[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Rules and Regulations]
[Pages 79314-79316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30803]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 155 and 156
[Docket No. USCG-2001-9046]
RIN 1625-AB12
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.
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SUMMARY: The Coast Guard is removing its regulations for tank level or
pressure monitoring (TLPM) devices because devices that satisfy
compliance requirements remain unavailable.
DATES: This final rule is effective January 28, 2009.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2001-9046 and are available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Dolores Pyne-Mercier, Project Manager, Office of Standards
Evaluation and Development, Project Development Division (CG-5232),
Coast Guard, telephone 202-372-1093, or e-mail address, [email protected]. If you have questions on viewing the docket, call
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Background
A. Regulatory History
B. Purpose
III. Discussion of Comments and Changes
IV. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Abbreviations
FR Federal Register
NEPA National Environmental Policy Act of 1969
NPRM Notice of Proposed Rulemaking
NTTAA National Technology Transfer and Advancement Act
TLPM Tank Level or Pressure Monitoring
II. Background
A. Regulatory History
In September 2002, the Coast Guard promulgated tank level or
pressure monitoring (TLPM) device regulations located in 33 CFR parts
155 and 156. (67 FR 58515). The Final Rule detailed TLPM performance
criteria and described the vessels required to install and use TLPM
devices by 2007.
To date, we have identified no devices meeting the performance
criteria established in the final rule, and none have been submitted by
industry for our evaluation. As a result, in July 2005, we published a
Final Rule (70 FR 41614) suspending the regulations for TLPM devices
for three years until July 21, 2008. In the final rule, we also
solicited public comment on the status of TLPM technology development
and alternatives to TLPM devices. In response, we received two comments
supporting our suspension of the regulations for TLPM devices and no
new information on TLPM devices or alternatives. We published another
Final Rule (73 FR 23397) on May 5, 2008, extending the suspension for
three additional years until May 5, 2011, to allow time for the current
rulemaking process to be completed.
On June 30, 2008, we published a notice of proposed rulemaking
entitled ``Tank Level or Pressure Monitoring Devices on Single-Hull
Tank Ships and Single-Hull Tank Barges Carrying Oil or Oil Residue as
Cargo'' in the Federal Register (73 FR 36825). We received 2 letters
commenting on the proposed rule. Both commenters supported the Coast
Guard's decision to remove the TLPM device regulations. No public
meeting was requested and none was held.
B. Purpose
For a complete discussion of the background for this final rule,
see the NPRM published on June 30, 2008 (73 FR 36825, 36826).
The Coast Guard is removing its regulations for TLPM devices
because
[[Page 79315]]
devices that satisfy compliance requirements remain unavailable. As
noted above in section II.A. ``Regulatory History,'' we published a
final rule suspending Coast Guard regulations for TLPM devices with a
request for public comments on the status of TLPM technology
development and other means of detecting leaks from oil cargo tanks
into the water. We received two comments supporting our suspension of
the regulations for TLPM devices. We received no new information on
TLPM devices or alternatives for detecting leaks into the water from
single-hull tank vessels carrying oil or oil residue as cargo.
Based on the public response to the suspension, the absence of new
information regarding TLPM devices or alternatives, and the results of
a Congressionally-mandated study (available in the docket where
indicated under ADDRESSES), the Coast Guard revisited the feasibility
and practicality of retaining regulations for TLPM devices on single-
hull tank vessels and concluded that it is appropriate to remove these
regulations.
III. Discussion of Comments and Changes
We received two comments on the NPRM; both were in favor of the
removal of the TLPM device requirement from the regulations. The Coast
Guard has made no changes from the NPRM, save a minor edit to the
authority citation for part 156.
IV. Regulatory Evaluation
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
A. Executive Order 12866
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
Public comments on the NPRM are summarized in Part IV of this
preamble. We received no public comments that would alter our
assessment of impacts in the NPRM. We have adopted the assessment in
the NPRM as final. See the ``Regulatory Evaluation'' section of the
NPRM for the complete analysis.
This final rule removes the regulations for TLPM devices--a type of
shipboard equipment that does not currently exist in the marketplace
and which has no practical alternative. We conclude this rule will have
no impact on industry.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
We concluded that removing 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 since
industry did not adopt or implement any TLPM provisions. Therefore, the
Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will
not have a significant economic impact on a substantial number of small
entities.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we 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). The Coast Guard will not retaliate against small entities that
question or complain about this rule or any policy or action of the
Coast Guard.
D. Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
E. 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
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 removes previously published
rules on performance standards, and the 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.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such expenditure, we do
discuss the effects of this rule elsewhere in the preamble.
G. Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
[[Page 79316]]
J. Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
K. Energy Effects
We analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a ``significant energy
action.'' Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
L. 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.
M. Environment
We have analyzed this proposed rule under Department of Homeland
Security Directive 0023.1 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. Therefore, this rule is categorically excluded, under
section 2.B.2. Figure 2-1, paragraph 34(d), of the Instruction and
neither an environmental assessment nor an environmental impact
statement is required. This rule involves the equipping of vessels. An
environmental analysis checklist and a categorical exclusion
determination are available in the docket where indicated under
ADDRESSES.
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 amends 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 to Part 155: 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, remove the definition for ``Sea State 5.''
Sec. 155.490 [Removed and Reserved]
0
3. Remove and reserve Sec. 155.490.
PART 156--OIL AND HAZARDOUS MATERIAL TRANSFER OPERATIONS
0
4. The authority citation for 33 CFR Part 156 is revised 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) is also
issued under 46 U.S.C. 3703.
Sec. 156.120 [Amended]
0
5. In Sec. 156.120, remove paragraph (ee).
Dated: December 17, 2008.
Brian M. Salerno,
Assistant Commandant for Marine Safety, Security and Stewardship, U.S.
Coast Guard.
[FR Doc. E8-30803 Filed 12-24-08; 8:45 am]
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