Consumer Price Index Adjustments of Oil Pollution Act of 1990 Limits of Liability-Vessels and Deepwater Ports, 750-753 [E9-31349]
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750
Federal Register / Vol. 75, No. 3 / Wednesday, January 6, 2010 / Rules and Regulations
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
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded this action is one of a
category of actions which do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(34)(h), of the Instruction. This rule
involves implementation of regulations
within 33 CFR Part 100 that apply to
organized marine events on the
navigable waters of the United States
that may have potential for negative
impact on the safety or other interest of
waterway users and shore side activities
in the event area. The category of water
activities includes but is not limited to
sail boat regattas, boat parades, power
boat racing, swimming events, crew
racing, and sail board racing.
Under figure 2–1, paragraph (34)(h),
of the Instruction, an environmental
analysis checklist and a categorical
exclusion determination are not
required for this rule.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water),
Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 100 as follows:
■
PART 100—SAFETY OF LIFE ON
NAVIGABLE WATERS
1. The authority citation for part 100
continues to read as follows:
■
Authority: 33 U.S.C. 1233.
2. In § 100.501, in the Table to
§ 100.501, revise number 20 and number
42 to read as follows:
■
§ 100.501 Special local regulations; Marine
events in the fifth Coast Guard district.
*
*
*
*
*
TABLE TO § 100.501
[All coordinates listed in the Table to § 100.501 reference Datum NAD 1983]
Number
Date
Event
Sponsor
Location
Coast Guard Sector Baltimore—COTP Zone
*
20 ............
*
June—2nd Sunday.
*
*
The Great
Chesapeake
Bay Bridge
Swim Races
and Chesapeake Challenge One Mile
Swim.
*
*
Great Chesapeake Bay
Swim, Inc.
*
*
*
*
The waters of the Chesapeake Bay between and adjacent to the spans
of the William P. Lane Jr. Memorial Bridge shore to shore 500 yards
north of the north span of the bridge from the western shore at latitude 39°00′36″ N, longitude 076°23′53″ W and the eastern shore at
latitude 38°59′14″ N, longitude 076°20′00″ W, and 500 yards south
of the south span of the bridge from the western shore at latitude
39°00′16″ N, longitude 076°24′30″ W and the eastern shore at latitude 38°58′39″ N, longitude 076°20′10″ W.
*
*
*
*
Coast Guard Sector Hampton Roads—COTP Zone
*
42 ............
*
*
*
July—last
Wednesday
and following
Friday.
*
*
*
Pony Penning
Swim.
*
Dated: December 17, 2009.
Wayne E. Justice,
Rear Admiral, U.S. Coast Guard Commander,
Fifth Coast Guard District.
[FR Doc. E9–31410 Filed 1–5–10; 8:45 am]
*
*
*
The waters of Assateague Channel from shoreline to shoreline, bounded to the east by a line drawn from latitude 37°55′00″ N, longitude
075°22′45″ W, to latitude 37°54′47″ N, longitude 075°22′45″ W, and
to the south by a line drawn from latitude 37°54′47″ N, longitude
075°22′45″ W, to latitude 37°54′47″ N, longitude 075°23′04″ W.
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 138
[Docket No. USCG–2008–0007]
BILLING CODE 9110–04–P
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*
Chincoteague
Volunteer Fire
Department.
RIN 1625–AB25
Consumer Price Index Adjustments of
Oil Pollution Act of 1990 Limits of
Liability—Vessels and Deepwater
Ports
AGENCY:
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ACTION:
Final rule.
SUMMARY: The Coast Guard is adopting,
as a final rule, without change, an
interim rule published on July 1, 2009.
The interim rule increased the limits of
liability that apply under the Oil
Pollution Act of 1990 (OPA 90) to
vessels and to deepwater ports subject
to the Deepwater Port Act of 1974, to
reflect significant increases in the
Consumer Price Index (CPI). The
interim rule also established the
methodology the Coast Guard uses to
adjust the OPA 90 limits of liability for
inflation, and made minor regulatory
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amendments to clarify applicability of
the OPA 90 single-hull tank vessel
limits of liability.
DATES: This final rule is effective
February 5, 2010. As discussed in the
interim rule published on July 1, 2009,
at 74 FR 31358, to the extent this
rulemaking affects the collection of
information in 33 CFR 138.85, the Coast
Guard will not enforce the information
collection request until it is approved by
the Office of Management and Budget
(OMB).
Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket for this
rulemaking, are part of Docket No.
USCG–2008–0007 and are available for
inspection or copying at the 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, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
view the docket for this rulemaking on
the Internet by going to https://
www.regulations.gov, inserting USCG–
2008–0007 in the ‘‘Keyword’’ box, and
then clicking ‘‘Search.’’
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rulemaking,
call or e-mail Benjamin White, National
Pollution Funds Center, Coast Guard;
telephone 202–493–6863, e-mail
Benjamin.H.White@uscg.mil. If you
have questions on viewing the docket
for this rulemaking, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
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Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Comments and Changes
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. Abbreviations
CFR Code of Federal Regulations
COFR Certificate of Financial
Responsibility
CPI Consumer Price Index
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CPI NPRM The notice of proposed
rulemaking published on September 24,
2008, titled ‘‘Consumer Price Index
Adjustments of Oil Pollution Act of 1990
Limits of Liability—Vessels and
Deepwater Ports’’ (73 FR 54997)
CPI–U Consumer Price Index—All Urban
Consumers, Not Seasonally Adjusted,
U.S. City Average, All Items, 1982–
84=100
Deepwater Port A deepwater port licensed
under the Deepwater Port Act of 1974
(33 U.S.C. 1501–1524)
DHS U.S. Department of Homeland
Security
FR Federal Register
Fund Oil Spill Liability Trust Fund
Interim Rule The interim rule for this
rulemaking, published on July 1, 2009,
titled ‘‘Consumer Price Index
Adjustments of Oil Pollution Act of 1990
Limits of Liability—Vessels and
Deepwater Ports’’ (74 FR 31357)
OMB Office of Management and Budget
OPA 90 The Oil Pollution Act of 1990, as
amended (Title I of which is codified at
33 U.S.C. 2701, et seq.; Title IV of which
is codified in relevant part at 46 U.S.C.
3703a)
§ Section symbol
U.S.C. United States Code
II. Regulatory History
On September 24, 2008, the Coast
Guard published a notice of proposed
rulemaking in the Federal Register, at
73 FR 54997, entitled ‘‘Consumer Price
Index Adjustments of Oil Pollution Act
of 1990 Limits of Liability—Vessels and
Deepwater Ports’’ (CPI NPRM). The CPI
NPRM proposed to adjust the Oil
Pollution Act of 1990, as amended (OPA
90), limits of liability set forth at 33 CFR
part 138, subpart B, for vessels and for
deepwater ports licensed under the
Deepwater Port Act of 1974, as amended
(33 U.S.C. 1501–1524) (hereinafter
‘‘Deepwater Ports’’), as required by 33
U.S.C. 2704(d), to reflect significant
increases in the Consumer Price Index
(CPI). The CPI NPRM also proposed a
methodology for calculating and
implementing the proposed and future
mandated OPA 90 limit of liability
inflation adjustments.
On July 1, 2009, we published the
Interim Rule, at 74 FR 31357,
responding to public comments
submitted on the CPI NPRM, adjusting
the OPA 90 limits of liability as
proposed, and establishing the
methodology for adjusting the limits of
liability. In addition, in response to a
public comment, the Interim Rule made
minor amendments to clarify the
applicability of the single-hull tank
vessel limits of liability, and solicited
additional public comment on this
clarification.
In the docket for this rulemaking, we
received two letters containing a total of
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seven comments on the Interim Rule.
We also received a non-public oral
comment on the Interim Rule, which we
have summarized in a memo to the
docket. These comments are discussed
in part IV, below.
No public meeting was requested at
either the CPI NPRM or Interim Rule
stages of this rulemaking, and none was
held. All comments and other materials
related to this rulemaking have been
placed in the public docket for this
rulemaking (Docket No. USCG–2008–
0007).
For further discussion of the
regulatory history for this rulemaking,
see the Interim Rule. That document is
available in the docket for this
rulemaking.
III. Background
In general under Title I of OPA 90, the
responsible parties for a vessel or
facility which discharges, or poses a
substantial threat of discharge of, oil
into or upon United States navigable
waters, adjoining shorelines or the
exclusive economic zone, are liable for
the OPA 90 removal costs and damages
that result from such incident. (33
U.S.C. 2702(a).) The responsible parties’
total liability for OPA 90 removal costs
and damages is, however, limited under
certain circumstances, as provided in 33
U.S.C. 2704, to the applicable limit of
liability amounts set forth at 33 CFR
part 138, subpart B.
In instances when the liability limits
apply, the Oil Spill Liability Trust Fund
(Fund) is available to compensate the
excess OPA 90 removal costs and
damages. (See 33 U.S.C. 2708,
2712(a)(4), and 2713; and 33 CFR part
136.) Therefore, to prevent the real
value of the OPA 90 limits of liability
from depreciating over time as a result
of inflation and preserve the polluterpays principle embodied in OPA 90,
OPA 90 requires that the President
periodically adjust the limits of liability,
by regulation, to reflect significant
increases in the CPI. (See 33 U.S.C.
2704(d)(4).)
On September 24, 2008, in accordance
with this mandate and further
delegations to the Coast Guard, we
proposed to adjust the OPA 90 limits of
liability for vessels and Deepwater Ports
in 33 CFR part 138, subpart B, for
inflation, and to establish the
methodology for the proposed and
future mandated OPA 90 limit of
liability inflation adjustments. (CPI
NPRM, 73 FR 54997.)
During the public comment period for
the CPI NPRM, the Coast Guard vessel
certification program received a
question asking what applicable
amounts of OPA 90 financial
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responsibility apply under the
Certificate of Financial Responsibility
(COFR) program regulations, at 33 CFR
part 138, subpart A, to single-hull tank
vessels that do not carry oil as cargo. As
explained further in the Interim Rule, it
was not until after the comment period
for the CPI NPRM closed that we
determined the question raised a
substantive issue concerning
applicability of the single-hull tank
vessel limits of liability amended by this
rulemaking. The question was,
therefore, submitted as a comment to
the public docket for this rulemaking
after the close of the CPI NPRM
comment period.
To avoid delaying the required
inflation adjustments to the OPA 90
limits of liability, we published the
Interim Rule, at 74 FR 31357, instead of
a final rule. This permitted us to receive
additional public comment on the
single-hull tank vessel limit of liability
applicability issue before issuing a final
rule. The Interim Rule increased the
OPA 90 limits of liability for vessels and
Deepwater Ports, effective July 31, 2009,
to reflect significant increases in the
CPI. In addition, the Interim Rule
established the methodology the Coast
Guard uses to adjust the OPA 90 limits
of liability for inflation. Finally, the
Interim Rule made minor amendments
to §§ 138.220(b) and 138.230(a),
clarifying that the OPA 90 single-hull
tank vessel limits of liability only apply
to single-hull tank vessels that are
constructed or adapted to carry, or that
carry, oil as cargo or cargo residue, and
specifically invited public comment on
this clarification.
For further discussion of the
background for this rulemaking, see the
preambles for the CPI NPRM and the
Interim Rule. Both documents are
available in the docket for this
rulemaking.
IV. Discussion of Comments and
Changes
Two letters with seven comments,
and a memorandum summarizing one
non-public oral comment related to the
Interim Rule, were submitted to the
docket for this rulemaking. The
comments were generally supportive of
this rulemaking and, as discussed
below, none of the comments raised any
issue that persuaded or convinced the
Coast Guard to change the regulatory
text published in the Interim Rule. This
final rule, therefore, adopts the Interim
Rule, at 74 FR 31357, without change.
An anonymous commenter expressed
the view that fines ‘‘oil profiteers’’ have
to pay for polluting should be raised by
1,000 percent. This comment is beyond
the scope of this rulemaking. The
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primary purpose of this rulemaking is to
implement the statutorily-mandated
inflation increases to the OPA 90 limits
of liability and to clarify their
applicability. Any other increase to the
limits of liability would have to be
authorized by Congress. Moreover, the
OPA 90 limits of liability only concern
the liability of responsible parties under
33 U.S.C. 2702 for OPA 90 removal
costs and damages. The OPA 90 limits
of liability and 33 CFR part 138, subpart
B, as amended by this rulemaking do
not limit, or otherwise affect or concern,
the amount of fines, penalties or other
liability of responsible parties under
other provisions of law.
An environmental organization
supported increasing the limits of
liability to reflect significant increases
in the CPI, agreed with the Coast
Guard’s assessment that the statute does
not allow for CPI-based reductions in
the limits of liability, agreed with the
process established to ensure future
increases occur on a regular basis, and
agreed with the procedure to
immediately update limits as soon as
the percentage target is reached if it
does not occur at the 3 year interval.
This commenter further stated that the
threshold of 3 percent CPI increase over
3 years set forth in the Interim Rule is
appropriate. The commenter, however,
expressed the view that a lower
percentage threshold should be
considered by the Coast Guard (i.e., a
1% CPI increase over 3 years). In
response to that comment, we
considered whether a lower threshold
should be adopted. We concluded,
based on the entire historical record of
annual changes in the CPI–U (the
Consumer Price Index—All Urban
Consumers, Not Seasonally Adjusted,
U.S. City Average, All Items, 1982–84 =
100) going back to 1913, that a CPI
increase threshold of 3 percent over 3
years will almost always result in future
inflation adjustments to the OPA 90
limits of liability every 3 years, and is
therefore adequate to protect against risk
shifting to the Fund. We are, therefore,
making no changes to the CPI increase
threshold adopted in the Interim Rule in
response to this comment.
The non-public oral comment, from a
financial responsibility guarantor,
expressed support for the minor
amendments made by the Interim Rule,
at §§ 138.220(b) and 138.230(a), to
clarify that the single-hull tank vessel
limits of liability only apply to singlehull tank vessels that are constructed or
adapted to carry, or that carry, oil as
cargo or cargo residue. The clarifying
amendments are being adopted by this
final rule without change.
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V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders related to Federal
rulemaking. Below we summarize our
analyses based on 13 of these statutes or
executive orders.
A. Regulatory Planning and Review
This final rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. OMB has not reviewed it under
that Order. Public comments on the
Interim Rule are summarized in Part IV
of this preamble. We made no changes
to the Interim Rule and we received no
public comments that would alter our
assessment of the impacts of the Interim
Rule. As explained in Part IV, above, we
are adopting the Interim Rule without
change. We are, therefore, adopting the
Regulatory Assessment prepared for the
Interim Rule as final. See the
‘‘Regulatory Planning and Review’’
section of the Interim Rule for more
information.
B. Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
In the CPI NPRM and again in the
Interim Rule, we certified under 5
U.S.C. 605(b) that the rule would not
have a significant economic impact on
a substantial number of small entities.
We have found no additional data or
information that would change our
findings in this respect. We, therefore,
adopt for this final rule, the certification
of the Interim Rule, under 5 U.S.C.
605(b), that this rulemaking will not
have a significant economic impact on
a substantial number of small entities.
See the ‘‘Small Entities’’ sections of the
Interim Rule and the NPRM for
additional information.
C. Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we offered to assist small entities in
understanding the rule so that they
could better evaluate its effects on them
and participate in the rulemaking. The
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Coast Guard will not retaliate against
small entities that question or complain
about this rule or any policy or action
of the Coast Guard.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call
1–888–REG–FAIR (1–888–734–3247).
D. Collection of Information
As defined in 5 CFR 1320.3(c),
‘‘collection of information’’ comprises
reporting, recordkeeping, monitoring,
posting, labeling, and other, similar
actions. The title and description of the
information collection, a description of
those who must collect the information,
and an estimate of the total annual
burden follow. The estimate covers the
time for reviewing instructions,
searching existing sources of data,
gathering and maintaining the data
needed, and completing and reviewing
the collection.
Public comments on the Interim Rule
are summarized in Part IV of this
preamble, above. We received no public
comments that would alter our
assessment of the collection of
information impacts in the Interim Rule.
We have adopted the assessment in the
Interim Rule as final. See the
‘‘Collection of Information’’ section of
the Interim Rule in the public docket for
this rulemaking (USCG–2008–0007).
OMB has not yet completed its review
of this collection request titled
‘‘Consumer Price Index Adjustments of
Oil Pollution Act of 1990 Limits of
Liability — Vessels and Deepwater
Ports’’ (OMB CONTROL NUMBER:
1625–0046). Therefore, the Coast Guard
will not enforce the information
collection requirement at 33 CFR 138.85
triggered by this rulemaking until its
information collection request is
approved by OMB. We will publish a
document in the Federal Register
informing the public of OMB’s decision
to approve, modify, or disapprove the
collection.
You are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
E. Federalism
A rule has implications for federalism
under Executive Order 13132,
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Federalism, if it has a substantial direct
effect on State or local governments and
would either preempt State law or
impose a substantial direct cost of
compliance on them. We have analyzed
this rule under that Order and have
determined that it does not have
implications for federalism.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
G. Taking of Private Property
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
H. Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
I. 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.
J. 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.
K. 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
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753
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy.
L. Technical Standards
The National Technology Transfer
and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary
consensus standards in their regulatory
activities unless the agency provides
Congress, through the OMB, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
M. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have concluded
that this action is one of a category of
actions which do not individually or
cumulatively have a significant effect on
the human environment. This rule is
categorically excluded under section
2.B.2, figure 2–1, paragraph (34)(a) of
the Instruction. An environmental
analysis checklist and a categorical
exclusion determination are available in
the public docket for this rulemaking,
where indicated above under
ADDRESSES.
List of Subjects in 33 CFR Part 138
Hazardous materials transportation,
Insurance, Limits of liability, Oil
pollution, Reporting and recordkeeping
requirements, Water pollution control.
For the reasons discussed in the
preamble, the interim rule amending 33
CFR part 138, published at 74 FR 31368
on July 1, 2009, is adopted as a final
rule without change.
Dated: December 30, 2009.
William R. Grawe,
Acting Director, National Pollution Funds
Center, United States Coast Guard.
[FR Doc. E9–31349 Filed 1–5–10; 8:45 am]
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Agencies
[Federal Register Volume 75, Number 3 (Wednesday, January 6, 2010)]
[Rules and Regulations]
[Pages 750-753]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31349]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 138
[Docket No. USCG-2008-0007]
RIN 1625-AB25
Consumer Price Index Adjustments of Oil Pollution Act of 1990
Limits of Liability--Vessels and Deepwater Ports
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is adopting, as a final rule, without change,
an interim rule published on July 1, 2009. The interim rule increased
the limits of liability that apply under the Oil Pollution Act of 1990
(OPA 90) to vessels and to deepwater ports subject to the Deepwater
Port Act of 1974, to reflect significant increases in the Consumer
Price Index (CPI). The interim rule also established the methodology
the Coast Guard uses to adjust the OPA 90 limits of liability for
inflation, and made minor regulatory
[[Page 751]]
amendments to clarify applicability of the OPA 90 single-hull tank
vessel limits of liability.
DATES: This final rule is effective February 5, 2010. As discussed in
the interim rule published on July 1, 2009, at 74 FR 31358, to the
extent this rulemaking affects the collection of information in 33 CFR
138.85, the Coast Guard will not enforce the information collection
request until it is approved by the Office of Management and Budget
(OMB).
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket
for this rulemaking, are part of Docket No. USCG-2008-0007 and are
available for inspection or copying at the 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,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also view the docket for this rulemaking on the
Internet by going to https://www.regulations.gov, inserting USCG-2008-
0007 in the ``Keyword'' box, and then clicking ``Search.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this
rulemaking, call or e-mail Benjamin White, National Pollution Funds
Center, Coast Guard; telephone 202-493-6863, e-mail
Benjamin.H.White@uscg.mil. If you have questions on viewing the docket
for this rulemaking, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Comments and Changes
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. Abbreviations
CFR Code of Federal Regulations
COFR Certificate of Financial Responsibility
CPI Consumer Price Index
CPI NPRM The notice of proposed rulemaking published on September
24, 2008, titled ``Consumer Price Index Adjustments of Oil Pollution
Act of 1990 Limits of Liability--Vessels and Deepwater Ports'' (73
FR 54997)
CPI-U Consumer Price Index--All Urban Consumers, Not Seasonally
Adjusted, U.S. City Average, All Items, 1982-84=100
Deepwater Port A deepwater port licensed under the Deepwater Port
Act of 1974 (33 U.S.C. 1501-1524)
DHS U.S. Department of Homeland Security
FR Federal Register
Fund Oil Spill Liability Trust Fund
Interim Rule The interim rule for this rulemaking, published on July
1, 2009, titled ``Consumer Price Index Adjustments of Oil Pollution
Act of 1990 Limits of Liability--Vessels and Deepwater Ports'' (74
FR 31357)
OMB Office of Management and Budget
OPA 90 The Oil Pollution Act of 1990, as amended (Title I of which
is codified at 33 U.S.C. 2701, et seq.; Title IV of which is
codified in relevant part at 46 U.S.C. 3703a)
Sec. Section symbol
U.S.C. United States Code
II. Regulatory History
On September 24, 2008, the Coast Guard published a notice of
proposed rulemaking in the Federal Register, at 73 FR 54997, entitled
``Consumer Price Index Adjustments of Oil Pollution Act of 1990 Limits
of Liability--Vessels and Deepwater Ports'' (CPI NPRM). The CPI NPRM
proposed to adjust the Oil Pollution Act of 1990, as amended (OPA 90),
limits of liability set forth at 33 CFR part 138, subpart B, for
vessels and for deepwater ports licensed under the Deepwater Port Act
of 1974, as amended (33 U.S.C. 1501-1524) (hereinafter ``Deepwater
Ports''), as required by 33 U.S.C. 2704(d), to reflect significant
increases in the Consumer Price Index (CPI). The CPI NPRM also proposed
a methodology for calculating and implementing the proposed and future
mandated OPA 90 limit of liability inflation adjustments.
On July 1, 2009, we published the Interim Rule, at 74 FR 31357,
responding to public comments submitted on the CPI NPRM, adjusting the
OPA 90 limits of liability as proposed, and establishing the
methodology for adjusting the limits of liability. In addition, in
response to a public comment, the Interim Rule made minor amendments to
clarify the applicability of the single-hull tank vessel limits of
liability, and solicited additional public comment on this
clarification.
In the docket for this rulemaking, we received two letters
containing a total of seven comments on the Interim Rule. We also
received a non-public oral comment on the Interim Rule, which we have
summarized in a memo to the docket. These comments are discussed in
part IV, below.
No public meeting was requested at either the CPI NPRM or Interim
Rule stages of this rulemaking, and none was held. All comments and
other materials related to this rulemaking have been placed in the
public docket for this rulemaking (Docket No. USCG-2008-0007).
For further discussion of the regulatory history for this
rulemaking, see the Interim Rule. That document is available in the
docket for this rulemaking.
III. Background
In general under Title I of OPA 90, the responsible parties for a
vessel or facility which discharges, or poses a substantial threat of
discharge of, oil into or upon United States navigable waters,
adjoining shorelines or the exclusive economic zone, are liable for the
OPA 90 removal costs and damages that result from such incident. (33
U.S.C. 2702(a).) The responsible parties' total liability for OPA 90
removal costs and damages is, however, limited under certain
circumstances, as provided in 33 U.S.C. 2704, to the applicable limit
of liability amounts set forth at 33 CFR part 138, subpart B.
In instances when the liability limits apply, the Oil Spill
Liability Trust Fund (Fund) is available to compensate the excess OPA
90 removal costs and damages. (See 33 U.S.C. 2708, 2712(a)(4), and
2713; and 33 CFR part 136.) Therefore, to prevent the real value of the
OPA 90 limits of liability from depreciating over time as a result of
inflation and preserve the polluter-pays principle embodied in OPA 90,
OPA 90 requires that the President periodically adjust the limits of
liability, by regulation, to reflect significant increases in the CPI.
(See 33 U.S.C. 2704(d)(4).)
On September 24, 2008, in accordance with this mandate and further
delegations to the Coast Guard, we proposed to adjust the OPA 90 limits
of liability for vessels and Deepwater Ports in 33 CFR part 138,
subpart B, for inflation, and to establish the methodology for the
proposed and future mandated OPA 90 limit of liability inflation
adjustments. (CPI NPRM, 73 FR 54997.)
During the public comment period for the CPI NPRM, the Coast Guard
vessel certification program received a question asking what applicable
amounts of OPA 90 financial
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responsibility apply under the Certificate of Financial Responsibility
(COFR) program regulations, at 33 CFR part 138, subpart A, to single-
hull tank vessels that do not carry oil as cargo. As explained further
in the Interim Rule, it was not until after the comment period for the
CPI NPRM closed that we determined the question raised a substantive
issue concerning applicability of the single-hull tank vessel limits of
liability amended by this rulemaking. The question was, therefore,
submitted as a comment to the public docket for this rulemaking after
the close of the CPI NPRM comment period.
To avoid delaying the required inflation adjustments to the OPA 90
limits of liability, we published the Interim Rule, at 74 FR 31357,
instead of a final rule. This permitted us to receive additional public
comment on the single-hull tank vessel limit of liability applicability
issue before issuing a final rule. The Interim Rule increased the OPA
90 limits of liability for vessels and Deepwater Ports, effective July
31, 2009, to reflect significant increases in the CPI. In addition, the
Interim Rule established the methodology the Coast Guard uses to adjust
the OPA 90 limits of liability for inflation. Finally, the Interim Rule
made minor amendments to Sec. Sec. 138.220(b) and 138.230(a),
clarifying that the OPA 90 single-hull tank vessel limits of liability
only apply to single-hull tank vessels that are constructed or adapted
to carry, or that carry, oil as cargo or cargo residue, and
specifically invited public comment on this clarification.
For further discussion of the background for this rulemaking, see
the preambles for the CPI NPRM and the Interim Rule. Both documents are
available in the docket for this rulemaking.
IV. Discussion of Comments and Changes
Two letters with seven comments, and a memorandum summarizing one
non-public oral comment related to the Interim Rule, were submitted to
the docket for this rulemaking. The comments were generally supportive
of this rulemaking and, as discussed below, none of the comments raised
any issue that persuaded or convinced the Coast Guard to change the
regulatory text published in the Interim Rule. This final rule,
therefore, adopts the Interim Rule, at 74 FR 31357, without change.
An anonymous commenter expressed the view that fines ``oil
profiteers'' have to pay for polluting should be raised by 1,000
percent. This comment is beyond the scope of this rulemaking. The
primary purpose of this rulemaking is to implement the statutorily-
mandated inflation increases to the OPA 90 limits of liability and to
clarify their applicability. Any other increase to the limits of
liability would have to be authorized by Congress. Moreover, the OPA 90
limits of liability only concern the liability of responsible parties
under 33 U.S.C. 2702 for OPA 90 removal costs and damages. The OPA 90
limits of liability and 33 CFR part 138, subpart B, as amended by this
rulemaking do not limit, or otherwise affect or concern, the amount of
fines, penalties or other liability of responsible parties under other
provisions of law.
An environmental organization supported increasing the limits of
liability to reflect significant increases in the CPI, agreed with the
Coast Guard's assessment that the statute does not allow for CPI-based
reductions in the limits of liability, agreed with the process
established to ensure future increases occur on a regular basis, and
agreed with the procedure to immediately update limits as soon as the
percentage target is reached if it does not occur at the 3 year
interval. This commenter further stated that the threshold of 3 percent
CPI increase over 3 years set forth in the Interim Rule is appropriate.
The commenter, however, expressed the view that a lower percentage
threshold should be considered by the Coast Guard (i.e., a 1% CPI
increase over 3 years). In response to that comment, we considered
whether a lower threshold should be adopted. We concluded, based on the
entire historical record of annual changes in the CPI-U (the Consumer
Price Index--All Urban Consumers, Not Seasonally Adjusted, U.S. City
Average, All Items, 1982-84 = 100) going back to 1913, that a CPI
increase threshold of 3 percent over 3 years will almost always result
in future inflation adjustments to the OPA 90 limits of liability every
3 years, and is therefore adequate to protect against risk shifting to
the Fund. We are, therefore, making no changes to the CPI increase
threshold adopted in the Interim Rule in response to this comment.
The non-public oral comment, from a financial responsibility
guarantor, expressed support for the minor amendments made by the
Interim Rule, at Sec. Sec. 138.220(b) and 138.230(a), to clarify that
the single-hull tank vessel limits of liability only apply to single-
hull tank vessels that are constructed or adapted to carry, or that
carry, oil as cargo or cargo residue. The clarifying amendments are
being adopted by this final rule without change.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to Federal rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.
A. Regulatory Planning and Review
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. OMB has not reviewed it under that
Order. Public comments on the Interim Rule are summarized in Part IV of
this preamble. We made no changes to the Interim Rule and we received
no public comments that would alter our assessment of the impacts of
the Interim Rule. As explained in Part IV, above, we are adopting the
Interim Rule without change. We are, therefore, adopting the Regulatory
Assessment prepared for the Interim Rule as final. See the ``Regulatory
Planning and Review'' section of the Interim Rule for more information.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
In the CPI NPRM and again in the Interim Rule, we certified under 5
U.S.C. 605(b) that the rule would not have a significant economic
impact on a substantial number of small entities. We have found no
additional data or information that would change our findings in this
respect. We, therefore, adopt for this final rule, the certification of
the Interim Rule, under 5 U.S.C. 605(b), that this rulemaking will not
have a significant economic impact on a substantial number of small
entities. See the ``Small Entities'' sections of the Interim Rule and
the NPRM for additional information.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. The
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Coast Guard will not retaliate against small entities that question or
complain about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
D. Collection of Information
As defined in 5 CFR 1320.3(c), ``collection of information''
comprises reporting, recordkeeping, monitoring, posting, labeling, and
other, similar actions. The title and description of the information
collection, a description of those who must collect the information,
and an estimate of the total annual burden follow. The estimate covers
the time for reviewing instructions, searching existing sources of
data, gathering and maintaining the data needed, and completing and
reviewing the collection.
Public comments on the Interim Rule are summarized in Part IV of
this preamble, above. We received no public comments that would alter
our assessment of the collection of information impacts in the Interim
Rule. We have adopted the assessment in the Interim Rule as final. See
the ``Collection of Information'' section of the Interim Rule in the
public docket for this rulemaking (USCG-2008-0007).
OMB has not yet completed its review of this collection request
titled ``Consumer Price Index Adjustments of Oil Pollution Act of 1990
Limits of Liability -- Vessels and Deepwater Ports'' (OMB CONTROL
NUMBER: 1625-0046). Therefore, the Coast Guard will not enforce the
information collection requirement at 33 CFR 138.85 triggered by this
rulemaking until its information collection request is approved by OMB.
We will publish a document in the Federal Register informing the public
of OMB's decision to approve, modify, or disapprove the collection.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
G. Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. 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.
J. 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.
K. 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 because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
L. Technical Standards
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through the
OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, performance, design, or operation; test methods; sampling
procedures; and related management systems practices) that are
developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have concluded that this
action is one of a category of actions which do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded under section 2.B.2, figure 2-1,
paragraph (34)(a) of the Instruction. An environmental analysis
checklist and a categorical exclusion determination are available in
the public docket for this rulemaking, where indicated above under
ADDRESSES.
List of Subjects in 33 CFR Part 138
Hazardous materials transportation, Insurance, Limits of liability,
Oil pollution, Reporting and recordkeeping requirements, Water
pollution control.
For the reasons discussed in the preamble, the interim rule
amending 33 CFR part 138, published at 74 FR 31368 on July 1, 2009, is
adopted as a final rule without change.
Dated: December 30, 2009.
William R. Grawe,
Acting Director, National Pollution Funds Center, United States Coast
Guard.
[FR Doc. E9-31349 Filed 1-5-10; 8:45 am]
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