
[Federal Register: December 29, 2008 (Volume 73, Number 249)]
[Rules and Regulations]               
[Page 79314-79316]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de08-7]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 155 and 156

[Docket No. USCG-2001-9046]
RIN 1625-AB12

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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is removing its regulations for tank level or 
pressure monitoring (TLPM) devices because devices that satisfy 
compliance requirements remain unavailable.

DATES: This final rule is effective January 28, 2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2001-9046 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 find this 
docket on the Internet at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Dolores Pyne-Mercier, Project Manager, Office of Standards 
Evaluation and Development, Project Development Division (CG-5232), 
Coast Guard, telephone 202-372-1093, or e-mail address, Dolores.J.Pyne-
Mercier@uscg.mil. If you have questions on viewing the docket, call 
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Background
    A. Regulatory History
    B. Purpose
III. Discussion of Comments and Changes
IV. 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

FR Federal Register
NEPA National Environmental Policy Act of 1969
NPRM Notice of Proposed Rulemaking
NTTAA National Technology Transfer and Advancement Act
TLPM Tank Level or Pressure Monitoring

II. Background

A. Regulatory History

    In September 2002, the Coast Guard promulgated tank level or 
pressure monitoring (TLPM) device regulations located in 33 CFR parts 
155 and 156. (67 FR 58515). The Final Rule detailed TLPM performance 
criteria and described the vessels required to install and use TLPM 
devices by 2007.
    To date, we have identified no devices meeting the performance 
criteria established in the final rule, and none have been submitted by 
industry for our evaluation. As a result, in July 2005, we published a 
Final Rule (70 FR 41614) suspending the regulations for TLPM devices 
for three years until July 21, 2008. In the final rule, we also 
solicited public comment on the status of TLPM technology development 
and alternatives to TLPM devices. In response, we received two comments 
supporting our suspension of the regulations for TLPM devices and no 
new information on TLPM devices or alternatives. We published another 
Final Rule (73 FR 23397) on May 5, 2008, extending the suspension for 
three additional years until May 5, 2011, to allow time for the current 
rulemaking process to be completed.
    On June 30, 2008, we published a notice of proposed rulemaking 
entitled ``Tank Level or Pressure Monitoring Devices on Single-Hull 
Tank Ships and Single-Hull Tank Barges Carrying Oil or Oil Residue as 
Cargo'' in the Federal Register (73 FR 36825). We received 2 letters 
commenting on the proposed rule. Both commenters supported the Coast 
Guard's decision to remove the TLPM device regulations. No public 
meeting was requested and none was held.

B. Purpose

    For a complete discussion of the background for this final rule, 
see the NPRM published on June 30, 2008 (73 FR 36825, 36826).
    The Coast Guard is removing its regulations for TLPM devices 
because

[[Page 79315]]

devices that satisfy compliance requirements remain unavailable. As 
noted above in section II.A. ``Regulatory History,'' we published a 
final rule suspending Coast Guard regulations for TLPM devices with a 
request for public comments on the status of TLPM technology 
development and other means of detecting leaks from oil cargo tanks 
into the water. We received two comments supporting our suspension of 
the regulations for TLPM devices. We received no new information on 
TLPM devices or alternatives for detecting leaks into the water from 
single-hull tank vessels carrying oil or oil residue as cargo.
    Based on the public response to the suspension, the absence of new 
information regarding TLPM devices or alternatives, and the results of 
a Congressionally-mandated study (available in the docket where 
indicated under ADDRESSES), the Coast Guard revisited the feasibility 
and practicality of retaining regulations for TLPM devices on single-
hull tank vessels and concluded that it is appropriate to remove these 
regulations.

III. Discussion of Comments and Changes

    We received two comments on the NPRM; both were in favor of the 
removal of the TLPM device requirement from the regulations. The Coast 
Guard has made no changes from the NPRM, save a minor edit to the 
authority citation for part 156.

IV. Regulatory Evaluation

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

A. Executive Order 12866

    This 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. The Office of Management and Budget has not 
reviewed it under that Order.
    Public comments on the NPRM are summarized in Part IV of this 
preamble. We received no public comments that would alter our 
assessment of impacts in the NPRM. We have adopted the assessment in 
the NPRM as final. See the ``Regulatory Evaluation'' section of the 
NPRM for the complete analysis.
    This final rule removes the regulations for TLPM devices--a type of 
shipboard equipment that does not currently exist in the marketplace 
and which has no practical alternative. We conclude this rule will have 
no impact on industry.

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.
    We concluded that removing the performance standards for TLPM 
devices and the requirements for their use will not have a significant 
economic impact on a substantial number of small entities since 
industry did not adopt or implement any TLPM provisions. 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.

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 the rule so that they could better evaluate 
its effects on them and participate in the rulemaking.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions of the Coast Guard, call 1-888-REG-FAIR (1-888-734-
3247). The Coast Guard will not retaliate against small entities that 
question or complain about this rule or any policy or action of the 
Coast Guard.

D. 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).

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.
    It is well settled that States may not regulate in categories 
reserved for regulation by the Coast Guard. It is also well settled, 
now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, 
and 8101 (design, construction, alteration, repair, maintenance, 
operation, equipping, personnel qualification, and manning of vessels), 
as well as the reporting of casualties and any other category in which 
Congress intended the Coast Guard to be the sole source of a vessel's 
obligations, are within the field foreclosed from regulation by the 
States. (See the decision of the Supreme Court in the consolidated 
cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 
120 S.Ct. 1135 (March 6, 2000)). This rule removes previously published 
rules on performance standards, and the use of TLPM devices falls into 
the category of vessel equipment and operation. Because the States may 
not regulate within these categories, preemption under Executive Order 
13132 is not an issue.

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 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in the 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.

[[Page 79316]]

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 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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a ``significant energy 
action.'' Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with the applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation: Test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 0023.1 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 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. Therefore, this rule is categorically excluded, under 
section 2.B.2. Figure 2-1, paragraph 34(d), of the Instruction and 
neither an environmental assessment nor an environmental impact 
statement is required. This rule involves the equipping of vessels. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects

33 CFR Part 155

    Alaska, Hazardous substances, Oil pollution, Reporting and 
recordkeeping requirements.

33 CFR Part 156

    Hazardous substances, Oil pollution, Reporting and recordkeeping 
requirements, Water pollution control.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 155 and 156 as follows:

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

0
1. The authority citation for 33 CFR Part 155 and the note following 
citation continue to read as follows:

    Authority: 33 U.S.C. 1231, 1321(j); E.O. 11735, 3 CFR, 1971-1975 
Comp., p. 793. Sections 155.100 through 155.130, 150.350 through 
155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and 
155.1065(g) are also issued under 33 U.S.C. 1903(b). Sections 
155.480, 155.490, 155.750(e), and 155.775 are also issued under 46 
U.S.C. 3703. Section 155.490 also issued under section 4110(b) of 
Pub. L. 101-380.

    Note to Part 155: Additional requirements for vessels carrying 
oil or hazardous materials are contained in 46 CFR Parts 30 through 
40, 150, 151, and 153.

Sec.  155.200  [Amended]

0
2. In Sec.  155.200, remove the definition for ``Sea State 5.''


Sec.  155.490  [Removed and Reserved]

0
3. Remove and reserve Sec.  155.490.

PART 156--OIL AND HAZARDOUS MATERIAL TRANSFER OPERATIONS

0
4. The authority citation for 33 CFR Part 156 is revised to read as 
follows:

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


Sec.  156.120  [Amended]

0
5. In Sec.  156.120, remove paragraph (ee).

    Dated: December 17, 2008.
Brian M. Salerno,
Assistant Commandant for Marine Safety, Security and Stewardship, U.S. 
Coast Guard.
 [FR Doc. E8-30803 Filed 12-24-08; 8:45 am]

BILLING CODE 4910-15-P
