
[Federal Register: January 6, 2010 (Volume 75, Number 3)]
[Rules and Regulations]               
[Page 750-753]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja10-7]                         

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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.

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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 http://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]

BILLING CODE 9110-04-P
