• DATES:
• ADDRESSES:
• FOR FURTHER INFORMATION CONTACT:
• SUPPLEMENTARY INFORMATION:
• Table of Contents for Preamble
• I. Public Participation and Comments
• II. Abbreviations
• III. Discussion
• IV. Regulatory Analyses
• A. Regulatory Planning and Review
• 
  Affected Population
  
• 
  Costs
  
• Benefits
• 
  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
• List of Subjects
• Subchapter D—Tank Vessel
• PART 30—GENERAL PROVISIONS
• PART 150—COMPATIBILITY OF CARGOES
• Appendix I to Part 150—Exceptions to the Chart
• PART 153—SHIPS CARRYING BULK LIQUID, LIQUEFIED GAS, OR COMPRESSED GAS HAZARDOUS MATERIALS
• Footnotes

• Table I to Part 150—Alphabetical List of Cargoes
• Table II to Part 150—Grouping of Cargoes
• Table 2 to Part 153—Cargoes Not Regulated Under Subchapters D or O of This Chapter When Carried in Bulk on Non-Oceangoing Barges

Comments and related material must be submitted to the online docket via http://www.regulations.gov, or reach the Docket Management Facility, on or before January 20, 2016.

Submit comments using one of the listed methods, and see the SUPPLEMENTARY INFORMATION section of this preamble for more information on public comments.

• Online—http://www.regulations.gov following Web site instructions.
• Fax—202-493-2251.
• Mail or hand deliver—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. Hand delivery hours: 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays (telephone 202-366-9329).

For information about this document call or email Mr. Patrick Keffler, Coast Guard; telephone 202-372-1424, email Patrick.A.Keffler@uscg.mil. For information about viewing or submitting material to the docket, call Ms. Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826, toll free 1-800-647-5527.

We encourage you to submit comments (or related material) on this rulemaking. We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-2013-0423 and should provide a reason for each suggestion or recommendation. You should provide personal contact information so that we can contact you if we have questions regarding your comments; but please note that all comments will be posted to the online docket without change and that any personal information you include can be searchable online.¹

Mailed or hand-delivered comments should be in an unbound 81/2× 11 inch format suitable for reproduction. The Docket Management Facility will acknowledge receipt of mailed comments if you enclose a stamped, self-addressed postcard or envelope with your submission.

Documents mentioned in this notice, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following the Web site’s instructions. You can also view the docket at the Docket Management Facility (see the mailing address under ADDRESSES) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

We are not planning to hold a public meeting but will consider doing so if public comments indicate a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

Basis and purpose. The legal basis of this rulemaking is 46 U.S.C. 3703, which requires the Secretary of the department in which the Coast Guard is operating to prescribe regulations relating to the operation of vessels that carry liquid bulk dangerous cargoes, and to the types and grades of cargo those vessels carry. Additional regulatory authority is provided by 33 U.S.C. 1903 (regulations to implement the International Convention for the Prevention of Pollution from Ships, 1973, or “MARPOL”), 46 U.S.C. 2103 (general merchant marine regulatory authority), and 46 U.S.C. 3306 (regulations for the safety of individuals and property on inspected vessels). The Secretary’s authority under these statutes is delegated to the Coast Guard in DHS Delegation No. 0170.1, para.II (77), (92.a), and (92.b).

The purpose of the rulemaking is to update and revise regulatory tables that list liquid hazardous materials, liquefied gases, and compressed gases that have been approved for maritime transportation in bulk, and that indicate how each cargo is categorized by its pollution risk and safe carriage requirements.

2013 Interim Rule. The Coast Guard published an interim rule on this topic in 2013.
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Acknowledging public comments that brought to light certain errors in the interim rule, the Coast Guard delayed its effective date, originally September 16, 2013, on three occasions, most recently until January 16, 2017.
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We are correcting those errors in this supplemental notice of proposed rulemaking (SNPRM). In addition, given the lapse of time since we published the interim rule, we propose updating the interim rule’s tables as of December 2013. Therefore, we are issuing an SNPRM, rather than proceeding directly from the 2013 interim rule to a final rule, so that, in the interest of ensuring the accuracy of our tables, we can take another round of public comments before issuing a final rule.

Purpose of tables. Coast Guard regulations in 46 CFR subchapter D (tank vessels, parts 30 through 39) and subchapter O (certain bulk dangerous cargoes, parts 150 through 155) contain requirements for ensuring the safe maritime carriage (transportation) of certain bulk liquid cargoes. Tables in subchapters D and O list the cargoes that have been approved for maritime carriage. They also categorize each cargo’s pollution-hazard risk and safe carriage requirements in accordance with the Coast Guard and International Maritime Organization (IMO) assessment and review processes described in the following paragraphs. This information is of value to vessel owners and operators and to shippers of the cargoes involved.

Initial cargo assessment. If a vessel owner or operator plans to ship a newly-developed chemical substance internationally, as a bulk liquid cargo, the new cargo’s chemical properties need to be assessed to ensure safe carriage.
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Our tables contain cargo categorization information that derives from this initial assessment.

Agencies responsible for administering international maritime treaties (for the U.S., this is the Coast Guard) must agree on the new cargo’s assessment before the cargo can be approved for transportation. This is done by a “tripartite agreement” entered into by the administrations of the exporting country, the importing country, and the country in which the ship that will carry the cargo is registered. The tripartite agreement categorizes the cargo’s pollution-hazard risk and flammability/combustibility in accordance with the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code).
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A copy of the tripartite agreement is forwarded to the IMO’s Marine Environment Protection Committee (MEPC) and to the administration of every country that is signatory to the IBC Code.

The Coast Guard is unique among IBC Code-signatory administrations because, in addition to the categorizations contained in the tripartite agreement, it also assigns each cargo to a “compatibility group.” This grouping guides IBC signatories and shippers in determining which cargoes, based on chemical analyses and test data submitted by manufacturers, would be chemically incompatible with other cargoes and therefore cannot safely be shipped with those other cargoes in adjacent tanks, without special precautions.
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Our tables also reflect these compatibility groupings.

IMO assessment. Upon receipt of a tripartite agreement, the MEPC conducts its own multi-year review and assessment of the information contained in the tripartite agreement, and following that review, either validates or modifies the agreement’s information. Our tables also reflect any modifications resulting from this IMO assessment.

Each December, the MEPC releases a circular listing each new cargo for which it has completed its review of the cargo’s tripartite agreement. The circular lists the countries that have approved international maritime transportation of each new cargo, and provides information about the cargo’s pollution-hazard risk and flammability/combustibility. Thus, if a tripartite agreement has approved a cargo for international bulk maritime transportation and the MEPC validates or modifies that information, eventually it will be listed in the MEPC circular.

Periodically, the IBC Code is revised, and cargoes listed in MEPC annual circulars since the last edition of the IBC Code are incorporated. The IBC Code was last comprehensively revised in 2007, at which time the previous pollution categorization scheme (categories A, B, C, and D, which indicate a cargo’s relative pollution-hazard risk) were replaced by categories X, Y, Z, and OS (for “other cargoes,” which at present are considered to pose no risk).
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Our tables are intended to reflect the latest IBC Code revision, but until this rulemaking, they were not updated to incorporate the changes made by the 2007 IBC Code revision.

IMO actions reflected in this rulemaking. In March 2012, the IMO published an Annex to the 2007 IBC Code, listing additional cargoes with their pollution categorizations.

Until we published our 2013 interim rule, the tables in subchapter D and subchapter O had gone unamended for several years, and still contained the pre-2007 pollution categorizations. The interim rule updated the following tables as of the December 2012 MEPC circular:

• “Table 30.25-1” in subchapter D;
• “Table I to Part 150” in subchapter O;
• “Table II to Part 150” in subchapter O; and
• “Table 2 to Part 153” in subchapter O.

This supplemental notice of proposed rulemaking (SNPRM) proposes updating these tables as of the December 2013 circular. All four tables include cargoes that are listed either in MEPC circulars, or in tripartite agreements to which the U.S. is a party. (Information from other tripartite agreements is excluded pending MEPC review.)

Table contents. Table 30.25-1 lists flammable or combustible cargoes that, when transported in bulk, must be certificated under subchapter D regulations.

The two tables in part 150 contain the Coast Guard chemical compatibility categorization for each cargo. Table I lists all cargoes alphabetically and provides a category group for each. Table II lists cargoes by group.

Table 2 to Part 153 lists cargoes that, when carried in bulk on non-oceangoing barges, are not subject to subchapter D or O regulations, but that must comply with subchapter O if they are carried on oceangoing ships.
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Comments on 2013 interim rule and resulting changes. Our interim rule prompted comments from two individuals and four industry representatives, one of whom made multiple submissions. The two individuals commented on the safety of food containing genetically modified organisms. That is not an issue raised by our rulemaking and therefore is beyond its scope.

Three commenters asked why we had not discussed draft table updates with the Chemical Transportation Advisory Committee (CTAC), a group that advises the Coast Guard on chemical transportation matters, and suggested that consultation with CTAC could be helpful, along with more time for industry to review the interim rule before it took effect. CTAC operates pursuant to the Federal Advisory Committee Act, which requires advisory committees to operate under a valid charter.
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From 2009 until 2013, the period during which we developed the interim rule, CTAC lacked such a charter and therefore was not operational. Since its reestablishment in 2013, we have kept CTAC apprised as to this rulemaking’s status, but at no time has CTAC expressed the desire to make formal recommendations to the Coast Guard as to the rulemaking’s direction. We are open to future CTAC recommendations, and individual CTAC members are welcome to comment on this SNPRM, as they are on any Coast Guard rulemaking. As to additional industry time for review, we believe the continuing delay in the interim rule’s effective date has provided ample additional review time.

Three commenters said that, in Table I to Part 150, we mistakenly listed several cargoes in compatibility group 4, when in the past they have been listed in group 34 and not group 4. We agree this was a mistake and this SNPRM shows the cargoes in group 34.

One commenter asked if we consider that all cargoes shown in Table 30.25-1 or Table 2 to Part 153 as “n.o.s.” (“not otherwise specified”) should be assigned in Table I to Part 150 in group 0. We do not. Group 0 is the default assignment for a cargo that we have either determined cannot be shipped safely with any other cargo, or for a cargo for which we are unable to make any other assignment because we lack sufficient chemical analysis and test data on which to make that assignment. These criteria do not necessarily apply to an “n.o.s.” cargo, and therefore we assign many “n.o.s.” cargoes to compatibility groups other than group 0.

One commenter said that sodium methylate 21-30%, instead of being listed in compatibility group 20, should be listed in group 0 due to its highly reactive nature, and that diglycidyl ether of bisphenol A and F should be listed in compatibility group 18 rather than in group 41. We agree that the interim rule incorrectly listed these cargoes and this SNPRM shows sodium methylate 21-30% in group 0 and diglycidyl ether of bisphenol A and F in group 18.

One commenter addressed the interim rule’s amendment to “Appendix I to Part 150—Exceptions to the Chart.” The “chart” referred to is Figure 1 to Part 150, a matrix showing how cargo compatibility can be determined. Appendix I lists binary combinations of substances that are treated as exceptions to Figure 1 because they have been tested and found not to be dangerously reactive. One commenter said that our revision of Appendix I failed to list between 10 and 15 previously approved exceptions. We agree and this SNPRM restores those exceptions to Appendix I.

One commenter said we should have expanded the interim rule’s discussion of tripartite agreements, and we have done so accordingly in the “Background” section of this SNPRM. In addition to the changes we have made in response to comments, we are also restoring liquefied flammable gas listings in subchapter D’s Table 30.25-1. We removed those listings in the interim rule, in anticipation of a policy change that would have allowed them to fall exclusively under subchapter O. That policy change has not occurred and we have restored the listings in this SNPRM.

It is our intention, for future years, to keep the tables updated annually.This SNPRM proposes the addition of new entries that would bring them up to date as of the December 2013 MEPC Circular.

We specifically request public comment on whether or not this SNPRM’s information is correct, and in particular whether or not we have correctly and fully responded to comments on the interim rule and brought our information up to date as of December 2013.

A. Regulatory Planning and Review

Executive Orders (E.O.s) 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has not been designated a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, the proposed rule has not been reviewed by the Office of Management and Budget. A draft regulatory assessment is included herein.

Affected Population

This proposed rule updates tables that list the names, pollution risk categorizations, and safe carriage requirements of liquid chemical cargoes that have already been categorized and approved for maritime transportation in bulk, either permanently or on a provisional basis. This proposed rule makes no new decisions about whether any specific chemical cargo should be approved for bulk maritime transportation, about how any specific cargo should be categorized, or about carriage requirements that should apply to any specific cargo. It simply provides updated information about cargoes that are currently approved for maritime transportation in bulk, and the cargo’s pollution categorization and minimum transportation safety requirements. This proposed rule indirectly applies to the carriage of the subject cargoes from the following tank vessel populations as described in 46 CFR 30.01-5, 150.115 (with exceptions described in 46 U.S.C. 3702), 153.1, and 154.5 as described therein. All U.S. tank vessels are included. Foreign tank vessels are, in general, exempt from this regulation when on innocent passage through U.S. waters, except for liquefied gas cargo/cargo residue or vapor carriers. Also included are self-propelled bulk cargo carrying oceangoing/non-oceangoing U.S.-flag and oceangoing foreign-flag vessels when in U.S. waters.

Costs

This proposed rule updates tables that list the names, pollution risk categorizations, and safe carriage requirements of liquid chemical cargoes that have already been categorized and approved by the United States and the IMO for maritime transportation in bulk, either permanently or on a provisional basis. Since this proposed rule simply updates tables and a table preface to reflect decisions already made under international law about which liquid chemical cargoes are approved for bulk maritime transportation, and about how those cargoes should be categorized with respect to their pollution potential, it does not change established shipping requirements and there are no private sector costs expected from this supplemental notice of proposed rule. The only party that will incur any cost will be the Coast Guard. This cost is for 40 hours total of updating work on approximately 50 chemicals per year, for an approximate annual cost of $3,200. The cost is based on 40 hours times the loaded hourly cost to the Coast Guard (wages and employee benefits) of employing a GS-13 or equivalent ($80). The source for this is Commandant Instruction 7310.1P (http://www.uscg.mil/directives/ci/7000-7999/CI_7310_1P.pdf).

In addition, the proposals would correct errors and omissions in the interim rule and bring the tables current through December 2013. This proposed rule incorporates Coast Guard compatibility categorizations and chemical cargoes and categorizations listed by the IMO through its December 2013 MEPC Circular.

Benefits

The primary benefit of this proposed rule is to conform regulatory language to practices currently allowed by the Coast Guard through either individual letters of approval or the IBC Code as discussed above, which we expect will result in the benefit of improved service to the public through improved clarity and transparency.

B. Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Since this proposed rule does not impose any additional direct costs, it does not impose any additional direct costs on small entities as defined by the RFA. Therefore, the Coast Guard certifies that under 5 U.S.C. 605(b), the proposed rule will not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

C. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Patrick Keffler at Patrick.A.Keffler@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

D. Collection of Information

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). This proposed rule simply updates and revises tables that list cargoes that have been approved and categorized for bulk maritime transportation, which does not involve information collection.

E. Federalism

A rule has implications for federalism under E.O. 13132 (“Federalism”) if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that E.O. and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in the E.O. Our analysis follows.

It is well-settled that States may not regulate in categories reserved for regulation by the Coast Guard, including categories for inspected vessels. It is also well-settled, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel’s obligations, are within fields foreclosed from regulation by the States (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89 (2000). This proposed rule amends existing regulations for inspected vessels carrying certain bulk dangerous cargoes, which, under the principles discussed in Locke, fall within the categories enumerated in 46 U.S.C. 3306 and 3703, which are themselves within fields in which the states are foreclosed from regulating. Therefore, because the States may not regulate within these categories, this rule is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel’s obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this proposed rule has implications for federalism under Executive Order 13132, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

F. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

G. Taking of Private Property

This proposed rule will not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).

H. Civil Justice Reform

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 (“Civil Justice Reform”) to minimize litigation, eliminate ambiguity, and reduce burden.

I. Protection of Children

We have analyzed this proposed rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This proposed 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 proposed rule does not have tribal implications under E.O. 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 proposed rule under E.O. 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 E.O. because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

L. Technical Standards

The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

M. Environment

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Comments” section of this preamble. This proposed rule involves administrative updates of existing chemical transport regulations and updates provisions relating to the chemical properties of liquid chemical cargoes approved for maritime transportation in bulk. The update incorporates changes in how approved cargoes are categorized by their chemical properties. This proposed rule promotes the Coast Guard’s maritime safety and stewardship missions. It is therefore included in the Coast Guard’s Commandant Instruction (COMDTINST) M16475.1D, Figure 2-1, which includes categorical exclusions (CEs) under categories (34)(a), “regulations which are editorial or procedural, such as those updating addresses or establishing application procedures,” and 34 (d), “regulations concerning manning, documentation, admeasurement, inspection, and equipping of vessels,” as well as in the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (see 67 FR 48243, July 23, 2002) under paragraph 6 (a), “regulations concerning vessel operation safety standards . . . equipment approval, and/or equipment carriage requirements . . . and visual distress signals.” We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

46 CFR Part 30

46 CFR Part 150

46 CFR Part 153

For the reasons set out in the preamble, the Coast Guard proposes to amend 46 CFR parts 30, 150, and 153, as amended by the interim rule published on August 16, 2013 (78 FR 50148), as follows: