[Federal Register: July 20, 2005 (Volume 70, Number 138)]
[Rules and Regulations]
[Page 41614-41617]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jy05-11]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 155 and 156
[USCG-2001-9046]
RIN 1625-AA94
Tank Level or Pressure Monitoring Devices on Single-Hull Tank
Ships and Single-Hull Tank Barges Carrying Oil or Oil Residue as Cargo
AGENCY: Coast Guard, DHS.
ACTION: Final rule; suspension of regulations and request for public
comment.
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SUMMARY: The Coast Guard is suspending for three years the regulations
in Title 33 Code of Federal Regulations Parts 155 and 156 for tank
level or pressure monitoring (TLPM) devices published in the Federal
Register of September 17, 2002 (67 FR 58515). Furthermore, we are
seeking
[[Page 41615]]
public comments on the status of TLPM technology development and other
means of detecting leaks from oil cargo tanks into the water.
DATES: This rule is effective August 19, 2005. Comments and related
material must reach the Docket Management Facility on or before
September 19, 2005.
ADDRESSES: To make sure that your comments and related material are not
entered more than once in the docket, please submit them by only one of
the following means:
(1) By mail to the Docket Management Facility (USCG-2001-9046),
U.S. Department of Transportation, Room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001.
(2) By delivery to room PL 401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management
System at http://dms.dot.gov.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and materials received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza level of the Nassif Building, 400
Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. You may also find this docket
on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
contact LCDR Roger K. Butturini, P.E., Regulatory Development Manager,
Office of Standards Evaluation and Development (G-MSR-2), Coast Guard,
at 202-267-2857 or e-mail address RButturini@comdt.uscg.mil. For
technical questions concerning tank level or pressure monitoring
devices contact Ms. Dolores Mercier, Technical Program Manager, Systems
Engineering Division (G-MSE-3), Coast Guard, telephone 202-267-0658 or
e-mail DMercier@comdt.uscg.mil. If you have questions on viewing the
docket, contact Ms. Andrea M. Jenkins, Program Manager, Docket
Operations, Department of Transportation, at telephone 202-366-5149.
SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA 90),
Public Law 101-380, directed the Coast Guard to promulgate a number of
regulations, including a variety of standards for the design and
operation of equipment to reduce the number and severity of tank vessel
oil spill incidents. Section 4110 of OPA 90 (46 U.S.C. 3703 note)
addressed initiatives to:
Establish standards for devices that measure oil levels in
cargo tanks or devices that monitor cargo tank pressure level
(Functionally, these tank level or pressure monitoring (TLPM) devices
measure changes in cargo volume, thereby detecting possible oil leaks
into the water), and
Issue regulations establishing requirements concerning the
use of these devices on tank vessels carrying oil or oil residue as
cargo.
In May of 1991, the Coast Guard published in the Federal Register
an Advance Notice of Proposed Rulemaking (ANPRM) (56 FR 21116) seeking
public comments related to TLPM devices on tank vessels carrying oil
cargo. In August of 1992, the Volpe National Transportation Systems
Center completed a feasibility study (Volpe study) on TLPM devices for
the Coast Guard Marine Technical and Hazardous Materials Division at
Coast Guard Headquarters. Some important features of the Volpe study
were:
Identifying ship motions, sloshing, air pocketing, and the
formation of foam in cargo tanks as the major obstacles to accurate
tank level detection;
Finding that the attainable accuracy with electronic
surface level sensing systems is within 2% of the actual cargo level;
and
Concluding that the high cost of installing a modern tank
level sensing system will naturally lead to development of alternative
approaches to leak detection and alarming.
In January of 1993, we asked for public comment on the study via
another Federal Register Notice (58 FR 7292) and we held a public
meeting at Coast Guard Headquarters in December 1994 to discuss
proposed standards and rules for TLPMs (59 FR 58810). As a result of
the comments, in 1995 we published a Notice of Proposed Rulemaking
(NPRM) to establish minimum performance standards for TLPMs (60 FR
43427).
In 1997, we published a temporary rule (62 FR 14828) on performance
standards for TLPM devices. In the temporary rule, we advised the
public of our conclusion that current technology could not meet the
sensitivity requirements proposed in the NPRM and requested the
submission of new or modified TLPM devices that could meet the
performance standards set out in the rule. It was our intent to
evaluate submitted devices and confirm that they met the performance
standards required by the temporary rule. We would, then, have assessed
the costs and benefits offered by these devices and used that
information to decide whether or not to develop regulations on the
installation and use of TLPMs. At the time the temporary rule expired
in April 1999, no devices had been submitted to us for evaluation. In
our regulatory analysis, we estimated the cost of the regulation as
$166.4 million over the 12-year period of analysis between 2003 and
2014. Likewise, we estimated that the regulation would result in a
benefit of 874 barrels of oil not spilled over the period of analysis.
The cost-effectiveness ratio was calculated by dividing the cost by the
projected benefits (if TLPM technology was readily available),
resulting in a ratio of $190,000 per barrel of oil not spilled.
Therefore, based on the absence of equipment that would satisfy our
proposed requirements, the estimated costs of system installations
versus the projected benefits realized if TLPM device technology was
readily available, and the miniscule contribution TLPMs would make to
prevent oil pollution compared to the rest of the OPA 90 initiatives,
we decided not to proceed with regulations that required the use of
TLPMs on single-hull tank vessels.
In 1999, Bluewater Network and Ocean Advocates brought suit in the
U.S. Court of Appeals for the District of Columbia Circuit. In their
suit, the petitioners asked the Court for a Writ of Mandamus ordering
us to promulgate TLPM regulations. In December of 2000, the Court
agreed with the petitioners on this item and directed the Coast Guard
to promptly promulgate regulations setting TLPM standards and requiring
use of TLPMs on tank vessels.
On October 1, 2001, we published in the Federal Register(66 FR
49877) another NPRM entitled ``Tank Level or Pressure Monitoring
Devices.'' And, in September 2002, we published the Final Rule for
``Tank Level or Pressure Monitoring Devices'' (67 FR 58515). This Final
Rule detailed TLPM performance criteria and described the vessels
required to install and use TLPMs by 2007. Between publication of the
Final Rule in September 2002 and June 2005, we identified no devices
meeting the performance criteria established in the final rule, and
none have been submitted by industry for our evaluation.
In 2004, Congress amended the language of section 4110 of OPA 90 in
the Coast Guard and Marine Transportation Authorization Act of
[[Page 41616]]
2004 (Pub. L. 108-293). Where the original text of OPA 90 mandated
rules for TLPMs, the amended language now allows the Coast Guard
discretion and mandates that the Coast Guard study leak detection
alternatives. As a result, we have the opportunity to revisit the
feasibility and practicality of TLPMs on single-hull tank vessels and
also to examine other means of detecting leaks into the water.
Therefore, we are suspending for three years the rules previously
published in 33 CFR parts 155 and 156 that contain requirements for the
use of TLPMs.
As Congress has directed that we conduct a study of other means of
detecting leaks, we are also using this final rule to solicit detailed
public comment on the current state of TLPM technology and other means
for detecting leaks from oil cargo tanks into the water. The most
helpful comments will be those that include details about
Physical principles of operation,
Degree of experience with actual use,
Performance and limitations,
Size, weight, and cost,
Operational complexity,
Power requirements,
Capacity to operate in a dynamic environment, including an
explosive atmosphere, and
A point of contact.
In submitting comments on these issues, recognize that we encourage
ideas on creative and innovative approaches. The following questions
should help guide your comments:
A. What methods or equipment are currently available to detect
leaks from oil cargo tanks into the water and what do they cost?
B. What methods or equipment are currently under development and
may be available to detect leaks from oil cargo tanks into the water in
the next five years and what do they cost?
C. What methods or equipment are under development to detect leaks
from oil cargo tanks into the water but will not be available in the
next five years?
D. What is the current state of technology for Tank Level or
Pressure Monitoring equipment?
E. In what scenarios (e.g., grounding, collision, structural
failures, and material wastage) will TLPMs and the possible
alternatives prove the most useful?
F. Do the methods or types of equipment discussed in this
rulemaking have uses other than leak detection from oil cargo tanks
into the water?
G. Are the current performance standards in 33 CFR part 155.490
reasonable and effective?
H. Should we consider special circumstances for barges being moved
by tugs and towboats?
I. Should we consider special circumstances for integrated tug/
barge combinations?
J. Should we consider special circumstances for vessels that have
cargo or cargo residue aboard but which are unattended, such as fleeted
barges?
K. Are methods or equipment being applied for similar purposes in
other industries (e.g., the aerospace, rail, military, or over-the-road
truck industries) that merit investigation for use aboard vessels?
L. Do emerging industries such as Microelectromechanical Systems
(MEMS) or nanotechnology have the potential to provide low-cost
solutions for detecting leaks from cargo oil tanks into the water?
Regulatory Evaluation
The events that led to publication of the original rules for TLPMs
in 33 CFR parts 155 and 156 suggest that this final rule should be
considered a ``significant regulatory action'' because it will likely
generate a high level of public interest. We expect that the regulated
industry and environmental groups will submit numerous comments
supporting both sides of the argument for requiring TLPMs on single-
hulled tank vessels. The Office of Management and Budget has reviewed
it under that premise and agrees that this rule is ``significant.''
In 2002, we estimated the total cost to the affected industries of
implementing the measures outlined in the final rule would be $166.4
million over the 12-year period of analysis between 2003 and 2014. No
devices have been submitted to the Coast Guard for approval as a TLPM
device. Our research indicates that there are currently no devices that
meet the performance requirements of 33 CFR part 150.490 for a TLPM
device. While some vessels may have equipment installed to monitor the
tank level or pressure, our research indicates these devices do not
meet the performance requirements of 33 CFR part 150.490 and are not
TLPM devices as discussed in this and previous rulemakings. Since this
suspension overlaps the remaining phase-in period, we believe this
notice will render the entire $166.4 million in implementation costs to
industry unnecessary while the rule is suspended.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
We conclude that suspending the performance standards for TLPM
devices and the requirements for their use will not have a significant
economic impact on a substantial number of small entities. Therefore,
the Coast Guard certifies under 5 U.S.C 605(b) that this final rule
will not have a significant economic impact on a substantial number of
small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. Small businesses
may send comments on the actions of Federal employees who enforce, or
otherwise determine compliance with, Federal regulations to the Small
Business and Agriculture Regulatory Enforcement Ombudsman and the
Regional Small Business Regulatory Fairness Boards. The Ombudsman
evaluates these actions annually and rates each agency's responsiveness
to small business. If you wish to comment on actions of the Coast
Guard, call 1-888-REG-FAIR (1-888-734-3247).
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
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 impose a substantial
direct cost of compliance on them.
It is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well settled,
now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101,
and 8101 (design, construction, alteration, repair, maintenance,
operation, equipping, personnel qualification, and manning of vessels),
as well as the reporting of casualties and any other category in which
Congress intended the Coast Guard to be the sole source of a vessel's
[[Page 41617]]
obligations, are within the field foreclosed from regulation by the
States. (See the decision of the Supreme Court in the consolidated
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89,
120 S.Ct. 1135 (March 6, 2000)). This rule suspending previously
published rules on performance standards and use of TLPM devices falls
into the category of vessel equipment and operation. Because the States
may not regulate within these categories, preemption under Executive
Order 13132 is not an issue.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in the preamble.
Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. This rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. It has not been designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with the applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation: test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and we
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1 paragraph (34) of the Instruction, from further
environmental documentation. A final ``Environmental Analysis Check
List'' and a final ``Categorical Exclusion Determination'' are
available in the docket where indicated under ADRESSSES.
List of Subjects
33 CFR Part 155
Alaska, Hazardous substances, Oil pollution, Reporting and
recordkeeping requirements.
33 CFR Part 156
Hazardous substances, Oil pollution, Reporting and recordkeeping
requirements, Water pollution control.
0
For the reasons discussed in the preamble, the Coast Guard is amending
33 CFR parts 155 and 156 as follows:
PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION
REGULATIONS FOR VESSELS
0
1. The authority citation for 33 CFR part 155 and the note following
citation continue to read as follows:
Authority: 33 U.S.C. 1231, 1321(j); E.O. 11735, 3 CFR, 1971-1975
Comp., p. 793. Sections 155.100 through 155.130, 150.350 through
155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and
155.1065(g) are also issued under 33 U.S.C. 1903(b). Sections
155.480, 155.490, 155.750(e), and 155.775 are also issued under 46
U.S.C. 3703. Section 155.490 also issued under section 4110(b) of
Pub. L. 101-380.
Note: Additional requirements for vessels carrying oil or
hazardous materials are contained in 46 CFR parts 30 through 40,
150, 151, and 153.
Sec. 155.200 [Amended]
0
2. In Sec. 155.200, suspend the definition for ``Sea State 5'' from
August 19, 2005 until July 21, 2008.
Sec. 155.490 [Suspended]
0
3. Section 155.490 is suspended from August 19, 2005 until July 21,
2008.
PART 156--OIL AND HAZARDOUS MATERIAL TRANSFER OPERATIONS
0
4. The authority citation for 33 CFR part 156 continues to read as
follows:
Authority: 33 U.S.C. 1231, 1321(j); 46 U.S.C. 3703a, 3715; E.O.
11735, 3 CFR 1971-1975 Comp., p. 793. Section 156.120(bb) and (ee)
are also issued under 46 U.S.C. 3703.
Sec. 156.120 [Amended]
0
5. In Sec. 156.120, suspend paragraph (ee) from August 19, 2005 until
July 21, 2008.
Dated: July 12, 2005.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 05-14246 Filed 7-19-05; 8:45 am]
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