[Federal Register Volume 80, Number 223 (Thursday, November 19, 2015)]
[Rules and Regulations]
[Pages 72342-72356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29519]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 138

[Docket No. USCG-2013-1006]
RIN 1625-AC14


Consumer Price Index Adjustments of Oil Pollution Act of 1990 
Limits of Liability--Vessels, Deepwater Ports and Onshore Facilities

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is issuing a final rule to increase the limits 
of liability for vessels, deepwater ports, and onshore facilities, 
under the Oil Pollution Act of 1990, as amended (OPA 90), to reflect 
significant increases in the Consumer Price Index (CPI). This final 
rule also establishes a simplified regulatory procedure for the Coast 
Guard to make future required periodic CPI increases to these OPA 90 
limits of liability. These regulatory inflation increases to the limits 
of liability are required by OPA 90 and are necessary to preserve the 
deterrent effect and ``polluter pays'' principle embodied in OPA 90. In 
addition, this final rule clarifies applicability of the OPA 90 vessel 
limits of liability to edible oil cargo tank vessels and tank vessels 
designated as oil spill response vessels. This clarification to the 
prior regulatory text is needed for consistency with OPA 90. Finally, 
this rule makes several non-substantive clarifying and editorial 
revisions to the regulatory text. This rulemaking promotes the Coast 
Guard's missions of maritime safety and maritime stewardship.

DATES: This final rule is effective December 21, 2015.

FOR FURTHER INFORMATION CONTACT: For information about this document 
call or email Benjamin White, Coast Guard; telephone 202-309-1937, 
email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose

[[Page 72343]]

III. Background and Regulatory History
    A. Creation of 33 CFR Part 138, Subpart B
    B. Prior Regulatory Inflation Adjustments to the OPA 90 Limits 
of Liability for Vessels and Deepwater Ports
    C. Clarification of the Coast Guard's Delegated Authority To 
Adjust the Onshore Facility Limit of Liability
    D. Overview of Changes Proposed by the NPRM for This Rulemaking 
(CPI-2 NPRM)
IV. Discussion of Comments and Changes
    A. Limit of Liability Adjustments
    B. Simplified Regulatory Procedure for Future Inflation 
Adjustments to the Limits
    C. Inflation Adjustment Methodology
    D. Clarifying Applicability of the ``Other Vessel'' Limits of 
Liability to Edible Oil Tank Vessels and Oil Spill Response Vessels
    E. Applicability of the Tank Vessel Limits of Liability, 
Including for MODUs
    F. Other Revisions to Clarify the Regulatory Text
V. 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

Annual CPI-U The Annual ``Consumer Price Index--All Urban Consumers, 
Not Seasonally Adjusted, U.S. City Average, All Items, 1982-84=100''
BLS U.S. Department of Labor, Bureau of Labor Statistics
BOEM The Bureau of Ocean Energy Management
CFR Code of Federal Regulations
COFR Certificate of Financial Responsibility
COFR Rule The Coast Guard regulation, at 33 CFR part 138, subpart A, 
implementing the requirements under OPA 90 (33 U.S.C. 2716 and 
2716a) and the Comprehensive Environmental Response, Compensation, 
and Liability Act (42 U.S.C. 9608 and 9609) for responsible parties 
to establish and maintain evidence of financial responsibility in 
the event of an oil spill incident or hazardous substance release.
CPI Consumer Price Index
CPI-1 Rule The Coast Guard's first rulemaking amending 33 CFR part 
138, subpart B, to adjust the OPA 90 limits of liability for vessels 
and deepwater ports for inflation, as required by 33 U.S.C. 
2704(d)(4), and to establish the Coast Guard's procedure for future 
required inflation adjustments to the OPA 90 limits of liability 
(Docket No. USCG-2008-0007). See 73 FR 54997 (September 24, 2008) 
[CPI-1 NPRM]; 74 FR 31357 (July 1, 2009) [CPI-1 Interim Rule]; 75 FR 
750 (January 6, 2010) [CPI-1 Final Rule].
CPI-2 NPRM The NPRM for this rulemaking, published at 79 FR 49206 
(August 19, 2014).
CPI-2 Rule This rulemaking, which is the Coast Guard's second 
rulemaking under 33 U.S.C. 2704(d)(4) to amend 33 CFR part 138, 
subpart B, to adjust the OPA 90 vessel and deepwater port limits of 
liability for inflation, and the first rulemaking adjusting the 
onshore facility limit of liability for inflation (Docket No. USCG-
2013-1006).
Deepwater port A facility licensed under the Deepwater Port Act of 
1974 (33 U.S.C. 1501-1524)
DHS U.S. Department of Homeland Security
DRPA The Delaware River Protection Act of 2006, Title VI of the 
Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-
241, July 11, 2006, 120 Stat. 516
E.O. Executive Order
FR Federal Register
Fund The Oil Spill Liability Trust Fund created by 26 U.S.C. 9509, 
and administered by NPFC
LNG Liquefied natural gas
LOOP Louisiana Offshore Oil Port
MARAD U.S. Department of Transportation, Maritime Administration
MODU Mobile offshore drilling unit
NPFC U.S. Coast Guard, National Pollution Funds Center
NPRM Notice of proposed rulemaking
OMB U.S. Office of Management and Budget
OPA 90 The Oil Pollution Act of 1990, as amended (33 U.S.C. 2701, et 
seq.)
SBA U.S. Small Business Administration
Sec.  Section symbol
U.S. United States
U.S.C. United States Code

II. Basis and Purpose

    In general, under Title I of the Oil Pollution Act of 1990, as 
amended (OPA 90),\1\ the responsible parties for any vessel (other than 
a public vessel) \2\ or for any facility \3\ from which oil is 
discharged, or which poses a substantial threat of discharge of oil, 
into or upon the navigable waters or the adjoining shorelines or the 
exclusive economic zone of the United States, are strictly liable, 
jointly and severally, under 33 U.S.C. 2702 for the removal costs and 
damages that result from such incident (``OPA 90 removal costs and 
damages''). Under 33 U.S.C. 2704, however, a responsible party's OPA 90 
liability with respect to any one incident \4\ is limited (with certain 
exceptions set forth in 33 U.S.C. 2704(c)) to a specified dollar 
amount.
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    \1\ 33 U.S.C. 2701, et seq.
    \2\ Public vessels are expressly excluded from OPA 90 coverage. 
See 33 U.S.C. 2701(29) and (37) (definitions of public vessel and 
vessel) and 33 U.S.C. 2702(c)(2) (public vessel exclusion).
    \3\ OPA 90 (33 U.S.C. 2701(9)) defines ``facility'' as ``any 
structure, group of structures, equipment, or device (other than a 
vessel) which is used for one or more of the following purposes: 
Exploring for, drilling for, producing, storing, handling, 
transferring, processing, or transporting oil. This term includes 
any motor vehicle, rolling stock, or pipeline used for one or more 
of these purposes''.
    \4\ The term ``incident'' is defined in 33 U.S.C. 2701(14) as 
``any occurrence or series of occurrences having the same origin, 
involving one or more vessels, facilities, or any combination 
thereof, resulting in the discharge or substantial threat of 
discharge of oil''.
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    In instances when a limit of liability applies, the Oil Spill 
Liability Trust Fund (Fund) is available to compensate the OPA 90 
removal costs and damages incurred by the responsible party and third-
party claimants in excess of the applicable limit of liability.\5\ This 
Fund is managed by the Coast Guard's National Pollution Funds Center 
(NPFC).
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    \5\ See 33 U.S.C. 2708, 2712(a)(4) and 2713; and 33 CFR part 
136. A more comprehensive description of the Fund can be found in 
the Coast Guard's May 12, 2005, ``Report on Implementation of the 
Oil Pollution Act of 1990'', which is available in the docket.
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    OPA 90 sets forth the statutory limits of liability for vessels and 
three types of facilities: Onshore facilities, deepwater ports licensed 
under the Deepwater Port Act of 1974 (hereinafter ``deepwater ports''), 
and offshore facilities other than deepwater ports.\6\ In addition, to 
prevent the real value of the OPA 90 statutory limits of liability from 
depreciating over time as a result of inflation and preserve the 
``polluter pays'' principle embodied in OPA 90, 33 U.S.C. 2704(d)(4) 
requires that the OPA 90 limits of liability be adjusted by regulation 
``not less than every 3 years . . . to reflect significant increases in 
the Consumer Price Index''.\7\
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    \6\ The term ``onshore facility'' is defined in 33 U.S.C. 
2701(24) as ``any facility (including but not limited to, motor 
vehicles and rolling stock) of any kind located in, on, or under, 
any land within the United States other than submerged land''. The 
term ``deepwater port'' is defined in 33 U.S.C. 2701(6) as ``a 
facility licensed under the Deepwater Port Act of 1974 (33 U.S.C. 
1501-1524)''. The term ``offshore facility'' is defined in 33 U.S.C. 
2701(24) as ``any facility of any kind located in, on, or under any 
of the navigable waters of the United States, and any facility of 
any kind which is subject to the jurisdiction of the United States 
and is located in, on, or under any other waters, other than a 
vessel or a public vessel;'' Onshore facilities, deepwater ports and 
offshore facilities include component pipelines. See definition of 
``facility'' in footnote 3, above.
    \7\ 33 U.S.C. 2704(d)(4).
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    The President has delegated this regulatory authority to the 
Secretary of the department in which the Coast Guard is operating, in 
respect to the statutory limits of liability for vessels, deepwater 
ports, and onshore facilities. The Secretary of Homeland Security has 
further delegated this authority to the Commandant of the Coast 
Guard.\8\
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    \8\ The regulatory authority to adjust the offshore facility 
limit of liability for damages has been delegated to the Secretary 
of the Interior. See further discussion of the delegations in Part 
III.C., below, under Background and Regulatory History.

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[[Page 72344]]

    In this final rule we are making four changes to the Coast Guard 
regulations at 33 CFR part 138, subpart B. First, we are carrying out 
the required inflation adjustments to the OPA 90 limits of liability 
for vessels, deepwater ports and onshore facilities. Second, we are 
establishing a simplified regulatory procedure to ensure timely future 
required inflation adjustments to those limits of liability. Third, we 
are clarifying applicability of the OPA 90 vessel limits of liability 
to edible oil cargo tank vessels and to tank vessels designated in 
their certificates of inspection as oil spill response vessels.\9\ This 
clarification to the regulatory text is needed for consistency with OPA 
90. Fourth, we are making several non-substantive clarifying and 
editorial revisions to the regulatory text. These revisions include 
adding a cross-reference to the Code of Federal Regulations (CFR) 
section that sets forth the offshore facility limit of liability for 
damages, as adjusted for inflation by the U.S. Department of the 
Interior's Bureau of Ocean Energy Management (BOEM). That limit of 
liability can be found at 30 CFR 553.702. The regulatory text revisions 
made by this final rule were discussed in the notice of proposed 
rulemaking (NPRM), and the Coast Guard is adopting them today without 
substantive change.
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    \9\ 33 U.S.C. 2704(c)(4).
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III. Background and Regulatory History

A. Creation of 33 CFR Part 138, Subpart B

    In 2008, we promulgated 33 CFR part 138, subpart B, setting forth 
the OPA 90 limits of liability for vessels and deepwater ports. (See, 
Docket No. USCG-2005-21780.) This was done in anticipation of the Coast 
Guard periodically adjusting those limits of liability to reflect 
significant increases in the CPI, as required by 33 U.S.C. 2704(d)(4), 
and to ensure that the applicable amounts of OPA 90 financial 
responsibility that must be demonstrated and maintained by vessel and 
deepwater port responsible parties, as required by 33 U.S.C. 2716 and 
33 CFR part 138, subpart A (COFR Rule), would always equal the 
applicable OPA 90 limits of liability as adjusted over time.

B. Prior Regulatory Inflation Adjustments to the OPA 90 Limits of 
Liability for Vessels and Deepwater Ports

    We published a notice of proposed rulemaking (NPRM) on September 
24, 2008 (73 FR 54997) (CPI-1 NPRM), and an interim rule with request 
for comments on July 1, 2009 (74 FR 31357) (CPI-1 Interim Rule) 
adjusting the vessel and deepwater port limits of liability at 33 CFR 
part 138, subpart B, to reflect significant increases in the CPI.\10\ 
The CPI-1 Interim Rule also established the Coast Guard's procedures 
and methodology for adjusting the OPA 90 limits of liability for 
inflation over time at Sec.  138.240.
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    \10\ This included adjustments to the regulatory limit of 
liability established for the Louisiana Offshore Oil Port (LOOP) 
under the OPA 90 deepwater port risk-based limit of liability 
adjustment authority at 33 U.S.C. 2704(d)(2), 60 FR 39849 (August 4, 
1995). See the CPI-1 Rule for more background on LOOP. We 
promulgated the CPI-1 Rule adjustments as an interim, rather than 
final, rule to clarify the regulatory text in response to a late 
comment we received on a related 2008 rulemaking amending the COFR 
Rule. That comment is discussed below in Part IV.E., in response to 
a comment submitted on this rulemaking.
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    We received no adverse public comments on the CPI-1 Interim Rule. 
We, therefore, published a final rule on January 6, 2010, adopting the 
CPI-1 Interim Rule amendments to 33 CFR part 138, subpart B, without 
change (CPI-1 Final Rule, 75 FR 750).\11\
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    \11\ All Federal Register notices, comments and other materials 
related to the CPI-1 Rule are available in the public docket for 
that rulemaking (Docket No. USCG-2008-0007).
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C. Clarification of the Coast Guard's Delegated Authority To Adjust the 
Onshore Facility Limit of Liability

    The CPI-1 Rule was the Coast Guard's first set of inflation 
adjustments to the OPA 90 limits of liability for vessels and deepwater 
ports. We, however, deferred adjusting the statutory limit of liability 
for onshore facilities in 33 U.S.C. 2704(a)(4) at that time. This was 
because Executive Order (E.O.) 12777, Sec. 4, and its implementing re-
delegations vested the President's responsibility to adjust the OPA 90 
limits of liability in multiple agencies.
    Specifically, the delegations vested the President's limit of 
liability adjustment authorities in the Commandant of the Coast Guard 
for vessels, deepwater ports and marine transportation-related onshore 
facilities, in the Secretary of the Department of Transportation for 
non-marine transportation-related onshore facilities, in the 
Administrator of the Environmental Protection Agency for non-
transportation-related onshore facilities, and in the Secretary of the 
Interior for offshore facilities. That division of responsibilities 
complicated the CPI adjustment rulemaking requirement, particularly in 
respect to the three sub-categories of onshore facilities. Further 
interagency coordination was, therefore, needed to avoid inconsistent 
regulatory treatment.
    By deferring the first onshore facility limit of liability 
inflation adjustment we were able to complete the required first set of 
inflation increases to the vessel and deepwater port limits of 
liability by the 2009 statutory deadline established by the Delaware 
River Protection Act of 2006 (DRPA).\12\ In addition, as of that date, 
there had never been an onshore facility incident that exceeded the 
statutory onshore facility limit of liability, and there were no 
adverse public comments on our decision to defer the first regulatory 
inflation adjustment to the onshore facility limit of liability.
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    \12\ Title VI of the Coast Guard and Maritime Transportation Act 
of 2006, Public Law 109-241, July 11, 2006, 120 Stat. 516. Section 
603 of DRPA added a 2009 statutory deadline for completing the first 
rulemaking to increase the limits of liability for inflation to 33 
U.S.C. 2704(d)(4).
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    On March 15, 2013, the President signed E.O. 13638, restating and 
simplifying the delegations in E.O. 12777, Sec. 4, and vesting the 
authority to make CPI adjustments to the onshore facility statutory 
limit of liability in ``the Secretary of the Department in which the 
Coast Guard is operating''.\13\ The restated delegations also require 
interagency coordination, but otherwise preserve the earlier 
delegations, including the authority to adjust the limits of liability 
for vessels and deepwater ports. On July 10, 2013, the Secretary of 
Homeland Security issued DHS Delegation Number 5110, Revision 01, re-
delegating these authorities to the Commandant of the Coast Guard.
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    \13\ E.O. 13638, Sec. 1, 3 CFR, 2014 Comp., p.227 (also 
available at 78 FR 17589, March 21, 2013), amending E.O. 12777, Sec. 
4, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, Sec. 89, 3 
CFR, 2004 Comp., p. 166.
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D. Overview of Changes Proposed by the NPRM for This Rulemaking (CPI-2 
NPRM)

    On August 19, 2014, we published an NPRM to amend 33 CFR part 138, 
subpart B (CPI-2 NPRM, at 79 FR 49206). The CPI-2 NPRM proposed four 
changes to 33 CFR part 138, subpart B. First, we proposed to carry out 
the second set of inflation adjustments to the vessel and deepwater 
port limits of liability, and the first inflation adjustment under the 
Commandant's newly-delegated authorities to the onshore facility 
statutory limit of

[[Page 72345]]

liability. Second, we proposed a simplified regulatory procedure, at 
new Sec.  138.240(a), for the Coast Guard to make future required 
periodic CPI increases to the OPA 90 limits of liability for vessels, 
deepwater ports, and onshore facilities. Third, we proposed to clarify 
applicability of the vessel limits of liability to edible oil cargo 
tank vessels and oil spill response vessels for consistency with 
statute, and to renumber some of the subparagraphs for clarity. Fourth, 
we proposed a number of non-substantive clarifying and editorial 
revisions to the regulatory text. These revisions included: Updates to 
the titles for Part 138, Subpart B and Sec.  138.240, to the list of 
authorities, and to the scope, applicability and definitions sections 
(e.g., to reflect the addition of the onshore facility limit of 
liability); adding cross-references (e.g., including a cross-reference 
in Sec.  138.230(d) to the OPA 90 offshore facility limit of liability 
for damages as adjusted for inflation by BOEM and set forth at 30 CFR 
553.702); and paragraph restructuring and plain language revisions to 
improve the rule's readability (e.g., replacing public law citations 
with U.S. code citations).
    We discussed the following two issues in the CPI-2 NPRM, and they 
are of relevance to changes we are making to the regulatory text in 
this final rule.
    1. Updated Annual CPI-U. To keep the limits of liability current, 
the inflation adjustment methodology established by the CPI-1 Rule at 
Sec.  138.240 requires that we use the Annual CPI-U that has been most 
recently published by the U.S. Department of Labor, Bureau of Labor 
Statistics (BLS) as the ``current period'' value. We, therefore, noted 
in the CPI-2 NPRM that the limits of liability shown in proposed Sec.  
138.230 were estimates, calculated using the then-available 2013 Annual 
CPI-U value of 232.957 as the ``current period'' value.\14\ We further 
noted that we would calculate the limit of liability adjustments at the 
final rule stage using the most recently-published Annual CPI-U then 
available, and that the final limits of liability would therefore 
differ marginally from the proposed values.
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    \14\ See Table 24 of the BLS CPI Detailed Reports, which are 
made available each month at the following link: http://www.bls.gov/cpi/tables.htm.
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    2. Previous period options. The CPI-2 NPRM notified the public 
that, after considering any public comments on the proposal, we might 
re-calculate the inflation adjustments to the deepwater port and 
onshore facility statutory limit of liability (33 U.S.C. 2704(a)(4)) 
using the 1990 Annual CPI-U value of 130.7 as the ``previous period''. 
This would be instead of the 2008 Annual CPI-U value of 215.3 that we 
used to calculate the proposed deepwater port limit of liability (shown 
in Sec.  138.230(b)(1) of the CPI-2 NPRM), and the 2006 Annual CPI-U 
``previous period'' value of 201.6 that we used to calculate the 
proposed onshore facility limit of liability (shown in Sec.  138.230(c) 
of the CPI-2 NPRM).
    We discuss public comments received on these topics and how we have 
resolved them in Part IV, of this preamble, below.

IV. Discussion of Comments and Changes

A. Limit of Liability Adjustments

    We received nine written submissions to the docket. Two submissions 
were from citizen advisory groups organized under OPA 90, Sec. 5002. 
Four submissions (including one set of comments submitted on behalf of 
two commenters) were from environmental advocacy organizations. One 
comment document was from a drilling contractor association, and two 
submissions were from anonymous individuals. We received no requests 
for public meetings, and held no public meetings for this rulemaking.
    1. General public support for the rulemaking. Six commenters 
expressed general support for the proposal. In addition, one commenter 
expressed support for prioritizing regulations that provide 
environmental change. No commenter opposed the proposal. The Coast 
Guard appreciates this support.
    2. Issues raised by the public that are outside the scope of this 
rulemaking. Two commenters stated that the OPA 90 statutory limits of 
liability are inadequate and should be significantly increased. Four 
commenters expressed the view that OPA 90 liability should not be 
capped. Several of these commenters stated that removing the liability 
limits would encourage industry best practices and be consistent with 
Congressional intent that polluters pay for the injuries they cause. 
These comments are outside the scope of this rulemaking because, as 
several of the commenters recognized, striking or significantly 
increasing the statutory limits of liability would require legislative 
change.
    One commenter expressed the view that penalties for oil spills 
should not be limited. (This comment concerns civil or criminal penalty 
liability for oil spills, and is therefore in addition to the comments 
discussed above in the previous paragraph about the adequacy or need 
for OPA 90 limits of liability for removal costs and damages.) Another 
commenter stated that independent third parties should audit clean-ups 
by responsible parties. Both of these comments also are outside the 
scope of this rulemaking. This rulemaking only concerns the inflation 
adjustments to the OPA 90 limits of liability for removal costs and 
damages that are required under 33 U.S.C. 2704(d)(4). It does not 
concern penalty liability or the procedures for carrying-out removal 
actions.
    3. Updated Annual CPI-U. We received no comments opposing use of 
the Annual CPI-U that has been most recently published by the BLS, as 
required in Sec.  138.240.
    4. Public comments concerning use of a 1990 ``previous period''. No 
commenter opposed, and five commenters expressed support for, using the 
1990 Annual CPI-U as the ``previous period'' value to adjust the 
statutory onshore facility and deepwater port limit of liability. 
Several of these commenters stated that using a 1990 ``previous 
period'' would capture the full amount of inflation since OPA 90 was 
enacted, thereby restoring the onshore facility and deepwater port 
statutory limit of liability to the amount intended by Congress. One of 
the commenters stated that using the 1990 ``previous period'' is 
appropriate because of the increasing risks to U.S. waters of new, more 
intensive methods of oil production and transportation, including 
Bakken crude and tar sands. The commenter expressed the view that the 
approach would help achieve Congress's intent of ensuring the 
``polluter pays,'' and would encourage onshore facility and deepwater 
port operators to conduct their operations in the safest manner 
possible.
    5. Final adjusted limits of liability.
    As we noted above in Part III.D.1., the inflation adjustment 
methodology established by the CPI-1 Rule at Sec.  138.240 requires 
that we use the Annual CPI-U that has been most recently published by 
the BLS as the ``current period'' value. This requirement is to keep 
the limits of liability current. On January 16, 2015, the BLS published 
the 2014 Annual CPI-U value of 236.736. This is the most recently 
published Annual CPI-U. We have, therefore, used the 2014 Annual CPI-U 
as the ``current period'' value to calculate the new vessel, deepwater 
port and offshore facility limits of liability established by this 
final rule.
    We also agree with the public comments summarized above, in subpart 
A.4. of this part, that it is appropriate to use the 1990 Annual CPI-U 
as the ``previous period'' value for adjusting the onshore facility and

[[Page 72346]]

deepwater port statutory limit of liability in 33 U.S.C. 2704(a)(4). 
This approach captures the full amount of inflation since that limit of 
liability was established by OPA 90 and is, therefore, consistent with 
congressional intent. It is also consistent with the approach recently 
taken by BOEM to adjust the offshore facility limit of liability. (See 
79 FR 73832, December 12, 2014.) We have, therefore, recalculated the 
adjustments to the onshore facility and deepwater port statutory limit 
of liability using the 1990 Annual CPI-U value of 130.7 as the 
``previous period''.\15\
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    \15\ We are not changing the approach we used in the CPI-1 Rule 
to adjust the vessel limits of liability for inflation, where we 
used the 2006 Annual CPI-U value as the ``previous period.'' We 
continue to view that approach as consistent with congressional 
intent, because in 2006 Congress passed DRPA revising the vessel 
limits of liability. Importantly, however, Congress did not revise 
the facility limits of liability in 2006 and has not done so since. 
Thus, although we used the 2006 CPI-U value in making inflation 
adjustments to the deepwater port limits of liability in the CPI-1 
Rule, and we stated that we would also use that same approach in 
adjusting the onshore facility limits of liability at some future 
date, we have now decided (with the benefit of public comments on 
the issue and for the other reasons discussed above and in the CPI-2 
NPRM) to use a different approach in adjusting the limits for 
deepwater ports and onshore facilities. As explained, we are making 
inflation adjustments for these limits of liability using the 1990 
Annual CPI-U value as the ``previous period,'' because Congress 
established these limits in 1990 and has not revised them since that 
time. In addition to being more consistent with congressional intent 
and the ``polluter pays'' principle than our prior approach 
reflected in the CPI-1 Rule, our revised approach also may encourage 
onshore facility and deepwater port operators to conduct their 
operations in the safest manner possible, as a commenter suggested.
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    Applying the formula set forth in Sec.  138.240(b) for calculating 
the cumulative percent change in the Annual CPI-U, we have determined 
that the percent change in the Annual CPI-U exceeds the significance 
threshold specified in Sec.  138.240(c). We have, therefore, calculated 
the limit of liability adjustments using the formula set forth in Sec.  
138.240(d).
    Table 1 shows the vessel, deepwater port and onshore facility 
limits of liability before their adjustment by this final rule 
(Previous Limits of Liability), the percent change in the Annual CPI-U, 
and the final inflation-adjusted limits of liability established by 
today's final rule at Sec.  138.230 (New Limits of Liability). These 
New Limits of Liability will take effect on December 21, 2015.

                                    Table 1--CPI-Adjusted Limits of Liability
                                                [Sec.   138.230]
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                                                                      Percent change
             Source category                   Previous limit of       in the annual    New limit of liability
                                                   liability               CPI-U
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                                                   (a) Vessels
----------------------------------------------------------------------------------------------------------------
(1) The OPA 90 limits of liability for
 tank vessels, other than edible oil
 tank vessels and oil spill response
 vessels, are--
(i) For a single-hull tank vessel         the greater of $3,200 per               10  The greater of $3,500 per
 greater than 3,000 gross tons,\16\        gross ton or $23,496,000.                   gross ton or $25,845,600.
(ii) For a tank vessel greater than       the greater of $2,000 per               10  The greater of $2,200 per
 3,000 gross tons, other than a single-    gross ton or $17,088,000.                   gross ton or $18,796,800.
 hull tank vessel,
(iii) For a single-hull tank vessel less  the greater of $3,200 per               10  The greater of $3,500 per
 than or equal to 3,000 gross tons,        gross ton or $6,408,000.                    gross ton or $7,048,800.
(iv) For a tank vessel less than or       the greater of $2,000 per               10  The greater of $2,200 per
 equal to 3,000 gross tons, other than a   gross ton or $4,272,000.                    gross ton or $4,699,200.
 single-hull tank vessel,
(2) The OPA 90 limits of liability for    the greater of $1,000 per               10  The greater of $1,100 per
 any vessel other than a vessel listed     gross ton or $854,400.                      gross ton or $939,800.
 in subparagraph (a)(1) of Sec.
 138.230, including for any edible oil
 tank vessel and any oil spill response,
 vessel, are--
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                                               (b) Deepwater ports
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(1) The OPA 90 limit of liability for     $373,800,000..............            81.1  $633,850,000.
 any deepwater port, including for any
 component pipelines, other than a
 deepwater port listed in subparagraph
 (b)(2) of Sec.   138.230, is--
(2) The OPA 90 limits of liability for
 deepwater ports with limits of
 liability established by regulation
 under OPA 90 (33 U.S.C. 2704(d)(2)),
 including for any component pipelines,
 are--
(i) For the Louisiana Offshore Oil Port   $87,606,000...............              10  $96,366,600.
 (LOOP).
(ii) [Reserved].........................  N/A.......................             N/A  N/A.
----------------------------------------------------------------------------------------------------------------
                                             (c) Onshore facilities
----------------------------------------------------------------------------------------------------------------
The OPA 90 limit of liability for         $350,000,000..............            81.1  $633,850,000.
 onshore facilities, including, but not
 limited to, any motor vehicle, rolling
 stock or onshore pipeline, is
----------------------------------------------------------------------------------------------------------------

B. Simplified Regulatory Procedure for Future Inflation Adjustments to 
the Limits

    Four commenters supported adoption of the simplified regulatory 
procedure

[[Page 72347]]

proposed in new Sec.  138.240(a) for making future CPI adjustments to 
the limits of liability. The Coast Guard appreciates and agrees with 
these comments. No commenter opposed this proposal. We are, therefore, 
adopting the simplified regulatory procedure as proposed. This 
procedure, which is based on a Federal Energy Regulatory Commission 
fee-adjustment procedure in 18 CFR 381.104(a) and (d), will help ensure 
regular, timely inflation adjustments to the limits of liability, and 
is an appropriate and helpful efficiency measure given the mandatory 
and routine nature of the CPI adjustments.
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    \16\ As of January 1, 2015, tank vessels not equipped with a 
double hull can no longer operate on waters subject to the 
jurisdiction of the United States, including the Exclusive Economic 
Zone (EEZ), carrying oil in bulk as cargo or cargo residue; and 
there are no waivers or extensions of the deadline. See Coast Guard 
message DTG 221736ZDEC14. OPA 90, however, continues to specify 
limits of liability for single-hull tank vessels. The Coast Guard 
will, therefore, continue to adjust those limits of liability for 
inflation.
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C. Inflation Adjustment Methodology

    The CPI-2 NPRM did not propose any substantive changes to the Sec.  
138.240 limit of liability adjustment methodology promulgated by the 
CPI-1 Rule (Sec.  138.240(b)-(d), and previously designated as 
paragraphs (a)-(c)). Two commenters, however, expressed support for the 
inflation significance threshold in Sec.  138.240(c) and the adjustment 
methodology established by the CPI-1 Rule generally, including the 
annual reviews the Coast Guard will conduct if the significance 
threshold is not met after 3 years. We appreciate receiving that input 
and are today adopting those provisions of Sec.  138.240 with no 
substantive change.
    The only changes we have made to the regulatory text of Sec.  
138.240, as adopted by the CPI-1 Rule, are: (1) Changing the title, (2) 
adding the simplified regulatory procedure that was proposed as new 
paragraph Sec.  138.240(a) in the CPI-2 NPRM; (3) redesignating the 
paragraph lettering in the provisions that follow to accommodate 
insertion of the simplified regulatory procedure and for clarity; and 
(4) an editorial amendment to Sec.  138.240(b)(2) to more clearly 
cross-reference Sec.  138.240(b)(1).

D. Clarifying Applicability of the ``Other Vessel'' Limits of Liability 
to Edible Oil Tank Vessels and Oil Spill Response Vessels

    The CPI-2 NPRM proposed to clarify the regulatory text for 
consistency with OPA 90 as amended by the 1995 Edible Oil Regulatory 
Reform Act \17\ and the Coast Guard Authorization Act of 1998.\18\ 
Those amendments to OPA 90 exclude edible oil tank vessels and oil 
spill response vessels from the definition of ``tank vessel''. As a 
result, both vessel types are classified as a matter of law to the 
``any other vessel'' category for purposes of determining the 
applicable OPA 90 limits of liability and evidence of financial 
responsibility requirements.
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    \17\ Pub. L. 104-55, Nov. 20, 1995, 109 Stat. 546, Section 2(d) 
amending OPA 90 33 U.S.C. 2704(a)(1) and 33 U.S.C. 2716(a).
    \18\ Pub. L. 105-383, title IV, section 406, Nov. 13, 1998, 112 
Stat. 3429.
---------------------------------------------------------------------------

    One commenter expressed support for our proposal to clarify 
applicability of the vessel limits of liability to these two vessel 
categories. We appreciate receiving this comment and believe that the 
proposed clarification will reduce regulatory uncertainty. No commenter 
opposed this proposal. We are therefore adopting the proposed 
regulatory text clarification, with minor non-substantive editorial 
revisions.

E. Applicability of the Tank Vessel Limits of Liability, Including for 
MODUs

    One commenter recommended that the Coast Guard amend the regulatory 
text to further clarify that a mobile offshore drilling unit (MODU) 
that is not ``constructed or adapted to carry, or carries, oil in bulk 
as cargo or cargo residue'' is subject to the lower tank vessel limits 
of liability in Sec.  138.230(a)(1)(ii) and (iv). The commenter's 
understanding of the rule is correct. We, however, already clarified 
this issue in the CPI-1 Rule. Resolving this issue was, indeed, the 
only reason we published the CPI-1 Rule initially as an interim rule, 
rather than a final rule, in July, 2009.
    Specifically, in response to late comments we received on our 
separate but related 2008 COFR Rule amendments (Docket No. USCG-2005-
21780), our CPI-1 Interim Rule proposed a new definition in Sec.  
138.220 for the term ``single-hull''. The revision limited the term 
``single-hull'' to a tank vessel that is ``constructed or adapted to 
carry, or that carries, oil in bulk as cargo or cargo residue.'' In 
addition, we added limiting language in Sec.  138.230(a). We received 
no adverse public comments on those proposed CPI-1 Interim Rule 
revisions and, therefore, adopted the clarifications in the CPI-1 Final 
Rule without change.
    Those regulatory text revisions made clear that any tank vessel 
that does not meet the regulatory definition of ``single hull''--
including but not limited to a MODU that is neither constructed nor 
adapted to carry, and that does not carry, oil in bulk as cargo or 
cargo residue--are excluded from the single-hull tank vessel limit of 
liability categories in Sec.  138.230(a)(1)(i) and (iii). All such 
vessels are instead subject to the ``other than a single-hull tank 
vessel'' limit of liability categories in Sec.  138.230(a)(1)(ii) and 
(iv).
    Therefore, since the same standard applies to all tank vessels 
(i.e., a vessel either is, or is not, a vessel ``constructed or adapted 
to carry, or that carries, oil in bulk as cargo or cargo residue''), we 
do not see a need to single-out specific categories of tank vessels, 
such as MODUs, in the regulatory text. Singling out MODUs could, 
moreover, create unintended ambiguity respecting applicability of the 
general standard to other types of tank vessels.
    We note that this issue is very different from the clarifications 
we are adopting today in respect to the treatment of edible oil tank 
vessels and oil spill response vessels. We are adopting those 
clarifications because those two vessel categories are, as a matter of 
law, not ``tank vessels'' under OPA 90.\19\ They are, therefore, 
subject to the ``other vessel'' limits of liability in Sec.  
138.230(a)(2), rather than any of the ``tank vessel'' limits of 
liability in Sec.  138.230(a)(1). A MODU, by comparison, is treated in 
OPA 90 as a ``tank vessel''.\20\
---------------------------------------------------------------------------

    \19\ See 33 U.S.C. 2704(c)(4)(A) and (B).
    \20\ 33 U.S.C. 2704(b)(1).
---------------------------------------------------------------------------

F. Other Revisions To Clarify the Regulatory Text

    The CPI-2 NPRM proposed a number of non-substantive clarifying and 
editorial changes to the regulatory text to improve its readability. 
These included: Updates to titles, and the list of authorities and 
definitions; adding cross-references, including a cross-reference in 
Sec.  138.230(d) to the OPA 90 offshore facility limit of liability for 
damages as adjusted for inflation by BOEM; paragraph restructuring and 
renumbering to accommodate new regulatory text; and plain language 
revisions. We received no comments opposing these changes. This final 
rule, therefore, adopts the proposed changes and we have further 
clarified and edited the text for readability. The additional revisions 
include: Further updates to and simplification of the list of 
authorities citations; wording to clarify applicability of the limits 
of liability to motor vehicles, rolling stock and pipelines for 
consistency with OPA 90; simplification of the paragraph structure and 
introductory clauses in Sec.  138.230 for readability and to eliminate 
subparagraph titles; and an editorial amendment to Sec.  138.240(b)(2) 
to more clearly cross-reference Sec.  138.240(b)(1).

[[Page 72348]]

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive Orders related to rulemaking. Below we summarize our analyses 
based on these statutes or Executive Orders.

A. Regulatory Planning and Review

    Executive Orders 13563 and 12866 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 rule has not been designated a ``significant 
regulatory action,'' under section 3(f) of Executive Order 12866. 
Accordingly, the rule has not been reviewed by the Office of Management 
and Budget. A final Regulatory Assessment is available in the docket, 
and a summary follows.
1. Regulatory Costs
    We have analyzed the potential costs of this rulemaking, and expect 
it to:
    Regulatory Cost 1: Increase the cost of liability; and
    Regulatory Cost 2: Increase the cost of establishing and 
maintaining evidence of financial responsibility.
a. Discussion of Regulatory Cost 1
    This rule could increase the dollar amount of OPA 90 removal costs 
and damages the responsible party of a vessel (other than a public 
vessel), deepwater port, or onshore facility must pay in the event of 
an OPA 90 incident. This regulatory cost, however, would only be 
incurred by a responsible party if an incident resulted in OPA 90 
removal costs and damages that exceeded the applicable vessel, 
deepwater port, or onshore facility Previous Limit of Liability. In any 
such case, assuming as we do in this analysis that the responsible 
party is entitled to a limit of liability (i.e., that none of the 
exceptions in 33 U.S.C. 2704(c) apply), the difference between the 
Previous Limit of Liability amount and the New Limit of Liability 
amount is the maximum increased cost to the responsible party. The 
responsible party would have no legal obligation to incur incident 
costs above this value.
i. Affected Population--Vessels
    This rule could affect the responsible parties of any vessel (other 
than a public vessel),\21\ involved in an OPA 90 incident.\22\ The 
impact would, however, only occur if the incident resulted in OPA 90 
removal costs and damages in excess of the vessel's Previous Limit of 
Liability.
---------------------------------------------------------------------------

    \21\ According to Coast Guard's MISLE database, there are over 
200,000 vessels of various types in the population of vessels using 
U.S. waters that are not public vessels. Examples of vessel types 
include, but are not limited to: fish processing vessel, freight 
barge, freight ship, industrial vessel, mobile offshore drilling 
unit, offshore supply vessel, oil recovery vessel, passenger vessel, 
commercial fishing vessel, passenger barge, research vessel, school 
ship, tank barge, tank ship, and towing vessel.
    \22\ See the OPA 90 definition of ``incident'' in footnote 4, 
above.
---------------------------------------------------------------------------

    Coast Guard data as of May 2014 indicate that--since OPA 90 was 
enacted in August of 1990--67 vessel incidents (i.e., an average of 
approximately three vessel incidents per year) resulted in OPA 90 
removal costs and damages in excess of the applicable Previous Limits 
of Liability.\23\ For the purpose of this analysis, we have therefore 
assumed that three OPA 90 vessel incidents with costs exceeding the 
Previous Limits of Liability would occur each year throughout the 10-
year analysis period (2016-2025).
---------------------------------------------------------------------------

    \23\ See United States Coast Guard Report to Congress, ``Oil 
Pollution Act Liability Limits in 2014'', Department of Homeland 
Security, October 2, 2014, which is available in the docket at 
http://www.regulations.gov, Docket No. USCG-2013-1006, RIN 1625-
AC14.
---------------------------------------------------------------------------

ii. Affected Population--Deepwater Ports
    This rule could affect the responsible parties of any deepwater 
port (including its component pipelines) involved in an OPA 90 
incident. The impact would, however, only occur if the incident 
resulted in OPA 90 removal costs and damages in excess of the deepwater 
port's Previous Limit of Liability.
    Currently there are only two licensed deepwater ports in 
operation--LOOP and Northeast Gateway. Northeast Gateway is a liquefied 
natural gas (LNG) port and, as currently designed and operated, uses 
less than 100 gallons of oil. Therefore, it is highly unlikely that 
Northeast Gateway would ever be the source of an OPA 90 incident with 
removal costs and damages in excess of the Previous Limit of Liability. 
We therefore do not include Northeast Gateway in this analysis.\24\
---------------------------------------------------------------------------

    \24\ Two other similarly-designed LNG deepwater ports, Gulf 
Gateway Energy Bridge and Port Dolphin, were mentioned in the 
regulatory analysis for the CPI-1 Rule. But, on June 28, 2013, the 
Maritime Administrator (MARAD) cleared decommissioning of the Gulf 
Gateway Energy Bridge, approving termination of its license; and, on 
August 28, 2015, Port Dolphin Energy LLC Deepwater Port surrendered 
its license. In addition, MARAD licensed the Neptune LNG, LLC, 
deepwater port on March 23, 2007. But, on July 22, 2013, MARAD 
approved a request by Suez Energy North America, Inc., to suspend 
that deepwater port's operations for five years and to amend its 
license. Neptune, moreover, has substantially the same design as 
Northeast Gateway and, therefore, also is not likely to ever have an 
oil pollution incident with removal costs and damages in excess of 
the Previous Limit of Liability. These LNG deepwater ports, 
therefore, also are not included in this analysis. MARAD has 
received applications for two other LNG deepwater ports, and we 
expect others will be proposed over the next ten years. If those 
ports are designed to use substantially the same technology as 
Northeast Gateway, they also would not be likely to ever have oil 
pollution incidents with removal costs and damages in excess of the 
Previous Limit of Liability.
---------------------------------------------------------------------------

    To date, LOOP (the only oil deepwater port in operation) has not 
had an OPA 90 incident that resulted in removal costs and damages in 
excess of LOOP's Previous Limit of Liability of $87,606,000. However, 
the potential for such a spill exists. Therefore, for the purposes of 
this analysis, we show the cost of one OPA 90 incident occurring at 
LOOP over the 10-year analysis period (2016-2025), with OPA 90 removal 
costs and damages in excess of the Previous Limit of Liability for 
LOOP.
iii. Affected Population--Onshore Facilities
    This rule could affect the responsible parties for any onshore 
facility (including onshore pipelines) involved in an OPA 90 incident. 
The impact would, however, only occur if the incident resulted in OPA 
90 removal costs and damages in excess of the onshore facility Previous 
Limit of Liability.
    Because of the large number and diversity of onshore facilities, it 
is not possible to predict which specific types or sizes of onshore 
facilities might be affected by this rule. Coast Guard data, however, 
indicate that from the enactment of OPA 90 in August, 1990, through 
May, 2015, only one onshore facility incident--the 2010 Enbridge 
Pipeline spill in Michigan--has likely resulted in OPA 90 removal costs 
and damages exceeding the onshore facility Previous Limit of Liability 
of $350,000,000.\25\
---------------------------------------------------------------------------

    \25\ As of June 2015, Enbridge Energy Partners reported costs of 
more than $1.2 billion resulting from the pipeline spill. http://www.mlive.com/news/kalamazoo/index.ssf/2015/06/enbridge_to_pay_additional_4_m.html.
---------------------------------------------------------------------------

    The Enbridge Pipeline incident indicates that the Previous Limit of 
Liability for an onshore facility, although high, can still be exceeded 
by a low likelihood, but high consequence oil spill. Therefore, for the 
purposes of this analysis, we assume one onshore facility incident 
would occur over the 10-year analysis time period (2016-

[[Page 72349]]

2025) with OPA 90 removal costs and damages in excess of the onshore 
facility Previous Limit of Liability.
iv. Cost Summary Regulatory Cost 1
(a) Vessels
    We estimate the greatest cost to a vessel responsible party 
entitled to a limit of liability under OPA 90, for purposes of this 
analysis, by assuming that the average annual cost from the historical 
incidents analyzed would remain constant throughout the analysis period 
(2016-2025). The average annual increased cost of liability was 
estimated first by calculating the difference between the Previous 
Limit of Liability and the New Limit of Liability for each of the 67 
historical vessel incidents with removal costs and damages in excess of 
the applicable OPA 90 limit of liability. These values were then 
totaled \26\ and divided by the number of years of data to estimate the 
average annual increased cost.
---------------------------------------------------------------------------

    \26\ See Figure 3 in the Regulatory Assessment.

$60,376,000 / 24 years = $2,515,700 per year (non-discounted dollars)
(b) Deepwater Ports
    We estimate the greatest cost to a deepwater port responsible party 
entitled to a limit of liability under OPA 90, for purposes of this 
analysis, by assuming that the cost of the incident would be equal to 
the New Limit of Liability. As mentioned above, LOOP has never had an 
incident with OPA 90 removal costs and damages in excess of its 
Previous Limit of Liability. Therefore, given the lack of any deepwater 
port historical data, we have assumed that a LOOP incident with costs 
above its Previous Limit of Liability of $87,606,000 would be analogous 
to a vessel incident with costs in excess of $87,606,000 with respect 
to the duration of responsible party payments.
    Specifically, relying on historical duration of payment data for 
vessel incidents, we assume that the LOOP responsible parties would 
make OPA 90 removal cost and damage payments for the one hypothetical 
incident over the course of 10 years after the incident date.\27\ In 
addition, for the purposes of this analysis, we assume that the 
payments would be spread out in equal annual amounts over the 10-year 
analysis period (2016-2025).\28\ Applying these assumptions, the 
average annual cost resulting from the one hypothetical LOOP incident 
would be $876,000 (non-discounted dollars).
---------------------------------------------------------------------------

    \27\ The per-incident duration of payments was determined by 
comparing the incident date and the completion date for each vessel 
incident occurring since enactment of OPA 90 with incident removal 
costs and damages (in 2014 dollars) above LOOP's ``Previous Limit of 
Liability'' of $87,606,000. There were six incidents fitting this 
criteria. Three are ongoing incidents, and three are completed. The 
average duration of payments for the three completed incidents was 
approximately 10 years.

    \28\ Based on Coast Guard subject matter expert experience, we 
have assumed that the payments would be spread out equally over the 
10-year analysis period. This realistically models the long duration 
of OPA 90 removal actions (particularly in the case of an incident 
resulting in OPA 90 removal costs and damages exceeding the limit of 
liability), the time lag in billings and payments and, if 
applicable, associated claim submissions, claim payments and 
litigation.

$96,366,600-$87,606,000 = $8,760,600
$8,760,600 / 10 years = $876,000 per year (non-discounted dollars)
(c) Onshore Facilities
    We estimate the greatest cost to an onshore facility responsible 
party entitled to a limit of liability under OPA 90, for purposes of 
this analysis, by assuming that the cost of the incident would be equal 
to the New Limit of Liability. Based on NPFC's experience with onshore 
facility incidents, we assume that an onshore facility responsible 
party would be making OPA 90 removal cost and damage payments for the 
one estimated incident over the course of 10 years after the incident 
date.\29\ We further assume that the payments would be spread out in 
equal annual amounts over the 10-year analysis period (2016-2025).\30\ 
Applying these assumptions, the average annual cost resulting from the 
one estimated onshore facility OPA 90 incident over 10 years is 
estimated to be $28,385,000 (non-discounted dollars).
---------------------------------------------------------------------------

    \29\ The per-incident duration of payments was determined by 
comparing the incident date and the completion date of each onshore 
facility incident occurring since enactment of OPA 90 with incident 
removal costs and damages (in 2014 dollars) greater than or equal to 
$5 million. There were 21 incidents fitting these criteria: 9 are 
ongoing incidents and 12 are completed. The average duration for the 
12 completed incidents was approximately 10 years.

    \30\ See footnote 28, above.

$633,850,000-$350,000,000 = $283,850,000
$283,850,000 / 10 years = $28,385,000 per year (non-discounted 
dollars).
v. Present Value of Regulatory Cost 1
    The 10-year present value of Regulatory Cost 1, at a 3 percent 
discount rate, is estimated to be $271.1 million. The 10-year present 
value of Regulatory Cost 1, at a 7 percent discount rate, is estimated 
to be $223.2 million. The annualized discounted cost of Regulatory Cost 
1, at a 3 percent discount rate, is estimated to be $31.8 million. The 
annualized discounted cost of Regulatory Cost 1, at a 7 percent 
discount rate is estimated to be $31.8 million.
b. Discussion of Regulatory Cost 2
    OPA 90 requires that the responsible parties for certain types and 
sizes of vessels and for deepwater ports establish and maintain 
evidence of financial responsibility to ensure that they have the 
ability to pay for OPA 90 removal costs and damages, up to the 
applicable limits of liability, in the event of an OPA 90 incident.\31\ 
Therefore, because the regulatory changes contemplated by this rule 
would increase those limits of liability, vessel and deepwater port 
responsible parties could incur additional costs establishing and 
maintaining evidence of financial responsibility as a result of this 
rulemaking.
---------------------------------------------------------------------------

    \31\ See 33 U.S.C. 2716(a) and (c)(2). OPA 90 also imposes 
financial responsibility requirements on offshore facilities. Those 
requirements are, however, regulated by the BOEM. (See 30 CFR part 
553.) OPA 90 does not impose evidence of financial responsibility 
requirements on onshore facilities.
---------------------------------------------------------------------------

    As discussed above and further below, there will be no Regulatory 
Cost 2 impacts on deepwater ports because LOOP is the only deepwater 
port in operation required to provide evidence of financial 
responsibility, and LOOP is not expected to have any increased evidence 
of financial responsibility costs as a result of this rule. Therefore, 
only vessel responsible parties are expected to see Regulatory Cost 2 
impacts.
i. Affected Population--Vessels
    Vessel responsible parties who are required to establish and 
maintain evidence of financial responsibility, may do so using any of 
the following methods: Insurance, Self-Insurance, Financial Guaranty, 
Surety Bond, or any other method approved by the Director, NPFC.\32\ As 
of April 1, 2015, the NPFC's Certificate of Financial Responsibility 
(COFR) database contained 19,750 vessels using Insurance, 4,199 vessels 
using Self-Insurance, 1,368 vessels using Financial Guaranties, and 2 
vessels using Surety Bonds. This rule could affect the cost to vessel 
responsible parties of establishing and maintaining evidence of 
financial responsibility using any of these

[[Page 72350]]

methods.\33\ The OPA 90 evidence of financial responsibility applicable 
amounts required under 33 CFR 138.80(f) are equal to the OPA 90 limits 
of liability in 33 CFR 138.230(a) and automatically update when the 
limits of liability are increased for inflation. Because of this 
relationship, the amount of financial responsibility required is also 
based on the type of vessel and, in the case of tank vessels, on their 
hull type.
---------------------------------------------------------------------------

    \32\ See 33 CFR 138.80(b). The term ``Insurance'' is capitalized 
here to refer to the insurance used to comply with the requirement 
under OPA 90 (33 U.S.C. 2716) for responsible parties to establish 
and maintain evidence of financial responsibility. This use of the 
term ``Insurance'' is distinct from other types of insurance a 
responsible party might have (e.g., vessel hull insurance, marine 
pollution insurance, etc.).
    \33\ There currently are no vessel responsible parties using 
other methods of demonstrating financial responsibility approved by 
the Director, NPFC, and, based on historical experience, NPFC does 
not expect any responsible parties will use any other method during 
the analysis period (2016-2025)
---------------------------------------------------------------------------

ii. Affected Population--Deepwater Ports
    As discussed above in respect to Cost 1, currently there are two 
licensed deepwater ports in operation--LOOP and Northeast Gateway. The 
Coast Guard, however, has not yet proposed regulations implementing OPA 
90 financial responsibility requirements for deepwater ports. 
Therefore, although LOOP is providing evidence of financial 
responsibility under a procedure that was grandfathered by OPA 90, 33 
U.S.C. 2716(h), there are no OPA 90 evidence of financial 
responsibility regulatory requirements that currently apply to 
deepwater ports generally, including Northeast Gateway. We have, 
therefore, analyzed Cost 2 impacts only in respect to LOOP.
iii. Affected Population--Onshore Facilities
    None. There is no requirement in OPA 90 for onshore facility 
responsible parties to establish and maintain evidence of financial 
responsibility.
iv. Cost Summary Regulatory Cost 2
(a) Vessels
    Increases to Vessel Insurance Premiums. The calculation of 
Insurance premium rates are dependent on many constantly changing 
factors, including: market forces, interest rates and investment 
opportunities for the premium income, the terms and conditions of the 
policy, and underwriting criteria such as vessel age, loss history, 
construction, classification details, and management history. As 
calculated above, the change in the limits of liability for vessels is 
10 percent (rounded to one decimal place as required by the rule). At 
the NPRM stage of this rulemaking, data was requested from 9 of a 
possible 14 Insurance companies. Four responded with their current 
premium rates and their best estimates of the increase in premium rates 
resulting from the proposed regulatory change. These four Insurance 
companies represented approximately 93 percent of vessels that use the 
Insurance method of financial responsibility. The data provided 
estimated that a 6 percent increase in premiums would occur for an 
increase in the limits of liability in the range of 5 percent to 10 
percent. Therefore, consistent with the NPRM's Regulatory Analysis, it 
is assumed that a 10 percent increase in the limits of liability would 
cause on average a 6 percent increase in Insurance premiums charged 
across all vessel types.\34\
---------------------------------------------------------------------------

    \34\ After we published the NPRM, several Insurance companies 
provided updated data indicating that, due to changing market 
conditions, an increase in limits of liability for vessels of 15% or 
less should not cause them to raise their premiums. The actual 
impact of Regulatory Cost 2 could therefore be less than the impact 
we are estimating here. This is because we rely in this analysis on 
the data used for the NPRM regulatory analysis.
---------------------------------------------------------------------------

    We estimated costs by multiplying the number of vessels by vessel 
category for each year of the analysis (2016-2025) by the Expected 
Average Increase in Premium for that particular vessel type. The annual 
cost associated with increased Insurance premiums is estimated to be 
$6.5 million (non-discounted dollars).
    Migration of responsible parties currently using the Self-Insurance 
and Financial Guaranty Methods of Financial Responsibility to the 
Insurance market. Based on the financial documentation received from 
responsible parties using the Self-Insurance or Financial Guaranty 
methods, the Coast Guard estimates that the responsible parties for 2 
percent of the vessels that have COFRs based on those methods might 
need to migrate to the Insurance method of financial responsibility.
    The cost estimates for responsible parties migrating to the 
Insurance method of financial responsibility were calculated by first 
multiplying the number of vessels using Self-Insurance or Financial 
Guaranty by vessel category for each year of the analysis period (2016-
2025) by the presumed percent of impacted vessels (2 percent) and then 
multiplying the product by the estimated Expected Average Annual 
Premium for that particular vessel type.
    The annual cost associated with vessel responsible parties 
migrating to Insurance is estimated to be $532,100 (non-discounted 
dollars).
    Increased Cost to Responsible Parties using the Surety Bond Method. 
Currently only one responsible party uses the Surety Bond method to 
establish evidence of financial responsible for two tank vessels. For 
that responsible party, additional Surety Bond coverage will be 
required to establish or maintain evidence of financial responsibility 
up to the New Limits of Liability. The responsible party would also 
have the option of changing the method of financial guaranty to the 
Insurance method, or (if the responsible party meets the financial 
requirements to do so) to the Self-Insurance or Financial Guaranty 
method.
    We do not have data on the fees charged by Surety Bond providers. 
But, if the cost of obtaining Surety Bond coverage were higher than the 
cost of Insurance, we would expect the one responsible party currently 
relying on the Surety Bond method to use the Insurance method instead. 
Therefore, we assume that the cost to the responsible party of using 
the surety method does not exceed the Insurance premium associated with 
the Insurance method. In the case of the one responsible party that is 
using the Surety Bond method for two tank vessels under 3,000 gross 
tons, this would be cost of $3,700 per vessel per year (i.e., the cost 
of Insurance per vessel) or a total annual cost of $7,400.
(b) Deepwater Ports
    The 10 percent increase in the LOOP limit of liability resulting 
from this rulemaking is not expected to increase the cost to the LOOP 
responsible parties associated with establishing and maintaining LOOP's 
evidence of financial responsibility. This is because the LOOP 
responsible parties are already providing evidence of financial 
responsibility to the Coast Guard at a level that exceeds both LOOP's 
Previous Limit of Liability and its New Limit of Liability of 
$96,366,600. The Coast Guard has historically accepted the following 
documentation as evidence of financial responsibility for LOOP:
    [ssquf] An insurance policy issued by Oil Insurance Limited (OIL) 
of Bermuda with coverage up to $150 million per OPA 90 incident and a 
$225 million annual aggregate,
    [ssquf] Documentation that LOOP operates with a net worth of at 
least $50 million, and
    [ssquf] Documentation that the total value of the OIL policy 
aggregate plus LOOP's working capital does not fall below $100 million.
    The Coast Guard, therefore, does not expect this action to change 
the terms of the OIL policy, to result in an increased premium for the 
OIL policy, or to require LOOP to have higher minimum

[[Page 72351]]

net worth or working capital requirements.
(c) Onshore Facilities
    None. There is no requirement in OPA 90 for onshore facility 
responsible parties to establish and maintain evidence of financial 
responsibility.
v. Present Value of Regulatory cost 2
    The 10-year present value, at a 3 percent discount rate, is 
estimated to be $60.0 million. The 10-year present value, at a 7 
percent discount rate, is estimated to be $49.3 million. The annualized 
discounted cost, at a 3 percent discount rate, is estimated to be $7.0 
million. The annualized discounted cost, at a 7 percent discount rate, 
is estimated to be $7.0 million.
c. Present Value of Total Cost
    The 10-year present value, at a 3 percent discount rate, is 
estimated to be $331.0 million. The 10-year present value, at a 7 
percent discount rate, is estimated to be $272.5 million. The 
annualized discounted cost, at a 3 percent discount rate is estimated 
to be $38.8 million. The annualized discounted cost, at a 7 percent 
discount rate is estimated to be $38.8 million.
2. Regulatory Benefits
    In our Regulatory Analysis, we have analyzed the regulatory 
benefits of this final rule qualitatively.
    a. Regulatory Benefit 1: Ensure that the OPA 90 limits of liability 
keep pace with inflation.
    OPA 90 (33 U.S.C. 2704(d)(4)) mandates that limits of liability be 
updated periodically to reflect significant increases in the CPI to 
account for inflation. The intent of this requirement is to ensure that 
the real values of the limits of liability do not decline over time. 
Absent CPI adjustments, a responsible party ultimately gains an 
advantage that is not contemplated by OPA 90 because the responsible 
party pays a reduced percentage of the total incident costs the 
responsible party would be required to pay with inflation incorporated 
into the determination of the applicable limit of liability. This final 
rule requires responsible parties to internalize inflation, thereby 
benefitting the public.
    b. Regulatory Benefit 2: Ensure that the responsible party is held 
accountable.
    By increasing the limits of liability to account for inflation, 
this final rule ensures that the appropriate amount of removal costs 
and damages are borne by the responsible party and that liability risk 
is not shifted away from the responsible party to the Fund. This helps 
preserve the ''polluter pays'' principle as intended by Congress and 
preserves the Fund for its other authorized uses. Failing to adjust the 
limits of liability for inflation, by comparison, shifts those costs to 
the public and the Fund.
    c. Regulatory Benefit 3: Reduce and deter substandard shipping and 
oil handling practices.
    Increasing the limits of liability serves to reduce the number of 
substandard ships in U.S. waters and ports because Insurers, Surety 
Bond providers and Financial Guarantors are less likely to provide 
coverage for substandard vessels at the new levels of OPA 90 liability. 
Maintaining the limits of liability also helps preserve the deterrent 
effect of the OPA 90 liability provisions for Self Insurers.
    With respect to oil handling practices, the higher the responsible 
parties' limits of liability are, the greater the incentive for them to 
operate in the safest and most risk-averse manner possible. Conversely, 
the lower the limits of liability, the lower the incentive is for 
responsible parties to spend money on capital improvements and 
operation and maintenance systems that will protect against oil spills.
    d. Regulatory Benefit 4: Provide statutory consistency, regulatory 
certainty and administrative efficiency using the streamlined approach.
    Under the simplified regulatory procedure established by this final 
rule, the Director, NPFC, will publish the inflation-adjusted limits of 
liability in the Federal Register as final rule amendments to 33 CFR 
138.230. The Director will also use this simplified regulatory 
procedure to update 33 CFR 138.230 to reflect statutory changes to the 
OPA 90 limits of liability. This will ensure that the limits of 
liability set forth in 33 CFR 138, Subpart B, remain consistent with 
the statutory limits of liability if they are amended. This simplified 
regulatory procedure will provide regulatory certainty by ensuring 
regular, timely inflation adjustments to the limits of liability as 
required by statute. The approach is also an appropriate and helpful 
efficiency measure given the mandatory and routine nature of the CPI 
adjustments. The public comments on the NPRM supported this simplified 
rulemaking procedure, and no commenter opposed it.
    e. Regulatory Benefit 5: Provide regulatory clarity to responsible 
parties for edible oil and response tank vessels.
    As discussed above, 33 U.S.C. 2704(c)(4) excludes edible oil tank 
vessels (i.e., tank vessels on which the only oil carried as cargo is 
an animal fat or vegetable oil) and oil spill response vessels from the 
OPA 90 tank vessel limits of liability in 33 U.S.C. 2704(a)(1). The 
effect of this exclusion is that edible oil tank vessels and oil spill 
response vessels are classified, as a matter of law, to the ``any other 
vessel'' limit of liability category in 33 U.S.C. 2704(a)(2) of OPA 90. 
In addition, edible oil tank vessels and oil spill response vessels are 
subject to the lower OPA 90 evidence of financial responsibility 
requirements applicable to the ``any other vessel'' category.
    The special treatment accorded by OPA 90 to edible oil tank vessels 
and oil spill response vessels was not reflected in the prior 
regulatory text of 33 CFR part 138. The Coast Guard's clarification to 
the regulatory text by this final rule will, therefore, promote 
consistency with OPA 90 and be helpful to industry and the public by 
reducing regulatory uncertainty.

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. A 
Final Regulatory Flexibility Analysis discussing the impact of this 
rule on small entities is available in the docket, and a summary 
follows.
    We have analyzed the potential impacts of this final rule on small 
entities, and expect it to: \35\
---------------------------------------------------------------------------

    \35\ We expect the simplified regulatory procedure and the 
clarification of edible oil cargo tank vessels and tank vessels 
designated as oil spill response vessels to provide a marginal 
benefit to all responsible parties, including small entities.
---------------------------------------------------------------------------

    Regulatory Cost 1. Increase the cost of liability, and
    Regulatory Cost 2. Increase the cost of establishing and 
maintaining evidence of financial responsibility.
1. Regulatory Cost 1: Increase the Cost of Liability
    As explained above in Part V.A of this preamble and in the 
Regulatory Analysis for this rule, Regulatory Cost 1 will only occur if 
there is an OPA 90 incident that has OPA 90 removal costs and damages 
in excess of the existing limits of liability.
a. Affected Population--Vessels
    The rule could affect the responsible parties of any vessel (other 
than a public

[[Page 72352]]

vessel) from which oil is discharged, or which poses the substantial 
threat of a discharge of oil, into or upon the navigable waters or 
adjoining shorelines or the exclusive economic zone of the United 
States. This can include vessels owned, operated or demise chartered by 
small entities.
    According to Coast Guard's MISLE database, there are over 200,000 
vessels of various types in the vessel population that are not public 
vessels. Examples of vessel types include, but are not limited to: fish 
processing vessel, freight barge, freight ship, industrial vessel, 
mobile offshore drilling unit, offshore supply vessel, oil recovery 
vessel, passenger vessel, commercial fishing vessel, passenger barge, 
research vessel, school ship, tank barge, tank ship, and towing vessel.
    Coast Guard data indicate that--from the date of enactment of OPA 
90 through May 1, 2014--there were 67 OPA 90 vessel incidents (i.e., an 
average of approximately three OPA 90 vessel incidents per year) that 
resulted in OPA 90 removal costs and damages in excess of the Previous 
Limits of Liability. For the purpose of this analysis, we have 
therefore assumed that three OPA 90 vessel incidents would continue to 
occur each year throughout the 10-year analysis period (2016-2025). In 
addition, although we do not have any way to predict if any of the 
estimated three incidents per year would involve a small entity, we 
have assumed that the three vessels involved are owned, operated or 
demise chartered by small entities.
b. Cost Summary--Vessels
    As calculated in the Regulatory Analysis, the average cost of a 
vessel incident that exceeds its Previous Limit of Liability is 
approximately $838,600 but could range from $85,800 to $11,368,500. We 
note that the majority of the incidents, 60 percent, would only have 
incurred an additional $85,800 in OPA 90 removal costs and damages. 
However, in the event that a small entity had a vessel incident which 
resulted in OPA 90 removal costs and damages above the Previous Limit 
of Liability in that amount, it would likely have a significant 
economic impact.
c. Affected Population--Deepwater Ports
    As discussed above in Part V.A of this preamble and in the 
Regulatory Analysis, the only deepwater port affected by the final rule 
is LOOP. LOOP, however, does not meet the Small Business Administration 
(SBA) criteria to be categorized as a small entity.\36\
---------------------------------------------------------------------------

    \36\ LOOP is a limited liability corporation (NAICS Code: 
48691001) owned by three major oil companies: Marathon Oil Company, 
Murphy Oil Corporation, and Shell Oil Company. None of these 
companies are small entities.
---------------------------------------------------------------------------

d. Cost Summary--Deepwater Ports
    Because there are no small entity deepwater ports, there would be 
no Regulatory Cost 1 small entity impacts to Deepwater Ports.
e. Affected Population--Onshore Facilities
    As discussed above in Part V.A of this preamble and in the 
Regulatory Analysis, the final rule could affect the responsible 
parties for any onshore facility.\37\ Since the enactment of OPA 90, 
however, the 2010 Enbridge Pipeline spill in Michigan may well be the 
only onshore facility incident resulting in OPA 90 removal costs and 
damages exceeding the previous $350 million onshore facility limit of 
liability and that onshore facility is not a small entity. 
Nevertheless, in the Regulatory Analysis for the rule, we assume that 
there will be one onshore facility OPA 90 incident occurring over the 
10-year analysis period with OPA 90 removal costs and damages exceeding 
the existing limit of liability.
---------------------------------------------------------------------------

    \37\ See the OPA 90 definitions of ``facility'' and ``onshore 
facility'' in footnotes 3 and 6, above.
---------------------------------------------------------------------------

    The onshore facility population encompasses dozens of NAICS codes 
representing diverse industries.\38\ It, therefore, would not be 
practical to predict which specific type or size of onshore facility 
might be involved in the one hypothetical incident assumed to occur 
over the 10-year analysis period, or whether it would involve a small 
entity.
---------------------------------------------------------------------------

    \38\ Examples of onshore facilities include, but are not limited 
to: onshore pipelines; rail; motor carriers; petroleum bulk stations 
and terminals; petroleum refineries; government installations; oil 
production facilities; electrical utility plants; electrical 
transmission lines; mobile facilities; marinas, marine fuel stations 
and related facilities; farms; residential and commercial fuel tank 
owners; fuel oil distribution facilities; and gasoline stations.
---------------------------------------------------------------------------

f. Cost Summary--Onshore Facilities
    As previously stated above, there has never been a small entity 
onshore facility incident with OPA 90 removal costs and damage that 
exceeded the Previous Limit of Liability of $350 million. However, in 
the event that a small entity onshore facility were to have an incident 
with OPA 90 removal costs and damages equal to the New Limit of 
Liability, that onshore facility would be responsible for an average 
annual additional cost of $28,385,000. This would likely have a 
significant economic impact on the small entity.
2. Regulatory Cost 2: Increase the Cost of Establishing and Maintaining 
Financial Responsibility
a. Affected Population--Vessels
    Regulatory Cost 2 will only apply to vessel responsible parties 
required to establish and maintain OPA 90 evidence of financial 
responsibility under 33 U.S.C. 2716 and 33 CFR part 138, subpart A. As 
of July 3, 2013, there were 1,744 unique entities in the Coast Guard's 
COFR database that could be affected by the rulemaking. Because of the 
large number of entities, we determined the statistically significant 
sample size necessary to represent the population. The appropriate 
statistical sample size, at a 95 percent confidence level and a 5 
percent confidence interval, for the population is 315 entities. This 
means we are 95 percent certain that the characteristics of the sample 
reflect the characteristics of the entire population within a margin of 
error of + or -5 percent.
    Using a random number generator, we then randomly selected the 315 
entities from the population for analysis. Of the sample, 309 were 
businesses, 0 were not-for-profit organizations and 6 were governmental 
jurisdictions. For each business entity, we next determined the number 
of employees, annual revenue, and NAICS Code to the extent possible 
using public and proprietary business databases. The SBA's publication 
``U.S. Small Business Administration Table of Small Business Size 
Standards Matched to North American Industry Classification System 
codes effective January 22, 2014'' \39\ was then used to determine 
whether an entity is a small entity. For governmental jurisdictions, we 
determined whether they had populations of less than 50,000 as per the 
criteria in the RFA.
---------------------------------------------------------------------------

    \39\ http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
---------------------------------------------------------------------------

    Of the sampled population, 220 would be considered small entities 
using SBA's criteria, 72 would not be small entities, and no data was 
found for the remaining 23 entities.\40\ If we assume that entities 
where no revenue or employee data was found are small entities, then 
small entities make up 77 percent of the sample.\41\ We can then 
extrapolate the entire population of entities from the sample using the 
following formula, where ``X'' is the

[[Page 72353]]

number of small entities within the total entities in the population.
---------------------------------------------------------------------------

    \40\ The 6 governmental jurisdictions were a subset of the 23 
entities where no data was found.
    \41\ The data show that small entities are often responsible 
parties for multiple vessels.

(X small entities in the total population /1,744 total entities in the 
population) = (243 small entities in the sample / 315 total entities in 
---------------------------------------------------------------------------
the sample).

    Solving for X, X equals 1,345 small entities within the total 
population of 1,744 vessel responsible parties.
b. Cost Summary--Vessels
    As discussed above in Part V.A. and in the Regulatory Analysis, the 
rule could increase the cost to vessel responsible parties associated 
with establishing and maintaining evidence of financial responsibility 
in three ways:
    [ssquf] Responsible parties using the Insurance method of 
establishing and maintaining evidence of financial responsibility could 
incur higher Insurance premiums.
    [ssquf] Some responsible parties currently using the Self-Insurance 
or Financial Guaranty methods of establishing and maintaining evidence 
of financial responsibility might need to migrate to the Insurance 
method for their vessels. This would only be the case if the Self-
Insuring responsible parties or Financial Guarantors' financial 
condition (working capital and net worth) no longer qualified them to 
establish and maintain evidence of financial responsibility.
    [ssquf] The one responsible party using the Surety Bond method will 
need to ensure that the amount of the Surety Bonds are adequate to 
cover OPA 90 removal costs and damages up to the New Limits of 
Liability. Alternatively, the responsible party could opt to switch to 
one of the other methods of establishing and maintaining evidence of 
financial responsibility.
i. Increases to Vessel Insurance Premiums
    Based on the data in the Regulatory Analysis above, we have 
estimated the average annual per-vessel increase in Insurance premiums 
to be $300.

$6,450,800 / 19,724 vessels = $327 per vessel
Rounded to nearest 100 = $300 per vessel

    The estimated increased cost of establishing evidence of financial 
responsibility for each small entity is calculated by multiplying the 
number of vessels using the Insurance method by the average increase in 
insurance premiums. This calculation was conducted for each small 
entity. The value was then divided by the annual revenue for the small 
entity and multiplied by 100 to determine the percent impact of the 
final rule on the small entities' annual revenue.
ii. Migration of Responsible Parties Currently Using the Self-Insurance 
and Financial Responsibility Methods of Financial Responsibility to the 
Insurance Market
    Based on review of financial data of entities using the Self-
Insurance or Financial Guaranty method for establishing and maintaining 
evidence of financial responsibility, Coast Guard subject matter 
experts estimate that responsible parties for 2 percent of vessels 
using those two methods would not have the requisite working capital 
and net worth necessary to qualify for these methods as a result of the 
rule. In those cases, we assume they will use the Insurance method to 
establish and maintain evidence of financial responsibility. Based on 
the data in Part V.A., above, and in the Regulatory Analysis, the 
estimated average annual cost per vessel of migrating from the Self-
insurance/Financial Guaranty methods to the Insurance method is $5,100.

$564,700 / 111 vessels = $5,087 per vessel
Rounded to nearest 100 = $5,100 per vessel

    The increased cost of establishing and maintaining evidence of 
financial responsibility for each small entity is calculated by:

Multiplying the number of vessels using the Self-Insurance/Financial 
Guaranty methods by 2 percent and then multiplying by the Average 
Annual Insurance Premium ($5,100)

    For example, the cost for a small entity responsible party with 100 
vessels that would not have the requisite working capital and net worth 
necessary to use the Self-Insurance or Financial Guaranty method for 
all of its vessels would be calculated as follows:

(100 vessels using Self-Insurance or Financial Guaranty method x 2 
percent of vessels expected to migrate from Self-Insurance or Financial 
Guaranty method to the Insurance method x $5,100/year) = $10,200/year

    This calculation was conducted for each small entity. The value was 
then divided by the annual revenue for the small entity and multiplied 
by 100 to determine the percent impact of the rule on the small 
entities' annual revenue.
iii. Increased Cost of Using the Surety Bond Method of Financial 
Responsibility
    As previously noted, there is one responsible party using the 
Surety Bond method of establishing and maintaining financial 
responsibility for two vessels. This responsible party is not a small 
entity. In addition, based on Coast Guard subject matter expertise, we 
do not expect any other responsible party to use the Surety Bond method 
during the analysis period. Because there are no small entities 
involved, there would be no Regulatory Cost 2 small entity impacts for 
these two vessels.
c. Affected Population--Deepwater Ports
    As discussed above, the only deepwater port potentially affected by 
the rule is LOOP. LOOP, however, does not meet SBA's criteria to be 
categorized as a small entity.
d. Cost Summary--Deepwater Ports
    Because there are no small entity deepwater ports, there would be 
no Regulatory Cost 2 small entity impacts to Deepwater Ports.
e. Affected Population--Onshore Facilities
    As stated above in Part V.A. and in the Regulatory Analysis, 
onshore facilities are not required to establish and maintain evidence 
of financial responsibility under 33 U.S.C. 2716.
f. Cost Summary--Onshore Facilities
    Because onshore facilities are not required to establish and 
maintain evidence of financial responsibility, there are no Regulatory 
Cost 2 small entity impacts to onshore facilities resulting from this 
rulemaking.
    The figure below shows the economic impact to small entities of 
Regulatory Cost 2.

          Economic Impact to Small Entities--Regulatory Cost 2
------------------------------------------------------------------------
   Percent of annual      Extrapolated number of     Percent of small
        revenue               small entities             entities
------------------------------------------------------------------------
           1% to 2%                       17                     1.3%
               < 1%                    1,328                    98.7%
------------------------------------------------------------------------


[[Page 72354]]

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we offered to assist small 
entities in understanding this rule so that they could better evaluate 
its effects on them and participate in the rulemaking. 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 E.O. 13132 
(``Federalism'') if it has a substantial direct effect on States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. We have analyzed this final rule under that Order and 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132. This 
final rule makes necessary adjustments to the OPA 90 limits of 
liability to reflect significant increases in the CPI, establishes a 
framework for such future CPI increases, and clarifies the OPA 90 
limits of liability for certain vessels. Nothing in this final rule 
affects the preservation of State authorities under 33 U.S.C. 2718, 
including the authority of any State to impose additional liability or 
financial responsibility requirements with respect to discharges of oil 
within such State. Therefore, it has no implications for federalism.
    The Coast Guard recognizes the key role that State and local 
governments may have in making regulatory determinations. Additionally, 
for rules with federalism implications and preemptive effect, E.O. 
13132 specifically directs agencies to consult with State and local 
governments during the rulemaking process. The NPRM, therefore, invited 
anyone who believed this rule has implications for federalism under 
E.O. 13132 to contact us. We received no such public comment.

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 E.O. 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 E.O. 12988, (``Civil Justice Reform''), to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this rule under E.O. 13045 (``Protection of 
Children from Environmental Health Risks and Safety Risks''). This rule 
is not an economically significant rule and would not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have tribal implications under E.O. 13175 
(``Consultation and Coordination with Indian Tribal Governments''), 
because it would 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 have analyzed this rule under E.O. 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 E.O. 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, codified as a 
note to 15 U.S.C. 272, directs agencies to use voluntary consensus 
standards in their regulatory activities unless the agency provides 
Congress, through OMB, 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 rule under Department of Homeland Security 
Management Directive 023-01, Commandant Instruction M16475.lD, and 67 
FR 48243 (July 23, 2002) which guide the Coast Guard in complying with 
the National Environmental Policy Act of 1969, 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. A final environmental analysis checklist 
supporting this determination is available in the docket where 
indicated under the ``Public Participation and Request for Comments'' 
section of this preamble. This rule increases the OPA 90 limits of 
liability for vessels, deepwater ports, and onshore facilities to 
reflect significant increases in the CPI using the methodology 
established in the CPI-1 Rule. This action is one of a category of 
actions which do not individually or cumulatively have a significant 
effect on the human environment and is categorically excluded from 
further environmental documentation under paragraph 6(b) of 67 FR 48243 
(July 23, 2002).

List of Subjects in 33 CFR Part 138

    Financial responsibility, Guarantors, Hazardous materials 
transportation, Insurance, Limits of liability, Oil pollution, 
Reporting and recordkeeping requirements, Surety bonds, Water pollution 
control.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 138 as follows:

[[Page 72355]]

PART 138--FINANCIAL RESPONSIBILITY FOR WATER POLLUTION (VESSELS) 
AND OPA 90 LIMITS OF LIABILITY (VESSELS, DEEPWATER PORTS AND 
ONSHORE FACILITIES)

0
1. The authority citation for part 138 is revised to read as follows:

    Authority: 33 U.S.C. 2704, 2716, 2716a; 42 U.S.C. 9608, 9609; 6 
U.S.C. 552; E.O. 12580, Sec. 7(b), 3 CFR, 1987 Comp., p. 193; E.O. 
12777, Secs. 4 and 5, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 
13286, Sec. 89, 3 CFR, 2004 Comp., p. 166, and by E.O. 13638, Sec. 
1, 3 CFR, 2014 Comp., p.227; Department of Homeland Security 
Delegation Nos. 0170.1 and 5110, Revision 01. Section 138.30 also 
issued under the authority of 46 U.S.C. 2103 and 14302.


0
2. Revise the heading to part 138 to read as set forth above.
0
3. Revise Subpart B to read as follows:
Subpart B--OPA 90 Limits of Liability (Vessels, Deepwater Ports and 
Onshore Facilities)
Sec.
138.200 Scope.
138.210 Applicability.
138.220 Definitions.
138.230 Limits of liability.
138.240 Procedure for updating limits of liability to reflect 
significant increases in the Consumer Price Index (Annual CPI-U) and 
statutory changes.

Subpart B--OPA 90 Limits of Liability (Vessels, Deepwater Ports and 
Onshore Facilities)


Sec.  138.200  Scope.

    This subpart sets forth the limits of liability under Title I of 
the Oil Pollution Act of 1990, as amended (33 U.S.C. 2701, et seq.) 
(OPA 90), for vessels, deepwater ports, and onshore facilities, as 
adjusted under OPA 90 (33 U.S.C. 2704(d)). This subpart also sets forth 
the method and procedure the Coast Guard uses to periodically adjust 
the OPA 90 limits of liability by regulation under OPA 90 (33 U.S.C. 
2704(d)(4)), to reflect significant increases in the Consumer Price 
Index (CPI), and to update the limits of liability when they are 
amended by statute. In addition, this subpart cross-references the U.S. 
Department of the Interior regulation setting forth the OPA 90 limit of 
liability applicable to offshore facilities, as adjusted under OPA 90 
(33 U.S.C. 2704(d)(4)) to reflect significant increases in the CPI.


Sec.  138.210  Applicability.

    This subpart applies to you if you are a responsible party for a 
vessel, a deepwater port, or an onshore facility (including, but not 
limited to, motor vehicles, rolling stock and onshore pipelines), 
unless your liability is unlimited under OPA 90 (33 U.S.C. 2704(c)).


Sec.  138.220  Definitions.

    (a) As used in this subpart, the following terms have the meanings 
set forth in OPA 90 (33 U.S.C. 2701): deepwater port, facility, gross 
ton, liability, oil, offshore facility, onshore facility, responsible 
party, tank vessel, and vessel.
    (b) As used in this subpart--
    Annual CPI-U means the annual ``Consumer Price Index--All Urban 
Consumers, Not Seasonally Adjusted, U.S. City Average, All items, 1982-
84=100'', published by the U.S. Department of Labor, Bureau of Labor 
Statistics.
    Current period means the year in which the Annual CPI-U was most 
recently published by the U.S. Department of Labor, Bureau of Labor 
Statistics.
    Director, NPFC means the person in charge of the U.S. Coast Guard, 
National Pollution Funds Center (NPFC), or that person's authorized 
representative.
    Edible oil tank vessel means a tank vessel referred to in OPA 90 
(33 U.S.C. 2704(c)(4)(A)).
    Oil spill response vessel means a tank vessel referred to in OPA 90 
(33 U.S.C. 2704(c)(4)(B)).
    Previous period means the year in which the previous limit of 
liability was established, or last adjusted by statute or regulation, 
whichever is later.
    Single-hull means the hull of a tank vessel that is constructed or 
adapted to carry, or that carries, oil in bulk as cargo or cargo 
residue, that is not a double hull as defined in 33 CFR part 157. 
Single-hull includes the hull of any such tank vessel that is fitted 
with double sides only or a double bottom only.


Sec.  138.230  Limits of liability.

    (a) Vessels. (1) The OPA 90 limits of liability for tank vessels, 
other than edible oil tank vessels and oil spill response vessels, 
are--
    (i) For a single-hull tank vessel greater than 3,000 gross tons, 
the greater of $3,500 per gross ton or $25,845,600;
    (ii) For a tank vessel greater than 3,000 gross tons, other than a 
single-hull tank vessel, the greater of $2,200 per gross ton or 
$18,796,800;
    (iii) For a single-hull tank vessel less than or equal to 3,000 
gross tons, the greater of $3,500 per gross ton or $7,048,800; and
    (iv) For a tank vessel less than or equal to 3,000 gross tons, 
other than a single-hull tank vessel, the greater of $2,200 per gross 
ton or $4,699,200.
    (2) The OPA 90 limits of liability for any vessel other than a 
vessel listed in paragraph (a)(1) of this section, including for any 
edible oil tank vessel and any oil spill response vessel, are the 
greater of $1,100 per gross ton or $939,800.
    (b) Deepwater ports. (1) The OPA 90 limit of liability for any 
deepwater port, including for any component pipelines, other than a 
deepwater port listed in paragraph (b)(2) of this section, is 
$633,850,000;
    (2) The OPA 90 limits of liability for deepwater ports with limits 
of liability established by regulation under OPA 90 (33 U.S.C. 
2704(d)(2)), including for any component pipelines, are--
    (i) For the Louisiana Offshore Oil Port (LOOP), $96,366,600; and
    (ii) [Reserved]
    (c) Onshore facilities. The OPA 90 limit of liability for onshore 
facilities, including, but not limited to, motor vehicles, rolling 
stock and onshore pipelines, is $633,850,000.
    (d) Offshore facilities. The OPA 90 limit of liability for offshore 
facilities other than deepwater ports, including for any offshore 
pipelines, is set forth at 30 CFR 553.702.


Sec.  138.240  Procedure for updating limits of liability to reflect 
significant increases in the Consumer Price Index (Annual CPI-U) and 
statutory changes.

    (a) Update and publication. The Director, NPFC, will periodically 
adjust the limits of liability set forth in Sec.  138.230(a) through 
(c) to reflect significant increases in the Annual CPI-U, according to 
the procedure for calculating limit of liability inflation adjustments 
set forth in paragraphs (b)-(d) of this section, and will publish the 
inflation-adjusted limits of liability and any statutory amendments to 
those limits of liability in the Federal Register as amendments to 
Sec.  138.230. Updates to the limits of liability under this paragraph 
are effective on the 90th day after publication in the Federal Register 
of the amendments to Sec.  138.230, unless otherwise specified by 
statute (in the event of a statutory amendment to the limits of 
liability) or in the Federal Register notice amending Sec.  138.230.
    (b) Formula for calculating a cumulative percent change in the 
Annual CPI-U. (1) The Director, NPFC, calculates the cumulative percent 
change in the Annual CPI-U from the year the limit of liability was 
established, or last adjusted by statute or regulation, whichever is 
later (i.e., the previous period), to the most recently published 
Annual CPI-U (i.e., the current period), using the following escalation 
formula:


[[Page 72356]]


Percent change in the Annual CPI-U = [(Annual CPI-U for Current Period-
Annual CPI-U for Previous Period) / Annual CPI-U for Previous Period] x 
100.
    (2) The cumulative percent change value calculated using the 
formula in paragraph (b)(1) of this section is rounded to one decimal 
place.
    (c) Significance threshold. Not later than every three years from 
the year the limits of liability were last adjusted for inflation, the 
Director, NPFC, will evaluate whether the cumulative percent change in 
the Annual CPI-U since that date has reached a significance threshold 
of 3 percent or greater. For any three-year period in which the 
cumulative percent change in the Annual CPI-U is less than 3 percent, 
the Director, NPFC, will publish a notice of no inflation adjustment to 
the limits of liability in the Federal Register. If this occurs, the 
Director, NPFC, will recalculate the cumulative percent change in the 
Annual CPI-U since the year in which the limits of liability were last 
adjusted for inflation each year thereafter until the cumulative 
percent change equals or exceeds the threshold amount of 3 percent. 
Once the 3-percent threshold is reached, the Director, NPFC, will 
increase the limits of liability, by regulation using the procedure set 
forth in paragraph (a) of this section, for all source categories 
(including any new limit of liability established by statute or 
regulation since the last time the limits of liability were adjusted 
for inflation) by an amount equal to the cumulative percent change in 
the Annual CPI-U from the year each limit was established, or last 
adjusted by statute or regulation, whichever is later. Nothing in this 
paragraph shall prevent the Director, NPFC, in the Director's sole 
discretion, from adjusting the limits of liability for inflation by 
regulation issued more frequently than every three years.
    (d) Formula for calculating inflation adjustments. The Director, 
NPFC, calculates adjustments to the limits of liability in Sec.  
138.230 for inflation using the following formula:

New limit of liability = Previous limit of liability + (Previous limit 
of liability x percent change in the Annual CPI-U calculated under 
paragraph (b) of this section), then rounded to the closest $100.

    Dated: November 3, 2015.
William R. Grawe,
Director, U.S. Coast Guard, National Pollution Funds Center.
[FR Doc. 2015-29519 Filed 11-18-15; 8:45 am]
 BILLING CODE 9110-04-P