need to make a specific safety finding 

on the safety consequences of allowing 

an additional inch of width on each side 

of a commercial motor vehicle.’’ The 

AHAS also challenged the FHWA’s 

reliance upon sources claiming no 

knowledge about the ‘‘precise safety 

effects of vehicle width increases’’ as an 

‘‘application of agency expertise.’’ The 

AHAS indicated that such reliance 

would not allow the FHWA to ‘‘draw 

well-crafted and strongly supported 

conclusions from the facts entered into 

the record.’’

It further noted that the references 

cited in the SNPRM are no substitute for 

making ‘‘specific safety findings about 

the consequences of change in policy,’’

and demanded that the agency employ 

‘‘empirical’’ research, rather than rely 

upon sources that can offer no insight 

into the safety consequences of the 

suggested change. The AHAS reminded 

the FHWA that the requirement for such 

empirical research grows out of a 

‘‘statutory obligation to measure the 

safety impact of such changes’’ that 

cannot be satisfied merely by 

‘‘expressions of ignorance or a priori 

argument.’’

The AHAS further stated that adding 

an extra inch in the width of excluded 

devices is not a de minimus change in 

the current limitation. It also noted that 

there are many highways on the NN 

with less than 12-foot wide lanes where 

the one-inch increase could have safety 

implications. 

Conclusion 

The FHWA is unable to determine at 

this time that there is a need for an 

increase in the existing width exclusion 

applicable to safety and energy 

conservation devices. The 

administrative record of this rulemaking 

action has failed to identify any specific 

devices that would need the proposed 

expansion of the width exclusion in 

order to promote commercial motor 

vehicle safety and efficiency. In 

addition, there is no evidence that the 

lack of harmonization is adversely 

affecting NAFTA implementation or 

that harmonization in this area is 

otherwise necessary. Therefore, the 

FHWA is withdrawing this rulemaking 

and closing the docket.

Authority: 23 U.S.C. 127 and 315; 49 

U.S.C. 31111 through 31115; 49 CFR 

1.48(b)(19) and (c)(19).

Issued on: October 20, 2004. 

Mary E. Peters, 

Federal Highway Administrator.

[FR Doc. 04–23966 Filed 10–25–04; 8:45 am] 

BILLING CODE 4910–22–P

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[CGD01–04–133] 

RIN 1625–AA11 

Navigation and Waterways 

Management Improvements, Buzzards 

Bay, MA

AGENCY: Coast Guard, DHS.

ACTION: Advance notice of proposed 

rulemaking; notice of public meetings. 

SUMMARY: The Coast Guard is 

considering amending the existing 

Regulated Navigation Area for navigable 

waters within the First Coast Guard 

District, to require additional navigation 

safety measures within Buzzards Bay, 

including tug escorts and use of 

Recommended Routes. This advance 

notice of proposed rulemaking seeks 

public comment on the merits, 

advantages, and disadvantages of any 

amendment to the currently-existing 

RNA that would require tug escort of 

tank barges transiting Buzzards Bay, 

Massachusetts. In addition, the Coast 

Guard seeks comments on the merits of 

formally designating the existing 

Recommended Route in Buzzard’s Bay.

62428 Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Proposed Rules 

DATES:

1. Comments are due on or before 

December 27, 2004. 

2. Public hearings will be held at 7:30 

p.m. on November 16, 2004, and at 7:30 

p.m. on November 17, 2004.

ADDRESSES: The Commanding Officer, 

U.S. Coast Guard Marine Safety Office 

Providence maintains the public docket 

for this ANPRM. Comments and 

documents will become part of this 

docket and will be available for 

inspection and copying at the same 

address between 8 a.m. and 3 p.m. 

Monday through Friday, except Federal 

holidays. You may submit comments 

and related material by: 

(1) Mail or delivery to Commanding 

Officer, U.S. Coast Guard Marine Safety 

Office Providence, 20 Risho Avenue, 

East Providence, RI, 02914–1208. 

(2) Fax to 401–435–2399. 

(3) Electronically via e-mail at 

EleBlanc@msoprov.uscg.mil.

The public hearing locations are: 

(1) New Bedford Whaling Museum, 18 

Johnny Cake Hill, New Bedford, MA; 

and 

(2) Massachusetts Maritime Academy, 

101 Academy Drive, Buzzard’s Bay, MA.

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this ANPRM, 

address mail to, or call, e-mail, or fax, 

Mr. Edward G. LeBlanc, c/o 

Commanding Officer, U.S. Coast Guard 

Marine Safety Office Providence, 20 

Risho Avenue, East Providence, RI 

02914–1208, telephone 401–435–2351, 

or e-mail at EleBlanc@msoprov.uscg.mil,

or fax 401–435–2399.

SUPPLEMENTARY INFORMATION: 

Request for Comments 

We encourage you to participate by 

submitting comments and related 

material. If you do so, please include 

your name and address, identify the 

docket number for this ANPRM 

(CGD01–04–133), indicate the specific 

section of this document to which each 

comment applies, and give the reason 

for each comment. You may submit 

your comments and material by mail, 

hand delivery, fax, or electronic means 

to the project officer at the addresses or 

phone numbers listed under FOR

FURTHER INFORMATION CONTACT, but 

please submit your comments and 

material by only one means. If you 

submit them by mail or hand delivery, 

submit them in an unbound format, no 

larger than 81⁄2 by 11 inches, suitable for 

copying and electronic filing. If you 

submit them by mail and would like to 

know that they reached U.S. Coast 

Guard Marine Safety Office Providence, 

please enclose a stamped, self-addressed 

postcard or envelope. We will consider 

all comments and material received 

during the comment period. 

Public Meetings 

We intend to hold two public 

meetings to receive comments on this 

ANPRM. The times, dates, and locations 

for these meetings are: 

(1) 7:30 p.m., Tuesday, November 

16th, 2004, New Bedford Whaling 

Museum, 18 Johnny Cake Hill, New 

Bedford, MA; and 

(2) 7:30 p.m. Wednesday, November 

17th, 2004, Massachusetts Maritime 

Academy, 101 Academy Drive, 

Buzzards Bay, MA. 

Background and Purpose 

Congress designated Buzzards Bay as 

an Estuary of National Significance in 

1985, one of only five estuaries in the 

U.S. so designated. The Bay has some of 

Massachusetts’ most productive 

shellfish beds. It interacts with three 

very different marine systems, the 

Atlantic Ocean to the south, Vineyard 

Sound to the east, and Cape Cod Bay to 

the north. In 2002, there were nearly 

10,000 commercial vessel transits and 

over 1200 tank barge transits in 

Buzzards Bay, and an estimated 80% of 

those tank barges were single hull 

vessels. Since 1969 there have been 

several significant incidents of tank 

barge groundings and tank barge 

groundings with oil spills in Buzzards 

Bay, including the grounding of the tank 

barge Florida in 1969 with a spill of 

approximately 175,000 gallons of No. 2 

fuel oil; the grounding of the tank barge 

Bouchard in 1977 with a spill of 

approximately 81,000 gallons of No. 2 

fuel oil; the grounding of the tank barge 

ST–85 in 1986 with a spill of 

approximately 119,000 gallons of 

gasoline; the grounding of the tug Marie 

J. Turecamo and its asphalt-laden barge 

in 1999; the grounding of the tug Mary 

Turecamo and its barge Florida in 1999 

carrying 4.7 million gallons of No. 6 fuel 

oil; and the grounding of the barge B–

120 in April 2003 with a spill of No. 6 

oil estimated to be of approximately 

22,000 to 98,000 gallons. Groundings or 

collisions of tank barges could lead to a 

significant discharge or release of oil or 

other hazardous materials, as 

demonstrated by the incidents noted 

above, with potentially significant 

adverse impacts on the coastal and 

maritime environment, and the local 

economy. The purpose of examining 

strategies for navigation and waterways 

management improvements in Buzzards 

Bay is to reduce the likelihood of 

another accident that might result in the 

discharge or release of oil or hazardous 

material into the navigable waters of the 

United States. 

After a previous oil spill from the tank 

barge North Cape off of Point Judith, 

Rhode Island, in 1996, the Coast Guard 

chartered a Regional Risk Assessment 

Team (RRAT), comprised of 

government, commercial, and 

environmental entities, to examine 

navigation safety issues within New 

England waters. The RRAT 

recommended, and the Coast Guard 

implemented, a Regulated Navigation 

Area (RNA) that imposed certain 

requirements on single-hulled tank 

barges transiting New England waters, 

including Buzzards Bay. Subsequent to 

an oil spill in Buzzards Bay in April, 

2003, noted above, the Coast Guard 

sponsored a Ports and Waterways Safety 

Assessment (PAWSA), which was 

conducted by a cross-section of key 

Buzzards Bay waterways users and 

stakeholders, resulting in numerous 

suggestions for improving navigation 

safety in the Bay. The PAWSA report 

suggested, in part, that the risk for oil or 

hazardous material discharge in 

Buzzards Bay is relatively high, and that 

one method of reducing that risk, among 

many that were suggested, might be to 

‘‘establish requirements for escort tugs.’’ 

(The PAWSA report is available in 

docket CGD01–04–133. See ADDRESSES

above on procedures to access the 

docket.) The PAWSA also 

recommended that Recommended 

Routes be established to help assist 

vessel traffic and provide safer transit 

routes for commercial vessels. 

Additionally, in a letter from several 

members of the U.S. Congressional 

delegation from Massachusetts, the 

Coast Guard was asked to consider 

measures similar to those recommended 

in the PAWSA, specifically: Assist tugs, 

Recommended Routes, and an 

Automatic Identification System (AIS). 

This letter, along with the Coast Guard’s 

response, in available in the public 

docket.

AIS is currently the subject of a 

separate Coast Guard rulemaking 

process. See docket USCG–2003–14878, 

68 FR 39369, or at http://dms.dot.gov/.

Under the AIS rule, tank barges, among 

others, transiting Buzzards Bay would 

be required to carry AIS, although an 

implementation date for that carriage 

requirement has not yet been 

established, except for certain vessels on 

international voyages. Additionally, the 

Coast Guard Marine Safety Office, 

Providence, RI, has requested that 

Buzzards Bay be designated a Vessel 

Movement Reporting System under 33 

CFR 161 to monitor the movements of 

certain vessels, including tank barges 

under tow, within Buzzards Bay. That 

request is currently under review by 

Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Proposed Rules 62429

Coast Guard headquarters in 

Washington, DC. A copy of this request 

is available in the public docket for this 

ANPRM (CGD01–04–133). 

The National Oceanic and 

Atmospheric Administration (NOAA), 

at the request of the Coast Guard, has 

already indicated Recommended Routes 

on navigational charts for Rhode Island 

Sound, Narragansett Bay, and Buzzards 

Bay. These recommended Routes are 

currently included on all new editions 

of charts 13205, 13218, 13221, and 

13230. Currently, an escort tug is 

required in Buzzards Bay only for single 

hull tank barges, unless the single hull 

tank barge is being towed by a primary 

towing vessel with twin-screw 

propulsion and with a separate system 

for power to each screw. Consequently, 

the vast majority of tug and barges 

transiting Buzzards Bay (of which most 

barges are single hull) employ tugs with 

twin screws and twin engines, but with 

no additional positive control. The 

Coast Guard is considering 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, to 

ensure positive control of the tank 

vessel. 

Discussion of Proposed Regulation 

The Coast Guard is considering a 

regulation that would require tug escorts 

of all laden tank barges. The Coast 

Guard is also seeking comments on the 

merits of formally designating the 

existing Recommended Route, currently 

in place in Buzzards Bay. 

For the purposes of this Notice, the 

following terms are as defined in 46 

U.S.C. 2101: 

Tank vessel is defined as ‘‘a vessel 

that is constructed or adapted to carry, 

or that carries, oil or hazardous material 

in bulk as cargo or cargo residue.’’

Barge is defined as a non-selfpropelled vessel. 

Oil is defined as ‘‘oil of any type or 

in any form, including petroleum, fuel 

oil, sludge, oil refuse, and oil mixed 

with wastes except dredged spoil.’’

Hazardous material is defined as ‘‘a 

liquid material or substance that is 

flammable or combustible; designated a 

hazardous substance under section 

311(b) of the Federal Water Pollution 

Control Act (33 U.S.C. 1231); or 

designated a hazardous material under 

49 U.S.C. 5103(a)’’. 

For the purposes of this Notice, ‘‘tank 

barge’’ is a non-self-propelled vessel 

constructed or adapted to carry, or that 

carries, oil or hazardous material in bulk 

as cargo or cargo residue. 

For the purposes of this Notice, the 

following term is as defined in 33 CFR 

165.100, ‘‘Regulated Navigation Area: 

Navigable waters within the First Coast 

Guard District:’’

Tug escort is an escort or assist tug ‘‘of 

sufficient capability to promptly push or 

tow the tank (vessel) away from danger 

of grounding or collision in the event of 

a propulsion failure; a parted towing 

line; a loss of tow; a fire; grounding; a 

loss of steering; or any other casualty 

that affects the navigation or 

seaworthiness of either vessel.’’

For the purposes of this Notice, 

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 41°27.2′ N, longitude 70°11.7′

W, to the Buzzards Bay Entrance Light 

in approximate position latitude 

41°23.5′ N, longitude 71°02.0′ W, and 

then to the southwestern tangent of 

Cuttyhunk Island, Massachusetts, at 

approximate position latitude 41°24.6′

N, longitude 70°57.0′ W, 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, 

would not be considered to be Buzzards 

Bay. 

Recommended Route is the light 

green-shaded route contained on the 

most recent editions of NOAA 

navigational charts 13230 and 13218, 

and accompanied by a ‘‘Note’’ on each 

chart which reads ‘‘Recommended 

Routes for deep draft vessels (including 

tugs and barges) entering and departing 

Rhode Island Sound, Block Island 

Sound, Narragansett Bay, and Buzzards 

Bay. While not mandatory, deep draft 

commercial vessels (including tugs and 

barges) are requested to follow the 

Recommended Routes at the master’s 

discretion. Other vessels, while not 

excluded from these Recommended 

Routes, should exercise caution in and 

around these areas and monitor VHF 

channel 16 or 13 for information 

concerning deep draft vessels (including 

tugs and barges) transiting these routes. 

See U.S. Coast Pilot Section 2, Chapter 

5, 6 or 7 as appropriate.’’ These 

Recommended Routes are not part of the 

internationally recognized and 

approved Narragansett Bay Traffic Lane 

and Buzzards Bay Traffic Lane in Rhode 

Island Sound, and have not been 

formally adopted by the Coast Guard. 

Questions 

We invite the public to answer the 

following questions. Any additional 

information provided on this topic is 

welcome. In responding to each 

question, please identify the question to 

which your response applies, and 

explain your reasoning as fully as 

possible so that we can carefully weigh 

the consequences and impacts of any 

future regulatory actions the Coast 

Guard may take. 

In preparing your responses to these 

questions, please indicate your position 

in the maritime industry, if applicable. 

Tug Escorts 

1. What would constitute an effective 

‘‘tug escort?’’ Does the definition in this 

ANPRM suffice? 

2. What would be the costs, if any, to 

tank barge owners, operators, and 

consumers, of requiring a tug escort for 

all tank barges transiting Buzzards Bay?

3. What would be the economic 

impact to small entities, if any, of a 

requirement that all tank barges have 

tug escorts? ‘‘Small entities’’ is as 

defined by Regulatory Flexibility Act [5 

U.S.C. 601], and generally refers to an 

enterprise or business that ‘‘is 

independently owned and operated and 

which is not dominant it its field of 

operation.’’

4. Would a requirement that all tank 

barges have tug escorts cause a shortage 

of tug availability in the Buzzards Bay 

or Northeast U.S. areas? If so, what are 

the likely, potential economic impacts? 

Would rates for hiring tugs in the 

Buzzards Bay or Northeast U.S. areas 

change significantly as a result of such 

a requirement? If so, how much would 

rates change? 

5. Are there alternatives to tug escorts, 

such as increased manning or pilotage 

requirements on tugs, or double hulls on 

barges, that would provide an 

equivalent or improved level of 

navigational safety in Buzzards Bay? 

Vessel Routing 

6. Would a requirement that tank 

barges under tow, and with tug escort, 

use the Recommended Route in 

Buzzards Bay currently displayed on 

NOAA charts have any adverse 

economic or navigation safety impacts? 

7. Are there other alternatives to 

required routing that would enhance 

navigational safety in Buzzard’s Bay, 

such as a Recommended Route 

approved by the International Maritime 

Organization? If so, should such a route 

differ from the Recommended Route 

currently shown on navigational charts? 

Comments are not limited to the 

preceding questions and are invited on 

any aspect of the proposed regulation. 

Federalism 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on state or local governments and 

would either preempt State law or 

62430 Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Proposed Rules 

impose a substantial direct cost of 

compliance on them. The U.S. Supreme 

Court, in the cases of United States v. 

Locke, 529 U.S. 89 (2000) and Ray v. 

Atlantic Richfield Co., 435 U.S. 151 

(1978) has ruled that certain categories 

regulation issued pursuant to the Ports 

and Waterways Safety Act of 1972, as 

amended, are reserved exclusively to 

the Coast Guard, and that state 

regulation in these areas is preempted. 

On August 4, 2004, the 

Commonwealth of Massachusetts 

enacted Chapter 251 of the Acts of 2004, 

an Act Relative to Oil Spill Prevention 

and Response in Buzzard’s Bay and 

Other Harbors and Bays of the 

Commonwealth. It is the view of the 

Coast Guard that several provisions of 

the Massachusetts Act touch categories 

of regulation reserved to the Federal 

Government and are preempted per the 

rulings in Locke and Ray. It is likely that 

any regulations promulgated as a result 

of this advance notice of proposed 

rulemaking would likewise touch 

categories of regulation reserved to the 

Federal Government, thus becoming 

further indicia of preemption. 

Section 17 of the Massachusetts Act 

purports to impose a state pilotage 

requirement on certain vessels engaged 

in the coastwise trade. It is the view of 

the Coast Guard that this provision is 

void by operation of law pursuant to 46 

U.S.C. § 8501. Coast Guard regulations 

promulgated as a result of this advance 

notice of proposed rulemaking may also 

address pilotage. 

Because of the preemption issues 

described above, the Coast Guard will 

conduct a Federalism analysis pursuant 

to E.O. 13132 for any rules promulgated 

as a result of this notice. Sections 4 and 

6 of E.O. 13132 require that for any rules 

with preemptive effect, the Coast Guard 

shall provide elected officials of affected 

state and local governments and their 

representative national organizations 

the notice and opportunity for 

appropriate participation in any 

rulemaking proceedings, and to consult 

with such officials early in the 

rulemaking process. Although it is the 

view of the Coast Guard that certain 

sections of the Massachusetts law are 

preempted for reasons independent of 

any potential rulemaking action here, in 

order to comply with the spirit of E.O. 

13132, the Coast Guard has already 

begun consultations with the state 

government of Commonwealth of 

Massachusetts. We invite other affected 

state and local governments and their 

representative national organizations to 

indicate their desire for participation 

and consultation in the rulemaking 

process by submitting comments to this 

notice.

Dated: October 14, 2004. 

David Pekoske, 

Rear Admiral, U.S. Coast Guard, Commander, 

First Coast Guard District.

[FR Doc. 04–23963 Filed 10–25–04; 8:45 am] 

BILLING CODE 4910–15–P