[Federal Register Volume 70, Number 138 (Wednesday, July 20, 2005)]
[Rules and Regulations]
[Pages 41614-41617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14246]


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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 [email protected]. 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 [email protected]. 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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