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Rule

Tank Level or Pressure Monitoring Devices on Single-Hull Tank Ships and Single-Hull Tank Barges Carrying Oil or Oil Residue as Cargo

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Information about this document as published in the Federal Register.

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AGENCY:

Coast Guard, DHS.

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ACTION:

Final rule; suspension of regulations.

SUMMARY:

The Coast Guard is suspending for three additional years, until 2011, the regulations in Title 33 Code of Federal Regulations parts 155 and 156 for tank level or pressure monitoring devices on single-hull tank ships and single-hull tank barges carrying oil or oil residue as cargo. This action is required as there are currently no devices on the market that can meet the requirements of the regulation.

DATES:

This rule is effective June 4, 2008.

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FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, contact Ms. Dolores Pyne-Mercier, Systems Engineering Division (CG-5213), Coast Guard, telephone 202-372-1381 or e-mail Dolores.J.Pyne-Mercier@uscg.mil. If you have questions on viewing or submitting material to the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 202-493-0402.

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SUPPLEMENTARY INFORMATION:

Table of Contents

I. Table of Abbreviations

II. Public Participation and Comment

III. Background and Purpose

IV. Discussion of Comments

V. Regulatory Evaluation

A. Administrative Procedure Act

B. Executive Order 12866

C. Small Entities

D. Assistance for Small Entities

E. Collection of Information

F. Federalism

G. Unfunded Mandates Reform Act

H. Taking of Private Property

I. Civil Justice Reform

J. Protection of Children

K. Indian Tribal Governments

L. Energy Effects

M. Technical Standards

N. Environment

I. Table of Abbreviations

APA Administrative Procedure Act

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NEPA National Environmental Policy Act of 1969

NTTAA National Technology Transfer and Advancement Act

OMB Office of Management and Budget

OPA 90 Oil Pollution Act of 1990

TLPM Tank Level or Pressure Monitoring

U.S. United States

U.S.C. United States Code

II. Public Participation and Comment

The Coast Guard did not seek public comment on this final rule as it extends for three additional years, until 2011, a suspension currently in place that has already undergone public comment. We respond to the comments previously received in the Discussion of Comments section of this final rule. We do not plan to hold public meetings for this final rule.

III. Background and Purpose

On July 20, 2005, the Coast Guard published a final rule and request for comments suspending for three years (until July 21, 2008) the regulations in title 33 Code of Federal Regulations (CFR) parts 155 and 156 requiring installation of tank level or pressure monitoring (TLPM) devices on single-hull tank vessels. 67 FR 58515. In that final rule, we explained how Congress amended the language of section 4110 of Oil Pollution Act of 1990 (OPA 90) through the Coast Guard and Maritime Transportation Act of 2004, Public Law 108-293, August 9, 2004. Where the original text of OPA 90 mandated regulations for TLPM devices, the amended language allowed the Coast Guard discretion with respect to requiring these devices. Congress also directed the Coast Guard to study and report on leak detection alternatives. Thus, we suspended for three years the regulations for TLPM devices so that we could revisit those requirements after conducting a study of potential alternatives for detecting leaks from single-hull tank vessels into the water.

We completed our study and submitted our report to Congress, titled “Report to Congress on Costs and Benefits of Alternatives to Tank Level or Pressure Monitoring Devices,” in March 2006. A copy of this report is contained in the docket, USCG-2001-9046. We also notified the public of its availability through a notice published in the Federal Register on November 17, 2006. 71 FR 66960.

We noted in our report that no TLPM devices meeting the performance criteria established in the final rule had been submitted to the Coast Guard for approval, and concluded that no manufacturers are likely to invest in development of a TLPM device because single-hull tank vessels are being phased out under other OPA 90 statutes and international agreements. All single-hull tank vessels are scheduled to be out of service by 2015. On the basis of these conclusions and the cost and benefit analyses from the original 2002 rulemaking, we decided to remove the regulations for TLPM devices and reported a rulemaking for this purpose in the Fall 2007 Semiannual Regulatory Agenda. 72 FR 70066, December 10, 2007. The Agenda entry for that rulemaking (RIN 1625-AB94) can be found online at http://www.reginfo.gov.

As noted above, the current suspension of the regulations on TLPM devices expires July 21, 2008. 67 FR 58515, July 20, 2005. It is unlikely that we will publish a final rule to remove the regulations by that date. However, immediate action is needed to avoid burdening the tank vessel industry with a requirement to install a piece of shipboard equipment that does not currently exist and putting the Coast Guard in the difficult position of trying to enforce such a regulation. Therefore, in this final rule, we are extending the suspension for three additional years until 2011 to allow us time to seek public comment on a proposal to permanently remove the regulations on TLPM devices from the CFR and, if warranted, publish a final rule. We are taking this action because it maintains for us the flexibility to withdraw the suspension if technology improves, a manufacturer decides to pursue approval of a qualifying TLPM device, or the elements of our rationale to suspend the regulations become invalid. This action also allows us to seek public comment on a proposal to permanently remove the regulations for TLPM devices.

IV. Discussion of Comments

We received two comments on our July 20, 2005 final rule to suspend the regulations for TLPM devices. Both commenters strongly supported our actions, and one of the commenters recommended the Coast Guard take steps to permanently remove the regulations.

V. Regulatory Evaluation

We developed this final rule after considering numerous statutes and executive orders related to rulemaking. We summarize our analysis in the following paragraphs based on 13 of these statutes or executive orders.

A. Administrative Procedure Act

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes the agency to issue a rule without notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The agency finds that notice Start Printed Page 24499and public comment to this interim final rule is contrary to the public interest. There is no reason to engage in public notice and comment processes to extend this suspension given that there are no TLPM devices that can satisfy the current requirements.

Engaging in a long process of public notice and comment would also be an impracticable use of scarce agency resources, as there are currently no approved TLPM devices available and therefore no alternatives to extending the suspension. Letting the existing suspension expire while we seek public comment on permanently removing the TLPM device requirement would place an unattainable requirement on vessel owners and operators to purchase and install shipboard equipment that does not exist.

B. Executive Order 12866

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 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 has not reviewed it under that Order. Extending this suspension would not impose any additional cost on the public.

C. 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.

This rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we have reviewed it for potential economic impact on small entities and determined it is unlikely to have any effect on small businesses because extension of the suspension will not impose any costs on the public.

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

D. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L.104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions, please consult Ms. Dolores Pyne-Mercier, Coast Guard Office of Design and Engineering Standards, telephone 202-372-1381. We will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

E. Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. 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.

G. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government in the aggregate, or by the private sector, of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

H. Taking of Private Property

This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

I. 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.

J. 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.

K. 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.

L. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This rule does not affect energy supply, distribution, or use. The Administrator of the Office of Information and Regulatory Affairs has designated this rule as a non-significant regulatory action and it does not require a Statement of Energy Effects under Executive Order 13211.

M. Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with 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 require the use of voluntary consensus standards.

N. Environment

The Coast Guard has analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). We have concluded that this action is not likely to have a significant effect on the human environment and that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe this rule should be categorically excluded from further environmental documentation under Start Printed Page 24500Figure 2-1, paragraph (34) (d) of the Instruction. This rule involves the equipping of vessels. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES.

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List of Subjects

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For the reasons discussed in the preamble, the Coast Guard is amending

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PART 155—OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION REGULATIONS FOR VESSELS

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1. The authority citation for

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Authority: 33 U.S.C. 1231, 1321(j); E.O. 11735, 3 CFR, 1971-1975 Comp., p. 793. Sections 155.100 through 155.130, 150.350 through 155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and 155.1065(g) are also issued under 33 U.S.C. 1903(b). Sections 155.480, 155.490, 155.750(e), and 155.775 are also issued under 46 U.S.C. 3703. Section 155.490 also issued under section 4110(b) of Pub. L. 101-380. Note: Additional requirements for vessels carrying oil or hazardous materials are contained in 46 CFR Parts 30 through 40, 150, 151, and 153.

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2. In § 155.200, suspend the definition for “Sea State 5” from June 4, 2008 until June 6, 2011.

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[Suspended]
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3. Suspend § 155.490 from June 4, 2008 until June 6, 2011.

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PART 156—OIL AND HAZARDOUS MATERIAL TRANSFER OPERATIONS

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4. The authority citation for

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Authority: 33 U.S.C. 1231, 1321(j); 46 U.S.C. 3703a, 3715; E.O. 11735, 3 CFR 1971-1975 Comp., p. 793. Section 156.120(bb) and (ee) are also issued under 46 U.S.C. 3703.

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5. In § 156.120, suspend paragraph (ee) from June 4, 2008 until June 6, 2011.

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Dated: March 31, 2008.

Brian M. Salerno,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, Security and Stewardship.

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[FR Doc. E8-9812 Filed 5-2-08; 8:45 am]

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