USCG - Tank Level Pressure Monitoring regulations deemed discretionary – a victory for practice over theory.

The United States Coast Guard Authorization Act for the Fiscal Year 2005 was passed by both the House of Representatives and the Senate days before a long summer recess. For those interested, a copy of the Act (99 pages) can be accessed at Coast Guard and Maritime Transportation Act of 2004.

For INTERTANKO, the most important part of this Act is the language that makes the TLPM (Tank Level Pressure Monitoring) regulation for tankers discretionary.

The TLPM regulations have a very long history and it might be interesting for the record to summarise it herewith. Section 4110 of the Oil Pollution Act of 1990 (OPA 90) required the USCG to establish minimum standards for tank level or pressure monitoring (TLPM) devices, and requirements concerning their use, by August 1991. This rulemaking began with an advance the Notice of Proposed Rulemaking (NPRM) published in 1991. The USCG then commissioned a technical feasibility study, released in 1993, which concluded that TLPM devices then on the market were not sufficiently sensitive to detect a change in cargo tank level before a significant discharge of oil had occurred. INTERTANKO agreed, expressing serious concerns about the accuracy of the devices as well as the technical difficulties associated with their use.

Following a public hearing and the issuance of another NPRM in 1995, the USCG issued a Temporary Rule in April 1997 that established stringent standards for TLPM devices. The USCG acknowledged that devices capable of meeting the standard might not currently exist and did not establish requirements for their installation on vessels. When the temporary standards expired in 1999, the USCG did not establish permanent ones. The agency reasoned that even if devices meeting the standards were subsequently developed, it would not be economically feasible to require such devices on tank vessels whose lifespan was limited by OPA 90.

At the same time in 1999, two environmental organisations filed a lawsuit seeking to compel the USCG to promulgate new rules. In December 2000, the US Court of Appeals for the District of Columbia Circuit ruled that the USCG 's failure to establish standards for leak detection devices and requirements concerning their use was unacceptable given Congress' "clear statutory mandate." The Court ordered the USCG to move promptly to establish such regulations and announced its intent to retain jurisdiction over the case until final regulations were issued.

Despite its significant concerns about the accuracy and economic feasibility of tank level or pressure monitoring devices, the USCG issued an NPRM in October 2001 that would require tank vessel owners to install TLPM devices capable of detecting a one percent change in cargo volume while a vessel is underway. The USCG also held a public meeting on the NPRM. In September 2002, the Coast Guard published a Final Rule that would require TLPM devices to be installed on single hull tank vessels by October 2007, as proposed in the NPRM. The USCG acknowledged that such devices do not exist and would have a minimal impact on oil pollution if they could be developed. However, the USCG was interpreting the court’s decision as requiring the agency to establish a TLPM installation and use requirement.

Since the Final Rule was published, INTERTANKO, the American Waterways Operators (AWO), the Chamber of Shipping of America (CSA) and the American Petroleum Institute (API) have formed an industry coalition to work together with the USCG , the Department of Transportation, the Office of Management and Budget and Congress to secure an Administration-supported legislative change that would enable the Coast Guard to rescind the 2002 TLPM Final Rule. In spring 2003, the Administration proposed legislation to Congress to explicitly make the TLPM requirement discretionary. The Administration-drafted language, strongly supported by the industry coalition is included in the FY 2005 Coast Guard Authorization Act. The provision provides clear legal authority for the Coast Guard to rescind the TLPM regulations.

We have given this detailed overview to demonstrate the vast amount of resources that have had to be used by the USCG, the Courts and the Industry for so many years to counter a rulemaking that was impractical and doomed from the beginning.

Contact: Dragos Rauta