48770 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations

before assuming the watch as OUTV; so

neither is generally available for

transfers. The usual practice has been

for an unlicensed and undocumented

person to act as the actual PIC, although

the OUTV remains the Legal PIC.

Currently, it is not uncommon for an

unlicensed and undocumented person

to act as the actual PIC, although the

OUTV remains the legal PIC. Under

paragraph 155.710(e)(1) of the final rule,

it may become necessary for a UTV to

carry aboard either another licensed

person or an unlicensed person with an

MMD endorsed as Tankerman-PIC or

restricted Tankerman-PIC. The Coast

Guard has determined that requiring

licensing or documentation for the

person in charge of a fueling operation

is good marine practice. The fuel

transfer process should be such that

either the documented person on the

fuel flat, or the individual ‘‘in charge’’

of the fuel transfer on the towing vessel,

should be knowledgeable enough, and

have the authority, to shut down the

transfer in the event of a problem. Each

should be appropriately qualified to

handle their responsibilities, and

accountable for any mistakes that they

might make.

Beyond any public comments

addressing 33 CFR 155.710(e) in

general, the Coast Guard also seeks

comments on the following issues:

(1) Somebody aboard each UTV must

be accountable for the safe completion

of every transfer of fuel. Who should be

legally responsible for it—an OUTV?

Another licensed or documented

person? Or an unlicensed and

undocumented person? If the last of

these, what recourse would the Coast

Guard have against that person if a spill

occurred during a transfer in which he

or she was the legal PIC?

(2) Should the PIC of a transfer of fuel

aboard the UTV have to hold either (a)

a license; or (b) an MMD endorsed for

Tankerman-PIC, restricted TankermanPIC, or Tankerman-PIC (Barge)?

(3) What kind of formal training

should an applicant have to prove to

hold an MMD endorsed in any of these

three ways?

Dated: September 4, 1997.

R.C. North,

Rear Admiral, U.S. Coast Guard, Assistant

Commandant for Marine Safety and

Environmental Protection.

[FR Doc. 97–24592 Filed 9–16–97; 8:45 am]

BILLING CODE 4910–14–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 155 and 156

[CGD 90–071a]

RIN 2115–AD87

Overfill Devices

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

SUMMARY: The Coast Guard is

establishing minimum standards for

overfill devices as required by the Oil

Pollution Act of 1990 (OPA 90). The

purpose of the overfill device is to warn

of cargo tank overfills. This regulation

requires the phased-in installation and

use of the devices on the cargo tanks of

certain tank vessels that carry oil or oil

residue as primary cargo. This

regulation should reduce the likelihood

of spills when oil is loaded as cargo.

DATES: This final rule is effective on

October 17, 1997.

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 2:00

p.m., Monday through Friday, except

Federal holidays. The telephone number

is (202) 267–1477.

FOR FURTHER INFORMATION CONTACT:

LTJG J.K. Grzelak, Project Manager,

Office of Standards Evaluation and

Development (G–MSR), telephone (202)

267–1249.

SUPPLEMENTARY INFORMATION:

Regulatory History

Section 4110 of the Oil Pollution Act

of 1990 (OPA 90) [Pub. L. 101–380) adds

a statutory note following 46 U.S.C.

3703 requiring, in part, the

establishment of minimum standards for

overfill devices on certain tank vessels.

To meet the statutory requirements,

the Coast Guard published a notice of

proposed rulemaking (NPRM) entitled,

‘‘Overfill Devices,’’ in the Federal

Register (58 FR 4040; January 12, 1993).

The Coast Guard received 32 letters

commenting on the proposal.

In response to some comments, the

Coast Guard published a notice (58 FR

54315; October 21, 1993) and held a

public meeting at U.S. Coast Guard

Headquarters in Washington, DC, on

November 17, 1993. Twenty-eight

people attended the meeting. A list of

the attendees and audio tapes of the

meeting are available in the public

docket for this rulemaking [CGD 90–

071a] at the address listed under

ADDRESSES.

On October 21, 1994, the Coast Guard

published an interim rule entitled,

‘‘Overfill Devices’’ in the Federal

Register (59 FR 53286). On January 19,

1995, the interim rule went into effect

and the comment period closed. The

Coast Guard received 7 letters

commenting on the interim rule. No

additional public meeting was requested

and none was held.

Background and Purpose

An overfill spill occurs when too

much oil is pumped or gravitated into

a cargo tank during a transfer operation

(e.g., from a facility to a tank vessel or

from one tank vessel to another). Human

error is the most often reported cause of

this type of spill. Many overfill spills

are small; however, some reported

overfill spills have involved large

quantities of oil.

Coast Guard regulations require vessel

owners and operators to follow

pollution prevention procedures during

oil transfer operations (33 CFR parts 155

and 156). Existing regulations did knot

require devices on cargo tanks to detect

and warn of impending overfills until

January 19, 1995, when the interim rule

for overfill devices went into effect.

More detailed background

information on overfill spills and

devices can be found in the preamble of

the NPRM under Background and

Purpose.

Discussion of Comments and Changes

Seven letters were received in

response to the interim rule. The Coast

Guard has reviewed all of the comments

and they are discussed as follows:

Applicability

One comment, writing on behalf of 7

agricultural associations, strongly

supported the Coast Guard’s interim

rule as it applies to animal fats and

vegetable oils. This final rule continues

to exclude tank vessels carrying animal

fats and vegetable oils from overfill

device requirements. To make this

exclusion clear, paragraph (f) of 33 CFR

155.480 has been revised in this final

rule.

One comment expressed opposition to

the requirements for overfill devices on

black oil barges, specifically those that

carry Number 6 oil, because they carry

that oil only for a few months out of the

year and the heat required to keep the

product liquefied renders the equipment

useless. The Coast Guard finds that

heavy oils are just as likely to overflow

from cargo tanks as lower viscosity oils,

regardless of the time of year. Vessel
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations 48771

owners and operators must choose

overfill devices best suited for the oil

they carry, and in accordance with 33

CFR 155.750(e)(2), 46 CFR 39.20–

7(b)(3), and 46 CFR 39.20–9(b)(3), they

must test their equipment prior to each

cargo loading. If a method of overfill

detection is not technologically

available for a particular type of hightemperature service oil, such as Number

6 oil, the owner or operator of a vessel,

on a case-by-case basis, may request an

alternative means of compliance in

accordance with 33 CFR 155.120(c).

Two comments stated that the rule

should apply to all tank vessels,

regardless of cargo capacity, because

smaller vessels operate almost

exclusively in confined waterways with

longer flushing periods, higher

environmental sensitivities, and

restricted cleanup access. A similar

comment stated that the implementation

costs of higher standards are costeffective when compared with the

probable costs of spill response,

cleanup, and liability for damages for

tank vessels less than 1,000 cubic

meters (M3). The Coast Guard has

reviewed the costs of this rule,

especially with respect to small entities

as required by the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) and has

determined that it is appropriate to limit

the applicability to vessels with a cargo

capacity of 1,000 M3 (approximately

6,290 barrels, 1 barrel equals 42 U.S.

gallons) or more to balance the benefits

of this rulemaking with the costs.

Therefore, this final rule does not

change the applicability of overfill

device requirements to include tank

vessels less than 1,000 M3.

One comment objected to the

exemption of vessels that were likely to

be phased out of service in the next 5

years. The Coast Guard disagrees with

this comment because the costs of

upgrading overfill devices on these

vessels would not be recovered by the

year 2000. In addition, the Coast Guard

has determined that the costs incurred

by these vessels would outweigh the

environmental clean-up costs should an

overfill occur. For these reasons, this

final rule retains the exemption for

single-hull vessels that will be phased

out by the year 2000.

Two comments suggested that the

regulation should apply during all cargo

transfer operations, not just loading. As

stated in the interim rule, overfill

incidents occur during internal cargo

transfers and discharges; however, these

incidents are infrequent and do not

result in large spills into the water. Tank

vessel owners and operators are still

encouraged to use overfill devices for all

transfer operations, but this final rule

continues to apply only during loading.

One comment suggested clarification

of the application of this rule to foreignflag tank vessels because it questioned

the procedure for determining the

compliance date under 33 CFR

155.480(d) if the cargo tank internal

examinations were conducted on a

rolling basis, rather than all at once. To

avoid the duplication of costly gasfreeing of cargo tanks, the Coast Guard

allowed for installation of overfill

devices as tanks are due for internal

examinations in the interim rule. This

provision has not changed in this final

rule.

One comment wanted to know the

meaning of the term ‘‘newly constructed

tank vessel’’ and wanted clarification on

what requirements would apply to this

type of vessel. The interim rule used the

phrase ‘‘newly constructed tank vessel’’

to reference vessels built after January

19, 1995. This reference is not necessary

because after January 19, 1995, tank

vessels affected by the rule had to meet

the requirements of 33 CFR 155.480

regardless of their build date. Therefore,

the Coast Guard has determined that the

clause referencing newly constructed

tank vessel requirements at the end of

paragraph (b) of 33 CFR 155.480 in the

interim rule is redundant and it has

been removed.

In addition, the Coast Guard noted

that applying the overfill device

requirements to foreign-flag tank vessels

in the EEZ is not consistent with the

1982 United Nations Convention on the

Law of the Sea (UNCLOS). The

Convention sets forth the generally

recognized principles of international

law concerning the establishment of

laws and regulations by a coastal state

in its EEZ to prevent, reduce, and

control pollution from vessels. Article

211(5) of UNCLOS specifies that such

laws and regulations by a coastal state

in its EEZ are authorized if they give

effect to accepted international rules

and standards established through the

competent international organization or

general diplomatic conference. For

consistency, the Coast Guard has

eliminated the reference to the EEZ in

§ 155.480(b) and revised § 155.100 to

clarify that overfill devices will be

required on U.S.- and foreign-flag tank

vessels, with a cargo capacity of 1,000

or more cubic meters, loading oil or oil

residue as cargo and operating in the

navigable waters of the United States, or

at a port or terminal under the

jurisdiction of the United States.

Minimum Standards for Overfill

Devices on Tankers

Two comments stated that the

systems which automatically shutdown

the transfer pumps before an overfill

occurs should be required on all tank

vessels. The vapor control regulations in

46 CFR part 39 authorize the use of

automatic shutdown systems during

barge loading and lightering operations.

The Coast Guard allows the use of this

system aboard barges to be consistent

with related regulations and standards.

However, this final rule does not make

this alternative a requirement for all

vessels because it is not cost beneficial

to maritime operators already using

other systems.

Minimum Standards for Overfill

Devices on Barges

One comment discussed the 5-year

monitoring period for the effectiveness

of high-level indicating devices, such as

stick gauges. As stated in the interim

rule, if at the end of the 5-year period,

the Coast Guard determines that the

overfill spill record of tank barges

equipped with these devices is not

essentially as good or better than the

overfill spill record of other tank vessels

covered by the regulations, then the

Coast Guard may remove the provision

in the regulation allowing the use of

high-level indicating devices as

substitutes for overfill alarms. One

comment argued that an agency should

not change a previously allowed

regulatory alternative unless there is

compelling evidence to support such a

change. In addition, the comment stated

that it is particularly unfair to make

such a change after the affected industry

has invested in new equipment,

expecting that its use will be permitted.

The Coast Guard reviewed the spill

data from tank vessels for the years 1989

through 1991, and collected further spill

data for tank vessels for the years 1992

through June 1996. The interim rule,

which required overfill devices for tank

vessels, was effective on January 19,

1995. Since then, the percentage of oil

spills due to overfills from tank barges

has been significantly reduced. In the

years 1992 through 1994, tankers

averaged approximately 1.7 overfills per

month and tank barges averaged 3.3

overfills per month.

After the requirement for overfill

devices was implemented, the average

number of overfills for tankers was 0.4

per month and the average number for

tank barges was 1.1 per month. This is

a 76 percent decrease in the total

number of overfills for tankers and a 66

percent decrease for tank barges. Based

on these calculations, the Coast Guard
48772 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations

has determined that the 5-year

monitoring period is no longer

necessary because statistics indicate that

overfill devices, as required in the

interim rule, are effective. The provision

in the regulation for the use of highlevel indicating devices, as an

alternative to overfill alarms, will be

retained in this final rule. The stick

gauge alternative for tank barges will

also be retained in this final rule

because the Coast Guard has determined

that it is cost effective.

Training

On comment stated that the Coast

Guard should proceed quickly with

publishing an interim rule regarding

tankerman qualifications and training

standards. A similar comment stated

that manning and training standards for

smaller vessels are insufficient. The

Coast Guard recognizes that the majority

of overfills are due to human error and

is currently developing a final rule

entitled, ‘‘Qualifications for Tankermen

and for Persons in Charge of Transfers

of Dangerous Liquids and Liquefied

Gases.’’ An interim rule for the project

was published in the Federal Register

on April 4, 1995 (60 FR 17134), and was

effective on March 31, 1996.

Another related comment stated that

the Coast Guard should require the

monitoring of transfer operations

because they are of critical importance,

regardless of the type of overfill device

in use. The person in charge of transfer

procedures is already required by 33

CFR 155.750(e)(1) (i) and (ii) to monitor

the level of cargo in the tank, and shut

down transfer operations in time to

ensure that the cargo level in each tank

does not exceed the maximum amount

permitted by 33 CFR 155.775(b).

Maximum Cargo Level of Oil

One comment recommended that the

Coast Guard change the level of cargo

allowed in the cargo tank to 95 percent.

The rule will continue to establish a

98.5 percent level as the maximum level

of fill because it is consistent with the

regulations for vapor control systems in

46 CFR 39.30–1(e). Accordingly, a tank

may not be filled higher than 98.5

percent or the level at which the overfill

alarms are set, for those cases where

shutdown must be initiated at a level

below 98.5 percent to ensure that an

overfill does not occur.

Other Issues

One comment questioned the need for

additional overpressurization protection

for a tank barge outfitted only with a

closed loading system. The comment

also requested clarification of the

adequacy of high-level indicating

devices as a means of satisfying the

liquid overpressurization requirements

of 46 CFR part 39. Overpressurization

requirements for closed loading systems

that do not use vapor control are outside

the scope of this rule, but the Coast

Guard may address it separately in a

future rulemaking project.

Two comments suggested rewording

33 CFR 155.480 so that it is not

misinterpreted as requiring an

independent overfill system on each

cargo tank of a tankship or

misinterpreted as requiring an audible

and visible alarm at each tank top. The

Coast Guard has retained these

paragraphs as written in the interim rule

because the original wording clearly

recognizes tank overfill systems, with

centralized control and alarm functions,

without excluding independent devices

as means of satisfying the requirements

of this rule.

One comment requested a grandfather

provision for those vessels who had

overfill devices installed before the

effective date of this rulemaking. The

Coast Guard based the requirements for

overfill devices on the overfill

protection requirements in 46 CFR part

39. The Coast Guard has determined

that the vessels which complied with

those rules would not need to have their

overfill device arrangements

grandfathered. For vessels not subject to

46 CFR part 39, the Coast Guard allowed

for equivalent alternatives to

specifically assist those owners or

operators who installed devices prior to

January 19, 1995. In addition,

alternative arrangements are permitted

under this rule, therefore, the Coast

Guard has not included a grandfather

clause in this final rule.

One comment suggested that the

overfill device requirements in 33 CFR

155.480 be rewritten to stand alone,

instead of cross referencing 46 CFR part

39. The intent of this rulemaking is to

conform overfill device requirements to

the requirements for overfill prevention

of vessels using vapor control systems.

Because the Coast Guard wishes to

ensure these two parts conform, this

final rule does not change the crossreference contained in 33 CFR 155.480.

One comment stated that 33 CFR

155.480(b)(2)(l) fails to recognize the

inherent simplicity of the river barge as

compared to the ocean tanker. The

comment suggested a battery powered

system with a light indicating that the

system has power, as another alternative

for barges. Again, these recommended

changes to 33 CFR 155.480(b)(2)(i) are

not consistent with the vapor control

rules. The Coast Guard chose to conform

these rules with the existing marine

vapor control rules to assist those who

must comply with them.

One comment requested that a

summary shutdown, that does not

indicate which tank is overfilling, be

accepted in lieu of a shutdown that does

indicate which tank is overfilling. As

written, the interim rule and this final

rule allow a summary shutdown

arrangement.

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 is significant under

the regulatory policies and procedures

of the Department of Transportation (44

FR 11040; February 26, 1979). Although

it does not require an assessment of

costs and benefits under section 6(a)(3)

of Executive Order 12866, an

assessment has been prepared and is

available in the docket for inspection or

copying where indicated under

ADDRESSES. There were no comments

received regarding the interim

assessment. In addition, the change to

33 CFR 155.480 in no way changes the

findings of the interim assessment. For

these two reasons, and in that there is

so little change in this final rule form

the interim rule, the interim assessment

is adopted as a final assessment under

Executive Order 12866.

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 businesses,

not-for-profit organizations that are

independently owned and operated and

are not dominant in their fields, and

governmental jurisdictions with

populations of less than 50,000.

The Coast Guard received no

comments on the interim rule from

small entities. Sufficient flexibility

alternatives were built into this

rulemaking to accommodate small

entities. Therefore, the Coast Guard

certifies under section 605(b) of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.) that this 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 offered to

assist small entities in understanding

the rule so that they could better

evaluate its effects on them and
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Rules and Regulations 48773

participate in the rulemaking process.

The NPRM for this rulemaking

specifically asked small entities to

comment if they thought this

rulemaking would have a significant

economic impact on their business. In

addition, the Coast Guard held a public

meeting at U.S. Coast Guard

Headquarters on November 17, 1993, to

hear public comment on the

rulemaking. Based on the comments

received on the NPRM, the Coast Guard

revised the regulations to lessen the

burden on small entities. For example,

the Coast Guard has limited these

regulations to tank vessels with a cargo

carrying capacity of more than 1,000 M3

to accommodate those small entities

that do not pose as large an

environmental threat, yet would incur

substantial cost if overfill devices were

required. Even with the restricted

application, this final rule covers 21

tankships and 391 tank barges which are

owned and operated by small

companies. The Coast Guard has

provided further flexibility for the

affected small entities by permitting the

alternative of high-level indicating

devices for tank barges. This is a less

expensive option and is less costly for

the smaller entities contained within the

tank barge industry. If you are a small

entity affected by this final rule and

need further help determining how this

rule applies to you, please contact the

Coast Guard Officer in Charge of Marine

Inspection identified in 33 CFR part 3

that is nearest to your vessel’s operation.

Collection of Information

This final rule provides for collection

of information under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.). As required by 5 U.S.C. 3507(d),

the Coast Guard has submitted a copy of

this rule to the Office of Management

and Budget (OMB) for its review of the

collection of information. OMB has

approved the collection. Section

number 155.750 is approved under

OMB control #2115–0121 which expires

February 28, 2000. Section 156.150 was

approved by OMB under OMB 2115–

0506 and is currently under their review

for renewal.

Persons are not required to respond to

a collection of information unless it

displays a currently valid OMB control

number.

Federalism

The Coast Guard has analyzed this

final rule under the principles and

criteria contained in Executive Order

12612 and has determined that this final

rule does not have sufficient

implications for federalism to warrant

the preparation of a Federalism

Assessment. One comment requested

that State and municipalities be allowed

to adopt stricter requirements than these

Federal regulations. The Coast Guard

has determined that the standards for

overfill devices in this final rule are

vessel design requirements and

therefore, preclude States or

municipalities from adopting

requirements for tank vessels operating

in interstate or foreign commerce, that

differ from those contained in this rule.

Environment

The Coast Guard considered the

environmental impact of this rule and

concluded that preparation of an

Environmental Impact Statement is 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. The

Environmental Assessment discusses

the action, subsequent expected

environmental impacts, and the overall

need for the action. These regulations

are not expected to result in a

significant impact on the quality of the

human environment because overfills

tend to result in relatively small spills.

List of Subjects

33 CFR Part 155

Hazardous substances, Oil pollution,

Reporting and recordkeeping

requirements.

33 CFR Part 156

Hazardous substances, Oil pollution,

Reporting and recordkeeping

requirements, Water pollution control.

For the reasons set forth in the

preamble, the interim rule amending 33

CFR parts 155 and 156, which was

published in 59 FR 53286 on October

21, 1994, is adopted as a final rule with

the following changes:

PART 155—OIL OR HAZARDOUS

MATERIAL POLLUTION PREVENTION

REGULATIONS FOR VESSELS

1. The authority citation for part 155

and the note following the citation is

revised to read as follows:

Authority: 33 U.S.C. 1231, 1321(j); 46

U.S.C. 3715; sec. 2, E.O. 12777, 56 FR

54757, 3 CFR, 1991 Comp., p. 351; 49

CFR 1.46. Sections 155.100 through

155.130, 155.350 through 155.400,

155.430, 155.440, 155.470, 155.1030 (j)

and (k), and 155.1065(g) also issued

under 33 U.S.C. 1903(b); and

§§ 155.1110 through 155.1150 also

issued under 33 U.S.C. 2735.

Note: Additional requirements for vessels

carrying oil or hazardous materials are

contained in 46 CFR parts 30 through 36, 33

CFR parts 150, 151, 153, and 157.

2. In § 155.100, revise paragraph (a)

introductory text and add a new

paragraph (c) to read as follows:

§ 155.100 [Amended].

(a) Subject to the exceptions provided

for in paragraph (b) and (c) of this

section, this part applies to each ship

that:

* * * * *

(c) Section 155.480 applies to each

tank vessel with a cargo capacity of

1,000 or more cubic meters

(approximately 6,290 barrels), loading

oil or oil reside as cargo that is operated

under the authority of the United States,

wherever located, or operated under the

authority of a country other than the

United States while in the navigable

waters of the United States, or while at

a port or terminal under the jurisdiction

of the United States.

3. In § 155.480, revise paragraphs (b)

introductory text and (f) to read as

follows:

§ 155.480 Overfill devices.

* * * * *

(b) Each tank vessel with a cargo

capacity of 1,000 or more cubic meters

(approximately 6,290 barrels), loading

oil or oil residue as cargo, must have

one overfill device that is permanently

installed on each cargo tank and meets

the requirements of this section.

* * * * *

(f) This section does not apply to tank

vessels that carry asphalt, animal fat, or

vegetable oil as their only cargo.

Dated: September 4, 1997.

R.D. Herr,

Vice Admiral, U.S. Coast Guard, Acting

Commandant.

[FR Doc. 97–24586 Filed 9–16–97; 8:45 am]

BILLING CODE 4910–14–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[MD Docket No. 96–186; FCC 97–215]

Assessment and Collection of

Regulatory Fees for Fiscal Year 1997;

Correction

AGENCY: Federal Communications

Commission.

ACTION: Final rule; correction.

SUMMARY: This document corrects a

footnote in the FCC’s Report and Order

for the final rule regarding Assessment

and Collection of Regulatory Fees for

Fiscal Year 1997, published in the