[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]
 BILLING CODE 9110-04-P