[Federal Register: May 5, 2008 (Volume 73, Number 87)]
[Rules and Regulations]               
[Page 24497-24500]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my08-2]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 155 and 156

[USCG-2001-9046]
RIN 1625-AB12

 
Tank Level or Pressure Monitoring Devices on Single-Hull Tank 
Ships and Single-Hull Tank Barges Carrying Oil or Oil Residue as Cargo

AGENCY: Coast Guard, DHS.

[[Page 24498]]


ACTION: Final rule; suspension of regulations.

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SUMMARY: The Coast Guard is suspending for three additional years, 
until 2011, the regulations in Title 33 Code of Federal Regulations 
parts 155 and 156 for tank level or pressure monitoring devices on 
single-hull tank ships and single-hull tank barges carrying oil or oil 
residue as cargo. This action is required as there are currently no 
devices on the market that can meet the requirements of the regulation.

DATES: This rule is effective June 4, 2008.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
contact Ms. Dolores Pyne-Mercier, Systems Engineering Division (CG-
5213), Coast Guard, telephone 202-372-1381 or e-mail Dolores.J.Pyne-
Mercier@uscg.mil. If you have questions on viewing or submitting 
material to the docket, call Ms. Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-493-0402.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Table of Abbreviations
II. Public Participation and Comment
III. Background and Purpose
IV. Discussion of Comments
V. Regulatory Evaluation
    A. Administrative Procedure Act
    B. Executive Order 12866
    C. Small Entities
    D. Assistance for Small Entities
    E. Collection of Information
    F. Federalism
    G. Unfunded Mandates Reform Act
    H. Taking of Private Property
    I. Civil Justice Reform
    J. Protection of Children
    K. Indian Tribal Governments
    L. Energy Effects
    M. Technical Standards
    N. Environment

I. Table of Abbreviations

APA Administrative Procedure Act
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NEPA National Environmental Policy Act of 1969
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
TLPM Tank Level or Pressure Monitoring
U.S. United States
U.S.C. United States Code

II. Public Participation and Comment

    The Coast Guard did not seek public comment on this final rule as 
it extends for three additional years, until 2011, a suspension 
currently in place that has already undergone public comment. We 
respond to the comments previously received in the Discussion of 
Comments section of this final rule. We do not plan to hold public 
meetings for this final rule.

III. Background and Purpose

    On July 20, 2005, the Coast Guard published a final rule and 
request for comments suspending for three years (until July 21, 2008) 
the regulations in title 33 Code of Federal Regulations (CFR) parts 155 
and 156 requiring installation of tank level or pressure monitoring 
(TLPM) devices on single-hull tank vessels. 67 FR 58515. In that final 
rule, we explained how Congress amended the language of section 4110 of 
Oil Pollution Act of 1990 (OPA 90) through the Coast Guard and Maritime 
Transportation Act of 2004, Public Law 108-293, August 9, 2004. Where 
the original text of OPA 90 mandated regulations for TLPM devices, the 
amended language allowed the Coast Guard discretion with respect to 
requiring these devices. Congress also directed the Coast Guard to 
study and report on leak detection alternatives. Thus, we suspended for 
three years the regulations for TLPM devices so that we could revisit 
those requirements after conducting a study of potential alternatives 
for detecting leaks from single-hull tank vessels into the water.
    We completed our study and submitted our report to Congress, titled 
``Report to Congress on Costs and Benefits of Alternatives to Tank 
Level or Pressure Monitoring Devices,'' in March 2006. A copy of this 
report is contained in the docket, USCG-2001-9046. We also notified the 
public of its availability through a notice published in the Federal 
Register on November 17, 2006. 71 FR 66960.
    We noted in our report that no TLPM devices meeting the performance 
criteria established in the final rule had been submitted to the Coast 
Guard for approval, and concluded that no manufacturers are likely to 
invest in development of a TLPM device because single-hull tank vessels 
are being phased out under other OPA 90 statutes and international 
agreements. All single-hull tank vessels are scheduled to be out of 
service by 2015. On the basis of these conclusions and the cost and 
benefit analyses from the original 2002 rulemaking, we decided to 
remove the regulations for TLPM devices and reported a rulemaking for 
this purpose in the Fall 2007 Semiannual Regulatory Agenda. 72 FR 
70066, December 10, 2007. The Agenda entry for that rulemaking (RIN 
1625-AB94) can be found online at http://www.reginfo.gov.
    As noted above, the current suspension of the regulations on TLPM 
devices expires July 21, 2008. 67 FR 58515, July 20, 2005. It is 
unlikely that we will publish a final rule to remove the regulations by 
that date. However, immediate action is needed to avoid burdening the 
tank vessel industry with a requirement to install a piece of shipboard 
equipment that does not currently exist and putting the Coast Guard in 
the difficult position of trying to enforce such a regulation. 
Therefore, in this final rule, we are extending the suspension for 
three additional years until 2011 to allow us time to seek public 
comment on a proposal to permanently remove the regulations on TLPM 
devices from the CFR and, if warranted, publish a final rule. We are 
taking this action because it maintains for us the flexibility to 
withdraw the suspension if technology improves, a manufacturer decides 
to pursue approval of a qualifying TLPM device, or the elements of our 
rationale to suspend the regulations become invalid. This action also 
allows us to seek public comment on a proposal to permanently remove 
the regulations for TLPM devices.

IV. Discussion of Comments

    We received two comments on our July 20, 2005 final rule to suspend 
the regulations for TLPM devices. Both commenters strongly supported 
our actions, and one of the commenters recommended the Coast Guard take 
steps to permanently remove the regulations.

V. Regulatory Evaluation

    We developed this final rule after considering numerous statutes 
and executive orders related to rulemaking. We summarize our analysis 
in the following paragraphs based on 13 of these statutes or executive 
orders.

A. Administrative Procedure Act

    The Coast Guard is issuing this final rule without prior notice and 
opportunity to comment pursuant to section 4(a) of the Administrative 
Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes the 
agency to issue a rule without notice and opportunity to comment when 
the agency for good cause finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' The 
agency finds that notice

[[Page 24499]]

and public comment to this interim final rule is contrary to the public 
interest. There is no reason to engage in public notice and comment 
processes to extend this suspension given that there are no TLPM 
devices that can satisfy the current requirements.
    Engaging in a long process of public notice and comment would also 
be an impracticable use of scarce agency resources, as there are 
currently no approved TLPM devices available and therefore no 
alternatives to extending the suspension. Letting the existing 
suspension expire while we seek public comment on permanently removing 
the TLPM device requirement would place an unattainable requirement on 
vessel owners and operators to purchase and install shipboard equipment 
that does not exist.

B. Executive Order 12866

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that Order. The 
Office of Management and Budget has not reviewed it under that Order. 
Extending this suspension would not impose any additional cost on the 
public.

C. 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 does not require a general notice of proposed rulemaking 
and, therefore, is exempt from the requirements of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
potential economic impact on small entities and determined it is 
unlikely to have any effect on small businesses because extension of 
the suspension will not impose any costs on the public.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this final rule will not have a significant economic impact on a 
substantial number of small entities.

D. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L.104-121), the Coast Guard wants to assist 
small entities in understanding this rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions, please 
consult Ms. Dolores Pyne-Mercier, Coast Guard Office of Design and 
Engineering Standards, telephone 202-372-1381. We will not retaliate 
against small entities that question or complain about this rule or any 
policy or action of the Coast Guard.

E. 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).

F. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them.
    We have analyzed this rule under that Order and have determined 
that it does not have implications for federalism.

G. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government in 
the aggregate, or by the private sector, of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

H. Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

I. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

J. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

K. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

L. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. This rule does not affect energy supply, 
distribution, or use. The Administrator of the Office of Information 
and Regulatory Affairs has designated this rule as a non-significant 
regulatory action and it does not require a Statement of Energy Effects 
under Executive Order 13211.

M. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This rule does not require the use of voluntary 
consensus standards.

N. Environment

    The Coast Guard has analyzed this rule under Commandant Instruction 
M16475.1D, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). We have 
concluded that this action is not likely to have a significant effect 
on the human environment and that there are no factors in this case 
that would limit the use of a categorical exclusion under section 2.B.2 
of the Instruction. Therefore, we believe this rule should be 
categorically excluded from further environmental documentation under

[[Page 24500]]

Figure 2-1, paragraph (34) (d) of the Instruction. This rule involves 
the equipping of vessels. An ``Environmental Analysis Check List'' and 
a ``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES.

List of Subjects

33 CFR Part 155

    Alaska, Hazardous substances, Oil pollution, Reporting and 
recordkeeping requirements.

33 CFR Part 156

    Hazardous substances, Oil pollution, Reporting and recordkeeping 
requirements, Water pollution control.

0
For the reasons discussed in the preamble, the Coast Guard is amending 
33 CFR parts 155 and 156 as follows:

PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION 
REGULATIONS FOR VESSELS

0
1. The authority citation for 33 CFR part 155 and the note following 
citation continue to read as follows:

    Authority: 33 U.S.C. 1231, 1321(j); E.O. 11735, 3 CFR, 1971-1975 
Comp., p. 793. Sections 155.100 through 155.130, 150.350 through 
155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and 
155.1065(g) are also issued under 33 U.S.C. 1903(b). Sections 
155.480, 155.490, 155.750(e), and 155.775 are also issued under 46 
U.S.C. 3703. Section 155.490 also issued under section 4110(b) of 
Pub. L. 101-380. Note: Additional requirements for vessels carrying 
oil or hazardous materials are contained in 46 CFR Parts 30 through 
40, 150, 151, and 153.


Sec.  155.200  [Amended]

0
2. In Sec.  155.200, suspend the definition for ``Sea State 5'' from 
June 4, 2008 until June 6, 2011.


Sec.  155.490  [Suspended]

0
3. Suspend Sec.  155.490 from June 4, 2008 until June 6, 2011.

PART 156--OIL AND HAZARDOUS MATERIAL TRANSFER OPERATIONS

0
4. The authority citation for 33 CFR part 156 continues to read as 
follows:

    Authority: 33 U.S.C. 1231, 1321(j); 46 U.S.C. 3703a, 3715; E.O. 
11735, 3 CFR 1971-1975 Comp., p. 793. Section 156.120(bb) and (ee) 
are also issued under 46 U.S.C. 3703.


Sec.  156.120  [Amended]

0
5. In Sec.  156.120, suspend paragraph (ee) from June 4, 2008 until 
June 6, 2011.

    Dated: March 31, 2008.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security and Stewardship.
 [FR Doc. E8-9812 Filed 5-2-08; 8:45 am]

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