[Federal Register Volume 76, Number 238 (Monday, December 12, 2011)]
[Rules and Regulations]
[Pages 77128-77131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31708]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 126

[Docket No. USCG-2011-0966]
RIN 1625-AB82


Alternate Tonnage Threshold for Oil Spill Response Vessels

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing an alternate size threshold 
based on the measurement system established under the International 
Convention on Tonnage Measurement of Ships, 1969, for Oil Spill 
Response Vessels (OSRVs), which are properly certificated under 46 CFR 
subchapter L. The present size threshold of 500 gross registered tons 
is based on the U.S. regulatory measurement system. This rule provides 
an alternative for owners and operators of offshore supply vessels 
(OSVs) that may result in an increase in oil spill response capacity 
and capability.

DATES: This interim rule is effective December 12, 2011. Comments and 
related material must either be submitted to our online docket via 
http://www.regulations.gov on or before February 10, 2012 or reach the 
Docket Management Facility by that date.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0966 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
email or call Mr. Brian T. Ellis, Coast Guard Marine Safety Center; 
email [email protected], telephone (202) 475-5636. If you have 
questions on viewing or submitting material to the docket, call Renee 
V. Wright, Program Manager, Docket Operations, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Regulatory History
IV. Basis and Purpose
V. Discussion of the Interim Rule
VI. 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. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0966), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2011-0966'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2011-0966'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the Internet, you may view the docket 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the

[[Page 77129]]

individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review a Privacy Act notice regarding our public dockets in the January 
17, 2008, issue of the Federal Register (73 FR 3316).

D. Public Meeting

    We do not now plan to hold a public meeting, but you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

II. Abbreviations

DHS Department of Homeland Security
FR Federal Register
GRT Gross Register Tons
GT ITC Gross Tonnage International Tonnage Convention
OSV Offshore Supply Vessel
OSRV Oil Spill Response Vessel
U.S.C. United States Code

III. Regulatory History

    This rule is issued as an interpretive rule as authorized by 
section 702 of the Coast Guard Authorization Act of 1996 (the Act) 
(Pub. L. 104-324; October 19, 1996) (46 U.S.C. 14104). The Conference 
Report on the Act (H. Rept. 104-854) states that, because this rule is 
considered to be an interpretive rule under the Administrative 
Procedure Act (5 U.S.C. 551 et seq.), the notice of proposed 
rulemaking, the comment requirements, and the 30-day delay of the 
effective date under 5 U.S.C. 553 are not required.\1\ Therefore, this 
interpretive rule is effective on the date of publication in the 
Federal Register. However, the Coast Guard values input from the 
public, and as such, we are issuing this interpretive rule as an 
interim rule, and seeking comments from the public. Please see the 
section above titled ``Public Participation and Request for Comments.''
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    \1\ House Report 104-854 at p. 116.
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IV. Basis and Purpose

    This interpretive rule establishes an alternate tonnage threshold 
at 6000 Gross Tonnage International Tonnage Convention (GT ITC) for oil 
spill response vessels (OSRVs) that are also certificated as offshore 
supply vessels (OSVs). The alternate tonnage framework enacted by the 
Coast Guard Authorization Act of 1996 provided a mechanism for the 
Coast Guard to regulate vessels under tonnages assigned using the 
system of the International Convention on Tonnage Measurement of Ships, 
1969 (implemented into U.S. law as the ``convention measurement 
system''), instead of the U.S. domestic measurement system (now 
referred to in U.S. law as the ``regulatory measurement system'')(46 
U.S.C. 14104(b)). The selected alternate tonnage threshold is 
consistent with a 6000 GT ITC alternate threshold established for OSVs 
in 1996.\2\ As discussed further below, this will allow owners of OSVs 
regulated under the alternate tonnage framework to also have their 
vessels certificated as OSRVs without the need to meet significantly 
higher standards applicable to tank vessels.
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    \2\ See Offshore Supply Vessels: Alternate Tonnage, 61 FR 66613 
(Dec. 18, 1996), amending 46 CFR 125.160.
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    Use of alternate tonnage facilitates the design, construction, and 
operation of vessels without the need for the fitting of undesirable 
design features, whose sole purpose is to artificially reduce tonnages 
assigned under the regulatory measurement system. Because the 
rulemaking provides for optional use of an alternative approach to meet 
an existing requirement, there is no mandatory cost to the public. The 
authority for this rulemaking is the 1996 Coast Guard Authorization Act 
(Pub. L. 104-324), as codified in 46 U.S.C. Sections 3702(f)(2)(A) and 
14104(b).

V. Discussion of the Interpretive Rule

    Both domestically and internationally, a vessel's gross or net 
tonnage assignment is the basis for applying requirements of a 
multitude of laws, regulations, and standards, including the 500 gross 
register ton (GRT) size threshold that is the subject of this 
interpretive rule. The primary U.S. domestic measurement system used to 
assign tonnages to U.S. flag vessels evolved from an older British 
measurement system and involves a complex series of exemptions and 
deductions. It is now a subset of the regulatory measurement system, 
and is called the ``standard measurement system.'' This system is 
highly susceptible to manipulation through inclusion of costly and 
inefficient design features, such as so-called ``tonnage openings'' and 
``deep frames''. Although in 1986 the U.S. implemented the 
internationally accepted measurement system of the International 
Convention on Tonnage Measurement of Ships, 1969, the standard 
measurement system may still be used to measure any U.S. flag vessel, 
at the vessel owner's option.
    To help facilitate conversion to tonnage assignments under the 
convention measurement system, in 1996 Congress gave the Coast Guard 
the authority to establish tonnage thresholds based on the convention 
measurement system as an alternative to existing thresholds specified 
in U.S. law that were based on the regulatory measurement system. This 
authority included a mandate that any regulations used to establish 
alternate tonnage thresholds be interpretive rules. While the Coast 
Guard promptly issued an interpretive rule establishing an alternate 
tonnage threshold bounding the upper size for OSVs (61 FR 66614 dated 
December 18, 1996), little additional progress has been made on this 
initiative due to its complexity, broad scope, and competing 
priorities.
    Experience with cleanup of the 2010 Deepwater Horizon oil spill 
generated interest, in both the public and private sectors, for 
expanding spill response capability and capacity by using certificated 
OSVs as OSRVs. Many of the newer OSVs that were constructed under the 
alternate tonnage framework established in 1996 exceed the 500 GRT 
threshold for multi-service OSRVs specified in 46 U.S.C. 3702(f)(2)(A). 
Therefore, they are currently precluded from also being certificated as 
OSRVs, unless they meet tank vessel standards. This rule, in effect, 
removes this obstacle to OSRV certification. Safety, design and 
operational standards for OSRVs may be the subject of a future 
rulemaking by the U.S. Coast Guard.
    Tonnage thresholds in all tonnage-based laws of the United States 
are applied to the vessel using convention measurement system tonnage 
when a vessel is optionally assigned convention measurement system 
tonnage only (i.e., GRT tonnage not assigned). This includes the 6000 
GT ITC alternate tonnage threshold established under this rule. The 
vessel's assigned regulatory measurement tonnage is used to apply these 
thresholds when the option is not exercised. This includes the 500 GRT 
threshold that is the subject of this rule. There are no restrictions 
that would preclude the vessel owner, or a future owner, from reverting 
to a previous decision in this regard.

VI. Regulatory Analyses

    We developed this interpretive rule after considering numerous 
statutes and executive orders related to rulemaking. Below we summarize 
our analyses based on 14 of these statutes or executive orders.

[[Page 77130]]

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility.
    This interpretive 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.
    This interpretive rule establishes a tonnage threshold of 6000 GT 
ITC for OSRVs under the alternate tonnage framework, which offers a 
mechanism for the Coast Guard to regulate vessels under tonnages 
assigned using the convention measurement system, instead of the 
regulatory measurement system. Therefore, this interpretive rule 
provides an option to owners of vessels certificated as OSVs (under 46 
CFR subchapter L) to seek OSRV certification based on this alternate 
tonnage threshold. We believe that a vessel owner will opt to use the 
alternate tonnage framework described in this interpretive rule only if 
it will be beneficial to the owner's business.
    We expect this interpretive rule to be beneficial to the public and 
to the maritime industry because it provides the opportunity to 
increase oil spill response capacity and capability.
    This interpretive rule provides for optional and voluntary use of 
an alternative approach to meet an existing requirement. Accordingly, 
there is no mandatory cost to the public.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), this rule 
is considered an interpretive rule and is not subject to the 
requirement under 5 U.S.C. 553(b) for publication of a general notice 
of proposed rulemaking. Therefore, under 5 U.S.C. 601, it is not a rule 
that is subject to the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).
    As previously discussed in Section III (Regulatory History) of this 
preamble, the Coast Guard is issuing this rule as an interpretive rule 
as authorized by section 702 of the Coast Guard Authorization Act of 
1996 (the Act) (Pub. L. 104-324; October 19, 1996). The Conference 
Report on the Act (H. Rept. 104-854) states that, because this rule is 
considered to be an interpretive rule under the Administrative 
Procedure Act (5 U.S.C. 551 et seq.), the notice of proposed rulemaking 
and comment requirements and the 30-day delay of effective date under 5 
U.S.C. 553 would not be required in order to expedite this rulemaking.
    This interpretive rule provides for optional and voluntary use of 
an alternative approach to owners of vessels certificated as OSVs to 
seek an OSRV certification based on an alternate tonnage threshold. We 
believe that a vessel owner will opt to use the alternate tonnage 
framework described in this interpretive final rule only if it will be 
beneficial to the owner's business. We expect this interim rule to be 
beneficial to the public and to the maritime industry because it 
provides the opportunity to increase the availability and capacity of 
OSRVs.

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 this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult Brian T. Ellis, U. S. Coast 
Guard Marine Safety Center, Tonnage Division, (202) 475-5636, 
[email protected]. 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.
    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 by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-(888) 734-3247).

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.
    We have analyzed this rule under that Order and have determined 
that it does not have implications for federalism.

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 (adjusted for 
inflation) 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 this preamble.

G. Taking of Private Property

    This rule will not cause 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.

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.

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K. 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 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.

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 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 interpretive rule under Department of 
Homeland Security Management Directive 023-01 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 that do not individually or cumulatively have a significant 
effect on the human environment. This interpretive rule is 
categorically excluded under section 2.B.2, figure 2-1, paragraph 
(34)(d) of the Instruction. Exclusion under paragraph (34)(d) applies 
because this interpretive rule pertains to regulations concerning 
documentation and admeasurement of vessels. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 126

    Cargo vessels, Marine safety, Reporting and recordkeeping 
requirements.

    For the reasons discussed in the preamble, the Coast Guard amends 
46 CFR part 126 as follows:

PART 126--INSPECTION AND CERTIFICATION

0
1. The authority citation for part 126 is revised to read as follows:

    Authority: 33 U.S.C. 1321(j); 46 U.S.C. 3205, 3306, 3307, 3702, 
14104; 46 U.S.C. Chapter 701; Executive Order 11735, 38 FR 21243; 3 
CFR 1971-1975 Comp., p. 793; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  126.225 to read as follows:


Sec.  126.225  Alternate tonnage for offshore supply vessels seeking 
oil spill response vessel certification.

    An offshore supply vessel certificated under this subchapter that 
is less than 500 gross register tons (GRT) as measured under section 
14502 of Title 46, United States Code, or 6,000 gross tonnage (GT ITC) 
as measured under section 14302 of Title 46, United States Code when 
GRT is not assigned, may also be certificated as an oil spill response 
vessel.

    Dated: December 5, 2011.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2011-31708 Filed 12-9-11; 8:45 am]
BILLING CODE 9110-04-P