[Federal Register Volume 77, Number 59 (Tuesday, March 27, 2012)]
[Proposed Rules]
[Pages 18151-18157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7344]
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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 2115-AD66
Discharge Removal Equipment for Vessels Carrying Oil
AGENCY: Coast Guard, DHS.
ACTION: Notice of intent to finalize with request for comments.
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SUMMARY: The Coast Guard is advising the public of its intent to
finalize regulations previously published as an interim final rule on
December 22, 1993. The interim final rule was published to reduce the
risk of oil spills, improve vessel oil spill response capabilities, and
minimize the impact of oil spills on the environment, but certain
portions of the interim final rule were never published as a final
rule. Because of the lapse in time since the interim final rule's
publication, the Coast Guard is seeking comments from the public before
finalizing those portions of the interim final rule.
DATES: Comments must be received on or before May 29, 2012.
ADDRESSES: You may submit comments identified by docket number USCG-
2011-0430 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this notice,
call or email Mr. David Du Pont, Office of Standards Evaluation and
Development (CG-523), U.S. Coast Guard; telephone 202-372-1497, email
[email protected]. If you have questions on viewing or submitting
material to the docket, call Ms. Renee V. Wright, Program Manager,
Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Notice
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Public Meeting
II. Abbreviations
III. Basis and Purpose
A. Statutory and Regulatory History
B. Why is this notice of intent necessary?
IV. Summary of Regulations in the IFR
V. Subsequent Changes to the IFR Regulations
VI. Discussion of Comments
A. Comments on Specific Sections in the IFR
B. General Comments
VII. Supporting Analyses
A. Regulatory Assessment
B. Environment
VIII. Intent To Finalize; Request for Comments
[[Page 18152]]
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2011-0430), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online (via http://www.regulations.gov) or by fax, mail, or hand
delivery, but please use only one of these means. If you submit a
comment online via www.regulations.gov, it will be considered received
by the Coast Guard when you successfully transmit the comment. If you
fax, hand deliver, or mail your comment, it will be considered as
having been received by the Coast Guard when it is received at the
Docket Management Facility. We recommend that you include your name and
a mailing address, an email address, or a phone number in the body of
your document so that we can contact you if we have questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Notice'' and insert ``USCG-2011-0430'' in the ``Keyword'' box. Click
``Search'' then click on the balloon shape in the ``Actions'' column.
If you submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period and may change the final
rule based on your comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2011-0430'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
If you do not have access to the Internet, you may also visit the
Docket Management Facility in Room W12-140 on the ground floor of the
Department of Transportation West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. We have an agreement with the Department of
Transportation to use the Docket Management Facility.
C. Privacy Act
Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
D. Public Meeting
We do not now plan to hold a public meeting, but you may submit a
request for one on or before April 26, 2012 using one of the four
methods specified under the ADDRESSES section above. Please explain why
you believe a public meeting would be beneficial. If we determine that
one would aid this rulemaking, we will hold one at a time and place
announced by a later notice in the Federal Register. Such a notice will
also include contact information for requests regarding facilities or
services for individuals with disabilities or special assistance at the
public meeting.
II. Abbreviations
CFR Code of Federal Regulations
COI Certificate of Inspection
DRE Discharge removal equipment
EA Environmental Assessment
FONSI Finding of No Significant Impact
FR Federal Register
IFR Interim final rule
IMO International Maritime Organization
NAICS North American Industry Classification System
NEPA National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321-4370f)
NOI Notice of intent
OPA 90 Oil Pollution Act of 1990 (Public Law 101-380, 104 Stat. 484,
August 18, 1990)
OSRO Oil spill removal organization
OSRV Oil spill response vessel
RE Regulatory Evaluation (aka Regulatory Assessment)
Sec. Section symbol
U.S.C. United States Code
III. Basis and Purpose
A. Statutory and Regulatory History
Section 4202(a)(6) of the Oil Pollution Act of 1990 (OPA 90) (Pub.
L. 101-380; 104 Stat. 484; August 18, 1990) 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 discharge
removal equipment (DRE) on board.
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 OPA 90 mandate for
DRE.\1\ On September 29, 1992, the Coast Guard published a notice of
proposed rulemaking that proposed to establish DRE regulations.\2\ 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.\3\
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\1\ 56 FR 43534 (Aug. 30, 1991).
\2\ 57 FR 44912 (Sept. 29, 1992).
\3\ 58 FR 67988 (Dec. 22, 1993).
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In addition to the above documents, the Coast Guard has published
several DRE-related notices and technical amendments throughout the
course of this rulemaking. The complete regulatory history of the DRE
rulemaking is summarized below.
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Document type Federal Register cite Date published Comments
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Advance notice of proposed rulemaking 56 FR 43534............. 8/30/1991 Requested comments and
information to help develop
response plans for all
vessels carrying oil as
cargo and carriage and
inspection of discharge-
removal equipment.
[[Page 18153]]
Notice of intent to form a negotiated 56 FR 58202............. 11/18/1991 Consideration was given to
rulemaking committee. establishing a negotiated
rulemaking committee to
develop part of the
regulations to be issued
under OPA 90.
Notice of intent to form a negotiated 56 FR 60949............. 11/29/1991 Clarified list of groups
rulemaking committee; supplemental that would be affected by
notice and clarification. the rulemaking.
Notice of meeting of negotiated 56 FR 66611............. 12/24/1991 Announced first public
rulemaking committee on oil spill meeting of committee to be
response plans. January 8-10, 1992.
Notice of meetings of negotiated 57 FR 1890.............. 1/16/1992 A schedule of four committee
rulemaking committee on oil spill meetings was released; a
response plans and finalization of previously scheduled
committee membership. meeting was cancelled and
two additions were made to
the list of committee
participants.
Notice of additional meetings of the 57 FR 9402.............. 3/18/1992 Announced the addition of a
Oil Spill Response Plan Negotiated committee meeting on March
Committee. 26, 1992.
Notice of proposed rulemaking........ 57 FR 44912............. 9/29/1992 Proposed requirement for
vessels carrying oil in
bulk as cargo.
Proposed rule; extension of comment 57 FR 48489............. 10/26/1992 Extended comment period
period. ended November 16, 1992.
IFR.................................. 58 FR 67988............. 12/22/1993 Established requirements for
vessels carrying oil in
bulk as cargo; also
required vessels to have
pre-arranged capability to
calculate damage stability
in case of a casualty. Rule
also sought further
comments and information on
emerging technology to help
prevent, contain, or remove
oil discharges from
vessels. Comment period
ended February 22, 1994.
IFR effective on January
21, 1994.
IFR correction....................... 59 FR 3749.............. 1/26/1994 Four corrections made to IFR
(58 FR 67988).
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B. Why is this notice of intent necessary?
The Coast Guard is advising the public of our intent to finalize
regulations previously published as an IFR on December 22, 1993. The
IFR was never published as a final rule. Because of the lapse in time
since the IFR's publication, the Coast Guard is seeking comments from
the public before issuing a final rule.
IV. Summary of Regulations in the IFR
Below is a list of the sections in Title 33 of the Code of Federal
Regulations (CFR) part 155 that were amended or added by the DRE IFR.
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Section No. Title Amendment
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Sec. 155.140.............. Incorporation by Revised paragraph
reference. (a); in paragraph
(b), added an entry
for International
Maritime
Organization (IMO)
Resolution
A.535(13).
Sec. 155.200.............. Definitions......... Added new section to
subpart B.
Sec. 155.205.............. Discharge removal Added new section to
equipment for subpart B.
vessels 400 feet or
greater in length.
Sec. 155.210.............. Discharge removal Added new section to
equipment for subpart B.
vessels less than
400 feet in length.
Sec. 155.215.............. Discharge removal Added new section to
equipment for subpart B.
inland oil barges.
Sec. 155.220.............. Discharge removal Added new section to
equipment for subpart B.
vessels carrying
oil as secondary
cargo.
Sec. 155.225.............. Internal cargo Added new section to
transfer capability. subpart B.
Sec. 155.230.............. Emergency towing Added new section to
capability for oil subpart B.
barges.
Sec. 155.235.............. Emergency towing Added new section to
capability for oil subpart B.
tankers.
Sec. 155.240.............. Damage stability Added new section to
information for oil subpart B.
tankers and
offshore oil barges.
Sec. 155.245.............. Damage stability Added new section to
information for subpart B.
inland oil barges.
Sec. 155.310.............. Containment of oil Revised the section
and hazardous heading and the
material cargo introductory text
discharges. to paragraph (b);
added paragraphs
(c) and (d).
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V. Subsequent Changes to the IFR Regulations
Since the publication of the IFR, a number of separate rulemaking
projects and technical amendments have modified the sections amended or
added by the IFR. These subsequent amendments were finalized after
notice in the Federal Register and an opportunity for public comment.
Accordingly, these subsequent amendments are not the subject of this
notice of intent (NOI). The subject of this NOI is limited to those
portions of the IFR that have not yet been finalized.
A summary of the subsequent amendments follows.
[[Page 18154]]
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Source(s) of
Section No. amendment Description of change
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Sec. 155.140............ CGD 96-026, 61 FR Periodically updated
33666, June 28, CG and other
1996; CGD 95-028, 62 addresses, replaced
FR 51194, Sept. 30, emergency towing
1997; USCG-1998- arrangement
4443, 63 FR 71763, guidelines for
Dec. 30, 1998; USCG- tankers in 1997,
1999-5151, 64 FR revised format of
67176, Dec. 1, 1999; section in 2008.
USCG-2008-0179, 73
FR 35015, June 19,
2008; USCG-1998-
3417, 73 FR 80648,
Dec. 31, 2008, as
amended by USCG-2001-
8661, 74 FR 45026,
Aug. 31, 2009; USCG-
2010-0351, 75 FR
36285, June 25, 2010.
Sec. 155.200............ USCG-2001-9046, 67 FR Added definition in
58524, Sept. 17, 2002, then removed
2002; 73 FR 79316, same definition in
Dec. 29, 2008. 2008.
Sec. 155.205............ USCG-1998-3799, 64 FR In paragraph (a),
35531, June 30, 1998. removed compliance
date that had
passed.
Sec. 155.210............ USCG-1998-3799, 64 FR In paragraph (a),
3553, June 30, 1998. removed compliance
date that had
passed.
Sec. 155.215............ USCG-1998-3799, 64 FR In paragraph (a),
35531, June 30, 1998. removed compliance
date that had
passed.
Sec. 155.220............ USCG-1998-3799, 64 FR In paragraph (a),
35531, June 30, 1998. removed compliance
date that had
passed.
Sec. 155.225............ USCG-1998-3799, 64 FR In paragraph (a),
35531, June 30, 1998. removed compliance
date that had
passed.
Sec. 155.230............ USCG-1998-4443, 65 FR Replaced section in
31811, May 19, 2000, 2000, renamed to
as amended by USCG- emergency control
2001-8661, 74 FR systems for tank
45026, Aug. 31, barges.
2009; USCG-2010-
0351, 75 FR 36285,
June 25, 2010.
Sec. 155.235............ CGD 95-028, 62 FR Replaced section in
51194, Sept. 30, 1997 and again in
1997; USCG-2001- 2009. Revised into
8661, 74 FR 45026, one paragraph
Aug. 31, 2009. stating emergency
towing arrangements
must be on both ends
of oil tankers not
less than 20,000
deadweight tons
(dwt). Referenced
more recent IMO
Maritime Safety
Committee
resolution.
Sec. 155.240............ USCG-1998-3799, 63 FR In paragraph (a),
35531, June 30, 1998. removed compliance
date that had
passed; and, in
paragraph (d),
redesignated
paragraphs (i),
(ii), and (iii) as
paragraphs (1), (2)
and (3)
respectively.
Sec. 155.245............ USCG-1998-3799, 63 FR Removed compliance
35531, June 30, 1998. date that had
passed.
Sec. 155.310............ USCG-1998-3799, 63 FR Removed compliance
35531, June 30, 1998. date that had
passed.
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VI. Discussion of Comments
The Coast Guard received 38 comment letters in response to the IFR,
with about 60 individual comments. No public meeting was requested and
none was held. The comments are grouped below into comments related to
specific 33 CFR part 155 DRE sections and general comments to the IFR.
A. Comments on Specific Sections in the IFR
Sections 155.205, 155.210, 155.215, and 155.220--Carriage of Discharge
Removal Equipment for On-Deck, Oil-Cargo Spills
The Coast Guard received a number of comments on the carriage of
DRE for on-deck oil-cargo spills.
Several commenters suggested changes to the quantities of oil
specified in paragraph (a) of Sec. Sec. 155.205, 155.210, 155.215, and
155.220, stating that the equipment and supplies must be capable of
containing and removing oil (e.g., 12 barrels of oil for vessels 400
feet or greater in length). Two comments stated that the quantities
specified in the IFR were too small, one that the quantities were too
large, and one that they were reasonable.
We believe that the quantities specified strike an appropriate
balance for the categories of vessels specified, and that the
distribution of comments received supports that view.
Two comments stated that paragraphs (b)(1) and (b)(2) of Sec. Sec.
155.205, 155.210, 155.215, and 155.220 should state the specific
quantity of sorbent and hand tools required. These sections presently
require that the equipment and supplies be ``appropriate'' for the
containment and removal of the amount of oil specified.
We decided not to require carriage of specific quantities of
sorbents and hand tools because vessel owners or operators are best
able to determine the quantity necessary given variability in cargo
carriage, operational practices and environment, and other factors.
One comment stated that the IFR did not define the term
``contract.''
We disagree. The term ``contract or other approved means'' is
defined in 33 CFR 155.1020.
Three comments stated that inland oil barges engaged in transfer
operations between the barge and another vessel should not rely on the
other vessel to provide the required DRE.
We agree. The optional provision to allow inland oil barges to rely
on other means for the required DRE applies only to transfer facilities
in which the barge owner or operator has made prearrangements through a
contract or other approved means. Inland oil barges must maintain their
own DRE when involved in bunkering operations.
Several comments stated that the exclusive transportation of
certain cargoes, such as animal fats and vegetable oils or Grade D and
E products (see 46 CFR 30.10-15), have a reduced risk and should be
regulated differently.
We see the merit of this argument and will consider revisions to
these sections. We seek comments on which specific cargoes fall into
the reduced risk category and in particular how the risk is reduced.
Sections 155.230 and 155.235--Emergency Towing Capability
The Coast Guard received a number of comments on emergency towing
capability. Most of the comments related to tankers, whereas three
related to barges.
Regarding barges, Sec. 155.230 (originally titled ``Emergency
towing capability for oil barges'') was replaced by a separate
rulemaking (Emergency Control Measures for Tank Barges, 65 FR 31811,
May 19, 2000) which became effective on December 11, 2000. Because
Sec. 155.230 was completely replaced by that final rule after the
public had an opportunity to comment, we seek no further comments on
that section.
Similarly for tankers, Sec. 155.235 was replaced, on two separate
occasions, by two separate rulemakings. The first rulemaking, titled
``Harmonization With International Safety Standards'' (62 FR 51194,
September 30, 1997), became effective on October 30, 1997. The second
rulemaking, titled ``Vessel and Facility Response Plans for Oil: 2003
Removal Equipment Requirements and Alternative Technology Revisions''
(74 FR 45026, August 31, 2009), became effective on September 30, 2009.
Because Sec. 155.235 was completely replaced by two final rules after
the public had an opportunity to comment,
[[Page 18155]]
we seek no further comments on that section.
Sections 155.240 and 155.245--Damage Stability Information
The Coast Guard received a number of comments on damage stability
information.
One commenter stated that, for inland oil barges, the Coast Guard
should allow damage stability information to be maintained in
computerized form instead of paper form.
Nothing in the current regulation prohibits this. Section 155.245
requires that the plans for an inland tank barge be readily available
for use in salvage, stability, and residual strength calculations.
However, the regulation does not specify the form of the plans (e.g.,
paper or electronic). As currently written, there is nothing in the
regulation that requires--or precludes--the plans being in either form;
operators may use whichever is most convenient.
Two commenters stated that the damage stability information
requirement for oil tankers should only apply to larger oil tankers.
We disagree. The ability to perform stability and strength
calculations as quickly as possible is appropriate for all 46 CFR
Subchapter D tank vessels (ships and barges) on ocean and coastwise
routes--regardless of vessel size--to minimize the risk of subsequent
spills during the salvage response.
Section 155.240 requires owners or operators of 46 CFR Subchapter D
tank vessels to ensure that they have pre-arranged, prompt access to
computerized, shore-based damage stability and residual structural
strength calculation programs. Pre-loading vessel information into
computer programs allows for faster analytic support in casualty
situations. This is because time is of the essence in these
circumstances, especially for offshore locations where tidal levels or
sea conditions can change significantly in short order. This rationale
applies to oil tankers, regardless of vessel size.
One commenter stated that the Coast Guard went beyond the
recommendation of the regulatory negotiation committee (Committee) by
requiring that computerized damage stability information for oil
tankers be kept on shore.
The Negotiated Rulemaking Act (5 U.S.C. 561 et seq.) permits an
agency to establish a negotiated rulemaking committee to negotiate and
develop a proposed rule. Nothing in the Negotiated Rulemaking Act
requires an agency to adopt a negotiated rulemaking committee's
recommendation as a final rule.
The DRE NPRM referred to the Committee recommendation that an owner
or operator of a tanker, offshore tank barge, or coastal tank barge
have prearranged, prompt access to computerized on-board or shore-based
damage stability and residual structural strength calculation programs.
57 FR 44916.
Based on subsequent analysis, the Coast Guard determined that
computerized damage stability information should be specifically
available ashore. This is to ensure that information is available if
the information aboard the vessel is destroyed or inaccessible. The
Coast Guard included this requirement in the IFR and intends to
finalize this requirement in the final rule. Additionally, a
requirement for computerized shore-based damage stability information
is also found in the Tank Vessel Response Plans for Oil regulations
(see 33 CFR 155.1035(c)(11)(ii) and 155.1040(c)(10)(ii)).
Section 155.310--Deck Edge Coamings for On-Deck Spills
The Coast Guard received a number of comments on deck edge coamings
for on-deck spills.
One commenter stated that the term ``peripheral coamings'' in Sec.
155.310(c) may be misinterpreted and be applied to areas beyond the
cargo deck area.
We have reviewed the use of the term ``peripheral coamings'' and
believe that Sec. 155.310(c) clearly delineates the boundaries of the
required coamings.
Two commenters stated that coamings may present a safety hazard for
vessels operating for prolonged periods in freezing weather.
We agree in part. The Coast Guard recognizes the special
difficulties and hazards posed by the buildup of ice through prolonged
periods of operation in freezing weather. Depending upon the
particulars of a vessel, the owner or operator may find the need to
request an exemption from these requirements under 33 CFR 155.130.
One commenter stated that the requirement to install coamings
should apply only to vessels that carry oil and not to those that are
certificated to carry both oil and hazardous materials, but actually
carry only hazardous materials.
We disagree. If a vessel is certificated to carry oil, the vessel
must be outfitted to meet all of the requirements for the carriage of
oil.
One commenter stated that the coaming-containment capacity should
be raised. Another two commenters stated that the containment capacity
should be lowered for certain vessels.
We believe that the coaming containment capacities specified strike
an appropriate balance between the size of a vessel and the areas of
operation, and that the distribution of comments received supports that
view.
One commenter stated that alternatives to peripheral coamings
should be allowed on tank vessels carrying animal fats, vegetable oils,
or non-persistent oils, but offered no specific alternative.
Absent a specific alternative to evaluate, we disagree and believe
that peripheral coamings are an appropriate element of the pollution
prevention regime for preventing on-deck spills of any oil type from
reaching the marine environment.
B. General Comments
On-Water Containment and Removal Equipment
The IFR asked for additional information on major spill prevention
and response equipment, such as booms, skimmers, and temporary storage
devices designed to be carried on board vessels. It specifically
requested information on the appropriateness of this equipment, on the
technological and economic feasibility of requiring this equipment, and
on the compatibility of this equipment with safe vessel operation.
We received 18 responses to this request. Ten responses were in
support of the carriage of major equipment on board vessels, and eight
responses were against the concept. Of the ten responses in support,
eight were from vessel-based equipment developers. Of the eight
responses in opposition, all were vessel operators or organizations
that represented vessel operators.
Section 310 of the Coast Guard Authorization Act of 1993 (Pub. L.
103-206) required the Secretary of Transportation \4\ to review and
evaluate these technologies, and to submit a report to Congress with
recommendations on the feasibility and environmental benefits of
requiring tank vessels to carry oil spill prevention and response
equipment. The DRE IFR provided a means to obtain that information.
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\4\ Prior to February 25, 2003, the Coast Guard was part of the
Department of Transportation. Since that time, the Coast Guard has
been part of the Department of Homeland Security.
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On September 8, 1998, the Coast Guard issued a report to Congress,
titled ``Feasibility and Environmental Benefits Associated with
Requiring Oil Spill Response Equipment on Tank Vessels.'' A copy of
that report is available in the docket where indicated under the
[[Page 18156]]
``Public Participation and Request for Comments'' section of this
notice.
In that report the Coast Guard concluded that while it may be
technologically feasible to carry and deploy oil spill response
equipment aboard a tank vessel without risking the safety of the crew,
the practical limitations of the equipment in oil spill response make
it economically, environmentally, and technologically unfeasible to
require tank vessels to carry the equipment. The Coast Guard further
concluded, in consideration of the practical limitations on the
equipment's effectiveness in spill response, that vessel-based
equipment should not be required for tank vessels and, if carried,
should not be credited against their required response capabilities
given those limitations.
We continue to believe that shore-based response equipment is the
preferred method for responding to actual or potential on-water oil
spills. We do not believe that tank vessels should be required to carry
major prevention and response equipment.
Spill-Tracking Devices
We received three comments on devices for tracking the movement of
spills. Two commenters stated that the carriage of some form of spill
tracking device should be required. One commenter stated that, if a
spill tracking device were required, a national or international
standard should be adopted first so that a vessel need carry only one
type of device throughout its operating area.
Since the IFR was published, oil spill tracking requirements for
tank vessels have changed. In the rulemaking titled ``Vessel and
Facility Response Plans for Oil: 2003 Removal Equipment Requirements
and Alternative Technology Revisions'' (74 FR 45026, August 31, 2009),
owners and operators of tank vessels operating in oceans and coastal
waters must identify in their response plans, and ensure availability
through contract or other approved means, response resources necessary
to provide aerial oil tracking to support oil spill assessment and
cleanup activities (see 33 CFR 155.1050(l)).
We believe that this response plan requirement is sufficient in the
area of oil spill tracking, and therefore seek no further comments on
this topic.
Preemption
Two commenters stated that the Coast Guard lacks the authority
under OPA 90 to preempt more stringent state requirements related to
DRE.
We disagree. It is well settled that States may not regulate in
categories reserved for regulation by the Coast Guard. It is also well
settled, now, that all of the categories covered in 46 U.S.C. 3306,
3703, 7101, and 8101 (design, construction, alteration, repair,
maintenance, operation, equipping, personnel qualification, and manning
of vessels), as well as the reporting of casualties and any other
category in which Congress intended the Coast Guard to be the sole
source of a vessel's obligations, are within the field foreclosed from
regulation by the States. (See the decision of the Supreme Court in the
consolidated cases of United States v. Locke and Intertanko v. Locke,
529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000)). Here, the Coast Guard is
promulgating regulations to require discharge removal equipment for
vessels operating on the navigable waters of the U.S. and that are
carrying oil in bulk as cargo or cargo residue, which will improve
safety. Because States may not promulgate rules within this category,
preemption is not an issue.
Oil Spill Response Vessels
One commenter stated that we should clarify whether this rule
applies to a dedicated oil spill response vessel (OSRV).
We wish to clarify that this rule does not apply to a dedicated
OSRV when conducting response operations in the response area.
Inland Oil Barges on Limited Offshore Routes
One comment stated that the rule should allow barges operating
offshore under a special Certificate of Inspection (COI) endorsement
for limited offshore/coastwise routes during fair weather to be
equipped under the inland oil barge requirements in Sec. 155.215.
We agree, and note that this suggestion is similar to the
requirements for emergency control measures for tank barges added on
May 19, 2000. The current regulations provide that if a tank barge has
its COI limited to not exceed the restrictions in Sec. Sec.
155.230(a)(1) (territorial sea) or 155.230(a)(2) (Great Lakes), then it
may be equipped under the inland oil barge requirements in Sec.
155.215.
VII. Supporting Analyses
Additionally, in this NOI we seek comments in two other areas.
First, we seek comments on the Regulatory Assessment. Second, we seek
comments on the Environment section.
A. Regulatory Assessment
The IFR was accompanied by a Regulatory Evaluation (RE) (a copy is
available in the docket where indicated under the ``Public
Participation and Request for Comments'' section of this notice). Due
to the amount of time that has passed since the IFR and RE were
published, we seek current information related to the cost of
compliance with certain sections of the DRE requirements. Please note
that we are not seeking comments concerned with emergency towing
equipment cost data or other portions of the IFR that have since been
finalized through other rulemakings after the public has had an
opportunity to comment.
The table below shows the elements on which we are seeking comment,
the units in which we measure them, the relevant chapter of the IFR's
RE, and the Coast Guard's estimate of the cost.
DRE Cost Data Table
----------------------------------------------------------------------------------------------------------------
USCG estimate
Element Units IFR RE basis of cost per
unit
----------------------------------------------------------------------------------------------------------------
Coaming............................... $/Linear feet............ Chapter 4.................... $20-25
55 gal Drum containing oil products/ 55 gallon drum........... Chapter 4.................... 200
sorbents.
Flex bin 1 yard box (4 55 gallon drum) 55 gallon drum........... Chapter 4.................... 460
Bulk double bagged oil/sorbents $260/ ton...................... Chapter 4.................... 260
ton.
Containment Boom...................... Linear feet.............. Chapter 5.................... 15-35
Storage............................... Cubic feet............... Chapter 5.................... 5
20-foot Work Boat..................... $/boat................... Chapter 5.................... 40,000
Work Boat Home Support Equipment...... $/boat................... Chapter 5.................... 35,000
Training.............................. $/vessel/year............ Chapter 5.................... 500
Maintenance and Repair................ ......................... Chapter 5.................... ..............
Tanker's Storage Shed................. $/year................... Chapter 5.................... 300-1,600
[[Page 18157]]
Barge's Storage Shed.................. $/year................... Chapter 5.................... 200-1,300
Boat.................................. $/year................... Chapter 5.................... 5,000
Source Control Equipment.............. ......................... Chapter 6.................... ..............
Submersible Pumping Kit............... $/kit.................... Chapter 6.................... 141,000
----------------------------------------------------------------------------------------------------------------
Additionally, we seek comment on the following items:
(1) Please describe your implementation of DRE and how you have
invested in the following:
(a) Operational deck spill capability;
(b) Warehouse equipment capability; and
(c) Source control equipment.
(2) Have you needed to use the equipment referenced in question (1)
in any operational situation? If so--
(a) Please describe the situation;
(b) What issues did you encounter in that implementation?; and
(c) What recommendations do you have in improving that
implementation?
(3) Please describe the maintenance requirements associated with
the equipment referenced in question (1).
(4) What issues have you encountered in implementing the IFR?
(5) How long did it take you to implement the IFR?
(6) Are you a small business, according to the North American
Industry Classification System (NAICS) codes?
(7) What issues did you encounter with regard to similar rules
regarding the implementation of the other OPA 90 requirements and the
implementation of the DRE IFR?
(a) Were there issues with complementary implementation?
(b) Were there issues with cross-purpose implementation?
(8) How do you work together with the oil spill removal
organizations (OSROs), in planning for, or responding to, an incident?
(9) What is the vessel type (i.e. tanker, offshore barge, etc.) and
size (i.e. length of vessel) for the data above?
To facilitate public input, we have placed in the docket a
questionnaire labeled ``Discharge Removal Equipment (DRE) Cost Data
Template.'' We request that individuals or organizations with knowledge
of the cost of compliance use the template to provide input via the
docket. However, you are not required to use this format when
submitting comments.
B. 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 (NEPA) (42 U.S.C. 4321-4370f), and have made a
preliminary determination 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 preliminary environmental analysis
checklist supporting this determination is available in the docket
where indicated under the ``Public Participation and Request for
Comments'' section of this notice. This rule involves regulations
concerning the equipping of vessels. In addition, it implements a
Congressional mandate (section 4202(a) of OPA 90). We seek any comments
or information that may lead to the discovery of a significant
environmental impact from this rule.
At the IFR stage, an Environmental Assessment (EA) and a Finding of
No Significant Impact (FONSI) were placed in the docket for this
rulemaking. No comments were received on the EA or the FONSI.
VIII. Intent To Finalize; Request for Comments
The Coast Guard invites further comments regarding the finalization
of the IFR provisions that have not yet been finalized. Specifically,
we seek comments on three topics--
DRE requirements (except for Sec. Sec. 155.140, 155.230
and 155.235 as these sections were superseded by subsequent
rulemakings);
Regulatory Assessment; and
Environmental Impact.
Written comments and responses will be added to the docket for this
rulemaking (USCG-2011-0430). Upon close of the comment period, the
Coast Guard will consider all comments received before finalizing the
DRE rulemaking.
Dated: February 22, 2012.
J. G. Lantz,
Director of Commercial, Regulations and Standards.
[FR Doc. 2012-7344 Filed 3-26-12; 8:45 am]
BILLING CODE 9110-04-P