[Federal Register Volume 80, Number 99 (Friday, May 22, 2015)]
[Proposed Rules]
[Pages 29582-29589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11760]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 155
[Docket No. USCG-2011-0576]
RIN 1625-AB75
Higher Volume Port Area--State of Washington
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes redefining the boundaries of the
existing higher volume port area in the Strait of Juan de Fuca and
Puget Sound, in Washington. This rulemaking is required by statute, and
is related to the Coast Guard's maritime safety and stewardship
missions.
DATES: Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before August 20,
2015 or reach the Docket Management Facility by that date.
ADDRESSES: You may submit comments identified by docket number USCG-
2011-0576 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 proposed
rule, call or email LCDR John G. Peterson, CG-CVC-1, Coast Guard;
telephone 202-372-1226, email [email protected]. If you have
questions on viewing or submitting material to the docket, call Ms.
Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-
9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Public Participation and Request for Comments
II. Abbreviations
III. Background
IV. Discussion of Proposed Rule
V. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Public Participation and Request for Comments
We encourage you to submit comments (or related material) on this
rulemaking. We will consider all submissions and may adjust our final
action based on your comments. Comments should be marked with docket
number USCG-2011-0576 and should provide a reason for each suggestion
or recommendation. You should provide personal contact information so
that we can contact you if we have questions regarding your comments;
but please note that all comments will be posted to the online docket
without change and that any personal information you include can be
searchable online (see the Federal Register Privacy Act notice
regarding our public dockets, 73 FR 3316, Jan. 17, 2008).
Mailed or hand-delivered comments should be in an unbound 8\1/2\ x
11 inch format suitable for reproduction. The Docket Management
Facility will acknowledge receipt of mailed comments if you enclose a
stamped, self-addressed postcard or envelope with your submission.
Documents mentioned in this notice of proposed rulemaking and all
public comments, are in our online docket at http://www.regulations.gov
and can be viewed by following the Web site's instructions. You can
also view the docket at the Docket Management Facility (see the mailing
address under ADDRESSES) between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
We are not planning to hold a public meeting but will consider
doing so if public comments indicate a meeting would be helpful. We
would issue a separate Federal Register notice to announce the date,
time, and location of such a meeting.
II. Abbreviations
BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
E.O. Executive Order
FR Federal Register
[[Page 29583]]
GSA General Services Administration
HVPA Higher volume port area
MISLE Marine Information for Safety and Law Enforcement
NAICS North American Industry Classification System
OMB Office of Management and Budget
OSRO Oil spill removal organization
Pub. L. Public Law
SBA Small Business Administration
Sec. Section symbol
U.S.C. United States Code
VRP Vessel response plan
III. Background
The legal basis of this proposed rule is 33 U.S.C. 1231 and
1321(j), which require the Secretary of the department in which the
Coast Guard is operating to issue regulations necessary for
implementing the Ports and Waterways Safety Act, and to require the
President to issue regulations requiring response plans and other
measures to protect against oil and hazardous substance spills. The
President's authority under 33 U.S.C. 1321(j) is delegated to the
Secretary by Executive Order (E.O.) 12777, and the Secretary's
authority is delegated to the Coast Guard by DHS Delegation No.
0170.1(II)(70), (73), and (80).
The purpose of this proposed rule is to implement section 710 of
the Coast Guard Authorization Act of 2010 (``the Act''),\1\ which
requires the Coast Guard to initiate by October 15, 2011, a rulemaking
to modify the 33 CFR 155.1020 definition of the State of Washington's
higher volume port area (the Washington HVPA) by replacing a reference
to Port Angeles, WA, with a reference to Cape Flattery, WA, and by
reviewing any modifications to vessel response plans (VRPs), made in
response to the definitional change, not later than October 15, 2015.
The Coast Guard initiated this project by the October 15, 2011
deadline.
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\1\ Pub. L. 111-281, 124 Stat. 2905.
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Oil or hazardous material pollution prevention regulations for a
U.S. vessel, and for a foreign vessel operating in U.S. waters, appear
in Coast Guard regulations at 33 CFR part 155. Many of those
regulations require a vessel response plan (VRP) describing measures
that the vessel owner or operator has taken or will take to mitigate or
respond to an oil spill from the vessel. The VRP must demonstrate the
vessel's ability, following a spill, to secure response resources
within given time periods. These measures typically include the
services of nearby response resources under a contract between the
vessel's owner or operator and an oil spill removal organization (OSRO)
that owns the response resources. The regulations provide for three
different timeframes within which a combination of required response
resources must arrive on the scene, which are described as Tiers 1, 2,
and 3.
In 33 CFR part 155, subparts D (petroleum oil as cargo), F (animal
fat or vegetable oil as cargo), G (non-petroleum oil as cargo), and J
(petroleum oil as fuel or secondary cargo) all share the same
definition of ``Higher volume port areas.'' Required response times are
significantly reduced in HVPAs. For example, Tier 1 response times for
an oil tanker within an HVPA are half that required of the same vessel
operating in open ocean. As defined in 33 CFR 155.1020, the Strait of
Juan de Fuca and Puget Sound, Washington constitute one of 14 HVPAs
designated around the country.
Since 1996, 33 CFR 155.1020 has defined the seaward boundary of the
Washington HVPA as an arc 50 nautical miles seaward of the entrance to
Port Angeles, Washington. Port Angeles is approximately 62 miles inland
from the Pacific Ocean entrance to the Strait of Juan de Fuca, at Cape
Flattery, WA, and therefore, the Washington HVPA does not currently
include any Pacific Ocean waters. Section 710 of the Act requires the
Coast Guard to initiate a rulemaking to relocate the HVPA's arc so that
it extends seaward from Cape Flattery, not Port Angeles. This would add
50 nautical miles of Pacific Ocean water and an additional 12 nautical
miles in the western portion of the Strait of Juan de Fuca. Waters
affected by sec. 710 and by this rulemaking are shown on National
Oceanic and Atmospheric Administration charts.\2\
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\2\ Waters affected by sec. 710 and this rulemaking are shown on
National Oceanic and Atmospheric Administration charts 18460 (Cape
Flattery, WA) and 18465 (Port Angeles, WA).
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Section 710 requires us to initiate a rulemaking not later than
October 15, 2011, to modify the definition of the Washington HVPA to
relocate the arc. Section 710 also requires us to approve VRPs that
require modification as a result of the rulemaking not later than
October 15, 2015. We have determined that, with respect to existing
VRPs, no modifications or new Coast Guard VRP approvals will be needed.
To maximize the affected public's ability to plan for the change in
the Washington HVPA's boundaries, we published a 2011 Federal Register
notice of our intent to comply with sec. 710.\3\ This advised the
public that regulatory implementation of sec. 710 was forthcoming. The
notice did not request public comments and no public comments were
received.
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\3\ 76 FR 76299 (Dec. 7, 2011).
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IV. Discussion of Proposed Rule
The current definition of the Washington HVPA's boundaries \4\
reads: ``Higher volume port area means the following areas, including
any water area within 50 nautical miles seaward of the entrance(s) to
the specified port: . . . (13) Strait of Juan De Fuca at Port Angeles,
WA to and including Puget Sound, WA.'' In strict compliance with the
express wording of sec. 710(a), we propose amending that definition by
striking ``Port Angeles, WA'' and inserting ``Cape Flattery, WA'' in
its place. As amended, the definition would then read: ``Higher volume
port area means the following areas, including any water area within 50
nautical miles seaward of the entrance(s) to the specified port: . . .
(13) Strait of Juan de Fuca at Cape Flattery, WA to and including Puget
Sound, WA.''
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\4\ 33 CFR 155.1020(13).
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Port Angeles lies about 62 miles east of the entrance to the Strait
of Juan de Fuca. By moving the arc so that it centers on Cape Flattery,
which lies at the entrance to the Strait, the proposed redefined
Washington HVPA would cover an additional 50 nautical miles of Pacific
Ocean water, while continuing to cover all the waters now included
within the current HVPA. The larger Washington HVPA may affect the time
and resources needed to respond to an oil spill from a vessel, because
it is harder and more time-consuming to transit rough Pacific Ocean
waters than it is to transit the sheltered waters of the Strait and the
Sound. (We discuss these possibilities in more detail in the Regulatory
Analysis section that follows.)
V. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and E.O.s related to rulemaking. Below we summarize our analyses based
on these statutes or E.O.s.
A. Regulatory Planning and Review
Executive Orders 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).
Executive Order 13563
[[Page 29584]]
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed 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. We developed an analysis of the costs
and benefits of the proposed rule to ascertain its probable impacts on
industry. A draft preliminary Regulatory Assessment follows.
This proposed rule would expand the existing Washington HVPA for
Puget Sound and the Strait of Juan de Fuca. Currently, the Washington
HVPA boundary is measured from Port Angeles in a 50-mile seaward arc
westward to the Pacific Ocean. As mandated by sec. 710 of the Act, this
proposed rule would amend the definition of the term ``Higher volume
port area'' and relocate the point at which the seaward arc is measured
from Port Angeles to Cape Flattery, WA, an approximately 62-mile
westward shift. As a result, the Washington HVPA would cover an
additional 50 miles of open ocean and an additional 12 nautical miles
in the western portion of the Strait of Juan de Fuca. A VRP must list
the OSRO provider that the vessel owner or operator has contracted with
and stipulate the vessel's ability to secure response resources within
specific regulatory timeframes (Tiers 1, 2, and 3) in the event of an
oil spill. This proposed rule would codify the changes delineated in
the Act and it would not require changes to VRPs.
Affected Population
Part 155 in 33 CFR directly applies to and regulates vessel owners
and operators. Specified vessels prepare vessel response plans that
must list the OSRO provider that the vessel owner or operator has
contracted with and stipulate the vessel's ability to secure response
resources within specific regulatory timeframes (Tiers 1, 2, and 3) in
the event of an oil spill. The proposed rule has the potential to
impact vessel response planholders covering vessels that transit the
Washington HVPA and OSROs that provide response resources in the event
of an oil spill. Based on Coast Guard review of vessel response plans,
2 OSROs may be impacted by the proposed rule. One OSRO has about 500
response resource contracts and the other OSRO has about 650 contracts
with planholders that own vessels that call on the Cape Flattery higher
volume port area. For the OSRO that has 500 contracts, about 3 percent
or 15 are with U.S. planholders; the OSRO that has 650 contracts, about
2 percent or 13 are with U.S. planholders.
Costs
Vessel owners and operators would not need to revise or modify a
current VRP to take into account expansion of the HVPA. Current VRPs
already specify one or both of the OSROs that provide response
resources to vessel owners and operators in the affected waters. Vessel
owners and operators must only list the OSRO by name and include the
contact information for each OSRO in the VRP; no other information or
details are required in the VRP that are dependent upon the geographic
location of response equipment.
In addition to identifying the OSRO in the vessel response plan,
vessel owners and operators must ensure the availability of response
resources from the OSRO through a contract or other approved means.
Depending on how the contract language is formulated, a contract may
need to be modified to reflect the change in the HVPA geographical
definition. One OSRO provided information which stated that contracts
would need to be modified slightly to incorporate the geographic change
of the expanded higher volume port while the other OSRO provided
information which stated that no changes or modifications to existing
contracts would be necessary on the part of either the OSROs or the
planholders. For the purpose of this analysis, we estimate costs to
modify a contract for the planholders of the OSRO that stated that
changes would be necessary. This OSRO has about 500 planholders with
written contractual agreements to secure response resource services in
the event of an oil spill; of this amount, only about 3 percent or 15,
are with U.S. planholders. Based on information we obtained from
industry in formulating the Nontank Vessel Response Final Rule [78 FR
60100], it would take a General and Operations Manager approximately 2
hours of planholder time to amend the contract and send the contract to
the OSRO for approval. If a plan preparer amends the contract on behalf
of the planholder, we estimate it would take the same amount of time.
We found that 36 percent of planholders perform this work internally
and 64 percent hire a plan preparer to perform this work on their
behalf. The amendment of a contract is a one-time cost; we estimate
little or no submission cost for planholders because nearly 100 percent
of contracts are submitted by email to the responsible OSRO.
For planholders who perform the work internally and using the
Bureau of Labor Statistics (BLS) May 2013 National Industry-Specific
Occupational Employment and Wage Estimates for General and Operations
Manager (Occupation Code 11-1021), we obtain a mean hourly wage rate of
$62.68. We then use BLS' 2014 Employer Cost for Employee Compensation
databases to calculate and apply a load factor of 1.52 to obtain a
loaded hourly labor rate of about $95.30 for this occupation.\5\ For
plan preparers, we obtained publicly available fully loaded billing
rates for Senior Regulatory and Environmental Consultants and
Environmental Program Managers from three environmental service
companies using the General Services Administration's (GSA) Federal
Acquisition eLibrary for service contracts.\6\ We took the average of
these three rates to obtain a fully loaded hourly wage rate of $151.00
(rounded). Of about 500 planholders who have contracts with this OSRO,
only about 15 are U.S. planholders. Of the 15 U.S. planholders, about
36 percent would amend the contract internally. We estimate the one-
time cost to these planholders to be about $1,030 ($95.30 x 2 hours x
500 planholders x 0.03 x 0.36, rounded). For the remaining 64 percent
of U.S. planholders who have a plan preparer amend the contracts on
their behalf, we estimate the one-time cost to be about $2,899 ($151.00
x 2 hours x 500 planholders x .03 x 0.64, rounded); combined the total
estimated one-time cost to U.S. planholders to amend the contracts
would be about $3,930, rounded and undiscounted. We estimate the
average one-time or initial cost for each U.S. planholder to amend a
contract to be about $262 ($3,930/15
[[Page 29585]]
U.S. planholders). We estimate the 10-year discounted cost to be about
$3,673 using a 7 percent discount rate and the annualized cost to be
about $523. Taking into consideration the uncertainty of this analysis,
we request public comment on the cost impacts of this rule on OSROs and
VRP planholders.
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\5\ Information can be viewed at, http://www.bls.gov/oes/current/naics3_483000.htm. A loaded labor rate is what a company
pays per hour to employ a person, not the hourly wage. The loaded
labor rate includes the cost of benefits (health insurance,
vacation, etc.). The load factor for wages is calculated by dividing
total compensation by wages and salaries. For this analysis, we used
BLS' Employer Cost for Employee Compensation/Transportation and
Materials Moving Occupations, Private Industry report (Series IDs,
CMU2010000520000D and CMU2020000520000D for all workers using the
multi-screen data search). Using 2014 Q2 data, we divide the total
compensation amount of $25.85 by the wage and salary amount of
$17.04 to get the load factor of 1.517 or 1.52. See the following
Web site, http://www.bls.gov/ncs/ect/data.htm. We then rounded
$62.68 to $62.70 and multiplied by 1.52 to obtain a loaded hourly
wage rate of about $95.00.
\6\ GSA Contract GS-10F-0263U Accessed 11/26/2014; GSA Contract
GS-10F-0104T Accessed 11/26/2014; https://www.gsaadvantage.gov/ref_text/GS10F0335R/0N9LCV.2VV7AR_GS-10F-0335R_GS10F0335R.PDF.
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The remaining 485 planholders are foreign. For 36 percent of them
who would amend the contracts internally, we estimate the one-time cost
to be about $33,300 ($95.30 x 2 hours x 485 planholders x 0.36,
rounded). For the remaining 64 percent of foreign planholders who have
a plan preparer amend the contracts on their behalf, we estimate the
one-time cost to be about $93,740 ($151.00 x 2 hours x 485 planholders
x 0.64, rounded); combined the total estimated one-time cost to foreign
planholders to amend the contracts would be about $127,040, rounded, or
about $262 per planholder ($127,040/485 foreign planholders).
The final category of potential costs relates to the OSRO's ability
to meet the specified response times in the new geographic area of the
HVPA. Based on information provided to Coast Guard, one OSRO stated
that additional response equipment would not be required and capital
expenditures would not be necessary as result of the expanded higher
volume port area under current Coast Guard OSRO classification
guidelines. Based on data from the other OSRO, we estimate that total
initial capital costs could be as high as $5.5 million for temporary
storage equipment and warehousing with annual capital recurring costs
of approximately $250,000 for equipment maintenance, and up to $1
million for barge recertification (included in the $5.5 million
estimate), warehousing, and other necessary resource equipment.
However, we lack independent methods to verify these estimates.
Moreover, the actual costs the OSRO may incur depend considerably on
how they choose to comply with our regulations, which give OSROs
substantial flexibility with respect to pre-positioning response
resources.
To the extent one OSRO would incur additional costs due to this
proposed rule (such as increased capitalization costs), we expect that
these costs would be generally passed onto their VRP planholders
equally although the OSRO who provided this information conceded that
this was speculative at this point due to the uncertainty of
expenditures that may be needed as described below. Using the highest
value of capital costs provided to us of $5.5 million, we use the
capital recovery cost factor to determine the amount needed annually to
recovery this payout since we assume the OSRO would finance the
expenditures and attempt to recapture them equally over the life of the
equipment. The capital recovery factor or ratio as it is often referred
to, is the ratio of a constant annuity to the present value of the
annuity over a given period of time using an acceptable discount rate,
as in this case, 7 percent. The ratio also includes the general life
expectancy of the investment and can be simply described as the ``share
of the net cost that must be recovered each year to `repay the cost of
the fixed input at the end of its useful life.' '' If we use a standard
life expectancy of 20 years, we calculate the net amount that must be
recovered by the OSRO annually to be about $519,161, undiscounted.\7\
If we assume this cost is distributed equally over the 650 planholders
(U.S. and foreign planholders who own vessels that transit the higher
volume port area) under contract with this OSRO, the amount needed to
be recovered by the OSRO to recapture this initial investment is
estimated to be about $800 (rounded) from each planholder annually,
most likely in the form of higher retainer fees. However, only about 2
percent, or 13 of the 650 planholders are U.S. planholders. Therefore,
for the 13 U.S. planholders, we estimate the total capital cost of this
proposed rule to be about $10,400 (650 planholders x 0.02 x $800)
annually, undiscounted, in addition to annual maintenance costs of
about $385 per planholder ($250,000/650 planholders), undiscounted, in
years 2 through 10 of the analysis period. We estimate the total 10-
year discounted cost to the 13 U.S. planholders to be about $75,400
using a 7 percent discount rate (the 10-year discounted cost is
estimated to be about $91,600 using a 3 percent discount rate) and the
annualized cost to be about $10,734. See Table 1.
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\7\ Calculated using a capital recovery factor of 0.0944.
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It follows that the remaining 637 planholders are foreign. Again,
if we assume this OSRO passes along its capital cost in the form of
higher retainer fees to foreign planholders, we estimate the total
capital cost of this proposed rule to foreign planholders to be about
$509,600 (637 x $800) annually, undiscounted, in addition to annual
maintenance costs of about $245,000 (637 x $385), undiscounted, in
years 2 through 10 of the analysis period. We estimate the total 10-
year discounted cost to foreign planholders to be about $3.6 million
using a 7 percent discount rate (the 10-year discounted cost is
estimated to be about $4.3 million using a 3 percent discount rate). As
stated earlier, we neither have knowledge of the OSROs billing
structure nor how costs would be distributed among planholders,
although in our discussion with one OSRO, we learned that the
composition of a planholder's vessel fleet affects the amount of the
retainer fee since vessels such as nontank ships requires different
response resources as opposed to towing vessels, for example.
Table 1 summarizes the total estimated cost of the proposed rule to
28 U.S. planholders over a 10-year period of analysis.
Table 1--Summary of Estimated Costs of the Proposed Rule to U.S. Planholders
[7 percent discount rate, 10-year period of analysis, 2015 dollars]
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Update contracts for 15 U.S. OSRO equipment and other Total costs
planholders capital costs -------------------------------
Year ----------------------------------------------------------------
Undiscounted Discounted Undiscounted Discounted Undiscounted Discounted
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1....................................................... $3,930 $3,673 $10,400 $9,720 $14,330 $13,393
2....................................................... 0 0 10,785 9,420 10,785 9,420
3....................................................... 0 0 10,785 8,804 10,785 8,804
4....................................................... 0 0 10,785 8,228 10,785 8,228
5....................................................... 0 0 10,785 7,690 10,785 7,690
6....................................................... 0 0 10,785 7,187 10,785 7,187
7....................................................... 0 0 10,785 6,716 10,785 6,716
[[Page 29586]]
8....................................................... 0 0 10,785 6,277 10,785 6,277
9....................................................... 0 0 10,785 5,866 10,785 5,866
10...................................................... 0 0 10,785 5,483 10,785 5,483
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Total............................................... .............. 3,673 .............. 75,390 .............. 79,062
Annualized.......................................... .............. 523 .............. 10,734 .............. 11,257
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Totals may not sum due to independent rounding.
As Table 1 shows, for 15 U.S. planholders who may need to revise
their contracts, we estimate the 10-year discounted cost of the
proposed rule to be about $3,673 at a 7 percent discount rate (using a
3 percent discount rate, we estimate the 10-year discounted cost to be
about $3,816). We estimate the annualized cost to be about $523 for
these 15 planholders.
For the OSRO who may incur capital costs as a result of this
proposed rule and pass these costs along to its 13 U.S. planholders, we
estimate the 10-year discounted cost to be about $75,400 at a 7 percent
discount rate (using a 3 percent discount rate, we estimate the 10-year
discounted cost to be about $91,624). We estimate the annualized cost
to be about $10,734 at a 7 percent discount rate for these 13
planholders.
We estimate the total present discounted cost of the proposed rule
to all 28 U.S. planholders to be about $79,062 at a 7 percent discount
rate (using a 3 percent discount rate, we estimate the total 10-year
discounted cost to be about $95,440). We estimate the annualized cost
to be about $11,257 at a 7 percent discount rate.
We do not anticipate that this proposed rule would impose new costs
on the Coast Guard or require the Coast Guard to expend additional
resources because we do not expect any changes would be required to
their VRPs.
Alternatives
Due to the specific nature of sec. 710(a), we are limited in the
alternative approaches we can use to comply with Congress' intent. We
considered three alternatives (including the preferred alternative) in
the development of the proposed rule: (1) Revise 33 CFR 155.1020 by
striking ``Port Angeles, WA'' in the definition of ``Higher volume port
area'' of that section and inserting ``Cape Flattery, WA''; (2) Revise
33 CFR 155.1020 by striking ``50 nautical miles'' in the definition of
``Higher volume port area'' and inserting ``110 nautical miles''; and
(3) Take no action. The Regulatory Analysis section further discusses
the analysis of the preferred alternative (i.e., express adoption of
the wording from sec. 710(a)) in comparison with other regulatory
approaches considered.
Analysis of Alternatives
We considered three alternatives (including the preferred
alternative) in the development of this proposed rule. The key factors
that we evaluated in considering each alternative included: (1) The
degree to which the alternative comported with the congressional
mandate in sec. 710 of the Act; (2) What benefits, if any, would be
derived, such as enhancement of personal and environmental safety and
security; and (3) Cost effectiveness. The alternatives considered are
as follows:
Alternative 1: Revise 33 CFR 155.1020 by striking ``Port Angeles,
WA'' in the definition of ``Higher volume port area'' of that section
and inserting ``Cape Flattery, WA.'' Since 1996, 33 CFR 155.1020 has
defined the seaward boundary of the Washington HVPA as an arc 50
nautical miles seaward of the entrance to Port Angeles, WA. The
proposed change would relocate the arc's center to Cape Flattery,
covering approximately 50 additional nautical miles of open ocean.
Alternative 2: Revise 33 CFR 155.1020 by striking ``50 nautical
miles'' in the definition of ``Higher volume port area'' and inserting
``110 nautical miles.'' This change would affect the other 13 HVPAs
throughout the United States because of the level of response resources
required with the significantly reduced response times that would be
associated with a 110-mile outward shift of the existing HVPAs from
their entrances. A shift of this distance would require the purchasing
and positioning of heavier and more expensive equipment such as
oceangoing tugs and barges. In addition, OSROs would incur considerable
costs of potentially retrofitting existing HVPAs with shoreside docks.
Since this would include all HVPAs, the economic impact on the response
resource industry, as a whole, would be greater as opposed to a single
HVPA. Furthermore, this option goes beyond the requirements of sec. 710
of the Act, which specifically requires the Coast Guard to initiate a
rulemaking proceeding to modify the definition of the term ``Higher
volume port area'' by striking ``Port Angeles, WA'' and inserting
``Cape Flattery, WA.''
Alternative 3: Take no action. This option was not selected as it
would not implement the intent of sec. 710 of the Act, which
specifically requires the Coast Guard to initiate a rulemaking to
modify the definition of the term ``Higher volume port area'' by
striking ``Port Angeles, WA'' and inserting ``Cape Flattery, WA.'' It
also precludes the protection intended by Congress for the waters at
the entrance to and in the Strait of Juan de Fuca.
We chose Alternative 1, which codifies the regulation directly and
specifically implements sec. 710 of the Act as described earlier. We
rejected Alternative 2, because it went beyond the direction provided
by Congress in sec. 710 and adds burden, both in the Puget Sound region
and in the other HVPAs throughout the United States. We rejected
Alternative 3, the ``no action'' alternative, because it would not
implement sec. 710.
Benefits
We do not identify any historic cases that could support the
development of quantifiable benefits associated with this proposed
rule. Using the Coast Guard's Marine Information for Safety and Law
Enforcement (MISLE) database with casualty cases transferred from
MISLE's predecessor, the Marine Safety Management System database, we
examined 283 spill cases from 1995 to 2013, beginning with the first
spills that appeared in our database for this geographic region. Based
on information from Coast Guard personnel who have experience in
casualty case investigations and analysis, we found
[[Page 29587]]
no cases or spills that would have benefitted from the expanded HVPA.
Qualitatively, oil spills are likely to result in a negative impact
to the ecosystem and the economy of the surrounding area. These
represent social welfare effects that are not accounted for solely by
the amount of oil spilled into the water. In many cases, the scope of
the impact is contingent on the vulnerability and resiliency of the
affected area. A barrel of spilled oil may not have the same impact in
one area as it would in another. Some locations are more sensitive or
vulnerable than others. Depending on the ecosystem, VRPs could mitigate
impacts to habitats that house multiple species. An area with an
ecosystem that is damaged as a result of previous environmental
incidents or damaged due to the cumulative effects of environmental
injuries over time can be expected to have higher benefits from oil
spill mitigation.
The primary benefit of this proposed rule is to ensure that in the
event of a spill, adequate response resources are available and can be
mobilized within the expanded HVPA. This will ensure a timely response
by vessel owners and operators and the OSROs in an effort to reduce the
likelihood, and mitigate the impact of an oil spill on the marine
environment that might occur in the expanded HVPA.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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.
Regarding vessel owners and operators, as previously discussed,
this proposed rule would codify the requirements in the Act of an
expanded HVPA, and it would not require vessel owners and operators to
make changes to VRPs. Therefore, owners and operators of vessels that
transit the HVPA would not incur additional VRP modification costs as a
result of this proposed rule. However, as assumed earlier for the
purpose of this analysis, if contracts would need to be modified, as
stated by one OSRO on the part of the planholders, U.S. planholders
would bear some costs of this proposed rule as shown earlier in this
preamble. We estimate that each of the 15 U.S. planholders would incur
an average one-time cost of about $262 to amend its contract with the
OSRO.
Also, regarding capital costs, it is unclear whether or how these
costs impact vessel owners and operators without knowledge of the
OSROs' billing structures. Additionally, proprietary information is not
available that would allow us to determine the distribution of costs
among many vessel owners and operators contracting with each OSRO.
Nevertheless, in our earlier analysis, if we assume capital costs are
incurred by one of the OSROs and we assume this cost would be passed
along equally to U.S. planholders in the form of higher retainer fees,
we estimate each of the 13 U.S. planholders would incur an annual cost
of about $800 from one particular OSRO in addition to $385 in
maintenance costs in years 2 through 10 of the analysis period for a
total planholder cost of about $1,185 in years 2 through 10 of the
analysis period.
We assume for the purpose of this analysis that the two OSROs that
provide response resource capabilities to the HVPA in Puget Sound may
incur costs from this proposed rule and may likely pass along these
costs to planholders in the form of higher retainer fees or planholders
may incur one-time costs to amend their contracts with one of the
OSROs. Using the North American Industry Classification System (NAICS)
codes for businesses and the Small Business Administration's (SBA) size
standards for small businesses, we determined the size of each OSRO.
One OSRO has a primary NAICS code of 541618 with an SBA size standard
of $15 million, which is under the subsector group 541 of the NAICS
code with the description of ``Professional, Scientific, and Technical
Services.'' The other OSRO has a primary NAICS code of 562998 with an
SBA size standard of $7.5 million, which is under the subsector group
562 of the NAICS code with the description of ``Waste Management and
Remediation Services.'' Based on the information above and annual
revenue data from publicly available and proprietary sources, Manta and
ReferenceUSA, neither OSRO is considered to be small.
There are about 1,400 U.S. planholders that have either tank
vessel, nontank vessel, or combined vessel response plans. Based on the
affected population of this proposed rule relative to the size of the
industry as a whole, in this case U.S. vessel response plan owners
(planholders), this proposed rule would potentially affect 28 or about
2 percent of the total population of U.S. planholders in the United
States. As described earlier and dependent upon the OSRO considered, we
estimate a U.S. planholder may incur an annual cost between $262 and
$1,185 in years 2 through 10 of the analysis period (and between $262
and $800 in the initial year since we assume maintenance costs are not
incurred in the initial year of the analysis period) as a result of
this proposed rule. Given the cost analysis and pursuant to section
605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Coast
Guard certifies that this proposed rule will not have a significant
economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment to the
Docket Management Facility at the address under ADDRESSES. In your
comment, explain why you think it qualifies and how and to what degree
this rule would economically affect it.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996,\8\ we want to assist small entities in
understanding this proposed rule so that they can better evaluate its
effects on them and participate in the rulemaking. If the proposed rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult LCDR John G. Peterson (see FOR
FURTHER INFORMATION CONTACT). 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.
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\8\ Pub. L. 104-121.
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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 proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995.\9\
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\9\ 44 U.S.C. 3501-3520.
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[[Page 29588]]
E. Federalism
A rule has implications for federalism under E.O. 13132,
Federalism, if it has a substantial direct effect on the 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 follows.
As noted earlier in the preamble, this rule implements sec. 710 of
the Act, which specifically directs the Coast Guard to amend 33 CFR
155.1020 by removing ``Port Angeles, WA'' and replacing it with ``Cape
Flattery, WA.'' This rule carries out the Congressional mandate by
amending the regulations to reflect this required change. Furthermore,
this rule does not have a substantial direct effect upon the laws or
regulations of the State of Washington. Therefore, this rule is
consistent with the fundamental federalism principles and preemption
requirements described in E.O. 13132.
While it is well settled that States may not regulate in categories
in which Congress intended the Coast Guard to be the sole source of a
vessel's obligations, the Coast Guard recognizes the key role that
State and local governments may have in making regulatory
determinations. Additionally, for rules with federalism implications
and preemptive effect, E.O. 13132 specifically directs agencies to
consult with State and local governments during the rulemaking process.
If you believe this rule has implications for federalism under E.O.
13132, please contact the person listed in the FOR FURTHER INFORMATION
section of this preamble.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 \10\ 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 proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
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\10\ 2 U.S.C. 1531-1538.
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G. Taking of Private Property
This proposed rule would 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 proposed 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 proposed 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
A rule has implications for Indian Tribal Governments under E.O.
13175, Consultation and Coordination with Indian Tribal Governments, if
it has 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. We have analyzed this rule under that
Order and have determined that it is consistent with the fundamental
principles and requirements described in E.O. 13175.
As noted above, this rulemaking implements the Congressional
mandate by implementing sec. 710 of the Act. It will improve marine
safety by increasing response times to mitigate or respond to an oil
spill from vessels and does not have tribal implications that would
require consultation under the E.O.
The Coast Guard, however, recognizes the key role that Indian
Tribal Governments have in making regulatory determinations.
Additionally, for rules with tribal implications, E.O. 13175
specifically directs agencies to consult with Indian Tribal Governments
during the rulemaking process. If you believe this rule has
implications for Indian Tribal Governments under E.O. 13175, please
contact the person listed in the FOR FURTHER INFORMATION section of
this preamble.
K. Energy Effects
We have analyzed this proposed 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. We have determined that it is not a ``significant energy
action'' under E.O. 13211, because although it is a ``significant
regulatory action'' under E.O. 12866, it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy, and the Administrator of OMB's Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under E.O. 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act \11\ 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.
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\11\ 15 U.S.C. 272 note.
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This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
M. Environment
We have analyzed this proposed 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,\12\ and have made a preliminary
determination that this 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
preamble. This rule is categorically excluded under section 6(b) of the
``Appendix to National Environmental Policy Act: Coast Guard Procedures
for Categorical Exclusions, Notice of Final Agency Policy.'' \13\ This
rule involves
[[Page 29589]]
Congressionally-mandated regulations designed to protect the
environment, specifically, regulations implementing the requirements of
the Act (redefining and enlarging the boundaries of the existing higher
volume port area in the Strait of Juan de Fuca and Puget Sound, in
Washington). An environmental analysis checklist is available in the
docket where indicated under ADDRESSES.
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\12\ 42 U.S.C. 4321-4370f.
\13\ 67 FR 48244 (July 23, 2002).
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List of Subjects in 33 CFR Part 155
Alaska, Hazardous substances, Oil pollution, Reporting and
recordkeeping requirements.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 155 as follows:
PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION
REGULATIONS FOR VESSELS
0
1. The authority citation for part 155 is revised to read as follows:
Authority: 3 U.S.C. 301 through 303; 33 U.S.C. 1225, 1231,
1321(j), 1903(b), 2735; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp.,
p. 351; Department of Homeland Security Delegation No. 0170.1.
Section 155.1020 also issued under section 710 of Pub. L. 111-281.
Section 155.480 also issued under section 4110(b) of Pub. L.
101.380.
Sec. 155.1020 [Amended]
0
2. In Sec. 155.1020, amend paragraph (13) of the definition of
``Higher volume port area'' by removing the words ``Port Angeles'' and
adding, in their place, the words ``Cape Flattery''.
Dated: May 7, 2015.
J.C. Burton,
Captain, U.S. Coast Guard, Director of Inspections and Compliance.
[FR Doc. 2015-11760 Filed 5-21-15; 8:45 am]
BILLING CODE 9110-04-P