Overfill Devices

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 155 and 156

[CGD 90-071a]

RIN 2115-AD87

Overfill Devices

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing minimum standards for overfill

devices as required by the Oil Pollution Act of 1990 (OPA 90). The

purpose of the overfill device is to warn of cargo tank overfills. This

regulation requires the phased-in installation and use of the devices

on the cargo tanks of certain tank vessels that carry oil or oil

residue as primary cargo. This regulation should reduce the likelihood

of spills when oil is loaded as cargo.

DATES: This final rule is effective on October 17, 1997.

ADDRESSES: Documents as indicated in this preamble are available for

inspection or copying at the office of the Executive Secretary, Marine

Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100 Second

Street SW., room 3406, Washington, DC 20593-0001, between 9:30 a.m. and

2:00 p.m., Monday through Friday, except Federal holidays. The

telephone number is (202) 267-1477.

FOR FURTHER INFORMATION CONTACT:

LTJG J.K. Grzelak, Project Manager, Office of Standards Evaluation and

Development (G-MSR), telephone (202) 267-1249.

SUPPLEMENTARY INFORMATION:

Regulatory History

Section 4110 of the Oil Pollution Act of 1990 (OPA 90) [Pub. L.

101-380) adds a statutory note following 46 U.S.C. 3703 requiring, in

part, the establishment of minimum standards for overfill devices on

certain tank vessels.

To meet the statutory requirements, the Coast Guard published a

notice of proposed rulemaking (NPRM) entitled, ``Overfill Devices,'' in

the Federal Register (58 FR 4040; January 12, 1993). The Coast Guard

received 32 letters commenting on the proposal.

In response to some comments, the Coast Guard published a notice

(58 FR 54315; October 21, 1993) and held a public meeting at U.S. Coast

Guard Headquarters in Washington, DC, on November 17, 1993. Twenty-

eight people attended the meeting. A list of the attendees and audio

tapes of the meeting are available in the public docket for this

rulemaking [CGD 90-071a] at the address listed under ADDRESSES.

On October 21, 1994, the Coast Guard published an interim rule

entitled, ``Overfill Devices'' in the Federal Register (59 FR 53286).

On January 19, 1995, the interim rule went into effect and the comment

period closed. The Coast Guard received 7 letters commenting on the

interim rule. No additional public meeting was requested and none was

held.

Background and Purpose

An overfill spill occurs when too much oil is pumped or gravitated

into a cargo tank during a transfer operation (e.g., from a facility to

a tank vessel or from one tank vessel to another). Human error is the

most often reported cause of this type of spill. Many overfill spills

are small; however, some reported overfill spills have involved large

quantities of oil.

Coast Guard regulations require vessel owners and operators to

follow pollution prevention procedures during oil transfer operations

(33 CFR parts 155 and 156). Existing regulations did knot require

devices on cargo tanks to detect and warn of impending overfills until

January 19, 1995, when the interim rule for overfill devices went into

effect.

More detailed background information on overfill spills and devices

can be found in the preamble of the NPRM under Background and Purpose.

Discussion of Comments and Changes

Seven letters were received in response to the interim rule. The

Coast Guard has reviewed all of the comments and they are discussed as

follows:

Applicability

One comment, writing on behalf of 7 agricultural associations,

strongly supported the Coast Guard's interim rule as it applies to

animal fats and vegetable oils. This final rule continues to exclude

tank vessels carrying animal fats and vegetable oils from overfill

device requirements. To make this exclusion clear, paragraph (f) of 33

CFR 155.480 has been revised in this final rule.

One comment expressed opposition to the requirements for overfill

devices on black oil barges, specifically those that carry Number 6

oil, because they carry that oil only for a few months out of the year

and the heat required to keep the product liquefied renders the

equipment useless. The Coast Guard finds that heavy oils are just as

likely to overflow from cargo tanks as lower viscosity oils, regardless

of the time of year. Vessel

[[Page 48771]]

owners and operators must choose overfill devices best suited for the

oil they carry, and in accordance with 33 CFR 155.750(e)(2), 46 CFR

39.20-7(b)(3), and 46 CFR 39.20-9(b)(3), they must test their equipment

prior to each cargo loading. If a method of overfill detection is not

technologically available for a particular type of high-temperature

service oil, such as Number 6 oil, the owner or operator of a vessel,

on a case-by-case basis, may request an alternative means of compliance

in accordance with 33 CFR 155.120(c).

Two comments stated that the rule should apply to all tank vessels,

regardless of cargo capacity, because smaller vessels operate almost

exclusively in confined waterways with longer flushing periods, higher

environmental sensitivities, and restricted cleanup access. A similar

comment stated that the implementation costs of higher standards are

cost-effective when compared with the probable costs of spill response,

cleanup, and liability for damages for tank vessels less than 1,000

cubic meters (M\3\). The Coast Guard has reviewed the costs of this

rule, especially with respect to small entities as required by the

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

that it is appropriate to limit the applicability to vessels with a

cargo capacity of 1,000 M\3\ (approximately 6,290 barrels, 1 barrel

equals 42 U.S. gallons) or more to balance the benefits of this

rulemaking with the costs. Therefore, this final rule does not change

the applicability of overfill device requirements to include tank

vessels less than 1,000 M\3\.

One comment objected to the exemption of vessels that were likely

to be phased out of service in the next 5 years. The Coast Guard

disagrees with this comment because the costs of upgrading overfill

devices on these vessels would not be recovered by the year 2000. In

addition, the Coast Guard has determined that the costs incurred by

these vessels would outweigh the environmental clean-up costs should an

overfill occur. For these reasons, this final rule retains the

exemption for single-hull vessels that will be phased out by the year

2000.

Two comments suggested that the regulation should apply during all

cargo transfer operations, not just loading. As stated in the interim

rule, overfill incidents occur during internal cargo transfers and

discharges; however, these incidents are infrequent and do not result

in large spills into the water. Tank vessel owners and operators are

still encouraged to use overfill devices for all transfer operations,

but this final rule continues to apply only during loading.

One comment suggested clarification of the application of this rule

to foreign-flag tank vessels because it questioned the procedure for

determining the compliance date under 33 CFR 155.480(d) if the cargo

tank internal examinations were conducted on a rolling basis, rather

than all at once. To avoid the duplication of costly gas-freeing of

cargo tanks, the Coast Guard allowed for installation of overfill

devices as tanks are due for internal examinations in the interim rule.

This provision has not changed in this final rule.

One comment wanted to know the meaning of the term ``newly

constructed tank vessel'' and wanted clarification on what requirements

would apply to this type of vessel. The interim rule used the phrase

``newly constructed tank vessel'' to reference vessels built after

January 19, 1995. This reference is not necessary because after January

19, 1995, tank vessels affected by the rule had to meet the

requirements of 33 CFR 155.480 regardless of their build date.

Therefore, the Coast Guard has determined that the clause referencing

newly constructed tank vessel requirements at the end of paragraph (b)

of 33 CFR 155.480 in the interim rule is redundant and it has been

removed.

In addition, the Coast Guard noted that applying the overfill

device requirements to foreign-flag tank vessels in the EEZ is not

consistent with the 1982 United Nations Convention on the Law of the

Sea (UNCLOS). The Convention sets forth the generally recognized

principles of international law concerning the establishment of laws

and regulations by a coastal state in its EEZ to prevent, reduce, and

control pollution from vessels. Article 211(5) of UNCLOS specifies that

such laws and regulations by a coastal state in its EEZ are authorized

if they give effect to accepted international rules and standards

established through the competent international organization or general

diplomatic conference. For consistency, the Coast Guard has eliminated

the reference to the EEZ in Sec. 155.480(b) and revised Sec. 155.100 to

clarify that overfill devices will be required on U.S.- and foreign-

flag tank vessels, with a cargo capacity of 1,000 or more cubic meters,

loading oil or oil residue as cargo and operating in the navigable

waters of the United States, or at a port or terminal under the

jurisdiction of the United States.

Minimum Standards for Overfill Devices on Tankers

Two comments stated that the systems which automatically shutdown

the transfer pumps before an overfill occurs should be required on all

tank vessels. The vapor control regulations in 46 CFR part 39 authorize

the use of automatic shutdown systems during barge loading and

lightering operations. The Coast Guard allows the use of this system

aboard barges to be consistent with related regulations and standards.

However, this final rule does not make this alternative a requirement

for all vessels because it is not cost beneficial to maritime operators

already using other systems.

Minimum Standards for Overfill Devices on Barges

One comment discussed the 5-year monitoring period for the

effectiveness of high-level indicating devices, such as stick gauges.

As stated in the interim rule, if at the end of the 5-year period, the

Coast Guard determines that the overfill spill record of tank barges

equipped with these devices is not essentially as good or better than

the overfill spill record of other tank vessels covered by the

regulations, then the Coast Guard may remove the provision in the

regulation allowing the use of high-level indicating devices as

substitutes for overfill alarms. One comment argued that an agency

should not change a previously allowed regulatory alternative unless

there is compelling evidence to support such a change. In addition, the

comment stated that it is particularly unfair to make such a change

after the affected industry has invested in new equipment, expecting

that its use will be permitted.

The Coast Guard reviewed the spill data from tank vessels for the

years 1989 through 1991, and collected further spill data for tank

vessels for the years 1992 through June 1996. The interim rule, which

required overfill devices for tank vessels, was effective on January

19, 1995. Since then, the percentage of oil spills due to overfills

from tank barges has been significantly reduced. In the years 1992

through 1994, tankers averaged approximately 1.7 overfills per month

and tank barges averaged 3.3 overfills per month.

After the requirement for overfill devices was implemented, the

average number of overfills for tankers was 0.4 per month and the

average number for tank barges was 1.1 per month. This is a 76 percent

decrease in the total number of overfills for tankers and a 66 percent

decrease for tank barges. Based on these calculations, the Coast Guard

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has determined that the 5-year monitoring period is no longer necessary

because statistics indicate that overfill devices, as required in the

interim rule, are effective. The provision in the regulation for the

use of high-level indicating devices, as an alternative to overfill

alarms, will be retained in this final rule. The stick gauge

alternative for tank barges will also be retained in this final rule

because the Coast Guard has determined that it is cost effective.

Training

On comment stated that the Coast Guard should proceed quickly with

publishing an interim rule regarding tankerman qualifications and

training standards. A similar comment stated that manning and training

standards for smaller vessels are insufficient. The Coast Guard

recognizes that the majority of overfills are due to human error and is

currently developing a final rule entitled, ``Qualifications for

Tankermen and for Persons in Charge of Transfers of Dangerous Liquids

and Liquefied Gases.'' An interim rule for the project was published in

the Federal Register on April 4, 1995 (60 FR 17134), and was effective

on March 31, 1996.

Another related comment stated that the Coast Guard should require

the monitoring of transfer operations because they are of critical

importance, regardless of the type of overfill device in use. The

person in charge of transfer procedures is already required by 33 CFR

155.750(e)(1) (i) and (ii) to monitor the level of cargo in the tank,

and shut down transfer operations in time to ensure that the cargo

level in each tank does not exceed the maximum amount permitted by 33

CFR 155.775(b).

Maximum Cargo Level of Oil

One comment recommended that the Coast Guard change the level of

cargo allowed in the cargo tank to 95 percent. The rule will continue

to establish a 98.5 percent level as the maximum level of fill because

it is consistent with the regulations for vapor control systems in 46

CFR 39.30-1(e). Accordingly, a tank may not be filled higher than 98.5

percent or the level at which the overfill alarms are set, for those

cases where shutdown must be initiated at a level below 98.5 percent to

ensure that an overfill does not occur.

Other Issues

One comment questioned the need for additional overpressurization

protection for a tank barge outfitted only with a closed loading

system. The comment also requested clarification of the adequacy of

high-level indicating devices as a means of satisfying the liquid

overpressurization requirements of 46 CFR part 39. Overpressurization

requirements for closed loading systems that do not use vapor control

are outside the scope of this rule, but the Coast Guard may address it

separately in a future rulemaking project.

Two comments suggested rewording 33 CFR 155.480 so that it is not

misinterpreted as requiring an independent overfill system on each

cargo tank of a tankship or misinterpreted as requiring an audible and

visible alarm at each tank top. The Coast Guard has retained these

paragraphs as written in the interim rule because the original wording

clearly recognizes tank overfill systems, with centralized control and

alarm functions, without excluding independent devices as means of

satisfying the requirements of this rule.

One comment requested a grandfather provision for those vessels who

had overfill devices installed before the effective date of this

rulemaking. The Coast Guard based the requirements for overfill devices

on the overfill protection requirements in 46 CFR part 39. The Coast

Guard has determined that the vessels which complied with those rules

would not need to have their overfill device arrangements

grandfathered. For vessels not subject to 46 CFR part 39, the Coast

Guard allowed for equivalent alternatives to specifically assist those

owners or operators who installed devices prior to January 19, 1995. In

addition, alternative arrangements are permitted under this rule,

therefore, the Coast Guard has not included a grandfather clause in

this final rule.

One comment suggested that the overfill device requirements in 33

CFR 155.480 be rewritten to stand alone, instead of cross referencing

46 CFR part 39. The intent of this rulemaking is to conform overfill

device requirements to the requirements for overfill prevention of

vessels using vapor control systems. Because the Coast Guard wishes to

ensure these two parts conform, this final rule does not change the

cross-reference contained in 33 CFR 155.480.

One comment stated that 33 CFR 155.480(b)(2)(l) fails to recognize

the inherent simplicity of the river barge as compared to the ocean

tanker. The comment suggested a battery powered system with a light

indicating that the system has power, as another alternative for

barges. Again, these recommended changes to 33 CFR 155.480(b)(2)(i) are

not consistent with the vapor control rules. The Coast Guard chose to

conform these rules with the existing marine vapor control rules to

assist those who must comply with them.

One comment requested that a summary shutdown, that does not

indicate which tank is overfilling, be accepted in lieu of a shutdown

that does indicate which tank is overfilling. As written, the interim

rule and this final rule allow a summary shutdown arrangement.

Assessment

This rule is a significant regulatory action under section 3(f) of

Executive Order 12866 and has been reviewed by the Office of Management

and Budget under that order. It is significant under the regulatory

policies and procedures of the Department of Transportation (44 FR

11040; February 26, 1979). Although it does not require an assessment

of costs and benefits under section 6(a)(3) of Executive Order 12866,

an assessment has been prepared and is available in the docket for

inspection or copying where indicated under ADDRESSES. There were no

comments received regarding the interim assessment. In addition, the

change to 33 CFR 155.480 in no way changes the findings of the interim

assessment. For these two reasons, and in that there is so little

change in this final rule form the interim rule, the interim assessment

is adopted as a final assessment under Executive Order 12866.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard considered whether this rule will have a significant

economic impact on a substantial number of small entities. ``Small

entities'' include businesses, not-for-profit organizations that are

independently owned and operated and are not dominant in their fields,

and governmental jurisdictions with populations of less than 50,000.

The Coast Guard received no comments on the interim rule from small

entities. Sufficient flexibility alternatives were built into this

rulemaking to accommodate small entities. Therefore, the Coast Guard

certifies under section 605(b) of the Regulatory Flexibility Act (5

U.S.C. 601 et seq.) that this rule will not have a significant economic

impact on a substantial number of small entities.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory

Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard

offered to assist small entities in understanding the rule so that they

could better evaluate its effects on them and

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participate in the rulemaking process. The NPRM for this rulemaking

specifically asked small entities to comment if they thought this

rulemaking would have a significant economic impact on their business.

In addition, the Coast Guard held a public meeting at U.S. Coast Guard

Headquarters on November 17, 1993, to hear public comment on the

rulemaking. Based on the comments received on the NPRM, the Coast Guard

revised the regulations to lessen the burden on small entities. For

example, the Coast Guard has limited these regulations to tank vessels

with a cargo carrying capacity of more than 1,000 M3 to

accommodate those small entities that do not pose as large an

environmental threat, yet would incur substantial cost if overfill

devices were required. Even with the restricted application, this final

rule covers 21 tankships and 391 tank barges which are owned and

operated by small companies. The Coast Guard has provided further

flexibility for the affected small entities by permitting the

alternative of high-level indicating devices for tank barges. This is a

less expensive option and is less costly for the smaller entities

contained within the tank barge industry. If you are a small entity

affected by this final rule and need further help determining how this

rule applies to you, please contact the Coast Guard Officer in Charge

of Marine Inspection identified in 33 CFR part 3 that is nearest to

your vessel's operation.

Collection of Information

This final rule provides for collection of information under the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As required

by 5 U.S.C. 3507(d), the Coast Guard has submitted a copy of this rule

to the Office of Management and Budget (OMB) for its review of the

collection of information. OMB has approved the collection. Section

number 155.750 is approved under OMB control #2115-0121 which expires

February 28, 2000. Section 156.150 was approved by OMB under OMB 2115-

0506 and is currently under their review for renewal.

Persons are not required to respond to a collection of information

unless it displays a currently valid OMB control number.

Federalism

The Coast Guard has analyzed this final rule under the principles

and criteria contained in Executive Order 12612 and has determined that

this final rule does not have sufficient implications for federalism to

warrant the preparation of a Federalism Assessment. One comment

requested that State and municipalities be allowed to adopt stricter

requirements than these Federal regulations. The Coast Guard has

determined that the standards for overfill devices in this final rule

are vessel design requirements and therefore, preclude States or

municipalities from adopting requirements for tank vessels operating in

interstate or foreign commerce, that differ from those contained in

this rule.

Environment

The Coast Guard considered the environmental impact of this rule

and concluded that preparation of an Environmental Impact Statement is

not necessary. An Environmental Assessment and a Finding of No

Significant Impact are available in the docket for inspection or

copying where indicated under ADDRESSES. The Environmental Assessment

discusses the action, subsequent expected environmental impacts, and

the overall need for the action. These regulations are not expected to

result in a significant impact on the quality of the human environment

because overfills tend to result in relatively small spills.

List of Subjects

33 CFR Part 155

Hazardous substances, Oil pollution, Reporting and recordkeeping

requirements.

33 CFR Part 156

Hazardous substances, Oil pollution, Reporting and recordkeeping

requirements, Water pollution control.

For the reasons set forth in the preamble, the interim rule

amending 33 CFR parts 155 and 156, which was published in 59 FR 53286

on October 21, 1994, is adopted as a final rule with the following

changes:

PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION

REGULATIONS FOR VESSELS

1. The authority citation for part 155 and the note following the

citation is revised to read as follows:

Authority: 33 U.S.C. 1231, 1321(j); 46 U.S.C. 3715; sec. 2, E.O.

12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; 49 CFR 1.46. Sections

155.100 through 155.130, 155.350 through 155.400, 155.430, 155.440,

155.470, 155.1030 (j) and (k), and 155.1065(g) also issued under 33

U.S.C. 1903(b); and Secs. 155.1110 through 155.1150 also issued under

33 U.S.C. 2735.

Note: Additional requirements for vessels carrying oil or

hazardous materials are contained in 46 CFR parts 30 through 36, 33

CFR parts 150, 151, 153, and 157.

2. In Sec. 155.100, revise paragraph (a) introductory text and add

a new paragraph (c) to read as follows:

Sec. 155.100 [Amended].

(a) Subject to the exceptions provided for in paragraph (b) and (c)

of this section, this part applies to each ship that:

* * * * *

(c) Section 155.480 applies to each tank vessel with a cargo

capacity of 1,000 or more cubic meters (approximately 6,290 barrels),

loading oil or oil reside as cargo that is operated under the authority

of the United States, wherever located, or operated under the authority

of a country other than the United States while in the navigable waters

of the United States, or while at a port or terminal under the

jurisdiction of the United States.

3. In Sec. 155.480, revise paragraphs (b) introductory text and (f)

to read as follows:

Sec. 155.480 Overfill devices.

* * * * *

(b) Each tank vessel with a cargo capacity of 1,000 or more cubic

meters (approximately 6,290 barrels), loading oil or oil residue as

cargo, must have one overfill device that is permanently installed on

each cargo tank and meets the requirements of this section.

* * * * *

(f) This section does not apply to tank vessels that carry asphalt,

animal fat, or vegetable oil as their only cargo.

Dated: September 4, 1997.

R.D. Herr,

Vice Admiral, U.S. Coast Guard, Acting Commandant.

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

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