Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49603

procedures for modifying the disability

claim process as authorized under

§§ 404.906 and 404.943, and in which

an administrative law judge has issued

a decision (not including a

recommended decision) that is less than

wholly favorable to you.

(b) Effect of an administrative law

judge’s decision. In a case to which the

procedures of this section apply, the

decision of an administrative law judge

will be binding on all the parties to the

hearing unless —

(1) You or another party file an action

concerning the decision in Federal

district court;

(2) The Appeals Council decides to

review the decision on its own motion

under the authority provided in

§ 404.969, and it issues a notice

announcing its decision to review the

case on its own motion no later than the

day before the filing date of a civil

action establishing the jurisdiction of a

Federal district court; or

(3) The decision is revised by the

administrative law judge or the Appeals

Council under the procedures explained

in § 404.987.

(c) Notice of the decision of an

administrative law judge. The notice of

decision the administrative law judge

issues in a case processed under this

section will advise you and any other

parties to the decision that you may file

an action in a Federal district court

within 60 days after the date you receive

notice of the decision.

(d) Extension of time to file action in

Federal district court. Any party having

a right to file a civil action under this

section may request that the time for

filing an action in Federal district court

be extended. The request must be in

writing and it must give the reasons

why the action was not filed within the

stated time period. The request must be

filed with the Appeals Council. If you

show that you had good cause for

missing the deadline, the time period

will be extended. To determine whether

good cause exists, we will use the

standards in § 404.911.

PART 416—SUPPLEMENTAL

SECURITY INCOME FOR THE AGED,

BLIND, AND DISABLED

20 CFR part 416, subpart N, is

amended as follows:

1. The authority citation for subpart N

continues to read as follows:

Authority: Sec. 702(a)(5), 1631, and 1633

of the Social Security Act (42 U.S.C.

902(a)(5), 1383, and 1383b).

2. New § 416.1466 is added under the

undesignated center heading ‘‘APPEALS

COUNCIL REVIEW’’ to read as follows:

§ 416.1466 Testing elimination of the

request for Appeals Council review.

(a) Applicability and scope.

Notwithstanding any other provision in

this part or part 422 of this chapter, we

are establishing the procedures set out

in this section to test elimination of the

request for review by the Appeals

Council. These procedures will apply in

randomly selected cases in which we

have tested a combination of model

procedures for modifying the disability

claim process as authorized under

§§ 416.1406 and 416.1443, and in which

an administrative law judge has issued

a decision (not including a

recommended decision) that is less than

wholly favorable to you.

(b) Effect of an administrative law

judge’s decision. In a case to which the

procedures of this section apply, the

decision of an administrative law judge

will be binding on all the parties to the

hearing unless —

(1) You or another party file an action

concerning the decision in Federal

district court;

(2) The Appeals Council decides to

review the decision on its own motion

under the authority provided in

§ 416.1469, and it issues a notice

announcing its decision to review the

case on its own motion no later than the

day before the filing date of a civil

action establishing the jurisdiction of a

Federal district court; or

(3) The decision is revised by the

administrative law judge or the Appeals

Council under the procedures explained

in § 416.1487.

(c) Notice of the decision of an

administrative law judge. The notice of

decision the administrative law judge

issues in a case processed under this

section will advise you and any other

parties to the decision that you may file

an action in a Federal district court

within 60 days after the date you receive

notice of the decision.

(d) Extension of time to file action in

Federal district court. Any party having

a right to file a civil action under this

section may request that the time for

filing an action in Federal district court

be extended. The request must be in

writing and it must give the reasons

why the action was not filed within the

stated time period. The request must be

filed with the Appeals Council. If you

show that you had good cause for

missing the deadline, the time period

will be extended. To determine whether

good cause exists, we will use the

standards in § 416.1411.

[FR Doc. 97–25124 Filed 9–22–97; 8:45 am]

BILLING CODE 4190–29–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR 157

[CGD 91–045]

RIN 2115–AF51

Operational Measures To Reduce Oil

Spills From Existing Tank Vessels

Without Double Hulls

AGENCY: Coast Guard, DOT.

ACTION: Final rule; response to petitions

for rulemaking.

SUMMARY: On July 30, 1996, the Coast

Guard published a final rule requiring

the owners, masters, or operators of tank

vessels of 5,000 gross tons or more that

do not have double hulls and that carry

oil in bulk as cargo to comply with

certain operational measures. This final

rule included a provision requiring, in

some cases, owner notification of the

vessel’s calculated anticipated underkeel clearance which was scheduled to

go into effect on November 27, 1996.

Following issuance of the final rule, the

Coast Guard received comments, several

in the form of petitions for rulemaking,

expressing concern about the

implementation of the owner

notification portion of the under-keel

clearance provision and requesting an

additional opportunity to comment on

the provision. On November 27, 1996,

the Coast Guard granted this request by

suspending the provision and giving the

public 90 days to comment on the

under-keel clearance requirement in

general. After reviewing the additional

public comments, the Coast Guard

issues a final rule which revises the

under-keel clearance requirement for

single-hull tank vessels and responds to

the petitions for rulemaking.

DATES: This final rule is effective on

January 21, 1998.

ADDRESSES: Documents as indicated in

this preamble are available for

inspection or copying at the office of the

Executive Secretary, Marine Safety

Council (G–LRA/3406), U.S. Coast

Guard Headquarters, 2100 Second Street

SW., room 3406, Washington, DC

20593–0001, between 9:30 a.m. and 2

p.m., Monday through Friday, except

Federal holidays. The telephone number

is 202–267–1477.

FOR FURTHER INFORMATION CONTACT:

LCDR Suzanne Englebert, Project

Manager, Project Development Division,

at 202–267–1492 or LT Brian Willis,

Vessel Compliance Division, at 202–

267–2735.
49604 Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations

SUPPLEMENTARY INFORMATION:

Regulatory History

The regulatory history for this

rulemaking is recounted in the preamble

of the final rule entitled ‘‘Operational

Measures to Reduce Oils Spills from

Existing Tank Vessels without Double

Hulls’’ (61 FR 39770; July 30, 1996).

As the result of the petitions from

industry, the Coast Guard published a

notice in the Federal Register on

November 27, 1996 suspending the

effective date of the owner notification

provision in the under-keel clearance

requirement entitled ‘‘Operational

Measures to Reduce Oil Spills from

Existing Tank Vessels without Double

Hulls; Partial Suspension of Regulation’’

(61 FR 60189) and solicited additional

comments on the entire under-keel

clearance provision contained in the

final rule.

Background and Purpose

Background information on operation

measures for existing vessels without

double hulls is provided in the

preambles to the advance notice of

proposed rulemaking (ANPRM) (56 FR

56284; November 1, 1991), the notice of

proposed rulemaking (NPRM) (58 FR

54870; October 22, 1993), the

supplemental notice of proposed

rulemaking (SNPRM) (60 FR 55904;

November 3, 1995), and the final rule

(61 FR 39770; July 30, 1996).

Discussion of Comments

The Coast Guard received 65 letters

containing over 190 comments on the

under-keel clearance provision of the

operational measures July 1996 final

rule. Two comments strongly supported

the under-keel clearance requirement as

written in the final rule. Two other

comments requested an extension of the

comment period for the partial

suspension. One of these, in addition to

the party’s original petition, requested

specific data from the Coast Guard on

the basis for the requirement. A copy of

the Coast Guard’s response to this

request was added to the docket.

Thereafter, the Coast Guard notified the

public of this addition to the docket and

permitted the public an additional 30

days to comment (62 FR 3463; January

23, 1997).

The following discussion summarizes

the remaining comments and is divided

into the following topics: (1) Removal of

the under-keel clearance requirement;

(2) Owner notification; (3) Applicability;

(4) Economic analysis; (5) Master/pilot

relationship; and (6) Calculations.

1. Removal of the Under-Keel Clearance

Requirement

Fifty-two comments urged the Coast

Guard to eliminate the under-keel

clearance requirement from the

operational measures rulemaking.

Twenty-four comments argued that the

under-keel clearance requirement

circumvents the knowledge and ability

of the master and pilot—parties that

have historically policed themselves

and have the local expertise to safely

command the vessel—and should,

therefore, be removed. Nineteen of these

comments specifically suggested that it

was not necessary for the Coast Guard

to regulate under-keel clearance, since

current industry practice dictates the

responsible performance of under-keel

clearance calculations by the master.

One comment indicated that the

anticipated under-keel clearance

requirement contained in the

operational measures final rule was

similar to the recordkeeping aspects of

the International Safety Management

(ISM) Code and, therefore, redundant.

Another comment contended that the

rules regarding under-keel clearance

were not only unnecessary, but

dangerous, and urged their immediate

removal. The comment explained that to

require a discussion of under-keel

clearance at night could result in the

loss of night vision and create the

potential for more accidents to occur.

The Coast Guard finds that requiring

a master to calculate the anticipated

under-keel clearance of the ship, discuss

the clearance and the transit with the

pilot, and ensure that the decisions

being made on the bridge comply with

company policy reflects good

seamanship. Effective communication

and passage planning are critical for a

large single-hull tankship entering port.

The failure of either can contribute to

accidents as was presented in the

quantitative risk model for the SNPRM.

Thus, an anticipated under-keel

clearance provision was required. It was

recognized in both the SNPRM and the

final rule that many companies, masters,

and pilots conduct ‘‘self-imposed’’

under-keel clearance planning. The

requirement in the final rule ensured all

single-hull tankship masters plan,

consider, and communicate this crucial

aspect of navigation. The current

regulations contained in 33 CFR 164.11

require tankship personnel to set the

vessel’s speed with regard to the vessel’s

maneuverability when there is small

under-keel clearance. They do not

require the specific calculation of

clearance or the planning of the ship’s

transit to identify areas of concern.

Section 164.11 also does not focus the

discussion of the pilot and master on

passage planning or under-keel

clearance. This final rule amends the

original prescriptive calculation

requirement of § 157.455 and removes

the owner notification provision, but

continues to stress the importance of

communications between the pilot and

the master about the vessel’s transit,

including its anticipated under-keel

clearance.

The ISM code requirements also do

not specifically require that tankship

masters calculate the anticipated underkeel clearance of their vessels prior to

entering or leaving port. Therefore, as

required in this final rule, the master’s

consideration of the vessel’s anticipated

under-keel clearance and the owner’s

issuance of company guidance,

complement the ISM code. By

recognizing the owner’s responsibility

in providing safety guidance to the

master and focusing that guidance to the

time single-hull tankships are most at

risk of spilling large quantities of oil

(while maneuvering to or from a facility

or anchorage), this final rule will reduce

the likelihood of future casualties.

The Coast Guard disagrees that the

calculation of anticipated under-keel

clearance or conferring with company

personnel or referring to company

guidance poses a safety risk. Bridge

personnel have checklists, cargo

calculations, pilot information cards,

chart plots, and several other items that

must be completed prior to transiting a

port. During night transits, the

requirements are the same. Consultation

with the company should not pose

difficulty to a master of any ship, in

daylight or at night. If it does, safety is

hindered by other human factors such

as a lack of clearly written guidance, no

local contact personnel, or an ineffective

means of communication on the bridge,

not by an under-keel clearance

requirement. Regardless, the Coast

Guard has amended the anticipated

under-keel clearance requirement by

simply requiring the owner or operator

to provide written guidance to the

tankship master rather than allowing the

option of either written policy or

contacting company personnel. By only

requiring written guidance, the Coast

Guard is ensuring a tankship master no

longer has to worry about not being able

to contact company personnel or leaving

the bridge in order to comply with the

requirement.

Twenty-four comments recommended

that the anticipated under-keel

clearance provision be removed and

replaced with a non-regulatory

requirement that the controlling depth

and proper under-keel clearance be

established by the Captain of the Port
Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49605

(COTP), the pilot, or the Port Authority.

The comments reasoned that these

entities are in the best position to

develop criteria, because of their indepth knowledge of port conditions and

their ability to specify the limiting

factors applicable to a port.

The Coast Guard does not prohibit the

Port Authority or any other port group

from meeting and developing guidance

for tankships. OPA 90 required the

Coast Guard to implement regulatory

measures that were both economically

and technologically feasible for singlehull tankship prior to their phase-out

dates. This final rule implements a

planning tool termed ‘‘anticipated

under-keel clearance’’ for single-hull

tank vessels in order to implement the

requirements of section 4115(b) of OPA

90. This rule does not conflict with any

existing prescribed port authority

under-keel clearance guidance.

One comment argued that the Coast

Guard did not properly substantiate the

operational measures final rulemaking.

The comment proposed that the

administrative record constructed by the

Coast Guard lacked the factual basis to

support a determination to implement

an anticipated under-keel clearance

requirement for single-hull tankships.

The comment argued that an anticipated

under-keel clearance requirement was

not necessary, because lack of clearance

has not been documented as a

contributing factor in any oil spills to

this date. In addition, the comment

contended that the Coast Guard

neglected to give the public due notice

of the anticipated under-keel clearance

owner notification requirement and its

assessment in the final rule.

The regulatory analysis for the

SNPRM was based on a subjective

review of single-hull vessel casualties.

Generally, there are multiple causes for

each accident which are commonly

termed ‘‘chain of events.’’ As explained

in the SNPRM and the final rule

assessment, if a contributory cause of

the reviewed casualty was a lack of

passage planning, including the failure

of the master to review the vessel’s

draft, depth, or route prior to a port

transit, a portion of the spilled oil was

documented as being preventable by use

of an under-keel clearance requirement.

Using the SNPRM’s quantitative risk

assessment, this spilled oil amount was

then reduced by a range of 10 to 23

percent of the original amount to reflect

the predicted effectiveness of the

proposed anticipated under-keel

clearance provision. Predicting the

future avoidance of casualties based on

a risk assessment is an accepted

analytical tool. The fact that a major oil

spill cannot be attributed solely to a lack

of under-keel clearance, does not

indicate that potential benefits from a

focused effort on under-keel clearance

do not exist. The lack of calculating

anticipated under-keel clearance and

discussing the vessel’s route prior to

entering or leaving a port have partially

contributed to past casualties. This past

history is enough to substantiate the

benefits of a passage planning

requirement that focuses on anticipated

under-keel clearance to prevent

groundings by single-hull tankships.

The Coast Guard contends that the

public was afforded due notice and the

opportunity to comment on the

anticipated under-keel clearance

provisions. In the SNPRM the Coast

Guard discussed both the mandatory

passage planning requirement and the

need to involve the vessel’s owner in

making navigation decisions. In fact,

every relevant regulatory document

associated with operational measures

has stressed the importance the Coast

Guard places on owner involvement. In

response to adverse comments to the

SNPRM’s proposed 1⁄2 meter anticipated

under-keel clearance minimum, the

Coast Guard removed the uniform

under-keel clearance requirement and

replaced it with a logical outgrowth of

that concept. Both the assessments and

the source documents for every incident

documented in the assessments were in

the public record and were available to

the public during this rulemaking. The

Coast Guard nevertheless suspended the

under-keel clearance requirement and

allowed an additional comment period

to guarantee that every pubic concern

was thoroughly considered and

addressed before it took this final action

on under-keel clearance for single-hull

tank vessels.

2. Owner Notification

Fifty-four comments urged the Coast

Guard to remove the owner notification

provisions contained in §§ 157.455(a)(5)

and (6) of the operational measures

regulation. The comments argued that

shore-based personnel contacted for a

decision regarding anticipated underkeel clearance could be located

thousands of miles away from the port

and unfamiliar with the maneuvering

characteristics and behavior of the

vessel in a loaded condition. In essence,

they argued that the master may have to

rely on the ‘‘expertise’’ of an unqualified

party in another part of the world, who

may never have been to sea, and may be

half asleep when contacted to make a

decision as to whether a vessel should

proceed. However, ten comments

indicated that, if the Coast Guard

deemed it necessary to regulate underkeel clearance, they would support a

requirement that owners or operators

provide under-keel guidance through a

prescribed policy which could be

consulted by the master during transit.

One comment fully supported the

approach taken by the Coast Guard in

the final rule and endorsed it as valid.

The comment stated that conscientious

operators do, and all operators should,

take under-keel clearance into account

when planning a voyage. The comment

further explained that the pilot’s job is

made easier knowing that the ship has

been loaded with due regard for local

draft limitations and that the master and

the ship’s owner have considered the

limitations in planning the vessel’s

transit.

In the final rule, the Coast Guard

issued a requirement that involved the

owner or operator at the policy level. In

addition, an alternative to supplying

written company policy on under-keel

clearance was provided allowing the

master to contact company personnel.

This measure ensured that company

policy was checked or management was

informed of the vessel’s passage

situation. This final rule removes the

owner notification provision and simply

requires company policy to be provided

to the master. The responsibility for

estimating the anticipated under-keel

clearance along the transit route of the

vessel, including the facility or

anchorage, is now placed on the master.

However, the company policy should

provide the master the guidance needed

to pre-plan the transit and the direct

authority to delay the transit or take any

action necessary to ensure the vessel’s

safe navigation.

Three comments noted what they

perceived as a ‘‘technical defect’’ in the

drafting of § 157.455(a)(6). The

provision states that an owner should

not allow a vessel to proceed if transit

‘‘would not be prudent considering, but

not limited to, the anticipated underkeel clearance, any Captain of the Port

(COTP) under-keel clearance guidance,

and the pilot’s recommended

clearance.’’ The comments contended

that the ‘‘but not limited to’’ phrasing

contained in this section implies that

the owner’s decision to allow a vessel to

proceed could be based on unspecified

criteria in addition to the specified

factors. They argued that since the

provision effectively places legal

responsibility for imprudence in making

under-keel clearance determinations on

the owner or operator of a vessel, the

Coast Guard should be specific as to the

criteria to be applied.

The Coast Guard has removed the

phrase ‘‘but not limited to’’ from the

anticipated under-keel clearance

provision in this final rule. The phrase
49606 Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations

was meant to include such things as

anticipated traffic, ship-specific

maneuvering characteristics with

respect to small under-keel clearances,

or other existing company policies that

may be affected. The company guidance

required in this final rule should cover

these types of contingencies.

3. Applicability

Twenty-one comments requested that

the Coast Guard explicitly limit the

application of the anticipated underkeel clearance requirement to singlehull tankships, and exclude all other

carriers, including, but not limited to,

bulk carriers, general cargo carriers,

container ships, and Roll-on, Roll-off

container ships. In contrast, one

comment recommended use of underkeel clearance guidance for all ships,

not just tankships without double hulls.

The comment explained that some other

types of vessels (e.g., dry cargo vessels)

routinely carry more oil in bunkers than

many tank vessels carry as cargo.

Consequently, the comment argued that

whatever increased protection to the

environment results from requiring

under-keel clearance for single-hull

tankships should be amplified if such

measures are applied to all vessels using

the waterways.

The Coast Guard is acting under the

authority of section 4115(b) of OPA 90

and does not intent to extend

implementation of operational measures

to vessels other than vessels of 5,000

gross tons (GT) or more that do not have

double hulls and that carry oil in bulk

as cargo in this final rule. Implementing

the pre-planning guidance and

communication requirements of this

final rule is prudent on all vessels.

However, this rule only prescribes an

anticipated under-keel requirement for

single-hull tank vessels. If the Coast

Guard deemed it appropriate to expand

the applicability of this rule to other

vessel types, a notice would be issued

in the Federal Register and the public

would be allowed an opportunity to

comment. Currently, many COTPs and

port authorities are working together to

develop non-regulatory solutions to

reducing risk within their waterways.

The public is encouraged to contact

their local COTPs to discuss ongoing

port efforts and become involved in

these issues.

4. Economic Analysis

Eighteen comments questioned the

results of the regulatory analysis

completed by the Coast Guard and

requested that the General Accounting

Office study the economic impact of a

requirement for the establishment of a

minimum under-keel clearance for

single-hull tankships prior to

implementation of a final rule. In

addition, the comments requested that a

small working group, comprised of

representatives from industry and the

Coast Guard, be established specifically

for the purpose of studying the issue of

under-keel clearance. Another comment

also expressed concern about the

potential financial impact of the

anticipated under-keel clearance

requirement, and contended that the

Coast Guard should impose new

regulations only after an attempt to

enforce current regulations fails and a

reasonable risk of harm exists. In

contrast, one comment stated that the

original anticipated under-keel

clearance requirement was reasonable

and consistent with modern practice.

The Coast Guard has revised the

anticipated under-keel clearance

requirement in this final rule to make it

less prescriptive. Because the

requirement in this final rule contains

the original communication and preplanning under-keel clearance focus for

single-hull tank vessels, the Coast Guard

estimates that the benefits from this rule

will remain as originally predicted until

2015 when these vessels no longer

transit in U.S. ports. Because this

requirement reflects current industry

practice and ensures all single-hull

tankships, at the very least, take the

time to plan the vessel’s passage with

respect to under-keel clearance and

discuss it with the pilot, the Coast

Guard does not agree that an additional

economic analysis is needed. If a COTP

deems it necessary to require under-keel

clearance or draft requirements, a cost

analysis would be done and presented

to the public for comment prior to

implementation. Individual or small

industry group participation in local

determinations of this sort are used

extensively by the Coast Guard to help

it develop port requirements.

One comment expressed concern that

Protection and Indemnity (P & I) Clubs

might decline claims resulting from oil

spills based on a determination that an

owner, operator, or representative

employee was privy to an unsafe

practice under the Marine Insurance Act

of 1906. Consequently, the company

holding the Certificate of Financial

Responsibility (COFR), as guarantor,

would be obligated to pay the claim,

causing insurance rates to rise

significantly. As a result, the comment

argued that the cost of obtaining a COFR

should have been included in the cost

calculations for the operational

measures final rule.

The Coast Guard developed the

original anticipated under-keel

clearance requirement to ensure owners

and operators were fully informed of

vessel operations prior to transiting

port. Although this final rule removes

the owner notification provision, it

remains a preventive measure and

focuses on ensuring the master follows

company guidance that contains

appropriate information to navigate

safely. All of the anticipated under-keel

clearance requirements discussed in this

rulemaking have focused on planning

and prevention. Therefore, the original

final rule’s cost analysis has not been

amended to include the cost of

insurance rate increases to those

companies who may be found liable for

future spills due to their own

imprudence.

A separate comment maintained that

the imposition of an anticipated underkeel clearance requirement on the

single-hull tanker fleet would cause a

substantial loss of cargo-carrying

capacity, forcing either an increase in

the fleet size serving U.S. markets, or an

increase in the number of trips required

to move a specific quantity of oil.

According to the comment, the Coast

Guard failed to quantify the cargo loss

factor or evaluate its effects in the final

rule regulatory assessment. The original

final rule assessment estimated the cost

of cargo shut-out for single-hull

tankships. Because industry indicated

that prudent under-keel clearances were

already the standard ‘‘best practice’’ for

the majority of single-hull vessels, the

Coast Guard found that single-hull

tankship traffic would not be notably

increased by the anticipated under-keel

clearance requirement. Therefore, this

cost was not included in the assessment.

5. Master/Pilot Relationship

One comment requested that the

Coast Guard consider allowing the

master to discuss draft, anticipated

under-keel clearance, and passage

planning with the boarding pilot by

radio, cellular phone, or some other

method, prior to the pilot coming on

board. The comment explained that in

most ports, the current pilot boarding

stations are too close, leaving no time

for the pilot to discuss passage planning

prior to proceeding to the channel or

river.

The Coast Guard encourages masters

to contact pilots prior to boarding

stations. The operational measure

requiring pilot cards (§ 157.450) ensures

that discussions between the master and

the pilot occur prior to entering port or

getting underway. This anticipated

under-keel clearance requirement also

requires a discussion between the pilot

and the master. It is the responsibility

of the master to take the time to discuss

the vessel’s passage with the pilot. Safe
Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations 49607

navigation of the vessel hinges on this

discussion as well as the competence of

the bridge team. There is no regulation

that prohibits a master from requesting

the pilot to board early or from

conferring with the pilot by radio or

other means prior to boarding, or

engaging in any other communication

that helps clarify conditions prior to a

port transit.

6. Calculations

Twelve comments expressed

dissatisfaction with the anticipated

under-keel clearance provision relating

to the calculation of squat. Two

comments contended that if squat

characteristics are to be taken into

account for the anticipated under-keel

clearance calculation, the regulations

should incorporate generic squat

equations to avoid the inaccuracies

associated with using empirical

formulas. One comment specifically

recommended that the Coast Guard

establish speed curves for various sizes

and types of vessels to be used in

calculating anticipated under-keel

clearance. Another comment suggested

that the local COTP, in coordination

with the pilots, officially predetermine

the transit speed at each critical

geographical point for each ship type,

size, and draft. The comment contended

that if the COTP did not dictate the

transit speed for the purpose of

calculating squat, artificially low transit

speeds that disregard the steering effect

could be used in order to obtain a

minimum squat value and reduce the

ship’s calculated navigational draft.

Another comment urged the Coast

Guard to prescribe the form of all

required calculations in order to ensure

uniformity of usage throughout

industry, and to facilitate Coast Guard

inspections for compliance. One

comment recommended that

§ 157.455(a)(1)(iii) be amended to allow

masters to rely on calculations or

experience in determining the

corresponding effects of the intended

transit speed on the vessel. The

comment explained that the available

formulas for squat are inaccurate for

vessels in confined channels and tend to

yield a much greater squat than the

vessel actually realizes. Three

comments suggested that the issue of

squat should be a matter of discussion

between master and pilot and not

required to be determined at the

commencement of a voyage. Three other

comments argued that unless the Coast

Guard was prepared to designate a

methodology for determining squat, the

calculation of squat should not be

required by regulations.

One comment supported the

requirement to include squat in the

anticipated under-keel clearance

calculation. If, according to the

comment, § 157.450 requires

maneuvering characteristics (including

squat characteristics) to be recorded on

the wheelhouse poster in accordance

with Appendix 2 of IMO Resolution

A.601(15), then § 157.455 should be

amended by removing the ‘‘if known’’

from the tankship’s deepest draft

calculation. The comment explained

that based on § 157.450, squat

characteristics should be known, and

that, therefore, the ‘‘if known’’ phrasing

should be deleted from § 157.455, in

order to make the provisions consistent.

The Coast Guard has removed the

prescriptive calculation criteria for the

anticipated under-keel clearance

requirement in this final rule.

Consideration of squat and how it may

affect the vessel’s maneuverability

during a transit is required by § 164.11

for all vessels. This final rule ensures

that the master and the pilot discuss the

passage plan, including the anticipated

under-keel clearance. This discussion

should include speed, squat, and

maneuverability criteria, as found in the

wheelhouse poster in accordance with

Appendix 2 of IMO Resolution

A.601(15) and their effect on the vessel’s

safe transit. While the Coast Guard

could implement speed restrictions for

all single-hull tankships in this

rulemaking or provide empirical

formulas for squat calculations, it has

not. Diverse port needs, vessel

characteristics, and port hydrography

make such requirements difficult to

develop and keep current. Local COTPs,

who have knowledge of port-specific

needs, may choose to implement these

types of requirements. However, if a

COTP deems if necessary to require

speed restrictions or the calculation of

squat formulas, a cost analysis would be

done and presented to the public for

comment prior to implementation.

Regulatory Assessment

This rule is a significant regulatory

action under section 3(f) of Executive

Order 12866 and has been reviewed by

the Office of Management and Budget

under that Order. It required an

assessment of potential costs and

benefits under section 6(a)(3) of that

Order, and is significant under the

regulatory policies and procedures of

the Department of Transportation (44 FR

11040; February 26, 1979). An

Assessment has been prepared and is

available in the docket for inspection or

copying where indicated under

ADDRESSES. Revisions to the Assessment

completed for the final rule (61 FR

39770; July 30, 1996) are summarized as

follows:

The amended anticipated under-keel

clearance requirement in this final rule

is less prescriptive than the provision

the Coast Guard evaluated in the

Operational Measures final rule (61 FR

39770). However, because it contains

the essential elements contained in the

original anticipated under-keel

clearance provision—communication,

planning, and acting to ensure safe

navigation—this amended anticipated

under-keel clearance requirement

should be effective as the original, more

prescriptive, requirement. Therefore, the

costs and benefits for this final rule

remain as calculated in the original final

rule regulatory assessment. The

estimated cost of implementing this

amended anticipated under-keel

clearance requirement remains at $43.97

million. Implementing this adjusted

anticipated under-keel clearance

requirement would still yield a 10 to 23

percent risk effectiveness factor in

preventing grounding or casualties of

single-hull tank vessels. The estimated

benefit range remains at 5,279 to 12,142

barrels of unspilled oil in the 19 years

this requirement will be in effect. The

estimated cost-benefit range for the

amended anticipated under-keel

clearance in this final rule is $3,223–

$7,931 per barrel of unspilled oil.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Coast Guard

considered whether this rule will have

a significant economic impact on a

substantial number of small entities.

‘‘Small entities’’ include 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 final rule does not change the

cost or benefit estimates of the

anticipated under-keel clearance

requirement contained in the original

final rule. For the reasons discussed in

the final rule for operational measures

(61 FR 39786), the Coast Guard certifies

under section 605(b) of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.) that

this final rule will not have a significant

economic impact on a substantial

number of small entities.

Assistance for Small Entities

In accordance with section 213(a) of

the Small Business Regulatory

Enforcement Fairness Act of 1996 (Pub.

L. 104–121), the Coast Guard will

provide assistance to small entities to

determine how this rule applies to

them. If you are a small business and
49608 Federal Register / Vol. 62, No. 184 / Tuesday, September 23, 1997 / Rules and Regulations

need assistance understanding the

provisions of this rule, please contact

the Coast Guard Captain of the Port

(COTP) closest to your vessel’s

operational area.

Unfunded Mandate

Under the Unfunded Mandate Reform

Act (Pub. L. 104–4), the Coast Guard

must consider whether this rule will

result in an annual expenditure by

State, local, and tribal governments, in

the aggregate, or by the private sector, of

$100 million (adjusted annually for

inflation). The Act also requires (in

Section 205) that the Coast Guard

identify and consider a reasonable

number of regulatory alternatives and,

from those alternatives, select the least

costly, most cost-effective, or least

burdensome alternative that achieves

the objective of the rule.

The cost-benefit analysis done for the

original anticipated under-keel

clearance requirement remains

unchanged for this final rule. The

anticipated under-keel clearance

requirement contained in this final rule

is less prescriptive while achieving the

same objective. The anticipated underkeel clearance requirement, as amended

in this final rule, does not result in costs

of $100 million or more to either State,

local, or tribal governments, in the

aggregate, or to the private sector and is

the least burdensome alternative that

achieves the objective of the rule.

Collection of Information

This final rule contains no new

collection-of-information requirements

under the Paperwork Reduction Act of

1995 (44 U.S.C. 3501 et seq.). As stated

in a notice published on December 6,

1996 (61 FR 64618), the Office of

Management and Budget (OMB) has

approved the collection requirements

under OMB control number 2115–0629.

Federalism

The Coast Guard has analyzed this

final rule under the principles and

criteria contained in Executive Order

12612 (October 26, 1987) and has

determined that this final rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Environment

The Coast Guard considered the

environmental impact of this rule for

the original operational measures final

rulemaking and concluded that

preparation of an Environmental Impact

Statement was not necessary. An

Environmental Assessment and a

Finding of No Significant Impact are

available in the docket for inspection or

copying where indicated under

ADDRESSES.

List of Subjects in 33 CFR Part 157

Cargo vessels, Oil Pollution,

Reporting and recordkeeping

requirements.

For the reasons set out in the

preamble, the Coast Guard amends 33

CFR part 157 as follows:

PART 157—RULES FOR THE

PROTECTION OF THE MARINE

ENVIRONMENT RELATING TO TANK

VESSELS CARRYING OIL IN BULK

1. The authority citation for part 157

continues to read as follows:

Authority: 33 U.S.C. 1903; 46 U.S.C. 3703,

3703a (note); 49 CFR 1.46. Subparts G, H, and

I are also issued under section 4115(b), Pub.

L. 101–380, 104 Stat. 520; Pub. L. 104–55,

109 Stat. 546.

2. The stay announced at 61 FR

60189, November 27, 1996, is lifted and

§ 157.455 is revised to read as follows:

§ 157.455 Minimum under-keel clearance.

(a) The owner or operator of a

tankship, that is not fitted with a double

bottom that covers the entire cargo tank

length, shall provide the tankship

master with written under-keel

clearance guidance that includes—

(1) Factors to consider when

calculating the ship’s deepest

navigational draft;

(2) Factors to consider when

calculating the anticipated controlling

depth;

(3) Consideration of weather or

environmental conditions; and

(4) Conditions which mandate when

the tankship owner or operator shall be

contacted prior to port entry or getting

underway; if no such conditions exist,

the guidance must contain a statement

to that effect.

(b) Prior to entering the port or place

of destination and prior to getting

underway, the master of a tankship that

is not fitted with the double bottom that

covers the entire cargo tank length shall

plan the ship’s passage using guidance

issued under paragraph (a) of this

section and estimate the anticipated

under-keel clearance. The tankship

master and the pilot shall discuss the

ship’s planned transit including the

anticipated under-keel clearance. An

entry must be made in the tankship’s

official log or in other onboard

documentation reflecting discussion of

the ship’s anticipated passage.

(c) The owner or operator of a tank

barge, that is not fitted with a double

bottom that covers the entire cargo tank

length, shall not permit the barge to be

towed unless the primary towing vessel

master or operator has been provided

with written under-keel clearance

guidance that includes—

(1) Factors to consider when

calculating the tank barge’s deepest

navigational draft;

(2) Factors to consider when

calculating the anticipated controlling

depth;

(3) Consideration of weather or

environmental conditions; and

(4) Conditions which mandate when

the tank barge owner or operator shall

be contacted prior to port entry or

getting underway; if no such conditions

exist, the guidance must contain a

statement to that effect.

Dated: September 15, 1997.

Robert E. Kramek,

Admiral, U.S. Coast Guard Commandant.

[FR Doc. 97–25208 Filed 9–22–97; 8:45 am]

BILLING CODE 4910–14–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[ME–046–6996a; A–1–FRL–5894–8]

Approval and Promulgation of Air

Quality Implementation Plans; Maine

(General Conformity Rule)

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving the State

Implementation Plan (SIP) revision

submitted by the State of Maine for the

purpose of implementing General

Conformity (Section 176(c)(4)(C) of the

Clean Air Act (CAA), and its

regulations, 40 CFR part 51, subpart W),

which requires federal actions to

conform to all applicable

implementation plans developed

pursuant to section 110 and part D of

the CAA. The Maine SIP incorporates by

reference the criteria and procedures set

forth at 40 CFR part 51, subpart W. This

general conformity SIP revision will

enable the State of Maine to implement

and enforce the Federal general

conformity requirements in Maine’s

nonattainment and maintenance areas at

the State and local level. This action is

being taken in accordance with the

Clean Air Act.

DATES: This action is effective

November 24, 1997, unless EPA receives

adverse or critical comments by October

23, 1997. If the effective date is delayed,

timely notice will be published in the

Federal Register.

ADDRESSES: Comments may be mailed to

Susan Studlien, Deputy Director, Office