[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Rules and Regulations]
[Pages 79961-79964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32018]



[[Page 79961]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 154 and 155

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[Docket No. USCG-2010-0592; EPA-HQ-OPA-2010-0559]
RIN 1625-AB49; 2050-AG63


Temporary Suspension of Certain Oil Spill Response Time 
Requirements To Support Deepwater Horizon Oil Spill of National 
Significance (SONS) Response

AGENCIES: Coast Guard, DHS, and Environmental Protection Agency.

ACTION: Notice of no further regulatory action and alternative 
arrangements.

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SUMMARY: The Coast Guard and the Environmental Protection Agency (EPA) 
announce that we have considered the comments, materials, and evidence 
received in response to the joint emergency temporary interim rule 
issued on June 30, 2010, and do not intend to take further regulatory 
action regarding the rule. As such, the rule will expire as scheduled 
on December 31, 2010. The Coast Guard and EPA also provide notice of 
the alternative arrangements under the National Environmental Policy 
Act used for the joint emergency temporary interim rule.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of dockets USCG-2010-0592 and EPA-HQ-OPA-2010-0559 
and are available online by going to http://www.regulations.gov, 
inserting USCG-2010-0592 or EPA-HQ-OPA-2010-0559 in the ``Keyword'' 
box, and then clicking ``Search.'' They are also available for 
inspection or copying at 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 EPA Docket 
Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20460, Public Reading Room, between 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the EPA Docket Center Public Reading Room is 202-566-1744, 
and the telephone number to make an appointment to view the docket is 
202-566-0276.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail:
    Coast Guard: (Facilities) Mr. David Condino, Ports and Facilities 
Division, Coast Guard, telephone 202-372-1145, e-mail 
<a href="/cdn-cgi/l/email-protection#cb8faabda2afe58ae588a4a5afa2a5a48bbeb8a8ace5a6a2a7"><span class="__cf_email__" data-cfemail="d296b3a4bbb6fc93fc91bdbcb6bbbcbd92a7a1b1b5fcbfbbbe">[email protected]</span></a>; (Vessels) LCDR Ryan Allain, Office of Vessel 
Activities, Coast Guard, telephone 202-372-1226, e-mail 
<a href="/cdn-cgi/l/email-protection#0b59726a65254f254a67676a62654b7e78686c25666267"><span class="__cf_email__" data-cfemail="6d3f140c034329432c01010c04032d181e0e0a43000401">[email protected]</span></a>. If you have questions on viewing the USCG-2010-
0952 docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.
    EPA: Troy Swackhammer, U.S. Environmental Protection Agency, 
telephone 202-564-1966, e-mail <a href="/cdn-cgi/l/email-protection#99eaeef8faf2f1f8f4f4fcebb7f3b4edebf6e0d9fce9f8b7fef6ef"><span class="__cf_email__" data-cfemail="c5b6b2a4a6aeada4a8a8a0b7ebafe8b1b7aabc85a0b5a4eba2aab3">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: On April 20, 2010, the Mobile Offshore 
Drilling Unit (MODU) ``Deepwater Horizon'' exploded and sank, causing 
an unprecedented discharge of crude oil into the Gulf of Mexico, which 
was thereafter declared a ``Spill of National Significance'' (SONS). On 
April 24, 2010, the Commandant of the Coast Guard designated a Federal 
On-Scene Coordinator (FOSC) to coordinate Federal and State responses 
to the oil spill.
    On June 16, 2010, the FOSC for the Deepwater Horizon SONS 
determined, after consulting with appropriate Federal and State 
agencies, that an adequate number of available oil spill response 
resources could not be employed in a timely manner to recover the oil 
released from the Deepwater Horizon SONS. (Memorandum from Rear Admiral 
J.A. Watson, FOSC BP Deepwater Horizon Oil Spill, to National Incident 
Command (June 16, 2010), available in the docket for this rulemaking).
    In response to the FOSC's determination, on June 30, 2010, the 
Coast Guard and EPA issued a joint emergency temporary interim rule 
permitting oil spill removal organizations (OSROs) and facilities and 
vessels with oil spill response resources to relocate those resources 
to the Gulf of Mexico Deepwater Horizon SONSat the FOSC's request. 75 
FR 37712. The rule also confirmed that the FOSC for the Deepwater 
Horizon SONS requested that the Armed Forces relocate response 
resources, in particular those of the Navy, from their current 
locations within the continental United States to the Gulf of Mexico to 
aid in the response to the Deepwater Horizon SONS.
    The Navy did relocate response resources to the Deepwater Horizon 
SONS. While many spare State and privately owned resources had already 
relocated to the Gulf of Mexico before publication of the rule, no 
State or private entity relocated response resources to the SONS under 
the provisions of the rule.
    The Coast Guard and EPA also requested comments on the rule, and 
stated that we would consider those comments and any other materials or 
evidence received from the field on an ongoing basis every thirty days 
to determine if changes to the rule might be necessary. The comment 
period closed on August 16, 2010, with the Coast Guard and EPA 
receiving 27 comments. We discuss those comments below. Neither the 
Coast Guard nor EPA has received comments since the close of the 
comment period. Although the rule will expire as scheduled on December 
31, 2010, Coast Guard and EPA will continue to consider any new or 
additional comments, material or evidence related to the provisions of 
the rule until that date. If we decide to make changes to the rule 
before its expiration, we will publish another joint notice, or other 
appropriate document, in the Federal Register.
    For this emergency rulemaking, and in accordance with Council On 
Environmental Quality (CEQ) Regulations Implementing the Procedural 
Requirements of the National Environmental Policy Act (40 CFR parts 
1500-1508) and the National Environmental Policy Act of 1969 (NEPA) (43 
U.S.C. 4321-4370f), the Coast Guard, with the assistance of EPA, 
consulted with CEQ about alternative arrangements pursuant to 40 CFR 
1506.11. The Coast Guard, with the assistance of EPA, continued to 
consult with CEQ as well as with the National Oceanic and Atmospheric 
Administration (NOAA) and other key authorities in order to determine 
appropriate environmental impact analysis. A discussion of these 
consultations and determinations is below in B. Alternative 
Arrangements under NEPA. As stated above and discussed in greater 
detail below, the rule will expire as scheduled on December 31, 2010, 
without changes.

A. Discussion of Comments

    The Coast Guard and EPA received 8 letters containing 27 comments 
in response to the request for comments on the rule. Commenters 
included individuals; an organization that represents companies that 
own, operate or charter tankers, ships, and other merchant vessels 
engaged in domestic

[[Page 79962]]

and international trade; an organization representing State 
environmental and health agencies; and a trade association representing 
companies involved in all aspects of the oil and natural gas industry. 
We also received comments from the Makah Tribal Council (MTC), and 
joint comments from the Governor of Washington and the Governor of 
Oregon. The Coast Guard and EPA responded directly in writing to MTC 
and the Governors. Those comments and responses, together with all 
other public comments, are available in the docket for this rulemaking. 
Also in the docket is a summary of an in-person communication that 
occurred on July 1, 2010, between Coast Guard personnel and OSRO 
community representatives regarding the rule. The in-person 
communication touched on concerns and questions about the substance of 
the rule, as well as questions relating to implementation of the rule. 
These concerns and questions and Coast Guard responsive comments are 
included in the summary of the communication, and are covered in the 
discussion below.
    Several of the comments expressed support for the Coast Guard and 
EPA efforts to respond to the Deepwater Horizon SONS, and we appreciate 
the statements of support. Several other comments provided opinions 
about the causes and effects of the oil spill. The Coast Guard and EPA 
appreciate these commenters' participation in this rulemaking, however, 
such comments are beyond the scope of this rulemaking and are not 
addressed in this document. The remaining comments addressed the rule 
and are discussed by topic below.
1. Plan Holder Liability
    Commenters were concerned about plan holder liability for damages 
and penalties if a spill occurred in their original location after the 
plan holder already contractually released its spill response providers 
and equipment for use in the response to the Deepwater Horizon SONS. 
Commenters were also concerned about liability under State requirements 
as well as other penalties, such as natural resource damages, under 
other Federal and State law.
    Response: The intent of the rule is to make available more response 
resources for use in responding to the Deepwater Horizon SONS by 
relieving certain Coast Guard and EPA regulatory requirements. Through 
this rule, the Coast Guard and EPA encouraged plan holders to relieve 
their contracted-OSROs of certain responsibilities in order for those 
OSROs to be available to aid in responding to the Deepwater Horizon 
SONS. The Coast Guard and EPA coordinated on the rule because many oil 
spill response plans address both Coast Guard and EPA oil spill 
response requirements. The rule was not meant to address all sources of 
potential plan holder liability, including other Federal requirements 
or State requirements.
2. Oil Spill Response Resources Return Time
    Several comments noted concerns about the return of assets to 
original locations. One comment expressed concern that the rule does 
not contain a timetable for returning assets used in response to the 
Deepwater Horizon SONS. Other comments noted the distances and travel 
time for response assets from the West Coast, especially for larger 
vessels, to deploy to the Gulf in response to the Deepwater Horizon 
SONS and to return to the assets' original locations if needed to 
respond to an oil spill in those locations.
    Response: The rule does not address return times for assets 
relocated in support of the response to the Deepwater Horizon SONS, 
because under the rule such issues, including the relative 
environmental impacts and other risks and impacts of the FOSC 
requesting and accepting offers for specific response resources from 
locations outside the Gulf of Mexico, are coordinated at the local 
level with the cognizant Captains of the Port (COTPs), Regional 
Response Teams, and Area Committees.
    Additionally, in the letter to the Governors of Washington and 
Oregon dated September 3, 2010, (available in the docket) the Coast 
Guard and EPA specifically stated: ``Any decision to request or accept 
[deployment of equipment or personnel that would result in the loss of 
response capability below worst case and maximum most probable 
discharge response time requirements in the Pacific Northwest] will 
consider carefully the distances and travel time from the West Coast to 
the Gulf Coast spill.''
3. Adequate Coverage in Regions Outside the Gulf of Mexico
    Comments addressed concerns about whether the Average Most Probable 
Discharge and Small Discharge standards in the rule provided adequate 
coverage, especially for the West Coast and Pacific Northwest, as well 
as delays in an adequate number of response resources responding to any 
oil spill outside of the Gulf Region. One comment noted that almost all 
new response equipment manufactured/built during the Deepwater Horizon 
SONS will likely be purchased/deployed for response to the Deepwater 
Horizon SONS, further lengthening the time to return other locations to 
full preparedness levels under current response plan standards.
    Response: As discussed above, under the rule, any decisions about 
equipment and personnel deployment are coordinated at the local level 
with the cognizant COTPs, Regional Response Teams, and Area Committees. 
Additionally, the letter to the Governors of Washington and Oregon 
stated that Coast Guard and EPA will continue to work in close 
coordination with state and local governments, affected local 
industries, Regional Response Teams and Area Committees to maintain a 
level of equipment able to best protect all localities.
4. Regional Approach for Moving Response Assets
    Two comments suggested that the Coast Guard and EPA develop a 
regional approach rather than one nationwide rule for moving response 
assets. The comments encouraged developing regional strategies to 
ensure sufficient coverage remains in those regions before moving oil 
spill response assets outside of those regions. Another comment 
specifically requested utilizing Regional Response Teams for such a 
regional approach.
    Response: The Coast Guard and EPA agree that the decision to 
actually move response assets is best made at the local and regional 
level. In order to allow those local and regional decisions to be made, 
however, this nationwide rule is necessary to temporarily suspend 
certain regulatory response time requirements. As stated in the rule, 
the Coast Guard and EPA coordinate and consult with Regional Response 
Teams and Area Committees, which include State representatives, for 
such decisions. Additionally, in a letter to the Governors of 
Washington and Oregon, the Coast Guard and EPA specifically stated: 
``If there were to be a scenario in which more response resources were 
needed in the Gulf, we would work closely with [state and local 
governments and affected local industries] and the Regional Response 
Teams and Area Committees, to ensure that we do not deploy equipment or 
personnel that would result in the loss of response capability below 
worst case and maximum most probable discharge response time 
requirements in the Pacific Northwest.''
5. Plan Holders Included in the Decision To Move Assets
    At least one comment requested that plan holders be included in any 
discussion regarding movement of

[[Page 79963]]

response assets to the Gulf or any future Spill of National 
Significance.
    Response: The rule only addresses relocating assets in response to 
the Deepwater Horizon SONS. The Coast Guard and EPA agree that plan 
holders should be included in discussions regarding movement of 
response assets in response to the Deepwater Horizon SONS. That is why, 
as stated in the rule, any such relocation of assets is done only 
through coordination with the cognizant COTPs and Regional Response 
Teams and Area Committees, which include oil spill response community 
and plan holder representatives.
6. State Consultation
    One comment requested that Coast Guard and EPA formally consult 
with state environmental agencies prior to approving the deployment of 
additional equipment and personnel out of their region that would 
result in the loss of response capability below the federal Maximum 
Most Probable Discharge standards.
    Response: As stated in the rule, States are involved in any 
decisions about equipment and personnel deployment. The Coast Guard and 
EPA stated that we coordinate and consult with Regional Response Teams 
and Area Committees, which include State representatives, for such 
decisions. Additionally, in the letter to the Governors of Washington 
and Oregon, the Coast Guard and EPA stated that we will continue to 
work in close coordination with state and local governments and 
affected local industries.
7. Other Federal Laws and State and Local Laws
    Several comments noted that the rule addresses only Coast Guard and 
EPA requirements, but that plan holders are also covered by other 
Federal regulatory requirements as well as State and local laws. One 
comment suggested revising the rule to address other Federal 
requirements as well as State and local requirements. Another comment 
suggested creating a permanent rule to address all Federal and State 
response standards for use in such emergency situations. This comment 
suggested working with States and Congress for a legislatively 
established emergency procedure for such situations.
    Response: The Coast Guard and EPA coordinated on the rule because 
many oil spill response plans address both Coast Guard and EPA oil 
spill response requirements. The rule was not meant to address all 
Federal requirements or State requirements. In the rule, we 
specifically stated that States are authorized to establish oil spill 
response standards more stringent than Coast Guard and EPA, and Coast 
Guard and EPA coordinate and consult with State representatives, 
regarding implementation of the rule. The rule will expire on December 
31, 2010. The Coast Guard and EPA are considering whether a permanent 
rule addressing this issue is necessary, but would initiate a separate 
rulemaking for any such permanent rule.
8. Tribal Implications
    The MTC disagreed with the finding in the rule that the rule does 
not have tribal implications under EO 13175 because tribal marine 
resources could be significantly jeopardized by an uncontained oil 
spill due to the depletion of government and private oil spill response 
assets in this region.
    Response: In a letter to the MTC dated August 24, 2010, (available 
in the docket), the Coast Guard reaffirmed its determination that the 
rule does not have any tribal implications because the rule does not 
require the movement of any oil spill response resources away from 
current locations. Additionally, the letter noted that the MTC has been 
appointed to the Northwest Area Committee and will be part of any 
decision on whether to relocate oil spill response resources away from 
that Committee's area. EPA has also reaffirmed, through a letter to the 
MTC dated October 25, 2010, its determination that the rule does not 
have any tribal implications because the rule does not require the 
movement of any oil spill response resources away from current 
locations.
9. Plan Holder Input Into the Rule
    One commenter felt that plan holders did not have sufficient input 
into the development of the rule.
    Response: The Coast Guard and EPA note that the rule was issued as 
an emergency rulemaking in response to the exigent circumstances 
presented by the Deepwater Horizon SONS. Plan holders were given an 
opportunity to comment on the rule during the comment period. All 
comments, materials and evidence received on the rule are discussed 
above in this section.

B. Alternative Arrangements Under NEPA

    Coast Guard and DHS, with the assistance of EPA, consulted with CEQ 
pursuant to NEPA regulations found in 40 CFR 1506.11 to develop 
alternative NEPA arrangements for implementation of this rule. These 
alternative arrangements, which take the place of an Environmental 
Impact Statement, provide that Coast Guard and DHS will consider the 
potential for significant impacts to the human environment from this 
rule during implementation of the rule. The Alternative Arrangements 
were posted to the Deepwater Horizon Web site (http://www.dhs.gov/xabout/laws/gc_1283521666674.shtm) on July 13, 2010, and remain 
available to interested parties at this Web site. The Alternative 
Arrangements are also available in the docket as indicated under 
ADDRESSES above.
    Under the alternative arrangements, each COTP consults with the 
Area Committee and pertinent Regional Response Teams to determine what 
assets may be made available to address the SONS using the Area 
Contingency Plans (ACP). Each ACP includes an annex containing a Fish 
and Wildlife and Sensitive Environments Plan prepared in consultation 
with the U.S. Fish and Wildlife Service and NOAA and other interested 
natural resource management agencies and parties (including coastal 
zone management agencies). The annex addresses fish and wildlife 
resources and their habitat, and other areas the Area Committee 
recommends be considered sensitive environments. The annex provides the 
information and procedures to immediately and effectively respond to 
discharges that may adversely affect fish and wildlife and their 
habitat and sensitive environments. Determination of the needed 
response resources considers local and regional factors such as 
environmental risks, logistic limitations, and unique local or regional 
circumstances.
    The determination by each COTP regarding available assets in the 
area includes considering the development of equipment relocation and 
backfilling (i.e., cascade plans) which will expand the interlocking 
response back up of the various OSROs, and integrates military 
resources which have previously been kept independent of supporting the 
civilian OSROs. The COTP also considers available information on the 
availability of current response resources, particularly in areas with 
large vessel traffic lanes, heavy vessel traffic, oil refineries, oil 
storage and pipeline facilities, seasonal risks associated with 
weather, and trends associated with weather, currents and tides.


[[Page 79964]]


    Dated: December 2, 2010.
Robert Papp,
Admiral, U.S. Coast Guard, Commandant.
 Lisa P. Jackson,
 Administrator, U.S. Environmental Protection Agency.
[FR Doc. 2010-32018 Filed 12-20-10; 8:45 am]
BILLING CODE 9110-04-P; 6560-50-P


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