Tank Level or Pressure Monitoring Devices on Single-Hull Tank Ships and Single-Hull Tank Barges Carrying Oil or Oil Residue as Cargo, 41614-41617 [05-14246]
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41614
Federal Register / Vol. 70, No. 138 / Wednesday, July 20, 2005 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
Brenda Mumper, Air Traffic Division,
Airspace Branch, ACE–520A, DOT
Regional Headquarters Building, Federal
Aviation Administration, 901 Locust,
Kansas City, MO 64106; telephone:
(816) 329–2524.
SUPPLEMENTARY INFORMATION: This
amendment to 14 CFR 71 modifies the
Class E airspace beginning at 700 feet
above the surface at Meade Municipal
Airport, KS to contain Instrument Flight
Rule (IFR) operations in controlled
airspace. The area will be depicted on
appropriate aeronautical charts. Class E
airspace areas are published in
Paragraph 6005 of FAA Order 7400.9M,
Airspace Designations and Reporting
Points, dated August 30, 2004, and
effective September 16, 2004, which is
incorporated by reference in 14 CFR
71.1. The Class E airspace designations
listed in this document will be
published subsequently in the Order.
The Direct Final Rule Procedure
The FAA anticipates that this
regulation will not result in adverse or
negative comment and, therefore, is
issuing it as a direct final rule. Previous
actions of this nature have not been
controversial and have not resulted in
adverse comments or objections. Unless
a written adverse or negative comment,
or a written notice of intent to submit
an adverse or negative comment is
received within the comment period,
the regulation will become effective on
the date specified above. After the close
of the comment period, the FAA will
publish a document in the Federal
Register indicating that no adverse or
negative comments were received and
confirming the date on which the final
rule will become effective. If the FAA
does receive, within the comment
period, an adverse or negative comment,
or written notice of intent to submit
such a comment, a document
withdrawing the direct final rule will be
published in the Federal Register, and
a notice of proposed rulemaking may be
published with a new comment period.
Comments Invited
Interested parties are invited to
participate in this rulemaking by
submitting such written data, views, or
arguments, as they may desire.
Comments that provide the factual basis
supporting the views and suggestions
presented are particularly helpful in
developing reasoned regulatory
decisions on the proposal. Comments
are specifically invited on the overall
regulatory, aeronautical, economic,
environmental, and energy-related
aspects of the proposal.
Communications should identify both
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docket numbers and be submitted in
triplicate to the address listed above.
Commenters wishing the FAA to
acknowledge receipt of their comments
on this notice must submit with those
comments a self-addressed, stamped
postcard on which the following
statement is made: ‘‘Comments to
Docket No. FAA–2005–21783/Airspace
Docket No. 05–ACE–24.’’ The postcard
will be date/time stamped and returned
to the commenter.
I
Agency Findings
I
The regulations adopted herein will
not have 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. Therefore, it is
determined that this final rule does not
have federalism implications under
Executive Order 13132.
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current. Therefore, this regulation—(1)
is not a ‘‘significant regulatory action’’
under Executive Order 12866; (2) is not
a ‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 2479); and (3)
does not warrant preparation of a
Regulatory Evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is certified that this rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
This rulemaking is promulgated
under the authority described in
Subtitle VII, Part A, Subpart I, Section
40103. Under that section, the FAA is
charged with prescribing regulations to
assign the use of the airspace necessary
to ensure the safety of aircraft and the
efficient use of airspace. This regulation
is within the scope of that authority
since it contains aircraft executing
instrument approach procedures to
Meade Municipal Airport.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
Accordingly, the Federal Aviation
Administration amends 14 CFR part 71
as follows:
I
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PART 71—DESIGNATION OF CLASS A,
CLASS B, CLASS C, CLASS D, AND
CLASS E AIRSPACE AREAS;
AIRWAYS; ROUTES; AND REPORTING
POINTS
1. The authority citation for part 71
continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 2459–
2463 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in 14
CFR 71.1 of Federal Aviation
Administration Order 7400.9M, dated
August 30, 2004, and effective
September 16, 2004, is amended as
follows:
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
*
*
*
*
*
ACE KS E5 Meade, KS
Meade Municipal Airport, KS
(Lat. 37°16′37″ N., long. 100°21′23″ W.)
That airspace extending upward from 700
feet above the surface within a 7.5-mile
radius of Meade Municipal Airport.
*
*
*
*
*
Issued in Kansas City, MO, on July 11,
2005.
Elizabeth S. Wallis,
Acting Area Director, Western Flight Services
Operations.
[FR Doc. 05–14256 Filed 7–19–05; 8:45 am]
BILLING CODE 4910–13–M
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 155 and 156
[USCG–2001–9046]
RIN 1625–AA94
Tank Level or Pressure Monitoring
Devices on Single-Hull Tank Ships and
Single-Hull Tank Barges Carrying Oil
or Oil Residue as Cargo
Coast Guard, DHS.
Final rule; suspension of
regulations and request for public
comment.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is
suspending for three years the
regulations in Title 33 Code of Federal
Regulations Parts 155 and 156 for tank
level or pressure monitoring (TLPM)
devices published in the Federal
Register of September 17, 2002 (67 FR
58515). Furthermore, we are seeking
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Federal Register / Vol. 70, No. 138 / Wednesday, July 20, 2005 / Rules and Regulations
public comments on the status of TLPM
technology development and other
means of detecting leaks from oil cargo
tanks into the water.
DATES: This rule is effective August 19,
2005. Comments and related material
must reach the Docket Management
Facility on or before September 19,
2005.
ADDRESSES: To make sure that your
comments and related material are not
entered more than once in the docket,
please submit them by only one of the
following means:
(1) By mail to the Docket Management
Facility (USCG–2001–9046), U.S.
Department of Transportation, Room
PL–401, 400 Seventh Street SW.,
Washington, DC 20590–0001.
(2) By delivery to room PL 401 on the
Plaza level of the Nassif Building, 400
Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
The telephone number is 202–366–
9329.
(3) By fax to the Docket Management
Facility at 202–493–2251.
(4) Electronically through the Web
Site for the Docket Management System
at https://dms.dot.gov.
The Docket Management Facility
maintains the public docket for this
rulemaking. Comments and materials
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, will
become part of this docket and will be
available for inspection or copying at
room PL–401 on the Plaza level of the
Nassif Building, 400 Seventh Street
SW., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet at
https://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, contact
LCDR Roger K. Butturini, P.E.,
Regulatory Development Manager,
Office of Standards Evaluation and
Development (G–MSR–2), Coast Guard,
at 202–267–2857 or e-mail address
RButturini@comdt.uscg.mil. For
technical questions concerning tank
level or pressure monitoring devices
contact Ms. Dolores Mercier, Technical
Program Manager, Systems Engineering
Division (G–MSE–3), Coast Guard,
telephone 202–267–0658 or e-mail
DMercier@comdt.uscg.mil. If you have
questions on viewing the docket,
contact Ms. Andrea M. Jenkins, Program
Manager, Docket Operations,
Department of Transportation, at
telephone 202–366–5149.
SUPPLEMENTARY INFORMATION: The Oil
Pollution Act of 1990 (OPA 90), Public
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Law 101–380, directed the Coast Guard
to promulgate a number of regulations,
including a variety of standards for the
design and operation of equipment to
reduce the number and severity of tank
vessel oil spill incidents. Section 4110
of OPA 90 (46 U.S.C. 3703 note)
addressed initiatives to:
• Establish standards for devices that
measure oil levels in cargo tanks or
devices that monitor cargo tank pressure
level (Functionally, these tank level or
pressure monitoring (TLPM) devices
measure changes in cargo volume,
thereby detecting possible oil leaks into
the water), and
• Issue regulations establishing
requirements concerning the use of
these devices on tank vessels carrying
oil or oil residue as cargo.
In May of 1991, the Coast Guard
published in the Federal Register an
Advance Notice of Proposed
Rulemaking (ANPRM) (56 FR 21116)
seeking public comments related to
TLPM devices on tank vessels carrying
oil cargo. In August of 1992, the Volpe
National Transportation Systems Center
completed a feasibility study (Volpe
study) on TLPM devices for the Coast
Guard Marine Technical and Hazardous
Materials Division at Coast Guard
Headquarters. Some important features
of the Volpe study were:
• Identifying ship motions, sloshing,
air pocketing, and the formation of foam
in cargo tanks as the major obstacles to
accurate tank level detection;
• Finding that the attainable accuracy
with electronic surface level sensing
systems is within 2% of the actual cargo
level; and
• Concluding that the high cost of
installing a modern tank level sensing
system will naturally lead to
development of alternative approaches
to leak detection and alarming.
In January of 1993, we asked for
public comment on the study via
another Federal Register Notice (58 FR
7292) and we held a public meeting at
Coast Guard Headquarters in December
1994 to discuss proposed standards and
rules for TLPMs (59 FR 58810). As a
result of the comments, in 1995 we
published a Notice of Proposed
Rulemaking (NPRM) to establish
minimum performance standards for
TLPMs (60 FR 43427).
In 1997, we published a temporary
rule (62 FR 14828) on performance
standards for TLPM devices. In the
temporary rule, we advised the public of
our conclusion that current technology
could not meet the sensitivity
requirements proposed in the NPRM
and requested the submission of new or
modified TLPM devices that could meet
the performance standards set out in the
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41615
rule. It was our intent to evaluate
submitted devices and confirm that they
met the performance standards required
by the temporary rule. We would, then,
have assessed the costs and benefits
offered by these devices and used that
information to decide whether or not to
develop regulations on the installation
and use of TLPMs. At the time the
temporary rule expired in April 1999,
no devices had been submitted to us for
evaluation. In our regulatory analysis,
we estimated the cost of the regulation
as $166.4 million over the 12-year
period of analysis between 2003 and
2014. Likewise, we estimated that the
regulation would result in a benefit of
874 barrels of oil not spilled over the
period of analysis. The costeffectiveness ratio was calculated by
dividing the cost by the projected
benefits (if TLPM technology was
readily available), resulting in a ratio of
$190,000 per barrel of oil not spilled.
Therefore, based on the absence of
equipment that would satisfy our
proposed requirements, the estimated
costs of system installations versus the
projected benefits realized if TLPM
device technology was readily available,
and the miniscule contribution TLPMs
would make to prevent oil pollution
compared to the rest of the OPA 90
initiatives, we decided not to proceed
with regulations that required the use of
TLPMs on single-hull tank vessels.
In 1999, Bluewater Network and
Ocean Advocates brought suit in the
U.S. Court of Appeals for the District of
Columbia Circuit. In their suit, the
petitioners asked the Court for a Writ of
Mandamus ordering us to promulgate
TLPM regulations. In December of 2000,
the Court agreed with the petitioners on
this item and directed the Coast Guard
to promptly promulgate regulations
setting TLPM standards and requiring
use of TLPMs on tank vessels.
On October 1, 2001, we published in
the Federal Register(66 FR 49877)
another NPRM entitled ‘‘Tank Level or
Pressure Monitoring Devices.’’ And, in
September 2002, we published the Final
Rule for ‘‘Tank Level or Pressure
Monitoring Devices’’ (67 FR 58515).
This Final Rule detailed TLPM
performance criteria and described the
vessels required to install and use
TLPMs by 2007. Between publication of
the Final Rule in September 2002 and
June 2005, we identified no devices
meeting the performance criteria
established in the final rule, and none
have been submitted by industry for our
evaluation.
In 2004, Congress amended the
language of section 4110 of OPA 90 in
the Coast Guard and Marine
Transportation Authorization Act of
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2004 (Pub. L. 108–293). Where the
original text of OPA 90 mandated rules
for TLPMs, the amended language now
allows the Coast Guard discretion and
mandates that the Coast Guard study
leak detection alternatives. As a result,
we have the opportunity to revisit the
feasibility and practicality of TLPMs on
single-hull tank vessels and also to
examine other means of detecting leaks
into the water. Therefore, we are
suspending for three years the rules
previously published in 33 CFR parts
155 and 156 that contain requirements
for the use of TLPMs.
As Congress has directed that we
conduct a study of other means of
detecting leaks, we are also using this
final rule to solicit detailed public
comment on the current state of TLPM
technology and other means for
detecting leaks from oil cargo tanks into
the water. The most helpful comments
will be those that include details about
• Physical principles of operation,
• Degree of experience with actual
use,
• Performance and limitations,
• Size, weight, and cost,
• Operational complexity,
• Power requirements,
• Capacity to operate in a dynamic
environment, including an explosive
atmosphere, and
• A point of contact.
In submitting comments on these
issues, recognize that we encourage
ideas on creative and innovative
approaches. The following questions
should help guide your comments:
A. What methods or equipment are
currently available to detect leaks from
oil cargo tanks into the water and what
do they cost?
B. What methods or equipment are
currently under development and may
be available to detect leaks from oil
cargo tanks into the water in the next
five years and what do they cost?
C. What methods or equipment are
under development to detect leaks from
oil cargo tanks into the water but will
not be available in the next five years?
D. What is the current state of
technology for Tank Level or Pressure
Monitoring equipment?
E. In what scenarios (e.g., grounding,
collision, structural failures, and
material wastage) will TLPMs and the
possible alternatives prove the most
useful?
F. Do the methods or types of
equipment discussed in this rulemaking
have uses other than leak detection from
oil cargo tanks into the water?
G. Are the current performance
standards in 33 CFR part 155.490
reasonable and effective?
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H. Should we consider special
circumstances for barges being moved
by tugs and towboats?
I. Should we consider special
circumstances for integrated tug/barge
combinations?
J. Should we consider special
circumstances for vessels that have
cargo or cargo residue aboard but which
are unattended, such as fleeted barges?
K. Are methods or equipment being
applied for similar purposes in other
industries (e.g., the aerospace, rail,
military, or over-the-road truck
industries) that merit investigation for
use aboard vessels?
L. Do emerging industries such as
Microelectromechanical Systems
(MEMS) or nanotechnology have the
potential to provide low-cost solutions
for detecting leaks from cargo oil tanks
into the water?
Regulatory Evaluation
The events that led to publication of
the original rules for TLPMs in 33 CFR
parts 155 and 156 suggest that this final
rule should be considered a ‘‘significant
regulatory action’’ because it will likely
generate a high level of public interest.
We expect that the regulated industry
and environmental groups will submit
numerous comments supporting both
sides of the argument for requiring
TLPMs on single-hulled tank vessels.
The Office of Management and Budget
has reviewed it under that premise and
agrees that this rule is ‘‘significant.’’
In 2002, we estimated the total cost to
the affected industries of implementing
the measures outlined in the final rule
would be $166.4 million over the 12year period of analysis between 2003
and 2014. No devices have been
submitted to the Coast Guard for
approval as a TLPM device. Our
research indicates that there are
currently no devices that meet the
performance requirements of 33 CFR
part 150.490 for a TLPM device. While
some vessels may have equipment
installed to monitor the tank level or
pressure, our research indicates these
devices do not meet the performance
requirements of 33 CFR part 150.490
and are not TLPM devices as discussed
in this and previous rulemakings. Since
this suspension overlaps the remaining
phase-in period, we believe this notice
will render the entire $166.4 million in
implementation costs to industry
unnecessary while the rule is
suspended.
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
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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.
We conclude that suspending the
performance standards for TLPM
devices and the requirements for their
use will not have a significant economic
impact on a substantial number of small
entities. 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.
Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we want to assist small entities in
understanding the rule so that they
could better evaluate its effects on them
and participate in the rulemaking. 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 of the Coast
Guard, call 1–888–REG–FAIR (1–888–
734–3247).
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).
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.
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
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Federal Register / Vol. 70, No. 138 / Wednesday, July 20, 2005 / Rules and Regulations
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)). This rule suspending previously
published rules on performance
standards and use of TLPM devices falls
into the category of vessel equipment
and operation. Because the States may
not regulate within these categories,
preemption under Executive Order
13132 is not an issue.
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 the
preamble.
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.
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.
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.
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.
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41617
Energy Effects
33 CFR Part 156
We have analyzed this rule under
Executive Order 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. This
rule is not likely to have a significant
adverse effect on the supply,
distribution, or use of energy. It has not
been designated by the Administrator of
the Office of Information and Regulatory
Affairs as a significant energy action.
Hazardous substances, Oil pollution,
Reporting and recordkeeping
requirements, Water pollution control.
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
the 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 use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have 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), and we
have concluded 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, this
rule is categorically excluded, under
figure 2–1 paragraph (34) of the
Instruction, from further environmental
documentation. A final ‘‘Environmental
Analysis Check List’’ and a final
‘‘Categorical Exclusion Determination’’
are available in the docket where
indicated under ADRESSSES.
For the reasons discussed in the
preamble, the Coast Guard is amending
33 CFR parts 155 and 156 as follows:
I
PART 155—OIL OR HAZARDOUS
MATERIAL POLLUTION PREVENTION
REGULATIONS FOR VESSELS
1. The authority citation for 33 CFR
part 155 and the note following citation
continue to read as follows:
I
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.
§ 155.200
2. In § 155.200, suspend the definition
for ‘‘Sea State 5’’ from August 19, 2005
until July 21, 2008.
I
§ 155.490
3. Section 155.490 is suspended from
August 19, 2005 until July 21, 2008.
I
PART 156—OIL AND HAZARDOUS
MATERIAL TRANSFER OPERATIONS
4. The authority citation for 33 CFR
part 156 continues to read as follows:
I
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.
§ 156.120
Dated: July 12, 2005.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 05–14246 Filed 7–19–05; 8:45 am]
Alaska, Hazardous substances, Oil
pollution, Reporting and recordkeeping
requirements.
Fmt 4700
[Amended]
I 5. In §156.120, suspend paragraph (ee)
from August 19, 2005 until July 21, 2008.
33 CFR Part 155
Frm 00013
[Suspended]
BILLING CODE 4910–15–P
List of Subjects
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]]>Agencies
[Federal Register Volume 70, Number 138 (Wednesday, July 20, 2005)]
[Rules and Regulations]
[Pages 41614-41617]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14246]
=======================================================================
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 155 and 156
[USCG-2001-9046]
RIN 1625-AA94
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.
ACTION: Final rule; suspension of regulations and request for public
comment.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is suspending for three years the regulations
in Title 33 Code of Federal Regulations Parts 155 and 156 for tank
level or pressure monitoring (TLPM) devices published in the Federal
Register of September 17, 2002 (67 FR 58515). Furthermore, we are
seeking
[[Page 41615]]
public comments on the status of TLPM technology development and other
means of detecting leaks from oil cargo tanks into the water.
DATES: This rule is effective August 19, 2005. Comments and related
material must reach the Docket Management Facility on or before
September 19, 2005.
ADDRESSES: To make sure that your comments and related material are not
entered more than once in the docket, please submit them by only one of
the following means:
(1) By mail to the Docket Management Facility (USCG-2001-9046),
U.S. Department of Transportation, Room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001.
(2) By delivery to room PL 401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management
System at https://dms.dot.gov.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and materials received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza level of the Nassif Building, 400
Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. You may also find this docket
on the Internet at https://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
contact LCDR Roger K. Butturini, P.E., Regulatory Development Manager,
Office of Standards Evaluation and Development (G-MSR-2), Coast Guard,
at 202-267-2857 or e-mail address RButturini@comdt.uscg.mil. For
technical questions concerning tank level or pressure monitoring
devices contact Ms. Dolores Mercier, Technical Program Manager, Systems
Engineering Division (G-MSE-3), Coast Guard, telephone 202-267-0658 or
e-mail DMercier@comdt.uscg.mil. If you have questions on viewing the
docket, contact Ms. Andrea M. Jenkins, Program Manager, Docket
Operations, Department of Transportation, at telephone 202-366-5149.
SUPPLEMENTARY INFORMATION: The Oil Pollution Act of 1990 (OPA 90),
Public Law 101-380, directed the Coast Guard to promulgate a number of
regulations, including a variety of standards for the design and
operation of equipment to reduce the number and severity of tank vessel
oil spill incidents. Section 4110 of OPA 90 (46 U.S.C. 3703 note)
addressed initiatives to:
Establish standards for devices that measure oil levels in
cargo tanks or devices that monitor cargo tank pressure level
(Functionally, these tank level or pressure monitoring (TLPM) devices
measure changes in cargo volume, thereby detecting possible oil leaks
into the water), and
Issue regulations establishing requirements concerning the
use of these devices on tank vessels carrying oil or oil residue as
cargo.
In May of 1991, the Coast Guard published in the Federal Register
an Advance Notice of Proposed Rulemaking (ANPRM) (56 FR 21116) seeking
public comments related to TLPM devices on tank vessels carrying oil
cargo. In August of 1992, the Volpe National Transportation Systems
Center completed a feasibility study (Volpe study) on TLPM devices for
the Coast Guard Marine Technical and Hazardous Materials Division at
Coast Guard Headquarters. Some important features of the Volpe study
were:
Identifying ship motions, sloshing, air pocketing, and the
formation of foam in cargo tanks as the major obstacles to accurate
tank level detection;
Finding that the attainable accuracy with electronic
surface level sensing systems is within 2% of the actual cargo level;
and
Concluding that the high cost of installing a modern tank
level sensing system will naturally lead to development of alternative
approaches to leak detection and alarming.
In January of 1993, we asked for public comment on the study via
another Federal Register Notice (58 FR 7292) and we held a public
meeting at Coast Guard Headquarters in December 1994 to discuss
proposed standards and rules for TLPMs (59 FR 58810). As a result of
the comments, in 1995 we published a Notice of Proposed Rulemaking
(NPRM) to establish minimum performance standards for TLPMs (60 FR
43427).
In 1997, we published a temporary rule (62 FR 14828) on performance
standards for TLPM devices. In the temporary rule, we advised the
public of our conclusion that current technology could not meet the
sensitivity requirements proposed in the NPRM and requested the
submission of new or modified TLPM devices that could meet the
performance standards set out in the rule. It was our intent to
evaluate submitted devices and confirm that they met the performance
standards required by the temporary rule. We would, then, have assessed
the costs and benefits offered by these devices and used that
information to decide whether or not to develop regulations on the
installation and use of TLPMs. At the time the temporary rule expired
in April 1999, no devices had been submitted to us for evaluation. In
our regulatory analysis, we estimated the cost of the regulation as
$166.4 million over the 12-year period of analysis between 2003 and
2014. Likewise, we estimated that the regulation would result in a
benefit of 874 barrels of oil not spilled over the period of analysis.
The cost-effectiveness ratio was calculated by dividing the cost by the
projected benefits (if TLPM technology was readily available),
resulting in a ratio of $190,000 per barrel of oil not spilled.
Therefore, based on the absence of equipment that would satisfy our
proposed requirements, the estimated costs of system installations
versus the projected benefits realized if TLPM device technology was
readily available, and the miniscule contribution TLPMs would make to
prevent oil pollution compared to the rest of the OPA 90 initiatives,
we decided not to proceed with regulations that required the use of
TLPMs on single-hull tank vessels.
In 1999, Bluewater Network and Ocean Advocates brought suit in the
U.S. Court of Appeals for the District of Columbia Circuit. In their
suit, the petitioners asked the Court for a Writ of Mandamus ordering
us to promulgate TLPM regulations. In December of 2000, the Court
agreed with the petitioners on this item and directed the Coast Guard
to promptly promulgate regulations setting TLPM standards and requiring
use of TLPMs on tank vessels.
On October 1, 2001, we published in the Federal Register(66 FR
49877) another NPRM entitled ``Tank Level or Pressure Monitoring
Devices.'' And, in September 2002, we published the Final Rule for
``Tank Level or Pressure Monitoring Devices'' (67 FR 58515). This Final
Rule detailed TLPM performance criteria and described the vessels
required to install and use TLPMs by 2007. Between publication of the
Final Rule in September 2002 and June 2005, we identified no devices
meeting the performance criteria established in the final rule, and
none have been submitted by industry for our evaluation.
In 2004, Congress amended the language of section 4110 of OPA 90 in
the Coast Guard and Marine Transportation Authorization Act of
[[Page 41616]]
2004 (Pub. L. 108-293). Where the original text of OPA 90 mandated
rules for TLPMs, the amended language now allows the Coast Guard
discretion and mandates that the Coast Guard study leak detection
alternatives. As a result, we have the opportunity to revisit the
feasibility and practicality of TLPMs on single-hull tank vessels and
also to examine other means of detecting leaks into the water.
Therefore, we are suspending for three years the rules previously
published in 33 CFR parts 155 and 156 that contain requirements for the
use of TLPMs.
As Congress has directed that we conduct a study of other means of
detecting leaks, we are also using this final rule to solicit detailed
public comment on the current state of TLPM technology and other means
for detecting leaks from oil cargo tanks into the water. The most
helpful comments will be those that include details about
Physical principles of operation,
Degree of experience with actual use,
Performance and limitations,
Size, weight, and cost,
Operational complexity,
Power requirements,
Capacity to operate in a dynamic environment, including an
explosive atmosphere, and
A point of contact.
In submitting comments on these issues, recognize that we encourage
ideas on creative and innovative approaches. The following questions
should help guide your comments:
A. What methods or equipment are currently available to detect
leaks from oil cargo tanks into the water and what do they cost?
B. What methods or equipment are currently under development and
may be available to detect leaks from oil cargo tanks into the water in
the next five years and what do they cost?
C. What methods or equipment are under development to detect leaks
from oil cargo tanks into the water but will not be available in the
next five years?
D. What is the current state of technology for Tank Level or
Pressure Monitoring equipment?
E. In what scenarios (e.g., grounding, collision, structural
failures, and material wastage) will TLPMs and the possible
alternatives prove the most useful?
F. Do the methods or types of equipment discussed in this
rulemaking have uses other than leak detection from oil cargo tanks
into the water?
G. Are the current performance standards in 33 CFR part 155.490
reasonable and effective?
H. Should we consider special circumstances for barges being moved
by tugs and towboats?
I. Should we consider special circumstances for integrated tug/
barge combinations?
J. Should we consider special circumstances for vessels that have
cargo or cargo residue aboard but which are unattended, such as fleeted
barges?
K. Are methods or equipment being applied for similar purposes in
other industries (e.g., the aerospace, rail, military, or over-the-road
truck industries) that merit investigation for use aboard vessels?
L. Do emerging industries such as Microelectromechanical Systems
(MEMS) or nanotechnology have the potential to provide low-cost
solutions for detecting leaks from cargo oil tanks into the water?
Regulatory Evaluation
The events that led to publication of the original rules for TLPMs
in 33 CFR parts 155 and 156 suggest that this final rule should be
considered a ``significant regulatory action'' because it will likely
generate a high level of public interest. We expect that the regulated
industry and environmental groups will submit numerous comments
supporting both sides of the argument for requiring TLPMs on single-
hulled tank vessels. The Office of Management and Budget has reviewed
it under that premise and agrees that this rule is ``significant.''
In 2002, we estimated the total cost to the affected industries of
implementing the measures outlined in the final rule would be $166.4
million over the 12-year period of analysis between 2003 and 2014. No
devices have been submitted to the Coast Guard for approval as a TLPM
device. Our research indicates that there are currently no devices that
meet the performance requirements of 33 CFR part 150.490 for a TLPM
device. While some vessels may have equipment installed to monitor the
tank level or pressure, our research indicates these devices do not
meet the performance requirements of 33 CFR part 150.490 and are not
TLPM devices as discussed in this and previous rulemakings. Since this
suspension overlaps the remaining phase-in period, we believe this
notice will render the entire $166.4 million in implementation costs to
industry unnecessary while the rule is suspended.
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.
We conclude that suspending the performance standards for TLPM
devices and the requirements for their use will not have a significant
economic impact on a substantial number of small entities. 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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. 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 of the Coast
Guard, call 1-888-REG-FAIR (1-888-734-3247).
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).
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.
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
[[Page 41617]]
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)). This rule suspending previously
published rules on performance standards and use of TLPM devices falls
into the category of vessel equipment and operation. Because the States
may not regulate within these categories, preemption under Executive
Order 13132 is not an issue.
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 the preamble.
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.
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.
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.
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.
Energy Effects
We have analyzed this rule under Executive Order 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. This rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. It has not been designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
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 the 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 use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
Environment
We have 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), and we
have concluded 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, this rule is categorically excluded, under
figure 2-1 paragraph (34) of the Instruction, from further
environmental documentation. A final ``Environmental Analysis Check
List'' and a final ``Categorical Exclusion Determination'' are
available in the docket where indicated under ADRESSSES.
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
August 19, 2005 until July 21, 2008.
Sec. 155.490 [Suspended]
0
3. Section 155.490 is suspended from August 19, 2005 until July 21,
2008.
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 August 19, 2005 until
July 21, 2008.
Dated: July 12, 2005.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 05-14246 Filed 7-19-05; 8:45 am]
BILLING CODE 4910-15-P
