41646 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Proposed Rules 

Issued in Renton, Washington, on August 

7, 2009. 

Stephen P. Boyd, 

Acting Manager, Transport Airplane 

Directorate, Aircraft Certification Service. 

[FR Doc. E9–19655 Filed 8–17–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 168 

[Docket No. USCG–2006–23556, Formerly 

CGD91–202a] 

RIN 1625–AA10, Formerly RIN 2115–AE56 

Escort Vessels in Certain U.S. Waters 

AGENCY: Coast Guard, DHS. 

ACTION: Proposed rule; withdrawal. 

SUMMARY: The Coast Guard is 

withdrawing its proposed rule 

concerning the extension of escort 

vessel requirements in place for single 

hulled oil tankers in Prince William 

Sound, Alaska, and Puget Sound, 

Washington, to other U.S. waters and to 

other types of vessels. The Coast Guard 

has concluded that a rulemaking of 

national scope, such as this, is neither 

necessary nor advisable given the 

existence of more locally oriented 

options for considering escort vessel 

requirements. 

DATES: The proposed rule is withdrawn 

on August 18, 2009. 

ADDRESSES: The docket for this 

withdrawn rulemaking is available for 

inspection or copying at the Docket 

Management Facility (M–30), U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. You may also 

find this docket on the Internet by going 

to http://www.regulations.gov, selecting 

the Advanced Docket Search option on 

the right side of the screen, inserting 

USCG–2006–23556 in the Docket ID 

box, pressing Enter, and then clicking 

on the item in the Docket ID column. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this notice, 

call Lieutenant Bryson Spangler at (202) 

372–1357. If you have questions on 

viewing material in the docket, call Ms. 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Background 

The Coast Guard has broad authority 

under the Ports and Waterways Safety 

Act (PWSA, 33 U.S.C. 1221 et seq.) to 

control vessel traffic in navigable waters 

of the United States. In addition, section 

4116(c) of the Oil Pollution Act of 1990 

(OPA 90, Pub. L. 101–380) required the 

Coast Guard to initiate a rulemaking ‘‘to 

define those areas [including Prince 

William Sound, Alaska and Puget 

Sound, Washington] on which single 

hulled tankers over 5,000 gross tons 

transporting oil in bulk shall be escorted 

by at least two towing vessels * * * or 

other vessels considered appropriate by 

the Secretary.’’ The present rulemaking 

was opened in response to the OPA 90 

§ 4116(c) requirement and also in order 

to consider escort vessel requirements 

under PWSA. 

This rulemaking was split off from 

another rulemaking in 1993; for the 

history of the parent rulemaking see its 

final rule (70 FR 55728, Sep. 23, 2005). 

For this rulemaking, we previously 

published an advance notice of 

proposed rulemaking (ANPRM; 58 FR 

25766, Apr. 27, 1993), a notice of 

meeting and request for comments (59 

FR 65741, Dec. 21, 1994), and a notice 

of withdrawal and request for comments 

(73 FR 20232, Apr. 15, 2008). Further 

background information appears in the 

April 2008 notice. 

The April 2008 notice proposed the 

withdrawal of this rulemaking, based on 

our tentative conclusion that 

nationwide Coast Guard action to 

extend statutory escort vessel 

requirements is not advisable, and that 

escort vessel requirements for waters 

other than Puget and Prince William 

Sounds, or for vessels other than single 

hulled oil tankers, should be imposed 

only after local level Coast Guard 

consideration of specific local needs, 

conditions, and available alternatives. 

We asked for public comment on the 

proposed withdrawal. 

Discussion of Comments 

In response to our April 2008 notice, 

we received 17 letters containing 55 

comments. We thank those who 

commented for their interest. 

Twelve comments concerned the need 

for specific action in Cook Inlet, Alaska, 

or other local waters. We acknowledge 

these comments, but restate our position 

that the need for escort vessels or other 

protective measures in specific waters 

should be assessed under PWSA. 

Therefore, requests for protective 

measures in specific waters should be 

addressed to the local Coast Guard 

sector commander. A list of Coast Guard 

sectors appears, as part of a 

comprehensive list of Coast Guard units, 

at http://www.uscg.mil/top/units/. 

Five comments asserted that we have 

not satisfied our obligations under 

§ 4116(c) of OPA 90, or that withdrawal 

of the rulemaking at this stage would 

violate OPA 90. We do not agree that 

further action is required under OPA 90 

or that withdrawal of this rulemaking 

would violate that act. In 2000, the 

United States Court of Appeals for the 

District of Columbia Circuit stated that 

‘‘it is not at all obvious whether 

§ 4116(c) actually forces the Coast Guard 

itself to come up with the names of, and 

instigate rulemaking regarding possible 

‘other waters,’’’ and held that that 

section ‘‘does not create a sufficiently 

clear duty regarding ‘other waters’ to 

merit mandamus relief.’’ In re Bluewater 

Network, 234 F.3d 1305 at 1306 (DC Cir. 

2000). Nevertheless, the Coast Guard 

sought to comply with any possible 

requirement for regulatory action under 

§ 4116(c) by initiating this rulemaking. 

After considering public comment on 

our 1993 ANPRM, we concluded in 

1994 that ‘‘there is no need to prescribe 

an absolute minimum of two escort 

vessels’’ in other waters, and that 

‘‘designating any other U.S. waters for 

escorting requirements will be 

accomplished using the Coast Guard’s 

authority under * * * PWSA, which 

allows greater flexibility concerning the 

ships to be escorted and the number of 

escort vessels to be required.’’ 59 FR at 

65743. The Coast Guard stands by its 

conclusion that § 4116(c) of OPA 90 

requires no further consideration under 

this rulemaking. 

Nine comments criticized our 

proposed reliance on local assessments 

under PWSA. These comments pointed 

to alleged flaws in the local assessment 

process or argued for national standards 

and timelines to guide local 

assessments, and most stated that PWSA 

is not an adequate substitute for 

continuing this rulemaking under OPA 

90. Later in this document, we discuss 

the Coast Guard PWSA assessment 

process and provide links to additional 

information. The PWSA assessment 

process provides a uniform 

methodology that can be applied across 

the nation, and we are always open to 

considering specific ideas for improving 

it. 

To address two specific concerns that 

critics of the PWSA process raised: 

First, the process generally allows for 

more public input than some 

commenters realize. It provides a 

structured way to make sure all 

significant local stakeholders are 

represented and participate. Assessment 

workshops are locally publicized, open 

to the public, and allow for public 


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Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Proposed Rules 41647 

comment. Second, it is true that PWSA 

assessments may not lead to immediate 

action, because the implementation of 

assessment recommendations may carry 

its own procedural requirements. 

However, those additional procedural 

requirements serve public purposes of 

their own, and compliance with those 

requirements within the focused context 

of a specific body of water may take less 

time than compliance on a national 

basis. For example, it could be quicker 

and easier to prepare National 

Environmental Policy Act 

documentation for a specific bay or inlet 

than it would be to do so for all U.S. 

bays or inlets. For these reasons, we 

conclude that the PWSA process is an 

adequate substitute for analysis under 

OPA 90. 

Two comments disagreed with our 

notice’s tentative conclusion that 

national scope rulemaking is neither 

appropriate nor beneficial, and 

suggested that established OPA 90 

performance standards, and operational 

requirements under 33 CFR 168.50, 

provide a suitable framework for 

national action. We do not agree. OPA 

90 mandated escort vessel protection for 

Puget Sound and Prince William Sound, 

and 33 CFR 168.40 makes 33 CFR 

168.50 applicable only to those waters. 

As previously discussed, we determined 

in 1994 that there was no need to extend 

those requirements to other waters. In 

1994, we also noted several limitations 

or potential problems with applying 

OPA 90 standards to other waters, 

where those standards ‘‘may 

significantly increase costs without any 

commensurate increase in 

environmental protection’’ and could 

even be counterproductive. 59 FR at 

65742. 

Two comments cited 46 U.S.C. 

3703(a)(5) as requiring the Coast Guard 

to regulate vessel maneuvering and 

stopping ability, and other features that 

reduce the possibility of marine 

casualties, and contended that this 

statute clearly contemplates a 

nationwide rule regarding the use of 

escort vessels. The cited statute does not 

require the use of escort vessels, and is 

implemented in pertinent part by Coast 

Guard navigation safety regulations in 

33 CFR Part 164. 

Five comments took issue with our 

notice’s reference to 33 CFR 1.05–20, 

which provides for citizen petitions for 

Coast Guard rulemaking. These 

comments said that Congress gave the 

Coast Guard responsibility for 

investigating escort vessel needs, and 

that it is inappropriate for the Coast 

Guard to shift that responsibility to the 

public. We do not mean to imply that 

33 CFR 1.05–20 transfers any 

responsibilities from the Coast Guard to 

the public. However, it does provide a 

way for people to direct the Coast 

Guard’s attention to specific issues and 

to hear from us on how we intend to 

respond. If we agree that the petition 

merits regulatory action, we will initiate 

that action, and if we do not agree, we 

will inform the petitioner and maintain 

the response in a public file open for 

inspection. 

Three comments criticized our notice 

for implying that the proposed 

withdrawal reflects Coast Guard 

resource constraints, suggesting that we 

approach Congress for additional 

resources or draw on Oil Spill Liability 

Trust Fund money to overcome those 

constraints. Our notice stated that a 

‘‘nationwide risk assessment program 

may be a good idea but it would be very 

expensive and time-consuming to 

implement.’’ However, our reasons for 

not pursuing such a program were 

broader than its expense or difficulty. 

Rather, we noted that a nationwide risk 

assessment program ‘‘would be hard to 

validate, making its usefulness 

questionable,’’ and that it would be a 

‘‘conceptual exercise’’ relative to 

assessments of the need for ‘‘specific 

resources in specific waters.’’ These 

statements were in line with our 1994 

conclusion that there was no need to 

continue national assessments under 

OPA 90 and that PWSA would be the 

basis for any further Coast Guard 

assessment of protective measures in 

specific waters. 

Seven comments requested that, if we 

proceed with withdrawal, we expressly 

state that this action would not preempt 

States from imposing their own escort 

vessel requirements. The Coast Guard’s 

position is that States are preempted 

from imposing their own escort vessel 

requirements in certain waters where 

we have either established or declined 

to establish special navigation or other 

requirements based on our assessment 

of the conditions in those waters. 

However, the withdrawal of this 

rulemaking, in and of itself, is not 

intended to have a preemptive or nonpreemptive effect, one way or the other, 

on any particular State escort 

requirement, as it is not an assessment 

of the conditions of any specific waters. 

One comment offered numerous 

criteria that could guide local Coast 

Guard units in determining which 

waters should have escort vessel 

requirements, and numerous 

suggestions for how local assessments 

should be conducted. As we discuss 

later in this document, our current 

PWSA assessment methodology has 

been professionally developed, tested, 

and refined, and provides a satisfactory 

uniform tool for assessing local needs 

and safety control measures. 

Two comments called for extending 

escort vessel requirements to other 

cargos, or based on specific factors, 

which were discussed in those 

comments. These comments do not 

affect our conclusion that this particular 

rulemaking should be withdrawn, but 

they could have relevance in any future 

assessment of the needs of specific 

waters. If you think certain cargos or 

factors need to be addressed with 

protective measures for a specific 

waterway, please contact your local 

Coast Guard sector commander. A list of 

Coast Guard sectors appears, as part of 

a comprehensive list of Coast Guard 

units, at http://www.uscg.mil/top/ 

units/. 

One comment urged us to give 

shippers an early indication that further 

escort vessel requirements are 

contemplated, so that they can design 

multipurpose escort vessels to meet 

multiple regulatory requirements. As 

part of the rulemaking process the Coast 

Guard evaluates and solicits comments 

on the most efficient manner of 

implementation and would do the same 

with any new vessel escort 

requirements. 

One comment criticized the proposed 

withdrawal as part of a disturbing Coast 

Guard trend to leave rulemakings 

unfinished and environmental and 

safety objectives unmet. The Coast 

Guard does not agree with this 

characterization. We will not impose 

new regulations without adequate 

evidence that they are warranted, 

especially if they have a national scope. 

In this case, we have concluded that this 

rulemaking should be withdrawn, and 

that the needs of specific waters should 

be assessed under PWSA. 

Environmental protection of local 

waters and the overall marine safety of 

those waters are best placed in the 

hands of local Coast Guard officials, 

who can best provide oversight and 

vigilance in these matters. 

Two comments requested additional 

documentation of the rationale for our 

April 2008 notice, and one of these 

requested an extension of that notice’s 

public comment period in order to 

provide time to review the additional 

documentation. There is no additional 

documentation of any relevance. The 

rationale for withdrawal of this 

rulemaking is fully provided in the 

April 2008 notice and in previous 

notices published under this 

rulemaking, and we do not think an 

extension of the public comment period 

would provide any public benefit. 

One comment asked for a response to 

a 1995 rulemaking petition regarding 


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41648 Federal Register / Vol. 74, No. 158 / Tuesday, August 18, 2009 / Proposed Rules 

the expansion of escort vessel 

requirements in the western region of 

the Strait of Juan de Fuca, and asked for 

the response to take into account all 

relevant studies conducted since 1995. 

We have been unable to locate any 

documentation of such a petition, but 

will entertain a new petition submitted 

under 33 CFR 1.05–20. Petitions should 

be addressed to the Executive Secretary, 

Marine Safety and Security Council 

(CG–0943), U.S. Coast Guard, 2100 

Second St., SW., Stop 7121, 

Washington, DC 20593–7121. 

One comment from the Makah Tribal 

Council, an Indian Tribe, requested 

government-to-government consultation 

with the Coast Guard prior to 

withdrawal. That consultation took 

place on April 23, 2009, and is 

documented as Document ID USCG– 

2006–23556–0050.1 in the docket for 

this rulemaking. 

One comment expressed support for 

our proposed withdrawal. 

PWSA Assessments 

Under PWSA, the principal Coast 

Guard tool for assessing and controlling 

risks in local waterways is the Ports and 

Waterways Safety Assessment 

(PAWSA). Since 1998, the Coast Guard 

has conducted almost 40 PAWSAs for 

waterways around the country, and in a 

typical year there is funding for three 

additional PAWSAs, with priority given 

to waterways likely to be at greatest risk. 

PAWSAs employ a uniform 

methodology that was developed by 

academic experts and refined through 

four years of workshops involving 

stakeholders from industry, port 

authorities, and the environmental 

community among others. The goal, 

throughout, was to develop a process 

that could evaluate risk and work 

toward long term solutions, tailored to 

local circumstances, that is both cost 

effective and meets the needs of 

waterway users and stakeholders. 

The PAWSA methodology provides a 

formal structure for identifying risk 

factors and evaluating potential 

mitigation measures through expert 

inputs. Each PAWSA is conducted in a 

public workshop setting that brings 

together local waterway users, 

environmentalists, public safety figures, 

economic experts, and other local 

stakeholders. The methodology supplies 

a weighting tool to take into account the 

relative expertise of each workshop 

participant. During the workshop, 

participants discuss and assign 

numerical ratings to the local 

waterway’s safety risks in the following 

areas: 

• Quality of local vessels and crews; 

• Number of vessels and their 

interaction with each other; 

• Winds, currents, and weather; 

• Physical properties affecting vessel 

maneuverability; 

• Likely immediate impacts of a 

waterway accident, such as a collision 

or hazardous material spill; and 

• Possible long term vessel traffic, 

economic, or environmental 

consequences of a waterway accident. 

Security risks are not included in the 

PAWSA risk analysis because they are 

analyzed separately by the Coast Guard 

through port vulnerability and security 

assessments. PAWSA workshop 

participants also discuss and assign 

numerical ratings to navigational 

systems, emergency response 

capabilities, and other measures 

currently in place, or that could be 

adopted, to control each risk. 

PAWSA computer software uses input 

from the workshop participants to 

generate risk assessments in several 

categories, and to assess the 

effectiveness of current or potential 

control measures. Workshop 

participants then review the computergenerated results, and can revise their 

input if they feel their initial ratings 

produced a false picture of local 

conditions. 

You can get more information about 

PAWSAs, including contact information 

for the Coast Guard’s Office of 

Waterways Management PAWSA 

Project Officer, at http://www.navcen.

uscg.gov/mwv/projects/pawsa/

PAWSA_home.htm, or read reports on 

any of the PAWSAs conducted to date 

at http://www.navcen.uscg.gov/mwv/

projects/pawsa/PAWSA_

FinalReports.htm. If you have comments 

or suggestions about PAWSAs generally, 

contact the Project Officer. If you think 

a specific waterway should be the focus 

of a future PAWSA, contact the Project 

Officer, or contact the relevant Coast 

Guard sector commander. In your 

recommendation, you should address 

the bulleted local waterway safety risks 

cited earlier in this discussion, as fully 

and specifically as possible. A list of 

Coast Guard sectors, as part of a 

comprehensive list of Coast Guard units, 

can be found at http://www.uscg.mil/ 

top/units/. 

Withdrawal 

The Coast Guard withdraws this 

rulemaking, which concerns the 

extension, to other U.S. waters and to 

other types of vessels, of those escort 

vessel requirements that apply to single 

hulled oil tankers in Prince William 

Sound, Alaska, and Puget Sound, 

Washington. We have concluded that a 

rulemaking of national scope under the 

authority of OPA 90 is neither necessary 

nor advisable given the availability of 

PWSA assessments of the needs, in 

specific local waters, for escort vessels 

or other protective measures. 

Authority 

We issue this notice of withdrawal 

under the authority of the Ports and 

Waterways Safety Act, 33 U.S.C. 1221 et 

seq., and section 4116(c) of the Oil 

Pollution Act of 1990, Public Law 101– 

380. 

Dated: August 11, 2009. 

F. J. Sturm, 

Acting Director, Commercial Regulations and 

Standards, U.S. Coast Guard. 

[FR Doc. E9–19705 Filed 8–17–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0294; FRL–8944–8] 

Approval of Implementation Plans of 

Michigan: Clean Air Interstate Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Michigan abbreviated 

State Implementation Plan (SIP) 

submitted on July 16, 2007 and on June 

10, 2009. Together, the revisions 

address the requirements for an 

abbreviated Clean Air Interstate Rule 

(CAIR) SIP. EPA is also providing notice 

that the December 20, 2007 conditional 

approval of the July 16, 2007 submittal 

automatically converted to a 

disapproval. 

DATES: Comments must be received on 

or before September 17, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2009–0294, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: mooney.john@epa.gov. 

3. Fax: (312) 692–2551. 

4. Mail: John M. Mooney, Chief, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: John M. Mooney, 

Chief, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Deliveries are only 


cprice-sewell on DSKDVH8Z91PROD with PROPOSALS