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Proposed Rule

Marine Casualty Reporting on the Outer Continental Shelf

Action

Notice Of Proposed Rulemaking.

Summary

The Coast Guard proposes broadening the regulatory requirements for reporting marine casualties that occur on the U.S. Outer Continental Shelf (OCS). The limited reporting requirements currently applicable to foreign-flag OCS units in those waters would be replaced with the broader requirements currently applicable to U.S.-flag OCS units and to marine casualties occurring elsewhere in U.S. waters. The proposed changes would improve the Coast Guard's ability to collect and analyze casualty data for incidents on the OCS, in the interest of maintaining and improving safety on the OCS. This proposed rule would support the Coast Guard's maritime safety and stewardship missions.

Unified Agenda

Marine Casualty Reporting on the Outer Continental Shelf

1 action from March 2014

  • March 2014
    • NPRM
 

Table of Contents Back to Top

Tables Back to Top

DATES: Back to Top

Comments and related material must either be submitted to our online docket via http://www.regulations.gov on or before April 10, 2014 or reach the Docket Management Facility by that date. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before April 10, 2014.

ADDRESSES: Back to Top

You may submit comments identified by docket number USCG-2013-1057 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: 202-493-2251.

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

Collection of Information Comments: If you have comments on the collection of information discussed in section VI.D. of this notice of proposed rulemaking (NPRM), you must also send comments to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget. To ensure that your comments to OIRA are received on time, the preferred methods are by email to oira_submission@omb.eop.gov (include the docket number and “Attention: Desk Officer for Coast Guard, DHS” in the subject line of the email) or fax at 202-395-6566. An alternate, though slower, method is by U.S. mail to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.

FOR FURTHER INFORMATION CONTACT: Back to Top

If you have questions on this proposed rule, call or email Mr. Dan Lawrence, Vessel and Facility Operating Standards Division (CG-OES-2), telephone 202-372-1382, email James.D.Lawrence@uscg.mil. If you have questions on viewing or submitting material to the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: Back to Top

Table of Contents for Preamble Back to Top

I. Public Participation and Request for Comments

A. Submitting comments

B. Viewing comments and documents

C. Privacy Act

D. Public meeting

II. Abbreviations

III. Basis and Purpose

IV. Background

V. Discussion of Proposed Rule

VI. Regulatory Analyses

A. Regulatory Planning and Review

B. Small Entities

C. Assistance for Small Entities

D. Collection of Information

E. Federalism

F. Unfunded Mandates Reform Act

G. Taking of Private Property

H. Civil Justice Reform

I. Protection of Children

J. Indian Tribal Governments

K. Energy Effects

L. Technical Standards

M. Environment

I. Public Participation and Request for Comments Back to Top

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

A. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2013-1057), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov and insert “USCG-2013-1057” in the “Search” box. Click on “Submit a Comment” in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

B. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov and insert “USCG-2013-1057 in the “Search” box. Click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

C. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

D. Public Meeting

We do not plan to hold a public meeting. You may submit a request for one to the docket using one of the methods specified under ADDRESSES. In your request, explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

II. Abbreviations Back to Top

BSEEBureau of Safety and Environmental Enforcement

COICollection of information

DHSDepartment of Homeland Security

DPDynamic positioning

E.O.Executive Order

FRFederal Register

MODUMobile offshore drilling unit

NPRMNotice of proposed rulemaking

OCSOuter Continental Shelf

OIRAOffice of Information and Regulatory Affairs

OMBOffice of Management and Budget

§ Section symbol

U.S.C.United States Code

III. Basis and Purpose Back to Top

The legal basis for this rulemaking is 43 U.S.C. 1333(d)(1), which authorizes the Secretary of the Department in which the Coast Guard is operating to promulgate and enforce necessary and reasonable regulations relating to the promotion of safety of life and property on Outer Continental Shelf (OCS) units and adjacent waters. The Secretary's authority is delegated to the Coast Guard by Department of Homeland Security Delegation No. 0170.1 (90).

The purpose of this notice of proposed rulemaking (NPRM) is to propose changes to Coast Guard regulations to improve the Coast Guard's ability to capture data on casualties that occur on the U.S. OCS. That data is essential to analyze the effectiveness of current Coast Guard regulations on OCS safety and for any future improvements to those regulations.

IV. Background Back to Top

In 33 CFR subchapter N (33 CFR parts 140-147), the Coast Guard regulates OCS facilities, vessels, and other units engaged in OCS activities (collectively, “OCS units”) on the U.S. OCS. See 33 CFR 140.3. The U.S. OCS includes “all submerged lands lying seaward and outside of the area of `lands beneath navigable waters' as defined in section 2(a) of the Submerged Lands Act (43 U.S.C. 1301(a)) and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” 33 CFR 140.10. OCS activity is defined as “any offshore activity associated with exploration for, or development or production of, the minerals of the Outer Continental Shelf.” 33 CFR 140.10. Subchapter N applies to offshore activity conducted by U.S.- or foreign-flag OCS units. [1]

Under 33 CFR 146.30, the owner, operator, and person in charge of an OCS facility (other than a mobile offshore drilling unit (MODU), see 33 CFR 146.1) must report to the Coast Guard as soon as possible any casualties involving death, injury to five or more persons in a single incident, incapacitation of any person for more than 72 hours, damage to primary lifesaving or firefighting equipment, and certain other property damage in excess of $25,000. Under 33 CFR 146.35, the initial notice of casualty report required in § 146.30 must be followed up in writing with, among other information, a description of the factors that may have contributed to the casualty, including any “alcohol or drug involvement as specified in the vessel casualty reporting requirements of 46 CFR 4.05-12.” 33 CFR 146.35(a)(7).

Under 33 CFR 146.303, the owner, operator, or person in charge of a vessel [2] (including a MODU) engaged in OCS activities must report to the Coast Guard as soon as possible casualties involving death, injury to five or more persons in a single incident, or the incapacitation of any person for more than 72 hours.

The Coast Guard also has existing marine casualty reporting regulations in 46 CFR part 4. Part 4 applies to any marine casualty that “occurs upon the navigable waters of the United States, its territories or possessions” or that involves “any United States vessel wherever such casualty or accident occurs.” 46 CFR 4.03-1(a). Generally, the navigable waters of the United States cover the U.S. territorial seas and internal waters, and not the waters of the U.S. OCS. 33 CFR 2.36(a). [3] Thus, part 4 applies to U.S.-flag OCS vessels, but, in general, does not apply to foreign-flag OCS vessels operating on the U.S. OCS. [4] Nor does part 4 apply to OCS facilities or other OCS units.

Under 46 CFR 4.05-1, “immediately after the addressing of resultant safety concerns,” a vessel's “owner, agent, master, operator, or person in charge” must report to the Coast Guard most casualties involving grounding, allision, loss of propulsion or vessel maneuverability, impacts to vessel seaworthiness or fitness for service or route, loss of life, injury requiring professional medical treatment, property damage in excess of $25,000, or “significant harm to the environment” as defined in 46 CFR 4.03-65. The initial report under § 4.05-1 must be followed within 5 days by a written report that must discuss any alcohol or drug involvement. See 46 CFR 4.05-10(a), 4.05-12(a).

Table 1 highlights the relative Coast Guard marine casualty reporting requirements of 33 CFR part 146 and 46 CFR part 4. (Please note that the Department of the Interior's Bureau of Safety and Environmental Enforcement (BSEE) also requires OCS lessees and right-of-way holders to report incidents addressed in BSEE regulations at 30 CFR 250.188. The BSEE's regulations cover only those OCS units that are permanently or semi-permanently attached to the seabed or subsoil of the OCS, not vessels. The Coast Guard and the BSEE work together to ensure that duplicative reporting is not required.)

Table 1—Coast Guard Marine Casualty Reporting Requirements Back to Top
Topic Coast Guard—33 CFR part 146 Coast Guard—46 CFR part 4
* TERMS USED IN TABLE:
U.S. navigable waters = in general, U.S. internal waters and 12-nautical mile wide zone of U.S.-adjacent waters (see 33 CFR 2.22, 2.36; 46 CFR 4.03-1).
OCS activities = any offshore activity associated with exploration for, or development or production of, the minerals of the Outer Continental Shelf (see 33 CFR 140.10).
OCS unit = a facility, vessel, or other unit engaged in OCS activities (see 33 CFR 140.10).
Statutory authority 43 U.S.C. 1333 43 U.S.C. 1333; 46 U.S.C. 2103, 2303a, 2306, 6101, 6301.
Applies to— U.S. or foreign OCS unit * engaged in OCS activities.* 33 CFR 140.3, 146.1, 146.301 U.S. or foreign vessel on U.S. navigable waters,* or U.S. vessel on any waters. 46 CFR 4.03-1.
Reportable casualties Death Injuries to 5+ persons Incapacitation >72 hours; Property damage >$25,000 (facilities only). Vessel in distress/loss of communication with vessel. Death Injury Property damage >$25,000 Grounding.
33 CFR 146.30, 146.303. Allision.
Loss of—
• Main propulsion.
• Primary steering.
• Associated systems/components affecting maneuverability.
Impairment of—
• Vessel operation.
• Vessel components.
• Cargo.
Material/adverse impact to vessel's—
• Seaworthiness.
• Fitness for service.
• Fitness for route.
• Examples—fire, flooding, failure of/damage to fire extinguishing, lifesaving, auxiliary power, bilge pumping systems.
Significant harm to the environment (defined in 46 CFR 4.03-65).
46 CFR 4.04-1, 4.04-2, 4.05-1.
When to report As soon as possible. 33 CFR 146.30, 146.303. Immediately after addressing resultant safety concerns. 46 CFR 4.05-1.
Subsequent reports Within 10 days, describe possible contributing factors. 46 CFR 146.35, 146.303. Within 5 days, written casualty report required; must describe role of any alcohol/drug use. 46 CFR 4.05-10, 4.05-12.
Alcohol/drug testing Required. 46 CFR 146.35, 146.303. Required. 46 CFR 4.05-12.

V. Discussion of Proposed Rule Back to Top

The effective formulation of Coast Guard policy to maintain a safe working environment on the U.S. OCS requires collecting and analyzing casualty data. However, our data collection is compromised because, today, there is a disparity between the general marine casualty reporting provisions of 46 CFR part 4 and the casualty reporting provisions of 33 CFR part 146, which apply only to OCS activities. Currently, foreign-flag OCS units must report casualties only under 33 CFR part 146, whereas U.S.-flag OCS units are subject to 33 CFR part 146 and also to the broader reporting requirements of 46 CFR part 4. We are concerned that some marine casualties on the U.S. OCS go unreported because, at present, much of the OCS activity on the U.S. OCS is conducted by foreign-flag OCS units.

To illustrate the difference in how U.S.- and foreign-flag OCS units are required to report casualties, consider dynamic positioning (DP) systems. OCS vessels increasingly use DP which, through the use of global positioning systems, operates vessel thrusters, steering, and main propulsion to keep the unit, albeit still underway, in a desired location, unanchored, while it engages in OCS activity. If a U.S.-flag OCS vessel loses its primary and backup DP capability so that it can no longer maintain its location, the loss is a reportable marine casualty because it reduces the vessel's maneuverability. See 46 CFR 4.05-1(a)(3). [5] However, the same incident on a foreign-flag OCS vessel is not reportable under 33 CFR 146.303 unless it results in death, multiple injuries, or an individual's lengthy incapacitation. This disparity between the reporting requirements of 33 CFR part 146 and 46 CFR part 4 prevents the Coast Guard from collecting data on many incidents that have significant safety implications for the U.S. OCS environment and the lives of U.S. citizens and resident aliens working there.

In April 2010, explosions on the Deepwater Horizon, a foreign-flag MODU, in Gulf of Mexico-U.S. OCS waters led to fire, the sinking of the MODU, 11 deaths, and the largest oil spill in U.S. history. In 2008, the Deepwater Horizon had two separate incidents involving flooding and total loss of power that a U.S.-flag MODU would have been required to report under 46 CFR 4.05-1, but which, under 33 CFR 146.303, did not constitute reportable marine casualties and were not investigated by the MODU's flag state or by the Coast Guard. Following the 2010 incident, Coast Guard investigators concluded that the casualty reporting requirements for foreign-flag OCS units found in 33 CFR part 146 were “insufficient,” and that, had the 2008 incidents been investigated, important contributing factors in the 2010 disaster could have been brought to light and remedied. The investigators recommended that the Coast Guard “revise the current marine casualty reporting requirements and drug testing requirements for foreign-flag MODUs operating on the OCS and make them consistent with the requirements for U.S.-flag MODUs.” [6]

We do not suggest that the proposed rule by itself would have prevented the Deepwater Horizon disaster, but the proposed rule is in line with the investigators' recommendation. It would also place all OCS units, whether U.S flag. or foreign flag, on the same regulatory footing with respect to casualty reporting, thereby increasing the likelihood that we will have more complete casualty data for incidents occurring on the U.S. OCS.

We propose the following regulatory amendments.

In 33 CFR, proposed § 140.50 would effectively transfer marine casualty reporting requirements for OCS units from 33 CFR subchapter N to 46 CFR part 4. Section 140.50 would also refer regulated parties to other Coast Guard regulations that must be followed in the event an incident occurs that involves a “commercial diving operation,” a “hazardous condition,” or an “occurrence which poses an imminent threat of oil pollution.” We propose removing existing 33 CFR 146.30, 146.35, 146.40, 146.45, 146.301, and 146.303, all of which address marine casualties and accidents.

We propose amending 46 CFR 4.01-1 to state that, in general and with respect to the OCS, part 4 applies to all OCS units, not just OCS vessels.

In 46 CFR 4.03-1, we propose deleting the introductory language and modifying the existing language of paragraph (a) and the introductory language of paragraph of (b), for greater clarity, but without substantive change. We also propose adding a new paragraph (a)(3) so that the term “marine casualty or accident” specifically includes casualties or accidents involving OCS units engaged in OCS activities.

We propose adding 46 CFR 4.03-8 to define “OCS unit” as it is defined in 33 CFR 140.10, modified only to reflect the definitions of “OCS activity” and “OCS facility” found in § 140.10. Because 46 CFR part 4 currently lacks a general definition for “vessel,” we propose adding new 46 CFR 4.03-9 to define “vessel” as it is defined in 1 U.S.C. 3 and 46 U.S.C. 2101 and to explain that, for the purposes of part 4, “vessel” includes OCS units unless regulatory text specifically excludes them.

We propose adding 46 CFR 4.05-1(a)(9)-(a)(11) to require notice in the event of any marine casualty listed in 46 CFR 4.03-1(a). As we propose in 33 CFR 140.50, we would also refer regulated parties to other Coast Guard regulations that must be followed in the event an incident occurs that involves a “commercial diving operation,” a “hazardous condition,” or an “occurrence which poses an imminent threat of oil pollution.”

Finally, we propose amending 46 CFR 109.411 so that MODUs, like other OCS units, would be subject to the marine casualty and accident provisions of 46 CFR part 4, except insofar as existing 46 CFR 109.415 provides MODU-specific record retention requirements in the event of a casualty.

VI. Regulatory Analyses Back to Top

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.

A. Regulatory Planning and Review

Executive Orders 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. Nonetheless, we developed an analysis of the costs and benefits of the proposed rule to ascertain its probable impacts on industry. We consider all estimates and analysis in this Regulatory Analysis to be preliminary and subject to change in consideration of public comments. A preliminary regulatory assessment follows:

The proposed rule would amend current Coast Guard regulations under which foreign-flag OCS units are subject only to the relatively limited marine casualty reporting requirements of 33 CFR subchapter N, while U.S.-flag OCS units are subject to the broader reporting requirements of 46 CFR part 4. The proposed amendments would place both U.S.- and foreign-flag OCS units under the 46 CFR part 4 reporting requirements.

Affected Population

A breakdown of the affected population appears below.

Table 2—Foreign Vessel and Floating Facility Population Back to Top
Unit class Frequency
Industrial Vessels7 310
Oil Recovery Vessels8 9
MODUs9 73
Vessel Subtotal 319
Floating OCS Facilities10 28
Total Vessels and Facilities 420

All ofthe units affected by this proposed rule are foreign-flag. No U.S.-flag OCS units are affected by this proposed rule because they are currently covered by these requirements.

Costs

Forms CG-2692, CG-2692A, and CG-2692B

The proposed rule would require owners, operators, masters, or persons in charge of foreign-flag OCS units and U.S. OCS units, engaged in OCS activities, to provide timely notification by telephone or radio, or via third party, and complete the associated marine casualty reporting forms: Form CG-2692 and, as appropriate, Forms CG-2692A (Barge Addendum) and CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident). The instructions on Form CG-2692 currently state that vessels need to report, “A. All accidental groundings and any intentional grounding which also meets any of the other reporting criteria or creates a hazard to navigation, the environment, or the safety of the vessel; B. Loss of main propulsion or primary steering, or an associated component or control system, the loss of which causes a reduction of the maneuvering capabilities of the vessel. Loss means that systems, component parts, subsystems, or control systems do not perform the specified or required function; C. An occurrence materially and adversely affecting the vessel's seaworthiness or fitness for service or route including but not limited to fire, flooding, failure or damage to fixed fire extinguishing systems, lifesaving equipment or bilge pumping systems; D. Loss of life; E. An injury that requires professional medical treatment (beyond first aid) and, if a crewmember on a commercial vessel, that renders the individual unfit to perform routine duties; F. An occurrence not meeting any of the above criteria but resulting in damage to property in excess of $25,000. Damage cost includes the cost of labor and material to restore the property to the condition which existed prior to the casualty, but it does not include the cost of salvage, cleaning, gas freeing, drydocking or demurrage.” The instructions also state for MODUs, “3. MODUs are vessels and are required to report an accident that results in any of the events listed by Instruction 2-A through 2-F for vessels.” The instructions continue for OCS facilities: “4. All OCS facilities (except mobile offshore drilling units) engaged in mineral exploration, development or production activities on the Outer Continental Shelf of the U.S. are required by 33 CFR 146.30 to report accidents resulting in: A. Death; B. Injury to 5 or more persons in a single incident; C. Injury causing any person to be incapacitated for more than 72 hours; D. Damage affecting the usefulness of primary lifesaving or fire fighting equipment; E. Damage to the facility in excess of $25,000 resulting from a collision by a vessel; F. Damage to a floating OCS facility in excess of $25,000. 5. Foreign vessels engaged in mineral exploration, development or production on the U.S. Outer Continental Shelf, other than vessels already required to report by Instructions 2 and 3 above, are required by 33 CFR 146.303 to report casualties that result in any of the following: A. Death; B. Injury to 5 or more persons in a single incident; C. Injury causing any person to be incapacitated for more than 72 hours.” Finally, Form CG-2692 has instructions for foreign vessels, “5. Foreign vessels engaged in mineral exploration, development or production on the U.S. Outer Continental Shelf, other than vessels already required to report by Instructions 2 and 3 above, are required by 33 CFR 146.303 to report casualties that result in any of the following: A. Death; B. Injury to 5 or more persons in a single incident; C. Injury causing any person to be incapacitated for more than 72 hours.”

Under this proposed rule, Form CG-2692 would require both U.S.-flag and foreign-flag OCS units to report casualties beyond those required by existing regulatory requirements, which at present are limited to the relatively narrow casualty reporting requirements of 33 CFR part 146, instead of the broader reporting requirements of 46 CFR part 4 that apply to U.S.-flag OCS units. This NPRM proposes extending the 46 CFR part 4 requirements to foreign-flag OCS units. All U.S.-flag OCS vessels already comply with these requirements. The Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database contains 45 casualty incident reports from foreign-flag OCS units in 1 year, demonstrating some level of current compliance with the proposed requirements. However, experience with the Deepwater Horizon MODU in 2008 (before the 2010 casualty resulting in the loss of that MODU) indicates that not all foreign-flag OCS units are voluntarily reporting casualties. The proposed requirements are expected to result in a greater level of reporting by owners, operators, masters, or persons in charge of foreign-flag OCS units.

To estimate the greater level of reporting and associated costs that would be expected by owners, operators, masters, or persons in charge of foreign-flag OCS units under the proposed rule, we compared the relative number of reports from foreign-flag OCS units under other requirements to the number of reports from U.S.-flag OCS units. We extrapolated the ratio of reporting between U.S.- and foreign-flag MODUs under current regulations to project the level of additional reporting for foreign-flag MODUs under the proposal. We collected data from MISLE for all Forms CG-2692 received by the Coast Guard in 1 year. We have 391 forms reported by foreign-flag MODUs and 239 forms reported by U.S.-flag MODUs. Foreign-flag OCS units reported 346 incidents that are required to be reported by current regulations, and 45 reports for incidents voluntarily reported that would be required under the proposed rule. U.S.-flag OCS units reported 239 incidents, with 199 incidents of the same category as the 346 reported by foreign-flag OCS units, and 40 incidents of the same category as the 45 voluntary reports by foreign-flag OCS units. The foreign-flag OCS units reported approximately 63 percent of the current required reports (63 percent = [346/(346 + 199) × 100]). If we assume the ratio would remain the same for reports of incidents that would be required in the proposed regulation, foreign-flag OCS units would report approximately 70 incidents per year (70 = 40 × 346/199), or 25 more than the 45 per year currently being reported voluntarily. [11]

Table 2—Form CG-2692 Baseline Reporting Behavior Back to Top
OCS Units Currently required reporting for both foreign and U.S. Other reporting Total number of forms submitted
* Current voluntary reporting by foreign-flag OCS units.
** Currently required by U.S.-flag OCS units.
Foreign-flag 346 * 45 391
U.S.-flag 199 ** 40 239

We assume the industry time needed to complete Form CG-2692 is 1 hour, based on ICR 1625-0001. Form CG-2692 is a machine-writable PDF form that can be transmitted by email, fax, or letter. The Coast Guard estimates that the cost to complete Form CG-2692 is $27. [12]

At a unit cost of $27, the 1-year industry cost for this proposed rule is $675 (= $27 × 25). The 10-year undiscounted industry cost is $6,750. The 10-year discounted industry cost is approximately $5,758 at a 3-percent discount rate, and $4,741 at a 7-percent discount rate.

We estimate that the government will incur costs to process these reports. We estimate that the average hourly wage rate is $42 dollars. [13] We estimate that the time to process the report is 1 hour. The 1-year cost for the government is approximately $1,050 (= $42 per hour × 1 hour × 25 reports). The 10-year undiscounted government cost is approximately $10,500. The 10-year discounted government cost is approximately $8,957 at a 3-percent discount rate, and $7,375 at a 7-percent discount rate.

The total private sector and government 10-year undiscounted cost for the proposed rule is approximately $17,250. Annualized costs (private sector and government) are approximately $1,725 at both 3- and 7-percent discount rates.

Chemical Testing

The requirements for chemical testing following a serious marine incident (as defined in 46 CFR 4.03-2) would be extended to foreign-flag OCS units engaged in OCS activities. The Coast Guard has identified two serious marine incidents in 2010, seven in 2011, and two in 2012 involving foreign-flag OCS units engaged in OCS activities. We do not expect that serious marine incidents, because of their nature, go unreported by owners, operators, masters, or persons in charge of foreign-flag OCS units. After each of these incidents, the owner, operator, master, or person in charge voluntarily submitted the required chemical testing of the involved crew members to the Coast Guard. We know that foreign-flag OCS units engaged in OCS activities currently report serious marine incidents and conduct post-incident chemical tests, and we expect that behavior to continue. Therefore, the Coast Guard estimates that industry would not incur additional costs to comply with the chemical testing provisions of this proposed rule.

Benefits

The proposed rule addresses the Coast Guard's concern that incidents involving foreign-flag OCS units are underreported. These incidents may not be “serious marine incidents” as defined in 46 CFR 4.03-2; nevertheless, it may be important for the Coast Guard to be aware of them. After the 2010 Deepwater Horizon incident—a serious marine incident in which 11 persons died and which resulted in an oil spill of national significance—the Coast Guard discovered that the Deepwater Horizon had two prior marine casualties in 2008, neither of which were “serious marine incidents” but which nevertheless pointed to problems with the Deepwater Horizon's safety and ability to respond to safety incidents. These two prior casualities in 2008 were not reported to the Coast Guard. This proposed rule would extend the marine casualty reporting requirements of 46 CFR part 4 to foreign-flag OCS units that currently are subject only to the relatively limited reporting requirements of 33 CFR part 146, essentially aligning the regulations with the current instructions of associated Forms CG-2692, CG-2692A and CG-2692B. The benefits of compliance would be improved maritime domain awareness. We have long recognized that provision of adequate maritime safety, security, and environmental protection requires timely reporting of casualties to provide the Coast Guard and other stakeholders with information needed to plan contingencies, evaluate risk, conduct trend analysis, and provide timely information.

B. Small Entities

Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The proposed rule would not impact any U.S. entities. We estimate that 25 foreign-flag OCS units could incur an annual cost of $27. For these annual costs to have a significant economic impact on these entities, the foreign-flag OCS units would need to have annual revenues less than $2,700 per year.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

We are interested in the potential impacts from this proposed rule on small businesses and we request public comment on these potential impacts. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why, how, and to what degree you think this proposed rule would have an economic impact on you.

C. 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 this proposed rule so that they can better evaluate its potential effects on them, if any, and participate in the rulemaking. If you believe this proposed rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please submit a comment to the Docket Management Facility at the address under ADDRESSES. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard. Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

D. Collection of Information.

This proposed rule would call for no new collection of information (COI) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) but would increase the number of affected facilities and the burden for an existing COI number 1625-0001, as described below.

Title: Marine Casualty Information & Periodic Chemical Drug and Alcohol Testing of Commercial Vessel Personnel

OMB Control Number: 1625-0001

Summary of the Collection of Information:

This proposed rule would require responses such as the preparation of written notification in the form of a CG-2692, Report of Marine Accident, Injury, or Death, and the maintenance of records. The collection of information would aid the regulated public in assuring safe practices.

Need for Information: We need this information to determine whether an entity is meeting the regulatory requirements.

Proposed Use of Information: We would use this information to capture data on casualties that occur on the U.S. OCS.

Description of the Respondents: The respondents are owners and operators of foreign-flag units engaged in OCS activities.

Number of Respondents: This collection of information applies to owners and operators of foreign-flag units engaged in OCS activities. We estimate the maximum number of respondents affected by this proposed rule to be 25 per year.

Frequency of Response: The development of the notification is only required if a marine casualty occurs as defined in these parts.

Burden of Response: We estimate that the development of the notification would take a given owner/operator 1 hour to complete the CG-2692.

Estimate of Total Annual Burden: We estimate the number of responses would increase by 25 per year. Therefore, the proposed rule would increase the annual burden by 25 hours.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we will submit a copy of this proposed rule to the Office of Management and Budget (OMB) for its review of the collection of information.

We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES, by the date under DATES.

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the Coast Guard could enforce the collection of information requirements in this proposed rule, OMB would need to approve the Coast Guard's request to collect this information.

E. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis is explained below.

Congress specifically granted the authority to regulate artificial islands, installations, and other devices permanently or temporarily attached to the Outer Continental Shelf (OCS) and in the waters adjacent thereto as it relates to the safety of life to the Secretary of the Department in which the Coast Guard is operating. 43 U.S.C. 1333(d)(1) states that the Secretary “shall have the authority to promulgate and enforce such reasonable regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safety of life and property on the artificial islands, installations, and other devices . . . as he may deem necessary.” As this proposed rule would improve the Coast Guard's ability to collect and analyze casualty data for incidents on the OCS in order to maintain and improve safety of life on OCS installations, it falls within the scope of authority Congress granted exclusively to the Secretary. This authority has been delegated to the Coast Guard and is exercised in this rulemaking, and the States may not regulate within this category of marine casualty reporting. Therefore, the rule is consistent with the principles of federalism and preemption requirements in Executive Order 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process.

Therefore, the Coast Guard invites State and local governments and their representative national organizations to indicate their desire for participation and consultation in this rulemaking process by submitting comments to this NPRM. In accordance with Executive Order 13132, the Coast Guard will provide a federalism impact statement to document: (1) The extent of the Coast Guard's consultation with State and local officials who submit comments to this proposed rule; (2) a summary of the nature of any concerns raised by State or local governments and the Coast Guard's position thereon; and (3) a statement of the extent to which the concerns of State and local officials have been met. We will also report to the Office of Management and Budget any written communications with the States.

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 1 year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

G. Taking of Private Property

This proposed rule would not cause 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

J. Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

M. Environment

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This rule is likely to be categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a) and (d) of the Instruction. This proposed rule involves regulations which are editorial and regulations concerning documentation and equipping of vessels. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

List of Subjects Back to Top

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 140 and 146 and 46 CFR parts 4 and 109 as follows:

begin regulatory text

TITLE 33—NAVIGATION AND NAVIGABLE WATERS Back to Top

PART 140—GENERAL Back to Top

1.The authority citation for part 140 continues to read as follows:

Authority:

43 U.S.C. 1333, 1348, 1350, 1356; Department of Homeland Security Delegation No. 0170.1.

2.Add § 140.50 to read as follows:

§ 140.50 Marine casualties or accidents.

With respect to any marine casualty or accident, as defined in 46 CFR 4.03-1, each unit is subject to the other definitions and requirements contained in 46 CFR part 4. In addition, with respect to a marine casualty or accident involving—

(a) A “commercial diving operation” as defined in 46 CFR 197.204, the unit is subject to 46 CFR 197.484 and 197.486;

(b) A “hazardous condition” as defined in 33 CFR 160.204, the unit is subject to 33 CFR 160.215; and

(c) An “occurrence which poses an imminent threat of oil pollution” as defined in 33 CFR 135.303, the unit is subject to 33 CFR 135.305 and 135.307.

PART 146—OPERATIONS Back to Top

3.The authority citation for part 146 continues to read as follows:

Authority:

33 U.S.C. 1223, 1226; 43 U.S.C. 1333, 1348, 1350, 1356; Sec. 109, Pub. L. 109-347, 120 Stat. 1884; Department of Homeland Security Delegation No. 0170.1.

§§ 146.30-146.45 [Removed]

4.Remove §§ 146.30, 146.35, 146.40, and 146.45.

end regulatory text

Subpart D [Removed and Reserved] Back to Top

begin regulatory text

5.Remove and reserve subpart D, consisting of §§ 146.301 and 146.303.

TITLE 46—SHIPPING Back to Top

PART 4—MARINE CASUALTIES AND INVESTIGATIONS Back to Top

6.The authority citation for part 4 continues to read as follows:

Authority:

33 U.S.C. 1231; 43 U.S.C. 1333; 46 U.S.C. 2103, 2303a, 2306, 6101, 6301, and 6305; 50 U.S.C. 198; Department of Homeland Security Delegation No. 0170.1. Subpart 4.40 issued under 49 U.S.C. 1903(a)(1)(E).

7.Amend § 4.01-1 by designating the existing text as paragraph (a) and adding paragraph (b) to read as follows:

§ 4.01-1 Scope of regulation.

* * * * *

(b) This part applies to any Outer Continental Shelf (OCS) unit as defined in 46 CFR 4.03-8, and every provision of this part is applicable to OCS units unless the provision explicitly states that OCS units are excepted.

7.Amend § 4.03-1 by removing the introductory text and by revising paragraph (a) and the introductory text of paragraph (b) to read as follows:

§ 4.03-1 Marine casualty or accident.

(a) As used in this part, marine casualty or accident means any casualty or accident, involving any vessel other than a public vessel, or any Outer Continental Shelf (OCS) unit, as follows:

(1) A U.S.- or foreign-flag vessel on the navigable waters of the United States or its territories or possessions;

(2) A U.S.-flag vessel on any waters;

(3) A U.S.-flag or foreign-flag OCS unit that is engaged in an “OCS activity” as defined in 33 CFR 140.10; or

(4) A foreign-flag tank vessel operating in waters subject to the jurisdiction of the United States, including the Exclusive Economic Zone, when the casualty or accident involves significant harm to the environment or material damage affecting the seaworthiness or efficiency of the vessel.

(b) As used in paragraph (a) of this section, “any casualty or accident” applies to any event caused by or involving a vessel and includes, but is not limited to, the following:

* * * * *

8.Add § 4.03-8 to read as follows:

§ 4.03-8 OCS unit, OCS facility.

(a) As used in this part, “OCS unit” means any U.S. or foreign Outer Continental Shelf (OCS) facility as defined in this section, and any vessel, rig, platform, or other vehicle or structure, installation, or device, U.S. or foreign-flag, engaged directly in any offshore activity associated with exploration for, or development or production of, the minerals of the OCS, or in support of and in waters adjacent to any unit directly so engaged. The term includes a mobile offshore drilling unit when in contact with the seabed of the OCS for exploration or exploitation of subsea resources. The term does not include any pipeline or deepwater port (as the term “deepwater port” is defined in section 3(10) of the Deepwater Port Act of 1974 (33 U.S.C. 1502)).

(b) As used in this part, “OCS facility” means any artificial island, installation, or other device permanently or temporarily attached to the subsoil or seabed of the OCS, erected for the purpose of exploring for, developing, or producing resources therefrom; any vehicle, structure, installation, or device engaged in OCS activities and located in the waters adjacent to such a facility; or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources.

9.Add § 4.03-9 to read as follows:

§ 4.03-9 Vessel.

As used in this part, “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water; it also includes any “OCS unit” as defined in § 4.03-8 of this subpart, unless the text explicitly states that such an OCS unit is excepted.

10.Amend § 4.05-1 as follows:

a. In paragraph (a)(6), after the words “to perform his or her routine duties;”, remove the word “or”;

b. In paragraph (a)(7), after the words “drydocking, or demurrage”, remove the punctuation mark “.” and add, in its place, the punctuation mark “;”;

c. In paragraph (a)(8), after the words “as defined in § 4.03-65”, remove the punctuation mark “.” and add, in its place, the text “; or”; and

d. Add new paragraphs (a)(9), (a)(10), and (a)(11) to read as follows:

§ 4.05-1 Notice of Marine Casualty.

(a) * * *

(9) Any occurrence that constitutes a “marine casualty or accident” as defined in 46 CFR 4.03-1 or that involves a marine casualty described in this paragraph (a), and that involves a “commercial diving operation” as defined in 46 CFR 197.204; in which case the notification required by this section is also subject to 46 CFR 197.484 and 197.486;

(10) Any occurrence that constitutes a “marine casualty or accident” as defined in 46 CFR 4.03-1 or that involves a marine casualty described in this paragraph (a), and that involves a “hazardous condition” as defined in 33 CFR 160.204; in which case the notification required by this section is also subject to 33 CFR 160.215; or

(11) Any occurrence that constitutes a “marine casualty or accident” as defined in 46 CFR 4.03-1 or that involves a marine casualty described in this paragraph (a), and that involves an “occurrence which poses an imminent threat of oil pollution” as defined in 33 CFR 135.303; in which case the notification required by this section is also subject to 33 CFR 135.305 and 135.307.

* * * * *

PART 109—OPERATIONS Back to Top

11.The authority citation for part 109 continues to read as follows:

Authority:

43 U.S.C. 1333; 46 U.S.C. 3306, 6101, 10104; Department of Homeland Security Delegation No. 0170.1.

12.Revise § 109.411 to read as follows:

§ 109.411 Notice and reporting of casualty.

Except insofar as § 109.415 of this part provides specific record retention requirements for mobile offshore drilling units, each unit is subject to the marine casualty and reporting requirements of 33 CFR 140.50 and 46 CFR part 4.

end regulatory text

Dated: January 3, 2014.

J.C. Burton,

Captain, U.S. Coast Guard, Director of Inspections & Compliance.

[FR Doc. 2014-00278 Filed 1-9-14; 8:45 am]

BILLING CODE 9110-04-P

Footnotes Back to Top

1. Foreign OCS units generally must employ only U.S. citizens or resident aliens engaged in OCS activities. See 33 CFR 141.15(a).

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2. “Vessel means “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 33 CFR 140.10.

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3. For the limited purpose of applying the Federal Water Pollution Control Act, 33 U.S.C. 1321 and 1322, “navigable waters of the United States.” also includes “[o]ther waters over which the Federal Government may exercise Constitutional authority.” 33 CFR 2.36(b).

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4. There is an exception to this general foreign-vessel exemption for certain foreign tank vessel casualties occurring outside U.S. navigable waters but within the U.S. Exclusive Economic Zone (including the U.S. OCS), in 46 CFR 4.05-2(b).

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5. Not every DP incident constitutes a reportable marine casualty. Currently, DP incidents that do not rise to the level of a marine casualty do not need to be reported to the Coast Guard. The Coast Guard intends to develop a rulemaking to address DP incident reporting requirements and minimum DP system design and operating standards, and has published interim voluntary guidance for DP operations and the reporting of DP incidents (77 FR 26562; May 4, 2012).

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6. Report of Investigation into the Circumstances Surrounding the Explosion, Fire, Sinking and Loss of Eleven Crew Members Aboard the MOBILE OFFSHORE DRILLING UNIT DEEPWATER HORIZON— In the GULF OF MEXICO April 20-22, 2010, Volume I, pp. 92, 109 (Conclusion 5.I). With respect to drug testing, it is not a focus of this NPRM. However, by making all OCS units subject to the requirements of 46 CFR part 4, they would all be subject to that part's provisions for alcohol and drug testing in the wake of certain marine casualties, such as 46 CFR 4.05-12 and subpart 4.06.

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7. Obtained via queries of the MISLE (Marine Information for Safety and Law Enforcement) database, maintained by the U.S. Coast Guard.

8. Obtained via queries of the MISLE.

9. Rigzone, http://www.rigzone.com/data/utilization_region.asp, accessed 9/25/2013.

10. Obtained via queries of the MISLE.

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11. The ratio of foreign to domestic OCS required reports is: 346/199 = 1.74. If we assume that ratio holds and we have the number of domestic incidents required by the newly proposed regulation (40), then the equation is as follows: x/40 = 346/199 where x = foreign incidents that will now be required to be reported by the proposed regulation. That equation can then be converted to 199x = 40 × 346 = 13,840. Therefore, x = 13,840/199 = 69.6 foreign incidents that will now be reported. The equation can also be written as follows: 40 × 1.74 = 69.6 rounded to 70. If we add the 40 domestic incidents to the estimated 70 foreign incidents, we get a total of 110. 70/110 equals roughly 63% when rounding throughout the equation.

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12. The cost for completing Form CG-2692 is based on the fully loaded GS-03 out of government rate according to COMDTINST 7310.1N. The level of staff required to complete this form is equivalent to an administrative assistant.

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13. The cost for the government to process Form CG-2692/CG-2692A/CG-2692B is based on the fully loaded E-4 in government rate according to COMDTINST 7310.1N.

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