[Federal Register Volume 77, Number 47 (Friday, March 9, 2012)]
[Proposed Rules]
[Pages 14327-14338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5551]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 98

[Docket No. USCG-2011-0088]
RIN 1625-AB63


Bulk Packaging To Allow for Transfer of Hazardous Liquid Cargoes

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend its regulations concerning 
the transfer of hazardous materials to and from portable tanks on 
vessels. The Coast Guard proposes to expand the list of portable tanks 
approved for hazardous material transfers to include IMO Type 1 and IMO 
Type 2 portable tanks, UN portable tanks, and Intermediate Bulk 
Containers. In addition, the Coast Guard proposes to expand the list of 
allowed hazardous materials. The proposed amendments would provide 
greater flexibility in the selection and use of portable tanks and 
would allow for the transport of additional hazardous materials. The 
proposed effect would be to eliminate the need to obtain special 
permits or Competent Authority Approvals to use IMO Type 1 or IMO Type 
2 portable tanks, UN portable tanks, or Intermediate Bulk Containers, 
or to transport hazardous materials not on the list.

DATES: Comments and related material must be submitted on or before May 
8, 2012. Comments sent to the Office of Management and Budget (OMB) on 
collection of information must reach OMB on or before May 8, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0088 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand Delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Collection of Information Comments: If you have comments on the 
collection of information discussed in section VI.D of this NPRM, you 
must also send comments to the Office of Information and Regulatory 
Affairs (OIRA), Office of Management and Budget. To ensure that your 
comments to OIRA are received on time, the preferred methods are by 
email to <a href="/cdn-cgi/l/email-protection#d3bcbaa1b28ca0a6b1bebaa0a0babcbd93bcbeb1fdb6bca3fdb4bca5"><span class="__cf_email__" data-cfemail="d5babca7b48aa6a0b7b8bca6a6bcbabb95bab8b7fbb0baa5fbb2baa3">[email protected]</span></a> (include the docket number and 
``Attention: Desk Officer for Coast Guard, DHS'' in the subject line of 
the email) or fax at 202-395-6566. An alternate, though slower, method 
is by U.S. mail to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street NW., Washington, DC 
20503, Attn: Desk Officer, U.S. Coast Guard.
    Viewing incorporation by reference material: You may inspect the 
material proposed for incorporation by reference at U.S. Coast Guard 
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001 between 
9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-372-1419. Copies of the material are available 
as indicated in the ``Incorporation by Reference'' section of this 
preamble.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email Lieutenant Elizabeth Newton, Office of Hazardous 
Material Standards, Coast Guard; telephone 202-372-1419, email 
<a href="/cdn-cgi/l/email-protection#62270e0b18030007160a4c284c2c0715160d0c22171101054c0f0b0e"><span class="__cf_email__" data-cfemail="47022b2e3d262522332f690d690922303328290732342420692a2e2b">[email protected]</span></a>. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Background
IV. Discussion of Proposed Rule
    A. Subpart 98.30--Portable Tanks and Intermediate Bulk 
Containers
    B. Subpart 98.33--Portable Tanks and IBCs for Certain Grade E 
Combustible Liquids and Other Regulated Materials
V. Incorporation by Reference
VI. Regulatory Analyses
    A. Executive Order 12866 and Executive Order 13563
    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. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

[[Page 14328]]

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0088), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2011-0088'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit comments by mail and 
would like to know that they reached the Facility, please enclose a 
stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments as well as documents mentioned in this preamble as 
being available in the docket, go to http://www.regulations.gov click 
on the ``read comments'' box, which will then become highlighted in 
blue. In the ``Keyword'' box type ``USCG-2011-0088'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the Internet, you may view the docket 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

II. Abbreviations

AAHMS Associate Administrator for Hazardous Materials Safety
CFR Code of Federal Regulations
DHS Department of Homeland Security
DOT Department of Transportation
FR Federal Register
HMR Hazardous Materials Regulations; 49 CFR Parts 171-180
IBC Intermediate Bulk Container
IM Intermodal
IMDG International Maritime Dangerous Goods (code)
IMO International Maritime Organization
MPT Marine Portable Tank
NLS Noxious Liquid Substance
N.O.S. Not otherwise specified
OSV Offshore supply vessel
PHMSA Pipeline and Hazardous Materials Safety Administration
Sec.  Section symbol
UN United Nations
U.S.C. United States Code

III. Background

    The Coast Guard proposes to amend 46 CFR subparts 98.30 and 98.33, 
which contain regulations concerning the transfer of hazardous 
materials to and from portable tanks on vessels. Portable tanks are 
primarily used by offshore supply vessels (OSVs) to transport hazardous 
materials to and from offshore platforms involved in the exploration 
and production of oil and natural gas.
    In a 1990 rulemaking titled ``Portable Tanks for the Transportation 
of Bulk Hazardous Materials by Vessel'' (55 FR 37406), the Coast Guard 
allowed the use of Intermodal (IM) 101 and IM 102 portable tanks for 
the transfer of hazardous materials. The specifications for these tanks 
can be found in the Department of Transportation's (DOT) Pipeline and 
Hazardous Materials Safety Administration (PHMSA) regulations at 49 CFR 
parts 171-180, referred to as the Hazardous Materials Regulations 
(HMR).
    Since the Coast Guard's 1990 rulemaking, PHMSA has aligned its HMR 
regulations to incorporate changes made to the International Maritime 
Organization's (IMO) International Maritime Dangerous Goods Code \1\ 
(IMDG Code) for the construction and use of portable tanks. The IMDG 
Code applies to all vessels, including U.S. vessels, on international 
voyages. The portable tanks constructed to IMDG Code requirements are 
known as ``UN portable tanks,'' and include IMO Type 1 and IMO Type 2 
portable tanks. As of January 1, 2003, the IMDG Code requires all newly 
manufactured portable tanks to be designed, constructed, and approved 
in conformance with the requirements of UN portable tanks.
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    \1\ See IMDG Code, 2010 Edition, Incorporating Amendment 35-10, 
Chapter 4.2, Section 4.2.0.1.
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    Portable tank manufacturers reacting to the harmonization of 
PHMSA's HMR regulations with the IMDG Code, which includes the 
requirement that all portable tanks be UN portable tanks, are no longer 
manufacturing IM 101 and IM 102 portable tanks. As a result, we are 
initiating this rulemaking to harmonize Coast Guard regulations at 46 
CFR subparts 98.30 and 98.33 with PHMSA's HMR regulations and 
international standards for vessels operating domestically by allowing 
UN portable tanks to be used in transporting hazardous materials.
    We are also initiating this rulemaking in response to a suggestion 
from industry that the Coast Guard allow Intermediate Bulk Containers 
(IBCs) to be used to transport hazardous materials. The Coast Guard is 
proposing to amend the applicability sections in 46 CFR subparts 98.30 
and 98.33 to allow the use of IBCs in transporting hazardous materials 
on board vessels, but with specific restrictions as to what types of 
IBCs could be used to ensure safety.
    The Coast Guard would allow existing IM 101 and IM 102 portable 
tanks at 46 CFR subparts 98.30 and 98.33 to continue to be used for the 
lifetime of the tank provided that they continue to meet periodic test 
and inspection requirements. By allowing the use of IMO Type 1 and IMO 
Type 2 portable tanks, UN portable tanks, and IBCs, we are eliminating 
the need for vessel owners to apply to PHMSA's Associate Administrator 
for Hazardous Materials Safety (AAHMS) for a special permit or a 
Competent Authority Approval to use these tanks.
    The intended effect of these proposed changes would provide 
industry with additional options for the selection of portable tanks or 
IBCs that could be

[[Page 14329]]

used for transfers of hazardous materials between cargo tanks and 
portable tanks.
    In this rulemaking, the Coast Guard is also proposing to amend the 
list of hazardous materials currently approved for transport in 
portable tanks in 46 CFR subpart 98-30. Currently, shippers wishing to 
transport a product not on this list must apply to PHMSA's AAHMS for a 
special permit or Competent Authority Approval. By expanding the list 
of authorized hazardous materials, the Coast Guard would eliminate the 
need for prior individual authorization before these additional 
hazardous materials could be transported in a portable tank or IBC.

IV. Discussion of Proposed Rule

    The Coast Guard proposes to amend the titles of subparts 98.30 and 
98.33 to include IBCs and read ``Subpart 98.30--Portable Tanks and 
Intermediate Bulk Containers'' and ``Subpart 98.33--Portable Tanks and 
Intermediate Bulk Containers for Certain Grade E Combustible Liquids 
and Other Regulated Materials.''
    The Coast Guard also proposes to make conforming changes throughout 
subparts 98.30 and 98.33 to include IBCs in each instance that the 
current regulations mention portable tanks. See proposed amended 
Sec. Sec.  98.30-9, 98.30-10, 98.30-11, 98.30-12, 98.30-14, 98.30-17, 
98.30-19, 98.30-21, 98.30-23, 98.30-25, 98.30-29, 98.30-31, 98.30-33, 
98.30-35, 98.33-3, 98.33-7, 98.33-9, 98.33-11, 98.33-13, and 98.33-15.

A. Subpart 98.30--Portable Tanks and Intermediate Bulk Containers

    The Coast Guard proposes to redesignate current sections in subpart 
98.30 to make room for new proposed sections, as noted in the chart 
below.

------------------------------------------------------------------------
                                           Redesignated section heading
  Original section heading and number               and number
------------------------------------------------------------------------
Section 98.30-2: Definitions...........  Section 98.30-3: Definitions.
Section 98.30-3: Vessels carrying MPTs.  Section 98.30-4: Vessels
                                          carrying MPTs.
Section 98.30-4: Vessels carrying        Section 98.30-5: Vessels
 portable tanks other than MPTs.          carrying portable tanks other
                                          than MPTs.
Section 98.30-5: Materials authorized    Section 98.30-7: Materials
 for transfer to and from a portable      authorized for transfer to and
 tank.                                    from a portable tank.
Section 98.30-6: Lifting a portable      Section 98.30-9: Lifting a
 tank.                                    portable tank or IBC.
Section 98.30-7: Smoking...............  Section 98.30-10: Smoking.
Section 98.30-8: Gaskets and lining....  Section 98.30-11: Gaskets and
                                          lining.
Section 98.30-9: Stowage of portable     Section 98.30-12: Stowage of
 tanks.                                   portable tanks and IBCs.
Section 98.30-10: Pipe connections, and  Section 98.30-13: Pipe
 filling and discharge openings.          connections, and filling and
                                          discharge openings.
Section 98.30-11: Cargo pumps..........  Section 98.30-14: Cargo pumps.
Section 98.30-13: Ground connection....  Section 98.30-15: Ground
                                          connection.
Section 98.30-14: Requirements for       Section 98.30-16: Requirements
 ships carrying NLSs in portable tanks.   for ships carrying NLSs in
                                          portable tanks and IBCs.
Section 98.30-15: Leakage containment..  Section 98.30-17: Leakage
                                          containment.
Section 98.30-17: Qualifications of      Section 98.30-18:
 person in charge.                        Qualifications of person in
                                          charge.
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Sec. 98.30-1: Applicability
    This section would be amended to allow the use of IMO Type 1 and 
IMO Type 2 portable tanks, UN portable tanks, and IBCs for use in 
transferring hazardous materials on board vessels. This section would 
also be amended to delete reference to ``liquid'' from the term 
``hazardous materials'' to be consistent with how the term is used 
elsewhere in subpart 98.30.
    In addition, this section would be amended to eliminate the 
restriction of transporting ``liquefied gas'' in a portable tank 
because the Coast Guard proposes in 49 CFR 98.30-7 to allow the 
transport of ``liquid nitrogen.''
    This section would also be amended to update the reference for 
PHMSA, which was formerly known as the Research and Special Programs 
Administration, and to clarify that these rules would be applicable to 
portable tanks authorized for use under a special permit or Competent 
Authority Approval issued by PHMSA's AAHMS in accordance with 49 CFR 
part 107, subpart H.
Sec. 98.30-2: Incorporation by Reference
    This new section would be added to incorporate by reference the 
IMDG Code. The material proposed for incorporation by reference appears 
in 46 CFR 98.30-3 and 98.30-5. The IMDG Code identifies the 
characteristics of the newly approved UN portable tanks and allows for 
the older tanks approved prior to January 1, 2003, to continue to be 
used provided that they are found to meet the periodic inspections and 
test provisions. The harmonization of the Coast Guard regulations with 
the IMDG Code would ensure that U.S.-flagged vessels continue to be in 
compliance, if and when older tanks do not pass periodic inspections 
and test provisions and need to be replaced with the newly approved UN 
portable tanks.
Sec. 98.30-3: Definitions
    Proposed redesignated Sec.  98.30-3 would be amended to add three 
new terms to define the types of tanks that can be used in accordance 
with 46 CFR 98.30-1. These definitions are ``IMO Type 1 portable tank 
and IMO Type 2 portable tank,'' ``UN portable tank,'' and ``IBC''. 
Also, the definition of ``IM 101 portable tank and IM 102 portable 
tank'' would be revised to describe tanks that were manufactured on or 
before January 1, 2003. As discussed above, IM 101 and IM 102 portable 
tanks are no longer constructed. However, IM 101 and IM 102 portable 
tanks that were manufactured and approved by PHMSA before January 1, 
2003, may continue to be used for the lifetime of the tank. These tanks 
provide a level of safety equivalent to other portable tanks and are 
safe to use as long as they meet the requirements for continued use 
under the HMR at 49 CFR 173.32.
Sec. 98.30-5: Vessels Carrying Portable Tanks Other Than MPTs
    This section would be amended to allow the carriage of IMO Type 1 
and IMO Type 2 portable tanks and UN portable tanks on board a vessel 
for use in the transfer of certain hazardous materials. Hazardous 
materials are authorized, in accordance with 49 CFR 173.32, to be 
transferred to a portable tank only if the portable tank is authorized 
to carry the hazardous material in accordance with the HMR or under the 
terms of a special permit or Competent Authority Approval issued by 
PHMSA's AAHMS.

[[Page 14330]]

    Existing IM 101 and IM 102 portable tanks provide a level of safety 
equivalent to other portable tanks authorized for the transfer of 
hazardous materials and can be used, provided these tanks meet certain 
periodic test and inspection requirements in accordance with the HMR at 
49 CFR part 180, subpart G.
Sec. 98.30-6: Vessels Carrying IBCs
    This section would be added to describe the types of IBCs the Coast 
Guard would allow for the carriage of certain hazardous materials on 
board a vessel, and to make clear the requirements the IBCs would have 
to meet to gain approval from the Coast Guard. We would allow the use 
of an IBC only if the IBC is equivalent to, or greater in standards 
than, an authorized IMO Type 1 or IMO Type 2 portable tank, or a UN 
portable tank.
Sec. 98.30-7: Materials Authorized for Transfer To and From a Portable 
Tank
    This section would be amended to replace the term ``ORM-E'' with 
the terms ``hazardous substance'' and ``hazardous waste'' as described 
in 49 CFR 171.8. The term ``ORM-E'' is outdated and is no longer used 
by PHMSA.
    This section would be amended to allow the use of IMO Type 1 and 
IMO Type 2 portable tanks and UN portable tanks for the transfer of 
materials permitted under this section, and to clarify that a portable 
tank authorized in this section can serve as a substitute for another 
portable tank that meets the requirements of the HMR at 49 CFR 
173.32(b), and vice-versa. We propose making this change to align our 
regulations with the HMR, which allows for substitutions of portable 
tanks.
    This section would also be amended to update the citation to Table 
``Certain Hazardous Materials Authorized for Transfer To and From 
Portable Tanks'' to reflect the redesignation of this section from 
Sec.  98.30-5 to Sec.  98.30-7. This section would also be amended to 
expand the list of hazardous materials that are eligible for transfer 
to and from portable tanks because these materials have been previously 
authorized for such transfers by the Coast Guard on an individual basis 
in accordance with proposed redesignated Sec.  98.30-7(a)(5). We 
propose to add the following hazardous materials to Table 98.30-7(a): 
(1) Liquid Nitrogen, (2) Mixtures of hydrochloric acid and hydrofluoric 
acid containing not more than 24% hydrochloric acid or 6% hydrofluoric 
acid, and (3) corrosive liquid, toxic, N.O.S. (mixtures of hydrochloric 
acid, hydrofluoric acid, and fluoboric acid), UN 2922, packing group 
II, containing not more than 11% hydrofluoric acid. We are adding these 
materials because we believe these materials are safe to transport 
within the guidelines set by 46 CFR subpart 98.30 based on previous 
written authorizations of approval for these materials.
Sec. 98.30-8: Materials Authorized for Transfer to and From an IBC
    The addition of this section would be used to identify materials 
that are authorized for transfer to and from an IBC. We propose to 
allow the use of hazardous materials listed in Table 98.30-7(a) for 
transfer to and from an IBC with the exception of Liquid Nitrogen. 
Liquid Nitrogen cannot be properly stored or monitored in an IBC 
because of its design characteristics; therefore, we deem it unsafe to 
transport Liquid Nitrogen on an IBC.
Sec. 98.30-12: Stowage of Portable Tanks and IBCs
    This section would be amended to clarify that IBCs must be secured 
in accordance with the HMR at 49 CFR 176.74.
Sec. 98.30-13: Pipe Connections, and Filling and Discharge Openings
    This section would be amended to take into account the addition of 
IMO Type 1 and IMO Type 2 portable tanks, UN portable tanks, and IBCs 
as specified in 49 CFR 178.705. This section is also amended to 
restrict the use of manifolds, which are chambers or systems of pipes 
having several outlets in which a liquid or gas can be gathered or from 
which a liquid or gas can be distributed. Manifolds would be prohibited 
because the use of a manifold is a manual operation and the emergency 
shutoff during the transfer to and from a portable tank or IBC should 
be automatic. This would minimize the loss of hazardous materials in 
the event of an emergency, thereby reducing risk to health and 
environment.
Sec. 98.30-16: Requirements for Ships Carrying NLSs in Portable Tanks 
and IBCs
    This section would be amended to clarify that IBCs used to 
transport noxious liquid substances (NLS) must meet the requirements 
set forth in 46 CFR 125.120.

B. Subpart 98.33--Portable Tanks and IBCs for Certain Grade E 
Combustible Liquids and Other Regulated Materials

Sec. 98.33-1: Applicability
    This section would be amended to clarify that the Coast Guard would 
allow the transfer of certain low-hazard materials to and from DOT-
specification 57 portable tanks constructed on or before October 1, 
1996 or UN portable tanks. In addition, this section would be amended 
to update regulations now found at 49 CFR 173.32 in the HMR that 
pertain to the requirements for the use of portable tanks. This section 
would also be amended to add a citation reference to our regulations at 
46 CFR 98.30-3(d), which pertain to the requirements for UN portable 
tanks.
    This section would also be amended to allow the transfer of certain 
low-hazard materials to and from limited IBCs as described in 46 CFR 
98.30-6.
Sec. 98.33-5: Portable Tanks and IBCs Authorized
    Paragraph (b) is proposed to specify that for cargoes authorized in 
46 CFR 98.33-3 to be transferred to and from IBCs, the IBCs must first 
meet the tank specifications outlined in 46 CFR 98.30-5.

V. Incorporation by Reference

    Material proposed for incorporation by reference appears in Sec.  
98.30-2. You may inspect this material at U.S. Coast Guard Headquarters 
where indicated under ADDRESSES. Copies of the material are available 
from the sources listed in Sec.  98.30-2.
    Before publishing a binding rule, we would submit this material to 
the Director of the Federal Register for approval of the incorporation 
by reference.

VI. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 14 of these statutes or executive orders.

A. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This NPRM has not been designated a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly,

[[Page 14331]]

the NPRM has not been reviewed by the Office of Management and Budget. 
A draft regulatory assessment follows:
    This proposed rule would expand the list of portable tanks approved 
for hazardous material transfers to include UN portable tanks, 
including IMO Type 1 and IMO Type 2 portable tanks, and IBCs. It would 
also expand the list of allowed hazardous materials. Please reference 
Table IV.A.1 below for a summary of our analysis.

Table IV.A.1--Summary of Affected Population, Cost Savings, and Benefits
------------------------------------------------------------------------
                Category                             Estimate
------------------------------------------------------------------------
Affected Population....................  402 owners and operators of
                                          1,334 OSVs.
Cost Savings (7% discount over 10-year   $55,467.
 period).
                                         <bullet> Efficiency gains to
                                          industry by increasing the
                                          number of pre-approved types
                                          of portable tanks and
                                          expanding the list of pre-
                                          approved hazardous materials
                                          they can transport.
Benefits...............................  <bullet> Reduces regulatory
                                          burden to industry and
                                          government by reducing the
                                          number of special permits or
                                          Competent Authority Approvals
                                          to be processed and
                                          harmonizing the Coast Guard
                                          regulations with PHMSA's HMR
                                          regulations.
------------------------------------------------------------------------
Note: There are only cost savings associated with this rulemaking.

Affected Population
    The total number of affected vessels is the 1,334 U.S.-flagged OSVs 
subject to 46 CFR subchapters I, L, or T. Table IV.A.2 presents the 
count of OSVs by subchapter.

                Table IV.A.2--Affected OSVs by Subchapter
------------------------------------------------------------------------
     Subchapter code           Subchapter description          Count
------------------------------------------------------------------------
I........................  Cargo and Miscellaneous                   532
                            Vessels.
L........................  Offshore Supply Vessels......             529
T........................  Small Passenger Vessels                   273
                            (Under 100 Gross Tons).
                                                         ---------------
    Total................  .............................           1,334
------------------------------------------------------------------------

    We estimate that there are approximately 86,100 \2\ portable tanks 
and IBCs in the United States available for use by all modes of 
transportation, based on information from the Department of 
Transportation (DOT), Information Collection Request (ICR) (OMB Control 
No. 2137-0018), Inspection and Testing of Portable Tanks and 
Intermediate Bulk Containers. This ICR also reports that there are 
approximately 8,770 entities that handle these 86,100 portable tanks at 
an average of 9.8 tanks per entity (86,100 tanks/8,770 reporting 
entities).
---------------------------------------------------------------------------

    \2\ U.S. Department of Transportation: Inspection and Testing of 
Portable Tanks and Intermediate Bulk Containers (OMB: 2137-0018).
---------------------------------------------------------------------------

    Within the maritime mode, portable tanks and IBCs are used by OSVs 
to transport hazardous materials to and from offshore platforms 
involved in the exploration and production of oil and natural gas. We 
estimate that the 1,334 OSVs are owned by 402 companies.\3\
---------------------------------------------------------------------------

    \3\ Of the 1,334 OSVs in the affected population, MISLE reports 
ownership of 1,125, leaving 209 vessels with unidentified ownership 
(1,334-1,125). The MISLE data for the 1,125 vessels with ownership 
data shows that the average fleet size is 3.3 vessels per company. 
Applying that average fleet size to the 209 vessels without 
ownership data yields 63 companies (209/3.3). The estimated company 
population is 402 companies (339 identified + 63 imputed).
---------------------------------------------------------------------------

    Our estimates are based on the number of portable tanks provided in 
the aforementioned ICRs. For special permits, the applicant only 
specifies the mode, or multiple modes, of transportation, such as motor 
vehicle, rail, or cargo vessel, that will be authorized by the permit. 
For maritime-related permits, detail data of the industry, vessel type, 
or vessel level is not submitted. Therefore, we apply the cross-
industry average of 9.8 tanks per entity, as described above, to 
estimate the total number of portable tanks subject to this rulemaking. 
With those inputs, we estimate that approximately 15 percent of all the 
affected portable tanks are used by OSV owners and operators ((1,334 
OSVs * 9.8 tanks per OSV)/86,100).
    We request comments specifically on the accuracy of our estimate as 
well as additional information that could improve the estimated number 
of 9.8 tanks per OSV.
Current Industry Practice
    The current Coast Guard-approved portable tanks are Intermodal (IM) 
101s and 102s. As discussed in the Background section in this NPRM, 
portable tank manufacturers, reacting to the harmonization of PHMSA's 
HMR regulations with international standards established in 2003, are 
no longer manufacturing IM 101 and IM 102 portable tanks. However, IM 
101 and IM 102 portable tanks that were manufactured and approved by 
PHMSA before January 1, 2003, may continue to be used in 
transportation. Under 49 CFR part 180, subpart G, the IM 101 and IM 102 
portable tanks must be inspected every 2[frac12] years and the results 
of the inspection must be recorded on a tag attached to each tank. 
Portable tanks that fail inspection must either be repaired and pass a 
second inspection or be removed from service. Over time, the supply of 
approved IM 101 and IM 102 portable tanks will diminish as the current 
stock either fails inspection or is withdrawn from service because of 
loss or damage. Owners of these tanks, who want to maintain their level 
of activity in the market, will need to replace their old tanks with 
IMO Type 1 or IMO Type 2 portable tanks, UN portable tanks, or IBCs, as 
IM 101 and IM 102 tanks will no longer be available on the market.

[[Page 14332]]

    Under the current Coast Guard regulations, owners wishing to 
replace a lost IM 101 or IM 102 portable tank with an IMO Type 1 or IMO 
Type 2 portable tank, a UN portable tank, or an IBC must apply to 
PHMSA's AAHMS for a special permit or Competent Authority Approval.
Cost Savings
    The Coast Guard analyzed the economic impact of the proposed rule 
in these three areas: (1) Expansion of the list of allowed portable 
tanks, (2) expansion of the list of allowed hazardous materials, and 
(3) inspection and tagging. The Coast Guard concluded that the proposed 
rule would impose no additional costs and would produce cost savings. 
In the sections below we present our analysis of these areas and a 
summary of the analysis.
(1) Expansion of the List of Allowed Portable Tanks
    As presented earlier, in the absence of the proposed rule, as IM 
101 and IM 102 portable tanks are phased out, vessel owners or 
operators would need to obtain special permits or a Competent Authority 
Approval in order to replace them with IMO Type 1 or IMO Type 2 
portable tanks, UN portable tanks, or IBCs.
    The DOT's ICR for Inspection and Testing of Portable Tanks and 
Intermediate Bulk Containers (OMB Control Number: 2137-0018) estimates 
that 300 tanks are manufactured each year that are on the list of 
portable tanks approved by DOT for transport. This proposed rule would 
approve the use of these tanks for transfer of hazardous materials to 
and from OSVs. Therefore, we use this figure as the basis for 
estimating the number of tanks that would require special permits or 
Competent Authority Approvals per year. Applying the 15 percent share 
of the population as calculated above, yields an estimate of 45 
portable tanks and IBCs obtained annually by the OSV industry. As 
stated above, each OSV handles approximately 9.8 tanks. Applying this 
to the annual number of replacement tanks yields an average of 5 
special permit or Competent Authority Approval requests for unapproved 
portable tanks by OSV per year (45 tanks/9.8 tanks per OSV).
    We used a 10-year forecast for our analysis. As the current rule 
has been in effect since 2003, we assume that we can project the annual 
estimate forward for the entire 10-year period. Our baseline then is 5 
special permits or Competent Authority Approval per year for unapproved 
portable tanks for a total of 50 over the forecast period.
    In the absence of the proposed rule, OSV owners would need to apply 
to PHMSA's AAHMS for a special permit or Competent Authority Approval 
to use an IMO Type 1 or IMO Type 2 portable tank, UN portable tank, or 
IBC to replace the lost IM 101 and IM 102 portable tanks. PHMSA 
estimates that the cost to industry to prepare the special permit or 
Competent Authority Approval is $1,010.\4\ By allowing this replacement 
by rulemaking, instead of by special permit or Competent Authority 
Approval, the proposed regulation would save industry $5,050 annually 
(5 permits * $1,010 unit cost). Therefore, the 10-year cost savings 
related to the reduction of special permits or Competent Authority 
Approval is estimated at $50,500, undiscounted.
---------------------------------------------------------------------------

    \4\ U.S. Department of Transportation: Inspection and Testing of 
Portable Tanks and Intermediate Bulk Containers (OMB: 2137-0018).
---------------------------------------------------------------------------

(2) Expansion of the List of Allowed Hazardous Materials
    The list of hazardous materials currently approved for transport in 
portable tanks is found in existing 46 CFR 98.30-5. Currently, vessels 
wishing to transport a material not on this list must apply to PHMSA's 
AAHMS for a special permit or Competent Authority Approval. Under the 
proposed rule, the three groups of materials referenced in proposed 
redesignated 46 CFR 98.30-7 would be added to the list of allowed 
materials.
    Based on information provided in the DOT ICR (OMB Control Number: 
2137-0051) Rulemaking, Special Permits, and Preemption Requirements, 
there are approximately 144 special permit or Competent Authority 
Approval requests per year. OSV owners and operators account for 
approximately 4.6% of the entities owning portable tanks and IBCs (402/
8,770). Therefore, the total number of special permit or Competent 
Authority Approval requests per year for unapproved hazardous materials 
is estimated at 7 (4.6 percent of 144 requests).
    Based on the same ICR, the administrative costs to prepare a 
special permit or Competent Authority Approval request is estimated at 
$1,010.\5\ Special permits or Competent Authority Approvals need to be 
renewed every two to five years, depending on the hazardous material. 
For the purpose of this analysis, we assume special permits or 
Competent Authority Approvals would need to be renewed four times over 
the 10-year period, with renewals starting in years 1, 4, 7, and 10. 
Therefore, vessels not needing to file the 7 special permits or 
Competent Authority Approvals would acquire total costs savings of 
$7,070 ($1,010 unit cost * 7 Approvals) four times over the 10-year 
period of analysis for a total of $28,280, undiscounted.
---------------------------------------------------------------------------

    \5\ U.S. Department of Transportation: Rulemaking, Special 
Permits and Preemption Requirements (OMB Control No. 2137-0051).
---------------------------------------------------------------------------

(3) Inspection and Tagging
    The existing inspection and tagging regime is based on 2\1/2\-year 
inspection cycles. The proposed rule would continue using that system 
for IMO Type 1 and IMO Type 2 portable tanks, UN portable tanks and 
IBCs. Thus, the proposed rule would not impose any additional 
regulatory burdens in the area of inspection and tagging.
Summary of Cost Savings
    As discussed above, there are no additional costs for inspection 
and tagging. The other two areas we analyzed, expansion of the list of 
allowed portable tanks and expansion of the list of allowed hazardous 
materials, showed cost savings.
    Table IV.A.3 presents the undiscounted cost savings of these two 
areas over the 10-year forecast period.

                               Table IV.A.3--Summary of Undiscounted Cost Savings
----------------------------------------------------------------------------------------------------------------
                                                                  Special permit   Expansion of
                                                                   or competent       list of
                                                                     authority       hazardous         Total
                                                                     approval        materials
----------------------------------------------------------------------------------------------------------------
Year                                                                     Savings         Savings         Savings
----------------------------------------------------------------------------------------------------------------
1...............................................................          $5,050          $7,070         $12,120
2...............................................................           5,050               0           5,050

[[Page 14333]]

 
3...............................................................           5,050               0           5,050
4...............................................................           5,050           7,070          12,120
5...............................................................           5,050               0           5,050
6...............................................................           5,050               0           5,050
7...............................................................           5,050           7,070          12,120
8...............................................................           5,050               0           5,050
9...............................................................           5,050               0           5,050
10..............................................................           5,050           7,070          12,120
                                                                 -----------------------------------------------
    Total.......................................................          50,500          28,280          78,780
----------------------------------------------------------------------------------------------------------------

    Table IV.A.4 presents the costs savings schedule at discounted 
rates of 7 percent and 3 percent.

                                Table IV.A.4--Schedule of Discounted Cost Savings
----------------------------------------------------------------------------------------------------------------
                              Year                                 Total savings        7%              3%
----------------------------------------------------------------------------------------------------------------
1...............................................................         $12,120         $11,327         $11,767
2...............................................................           5,050           4,411           4,760
3...............................................................           5,050           4,122           4,621
4...............................................................          12,120           9,246          10,768
5...............................................................           5,050           3,601           4,356
6...............................................................           5,050           3,365           4,229
7...............................................................          12,120           7,548           9,855
8...............................................................           5,050           2,939           3,987
9...............................................................           5,050           2,747           3,870
10..............................................................          12,120           6,161           9,018
                                                                 -----------------------------------------------
    Total.......................................................          78,780          55,467          67,231
                                                                 -----------------------------------------------
    Annualized..................................................  ..............           7,897           7,882
----------------------------------------------------------------------------------------------------------------

    At a 7 percent discount rate, the net savings is $55,467 across the 
10-year estimate period and $7,882 annualized.
Benefits
    The proposed rule would provide greater flexibility to industry by 
increasing the number of approved types of portable tanks available for 
use and increasing the list of pre-approved hazardous materials they 
can transport. The elimination of the special permits or Competent 
Authority Approvals would provide efficiency gains to industry by 
reducing or removing the time associated with preparing a special 
permit or Competent Authority Approval request and waiting for its 
return prior to engaging in business activities. The removal of the 
time burden associated with administrative procedures for special 
permit or Competent Authority Approval applications would facilitate 
quicker interactions between vessel operators and the manufacturers and 
lessors of the approved portable tanks. Government would also benefit 
from the reduced number of special permits or Competent Authority 
Approvals to process. We also expect an increase in regulatory 
efficiency, as we are harmonizing our regulations with international 
standards.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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.
    Entities are categorized by the North American Industry 
Classification System (NAICS) codes.\6\ By using the United States 
Small Business Administration (SBA) criteria for small businesses, the 
associated NAICS codes, and the 2007 United States Economic Census 
data,\7\ we are able to provide an overview of the OSV industry. We 
reviewed the vessel ownership data used in the cost analyses and 
determined that all of the owners of the OSVs are businesses, that is, 
none are owned by not-for-profit organizations or governments. OSVs can 
be classified under ``Navigational Services to Shipping'' (488330) and 
``Natural gas liquid extraction'' (211112) industries. These industries 
engage in a wide range of navigational shipping services including 
cargo salvaging and oil

[[Page 14334]]

recovery.\8\ According to the aforementioned U.S. Census Bureau data, 
approximately 85 percent of entities classified as ``Navigational 
Services to Shipping'' are considered small.\9\ One hundred percent of 
entities classified as ``Natural gas liquid extraction'' are considered 
small, as there are no entities exceeding the 500 employee SBA size 
standard.
---------------------------------------------------------------------------

    \6\ Small business information can be accessed online at http://www.sba.gov/size/indextableofsize.html.
    \7\ U.S. Census Bureau information can be accessed online at 
http://factfinder.census.gov/servlet/DatasetMainPageServlet?_program=ECN&_tabId=ECN1&_submenuId=datasets_4&_lang=en&_ts=246366688395.
    \8\ NAICS definitions can be accessed online at http://www.census.gov/econ/industry/def/d488330.htm and http://www.census.gov/econ/industry/def/d211112.htm, respectively.
    \9\ 85% of these entities meet the $7 million in annual revenue 
SBA size standard.
---------------------------------------------------------------------------

    The Coast Guard expects that this proposed rule would not have a 
significant economic impact on small entities. Furthermore, as 
described in the ``Executive Order 12866 and Executive Order 13563'' 
section, we do not expect this proposed rule to result in additional 
costs to industry. This proposed rule would reduce regulatory burdens 
by eliminating the need for special permits or Competent Authority 
Approvals for the specified portable tanks and hazardous materials and 
thus generate an annual net savings to the industry. Therefore, the 
Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule 
would not have a significant economic impact on a substantial number of 
small entities.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
to the Docket Management Facility at the address under ADDRESSES. In 
your comment, explain why you think it qualifies and how and to what 
degree this rule would economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult LT Elizabeth 
Newton, Office of Hazardous Material Standards, Coast Guard; telephone 
202-372-1419, email <a href="/cdn-cgi/l/email-protection#96d3faffecf7f4f3e2feb8dcb8d8f3e1e2f9f8d6e3e5f5f1b8fbfffa"><span class="__cf_email__" data-cfemail="99dcf5f0e3f8fbfcedf1b7d3b7d7fceeedf6f7d9eceafafeb7f4f0f5">[email protected]</span></a>. The Coast Guard will 
not retaliate against small entities that question or complain about 
this rule or any policy or action of the Coast Guard.
    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

    This proposed rule would call for a modification to an existing 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520). It would modify existing Office of Management and 
Budget (OMB) Collection of Information: OMB Control Number 2137-0051, 
``Rulemaking, Special Permits, and Preemption Requirements.''
    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 change in annual burden follow. The estimate 
covers the time for preparing or renewing special permit or Competency 
Authority Approval requests for carrying hazardous materials.
    Title: Rulemaking, Special Permits, and Preemption Requirements.
    OMB Control Number: 2137-0051.
    This collection of information applies to rulemaking procedures 
regarding PHMSA's HMR regulations. Specific areas covered in this 
information collection include 49 CFR Part 105, Subpart A and Subpart 
B, ``Hazardous Materials Program Definitions and General Procedures;'' 
49 CFR part 106, Subpart B, ``Participating in the Rulemaking 
Process;'' 49 CFR part 107, Subpart C, ``Preemption;'' and 49 CFR Part 
107, Subpart H, ``Approvals, Registrations and Submissions.'' The 
proposed rule would expand the types of allowed portable tanks and 
expand the list of allowed hazardous materials permitted in those 
tanks. Under current regulations, the use of these tanks or the 
transfer of the hazardous materials specified in the proposed rule 
would require a special permit or Competent Authority Approval from 
PHMSA's AAHMS. If the proposed rule becomes effective, these special 
permits or Competent Authority Approvals would no longer be needed. 
Eliminating these special permits or Competency Authority Approvals 
would reduce the burden associated with the OMB Control Number 2137-
0051 by reducing the number of respondents, responses, and burden hours 
associated with special permit or Competency Authority Approval 
requests. We contacted DOT regarding this collection of information. 
They validated our methodology and concurred that this proposed 
rulemaking would impact the referenced ICR. However, they will defer 
any adjustments to the ICR until the final rule is published.
    Summary of Collection of Information: The proposed rule would 
impact the burden associated with 49 CFR part 107, Subpart H, 
``Approvals, Registrations and Submissions.'' The proposed rule would 
eliminate the need for special permit or Competent Authority Approval 
applications and therefore reduce the burden associated with that part 
of the collection. As previously stated, we contacted DOT regarding 
this collection of information.
    Need for Information: Special permit or Competent Authority 
Approval procedures provide the information required for analytical 
purposes to determine if the requested relief provides for a comparable 
level of safety as provided by PHMSA's HMR regulations.
    Proposed Use of Information: The information collected under this 
ICR is used in the review process by PHMSA in determining the merits of 
the petitions for rulemakings and for reconsideration of rulemakings, 
as well as applications for special permits or Competent Authority 
Approvals, preemption determinations and waivers of preemption 
determinations. This rulemaking would affect special permit or 
Competent Authority Approval requests, which PHMSA's AAHMS would need 
to determine the merits and use of the unallowed tanks.
    Description of Respondents: The respondents impacted by this 
proposed rule are owners and operators of OSVs requesting the use of 
unauthorized portable tanks as well as owners and operators of OSVs 
requesting approval to transport unauthorized hazardous material.
    Number of Respondents: The number of respondents affected by this 
ICR is 8,770. The number of respondents impacted by this proposed rule 
would be 402 owners and operators of OSVs.
    Frequency of Response: Without the proposed rule, we estimate each 
respondent would have to provide a response every 2-5 years or one 
response per ICR renewal cycle.
    Burden of Response: The savings in burden hours per request is 
estimated at

[[Page 14335]]

5.5 hours (five-hour special permit or Competent Authority Approval 
requests + 0.5-hour recordkeeping).
    Estimated Total Annual Burden: Currently, the ICR annual hour 
burden is 4,219, of which 792 hours are the result of 144 special 
permit or Competent Authority Approval requests per year. As IM 101 and 
IM 102 portable tanks phase out, we expect an additional 5 special 
permits or Competent Authority Approvals per year over the three year 
ICR renewal period. This would add 27.5 future burden hours per year to 
the current 4,219 approved hourly estimate. As this proposed rule would 
eliminate the need for these special permit or Competent Authority 
Approval requests, it would eliminate the future burden by 27.5 hours 
per year. We estimate that expanding the list of hazardous materials 
approved for transfer to and from the specified portable tanks and IBCs 
would eliminate the filing of 7 special permits or Competent Authority 
Approvals per 3-year ICR renewal cycle. At 5.5 hours per special permit 
or Competent Authority Approval, this would be an additional reduction 
of 38.5 hours of regulatory burden per 3-year period. We are 
communicating with DOT regarding current estimates of special permit or 
Competent Authority Approval requests and the associated burden hours.
    Reason for Proposed Change: The proposed rule would eliminate the 
need for special permit or Competent Authority Approval requests for 
unauthorized portable tanks and IBCs as well as the unauthorized 
transport of hazardous materials.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we will submit a copy of this proposed rule to the OMB for 
its review of the collection of information.

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 proposed 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

G. Taking of Private Property

    This proposed rule would not cause 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not an economically significant rule and 
would not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

J. Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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, as supplemented by 
Executive Order 13563, and is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. The Administrator 
of the Office of Information and Regulatory Affairs has not designated 
it as a significant energy action. Therefore, it does not require a 
Statement of Energy Effects under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with 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 proposed rule uses the following voluntary consensus standard: 
International Maritime Dangerous Goods Code (IMDG) 2010 Edition, 
Amendment 35-10, Section: 4.2.0.1. The proposed sections that reference 
this standard and the locations of this standard are listed in proposed 
46 CFR 98.30-2.
    If you disagree with our use of the voluntary consensus standard 
listed above or are aware of voluntary consensus standards that might 
apply but are not listed, please send a comment to the docket using one 
of the methods under ADDRESSES. In your comment, please explain why you 
disagree with our use of this standard and/or identify voluntary 
consensus standards the Coast Guard has not listed that might apply.

M. Environment

    We have analyzed this proposed 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 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. This 
action falls under section 2.B.2, figure 2-1, paragraph (34)(d) and (e) 
of the Instruction and under section 6(a) of the ``Appendix to National 
Environmental Policy Act: Coast Guard Procedures for Categorical 
Exclusions, Notice of Final Agency Policy'' (67 FR 48243, July 23, 
2002).

[[Page 14336]]

This proposed rule involves regulations concerning equipping of 
vessels, regulations concerning equipment approval and carriage 
requirements, and regulations concerning vessel operation safety 
standards. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this proposed 
rule.

List of Subjects in 46 CFR Part 98

    Cargo vessels, Hazardous materials transportation, Incorporation by 
Reference, Marine safety, Reporting and recordkeeping requirements, 
Water pollution control.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 46 CFR part 98 as follows:

PART 98--SPECIAL CONSTRUCTION, ARRANGEMENT, AND OTHER PROVISIONS 
FOR CERTAIN DANGEROUS CARGOES IN BULK

    1. The authority citation for part 98 continues to read as follows:

    Authority: 33 U.S.C. 1903; 46 U.S.C. 3306, 3307, 3703; 49 U.S.C. 
App. 1804; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; 
Department of Homeland Security Delegation No. 0170.1.

Subpart 98.30--Portable Tanks and Intermediate Bulk Containers

    2. Revise the heading for subpart 98.30 to read as set forth above.
    3. Amend Sec.  98.30-1 as follows:
    a. In paragraph (a), after the words ``portable tanks'', add the 
words ``and Intermediate Bulk Containers (IBCs)'';
    b. In paragraph (b) introductory text, after the words ``portable 
tanks'', add the words ``and IBCs'';
    c. In paragraph (b)(1), remove ``;'' and add, in its place, ``.'';
    d. Revise paragraphs (b)(2) and (3); and
    e. Add paragraph (b)(4).
    The revisions and addition read as follows:


Sec.  98.30-1  Applicability.

* * * * *
    (b) * * *
    (2) An IM 101, IM 102, IMO Type 1, IMO Type 2, or UN portable tank.
    (3) A portable tank authorized for hazardous materials by the 
Associate Administrator for Hazardous Materials Safety (AAHMS) of the 
Pipeline and Hazardous Materials Safety Administration (PHMSA), under a 
special permit or Competent Authority Approval issued in accordance 
with 49 CFR part 107, subpart H.
    (4) An IBC, but restricted to those metal IBCs as described in 
Sec.  98.30-5 of this subpart.


Sec.  98.30-17  [Redesignated as Sec.  98.30-18]

    4. Redesignate Sec.  98.30-17 as Sec.  98.30-18.


Sec. Sec.  98.30-13 through 98.30-15  [Redesignated as Sec. Sec.  
98.30-15 through 98.30-17]

    5. Redesignate Sec. Sec.  98.30-13 through 98.30-15 as Sec. Sec.  
98.30-15 through 98.30-17, respectively.


Sec. Sec.  98.30-6 through 98.30-11  [Redesignated as Sec. Sec.  98.30-
9 through 98.30-14]

    6. Redesignate Sec. Sec.  98.30-6 through 98.30-11 as Sec. Sec.  
98.30-9 through 98.30-14, respectively.


Sec.  98.30-5  [Redesignated as Sec.  98.30-7]

    7. Redesignate Sec.  98.30-5 as Sec.  98.30-7.


Sec. Sec.  98.30-2 through 98.30-4  Redesignated as Sec. Sec.  98.30-3 
through 98.30-5]

    8. Redesignate Sec. Sec.  98.30-2 through 98.30-4 as Sec. Sec.  
98.30-3 through 98.30-5, respectively.
    9. Add new Sec.  98.30-2 to read as follows:


Sec.  98.30-2  Incorporation by reference.

    (a) Certain material is incorporated by reference into this subpart 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, the Coast Guard must publish notice of 
change in the Federal Register and the material must be available to 
the public. All approved material is available for inspection at the 
U.S. Coast Guard, Office of Design and Engineering Standards (CG-521), 
2100 2nd St. SW., Stop 7126, Washington, DC 20593-7126, and is 
available from the sources listed below. It is also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (b) International Maritime Organization (IMO), 4 Albert Embankment, 
London SE1 7SR, United Kingdom, http://www.imo.org.
    (1) International Maritime Dangerous Goods (IMDG) Code, 2010 
Edition Incorporating Amendment 35-10 Section: 4.2.0.1, IBR approved 
for Sec. Sec.  98.30-3 and 98.30-5.
    (2) [Reserved]
    10. Revise newly redesignated Sec.  98.30-3 to read as follows:


Sec.  98.30-3  Definitions.

    (a) IM 101 portable tank and IM 102 portable tank means a portable 
tank constructed and approved by PMSA and manufactured on or before 
January 1, 2003, that meets the requirements for continued use under 49 
CFR 173.32.
    (b) IMO Type 1 portable tank and IMO Type 2 portable tank means a 
portable tank constructed in accordance with Amendment 35-10 to the 
International Maritime Dangerous Goods (IMDG) Code (incorporated by 
reference, see Sec.  98.30-2) and approved on or before July 1, 2003, 
that meets the provisions for continued use under the IMDG Code.
    (c) MPT means a marine portable tank that was inspected and stamped 
by the Coast Guard on or before September 30, 1992, and that meets the 
applicable requirements in this part and part 64 of this chapter.
    (d) UN portable tank means a portable tank constructed in 
accordance with 49 CFR 178.274 and 178.275, and approved in accordance 
with 49 CFR 173.32 and 178.273.
    (e) IBC means an intermediate bulk container as defined in 49 CFR 
171.8.
    11. In newly redesignated Sec.  98.30-5:
    a. Revise paragraphs (a)(1), (a)(2) introductory text, and 
(a)(2)(i);
    b. In paragraph (a)(2)(ii), remove the word ``exemption'' and add 
in its place the words ``special permit'';
    c. Revise paragraph (b);
    d. Redesignate paragraph (c) as paragraph (d) and revise it; and
    e. Add new paragraph (c).
    The revisions and addition read as follows:


Sec.  98.30-5  Vessels carrying portable tanks other than MPTs.

    (a) * * *
    (1) An IM 101, IM 102, IMO Type 1, IMO Type 2, or UN portable tank 
authorized for its contents in accordance with 49 CFR 172.101, 
Hazardous Materials Table, Columns 7 and 8C.
    (2) A portable tank authorized by PHMSA's AAHMS under a special 
permit or Competent Authority Approval issued in accordance with 49 CFR 
part 107, subpart H.
    (i) According to the terms of the special permit or Competent 
Authority Approval, equivalent to an IM 101, IM 102, IMO Type 1, IMO 
Type 2, or UN portable tank.
* * * * *
    (b) Each IM 101, IM 102, or UN portable tank must be tested and 
inspected in accordance with 49 CFR part 180, subpart G and follow 
specifications in accordance with 49 CFR 178.275(c).
    (c) Each IMO Type 1 or IMO Type 2 portable tank must be tested and 
inspected in accordance with Amendment 35-10 to the IMDG Code

[[Page 14337]]

(incorporated by reference, see Sec.  98.30-2).
    (d) Each portable tank authorized under a special permit or 
Competent Authority Approval from PHMSA's AAHMS must be inspected, 
tested, maintained, and used in accordance with the terms of that 
special permit or Competent Authority Approval.
    12. Add new Sec.  98.30-6 to read as follows:


Sec.  98.30-6  Vessels carrying IBCs.

    Intermediate Bulk Containers (IBCs) with a classification of 31A 
may be used on a vessel to which this part applies and must meet at a 
minimum the following constructional requirements:
    (a) The shell thickness must be a minimum 6.36 mm (0.25 inches) in 
reference steel.
    (b) There must be a self-closing relief valve set to open at no 
less than 5 psig.
    (c) Closures used on fill openings, in excess of 20 square inches, 
must be equipped with a device to prevent them from fully opening 
without first relieving internal pressure.
    (d) All venting requirements must be followed in accordance with 49 
CFR 178.345-10, Table 1.
    13. In newly redesignated Sec.  98.30-7:
    a. In paragraph (a)(1), remove the words ``or ``ORM-E'' '' and add 
in their place the words `` ``hazardous substance'', or ``hazardous 
waste'' '';
    b. Revise paragraph (a)(2)(iii);
    c. In paragraph (a)(3), after the words ``material listed in'', add 
the words ``Table 98.30-7(a)--Certain Hazardous Materials Authorized 
For Transfer To and From Portable Tanks'';
    d. Remove Table 98.30-5(a) and add Table 98.30-7(a) in its place; 
and
    e. Revise paragraphs (b), (e), and (f).
    The revisions and addition to read as follows:


Sec.  98.30-7  Materials authorized for transfer to and from a portable 
tank.

    (a) * * *
    (2) * * *
    (iii) Is authorized for transport in an IM 101, IM 102, IMO Type 1, 
IMO Type 2, or UN portable tank under subpart F of 49 CFR part 173;
* * * * *

Table 98.30-7(a)--Certain Hazardous Materials Authorized for Transfer To
                         and From Portable Tanks
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Acetone
Alcohols; flash point of 80 [deg]F (27 [deg]C) or less by open-cup test
Benzene
Gasoline
Liquid Nitrogen
Mixtures of Hydrochloric acid and hydrofluoric acid containing not more
 than 36 percent hydrochloric acid or 2 percent hydrofluoric acid \1\
Methyl Ethyl Ketone
Mixtures of hydrochloric acid and hydrofluoric acid containing not more
 than 24 percent hydrochloric acid or 6 percent hydrofluoric acid\1\
Toluene (Toluol)
Corrosive liquid, toxic, N.O.S. (Mixtures of hydrochloric acid,
 hydrofluoric acid, and fluoboric acid), UN 2922, packing group II,
 containing not more than 11 percent hydrofluoric acid \1\
------------------------------------------------------------------------
Note:\1\ Each MPT must be lined with rubber or with material equally
  acid-resistant and equally strong and durable.

    (b) Grade D and Grade E combustible liquids with a flashpoint of 
100 [deg]F (38 [deg]C) or higher by closed cup test that are not listed 
by name in the Hazardous Materials Table of 49 CFR 172.101 may be 
transferred to and from an MPT, IM 101, IM 102, IMO Type 1, IMO Type 2, 
or UN portable tank conforming to the T Code ``T1'' specified in 49 CFR 
172.102(c)(7)(i).
* * * * *
    (e) Environmentally hazardous substances (see paragraph (a)(4) of 
this section) may be transferred only to and from an MPT, IM 101, IM 
102, IMO Type 1, IMO Type 2, or UN portable tank.
    (f) A portable tank authorized for transfer of hazardous material 
in this section may be substituted by another portable tank in 
accordance with 49 CFR 173.32(b).
* * * * *
    14. Add new Sec.  98.30-8 to read as follows:


Sec.  98.30-8  Materials authorized for transfer to and from an IBC.

    Any hazardous material listed in Table 98.30-7(a) of Sec.  98.30-7 
of this subpart may be transferred to and from an IBC under this 
subpart, with the exception of Liquid Nitrogen.
    15. Revise newly redesignated Sec.  98.30-9 to read as follows:


Sec.  98.30-9  Lifting a portable tank or IBC.

    No person may lift a portable tank and/or IBC with another portable 
tank and/or IBC.


Sec.  98.30-10  [Amended]

    16. In newly redesignated Sec.  98.30-10, after the words 
``portable tank'', add the words ``or IBC''.
    17. In newly redesignated Sec.  98.30-12:
    a. Revise the section heading;
    b. In paragraph (a), after the words ``portable tank'', add the 
words ``and/or IBC'';
    c. In paragraph (b) introductory text, after the words ``portable 
tank'', add the words ``and/or IBC''; and
    d. Add paragraph (c).
    The revision and addition read as follows:


Sec.  98.30-12  Stowage of portable tanks and IBCs.

* * * * *
    (c) All IBCs must be secured as specified in 49 CFR 176.74.
    18. In newly redesignated Sec.  98.30-13:
    a. Redesignate the introductory text, paragraph (a), and paragraph 
(b) as paragraphs (a) introductory text, (a)(1), and (a)(2), 
respectively;
    b. In newly redesignated paragraph (a) introductory text, after the 
words ``portable tank'', add the words ``or IBC'';
    c. Revise redesignated paragraph (a)(1); and
    d. Add paragraphs (a)(3) and (b).
    The revision and additions read as follows:


Sec.  98.30-13  Pipe connections, and filling and discharge openings.

    (a) * * *
    (1) For an IM 101, IM 102, IMO Type 1, IMO Type 2, or UN portable 
tank, the closures specified in 49 CFR 178.275.
* * * * *
    (3) For an IBC, the closures specified in 49 CFR 178.705.
    (b) A manifold cannot be used when transferring a hazardous 
material to or from a portable tank or IBC on board a vessel.


Sec.  98.30-15  [Amended]

    19. In redesignated Sec.  98.30-15(a), after the words ``portable 
tank'', add the words ``or IBC''.
    20. In newly redesignated Sec.  98.30-16:
    a. Revise the section heading;
    b. In paragraph (a) introductory text, remove the word ``shall'' 
and add in its place the word ``must''; and
    c. Add paragraph (c).
    The revision and addition read as follows:


Sec.  98.30-16  Requirements for ships carrying NLSs in portable tanks 
and IBCs.

* * * * *
    (c) Any ship that carries NLSs in an IBC, as described in section 
98.30-5 of this subpart, must meet all requirements in accordance with 
46 CFR 125.120.


Sec.  98.30-18  [Amended]

    21. In newly redesignated Sec.  98.30-18:
    a. In paragraph (a) remove the word ``shall'' and add, in its 
place, the word ``must'', and after the words ``portable tank'', add 
the words ``or IBC''; and

[[Page 14338]]

    b. In paragraph (b) introductory text, after the words ``portable 
tank'', add the words ``or IBC'', and remove the word ``shall'', and 
add, in its place, the word ``must''.


Sec.  98.30-19  [Amended]

    22. In Sec.  98.30-19, in paragraphs (b) and (c), after the words 
``portable tank'', add the words ``or IBC''.


Sec.  98.30-21  [Amended]

    23. In Sec.  98.30-21, in the introductory text and paragraphs (b) 
and (c), after the words ``portable tank'', add the words ``or IBC''.


Sec.  98.30-23  [Amended]

    24. In Sec.  98.30-23, in the introductory text, after the words 
``portable tank'', add the words ``or IBC''.


Sec.  98.30-25  [Amended]

    25. In Sec.  98.30-25, after the words ``portable tank'', add the 
words ``or IBC''.


Sec.  98.30-27  [Amended]

    26. In Sec.  98.30-27, in paragraph (a) introductory text, remove 
the word ``shall'' and add, in its place, the word ``must''.


Sec.  98.30-29  [Amended]

    27. In Sec.  98.30-29, after the words ``portable tank'', add the 
words ``or IBC''.


Sec.  98.30-31  [Amended]

    28. In Sec.  98.30-31, in the introductory text, after the words 
``portable tank or'', add the words ``IBC or''.


Sec.  98.30-33  [Amended]

    29. In Sec.  98.30-33, in paragraph (a) introductory text and 
paragraph (b), after the words ``portable tank'', add the words ``or 
IBC''.


Sec.  98.30-35  [Amended]

    30. In Sec.  98.30-35, after the words ``portable tank'', add the 
words ``or IBC''.


Sec.  98.30-37  [Amended]

    31. In Sec.  98.30-37, in the introductory text, after the words 
``portable tank or'', add the words ``or IBC''.

Subpart 98.33--Portable Tanks and IBCs for Certain Grade E 
Combustible Liquids and Other Regulated Materials

    32. Revise the heading for subpart 98.33 to read as set forth 
above.
    33. In Sec.  98.33-1:
    a. Revise paragraph (b)(1) (including removal of the note);
    b. Amend paragraph (b)(2) by removing ``; and'' and adding in its 
place ``.''; and
    c. Add paragraph (b)(4).
    The revision and addition read as follows:


Sec.  98.33-1  Applicability.

* * * * *
    (b) * * *
    (1) A DOT-specification 57 portable tank constructed on or before 
October 1, 1996, or a UN portable tank (see 49 CFR 173.32 and Sec.  
98.30-3(d) of this part).
* * * * *
    (4) An Intermediate Bulk Container (IBC), but restricted to those 
metal IBCs as described in Sec.  98.30-5 of this subpart.


Sec.  98.33-3  [Amended]

    34. In Sec.  98.33-3, in the introductory text, after the words 
``portable tanks'', add the words ``or IBCs''.
    35. In Sec.  98.33-5:
    a. Revise the section heading;
    b. Redesignate the introductory text, paragraph (a), and paragraph 
(b) as paragraphs (a), (a)(1), and (a)(2), respectively; and
    c. Add new paragraph (b).
    The revision and addition read as follows:


Sec.  98.33-5  Portable tanks and IBCs authorized.

* * * * *
    (b) The cargoes authorized under Sec.  98.33-3 may be transferred 
to and from IBCs to which this subpart applies if the IBCs meet the 
requirements in Sec.  98.30-5 of this part.


Sec.  98.33-7  [Amended]

    36. In Sec.  98.33-7, after the words ``portable tank'', add the 
words ``or IBC''.


Sec.  98.33-9  [Amended]

    37. In Sec.  98.33-9, after the words ``portable tank'', add the 
words ``or IBC''.


Sec.  98.33-11  [Amended]

    38. In Sec.  98.33-11, in paragraphs (a) and (b), after the words 
``portable tank'', add the words ``or IBC''.


Sec.  98.33-13  [Amended]

    39. In Sec.  98.33-13, after the words ``portable tank'', add the 
words ``or IBC''.


Sec.  98.33-15  [Amended]

    40. In Sec.  98.33-15, in the introductory text, after the words 
``portable tank'', add the words ``or IBC''.

    Dated: February 10, 2012.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2012-5551 Filed 3-8-12; 8:45 am]
BILLING CODE 9110-04-P


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