[Federal Register Volume 62, Number 180 (Wednesday, September 17, 1997)]
[Rules and Regulations]
[Pages 48770-48773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24586]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 155 and 156

[CGD 90-071a]
RIN 2115-AD87


Overfill Devices

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing minimum standards for overfill 
devices as required by the Oil Pollution Act of 1990 (OPA 90). The 
purpose of the overfill device is to warn of cargo tank overfills. This 
regulation requires the phased-in installation and use of the devices 
on the cargo tanks of certain tank vessels that carry oil or oil 
residue as primary cargo. This regulation should reduce the likelihood 
of spills when oil is loaded as cargo.

DATES: This final rule is effective on October 17, 1997.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at the office of the Executive Secretary, Marine 
Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100 Second 
Street SW., room 3406, Washington, DC 20593-0001, between 9:30 a.m. and 
2:00 p.m., Monday through Friday, except Federal holidays. The 
telephone number is (202) 267-1477.

FOR FURTHER INFORMATION CONTACT:
LTJG J.K. Grzelak, Project Manager, Office of Standards Evaluation and 
Development (G-MSR), telephone (202) 267-1249.

SUPPLEMENTARY INFORMATION: 

Regulatory History

    Section 4110 of the Oil Pollution Act of 1990 (OPA 90) [Pub. L. 
101-380) adds a statutory note following 46 U.S.C. 3703 requiring, in 
part, the establishment of minimum standards for overfill devices on 
certain tank vessels.
    To meet the statutory requirements, the Coast Guard published a 
notice of proposed rulemaking (NPRM) entitled, ``Overfill Devices,'' in 
the Federal Register (58 FR 4040; January 12, 1993). The Coast Guard 
received 32 letters commenting on the proposal.
    In response to some comments, the Coast Guard published a notice 
(58 FR 54315; October 21, 1993) and held a public meeting at U.S. Coast 
Guard Headquarters in Washington, DC, on November 17, 1993. Twenty-
eight people attended the meeting. A list of the attendees and audio 
tapes of the meeting are available in the public docket for this 
rulemaking [CGD 90-071a] at the address listed under ADDRESSES.
    On October 21, 1994, the Coast Guard published an interim rule 
entitled, ``Overfill Devices'' in the Federal Register  (59 FR 53286). 
On January 19, 1995, the interim rule went into effect and the comment 
period closed. The Coast Guard received 7 letters commenting on the 
interim rule. No additional public meeting was requested and none was 
held.

Background and Purpose

    An overfill spill occurs when too much oil is pumped or gravitated 
into a cargo tank during a transfer operation (e.g., from a facility to 
a tank vessel or from one tank vessel to another). Human error is the 
most often reported cause of this type of spill. Many overfill spills 
are small; however, some reported overfill spills have involved large 
quantities of oil.
    Coast Guard regulations require vessel owners and operators to 
follow pollution prevention procedures during oil transfer operations 
(33 CFR parts 155 and 156). Existing regulations did knot require 
devices on cargo tanks to detect and warn of impending overfills until 
January 19, 1995, when the interim rule for overfill devices went into 
effect.
    More detailed background information on overfill spills and devices 
can be found in the preamble of the NPRM under Background and Purpose.

Discussion of Comments and Changes

    Seven letters were received in response to the interim rule. The 
Coast Guard has reviewed all of the comments and they are discussed as 
follows:

Applicability

    One comment, writing on behalf of 7 agricultural associations, 
strongly supported the Coast Guard's interim rule as it applies to 
animal fats and vegetable oils. This final rule continues to exclude 
tank vessels carrying animal fats and vegetable oils from overfill 
device requirements. To make this exclusion clear, paragraph (f) of 33 
CFR 155.480 has been revised in this final rule.
    One comment expressed opposition to the requirements for overfill 
devices on black oil barges, specifically those that carry Number 6 
oil, because they carry that oil only for a few months out of the year 
and the heat required to keep the product liquefied renders the 
equipment useless. The Coast Guard finds that heavy oils are just as 
likely to overflow from cargo tanks as lower viscosity oils, regardless 
of the time of year. Vessel

[[Page 48771]]

owners and operators must choose overfill devices best suited for the 
oil they carry, and in accordance with 33 CFR 155.750(e)(2), 46 CFR 
39.20-7(b)(3), and 46 CFR 39.20-9(b)(3), they must test their equipment 
prior to each cargo loading. If a method of overfill detection is not 
technologically available for a particular type of high-temperature 
service oil, such as Number 6 oil, the owner or operator of a vessel, 
on a case-by-case basis, may request an alternative means of compliance 
in accordance with 33 CFR 155.120(c).
    Two comments stated that the rule should apply to all tank vessels, 
regardless of cargo capacity, because smaller vessels operate almost 
exclusively in confined waterways with longer flushing periods, higher 
environmental sensitivities, and restricted cleanup access. A similar 
comment stated that the implementation costs of higher standards are 
cost-effective when compared with the probable costs of spill response, 
cleanup, and liability for damages for tank vessels less than 1,000 
cubic meters (M\3\). The Coast Guard has reviewed the costs of this 
rule, especially with respect to small entities as required by the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and has determined 
that it is appropriate to limit the applicability to vessels with a 
cargo capacity of 1,000 M\3\ (approximately 6,290 barrels, 1 barrel 
equals 42 U.S. gallons) or more to balance the benefits of this 
rulemaking with the costs. Therefore, this final rule does not change 
the applicability of overfill device requirements to include tank 
vessels less than 1,000 M\3\.
    One comment objected to the exemption of vessels that were likely 
to be phased out of service in the next 5 years. The Coast Guard 
disagrees with this comment because the costs of upgrading overfill 
devices on these vessels would not be recovered by the year 2000. In 
addition, the Coast Guard has determined that the costs incurred by 
these vessels would outweigh the environmental clean-up costs should an 
overfill occur. For these reasons, this final rule retains the 
exemption for single-hull vessels that will be phased out by the year 
2000.
    Two comments suggested that the regulation should apply during all 
cargo transfer operations, not just loading. As stated in the interim 
rule, overfill incidents occur during internal cargo transfers and 
discharges; however, these incidents are infrequent and do not result 
in large spills into the water. Tank vessel owners and operators are 
still encouraged to use overfill devices for all transfer operations, 
but this final rule continues to apply only during loading.
    One comment suggested clarification of the application of this rule 
to foreign-flag tank vessels because it questioned the procedure for 
determining the compliance date under 33 CFR 155.480(d) if the cargo 
tank internal examinations were conducted on a rolling basis, rather 
than all at once. To avoid the duplication of costly gas-freeing of 
cargo tanks, the Coast Guard allowed for installation of overfill 
devices as tanks are due for internal examinations in the interim rule. 
This provision has not changed in this final rule.
    One comment wanted to know the meaning of the term ``newly 
constructed tank vessel'' and wanted clarification on what requirements 
would apply to this type of vessel. The interim rule used the phrase 
``newly constructed tank vessel'' to reference vessels built after 
January 19, 1995. This reference is not necessary because after January 
19, 1995, tank vessels affected by the rule had to meet the 
requirements of 33 CFR 155.480 regardless of their build date. 
Therefore, the Coast Guard has determined that the clause referencing 
newly constructed tank vessel requirements at the end of paragraph (b) 
of 33 CFR 155.480 in the interim rule is redundant and it has been 
removed.
    In addition, the Coast Guard noted that applying the overfill 
device requirements to foreign-flag tank vessels in the EEZ is not 
consistent with the 1982 United Nations Convention on the Law of the 
Sea (UNCLOS). The Convention sets forth the generally recognized 
principles of international law concerning the establishment of laws 
and regulations by a coastal state in its EEZ to prevent, reduce, and 
control pollution from vessels. Article 211(5) of UNCLOS specifies that 
such laws and regulations by a coastal state in its EEZ are authorized 
if they give effect to accepted international rules and standards 
established through the competent international organization or general 
diplomatic conference. For consistency, the Coast Guard has eliminated 
the reference to the EEZ in Sec. 155.480(b) and revised Sec. 155.100 to 
clarify that overfill devices will be required on U.S.- and foreign-
flag tank vessels, with a cargo capacity of 1,000 or more cubic meters, 
loading oil or oil residue as cargo and operating in the navigable 
waters of the United States, or at a port or terminal under the 
jurisdiction of the United States.

Minimum Standards for Overfill Devices on Tankers

    Two comments stated that the systems which automatically shutdown 
the transfer pumps before an overfill occurs should be required on all 
tank vessels. The vapor control regulations in 46 CFR part 39 authorize 
the use of automatic shutdown systems during barge loading and 
lightering operations. The Coast Guard allows the use of this system 
aboard barges to be consistent with related regulations and standards. 
However, this final rule does not make this alternative a requirement 
for all vessels because it is not cost beneficial to maritime operators 
already using other systems.

Minimum Standards for Overfill Devices on Barges

    One comment discussed the 5-year monitoring period for the 
effectiveness of high-level indicating devices, such as stick gauges. 
As stated in the interim rule, if at the end of the 5-year period, the 
Coast Guard determines that the overfill spill record of tank barges 
equipped with these devices is not essentially as good or better than 
the overfill spill record of other tank vessels covered by the 
regulations, then the Coast Guard may remove the provision in the 
regulation allowing the use of high-level indicating devices as 
substitutes for overfill alarms. One comment argued that an agency 
should not change a previously allowed regulatory alternative unless 
there is compelling evidence to support such a change. In addition, the 
comment stated that it is particularly unfair to make such a change 
after the affected industry has invested in new equipment, expecting 
that its use will be permitted.
    The Coast Guard reviewed the spill data from tank vessels for the 
years 1989 through 1991, and collected further spill data for tank 
vessels for the years 1992 through June 1996. The interim rule, which 
required overfill devices for tank vessels, was effective on January 
19, 1995. Since then, the percentage of oil spills due to overfills 
from tank barges has been significantly reduced. In the years 1992 
through 1994, tankers averaged approximately 1.7 overfills per month 
and tank barges averaged 3.3 overfills per month.
    After the requirement for overfill devices was implemented, the 
average number of overfills for tankers was 0.4 per month and the 
average number for tank barges was 1.1 per month. This is a 76 percent 
decrease in the total number of overfills for tankers and a 66 percent 
decrease for tank barges. Based on these calculations, the Coast Guard

[[Page 48772]]

has determined that the 5-year monitoring period is no longer necessary 
because statistics indicate that overfill devices, as required in the 
interim rule, are effective. The provision in the regulation for the 
use of high-level indicating devices, as an alternative to overfill 
alarms, will be retained in this final rule. The stick gauge 
alternative for tank barges will also be retained in this final rule 
because the Coast Guard has determined that it is cost effective.

Training

    On comment stated that the Coast Guard should proceed quickly with 
publishing an interim rule regarding tankerman qualifications and 
training standards. A similar comment stated that manning and training 
standards for smaller vessels are insufficient. The Coast Guard 
recognizes that the majority of overfills are due to human error and is 
currently developing a final rule entitled, ``Qualifications for 
Tankermen and for Persons in Charge of Transfers of Dangerous Liquids 
and Liquefied Gases.'' An interim rule for the project was published in 
the Federal Register on April 4, 1995 (60 FR 17134), and was effective 
on March 31, 1996.
    Another related comment stated that the Coast Guard should require 
the monitoring of transfer operations because they are of critical 
importance, regardless of the type of overfill device in use. The 
person in charge of transfer procedures is already required by 33 CFR 
155.750(e)(1) (i) and (ii) to monitor the level of cargo in the tank, 
and shut down transfer operations in time to ensure that the cargo 
level in each tank does not exceed the maximum amount permitted by 33 
CFR 155.775(b).

Maximum Cargo Level of Oil

    One comment recommended that the Coast Guard change the level of 
cargo allowed in the cargo tank to 95 percent. The rule will continue 
to establish a 98.5 percent level as the maximum level of fill because 
it is consistent with the regulations for vapor control systems in 46 
CFR 39.30-1(e). Accordingly, a tank may not be filled higher than 98.5 
percent or the level at which the overfill alarms are set, for those 
cases where shutdown must be initiated at a level below 98.5 percent to 
ensure that an overfill does not occur.

Other Issues

    One comment questioned the need for additional overpressurization 
protection for a tank barge outfitted only with a closed loading 
system. The comment also requested clarification of the adequacy of 
high-level indicating devices as a means of satisfying the liquid 
overpressurization requirements of 46 CFR part 39. Overpressurization 
requirements for closed loading systems that do not use vapor control 
are outside the scope of this rule, but the Coast Guard may address it 
separately in a future rulemaking project.
    Two comments suggested rewording 33 CFR 155.480 so that it is not 
misinterpreted as requiring an independent overfill system on each 
cargo tank of a tankship or misinterpreted as requiring an audible and 
visible alarm at each tank top. The Coast Guard has retained these 
paragraphs as written in the interim rule because the original wording 
clearly recognizes tank overfill systems, with centralized control and 
alarm functions, without excluding independent devices as means of 
satisfying the requirements of this rule.
    One comment requested a grandfather provision for those vessels who 
had overfill devices installed before the effective date of this 
rulemaking. The Coast Guard based the requirements for overfill devices 
on the overfill protection requirements in 46 CFR part 39. The Coast 
Guard has determined that the vessels which complied with those rules 
would not need to have their overfill device arrangements 
grandfathered. For vessels not subject to 46 CFR part 39, the Coast 
Guard allowed for equivalent alternatives to specifically assist those 
owners or operators who installed devices prior to January 19, 1995. In 
addition, alternative arrangements are permitted under this rule, 
therefore, the Coast Guard has not included a grandfather clause in 
this final rule.
    One comment suggested that the overfill device requirements in 33 
CFR 155.480 be rewritten to stand alone, instead of cross referencing 
46 CFR part 39. The intent of this rulemaking is to conform overfill 
device requirements to the requirements for overfill prevention of 
vessels using vapor control systems. Because the Coast Guard wishes to 
ensure these two parts conform, this final rule does not change the 
cross-reference contained in 33 CFR 155.480.
    One comment stated that 33 CFR 155.480(b)(2)(l) fails to recognize 
the inherent simplicity of the river barge as compared to the ocean 
tanker. The comment suggested a battery powered system with a light 
indicating that the system has power, as another alternative for 
barges. Again, these recommended changes to 33 CFR 155.480(b)(2)(i) are 
not consistent with the vapor control rules. The Coast Guard chose to 
conform these rules with the existing marine vapor control rules to 
assist those who must comply with them.
    One comment requested that a summary shutdown, that does not 
indicate which tank is overfilling, be accepted in lieu of a shutdown 
that does indicate which tank is overfilling. As written, the interim 
rule and this final rule allow a summary shutdown arrangement.

Assessment

    This rule is a significant regulatory action under section 3(f) of 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget under that order. It is significant under the regulatory 
policies and procedures of the Department of Transportation (44 FR 
11040; February 26, 1979). Although it does not require an assessment 
of costs and benefits under section 6(a)(3) of Executive Order 12866, 
an assessment has been prepared and is available in the docket for 
inspection or copying where indicated under ADDRESSES. There were no 
comments received regarding the interim assessment. In addition, the 
change to 33 CFR 155.480 in no way changes the findings of the interim 
assessment. For these two reasons, and in that there is so little 
change in this final rule form the interim rule, the interim assessment 
is adopted as a final assessment under Executive Order 12866.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard considered whether this rule will have a significant 
economic impact on a substantial number of small entities. ``Small 
entities'' include 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.
    The Coast Guard received no comments on the interim rule from small 
entities. Sufficient flexibility alternatives were built into this 
rulemaking to accommodate small entities. Therefore, the Coast Guard 
certifies under section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) that this rule will not have a significant economic 
impact on a substantial number of small entities.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
offered to assist small entities in understanding the rule so that they 
could better evaluate its effects on them and

[[Page 48773]]

participate in the rulemaking process. The NPRM for this rulemaking 
specifically asked small entities to comment if they thought this 
rulemaking would have a significant economic impact on their business. 
In addition, the Coast Guard held a public meeting at U.S. Coast Guard 
Headquarters on November 17, 1993, to hear public comment on the 
rulemaking. Based on the comments received on the NPRM, the Coast Guard 
revised the regulations to lessen the burden on small entities. For 
example, the Coast Guard has limited these regulations to tank vessels 
with a cargo carrying capacity of more than 1,000 M3 to 
accommodate those small entities that do not pose as large an 
environmental threat, yet would incur substantial cost if overfill 
devices were required. Even with the restricted application, this final 
rule covers 21 tankships and 391 tank barges which are owned and 
operated by small companies. The Coast Guard has provided further 
flexibility for the affected small entities by permitting the 
alternative of high-level indicating devices for tank barges. This is a 
less expensive option and is less costly for the smaller entities 
contained within the tank barge industry. If you are a small entity 
affected by this final rule and need further help determining how this 
rule applies to you, please contact the Coast Guard Officer in Charge 
of Marine Inspection identified in 33 CFR part 3 that is nearest to 
your vessel's operation.

Collection of Information

    This final rule provides for collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As required 
by 5 U.S.C. 3507(d), the Coast Guard has submitted a copy of this rule 
to the Office of Management and Budget (OMB) for its review of the 
collection of information. OMB has approved the collection. Section 
number 155.750 is approved under OMB control #2115-0121 which expires 
February 28, 2000. Section 156.150 was approved by OMB under OMB 2115-
0506 and is currently under their review for renewal.
    Persons are not required to respond to a collection of information 
unless it displays a currently valid OMB control number.

Federalism

    The Coast Guard has analyzed this final rule under the principles 
and criteria contained in Executive Order 12612 and has determined that 
this final rule does not have sufficient implications for federalism to 
warrant the preparation of a Federalism Assessment. One comment 
requested that State and municipalities be allowed to adopt stricter 
requirements than these Federal regulations. The Coast Guard has 
determined that the standards for overfill devices in this final rule 
are vessel design requirements and therefore, preclude States or 
municipalities from adopting requirements for tank vessels operating in 
interstate or foreign commerce, that differ from those contained in 
this rule.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that preparation of an Environmental Impact Statement is 
not necessary. An Environmental Assessment and a Finding of No 
Significant Impact are available in the docket for inspection or 
copying where indicated under ADDRESSES. The Environmental Assessment 
discusses the action, subsequent expected environmental impacts, and 
the overall need for the action. These regulations are not expected to 
result in a significant impact on the quality of the human environment 
because overfills tend to result in relatively small spills.

List of Subjects

33 CFR Part 155

    Hazardous substances, Oil pollution, Reporting and recordkeeping 
requirements.

33 CFR Part 156

    Hazardous substances, Oil pollution, Reporting and recordkeeping 
requirements, Water pollution control.

    For the reasons set forth in the preamble, the interim rule 
amending 33 CFR parts 155 and 156, which was published in 59 FR 53286 
on October 21, 1994, is adopted as a final rule with the following 
changes:

PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION 
REGULATIONS FOR VESSELS

    1. The authority citation for part 155 and the note following the 
citation is revised to read as follows:

    Authority: 33 U.S.C. 1231, 1321(j); 46 U.S.C. 3715; sec. 2, E.O. 
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; 49 CFR 1.46. Sections 
155.100 through 155.130, 155.350 through 155.400, 155.430, 155.440, 
155.470, 155.1030 (j) and (k), and 155.1065(g) also issued under 33 
U.S.C. 1903(b); and Secs. 155.1110 through 155.1150 also issued under 
33 U.S.C. 2735.

    Note: Additional requirements for vessels carrying oil or 
hazardous materials are contained in 46 CFR parts 30 through 36, 33 
CFR parts 150, 151, 153, and 157.

    2. In Sec. 155.100, revise paragraph (a) introductory text and add 
a new paragraph (c) to read as follows:


Sec. 155.100  [Amended].

    (a) Subject to the exceptions provided for in paragraph (b) and (c) 
of this section, this part applies to each ship that:
* * * * *
    (c) Section 155.480 applies to each tank vessel with a cargo 
capacity of 1,000 or more cubic meters (approximately 6,290 barrels), 
loading oil or oil reside as cargo that is operated under the authority 
of the United States, wherever located, or operated under the authority 
of a country other than the United States while in the navigable waters 
of the United States, or while at a port or terminal under the 
jurisdiction of the United States.
    3. In Sec. 155.480, revise paragraphs (b) introductory text and (f) 
to read as follows:


Sec. 155.480  Overfill devices.

* * * * *
    (b) Each tank vessel with a cargo capacity of 1,000 or more cubic 
meters (approximately 6,290 barrels), loading oil or oil residue as 
cargo, must have one overfill device that is permanently installed on 
each cargo tank and meets the requirements of this section.
* * * * *
    (f) This section does not apply to tank vessels that carry asphalt, 
animal fat, or vegetable oil as their only cargo.

    Dated: September 4, 1997.
R.D. Herr,
Vice Admiral, U.S. Coast Guard, Acting Commandant.
[FR Doc. 97-24586 Filed 9-16-97; 8:45 am]
BILLING CODE 4910-14-M