Statutory Regulation

33CF138.80.pdf

Financial Responsibility for Water Pollution (Vessels)

Statutory Regulation

OMB: 1625-0046

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Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations
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
Coast Guard, DHS.
Interim rule with request for
comments.
AGENCY:
ACTION:

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–

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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
[email protected] (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 [email protected],
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

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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

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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

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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

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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

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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)).

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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
1 See 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[.]’’).

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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

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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

Source category
(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.
(2) For a tank vessel greater than 3,000
gross tons, other than a vessel referred
to in (a)(1).
(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.
(4) For a tank vessel less than or equal to
3,000 gross tons, other than a vessel referred to in (3).
(5) For any other vessel .............................
(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).
(2) For the Louisiana Offshore Oil Port
(LOOP) 2.

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.
2 Currently LOOP is the only Deepwater Port with
a limit of liability established by regulation under
33 U.S.C. 2704(d)(2).
3 Section 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.

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using the adjustment methodology
established by this rulemaking, are:

Previous limit of liability

New limit of liability

The greater of $3,000 per gross ton or
$22,000,000.

The greater of $3,200 per gross ton or
$23,496,000.

The greater of $1,900 per gross ton or
$16,000,000.

The greater of $2,000 per gross ton or
$17,088,000.

The greater of $3,000 per gross ton or
$6,000,000.

The greater of $3,200 per gross ton or
$6,408,000.

The greater of $1,900 per gross ton or
$4,000,000.

The greater of $2,000 per gross ton or
$4,272,000.

The greater of $950 per gross ton or
$800,000.

The greater of $1,000 per gross ton or
$854,400.

$350,000,000 ....................................................

$373,800,000.

$62,000,000 ......................................................

$87,606,000.

B. Explanation of the CPI Adjustment
Methodology

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.

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.

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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.

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

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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

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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,

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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

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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.

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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

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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
5 The 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
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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
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.’’
6 At 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.

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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

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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
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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
7 The 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

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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
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).)
8 Section 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.
9 These 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).)

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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

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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
10 Under 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).

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31365

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 10year 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
11 As 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.

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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 10year (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

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using self-insurance methods of
guaranty.

3. Total Cost—Regulatory Cost 1 +
Regulatory Cost 2

(b) Affected Population—Deepwater
Ports

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.

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.

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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

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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

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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:

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31367

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.

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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.

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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:

■

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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.

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

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14:55 Jun 30, 2009

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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

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31369

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
Coast Guard, DHS.
Temporary final rule.

AGENCY:
ACTION:

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
[email protected] If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:

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