[Federal Register Volume 77, Number 59 (Tuesday, March 27, 2012)]
[Proposed Rules]
[Pages 18151-18157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7344]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 155

[Docket No. USCG-2011-0430, Formerly CGD 90-068]
RIN 1625-AA02, Formerly 2115-AD66


Discharge Removal Equipment for Vessels Carrying Oil

AGENCY: Coast Guard, DHS.

ACTION: Notice of intent to finalize with request for comments.

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SUMMARY: The Coast Guard is advising the public of its intent to 
finalize regulations previously published as an interim final rule on 
December 22, 1993. The interim final rule was published to reduce the 
risk of oil spills, improve vessel oil spill response capabilities, and 
minimize the impact of oil spills on the environment, but certain 
portions of the interim final rule were never published as a final 
rule. Because of the lapse in time since the interim final rule's 
publication, the Coast Guard is seeking comments from the public before 
finalizing those portions of the interim final rule.

DATES: Comments must be received on or before May 29, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0430 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, 
call or email Mr. David Du Pont, Office of Standards Evaluation and 
Development (CG-523), U.S. Coast Guard; telephone 202-372-1497, email 
<a href="/cdn-cgi/l/email-protection#682c091e010c4629462c1d3807061c281d1b0b0f46050104"><span class="__cf_email__" data-cfemail="0c486d7a6568224d2248795c6362784c797f6f6b22616560">[email protected]</span></a>. If you have questions on viewing or submitting 
material to the docket, call Ms. Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Notice

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Basis and Purpose
    A. Statutory and Regulatory History
    B. Why is this notice of intent necessary?
IV. Summary of Regulations in the IFR
V. Subsequent Changes to the IFR Regulations
VI. Discussion of Comments
    A. Comments on Specific Sections in the IFR
    B. General Comments
VII. Supporting Analyses
    A. Regulatory Assessment
    B. Environment
VIII. Intent To Finalize; Request for Comments


[[Page 18152]]



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.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0430), 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 (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via www.regulations.gov, it will be considered received 
by the Coast Guard when you successfully transmit the comment. If you 
fax, hand deliver, or mail your comment, it will be considered as 
having been received by the Coast Guard when it is received at the 
Docket Management Facility. 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 
``Notice'' and insert ``USCG-2011-0430'' 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 the final 
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 insert ``USCG-2011-0430'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the Internet, you may also visit 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 on or before April 26, 2012 using one of the four 
methods specified under the ADDRESSES section above. Please 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. Such a notice will 
also include contact information for requests regarding facilities or 
services for individuals with disabilities or special assistance at the 
public meeting.

II. Abbreviations

CFR Code of Federal Regulations
COI Certificate of Inspection
DRE Discharge removal equipment
EA Environmental Assessment
FONSI Finding of No Significant Impact
FR Federal Register
IFR Interim final rule
IMO International Maritime Organization
NAICS North American Industry Classification System
NEPA National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321-4370f)
NOI Notice of intent
OPA 90 Oil Pollution Act of 1990 (Public Law 101-380, 104 Stat. 484, 
August 18, 1990)
OSRO Oil spill removal organization
OSRV Oil spill response vessel
RE Regulatory Evaluation (aka Regulatory Assessment)
Sec.  Section symbol
U.S.C. United States Code

III. Basis and Purpose

A. Statutory and Regulatory History

    Section 4202(a)(6) of the Oil Pollution Act of 1990 (OPA 90) (Pub. 
L. 101-380; 104 Stat. 484; August 18, 1990) amended section 311(j) of 
the Federal Water Pollution Control Act (33 U.S.C. 1321(j)) by, among 
other things, adding a new paragraph (6) to require vessels operating 
on the navigable waters of the United States and carrying oil or a 
hazardous substance in bulk as cargo to carry appropriate discharge 
removal equipment (DRE) on board.
    On August 30, 1991, the Coast Guard published an advance notice of 
proposed rulemaking to solicit information to assist the Coast Guard in 
development of proposed rules that implement the OPA 90 mandate for 
DRE.\1\ On September 29, 1992, the Coast Guard published a notice of 
proposed rulemaking that proposed to establish DRE regulations.\2\ On 
December 22, 1993 the Coast Guard published an interim final rule (IFR) 
that established DRE requirements for on-deck spills, and also required 
vessels to install spill prevention coamings, to install emergency 
towing arrangements, and to have a prearranged capability to calculate 
damage stability in the event of a casualty.\3\
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    \1\ 56 FR 43534 (Aug. 30, 1991).
    \2\ 57 FR 44912 (Sept. 29, 1992).
    \3\ 58 FR 67988 (Dec. 22, 1993).
---------------------------------------------------------------------------

    In addition to the above documents, the Coast Guard has published 
several DRE-related notices and technical amendments throughout the 
course of this rulemaking. The complete regulatory history of the DRE 
rulemaking is summarized below.

----------------------------------------------------------------------------------------------------------------
            Document type                Federal Register cite     Date published             Comments
----------------------------------------------------------------------------------------------------------------
Advance notice of proposed rulemaking  56 FR 43534.............          8/30/1991  Requested comments and
                                                                                     information to help develop
                                                                                     response plans for all
                                                                                     vessels carrying oil as
                                                                                     cargo and carriage and
                                                                                     inspection of discharge-
                                                                                     removal equipment.

[[Page 18153]]

 
Notice of intent to form a negotiated  56 FR 58202.............         11/18/1991  Consideration was given to
 rulemaking committee.                                                               establishing a negotiated
                                                                                     rulemaking committee to
                                                                                     develop part of the
                                                                                     regulations to be issued
                                                                                     under OPA 90.
Notice of intent to form a negotiated  56 FR 60949.............         11/29/1991  Clarified list of groups
 rulemaking committee; supplemental                                                  that would be affected by
 notice and clarification.                                                           the rulemaking.
Notice of meeting of negotiated        56 FR 66611.............         12/24/1991  Announced first public
 rulemaking committee on oil spill                                                   meeting of committee to be
 response plans.                                                                     January 8-10, 1992.
Notice of meetings of negotiated       57 FR 1890..............          1/16/1992  A schedule of four committee
 rulemaking committee on oil spill                                                   meetings was released; a
 response plans and finalization of                                                  previously scheduled
 committee membership.                                                               meeting was cancelled and
                                                                                     two additions were made to
                                                                                     the list of committee
                                                                                     participants.
Notice of additional meetings of the   57 FR 9402..............          3/18/1992  Announced the addition of a
 Oil Spill Response Plan Negotiated                                                  committee meeting on March
 Committee.                                                                          26, 1992.
Notice of proposed rulemaking........  57 FR 44912.............          9/29/1992  Proposed requirement for
                                                                                     vessels carrying oil in
                                                                                     bulk as cargo.
Proposed rule; extension of comment    57 FR 48489.............         10/26/1992  Extended comment period
 period.                                                                             ended November 16, 1992.
IFR..................................  58 FR 67988.............         12/22/1993  Established requirements for
                                                                                     vessels carrying oil in
                                                                                     bulk as cargo; also
                                                                                     required vessels to have
                                                                                     pre-arranged capability to
                                                                                     calculate damage stability
                                                                                     in case of a casualty. Rule
                                                                                     also sought further
                                                                                     comments and information on
                                                                                     emerging technology to help
                                                                                     prevent, contain, or remove
                                                                                     oil discharges from
                                                                                     vessels. Comment period
                                                                                     ended February 22, 1994.
                                                                                     IFR effective on January
                                                                                     21, 1994.
IFR correction.......................  59 FR 3749..............          1/26/1994  Four corrections made to IFR
                                                                                     (58 FR 67988).
----------------------------------------------------------------------------------------------------------------

B. Why is this notice of intent necessary?

    The Coast Guard is advising the public of our intent to finalize 
regulations previously published as an IFR on December 22, 1993. The 
IFR was never published as a final rule. Because of the lapse in time 
since the IFR's publication, the Coast Guard is seeking comments from 
the public before issuing a final rule.

IV. Summary of Regulations in the IFR

    Below is a list of the sections in Title 33 of the Code of Federal 
Regulations (CFR) part 155 that were amended or added by the DRE IFR.

------------------------------------------------------------------------
         Section No.                  Title               Amendment
------------------------------------------------------------------------
Sec.   155.140..............  Incorporation by      Revised paragraph
                               reference.            (a); in paragraph
                                                     (b), added an entry
                                                     for International
                                                     Maritime
                                                     Organization (IMO)
                                                     Resolution
                                                     A.535(13).
Sec.   155.200..............  Definitions.........  Added new section to
                                                     subpart B.
Sec.   155.205..............  Discharge removal     Added new section to
                               equipment for         subpart B.
                               vessels 400 feet or
                               greater in length.
Sec.   155.210..............  Discharge removal     Added new section to
                               equipment for         subpart B.
                               vessels less than
                               400 feet in length.
Sec.   155.215..............  Discharge removal     Added new section to
                               equipment for         subpart B.
                               inland oil barges.
Sec.   155.220..............  Discharge removal     Added new section to
                               equipment for         subpart B.
                               vessels carrying
                               oil as secondary
                               cargo.
Sec.   155.225..............  Internal cargo        Added new section to
                               transfer capability.  subpart B.
Sec.   155.230..............  Emergency towing      Added new section to
                               capability for oil    subpart B.
                               barges.
Sec.   155.235..............  Emergency towing      Added new section to
                               capability for oil    subpart B.
                               tankers.
Sec.   155.240..............  Damage stability      Added new section to
                               information for oil   subpart B.
                               tankers and
                               offshore oil barges.
Sec.   155.245..............  Damage stability      Added new section to
                               information for       subpart B.
                               inland oil barges.
Sec.   155.310..............  Containment of oil    Revised the section
                               and hazardous         heading and the
                               material cargo        introductory text
                               discharges.           to paragraph (b);
                                                     added paragraphs
                                                     (c) and (d).
------------------------------------------------------------------------

V. Subsequent Changes to the IFR Regulations

    Since the publication of the IFR, a number of separate rulemaking 
projects and technical amendments have modified the sections amended or 
added by the IFR. These subsequent amendments were finalized after 
notice in the Federal Register and an opportunity for public comment. 
Accordingly, these subsequent amendments are not the subject of this 
notice of intent (NOI). The subject of this NOI is limited to those 
portions of the IFR that have not yet been finalized.
    A summary of the subsequent amendments follows.

[[Page 18154]]



------------------------------------------------------------------------
                                 Source(s) of
        Section No.               amendment        Description of change
------------------------------------------------------------------------
Sec.   155.140............  CGD 96-026, 61 FR      Periodically updated
                             33666, June 28,        CG and other
                             1996; CGD 95-028, 62   addresses, replaced
                             FR 51194, Sept. 30,    emergency towing
                             1997; USCG-1998-       arrangement
                             4443, 63 FR 71763,     guidelines for
                             Dec. 30, 1998; USCG-   tankers in 1997,
                             1999-5151, 64 FR       revised format of
                             67176, Dec. 1, 1999;   section in 2008.
                             USCG-2008-0179, 73
                             FR 35015, June 19,
                             2008; USCG-1998-
                             3417, 73 FR 80648,
                             Dec. 31, 2008, as
                             amended by USCG-2001-
                             8661, 74 FR 45026,
                             Aug. 31, 2009; USCG-
                             2010-0351, 75 FR
                             36285, June 25, 2010.
Sec.   155.200............  USCG-2001-9046, 67 FR  Added definition in
                             58524, Sept. 17,       2002, then removed
                             2002; 73 FR 79316,     same definition in
                             Dec. 29, 2008.         2008.
Sec.   155.205............  USCG-1998-3799, 64 FR  In paragraph (a),
                             35531, June 30, 1998.  removed compliance
                                                    date that had
                                                    passed.
Sec.   155.210............  USCG-1998-3799, 64 FR  In paragraph (a),
                             3553, June 30, 1998.   removed compliance
                                                    date that had
                                                    passed.
Sec.   155.215............  USCG-1998-3799, 64 FR  In paragraph (a),
                             35531, June 30, 1998.  removed compliance
                                                    date that had
                                                    passed.
Sec.   155.220............  USCG-1998-3799, 64 FR  In paragraph (a),
                             35531, June 30, 1998.  removed compliance
                                                    date that had
                                                    passed.
Sec.   155.225............  USCG-1998-3799, 64 FR  In paragraph (a),
                             35531, June 30, 1998.  removed compliance
                                                    date that had
                                                    passed.
Sec.   155.230............  USCG-1998-4443, 65 FR  Replaced section in
                             31811, May 19, 2000,   2000, renamed to
                             as amended by USCG-    emergency control
                             2001-8661, 74 FR       systems for tank
                             45026, Aug. 31,        barges.
                             2009; USCG-2010-
                             0351, 75 FR 36285,
                             June 25, 2010.
Sec.   155.235............  CGD 95-028, 62 FR      Replaced section in
                             51194, Sept. 30,       1997 and again in
                             1997; USCG-2001-       2009. Revised into
                             8661, 74 FR 45026,     one paragraph
                             Aug. 31, 2009.         stating emergency
                                                    towing arrangements
                                                    must be on both ends
                                                    of oil tankers not
                                                    less than 20,000
                                                    deadweight tons
                                                    (dwt). Referenced
                                                    more recent IMO
                                                    Maritime Safety
                                                    Committee
                                                    resolution.
Sec.   155.240............  USCG-1998-3799, 63 FR  In paragraph (a),
                             35531, June 30, 1998.  removed compliance
                                                    date that had
                                                    passed; and, in
                                                    paragraph (d),
                                                    redesignated
                                                    paragraphs (i),
                                                    (ii), and (iii) as
                                                    paragraphs (1), (2)
                                                    and (3)
                                                    respectively.
Sec.   155.245............  USCG-1998-3799, 63 FR  Removed compliance
                             35531, June 30, 1998.  date that had
                                                    passed.
Sec.   155.310............  USCG-1998-3799, 63 FR  Removed compliance
                             35531, June 30, 1998.  date that had
                                                    passed.
------------------------------------------------------------------------

VI. Discussion of Comments

    The Coast Guard received 38 comment letters in response to the IFR, 
with about 60 individual comments. No public meeting was requested and 
none was held. The comments are grouped below into comments related to 
specific 33 CFR part 155 DRE sections and general comments to the IFR.

A. Comments on Specific Sections in the IFR

Sections 155.205, 155.210, 155.215, and 155.220--Carriage of Discharge 
Removal Equipment for On-Deck, Oil-Cargo Spills
    The Coast Guard received a number of comments on the carriage of 
DRE for on-deck oil-cargo spills.
    Several commenters suggested changes to the quantities of oil 
specified in paragraph (a) of Sec. Sec.  155.205, 155.210, 155.215, and 
155.220, stating that the equipment and supplies must be capable of 
containing and removing oil (e.g., 12 barrels of oil for vessels 400 
feet or greater in length). Two comments stated that the quantities 
specified in the IFR were too small, one that the quantities were too 
large, and one that they were reasonable.
    We believe that the quantities specified strike an appropriate 
balance for the categories of vessels specified, and that the 
distribution of comments received supports that view.
    Two comments stated that paragraphs (b)(1) and (b)(2) of Sec. Sec.  
155.205, 155.210, 155.215, and 155.220 should state the specific 
quantity of sorbent and hand tools required. These sections presently 
require that the equipment and supplies be ``appropriate'' for the 
containment and removal of the amount of oil specified.
    We decided not to require carriage of specific quantities of 
sorbents and hand tools because vessel owners or operators are best 
able to determine the quantity necessary given variability in cargo 
carriage, operational practices and environment, and other factors.
    One comment stated that the IFR did not define the term 
``contract.''
    We disagree. The term ``contract or other approved means'' is 
defined in 33 CFR 155.1020.
    Three comments stated that inland oil barges engaged in transfer 
operations between the barge and another vessel should not rely on the 
other vessel to provide the required DRE.
    We agree. The optional provision to allow inland oil barges to rely 
on other means for the required DRE applies only to transfer facilities 
in which the barge owner or operator has made prearrangements through a 
contract or other approved means. Inland oil barges must maintain their 
own DRE when involved in bunkering operations.
    Several comments stated that the exclusive transportation of 
certain cargoes, such as animal fats and vegetable oils or Grade D and 
E products (see 46 CFR 30.10-15), have a reduced risk and should be 
regulated differently.
    We see the merit of this argument and will consider revisions to 
these sections. We seek comments on which specific cargoes fall into 
the reduced risk category and in particular how the risk is reduced.
Sections 155.230 and 155.235--Emergency Towing Capability
    The Coast Guard received a number of comments on emergency towing 
capability. Most of the comments related to tankers, whereas three 
related to barges.
    Regarding barges, Sec.  155.230 (originally titled ``Emergency 
towing capability for oil barges'') was replaced by a separate 
rulemaking (Emergency Control Measures for Tank Barges, 65 FR 31811, 
May 19, 2000) which became effective on December 11, 2000. Because 
Sec.  155.230 was completely replaced by that final rule after the 
public had an opportunity to comment, we seek no further comments on 
that section.
    Similarly for tankers, Sec.  155.235 was replaced, on two separate 
occasions, by two separate rulemakings. The first rulemaking, titled 
``Harmonization With International Safety Standards'' (62 FR 51194, 
September 30, 1997), became effective on October 30, 1997. The second 
rulemaking, titled ``Vessel and Facility Response Plans for Oil: 2003 
Removal Equipment Requirements and Alternative Technology Revisions'' 
(74 FR 45026, August 31, 2009), became effective on September 30, 2009. 
Because Sec.  155.235 was completely replaced by two final rules after 
the public had an opportunity to comment,

[[Page 18155]]

we seek no further comments on that section.
Sections 155.240 and 155.245--Damage Stability Information
    The Coast Guard received a number of comments on damage stability 
information.
    One commenter stated that, for inland oil barges, the Coast Guard 
should allow damage stability information to be maintained in 
computerized form instead of paper form.
    Nothing in the current regulation prohibits this. Section 155.245 
requires that the plans for an inland tank barge be readily available 
for use in salvage, stability, and residual strength calculations. 
However, the regulation does not specify the form of the plans (e.g., 
paper or electronic). As currently written, there is nothing in the 
regulation that requires--or precludes--the plans being in either form; 
operators may use whichever is most convenient.
    Two commenters stated that the damage stability information 
requirement for oil tankers should only apply to larger oil tankers.
    We disagree. The ability to perform stability and strength 
calculations as quickly as possible is appropriate for all 46 CFR 
Subchapter D tank vessels (ships and barges) on ocean and coastwise 
routes--regardless of vessel size--to minimize the risk of subsequent 
spills during the salvage response.
    Section 155.240 requires owners or operators of 46 CFR Subchapter D 
tank vessels to ensure that they have pre-arranged, prompt access to 
computerized, shore-based damage stability and residual structural 
strength calculation programs. Pre-loading vessel information into 
computer programs allows for faster analytic support in casualty 
situations. This is because time is of the essence in these 
circumstances, especially for offshore locations where tidal levels or 
sea conditions can change significantly in short order. This rationale 
applies to oil tankers, regardless of vessel size.
    One commenter stated that the Coast Guard went beyond the 
recommendation of the regulatory negotiation committee (Committee) by 
requiring that computerized damage stability information for oil 
tankers be kept on shore.
    The Negotiated Rulemaking Act (5 U.S.C. 561 et seq.) permits an 
agency to establish a negotiated rulemaking committee to negotiate and 
develop a proposed rule. Nothing in the Negotiated Rulemaking Act 
requires an agency to adopt a negotiated rulemaking committee's 
recommendation as a final rule.
    The DRE NPRM referred to the Committee recommendation that an owner 
or operator of a tanker, offshore tank barge, or coastal tank barge 
have prearranged, prompt access to computerized on-board or shore-based 
damage stability and residual structural strength calculation programs. 
57 FR 44916.
    Based on subsequent analysis, the Coast Guard determined that 
computerized damage stability information should be specifically 
available ashore. This is to ensure that information is available if 
the information aboard the vessel is destroyed or inaccessible. The 
Coast Guard included this requirement in the IFR and intends to 
finalize this requirement in the final rule. Additionally, a 
requirement for computerized shore-based damage stability information 
is also found in the Tank Vessel Response Plans for Oil regulations 
(see 33 CFR 155.1035(c)(11)(ii) and 155.1040(c)(10)(ii)).
Section 155.310--Deck Edge Coamings for On-Deck Spills
    The Coast Guard received a number of comments on deck edge coamings 
for on-deck spills.
    One commenter stated that the term ``peripheral coamings'' in Sec.  
155.310(c) may be misinterpreted and be applied to areas beyond the 
cargo deck area.
    We have reviewed the use of the term ``peripheral coamings'' and 
believe that Sec.  155.310(c) clearly delineates the boundaries of the 
required coamings.
    Two commenters stated that coamings may present a safety hazard for 
vessels operating for prolonged periods in freezing weather.
    We agree in part. The Coast Guard recognizes the special 
difficulties and hazards posed by the buildup of ice through prolonged 
periods of operation in freezing weather. Depending upon the 
particulars of a vessel, the owner or operator may find the need to 
request an exemption from these requirements under 33 CFR 155.130.
    One commenter stated that the requirement to install coamings 
should apply only to vessels that carry oil and not to those that are 
certificated to carry both oil and hazardous materials, but actually 
carry only hazardous materials.
    We disagree. If a vessel is certificated to carry oil, the vessel 
must be outfitted to meet all of the requirements for the carriage of 
oil.
    One commenter stated that the coaming-containment capacity should 
be raised. Another two commenters stated that the containment capacity 
should be lowered for certain vessels.
    We believe that the coaming containment capacities specified strike 
an appropriate balance between the size of a vessel and the areas of 
operation, and that the distribution of comments received supports that 
view.
    One commenter stated that alternatives to peripheral coamings 
should be allowed on tank vessels carrying animal fats, vegetable oils, 
or non-persistent oils, but offered no specific alternative.
    Absent a specific alternative to evaluate, we disagree and believe 
that peripheral coamings are an appropriate element of the pollution 
prevention regime for preventing on-deck spills of any oil type from 
reaching the marine environment.

B. General Comments

On-Water Containment and Removal Equipment
    The IFR asked for additional information on major spill prevention 
and response equipment, such as booms, skimmers, and temporary storage 
devices designed to be carried on board vessels. It specifically 
requested information on the appropriateness of this equipment, on the 
technological and economic feasibility of requiring this equipment, and 
on the compatibility of this equipment with safe vessel operation.
    We received 18 responses to this request. Ten responses were in 
support of the carriage of major equipment on board vessels, and eight 
responses were against the concept. Of the ten responses in support, 
eight were from vessel-based equipment developers. Of the eight 
responses in opposition, all were vessel operators or organizations 
that represented vessel operators.
    Section 310 of the Coast Guard Authorization Act of 1993 (Pub. L. 
103-206) required the Secretary of Transportation \4\ to review and 
evaluate these technologies, and to submit a report to Congress with 
recommendations on the feasibility and environmental benefits of 
requiring tank vessels to carry oil spill prevention and response 
equipment. The DRE IFR provided a means to obtain that information.
---------------------------------------------------------------------------

    \4\ Prior to February 25, 2003, the Coast Guard was part of the 
Department of Transportation. Since that time, the Coast Guard has 
been part of the Department of Homeland Security.
---------------------------------------------------------------------------

    On September 8, 1998, the Coast Guard issued a report to Congress, 
titled ``Feasibility and Environmental Benefits Associated with 
Requiring Oil Spill Response Equipment on Tank Vessels.'' A copy of 
that report is available in the docket where indicated under the

[[Page 18156]]

``Public Participation and Request for Comments'' section of this 
notice.
    In that report the Coast Guard concluded that while it may be 
technologically feasible to carry and deploy oil spill response 
equipment aboard a tank vessel without risking the safety of the crew, 
the practical limitations of the equipment in oil spill response make 
it economically, environmentally, and technologically unfeasible to 
require tank vessels to carry the equipment. The Coast Guard further 
concluded, in consideration of the practical limitations on the 
equipment's effectiveness in spill response, that vessel-based 
equipment should not be required for tank vessels and, if carried, 
should not be credited against their required response capabilities 
given those limitations.
    We continue to believe that shore-based response equipment is the 
preferred method for responding to actual or potential on-water oil 
spills. We do not believe that tank vessels should be required to carry 
major prevention and response equipment.
Spill-Tracking Devices
    We received three comments on devices for tracking the movement of 
spills. Two commenters stated that the carriage of some form of spill 
tracking device should be required. One commenter stated that, if a 
spill tracking device were required, a national or international 
standard should be adopted first so that a vessel need carry only one 
type of device throughout its operating area.
    Since the IFR was published, oil spill tracking requirements for 
tank vessels have changed. In the rulemaking titled ``Vessel and 
Facility Response Plans for Oil: 2003 Removal Equipment Requirements 
and Alternative Technology Revisions'' (74 FR 45026, August 31, 2009), 
owners and operators of tank vessels operating in oceans and coastal 
waters must identify in their response plans, and ensure availability 
through contract or other approved means, response resources necessary 
to provide aerial oil tracking to support oil spill assessment and 
cleanup activities (see 33 CFR 155.1050(l)).
    We believe that this response plan requirement is sufficient in the 
area of oil spill tracking, and therefore seek no further comments on 
this topic.
Preemption
    Two commenters stated that the Coast Guard lacks the authority 
under OPA 90 to preempt more stringent state requirements related to 
DRE.
    We disagree. It is well settled that States may not regulate in 
categories reserved for regulation by the Coast Guard. It is also well 
settled, now, that all of the categories covered in 46 U.S.C. 3306, 
3703, 7101, and 8101 (design, construction, alteration, repair, 
maintenance, operation, equipping, personnel qualification, and manning 
of vessels), as well as the reporting of casualties and any other 
category in which Congress intended the Coast Guard to be the sole 
source of a vessel's obligations, are within the field foreclosed from 
regulation by the States. (See the decision of the Supreme Court in the 
consolidated cases of United States v. Locke and Intertanko v. Locke, 
529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000)). Here, the Coast Guard is 
promulgating regulations to require discharge removal equipment for 
vessels operating on the navigable waters of the U.S. and that are 
carrying oil in bulk as cargo or cargo residue, which will improve 
safety. Because States may not promulgate rules within this category, 
preemption is not an issue.
Oil Spill Response Vessels
    One commenter stated that we should clarify whether this rule 
applies to a dedicated oil spill response vessel (OSRV).
    We wish to clarify that this rule does not apply to a dedicated 
OSRV when conducting response operations in the response area.
Inland Oil Barges on Limited Offshore Routes
    One comment stated that the rule should allow barges operating 
offshore under a special Certificate of Inspection (COI) endorsement 
for limited offshore/coastwise routes during fair weather to be 
equipped under the inland oil barge requirements in Sec.  155.215.
    We agree, and note that this suggestion is similar to the 
requirements for emergency control measures for tank barges added on 
May 19, 2000. The current regulations provide that if a tank barge has 
its COI limited to not exceed the restrictions in Sec. Sec.  
155.230(a)(1) (territorial sea) or 155.230(a)(2) (Great Lakes), then it 
may be equipped under the inland oil barge requirements in Sec.  
155.215.

VII. Supporting Analyses

    Additionally, in this NOI we seek comments in two other areas. 
First, we seek comments on the Regulatory Assessment. Second, we seek 
comments on the Environment section.

A. Regulatory Assessment

    The IFR was accompanied by a Regulatory Evaluation (RE) (a copy is 
available in the docket where indicated under the ``Public 
Participation and Request for Comments'' section of this notice). Due 
to the amount of time that has passed since the IFR and RE were 
published, we seek current information related to the cost of 
compliance with certain sections of the DRE requirements. Please note 
that we are not seeking comments concerned with emergency towing 
equipment cost data or other portions of the IFR that have since been 
finalized through other rulemakings after the public has had an 
opportunity to comment.
    The table below shows the elements on which we are seeking comment, 
the units in which we measure them, the relevant chapter of the IFR's 
RE, and the Coast Guard's estimate of the cost.

                                               DRE Cost Data Table
----------------------------------------------------------------------------------------------------------------
                                                                                                  USCG  estimate
                Element                           Units                     IFR RE basis            of cost per
                                                                                                       unit
----------------------------------------------------------------------------------------------------------------
Coaming...............................  $/Linear feet............  Chapter 4....................          $20-25
55 gal Drum containing oil products/    55 gallon drum...........  Chapter 4....................             200
 sorbents.
Flex bin 1 yard box (4 55 gallon drum)  55 gallon drum...........  Chapter 4....................             460
Bulk double bagged oil/sorbents $260/   ton......................  Chapter 4....................             260
 ton.
Containment Boom......................  Linear feet..............  Chapter 5....................           15-35
Storage...............................  Cubic feet...............  Chapter 5....................               5
20-foot Work Boat.....................  $/boat...................  Chapter 5....................          40,000
Work Boat Home Support Equipment......  $/boat...................  Chapter 5....................          35,000
Training..............................  $/vessel/year............  Chapter 5....................             500
Maintenance and Repair................  .........................  Chapter 5....................  ..............
Tanker's Storage Shed.................  $/year...................  Chapter 5....................       300-1,600

[[Page 18157]]

 
Barge's Storage Shed..................  $/year...................  Chapter 5....................       200-1,300
Boat..................................  $/year...................  Chapter 5....................           5,000
Source Control Equipment..............  .........................  Chapter 6....................  ..............
Submersible Pumping Kit...............  $/kit....................  Chapter 6....................         141,000
----------------------------------------------------------------------------------------------------------------

    Additionally, we seek comment on the following items:
    (1) Please describe your implementation of DRE and how you have 
invested in the following:
    (a) Operational deck spill capability;
    (b) Warehouse equipment capability; and
    (c) Source control equipment.
    (2) Have you needed to use the equipment referenced in question (1) 
in any operational situation? If so--
    (a) Please describe the situation;
    (b) What issues did you encounter in that implementation?; and
    (c) What recommendations do you have in improving that 
implementation?
    (3) Please describe the maintenance requirements associated with 
the equipment referenced in question (1).
    (4) What issues have you encountered in implementing the IFR?
    (5) How long did it take you to implement the IFR?
    (6) Are you a small business, according to the North American 
Industry Classification System (NAICS) codes?
    (7) What issues did you encounter with regard to similar rules 
regarding the implementation of the other OPA 90 requirements and the 
implementation of the DRE IFR?
    (a) Were there issues with complementary implementation?
    (b) Were there issues with cross-purpose implementation?
    (8) How do you work together with the oil spill removal 
organizations (OSROs), in planning for, or responding to, an incident?
    (9) What is the vessel type (i.e. tanker, offshore barge, etc.) and 
size (i.e. length of vessel) for the data above?
    To facilitate public input, we have placed in the docket a 
questionnaire labeled ``Discharge Removal Equipment (DRE) Cost Data 
Template.'' We request that individuals or organizations with knowledge 
of the cost of compliance use the template to provide input via the 
docket. However, you are not required to use this format when 
submitting comments.

B. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (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 notice. This rule involves regulations 
concerning the equipping of vessels. In addition, it implements a 
Congressional mandate (section 4202(a) of OPA 90). We seek any comments 
or information that may lead to the discovery of a significant 
environmental impact from this rule.
    At the IFR stage, an Environmental Assessment (EA) and a Finding of 
No Significant Impact (FONSI) were placed in the docket for this 
rulemaking. No comments were received on the EA or the FONSI.

VIII. Intent To Finalize; Request for Comments

    The Coast Guard invites further comments regarding the finalization 
of the IFR provisions that have not yet been finalized. Specifically, 
we seek comments on three topics--
    <bullet> DRE requirements (except for Sec. Sec.  155.140, 155.230 
and 155.235 as these sections were superseded by subsequent 
rulemakings);
    <bullet> Regulatory Assessment; and
    <bullet> Environmental Impact.

Written comments and responses will be added to the docket for this 
rulemaking (USCG-2011-0430). Upon close of the comment period, the 
Coast Guard will consider all comments received before finalizing the 
DRE rulemaking.

    Dated: February 22, 2012.
J. G. Lantz,
Director of Commercial, Regulations and Standards.
[FR Doc. 2012-7344 Filed 3-26-12; 8:45 am]
BILLING CODE 9110-04-P


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