[Federal Register Volume 81, Number 67 (Thursday, April 7, 2016)]
[Rules and Regulations]
[Pages 20247-20249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07977]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 155
[Docket No. USCG-2011-0430, Formerly CGD-90-068]
RIN 1625-AA02, Formerly RIN 2115-AD66
Discharge Removal Equipment for Vessels Carrying Oil
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is finalizing an interim rule that requires
vessels carrying oil in bulk as cargo to carry discharge removal
equipment, install spill prevention coamings, and install emergency
towing arrangements. The rule also requires these vessels to have
prearranged capability to calculate damage stability in the event of a
casualty. By reducing the risk of oil spills, improving vessel oil
spill response capabilities, and minimizing the impact of oil spills on
the environment, this rulemaking promotes the Coast Guard's maritime
safety and stewardship missions.
DATES: This final rule is effective May 9, 2016.
ADDRESSES: Comments and materials received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2011-0430 and are available using the Federal
eRulemaking Portal. You can find this docket on the Internet by going
to http://www.regulations.gov, inserting USCG-2011-0430 in the
``Keyword'' box, and then clicking ``Search.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. David Du Pont, Office of Standards Evaluation and
Development (CG-REG), U.S. Coast Guard; telephone 202-372-1497, or
email [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Discussion of Comments and Changes
V. Discussion of the Rule
VI. Incorporation by Reference
VII. 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
DHS Department of Homeland Security
DRE Discharge removal equipment
E.O. Executive Order
FR Federal Register
NOI Notice of intent
OPA 90 Oil Pollution Act of 1990 (Pub. L. 101-380, 104 Stat 484,
August 18, 1990)
Sec. Section
U.S.C. United States Code
VRP Vessel response plan
II. Regulatory History
This final rule was preceded by several rulemaking documents. On
August 30, 1991, the Coast Guard published an advance notice of
proposed rulemaking to solicit information to assist the Coast Guard in
development of proposed rules that implement the Oil Pollution Act of
1990 \1\ (OPA 90) mandate for discharge removal equipment (DRE).\2\ On
September 29, 1992, the Coast Guard published a notice of proposed
rulemaking that proposed to establish DRE regulations.\3\ On December
22, 1993, the Coast Guard published an interim final rule (IFR) that
established DRE requirements for on-deck spills, and also required
vessels to install spill prevention coamings, to install emergency
towing arrangements, and to have a prearranged capability to calculate
damage stability in the event of a casualty.\4\ On March 27, 2012, the
Coast Guard published a notice of intent (NOI) to finalize with request
for comments.\5\ Several other rulemaking-related documents were
published. For a complete list, see the Basis and Purpose section of
the 2012 NOI.
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\1\ Public Law 101-380, 104 Stat. 484 (August 18, 1990).
\2\ 56 FR 43534 (Aug. 30, 1991).
\3\ 57 FR 44912 (Sept. 29, 1992).
\4\ 58 FR 67988 (Dec. 22, 1993).
\5\ 77 FR 18151 (Mar. 27, 2012).
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III. Basis and Purpose
The legal basis for this rule is OPA 90 section 4202(a)(6), which
amended section 311(j) of the Federal Water Pollution Control Act (33
U.S.C. 1321(j)) by, among other things, adding a new paragraph (6) to
require vessels operating on the navigable waters of the United States
and carrying oil or a hazardous substance in bulk as cargo to carry
appropriate DRE on board.
The purpose of this rule is to finalize the interim rule, which was
intended to reduce the risk of oil spills, improve vessel oil spill
response capabilities, and minimize the impact of oil spills on the
environment.
IV. Discussion of Comments and Changes
The Coast Guard received one submission containing two individual
comments in response to the NOI. No public meeting was requested and
none was held.
One comment supported finalizing the DRE rulemaking, and we agree
with that view.
One comment recommended that the Coast Guard require vessel
response plans (VRP) and include DRE procedures and training in that
requirement. While outside the scope of this rulemaking, we note that
Coast Guard regulations already include VRP requirements that
incorporate DRE procedures and training. In a separate rulemaking
finalized in 1996, the Coast Guard issued VRP requirements for tank
vessels (see 61 FR 1081 (January 12, 1996)). The VRP regulations
include a requirement to develop procedures for the crew to deploy DRE
(see 33 CFR 155.1035(c)(3)) and for the exercise of the entire response
plan every 3 years (see 33 CFR 155.1060(a)(5)).
This final rule makes no changes to the interim rule.
V. Discussion of the Rule
The Coast Guard is finalizing the interim rule we issued in 1993.
The interim rule amended 33 CFR 155.140, incorporating third party
references applicable to all of 33 CFR part 155, and added 33 CFR
155.200, 155.205, 155.210, 155.215, 155.220, 155.225, 155.230, 155.235,
155.240, and 155.245. It also amended 33 CFR 155.310. Sections 155.200
through 155.310 appear in part 155, subpart B, Vessel Equipment. The
interim rule's regulations have been in place more than 20 years, and
industry has long since been in compliance. Each of the sections added
or amended by the interim rule has since been amended at least once by
other rulemakings, in part to respond to public comments on the interim
rule, but except as discussed below, each retains the general scope it
had as a result of the interim rule. This final rule makes no changes
to these sections, as subsequently amended.
Section 155.200 provides definitions applicable to subpart B. The
section was subsequently amended in 2002 and 2008.
Section 155.205 requires oil tankers and offshore oil barges, with
an overall length of 400 feet or more, to carry and have available for
use equipment and supplies for containing and removing
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on-deck oil cargo spills. The section was subsequently amended in 1998.
Section 155.210 requires oil tankers and offshore oil barges, with
an overall length of less than 400 feet, to carry and have available
for use equipment and supplies for containing and removing on-deck oil
cargo spills. The section was subsequently amended in 1998.
Section 155.215 contains requirements for discharge containment and
removal equipment and supplies on inland oil barges. The section was
subsequently amended in 1998.
Section 155.220 contains requirements for discharge containment and
removal equipment and supplies on vessels carrying oil as a secondary
cargo. The section was subsequently amended in 1998.
Section 155.225 requires oil tankers and offshore oil barges to be
properly equipped for the internal transfer of cargo to tanks or other
spaces within the vessel's cargo block. The section was subsequently
amended in 1998.
Section 155.230 contains emergency towing capability requirements
for offshore oil barges. Section 155.230, as subsequently amended in
2000, 2009, 2010, and 2014, now contains a range of control system
requirements for all tank barges, including emergency towing capability
requirements.
Section 155.235, as subsequently amended in 1997 and 2009, contains
emergency towing capability requirements for oil tankers of not less
than 20,000 deadweight tons.
Section 155.240 requires oil tankers and offshore oil barges to
have access to onshore, computerized equipment to calculate a damaged
vessel's stability and residual structural strength. The section was
subsequently amended in 1998.
Section 155.245 contains damage stability and residual strength
requirements for inland oil barges. The section was subsequently
amended in 1998.
The amendment to Sec. 155.310 revised coaming and oil draining
requirements to the section's oil discharge containment requirements.
The section was subsequently amended in 1998.
VI. Incorporation by Reference
The interim rule (as amended) contains material incorporated by
reference (IBR). The Director of the Federal Register previously
approved all of this IBR material in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51.
VII. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive Orders (E.O.s) related to rulemaking. Below we summarize our
analyses based on these statutes or E.O.s.
A. Regulatory Planning and Review
E.O.s 12866 (``Regulatory Planning and Review'') and 13563
(``Improving Regulation and Regulatory Review'') direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
E.O. 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
This rule is not a significant regulatory action under section 3(f)
of E.O. 12866 as supplemented by E.O. 13563, and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
E.O. 12866. The Office of Management and Budget (OMB) has not reviewed
it under E.O. 12866.
This rule finalizes the 1993 interim rule, and does not change or
add new requirements to that rule or the subsequent amendments listed
at the end of this document. Owners and operators have been in
compliance since 1993 with the requirements this rule will finalize.
The comments of the 2012 notice of intent required no change to the
final rule. Therefore, the actual net costs of the final rule are zero.
The Coast Guard has developed an updated analysis of the impacts of
the DRE requirements compared against the pre-statutory baseline
(1993). The intent of the updated analysis is to use the most up-to-
date data to present an impact analysis had industry not complied with
the 1993 IFR. A copy of the analysis is available in the docket where
indicated under ADDRESSES.
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.
This rule finalizes the 1993 interim rule, and does not change or add
new requirements. As a rule finalizing a previous interim rule,
Regulatory Flexibility Act, 5 U.S.C. 601-612 requirements do not apply.
Nonetheless, as the actual net costs of the final rule are zero, the
Coast Guard believes that this rule will not have a significant
economic impact on a substantial number of small entities.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, 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. This rule
involves regulations concerning the equipping of vessels. 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 rule under that order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in E.O. 13132. Our
analysis is explained below.
This rule is promulgated under the authority of OPA 90 Title IV,
section 4202(a)(6), as codified in 33 U.S.C. 1321(j)(6). 33 U.S.C.
1321(o) contains a savings clause which states, ``Nothing in this
section shall be construed as preempting any State or political
subdivision thereof from imposing any requirement or liability with
respect to the discharge of oil or hazardous substance into any waters
within such
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State, or with respect to any removal activities related to such
discharge.'' Although generally vessel equipping, operation, and
manning requirements are within the field foreclosed from regulation by
the States, (see the Supreme Court's decision in United States v. Locke
and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000)), the Coast
Guard believes that the savings clause in 33 U.S.C. 1321(o) is a
limited exception to that general preemption principle. As long as the
State discharge removal equipment requirement is in accordance with the
principles of Locke (e.g., is limited to the regulation and protection
of local waterways), it will not be preempted unless compliance with
both State and Federal law is impossible, or when the State law stands
as an obstacle to the accomplishment and execution of the full purposes
and objective of Congress. The Coast Guard does not intend to preempt
more stringent State discharge removal equipment requirements unless
those requirements conflict with Coast Guard requirements. At this
time, the Coast Guard has no knowledge of any conflicting State
discharge removal equipment requirements. This rule also does not
implicate those fields saved to certain State regulation under Sections
702 and 711 of the Coast Guard Authorization Act of 2010. Therefore,
this rule is consistent with the principles of federalism and
preemption requirements in E.O. 13132.
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 uses the voluntary consensus standards listed in 33 CFR
155.140.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969, 42 U.S.C. 4321-4370f, and have concluded that this
action is not likely to have a significant effect on the human
environment. This rule is categorically excluded under section 2.B.2,
and figure 2-1, paragraph (34)(d) of the Instruction and under section
6.b. of the ``Appendix to National Environmental Policy Act: Coast
Guard Procedures for Categorical Exclusions, Notice of Final Agency
Policy'' (67 FR 48243, 48245, July 23, 2002). This rule involves
regulations concerning the equipping of vessels. In addition, it
implements a Congressional mandate (section 4202(a) of OPA 90). An
environmental analysis checklist and a categorical exclusion
determination are available in the docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 155
Alaska, Hazardous substances, Incorporation by reference, Oil
pollution, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the interim rule
amending 33 CFR part 155 that was published at 58 FR 67988 on December
22, 1993, and amended at:
(a) 59 FR 3749 on January 26, 1994;
(b) 61 FR 33666 on June 28, 1996;
(c) 62 FR 51194 on September 30, 1997;
(d) 63 FR 35531 on June 30, 1998;
(e) 63 FR 71763 on December 30, 1998;
(f) 64 FR 67176 on December 1, 1999;
(g) 65 FR 31811 on May 19, 2000;
(h) 67 FR 58524 on September 17, 2002;
(i) 69 FR 18801 on April 9, 2004;
(j) 73 FR 35015 on June 19, 2008;
(k) 73 FR 79316 on December 29, 2008;
(l) 73 FR 80648 on December 31, 2008;
(m) 74 FR 45026 on August 31, 2009;
(n) 75 FR 36285 on June 25, 2010;
(o) 78 FR 13249 on February 27, 2013;
(p) 78 FR 60122 on September 30, 2013;
(q) 79 FR 38436 on July 17, 2014; and,
(r) 80 FR 5934 on February 4, 2015.
is adopted as a final rule without change.
Dated: April 1, 2016.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2016-07977 Filed 4-6-16; 8:45 am]
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