Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31357 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 138 

[Docket No. USCG–2008–0007] 

RIN 1625–AB25 

Consumer Price Index Adjustments of 

Oil Pollution Act of 1990 Limits of 

Liability—Vessels and Deepwater 

Ports 

AGENCY: Coast Guard, DHS. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Coast Guard is increasing 

the limits of liability under the Oil 

Pollution Act of 1990 (OPA 90), for 

vessels and deepwater ports subject to 

the Deepwater Port Act of 1974, to 

reflect significant increases in the 

Consumer Price Index (CPI). This 

interim rule also establishes the 

methodology the Coast Guard uses to 

adjust OPA 90 limits of liability for 

inflation, including the frequency with 

which such adjustments may be made. 

The inflation adjustments to the limits 

of liability are required by OPA 90 to 

preserve the deterrent effect and 

polluter-pays principle embodied in the 

OPA 90 liability provisions. Lastly, this 

interim rule makes minor amendments 

to clarify the applicability of the OPA 90 

single-hull tank vessel limits of liability. 

Because the single-hull tank vessel 

amendments were not previously 

discussed in the notice of proposed 

rulemaking (hereafter the CPI NPRM), 

the Coast Guard is inviting additional 

public comment on this issue. 

DATES: Effective date: This interim rule 

is effective July 31, 2009. To the extent 

this interim rule affects the collection of 

information in 33 CFR 138.85, the Coast 

Guard will not enforce the information 

collection request triggered by this 

rulemaking until it is approved by the 

Office of Management and Budget. 

Comment date: Comments and related 

material must either be submitted to our 

online docket via http:// 

www.regulations.gov on or before 

August 31, 2009 or reach the Docket 

Management Facility by that date. 

Comments on collection of information 

must be sent to the docket for this 

rulemaking and to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget (OMB), as described below, on 

or before August 31, 2009. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2008–0007 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: 

The adjustments to the limits of liability 

implemented by this rulemaking amend 

the evidence of financial responsibility 

applicable amounts in Title 33 of the 

Code of Federal Regulations (CFR), at 

section 138.80(f), by reference, and 

therefore revise the collection of 

information required by 33 CFR 138.85. 

A revised collection of information 

request will be submitted to OIRA for 

approval. If you have comments on the 

collection of information required by 

section 33 CFR 138.85, you must submit 

your collection of information 

comments to the docket and to OIRA. 

To ensure that your comments to OIRA 

are received on time, the preferred 

methods are by e-mail to 

oira_submission@omb.eop.gov (include 

the docket number and ‘‘Attention: Desk 

Officer for Coast Guard, DHS’’ in the 

subject line of the e-mail) 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, DHS. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this interim rule, 

e-mail or call Benjamin White, National 

Pollution Funds Center, Coast Guard, email Benjamin.H.White@uscg.mil, 

telephone 202–493–6863. 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. Regulatory History 

IV. Background 

V. Discussion of the Interim Rule, Comments 

and Changes 

A. What Are the Inflation—Adjusted OPA 

90 Limits of Liability for Vessels and 

Deepwater Ports? 

B. Explanation of the CPI Adjustment 

Methodology 

1. How does the Coast Guard calculate the 

CPI adjustment to the limits of liability? 

2. Which CPI does the Coast Guard use? 

3. What time interval CPI–U does the Coast 

Guard use for the adjustments? 

4. How does the Coast Guard calculate the 

percent change in the Annual CPI–U? 

5. What ‘‘Previous Period’’ dates is the 

Coast Guard using for the first inflation 

adjustments to the limits of liability? 

6. What Annual CPI–U ‘‘Previous Period’’ 

and ‘‘Current Period’’ values has the 

Coast Guard used for this first set of 

inflation adjustments to the limits of 

liability for vessels and Deepwater Ports? 

7. How will the Coast Guard calculate the 

percent change for subsequent inflation 

adjustments to the OPA 90 limits of 

liability? 

(a) 2012 Adjustments 

(b) How are ‘‘significant increases’’ and 

‘‘not less than every 3 years’’ defined? 

(c) What if the ‘‘significant increases’’ 

threshold is not met? 

8. What procedures does the Coast Guard 

plan to use to promulgate subsequent 

inflation adjustments to the OPA 90 

limits of liability? 

C. Discussion of Comments and Changes 

1. Public Comments on the CPI NPRM 

2. Public Comments on the Prior COFR 

Rule Relating to CPI Adjustments to 

Limits of Liability 

3. Single-Hull Tank Vessel Clarifying 

Changes and Request for Comment 

VI. Regulatory Analyses 

A. Regulatory Planning and Review 

B. Small Entities 

C. Assistance for Small Entities 

D. Collection of Information 

E. Federalism 

F. Unfunded Mandates Reform Act 

G. Taking of Private Property 

H. Civil Justice Reform 

I. Protection of Children 

J. Indian Tribal Governments 

K. Energy Effects 

L. Technical Standards 

M. Environment 

I. Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials on the 

amendments to 33 CFR 138.220(b) and 

138.230(a) that were not discussed in 

the CPI NPRM. These amendments 

clarify applicability of the OPA 90 

single-hull tank vessel limits of liability. 

All comments received on this interim 

rule will be posted, without change, to 

31358 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

http://www.regulations.gov and will 

include any personal information you 

have provided. 

A. Submitting Comments 

If you submit comments, please 

include the docket number for this 

rulemaking (Docket No. USCG–2008– 

0007), 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 e-mail 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, select the 

Advanced Docket Search option on the 

right side of the screen, insert ‘‘USCG– 

2008–0007’’ in the Docket ID box, press 

Enter, and 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 81⁄2 by 11 inches, 

suitable for copying and electronic 

filing. If you submit your 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 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, select the 

Advanced Docket Search option on the 

right side of the screen, insert USCG– 

2008–0007 in the Docket ID box, press 

Enter, and then click on the item in the 

Docket ID 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 U.S. 

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 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 

APA Administrative Procedure Act, 5 

U.S.C. 551, et seq. 

BLS U.S. Department of Labor, Bureau of 

Labor Statistics 

CFR Code of Federal Regulations 

COFR Certificate of Financial 

Responsibility 

COFR Rule The final rule published on 

September 17, 2008, titled ‘‘Financial 

Responsibility for Water Pollution 

(Vessels) and OPA 90 Limits of Liability 

(Vessels and Deepwater Ports)’’, 73 FR 

53691 (Docket No. USCG–2005–21780) 

CPI Consumer Price Index 

CPI NPRM The notice of proposed 

rulemaking published on September 24, 

2008, titled ‘‘Consumer Price Index 

Adjustments of Oil Pollution Act of 1990 

Limits of Liability—Vessels and Deepwater 

Ports’’, 73 FR 54997 (Docket No. USCG– 

2008–0007) 

CPI–U Consumer Price Index—All Urban 

Consumers, Not Seasonally Adjusted, U.S. 

City Average, All Items, 1982–84=100 

Deepwater Port A deepwater port licensed 

under the Deepwater Port Act of 1974 (33 

U.S.C. 1501–1524) 

DHS U.S. Department of Homeland 

Security 

DOI U.S. Department of Interior 

DOT U.S. Department of Transportation 

DRPA Delaware River Protection Act of 

2006, Title VI of the Coast Guard and 

Maritime Transportation Act of 2006, 

Public Law 109–241, July 11, 2006, 120 

Stat. 516 

E.O. Executive Order 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

Fund Oil Spill Liability Trust Fund 

LNG Liquefied natural gas (methane) 

LPG Liquefied petroleum gas 

LOOP Louisiana Offshore Oil Port 

MODU Mobile Offshore Drilling Unit 

MTR Marine transportation-related 

NAICS North American Industry 

Classification System 

NMTR Non-marine transportation-related 

NPFC National Pollution Funds Center 

NPRM Notice of proposed rulemaking 

NTR Non-transportation-related 

OIRA Office of Information and Regulatory 

Affairs 

OIL Oil Insurance Limited of Bermuda 

OMB Office of Management and Budget 

OPA 90 The Oil Pollution Act of 1990, as 

amended (Title I of which is codified at 33 

U.S.C. 2701, et seq.; Title IV of which is 

codified in relevant part at 46 U.S.C. 

3703a) 

§ Section symbol 

SBA U.S. Small Business Administration 

U.S.C. U.S. Code 

U.S.C.C.A.N. U.S. Code Congressional and 

Administrative News 

III. Regulatory History 

On September 24, 2008, we published 

the CPI NPRM, entitled ‘‘Consumer 

Price Index Adjustments of Oil 

Pollution Act of 1990 Limits of 

Liability—Vessels and Deepwater Ports’’ 

in the Federal Register, at 73 FR 54997. 

The CPI NPRM proposed to adjust the 

OPA 90 limits of liability, set forth at 33 

CFR part 138, subpart B, for vessels and 

for deepwater ports licensed under the 

Deepwater Port Act of 1974, as amended 

(33 U.S.C. 1501, et seq.) (hereinafter 

‘‘Deepwater Ports’’), for inflation under 

33 U.S.C. 2704(d). We received four 

letters with seven comments on the CPI 

NPRM. No public meeting was 

requested for this rulemaking and none 

was held. 

Previously, on September 17, 2008, 

the Coast Guard published a related 

final rule for the OPA 90 Certificate of 

Financial Responsibility (COFR) 

Program entitled ‘‘Financial 

Responsibility for Water Pollution 

(Vessels) and OPA 90 Limits of Liability 

(Vessels and Deepwater Ports) (Docket 

No. USCG–2005–21780), at 73 FR 53691 

(hereafter the COFR Rule). (See also, the 

COFR Rule NPRM at 73 FR 6642 and 73 

FR 8250.) That rulemaking divided 33 

CFR part 138 into two subparts, setting 

forth the COFR program requirements as 

amended by the rulemaking in new 

subpart A, and (of relevance to this 

rulemaking) setting forth the OPA 90 

limits of liability for oil spill source 

categories regulated by the Coast Guard 

in new subpart B. The COFR Rule 

thereby provided the framework for 

ensuring regulatory consistency when 

the OPA 90 limits of liability for oil spill 

source categories regulated by the Coast 

Guard are established or adjusted by 

regulation under 33 U.S.C. 2704(d). 

Three letters with five comments 

concerning CPI adjustments to the OPA 

90 limits of liability were submitted to 

the docket for the related COFR Rule. 

Finally, we received a question on 

implementation of the related final 

COFR Rule during the public comment 

period for the CPI NPRM (Docket No. 

USCG–2008–0007–0013). The question, 

which originally was not submitted to 

the docket for this rulemaking, raised a 

substantive and persuasive issue 

concerning the applicability of the 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31359 

1See Oil Pollution Desk Book, Environmental 

Law Institute 1991, hereinafter OPA 90 Desk Book, 

p. 88, H.R. Conf. Report 101–653, at p. 102, 

reprinted in 1990 U.S.C.C.A.N. 779, 780 (‘‘The term 

‘liable’ or ‘liability’ * * * is to be construed to be 

the standard of liability * * * under section 311 of 

the [Federal Water Pollution Control Act, 33 U.S.C. 

1321] . * * * That standard of liability has been 

determined repeatedly to be strict, joint and several 

liability.’’); OPA 90 Desk Book p. 93, H.R. Conf. 

Report 101–653, at 118, 1990 U.S.C.C.A.N., at 797 

(August 3, 1990) (‘‘[T]he primary responsibility to 

compensate victims of oil pollution rests with the 

person responsible for the source of the 

pollution[.]’’). 

single-hull tank vessel limits of liability 

that are amended by this rulemaking. A 

similar comment letter was submitted to 

the COFR Rule docket (Docket No. 

USCG–2005–21780–0013). To address 

the hull category issue raised in the 

public comment, without delaying the 

required adjustments to the limits of 

liability for inflation, we are publishing 

this interim rule, with minor 

amendments to §§ 138.220(b) and 

138.230(a), and we are inviting 

comment on these amendments. 

Although the public will have an 

opportunity to comment on the hull 

category amendments to §§ 138.220(b) 

and 138.230(a), we note that the Coast 

Guard is issuing the amendments 

without prior notice and opportunity to 

comment, pursuant to authority under 

section 4(a) of the Administrative 

Procedure Act (APA) (5 U.S.C. 553(b)). 

That provision of the APA authorizes an 

agency to issue a rule without prior 

notice and opportunity to comment 

when the agency for good cause finds 

that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b), the Coast Guard finds that good 

cause exists for not publishing another 

NPRM with respect to the hull category 

amendments to 33 CFR 138.220(b) and 

138.230(a) of this rule so as to conform 

the rule’s treatment of the vessel hull 

categories, which were previously 

adopted in the final COFR Rule and 

proposed in the CPI NPRM, to the OPA 

90 statutory scheme, including the 

Delaware River Protection Act of 2006 

(DRPA) amendments. Failing to amend 

the hull category provisions would be 

contrary to the public interest. 

Moreover, it is in the best interest of the 

public to ensure that vessel owners, 

operators and demise charters are 

subject to the correct limits of liability. 

All comments and other materials 

related to this rulemaking have been 

placed in the public docket (Docket No. 

USCG–2008–0007). This includes U.S. 

Department of Labor, Bureau of Labor 

Statistics (BLS) documentation 

pertinent to this rulemaking. 

IV. Background 

In general, under Title I of OPA 90, 

‘‘each responsible party [i.e., the owners 

and operators, including demise 

charterers] for a vessel or a facility from 

which oil is discharged, or which poses 

a substantial threat of a discharge of oil, 

into or upon the navigable waters or 

adjoining shorelines or the exclusive 

economic zone is liable for the removal 

costs and damages specified in [OPA 90, 

at 33 U.S.C. 2702(b)], that result from 

such incident.’’ (33 U.S.C. 2702(a)). 

Embodying the polluter-pays 

principle, this liability is strict, joint 

and several.1 The responsible parties’ 

total liability for OPA 90 removal costs 

and damages (including for removal 

costs incurred by, or on behalf of, the 

responsible parties) is, however, limited 

as provided in 33 U.S.C. 2704 except 

under certain circumstances as provided 

in 33 U.S.C. 2704(c). In instances when 

the OPA 90 limits of liability apply, the 

Oil Spill Liability Trust Fund (the Fund) 

is available to compensate the 

responsible parties and other claimants 

for OPA 90 removal costs and damages 

in excess of the applicable OPA 90 

liability limits. (See 33 U.S.C. 2708, 

2712(a)(4) and 2713; and 33 CFR part 

136.) 

OPA 90, at 33 U.S.C. 2704(a), sets 

forth the base dollar amounts of the 

limits of liability for four specified oil 

spill source categories: vessels (i.e., 

single-hull tank vessels, other-hull tank 

vessels, and non-tank vessels), onshore 

facilities, Deepwater Ports, and offshore 

facilities (other than Deepwater Ports). 

In addition, to prevent the real value of 

the limits of liability from depreciating 

over time as a result of inflation, and to 

thereby preserve the polluter-pays 

principle, OPA 90 requires the President 

to periodically increase the limits of 

liability by regulation to reflect 

significant increases in the CPI. (See 33 

U.S.C. 2704(d)(4).) 

In Executive Order (E.O.) 12777, the 

President delegated implementation of 

the OPA 90 limit of liability inflation 

adjustment authorities, dividing the 

responsibility among several Federal 

agencies. Through a series of further 

delegations, the Coast Guard has been 

delegated the President’s authority to 

adjust the OPA 90 limits of liability for 

vessels, Deepwater Ports (including 

associated pipelines), and 

transportation-related onshore facilities, 

but not including pipelines, motor 

carriers and railroads (hereinafter 

‘‘marine transportation-related’’ or 

‘‘MTR’’ onshore facilities). The 

Department of Transportation (DOT) has 

been delegated the President’s authority 

to adjust the limit of liability for 

onshore pipelines, motor carriers, and 

railways (hereinafter ‘‘non-marine 

transportation-related’’ or ‘‘NMTR’’ 

onshore facilities). The U.S. 

Environmental Protection Agency (EPA) 

has been delegated the President’s 

authority to adjust the limits of liability 

for non-transportation-related onshore 

facilities (hereinafter ‘‘nontransportation-related’’ or ‘‘NTR’’ 

onshore facilities). Finally, the 

Department of Interior (DOI) has been 

delegated the President’s authority to 

adjust the limits of liability for offshore 

facilities and associated pipelines, other 

than Deepwater Ports (hereinafter 

‘‘offshore facilities’’). 

In addition, on August 4, 1995, DOT, 

which then included the Coast Guard, 

promulgated a facility-specific limit of 

liability for the Louisiana Offshore Oil 

Port (LOOP) under the OPA 90 

Deepwater Port limit of liability 

adjustment authority at 33 U.S.C. 

2704(d)(2). (60 FR 39849). The preamble 

for that final rule specifically 

contemplated that the LOOP regulatory 

limit of liability would be adjusted for 

inflation to prevent the real value of the 

LOOP limit from depreciating over time. 

V. Discussion of the Interim Rule, 

Comments and Changes 

This interim rule implements the first 

mandated adjustments, under 33 U.S.C. 

2704(d), to the OPA 90 limits of liability 

for vessels and Deepwater Ports, 

including LOOP, to reflect significant 

increases in the CPI. This rulemaking 

also establishes the methodology for 

making inflation adjustments to the 

OPA 90 limits of liability for all oil spill 

source categories for which the Coast 

Guard has jurisdiction. The inflationadjusted limits of liability are discussed 

in subsection V.A. of this preamble, 

below. The inflation adjustment 

methodology is discussed in subsection 

V.B. of this preamble, below. Public 

comments and changes to the CPI 

NPRM, including the hull category 

amendments, are discussed in 

subsection V.C. of this preamble, below. 

As explained in the CPI NPRM, to 

ensure future consistency in inflation 

adjustments to the limits of liability for 

all OPA 90 oil spill source categories, 

the Coast Guard has coordinated the CPI 

adjustment methodology with DOT, 

EPA, and DOI. In addition, the Coast 

Guard, DOT, EPA, and DOI have agreed 

to coordinate the CPI inflation 

adjustments to the limits of liability for 

facilities (i.e., for MTR onshore facilities 

regulated by Coast Guard, NMTR 

onshore facilities regulated by DOT, 

NTR onshore facilities regulated by 

EPA, and offshore facilities regulated by 

DOI), as part of the next cycle of 

inflation adjustments to the limits of 

31360 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

2Currently LOOP is the only Deepwater Port with 

a limit of liability established by regulation under 

33 U.S.C. 2704(d)(2). 

3Section 138.230(b)(2)(i) contains the limit of 

liability for LOOP. Section 138.230(b)(2)(ii) has 

been reserved for future use to set forth any other 

Deepwater Port limits of liability that may be 

established by regulation under 33 U.S.C. 

2704(d)(2). Section 138.230(c) has been reserved for 

future use to set forth the limit of liability for MTR 

onshore facilities. 

liability. This phased approach will 

allow adequate time for the additional 

interagency coordination necessary to 

ensure consistency in implementing the 

CPI adjustments to the OPA 90 limits of 

liability for all onshore and offshore 

facilities. 

A. What Are the Inflation-adjusted OPA 

90 Limits of Liability for Vessels and 

Deepwater Ports? 

The new OPA 90 limits of liability for 

vessels and Deepwater Ports (rounded to 

the closest $100), adjusted for inflation 

using the adjustment methodology 

established by this rulemaking, are: 

Source category Previous limit of liability New limit of liability 

(a) Vessels: 

(1) For an oil cargo tank vessel greater 

than 3,000 gross tons with a single hull, 

including a single-hull tank vessel fitted 

with double sides only or a double bottom only.

The greater of $3,000 per gross ton or 

$22,000,000.

The greater of $3,200 per gross ton or 

$23,496,000. 

(2) For a tank vessel greater than 3,000 

gross tons, other than a vessel referred 

to in (a)(1).

The greater of $1,900 per gross ton or 

$16,000,000.

The greater of $2,000 per gross ton or 

$17,088,000. 

(3) For an oil cargo tank vessel less than 

or equal to 3,000 gross tons with a single hull, including a single-hull tank vessel fitted with double sides only or a 

double bottom only.

The greater of $3,000 per gross ton or 

$6,000,000.

The greater of $3,200 per gross ton or 

$6,408,000. 

(4) For a tank vessel less than or equal to 

3,000 gross tons, other than a vessel referred to in (3).

The greater of $1,900 per gross ton or 

$4,000,000.

The greater of $2,000 per gross ton or 

$4,272,000. 

(5) For any other vessel ............................. The greater of $950 per gross ton or 

$800,000.

The greater of $1,000 per gross ton or 

$854,400. 

(b) Deepwater Ports: 

(1) For a Deepwater Port, other than a 

Deepwater Port with a limit of liability 

established by regulation under 33 

U.S.C. 2704(d)(2).

$350,000,000 .................................................... $373,800,000. 

(2) For the Louisiana Offshore Oil Port 

(LOOP) 2.

$62,000,000 ...................................................... $87,606,000. 

The new inflation-adjusted limits of 

liability for vessels and Deepwater Ports 

are set forth in § 138.230(a) and (b).3

We note that the single-hull tank 

vessel limits of liability were described 

in 33 CFR part 138, subpart B, and in 

the CPI NPRM as applying to all tank 

vessels. Following the public comment 

period for the CPI NPRM, however, the 

Coast Guard determined that the singlehull limits of liability only apply under 

the OPA 90 statutory scheme to a singlehull tank vessel that is ‘‘constructed or 

adapted to carry, or carries, oil in bulk 

as cargo or cargo residue’’ (referred to in 

this preamble as a single-hull ‘‘oil cargo 

tank vessel’’). The Coast Guard is, 

therefore, amending §§ 138.220 

(Definitions) and 138.230 (Limits of 

liability) to clarify this point, and 

invites public comment on this issue. 

B. Explanation of the CPI Adjustment 

Methodology 

1. How does the Coast Guard calculate 

the CPI adjustment to the limits of 

liability? 

We calculate the CPI adjustments to 

the limits of liability for Coast Guard 

source categories using the following 

formula: 

New limit of liability = Previous limit 

of liability + (Previous limit of liability 

x percent change in the CPI from the 

year the Previous limit of liability was 

established, or last adjusted by statute or 

regulation, whichever is later, to the 

present year), then rounded to the 

closest $100. 

2. Which CPI does the Coast Guard use? 

The BLS publishes a variety of 

inflation indices. We use the ‘‘Consumer 

Price Index—All Urban Consumers, Not 

Seasonally Adjusted, U.S. City Average, 

All Items, 1982 – 84 = 100’’, also known 

as ‘‘CPI–U’’. This is the most current 

and is the broadest index published by 

BLS. It also is commonly relied on in 

insurance policies and other 

commercial transactions with automatic 

inflation protection, by the media, and 

by economic analysts. 

3. What time interval CPI–U does the 

Coast Guard use for the adjustments? 

BLS publishes the CPI–U in both 

monthly and annual periods. For 

consistency and simplicity, we use the 

annual period CPI–U (hereinafter the 

‘‘Annual CPI–U’’) rather than the 

monthly period CPI–U. In this way, as 

explained further in the CPI NPRM, we 

can avoid having to publish distinct 

percent change values for the different 

sources and source categories in future 

adjustment cycles, based on the month 

when each source or source category’s 

limit of liability was established or last 

adjusted. 

4. How does the Coast Guard calculate 

the percent change in the Annual 

CPI–U? 

We calculate the percent change in 

the Annual CPI–U using the BLS 

escalation formula described in Fact 

Sheet 00–1, U.S. Department of Labor 

Program Highlights, ‘‘How to Use the 

Consumer Price Index for Escalation’’, 

September 2000. 

This formula provides that: 

Percent change in the Annual 

CPI–U = [(Annual CPI–U for Current 

Period – Annual CPI–U for Previous 

Period) ÷ Annual CPI–U for Previous 

Period] X 100. 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31361 

4As proposed in the CPI NPRM, we will also use 

the 2006 Annual CPI–U as the ‘‘Previous Period’’ 

date for the first set of adjustments to the limit of 

liability for MTR onshore facilities. 

Fact Sheet 00–1 is available from the 

BLS online at http://www.bls.gov. The 

Fact Sheet may also be viewed on the 

docket for this rulemaking, at Docket 

No. USCG–2008–0007–0011. 

The following example illustrates 

how we applied the BLS escalation 

formula to calculate the percent change 

in the Annual CPI–U used in this 

rulemaking to adjust the limits of 

liability for vessels and Deepwater Ports 

generally: 

Annual CPI–U for Current Period 

(2008): 215.3 

Minus Annual CPI–U for Previous 

Period (2006): 201.6 

Equals index point change: 13.7 

Divided by Annual CPI–U for Previous 

Period: 201.6 

Equals: 0.068 

Result multiplied by 100: 0.068 X 100 

Equals percent change in the Annual 

CPI–U: 6.8 percent 

The ‘‘Current Period’’ and ‘‘Previous 

Period’’ Annual CPI–U values may be 

viewed on the docket, at Docket No. 

USCG–2008–0007–0012, and online at 

http://data.bls.gov. Note that the 

‘‘Current Period’’ value for this 

methodology will always be the Annual 

CPI–U for the previous calendar year. 

This is due to the schedule for BLS 

publication each year of the Annual 

CPI–U. Note also that the percent 

change is rounded to one decimal place. 

5. What ‘‘Previous Period’’ dates is the 

Coast Guard using for the first inflation 

adjustments to the limits of liability? 

As explained in the CPI NPRM, the 

‘‘Previous Period’’ date for the first 

inflation adjustments to the limits of 

liability in 33 U.S.C. 2704(a) (i.e., the 

limits of liability for all Coast Guard 

delegated source categories other than 

LOOP), is 2006. This is based on the 

date of enactment of the DRPA, which 

was July 11, 2006, and is the last date 

the limits of liability in 33 U.S.C. 

2704(a) were adjusted.4 In addition, the 

‘‘Previous Period’’ date for the first 

inflation adjustment to the LOOP limit 

of liability is 1995. This is based on the 

date the LOOP limit of liability was 

established by regulation, which was 

August 4, 1995. (See 60 FR 39849.) 

There have been no adjustments made 

to the LOOP limit of liability since 1995. 

6. What Annual CPI–U ‘‘Previous 

Period’’ and ‘‘Current Period’’ values 

has the Coast Guard used for this first 

set of inflation adjustments to the limits 

of liability for vessels and Deepwater 

Ports? 

The ‘‘Previous Period’’ and ‘‘Current 

Period’’ values used for this rulemaking 

are as follows: 

(a) For LOOP, the ‘‘Previous Period’’ 

value, using the 1995 Annual CPI–U, is 

152.4; the ‘‘Current Period’’ value, using 

the 2008 Annual CPI–U, is 215.3. 

(b) For vessels and Deepwater Ports 

generally (i.e., all Deepwater Ports other 

than LOOP), the ‘‘Previous Period’’ 

value, using the 2006 Annual CPI–U, is 

201.6; the ‘‘Current Period’’ value, using 

the 2008 Annual CPI–U, is 215.3. 

Inserting these values into the BLS 

escalation formula yields the following 

percent change values in the Annual 

CPI–U (rounded to one decimal place): 

For LOOP: 41.3 percent 

For vessels and other Deepwater 

Ports: 6.8 percent 

7. How will the Coast Guard calculate 

the percent change for subsequent 

inflation adjustments to the OPA 90 

limits of liability? 

This rulemaking also establishes the 

adjustment methodology the Coast 

Guard will use for subsequent CPI 

adjustments to the OPA 90 limits of 

liability for all Coast Guard source 

categories, including MTR onshore 

facilities. In this interim rule we adopt 

the methodology proposed in the CPI 

NPRM with one clarification. 

Specifically, as discussed further below, 

we have clarified in § 138.240 that the 

Coast Guard has discretion to adjust the 

limits more frequently than every three 

years. 

(a) 2012 Adjustments 

For the next set of inflation 

adjustments to the limits of liability, 

scheduled for 2012, we plan to publish 

the adjustments, in coordination with 

similar rulemakings by DOT, EPA and 

DOI, for all Coast Guard source 

categories, including MTR facilities. 

This will be done to simplify 

subsequent inflation adjustments to the 

limits of liability for all of the OPA 90 

source categories. 

Specifically, unless Congress amends 

the limits of liability again, we will 

calculate the Annual CPI–U change 

using: (1) the 2008 Annual CPI–U as the 

‘‘Previous Period’’ value for vessels and 

Deepwater Ports including LOOP, and 

(2) the 2006 Annual CPI–U as the 

‘‘Previous Period’’ value for MTR 

facilities since that will be the first time 

those limits will be adjusted. In 

addition, assuming the coordinated set 

of rulemakings is completed in 2012, we 

will use the 2011 Annual CPI–U as the 

‘‘Current Period’’ value. 

(b) How are ‘‘significant increases’’ and 

‘‘not less than every 3 years’’ defined? 

As explained in the CPI NPRM, OPA 

90, at 33 U.S.C. 2704(d)(4), as amended 

by Section 603 of the DRPA, requires 

that the OPA 90 limits of liability be 

adjusted ‘‘not less than every 3 years 

* * * to reflect significant increases in 

the Consumer Price Index.’’ 

The word ‘‘increases’’ indicates 

clearly that Congress intended that the 

limits be adjusted only for inflation, and 

that there would be no decreases to the 

limits of liability due to decreases in the 

CPI. It, however, is equally apparent 

that, if Congress had wanted the 

adjustments to occur routinely every 3 

years, the mandate would not have 

included the qualifier ‘‘significant.’’ The 

word ‘‘significant’’ is not defined in 

OPA 90. As discussed in greater detail 

in the CPI NPRM, we therefore looked 

to the legislative history and to the 

dictionary meaning of ‘‘significant’’ to 

help interpret what Congress meant. 

The Conference Report Joint 

Explanatory Statement, at p. 106, 

describes the CPI adjustment mandate 

as requiring adjustments ‘‘at least once 

every three years’’, to reflect significant 

increases in the CPI. (See OPA 90 Desk 

Book, p. 89, H.R. CONF. REP. 101–653, 

Joint Explanatory Statement, August 1, 

1990.) This explanation indicates that 

the statutory wording ‘‘not less than’’ 

means that adjustments are permitted, 

but not required, more frequently than 

every three years. The Conference 

Report and other legislative history 

provide general indications of the 

overall intent of the OPA 90 liability 

provisions. (See CPI NPRM.) The 

legislative history does not, however, 

explain what Congress meant by the 

word ‘‘significant’’. Nor have we found 

any other Federal statute that uses the 

same wording. Congress, therefore, left 

it to the President to give meaning to the 

term ‘‘significant’’. 

The plain meaning of ‘‘significant’’ is 

‘‘meaningful’’ (see Webster’s II New 

Riverside University Dictionary (1988)), 

but meaningful in respect to what? 

Consistent with the Congressional focus 

on preserving OPA 90’s deterrent effect 

and avoiding risk shifting to the Fund, 

the Coast Guard analyzed historical data 

on incident costs. We found that even 

small increases in the CPI can have 

significant risk shifting impacts. (See 

Report On Oil Pollution Act Liability 

Limits, U.S. Department Of Homeland 

Security, U.S. Coast Guard, transmitted 

to the Senate Committee on Commerce, 

31362 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

Science, and Transportation on January 

5, 2007.) 

For example, based on our further 

analysis of the historical cost averages 

in that report, a 1 percent per year 

increase in the CPI will shift incident 

cost risk from the responsible parties to 

the Fund by an estimated $900,000 over 

three years. When adjustments to limits 

of liability are delayed, the Fund will, 

with inflation, inevitably be at risk for 

a higher share of incident costs than 

intended by OPA 90. Consequently, 

responsible party risk and the intended 

deterrent effect of the limits of liability 

are reduced. 

In consideration of the historical data, 

the Coast Guard believes it is reasonable 

and consistent with Congressional 

intent to treat any cumulative increase 

in the CPI of 3 percent or greater over 

a three year period as significant and as 

the appropriate threshold for triggering 

an adjustment to the limits of liability. 

A triennial 3-percent threshold results 

in a predictable, regular schedule of 

smaller-increment adjustments to the 

limits of liability for inflation. It thereby 

maintains a balance between 

responsible party risk and Fund risk. 

We considered whether to adjust the 

limits more frequently than every three 

years. A triennial adjustment period 

affords adequate time for rulemaking, 

including time required for necessary 

interagency coordination on future 

adjustments to the facility limits of 

liability. The Coast Guard will, therefore 

as a general rule, use the three year 

adjustment period in the future. We 

have, however, clarified in § 138.240 

that the Coast Guard has discretion to 

adjust the limits of liability before three 

years. For example, if a new limit of 

liability is established by Congress for a 

particular source category, the new 

statutory limit of liability might be 

adjusted for inflation sooner than three 

years after the date the new limit of 

liability was enacted in order to put the 

new limit of liability on the same 

inflation-adjustment cycle used for all 

other source categories. 

Thus, once all of the OPA 90 source 

categories are on the same adjustment 

schedule, and except in instances when 

increases in the Annual CPI–U over any 

three-year period are not significant 

(i.e., are less than 3 percent increase in 

the Annual CPI–U) or if the Coast Guard 

determines in its discretion that an 

adjustment is needed before three years, 

we will generally calculate future 

adjustments to the limits of liability 

using the cumulative percent change in 

the Annual CPI–U for the previous three 

available years. For example, in 2015 

(assuming a significant increase in the 

Annual CPI–U after the 2012 

adjustments), we will calculate the 

Annual CPI–U change using the 2011 

Annual CPI–U as the ‘‘Previous Period’’ 

value and the 2014 Annual CPI–U as the 

‘‘Current Period’’ value. 

(c) What if the ‘‘significant increases’’ 

threshold is not met? 

The next set of CPI adjustments to the 

limits of liability, currently scheduled 

for 2012, will put all Coast Guard source 

categories regulated under OPA 90, 

including the MTR onshore facilities, on 

the same adjustment schedule 

regardless of whether the significant 

increase threshold is met. Thereafter, for 

any three-year period in which the 

percent change in the Annual CPI–U is 

not significant in that the cumulative 

change is less than 3 percent over three 

years, we will publish a notice of no 

adjustment in the Federal Register. In 

such event, we will re-evaluate the 

percent increase in the Annual CPI–U in 

each subsequent year until the 

cumulative percent change in the 

Annual CPI–U from the last adjustment 

is 3 percent or greater. We will then 

base the adjustment on the Annual CPI– 

U change since the last adjustment. 

For instance, if in 2015 the 

cumulative percent change in the 

Annual CPI–U from 2011 to 2014 is 2 

percent, we will publish a notice of no 

adjustment in the Federal Register in 

2015. The following year in 2016, if the 

3 percent change threshold is met, we 

will publish adjustments to all of the 

limits of liability for Coast Guard source 

categories based on the Annual CPI–U 

percent change from 2011, as the 

‘‘Previous Period’’, to 2015, as the 

‘‘Current Period’’. The next adjustment 

will, in that case, be no more than three 

years later in 2019, again assuming that 

the cumulative percentage increase 

between the 2015 Annual CPI–U and 

the 2018 Annual CPI–U is significant. 

8. What procedures does the Coast 

Guard plan to use to promulgate 

subsequent inflation adjustments to the 

OPA 90 limits of liability? 

This rulemaking has provided the 

public the opportunity to comment on 

the inflation index (Annual CPI–U), the 

significance threshold, and the 

calculation methodology for the first, 

and subsequent, CPI adjustments to the 

limits of liability for Coast Guard source 

categories. The Coast Guard intends to 

coordinate future inflation increases to 

the OPA 90 limits of liability with the 

other delegated agencies (DOT, EPA and 

DOI) to ensure consistency, and will 

consider approaches for streamlining 

the process at that time. 

C. Discussion of Comments and 

Changes 

This section discusses the comments 

we received on the CPI NPRM. This 

includes a discussion of one 

clarification we have made, in response 

to a comment, concerning the frequency 

of limit of liability adjustments. We also 

discuss CPI-related comments we 

received in letters submitted to the 

related COFR Rule docket. Finally, we 

discuss a comment we received that was 

submitted to the docket after the public 

comment period on the CPI NPRM and 

the resulting amendments to clarify 

applicability of the OPA 90 single-hull 

tank vessel limits of liability. (See 

Docket No. USCG–2008–0007–0013; see 

also, Docket No. USCG–2008–0007– 

0014.) 

1. Public Comments on the CPI NPRM 

We received four letters with seven 

comments on the CPI NPRM. One letter 

was submitted anonymously. The other 

letters were from a state environmental 

agency and two liquefied natural gas 

(LNG) Deepwater Port developers. Three 

of the four letters raised issues beyond 

the scope of this rulemaking. 

The anonymous commenter suggested 

that the Coast Guard increase oil spill 

fines by 5,000 percent and hold oil 

company executives personally liable 

for oil spills. This comment is beyond 

the scope of this rulemaking. The 

primary purpose of this rulemaking is to 

implement the statutorily-mandated 

inflation increases to the OPA 90 limits 

of liability. Any other increase to the 

limits of liability would have to be 

authorized by Congress. Moreover, the 

OPA 90 limits of liability only concern 

the liability of responsible parties for 

OPA 90 removal costs and damages. The 

OPA 90 limits of liability and this 

regulation do not limit, or otherwise 

affect or concern, the amount of fines 

and penalties or other liability of 

responsible parties under other 

provisions of law. 

The two LNG Deepwater Port 

developers commented that they intend 

to seek facility-specific regulatory 

adjustments to the OPA 90 limits of 

liability for their planned LNG 

Deepwater Ports under 33 U.S.C. 

2704(d)(2). The comment asked that 

those new regulatory limits be set forth 

in the reserved paragraph at 33 CFR 

138.230(B)(2)(ii). The Coast Guard 

agrees that 33 CFR 138.230(B)(2)(ii) has 

been reserved for facility-specific 

regulatory limits that may be established 

in the future under 33 U.S.C. 2704(d)(2). 

This comment, however, raises issues 

that go beyond the scope of this 

rulemaking. This rulemaking does not 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31363 

5The three Deepwater Ports in question are: (1) 

Excelerate Energy/Open Gulf Gateway (formerly the 

El Paso Energy Bridge)—submerged turret loading 

buoy and metering platform, only uses lubricating 

oil for emergency generator (December 15, 2003); (2) 

Excelerate Energy/Northeast Gateway Deepwater 

Port—two turret-loading buoys, fueled by natural 

gas, with a small amount of lubricating oil applied 

to lubricate umbilical lines used to operate valves 

(May 4, 2007); (3) Port Dolphin Energy LLC 

Deepwater Port—same design as Northeast 

Gateway, periodic application of hydraulic oil to 

lubricate umbilical lines used to operate valves 

(August 6, 2008). 

OPA 90 defines ‘‘facility’’, at 33 U.S.C. 2701(9) as 

‘‘any structure, group of structures, equipment, or 

device (other than a vessel) which is used for one 

or more of the following purposes: exploring for, 

drilling for, producing, storing, handling, 

transferring, processing, or transporting oil. This 

term includes any motor vehicle, rolling stock, or 

pipeline used for one or more of these purposes.’’ 

6At this time, there are only three Deepwater 

Ports in operation: one oil Deepwater Port (LOOP) 

and two LNG Deepwater Ports (Gulf Gateway 

Energy Bridge and Northeast Gateway). Because of 

the determinations that the two LNG Deepwater 

Ports do not meet the OPA 90 definition of facility, 

and unless conditions change at the two operating 

LNG ports, LOOP is the only existing Deepwater 

Port affected by this rulemaking. 

concern requests for facility-specific 

regulatory limits of liability under 33 

U.S.C. 2704(d)(2). This rulemaking is 

instead concerned with implementing 

the statutorily-mandated inflation 

adjustments to the existing OPA 90 

limits of liability and ensuring that they 

are correctly applied. 

The LNG Deepwater Port developers 

also commented that the OPA 90 limit 

of liability applicable to Deepwater 

Ports generally should not be adjusted 

for inflation in respect to LNG 

Deepwater Ports. The commenters made 

several points in this respect. First, they 

argued that the threat of an oil spill from 

an LNG Deepwater Port is much less 

than from an oil Deepwater Port and 

that the regulatory limit of liability 

established under 33 U.S.C. 2704(d)(2) 

for LOOP, the only oil Deepwater Port 

currently in operation, is lower. They 

also pointed out that the Coast Guard 

had previously determined that two 

LNG Deepwater Ports currently in 

operation did not trigger OPA 90 for the 

purpose of establishing new liability 

limits under 33 U.S.C. 2704(d)(2), and 

asked that this determination be 

expanded to all LNG Deepwater Ports. 

Finally, they argued that the limits of 

liability should not be adjusted in 

respect to LNG Deepwater Ports until 

LNG Deepwater Ports subject to OPA 90 

are placed in operation. 

We disagree with this comment. OPA 

90, at 33 U.S.C. 2704(a)(4), sets forth a 

single limit of liability that applies to all 

Deepwater Ports regardless of type, 

whether oil or LNG. OPA 90 further 

requires that the Deepwater Port limit of 

liability be adjusted for significant 

increases in the CPI. 

The Coast Guard acknowledges that 

the United States has previously 

determined that LNG, other than natural 

gas distillates and condensate, is not 

‘‘oil’’ as that term is defined under OPA 

90. (See, e.g., 63 FR 42699, Aug. 11, 

1998; 67 FR 47041, Jul. 17, 2002.) In 

addition, the Coast Guard has 

determined, in the context of three 

applications for liability limit 

adjustments under 33 U.S.C. 2704(d)(2), 

that those particular Deepwater Ports 

were not OPA 90 ‘‘facilities’’ as defined 

at 33 U.S.C. 2701(9).5 This was because 

the subject Deepwater Ports were not 

designed, constructed or operated to use 

structures, equipment, or devices for 

‘‘exploring for, drilling for, producing, 

storing, handling, transferring, 

processing, or transporting oil.’’ 6

Those case-specific determinations 

were expressly based on the design and 

operation plans presented by the 

applicants, and the determinations will 

change if any oil is stored on the ports 

or if their design or operations 

otherwise change such that the OPA 90 

‘‘facility’’ definition applies. Moreover, 

other LNG Deepwater Port designs may 

well involve more extensive manned 

operations involving the storage, 

handling, transferring or transporting of 

various oils (e.g., natural gas distillates, 

fuel oil and oil for service equipment or 

devices used to operate the ports). 

Whether any LNG Deepwater Port, as 

designed, constructed, or subsequently 

operated, is an OPA ‘‘facility’’ will 

therefore continue to be determined on 

a case-by-case basis. 

The state environmental agency 

generally applauded the Coast Guard in 

implementing CPI increases to limits of 

liability, and expressed support for 

similar adjustments in the future for the 

MTR onshore facility limit of liability. 

The state also expressed support for use 

of the Annual CPI–U to calculate the 

percent changes in the CPI, agreeing that 

it is likely to provide better consistency 

and simplicity over time than a monthly 

period CPI–U. 

The state recommended that the rule 

authorize adjustments to the limits of 

liability for vessels and Deepwater Ports 

for periods of less than 3 years where 

the CPI–U increases significantly over 

any one or two year period. Specifically, 

the state recommends amending section 

138.240(b) to require the Director, 

National Pollution Funds Center 

(NPFC), to evaluate changes in the 

CPI–U annually, rather than every 3 

years, and increase the limits of liability 

whenever the percent change in the 

CPI–U reaches or exceeds the 

significance threshold of 3 percent or 

greater. 

We disagree that it is necessary, 

required by OPA 90, or appropriate for 

the Coast Guard to establish a system for 

more frequent routine adjustments to 

the limits of liability in this rulemaking. 

The triennial adjustment schedule 

provided for in this rulemaking is 

consistent with the discretion accorded 

by OPA 90. It also reflects several 

practical considerations, including the 

time necessary to develop regulations, 

and the time required for necessary 

interagency coordination. Moreover, the 

Coast Guard can consider the feasibility 

of more frequent periods for routine 

inflation adjustments in the future. Even 

so, in response to this comment, we 

have clarified in § 138.240(b) that the 

Coast Guard has discretion to adjust the 

limits of liability more frequently than 

every 3 years. This might be appropriate 

if, for example, new statutory limits of 

liability are enacted for a particular 

source category in order to adjust the 

limits of liability for that category on the 

same schedule with all other sources. 

2. Public Comments on the Prior COFR 

Rule Relating to CPI Adjustments to 

Limits of Liability 

In addition to the letters submitted to 

the docket for this rulemaking, three 

letters with five comments concerning 

CPI adjustments to the OPA 90 limits of 

liability were submitted to the 

rulemaking docket for the related COFR 

Rule NPRM. (See Docket Nos. USCG– 

2005–21780–0007, –0008 and –0019. 

For ease of reference, these comments 

have also been posted to the docket for 

this rulemaking. See Docket Nos. 

USCG–2008–0007–0009, –0010 and 

–0015.) Those comments were beyond 

the scope of the COFR Rule, which 

focused on the OPA 90 requirements, 

under 33 U.S.C. 2716, for vessel 

responsible parties to establish and 

maintain evidence of financial 

responsibility. The comments are, 

therefore, addressed here. 

The comments were submitted by a 

private individual, an association of oil 

spill regulatory agencies from Alaska, 

British Columbia, Washington, Oregon, 

Hawaii and California, and a state 

environmental agency. All of the 

commenters sought increases to the 

OPA 90 limits of liability for inflation. 

The private individual asked the 

Coast Guard to adjust the OPA 90 limits 

of liability for inflation, to ensure 

polluters bear the cost of oil spill 

cleanup and reimbursement of 

economic loss to communities caused 

by their actions. The association of oil 

spill regulatory agencies submitted a 

similar comment noting that the COFR 

31364 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

7The DOT’s hazardous material transportation 

regulations (49 CFR 172.101) list LNG (methane) 

and LPG (petroleum gases) as hazardous materials. 

LNG/LPG vessels, therefore, are ‘‘tank vessels’’ by 

definition under OPA 90, 33 U.S.C. 2701(34) (i.e., 

‘‘a vessel that is constructed or adapted to carry, or 

that carries, oil or hazardous material in bulk as 

cargo or cargo residue’’), and are subject to the OPA 

90 limits of liability and COFR requirements in 33 

CFR part 138 applicable to tank vessels. As noted 

above, however, Coast Guard, EPA and Minerals 

Management Service have determined that, with the 

exception of natural gas distillates and condensate, 

LNG and LPG are not ‘‘oil’’. (See, e.g., 61 FR 9264, 

at 9266–68, March 7, 1996 (1996 COFR Rule 

preamble); 62 FR 13991, March 25, 1997, and 30 

CFR 254.1 and 254.6 (Offshore Facility Spill 

Prevention Rule, ‘‘Who must submit a spillresponse plan?’’ and definition of ‘‘oil’’); 62 FR 

14052, March 25, 1997 (Offshore Facility Financial 

Responsibility Rule); 63 FR 42699, August 11, 1998, 

and 30 CFR 253.3 (Offshore Facility Financial 

Responsibility Rule definition of ‘‘oil’’); 67 FR 

47042, July 17, 2002 (Oil Pollution Prevention and 

Response; Non-Transportation-Related Onshore and 

Offshore Facilities); 73 FR 74236, December 5, 

2008, and 40 CFR 112.2 (Onshore Facility Spill 

Prevention Rule).) 

8Section 4115 of OPA 90 added a new section to 

the U.S. Code, 46 U.S.C. 3703a. That section 

requires a single-hull oil cargo tank vessel owner to 

remove the vessel from bulk oil service on a specific 

date, depending on the vessel’s gross tonnage, build 

date, and hull configuration. 

9These two categories are carried forward by 

reference in 33 U.S.C. 2704(a)(1)(C). (See 33 U.S.C. 

2704(a)(1)(C)(i)(I) and (C)(ii)(I) (single-hull tank 

vessel limits); 33 U.S.C. 2704(a)(1)(C)(i)(II) and 

(C)(ii)(II) (other tank vessel limits).) 

Rule NPRM did not ‘‘increase (by the 

CPI since 1990) the limits of liability for 

facilities under Coast Guard’s 

jurisdiction.’’ 

These comments have been addressed 

in part by this rulemaking. Specifically, 

this rulemaking makes inflation 

adjustments to the limits of liability for 

all vessels and for one category of 

‘‘facility’’, Deepwater Ports. The limit of 

liability for the other category of 

‘‘facility’’ under the Coast Guard’s 

jurisdiction, MTR onshore facilities, 

will be adjusted for inflation in the next 

cycle of inflation adjustments to the 

limits of liability as part of a 

coordinated set of rulemakings with 

EPA, DOT, and DOI that will cover all 

source categories subject to OPA 90. 

Also, in response to the association’s 

assumption that the adjustments would 

be from 1990, we note that this 

preamble, at paragraph V.B.5, above, 

and the CPI NPRM explain our decision 

to use a 2006 baseline year for the 

adjustments, instead of 1990. We 

received no comment on the CPI NPRM 

from the association or from any other 

commenter concerning this approach. 

This interim rule therefore establishes 

2006 as the baseline for all Coast Guard 

source categories other than LOOP, 

including for MTR onshore facilities. 

The association also noted that the 

COFR Rule NPRM did not propose 

increases to the limits of liability for 

vessels, including tank barges, by the 

CPI since 2006 as is required by DRPA. 

This comment is addressed by this 

rulemaking. Specifically, as required by 

DRPA, this rulemaking adjusts the 

limits of liability for all vessels, 

including tank barges, for inflation since 

2006, the year the limits of liability were 

last amended by Congress. 

One commenter, the state 

environmental agency that also 

commented on the NPRM for this 

rulemaking, noted that the limits of 

liability for non-tank vessels should be 

increased. This comment is addressed 

by this rulemaking to the extent 

authorized by OPA 90. Specifically, as 

mandated by 33 U.S.C. 2704(d), this 

rulemaking increases the limits of 

liability for all vessels with limits of 

liability under OPA 90, to reflect 

significant increases in the CPI. This 

includes inflation adjustments to the 

limits of liability applicable to non-tank 

vessels. Any other increase to the limits 

of liability for non-tank vessels would 

have to be authorized by Congress. 

The same commenter stated that the 

COFR Rule NPRM failed to address the 

issue of limits of liability for oilhandling facilities. Reading the 

comment as expressing support for 

inflation adjustments to the limits of 

liability for facilities, the comment is 

addressed in part by this rulemaking. 

Specifically, this rulemaking adjusts the 

limits of liability for inflation for all 

vessels and for one category of facilities, 

Deepwater Ports. The limit of liability 

for the other category of facility under 

the Coast Guard’s jurisdiction, MTR 

onshore facilities, including the abovementioned oil-handling facilities, will 

be adjusted for inflation in the next 

cycle of inflation adjustments to the 

limits of liability, as part of a 

coordinated set of rulemakings with 

EPA, DOI and DOT, that will cover all 

facilities subject to OPA 90. 

3. Single-Hull Tank Vessel Clarifying 

Changes and Request for Comment 

In February 2009, after the CPI NPRM 

public comment period closed on 

November 24, 2008, the rulemaking 

team was made aware of an off-therecord comment from a COFR guarantor 

concerning applicability of the singlehull tank vessel limits of liability in 33 

CFR part 138, subpart B, to LNG and 

liquefied petroleum gas (LPG) tank 

vessels (Docket No. USCG–2008–0007– 

0013). Initially the comment was 

thought to raise questions regarding 

compliance with the final COFR Rule. 

This is because a similar question, in 

respect to mobile offshore drilling units 

(MODUs), some of which may not have 

oil cargo tanks, was submitted as a 

comment to the COFR Rule NPRM 

(Docket No. USCG–2005–21780–0013). 

Further analysis, however, revealed that 

these comments raised a substantive 

and persuasive issue that was not 

adequately addressed in the COFR Rule. 

Specifically, the regulatory text in 33 

CFR part 138, subpart B, as adopted in 

the COFR Rule and the further 

amendments proposed in the CPI 

NPRM, inadvertently applied the singlehull tank vessel limits of liability to 

vessels that do not carry oil cargo.7 We 

determined that this is inconsistent with 

the statutory scheme, including the 

single-hull phase-out requirements of 

Title IV of OPA 90 and 33 CFR part 

157.8 Those requirements only apply to 

a tank vessel that is ‘‘constructed or 

adapted to carry, or carries, oil in bulk 

as cargo or cargo residue’’ (referred to in 

this preamble as ‘‘oil cargo tank 

vessels’’). (See 46 U.S.C. 3703a(a)(1)). 

Clarifying this issue requires minor 

amendments to the regulatory text in 33 

CFR part 138, subpart B, that were not 

discussed in the CPI NPRM. Therefore, 

in order to adjust the limits of liability 

for inflation as required by 33 U.S.C 

2704(d), while also addressing the hull 

category issue, the Coast Guard is 

publishing this rulemaking as an 

interim rule, and invites the public to 

comment on the proposed hull category 

clarifications. The following discussion 

outlines the legal basis for clarifying the 

hull category provisions. 

OPA 90, as amended, at 33 U.S.C. 

2704(a)(1)(A) and (B), divides the tank 

vessel limits of liability into two tank 

vessel hull categories: (A) single-hull 

tank vessels, including a single-hull 

vessel fitted with double sides only or 

a double bottom only, and (B) other tank 

vessels.9

OPA 90 defines ‘‘tank vessel’’ as ‘‘a 

vessel that is constructed or adapted to 

carry, or that carries, oil or hazardous 

material in bulk as cargo or cargo 

residue’’ (33 U.S.C. 2701). Title I of OPA 

90 could, therefore, be read to impose 

the single-hull limits of liability on both 

oil and hazardous material cargo tank 

vessels. The context of the DRPA 

amendments that increased the vessel 

limits of liability and created the 

distinction in OPA 90 Title I between 

single-hull and other tank vessels, 

however, is helpful in understanding 

that the single-hull limits of liability 

were intended to apply only to oil cargo 

tank vessels. 

The catalyst for DRPA was the 2004 

single-bottom, double-sided ATHOS I 

oil cargo tank vessel spill incident on 

the Delaware River, where the limit of 

liability amounted to about 20 percent 

of the estimated removal costs and 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31365 

10Under this wording, the hull configuration of 

a hazardous material tank vessel will be relevant, 

for purposes of determining which limits of liability 

apply, only if the vessel is ‘‘constructed or adapted 

to carry, or carries, oil in bulk as cargo or cargo 

residue’’ (e.g., a vessel carrying LNG distillate or 

condensate in bulk as cargo or cargo residue). It also 

would only be relevant for a MODU if the MODU 

is ‘‘constructed or adapted to carry, or carries, oil 

in bulk as cargo or cargo residue’’. If the vessel is 

not so constructed, adapted or used, it falls in the 

‘‘other’’ tank vessel category of OPA 90 (33 U.S.C. 

2704(a)(1)(B), (C)(i)(II) and (C)(ii)(II)), and qualifies 

for the lower limits of liability of § 138.230(a)(2) 

and (4). If it is constructed or adapted to carry, or 

does in fact carry, oil in bulk as cargo or cargo 

residue, the vessel hull will have to meet the double 

hull requirements of 33 CFR part 157 to qualify for 

the lower limits of liability of § 138.230(a)(2) and 

(4). 

11As previously noted, there are only two LNG 

Deepwater Ports currently in operation (Gulf 

Gateway Energy Bridge and Northeast Gateway). 

The Coast Guard, however, determined that the 

design, construction, and operation of these LNG 

Deepwater Ports did not meet the definition of an 

OPA 90 facility under 33 U.S.C. 2701(9). (See 

discussion at V.C.1., above.) Therefore, unless the 

design, construction, and operations at the existing 

LNG Deepwater Ports are changed, the ports will 

not be affected by this interim rule. 

damages resulting from the spill. In 

2006, Congress increased the limits of 

liability for vessels other than singlehull tank vessels by approximately 50 

percent to reflect CPI increases since 

enactment of OPA 90. But, in 

recognition of the higher risk of oil 

spills from single-hull oil cargo tank 

vessels, Congress decided to increase 

the limits of liability for single-hull tank 

vessels (including a tank vessel fitted 

with double sides only or a double 

bottom only) by approximately 150 

percent. Therefore, the single-hull 

category of OPA 90 is concerned with 

those vessels that were the focus of 

Congressional concern, i.e., oil cargo 

tank vessels. 

Moreover, as previously noted, singlehull vessels are the particular concern of 

OPA 90 Title IV and the Coast Guard’s 

implementing regulations at 33 CFR part 

157. Those provisions mandate a phaseout of single hulls for any tank vessel 

that is ‘‘constructed or adapted to carry, 

or carries, oil in bulk as cargo or cargo 

residue’’, i.e., for any oil cargo tank 

vessel. Any such vessel must be taken 

out of service or comply by specified 

deadlines with the Title IV and part 157 

technical requirements for double hulls. 

It is, therefore, reasonable to view the 

single-hull vessel limits of liability in 

Title I of OPA 90, as applying only to 

tank vessels that are subject to the 

single-hull phase-out requirements of 

Title IV (i.e., to any tank vessel that is 

‘‘constructed or adapted to carry, or 

carries, oil in bulk as cargo or cargo 

residue’’, where the hull of the vessel is 

single, including a double bottom or 

double sides only). It is this category of 

tank vessel that Congress was concerned 

with as presenting a greater threat of oil 

pollution, and thereby deserving of 

phase-out regulation and higher limits 

of liability. 

By the same token, a tank vessel that 

is not constructed or adapted to carry, 

and that does not in fact carry, oil in 

bulk as cargo or cargo residue, does not 

have to meet the single-hull phase-out 

requirements of OPA 90 Title IV and 33 

CFR part 157. It is, therefore, reasonable 

to view the ‘‘other’’ category of tank 

vessel limits of liability under OPA 90 

Title I as applying to such vessel (i.e., 

to any tank vessel that is not an oil cargo 

tank vessel). 

The Coast Guard is clarifying the 

regulatory text to reflect this statutory 

scheme. Specifically, we have deleted 

the definition of ‘‘double hull’’ in 

§ 138.220 and all references to ‘‘double 

hull’’ in § 138.230. We have also 

amended the definition of ‘‘single-hull’’ 

to clarify that it is limited to a singlehull tank vessel that is ‘‘constructed or 

adapted to carry, or that carries, oil in 

bulk as cargo or cargo residue’’, and that 

does not meet the double-hull technical 

standards applicable to oil cargo tank 

vessels contained in 33 CFR part 157.10

The Coast Guard seeks comments on 

these regulatory text changes. 

VI. Regulatory Analyses 

We developed this interim rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

A. Regulatory Planning and Review 

This interim rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

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

Order. It has not been reviewed by the 

Office of Management and Budget under 

that Order. A draft Regulatory 

Assessment is available in the docket 

where indicated under the ‘‘Public 

Participation and Request for 

Comments’’ section of this preamble. A 

summary of the Assessment follows: 

On September 24, 2008, the CPI 

NPRM was published (73 FR 54997) and 

included a supplemental Preliminary 

Regulatory Assessment of the proposed 

rule. The comment period ended on 

November 24, 2008. No comments were 

received on the Preliminary Regulatory 

Assessment. Prior to developing the 

Interim Rule Regulatory Assessment, we 

confirmed that the methodology and 

data sources contained in the 

Preliminary Regulatory Assessment had 

not changed, and the only revision since 

the NPRM would be an update for the 

newly available 2008 Annual CPI–U. 

There are two regulatory costs that are 

expected from this interim rule: 

• Regulatory Cost 1: An increased 

cost of liability to responsible parties of 

vessels and Deepwater Ports. 

• Regulatory Cost 2: An increased 

cost for establishing and maintaining 

evidence of financial responsibility to 

vessel responsible parties under 33 

U.S.C. 2716 and 33 CFR part 138, 

subpart A. 

Existing Deepwater Ports are not 

expected to have any increased 

evidence of financial responsibility 

costs as a result of this interim rule. 

1. Discussion of Regulatory Cost 1 

This rulemaking could increase the 

dollar amount of removal costs and 

damages a responsible party of a vessel 

or Deepwater Port would be responsible 

to pay in the event of a discharge, or 

substantial threat of discharge, of oil 

(hereafter an ‘‘OPA 90 incident’’). 

Regulatory Cost 1 will, however, only be 

incurred by a responsible party if an 

OPA 90 incident results in OPA 90 

removal costs and damages that exceed 

the vessel or Deepwater Port’s previous 

limit of liability. In any such case, the 

difference between the previous limit of 

liability amount and the new limit of 

liability amount established by this 

interim rule will be the increased cost 

to the responsible party. 

(a) Affected Population—Vessels 

Coast Guard data, as of May 2007, 

indicate that, for the years 1991 through 

2006, 41 OPA 90 incidents involving 

vessels resulted in removal costs and 

damages in excess of the previous limits 

of liability (an average of approximately 

three OPA 90 incidents per year). For 

the purpose of this analysis, we assume 

that three OPA 90 incidents involving 

vessels would occur per year over a 10- 

year analysis period (2009–2018), with 

removal costs and damages reaching or 

exceeding the new limits of liability for 

vessels established by this interim rule. 

(b) Affected Population—Deepwater 

Ports 

At this time, LOOP is the only 

Deepwater Port in operation that is 

subject to OPA 90.11 As previously 

noted, to date, LOOP has not had an 

OPA 90 incident that resulted in 

removal costs and damages in excess of 

LOOP’s previous limit of liability of $62 

Million. However, for cost estimating 

purposes, we assume that one OPA 90 

incident would occur at LOOP over the 

10-year analysis period (2009–2018), 

with removal costs and damages 

31366 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

reaching or exceeding the new limit of 

liability for LOOP. Assuming an OPA 90 

incident at the LOOP during the next 

ten years is merely a conservative 

assumption for cost estimating 

purposes. If there is no OPA 90 incident 

at the LOOP during the next ten years, 

then we will have over-estimated the 

cost of the rulemaking. 

(c) Cost Summary Regulatory Cost 1 

The average annual cost of this 

rulemaking resulting from the three 

forecasted vessel OPA 90 incidents per 

year is estimated to be $2.0 Million 

(non-discounted Dollars). The average 

annual cost of this rulemaking resulting 

from the one forecasted LOOP OPA 90 

incident over 10 years is estimated to be 

$2.6 Million (non-discounted Dollars). 

The 10-year (2009–2018) present value 

at a 3 percent discount rate of this 

regulatory cost (vessels and LOOP) is 

estimated to be $40.0 Million. The 10- 

year (2009–2018) present value at a 7 

percent discount rate of this regulatory 

cost (vessels and LOOP) is estimated to 

be $34.2 Million. 

2. Discussion of Regulatory Cost 2 

Under OPA 90 (33 U.S.C. 2716) and 

33 CFR part 138, subpart A, responsible 

parties of vessels and Deepwater Ports 

are required to establish and maintain 

evidence of financial responsibility to 

prove they have the ability to pay for 

removal costs and damages in the event 

of an OPA 90 incident up to their 

applicable limits of liability. Because 

this rulemaking increases the limits of 

liability for vessels and Deepwater Ports 

and, by reference, the applicable 

amounts of financial responsibility 

under 33 CFR 138.80(f), responsible 

parties may incur additional cost 

associated with the corresponding 

requirements for establishing and 

maintaining evidence of financial 

responsibility. 

(a) Affected Population—Vessels 

The rule potentially increases the cost 

associated with establishing financial 

responsibility under OPA 90 and 33 

CFR part 138, subpart A, for responsible 

parties of vessels in two ways. 

Responsible parties using commercial 

insurance as their method of financial 

guaranty could incur higher insurance 

premiums. Responsible parties using 

self-insurance as their method of 

financial guaranty will need to seek out 

and acquire commercial insurance for 

vessels they operate if they are no longer 

eligible for self-insurance based on their 

working capital and net worth. There 

are approximately 17,064 vessels using 

commercial insurance and 741 vessels 

using self-insurance methods of 

guaranty. 

(b) Affected Population—Deepwater 

Ports 

As previously discussed (see 

VI.A.1.(b), above, Affected Population— 

Deepwater Ports, Regulatory Cost 1), 

LOOP is the only Deepwater Port that 

would be affected by this interim rule. 

An increase in the LOOP limit of 

liability of the magnitude of this 

rulemaking, however, is not expected to 

increase the cost associated with 

establishing and maintaining LOOP’s 

evidence of financial responsibility. 

This is because LOOP uses a facilityspecific method of providing evidence 

of financial responsibility to the Coast 

Guard. Specifically, LOOP is insured 

under a policy issued by Oil Insurance 

Limited (OIL) of Bermuda up to $150 

Million per OPA 90 incident and a $225 

Million annual aggregate. The Coast 

Guard has historically accepted the OIL 

policy, along with the policy’s $50 

Million minimum net worth and 

minimum working capital requirements, 

as evidence of financial responsibility. 

The Coast Guard does not expect that an 

increase in the LOOP limit of liability of 

the magnitude of this rulemaking would 

change the terms of the OIL policy, 

result in an increased premium for the 

OIL policy, or require LOOP to have 

higher minimum net worth or working 

capital requirements. 

(c) Cost Summary—Regulatory Cost 2 

For purposes of calculating 

Regulatory Cost 2, we assume that this 

rulemaking will cause the insurance 

premiums for vessels that are now 

commercially insured to increase by 5 

percent from current levels. We also 

assume that 2 percent of the vessel 

responsible parties using self-insurance 

to provide evidence of financial 

responsibility will migrate to 

commercial insurance. Depending on 

the particular year and the discount rate 

used, annual costs of this interim rule 

range from $1.7 Million to $3.4 Million 

per year. The 10-year (2009–2018) 

present value, at a 3 percent discount 

rate, of this regulatory cost is estimated 

to be between $27.8 Million and $28.6 

Million. The 10-year (2009–2018) 

present value, at a 7 percent discount 

rate, of this regulatory cost is estimated 

to be between $23.8 Million and $24.6 

Million. The ranges reflect two vessel 

profiles that were developed and 

analyzed separately to account for the 

uncertainty, due to data gaps, of when 

existing single-hulled tank vessels 

would be phased out. 

3. Total Cost—Regulatory Cost 1 + 

Regulatory Cost 2 

Depending on the particular year and 

the discount rate used, annual costs of 

this interim rule range from $4.2 Million 

to $7.9 Million per year. The 10-year 

present value of the total cost of this 

interim rule (Regulatory Cost 1 + 

Regulatory Cost 2) at a 3 percent 

discount rate is estimated to be between 

$67.8 Million and $68.6 Million. The 

10-year present value of the total cost of 

this interim rule (Regulatory Cost 1 + 

Regulatory Cost 2) at a 7 percent 

discount rate is estimated to be between 

$58.0 Million and $58.8 Million. 

4. Benefits 

With respect to benefits, this interim 

rule is expected to: 

• Ensure that the real value of the 

OPA 90 limits of liability keep pace 

with inflation over time; 

• Preserve the polluter-pays principle 

embodied in OPA 90 and, thereby, 

ensure that limited Fund resources can 

be optimally utilized in responding to 

future incidents; and 

• Result in a slight reduction in 

substandard shipping in United States 

waterways and ports because insurers 

would be less likely to insure 

substandard vessels to this new level of 

liability. 

B. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this interim 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. 

Based on the threshold analysis 

conducted in the CPI NPRM, we 

determined that an Initial Regulatory 

Flexibility Analysis was not necessary 

for the proposed rule. The comment 

period ended on November 24, 2008. No 

comments were received with respect to 

any aspects of the CPI NPRM that might 

concern small entities. Prior to 

developing the interim rule, we 

confirmed that the methodology and 

data sources contained in the threshold 

analysis had not changed, and the only 

revision since the NPRM would be an 

update for the newly available 2008 

Annual CPI–U. 

Therefore, the Coast Guard certifies 

under 5 U.S.C. 605(b) that this interim 

rule will not have a significant 

economic impact on a substantial 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31367 

number of small entities. If you think 

that your business, organization, or 

governmental jurisdiction qualifies as a 

small entity and that this interim rule 

will 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 interim 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 interim rule so that 

they can better evaluate its effects on 

them and participate in the rulemaking. 

If the rule would affect your small 

business, organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please consult Rachel 

Hopp, National Pollution Funds Center, 

Coast Guard, telephone 202–493–6753. 

The Coast Guard will not retaliate 

against small entities that question or 

complain about this interim 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 interim rule results in a revision 

of an existing collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3520). 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 

collections, a description of those who 

must collect the information, and an 

estimate of the total annual burden 

follow. The estimate covers the time for 

reviewing instructions, searching 

existing sources of data, gathering and 

maintaining the data needed, and 

completing and reviewing the 

collection. 

Title: Consumer Price Index 

Adjustments of Oil Pollution Act of 

1990 Limits of Liability—Vessels and 

Deepwater Ports. 

OMB Control Number: 1625–0046. 

Summary of the Collection of 

Information: Not later than 90 days after 

the effective date of the interim rule, 

responsible parties for vessels will be 

required under 33 CFR part 138, subpart 

A, § 138.85 to establish evidence of 

financial responsibility to the applicable 

amounts determined under 33 CFR part 

138, subpart A, § 138.80(f), based on the 

limits of liability as adjusted by this 

rulemaking. 

Need for Information: This 

information collection is necessary to 

enforce the evidence of financial 

responsibility requirements at 33 CFR 

part 138, subpart A. Without this 

collection, it would not be possible for 

the Coast Guard to know which 

responsible parties are in compliance 

with the financial responsibility 

applicable amounts determined under 

33 CFR part 138, subpart A, and which 

are not. Vessels not in compliance are 

subject to the penalties provided in 33 

CFR 138.140. 

Proposed Use of Information: The 

Coast Guard uses this information to 

verify that vessel responsible parties 

have established evidence of financial 

responsibility to reflect the financial 

responsibility applicable amounts 

determined under 33 CFR part 138, 

subpart A, based on the limits of 

liability as adjusted by this rulemaking. 

Description of the Respondents: 

Responsible parties and guarantors of 

vessels that require COFRs under 33 

CFR part 138, Subpart A. 

Number of Respondents: There are 

approximately 900 United States vessel 

responsible parties, 9,000 foreign vessel 

responsible parties, and 100 vessel 

guarantors that submit information to 

the Coast Guard. 

Frequency of Response: This is a onetime submission occurring not later than 

90 days after the effective date of the 

interim rule. Subsequent submissions 

that may be required as a result of 

regulatory changes to limits of liability 

under 33 U.S.C 2704(d) are not included 

here because they will be addressed in 

future rulemakings. 

Burden of Response: 

Increased burden associated with 

reporting requirements: 

10,000 vessel responsible parties and 

guarantors × 1.0 hours per response 

= 10,000 hours 

Estimate of Total Annual Burden: We 

calculated the burden using the ‘‘All 

Occupations’’ mean National average 

hourly wage of $19.21 per hour, 

published by BLS in the August 2007 

‘‘National Compensation Survey: 

Occupational Earnings in the United 

States’’. In addition, BLS data shows 

that total employee benefits are 

approximately 30 percent of total 

compensation (wages + benefits). 

Therefore, since wages account for 70 

percent of total compensation, total 

compensation per hour is $27.44 

($19.21/0.7) and benefits are $8.23. 

We then multiplied the number of net 

burden hours by the burdened labor rate 

calculated above (rounded to the nearest 

dollar, i.e. $27 per hour). 

Increased burden associated with the 

reporting requirements: 

10,000 hours × $27 per hour = $270,000 

As required by the Paperwork 

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

3507(c)), we will submit a copy of this 

interim rule and an information 

collection request to the Office of 

Management and Budget (OMB) for its 

review of the collection of information 

under 33 CFR part 138, subpart A, 

§ 138.85. 

In the NPRM we requested public 

comment on the collection of 

information, and received none. We 

again ask for public comment on the 

collection of information to help us 

determine how useful the information 

is; whether it can help us perform our 

functions better; whether it is readily 

available elsewhere; how accurate our 

estimate of the burden of collection is; 

how valid our methods for determining 

burden are; how we can improve the 

quality, usefulness, and clarity of the 

information; and how we can minimize 

the burden of collection. 

If you submit comments on the 

collection of information under 33 CFR 

part 138, subpart A, § 138.85, submit 

them both to OMB and to the docket for 

this rulemaking where indicated under 

ADDRESSES, by the date under DATES. 

You need not respond to a collection 

of information unless it displays a 

currently valid control number from 

OMB. The Coast Guard will not enforce 

the information collection request 

triggered by this rulemaking until it is 

approved by OMB. We will publish a 

document in the Federal Register 

informing the public of OMB’s decision 

to approve, modify, or disapprove the 

collection. 

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 interim rule under that Order and 

have determined that it does not have 

implications for federalism. 

31368 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

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 or more in any one year. 

Though this interim rule will not result 

in such an expenditure, we do discuss 

the effects of this interim rule elsewhere 

in this preamble. 

G. Taking of Private Property 

This interim rule will not effect a 

taking of private property or otherwise 

have taking implications under 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights. 

H. Civil Justice Reform 

This interim 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 interim rule 

under Executive Order 13045, 

Protection of Children from 

Environmental Health Risks and Safety 

Risks. This interim rule is not an 

economically significant rule and does 

not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

J. Indian Tribal Governments 

This interim rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

K. Energy Effects 

We have analyzed this interim rule 

under Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

L. Technical Standards 

The National Technology Transfer 

and Advancement Act (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 interim rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

M. Environment 

We have analyzed this interim rule 

under Department of Homeland 

Security Management Directive 023–01 

and Commandant Instruction 

M16475.lD, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have concluded 

that this action is one of a category of 

actions which do not individually or 

cumulatively have a significant effect on 

the human environment. This interim 

rule is categorically excluded under 

section 2.B.2, figure 2–1, paragraph 

(34)(a) of the Instruction. This interim 

rule sets forth the methodology the 

Coast Guard uses to increase OPA 90 

limits of liability to reflect significant 

increases in the CPI, and makes the first 

set of statutorily-mandated inflation 

increases to the OPA 90 limits of 

liability for vessels and Deepwater 

Ports. An environmental analysis 

checklist and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 138 

Hazardous materials transportation, 

Insurance, Limits of liability, Oil 

pollution, Reporting and recordkeeping 

requirements, Water pollution control. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 138 as follows: 

PART 138—FINANCIAL 

RESPONSIBILITY FOR WATER 

POLLUTION (VESSELS) AND OPA 90 

LIMITS OF LIABILITY (VESSELS AND 

DEEPWATER PORTS) 

■ 1. The authority citation for part 138 

is revised to read as follows: 

Authority: 33 U.S.C. 2704; 33 U.S.C. 2716, 

2716a; 42 U.S.C. 9608, 9609; Sec. 1512 of the 

Homeland Security Act of 2002, Public Law 

107–296, Title XV, Nov. 25, 2002, 116 Stat. 

2310 (6 U.S.C. 552(d)); E.O. 12580, Sec. 7(b), 

3 CFR, 1987 Comp., p. 198; E.O. 12777, Sec. 

5, 3 CFR, 1991 Comp., p. 351, as amended 

by E.O. 13286, 68 FR 10619, 3 CFR, 2004 

Comp., p.166; Department of Homeland 

Security Delegation Nos. 0170.1 and 5110. 

Section 138.30 also issued under the 

authority of 46 U.S.C. 2103 and 14302. 

■ 2. Revise Subpart B to read as follows: 

Subpart B—OPA 90 Limits of Liability 

(Vessels and Deepwater Ports) 

Sec. 

138.200 Scope. 

138.210 Applicability. 

138.220 Definitions. 

138.230 Limits of liability. 

138.240 Procedure for calculating limit of 

liability adjustments for inflation. 

§ 138.200 Scope. 

This subpart sets forth the limits of 

liability for vessels and deepwater ports 

under Title I of the Oil Pollution Act of 

1990, as amended (33 U.S.C. 2701, et 

seq.) (OPA 90), as adjusted under 

Section 1004(d) of OPA 90 (33 U.S.C. 

2704(d)). This subpart also sets forth the 

method for adjusting the limits of 

liability by regulation for inflation 

under Section 1004(d) of OPA 90 (33 

U.S.C. 2704(d)). 

§ 138.210 Applicability. 

This subpart applies to you if you are 

a responsible party for a vessel as 

defined under Section 1001(37) of OPA 

90 (33 U.S.C. 2701(37)) or a deepwater 

port as defined under Section 1001(6) of 

OPA 90 (33 U.S.C. 2701(6)), unless your 

OPA 90 liability is unlimited under 

Section 1004(c) of OPA 90 (33 U.S.C. 

2704(c)). 

§ 138.220 Definitions. 

(a) As used in this subpart, the 

following terms have the meaning as set 

forth in Section 1001 of OPA 90 (33 

U.S.C. 2701): deepwater port, gross ton, 

liability, oil, responsible party, tank 

vessel, and vessel. 

(b) As used in this subpart— 

Annual CPI–U means the annual 

‘‘Consumer Price Index—All Urban 

Consumers, Not Seasonally Adjusted, 

U.S. City Average, All items, 1982– 

84=100’’, published by the U.S. 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31369 

Department of Labor, Bureau of Labor 

Statistics. 

Director, NPFC means the head of the 

U.S. Coast Guard, National Pollution 

Funds Center (NPFC). 

Single-hull means the hull of a tank 

vessel that is constructed or adapted to 

carry, or that carries, oil in bulk as cargo 

or cargo residue, that is not a double 

hull as defined in 33 CFR part 157. 

Single-hull includes the hull of any such 

tank vessel that is fitted with double 

sides only or a double bottom only. 

§ 138.230 Limits of liability. 

(a) Vessels. The OPA 90 limits of 

liability for vessels are— 

(1) For a single-hull tank vessel 

greater than 3,000 gross tons, the greater 

of $3,200 per gross ton or $23,496,000; 

(2) For a tank vessel greater than 3,000 

gross tons, other than a single-hull tank 

vessel, the greater of $2,000 per gross 

ton or $17,088,000. 

(3) For a single-hull tank vessel less 

than or equal to 3,000 gross tons, the 

greater of $3,200 per gross ton or 

$6,408,000. 

(4) For a tank vessel less than or equal 

to 3,000 gross tons, other than a singlehull tank vessel, the greater of $2,000 

per gross ton or $4,272,000. 

(5) For any other vessel, the greater of 

$1,000 per gross ton or $854,400. 

(b) Deepwater ports. The OPA 90 

limits of liability for deepwater ports 

are— 

(1) For any deepwater port other than 

a deepwater port with a limit of liability 

established by regulation under Section 

1004(d)(2) of OPA 90 (33 U.S.C. 

2704(d)(2)) and set forth in paragraph 

(b)(2) of this section, $373,800,000; 

(2) For deepwater ports with limits of 

liability established by regulation under 

Section 1004(d)(2) of OPA 90 (33 U.S.C. 

2704(d)(2)): 

(i) For the Louisiana Offshore Oil Port 

(LOOP), $87,606,000; and 

(ii) [Reserved]. 

(c) [Reserved]. 

§ 138.240 Procedure for calculating limit of 

liability adjustments for inflation. 

(a) Formula for calculating a 

cumulative percent change in the 

Annual CPI–U. The Director, NPFC, 

calculates the cumulative percent 

change in the Annual CPI–U from the 

year the limit of liability was 

established, or last adjusted by statute or 

regulation, whichever is later (i.e., the 

Previous Period), to the most recently 

published Annual CPI–U (i.e., the 

Current Period), using the following 

escalation formula: 

Percent change in the Annual CPI–U = 

[(Annual CPI–U for Current 

Period¥Annual CPI–U for Previous 

Period) ÷ Annual CPI–U for 

Previous Period] × 100. 

This cumulative percent change value 

is rounded to one decimal place. 

(b) Significance threshold. Not later 

than every three years from the year the 

limits of liability were last adjusted for 

inflation, the Director, NPFC, will 

evaluate whether the cumulative 

percent change in the Annual CPI–U 

since that date has reached a 

significance threshold of 3 percent or 

greater. For any three-year period in 

which the cumulative percent change in 

the Annual CPI–U is less than 3 percent, 

the Director, NPFC, will publish a 

notice of no inflation adjustment to the 

limits of liability in the Federal 

Register. If this occurs, the Director, 

NPFC, will recalculate the cumulative 

percent change in the Annual CPI–U 

since the year in which the limits of 

liability were last adjusted for inflation 

each year thereafter until the cumulative 

percent change equals or exceeds the 

threshold amount of 3 percent. Once the 

3-percent threshold is reached, the 

Director, NPFC, will increase the limits 

of liability, by regulation, for all source 

categories (including any new limit of 

liability established by statute or 

regulation since the last time the limits 

of liability were adjusted for inflation) 

by an amount equal to the cumulative 

percent change in the Annual CPI–U 

from the year each limit was 

established, or last adjusted by statute or 

regulation, whichever is later. Nothing 

in this paragraph shall prevent the 

Director, NPFC, in the Director’s sole 

discretion, from adjusting the limits of 

liability for inflation by regulation 

issued more frequently than every three 

years. 

(c) Formula for calculating inflation 

adjustments. The Director, NPFC, 

calculates adjustments to the limits of 

liability in § 138.230 of this part for 

inflation using the following formula: 

New limit of liability = Previous limit of 

liability + (Previous limit of liability 

× percent change in the Annual 

CPI–U calculated under paragraph 

(a) of this section), then rounded to 

the closest $100. 

(d) [Reserved]. 

Dated: June 25, 2009. 

William R. Grawe, 

Acting Director, National Pollution Funds 

Center, United States Coast Guard. 

[FR Doc. E9–15563 Filed 6–30–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0489] 

RIN 1625–AA11 

Regulated Navigation Area; Herbert C. 

Bonner Bridge, Oregon Inlet, NC 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary regulated 

navigation area (RNA) on the waters of 

Oregon Inlet, North Carolina (NC). The 

RNA is needed to protect maritime 

infrastructure and the maritime public 

during fender repair work on the 

Herbert C. Bonner Bridge. 

DATES: This rule is effective from 8 p.m. 

on June 22, 2009, through 8 p.m. on July 

31, 2009. 

ADDRESSES: Comments and materials 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket are part 

of docket USCG–2009–0489 and are 

available online by going to http:// 

www.regulations.gov, selecting the 

Advanced Docket Search option on the 

right side of the screen, inserting USCG– 

2009–0489 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. This 

material is also available for inspection 

or copying at two locations: The Docket 

Management Facility (M–30), U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays, and at Coast 

Guard Sector North Carolina, 2301 E 

Fort Macon Rd, Atlantic Beach, NC, 

28512, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

rule, call or e-mail CWO4 Stephen 

Lyons, Waterways Management 

Division Chief, Coast Guard Sector 

North Carolina; telephone (252) 247– 

4525, e-mail 

Stephen.W.Lyons2@uscg.mil. If you 

have questions on viewing the docket, 

call Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: