45004 Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Parts 154 and 155 

[Docket No. USCG–2001–8661] 

RIN 1625–AA26 [Formerly RIN 2115–AG05] 

Vessel and Facility Response Plans for 

Oil: 2003 Removal Equipment 

Requirements and Alternative 

Technology Revisions 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is updating 

its requirements for oil-spill removal 

equipment associated with vessel 

response plans and marine 

transportation-related facility response 

plans. This update is based on an 

ongoing review of these requirements 

conducted by the Coast Guard pursuant 

to our regulations. These changes will 

add requirements for new response 

technologies and revise methods and 

procedures for responding to oil spills 

upon the navigable waters of the United 

States, adjoining shorelines, and the 

exclusive economic zone. The Coast 

Guard is also revising the compliance 

date for updates of vessel response 

plans (VRPs) required by the Salvage 

and Marine Firefighting final rule. This 

extension of the compliance date will 

ensure that plan holders are not 

required to update their VRPs twice 

within a 12-month period. 

DATES: This final rule is effective 

September 30, 2009. The incorporation 

by reference of certain publications 

listed in the rule is approved by the 

Director of the Federal Register as of 

September 30, 2009. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2001–8661 and are 

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. You may also 

find this docket on the Internet at 

http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions concerning this rule, 

call or e-mail LT Xochitl Castan ̃ eda, 

Office of Vessel Activities, Vessel 

Response Plan Program, (CG–5431) 

telephone 202–372–1225, or 

vrp@uscg.mil. If you have questions on 

viewing the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Abbreviations 

II. Regulatory History 

III. Background and Purpose 

IV. Discussion of Comments and Changes 

A. General Comments 

B. Mechanical Recovery 

C. Dispersants 

D. Aerial Tracking 

V. Incorporation by Reference 

VI. Regulatory Analysis 

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. Abbreviations 

AMPD average most probable discharge 

ANSI American National Standards 

Institute 

API American Petroleum Institute 

ASTM American Society for Testing and 

Materials 

BA Biodegradation Accelerant 

bbls barrels 

BR Bioremediation 

caps Capability Limits 

COTP Captain of the Port 

DMP Dispersant Mission Planner 

DMP2 Dispersant Mission Planner 2 

DPEIS Draft Programmatic Environmental 

Impact Statement 

EDAC effective daily application capacity 

EIS Environmental Impact Statement 

EPA Environmental Protection Agency 

FAA Federal Aviation Administration 

FOSC Federal On-Scene Coordinator 

FPEIS Final Programmatic Environmental 

Impact Statement 

FRFA Final Regulatory Flexibility Analysis 

FRP facility response plan 

FWPCA Federal Water Pollution Control 

Act 

IBR Incorporation by Reference 

IEC International Electrotechnical 

Commission 

IMO International Maritime Organization 

ISB in-situ burning 

MMPD maximum most probable discharge 

MMS Minerals Management Service 

MOU memoranda of understanding 

MTC Makah Tribal Council 

MTR marine transportation-related 

NAICS North American Industry 

Classification System 

NARA National Archives and Records 

Administration 

NCP National Contingency Plan 

NEMA National Electrical Manufacturers 

Association 

NEPA National Environmental Policy Act 

NFPA National Fire Protection Association 

NOAA National Oceanic & Atmospheric 

Administration 

NPRM notice of proposed rulemaking 

NSFCC National Strike Force Coordination 

Center 

NTTA National Technology Transfer and 

Advancement Act 

NVIC Navigation and Vessel and Inspection 

Circular 

OCIMF Oil Companies International Marine 

Forum 

OCONUS outside the continental United 

States 

OPA 90 Oil Pollution Act of 1990 

OSRO Oil Spill Removal Organization 

PEIS Programmatic Environmental Impact 

Statement 

RA regulatory assessment 

RRT regional response team 

SBA Small Business Administration 

UAMA Usual and Accustomed Marine Area 

VRP vessel response plan 

WCD worst case discharge 

II. Regulatory History 

In 1996, the Coast Guard published 

final tank vessel response plan 

regulations (61 FR 1052 (January 12, 

1996)) and final marine transportation 

related (MTR) facilities response plan 

regulations (61 FR 7890 (February 29, 

1996)) pursuant to the Oil Pollution Act 

of 1990 (OPA 90) (Pub. L. 101–380) and 

Executive Order 12777. These 

regulations contain minimum on-water 

oil removal equipment requirements 

that plan holders (vessel and/or facility 

owners and operators) transporting or 

transferring petroleum oil must meet to 

be prepared for an oil spill. Under these 

regulations, the Coast Guard 

periodically reviews existing oil 

removal equipment requirements to 

determine if increases in mechanical 

recovery systems and additional 

requirements for new response 

technologies are practicable. 

On January 27, 1998, the Coast Guard 

published a Request for Comments (63 

FR 3861) regarding our intent to 

conduct a review of oil removal 

equipment response plan requirements. 

In the request, we stated that the 1993 

oil removal equipment requirements 

would remain in effect until the review 

was complete. On June 24, 1998, we 

published a Notice of Meetings (63 FR 

34500) that announced three public 

workshops. The meetings were set up to 

solicit comments on potential changes 

to oil removal equipment requirements 

associated with the response plan 

regulations (33 CFR parts 153, 154 and 

155) for mechanical recovery, 

dispersants, and other spill removal 

technologies. The meetings were held at 

the following places and times: 

• Friday, July 24, 1998, from 9:30 

a.m. to 3 p.m. at the Oakland Airport 


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Hilton, One Hegenberger Road, 

Oakland, California 94621; 

• Wednesday, August 19, 1998, from 

9:30 a.m. to 3 p.m. at the Houston 

Marriott West Loop-by the Galleria, 

1750 West Look South, Houston, Texas 

77027; and 

• Wednesday, September 16, 1998, 

from 9:30 a.m. to 3 p.m. at the U.S. 

Department of Transportation, Nassif 

Building, Room 2230, 400 Seventh 

Street, SW., Washington, DC 20590. 

Based on comments to the Federal 

Register notice and the three 

workshops, the Coast Guard 

commissioned an in-depth assessment 

of advances in oil spill response 

equipment since 1993. We completed 

the assessment, ‘‘Summary Report of 

Public Workshop for Response Plan 

Equipment CAPs,’’ in May 1999 and, 

based on its recommendations, 

published a notice of decision (65 FR 

710, January 6, 2000) that announced a 

25-percent increase in on-water 

mechanical recovery equipment for 

response plans of MTR facilities and 

tank vessels, effective April 6, 2000. 

Furthermore, we started a regulatory 

project to evaluate the potential for 

additional increases in mechanical onwater recovery and new requirements 

for other response technologies, which 

would, if practicable, become effective 

in 2003. 

To ensure that a broad range of 

environmental issues is adequately 

considered in the rulemaking, the Coast 

Guard prepared a Programmatic 

Environmental Impact Statement (PEIS) 

for revising the oil removal equipment 

requirements for tank vessels and MTR 

facilities response plans. On September 

1, 2000, we published a Notice of Intent 

to prepare and circulate a draft PEIS (65 

FR 53335). We requested public input 

on environmental concerns related to 

the alternatives for increasing spill 

removal equipment requirements for an 

oil discharge, and suggested analyses or 

methodologies for inclusion in the PEIS. 

The Coast Guard received 70 

comments in response to the 1998 

Request for Comments and from the 

three public workshops. Those 

comments, as well as the 

recommendation of the Federal 

Government-Oil Spill Response 

Industry Partnership Action Team, were 

placed on the Federal rulemaking 

docket for this rulemaking and 

addressed in the notice of proposed 

rulemaking (NPRM). 

On October 11, 2002, the Coast Guard 

published an NPRM in the Federal 

Register (67 FR 63331) entitled, ‘‘Vessel 

and Facility Response Plans for Oil: 

2003 Removal Equipment Requirements 

and Alternative Technology Revisions.’’ 

On November 19, 2002, we published a 

notice of public meeting and extension 

of the comment period (67 FR 69697). 

The meeting was held on December 18, 

2002, at Coast Guard Headquarters in 

Washington, DC, and the comment 

period closed on April 8, 2003. 

The NPRM described five regulatory 

alternatives, including a ‘‘no action’’ 

alternative, which emphasized either 

mechanical or non-mechanical response 

assets. In addition to addressing 

different modes of oil-spill response, the 

alternatives included differing 

capabilities within each response mode. 

The five regulatory alternatives 

presented in the NPRM and considered 

by the Coast Guard are summarized 

briefly below: 

Alternative 1 ................. No action (2000 response requirements remain effective without modification). 

Alternative 2 ................. Mechanical recovery ... Increase of 25 percent for all operating areas of water (inland, nearshore, offshore, Open 

Ocean, Great Lakes, rivers and canals). 

Dispersants ................. No response requirements. 

Aerial tracking ............. Required. 

Alternative 3 ................. Mechanical recovery ... Increase of 25 percent for all operating areas of water (inland, nearshore, offshore, Open 

Ocean, Great Lakes, rivers and canals). 

Dispersants ................. Option A Effective Daily Application Capability (EDAC) for Tier 1 response time. 

Aerial tracking ............. Required. 

In-situ burning ............. Credit against mechanical recovery. 

Alternative 4 ................. Mechanical recovery ... Increase of 25 percent for certain operating areas of water (inland, Great Lakes, rivers and 

canals). 

Dispersants ................. Option B EDAC for Tier 1 response time. 

Aerial tracking ............. Required. 

In-situ burning ............. Credit against mechanical recovery. 

Alternative 5 ................. Mechanical recovery ... No added response requirements. 

Dispersants ................. Option B EDAC for Tier 1 response time. 

Aerial tracking ............. Required. 

In-situ burning ............. Credit against mechanical recovery. 

We received 116 comments on the 

proposed rule in response to the NPRM, 

which are discussed below in the 

‘‘Discussion of Comments and Changes’’ 

section of this preamble. 

On December 31, 2008, the Coast 

Guard published the Salvage and 

Marine Firefighting final rule (73 FR 

80618). In that final rule, the Coast 

Guard amended the vessel response 

plan salvage and marine firefighting 

requirements for tank vessels carrying 

oil. The revisions clarified the salvage 

and marine firefighting services that 

must be identified in VRPs and set new 

response plan requirements for each of 

the required salvage and marine 

firefighting services. The final rule also 

revised 33 CFR 1520 addressing when 

plan holders were required to comply 

with the new salvage and marine 

firefighting requirements to change the 

compliance date from 6 months to 18 

months after the December 31, 2008, 

publication of the final rule based on 

public comments on the issue. 

III. Background and Purpose 

Under OPA 90 and Executive Order 

12777, the Coast Guard is authorized to 

issue regulations requiring the owners 

and operators of tank vessels and MTR 

facilities to prepare and submit response 

plans. OPA 90 amended the Federal 

Water Pollution Control Act (FWPCA) to 

require the preparation and submission 

of oil spill response plans by the owners 

or operators of certain facilities and 

vessels. It also required these vessels 

and facilities to operate in compliance 

with their submitted response plans. 

Vessel and facility owners or operators 

were told to submit a response plan to 

the Coast Guard for approval to handle, 


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store, or transport oil. In 1996, the Coast 

Guard published final tank vessel 

response plan regulations (61 FR 1052 

(January 12, 1996)) and final MTR 

facility response plan regulations (61 FR 

7890 (February 29, 1996)). These 

regulations defined the minimum onwater oil removal equipment 

requirements that plan holders 

transporting or transferring petroleum 

oil must meet to be prepared for an oil 

spill. Under these regulations, the Coast 

Guard periodically reviews the existing 

oil removal equipment requirements to 

determine if increases in mechanical 

recovery systems and additional 

requirements for new response 

technologies are practicable. The Coast 

Guard is promulgating this final rule in 

keeping with its obligation to 

periodically review and update these 

requirements. 

IV. Discussion of Comments and 

Changes 

During the comment period, we 

received 116 comments. Discussion of 

comments on the NPRM, including 

those from the public meetings, are 

organized into sections concerning 

general comments, mechanical recovery, 

dispersants, and aerial tracking. 

Material on the comparative merits of 

mechanical recovery and dispersants is 

included in the dispersants section. 

A. General Comments 

This section concerns in-situ burning 

(ISB), costs and benefits, environmental 

impacts, editorial changes, compliance 

dates, and other subjects of a general 

nature. 

We received several comments on the 

use of ISB. In the NPRM, burn credits 

were proposed to offset the 

requirements for mechanical recovery, 

rather than requiring specific ISB 

response requirements. As a result of 

further Coast Guard analysis and 

associated public comments received on 

the Draft Programmatic Environmental 

Impact Statement (DPEIS), we decided 

not to include ISB or the associated 

burn credits in the regulatory scheme. 

Because ISB is eliminated in our final 

decision, we are not addressing 

comments that solely concern ISB. 

However, we still evaluated ISB credits 

in the Final PEIS because they remained 

reasonable (but not selected) 

alternatives. 

We removed ISB from this rulemaking 

because allowing a credit for ISB may 

reduce the amount of mechanical 

recovery response equipment available 

in areas where ISB pre-authorizations 

are in place. Removal of the ISB credit 

will prevent the potential for reduction 

in mechanical recovery equipment. 

Removal of the ISB credit is justified 

because on-water ISB is, operationally, 

too limited an option to require the 

capability nationally. There are only 

limited opportunities to employ ISB in 

open waters. Those limitations, 

however, are so severe, and the cost of 

ISB equipment so high, that the Coast 

Guard cannot justify requiring 

stockpiling of ISB equipment in 

addition to required mechanical 

recovery stockpiles. Furthermore, ISB 

has very limited potential for use with 

on-water spills, even in the event of 

catastrophic oil releases from vessels. 

ISB has significant potential value for 

use on land, in marshes, and other 

areas. However, in those situations, the 

oil is usually stabilized in place and 

specialized burn booms addressed in 

these regulations are either not required 

at all, or are not subjected to emergency 

delivery. ISB may also be useful in 

response to a continuous discharge, 

such as an incident involving an oil 

production facility. However, such 

facilities are not covered in this 

rulemaking. ISB may offer some benefit 

for response to oil trapped in ice. But, 

in those areas, icing is typically a 

seasonal situation, such that the loss of 

mechanical recovery capability has not 

been justified. If local area planning 

committees determine that the loss of 

mechanical recovery is justified, then 

they may work with plan holders to 

permit alternative compliance strategies 

that may accommodate some tradeoff 

between mechanical recovery and ISB 

equipment. 

For the reasons set out above, the 

Coast Guard is eliminating the offer of 

credit against mechanical recovery for 

ISB capability. The ISB preauthorizations in place provide 

sufficient incentive to encourage plan 

holders to stockpile ISB equipment if 

such equipment will be useful in 

addressing response situations without 

requiring them in the regulations. 

Since vessel and facility owners or 

operators are not required to contract 

with Oil Spill Removal Organizations 

(OSROs) for ISB resources, we removed 

the ISB tables from the final rule. 

Two commenters believed that the 

benefits of the proposed regulations do 

not justify the costs of implementation. 

Furthermore, the commenters stated 

that future regulations should focus on 

oil spill prevention. 

As technology and science advance, 

regulations must change to facilitate 

those advances. Regulation 

implementation cost was considered in 

the development of these regulations. 

While the number and volume of small 

spills have decreased, these regulations 

are aimed at minimizing catastrophic 

spills. These regulations consider 

advances in technology and scientific 

understanding, and changes in regional 

oil spill response preparedness efforts. 

Additionally, they establish the 

appropriate roles for various response 

technologies, including dispersants, 

ISB, and aerial monitoring. 

Another commenter asked why the 

Coast Guard is implementing increased 

mandatory recovery capabilities when 

current containment requirements and 

equipment have adequately addressed 

the problem. 

This rule does not increase the 

mechanical recovery capabilities 

already required. It requires that 

dispersants complement the existing 

capability. Dispersants may reduce 

environmental damage from an oil spill 

in circumstances where use of 

mechanical recovery systems is not 

practical. For instance, in rough seas, 

mechanical containment and recovery 

systems are of little use while 

dispersants are very effective at 

scattering the oil and reducing shoreline 

impacts. 

Several commenters expressed 

general concern with the costs 

discussed in the assessment of the 

proposed rule. However, some 

commenters did not provide specific 

data or additional details that would 

support their concerns and, as a result, 

we were unable to address their 

comments directly. 

One commenter was concerned with 

the limited use of dispersants and the 

limited availability of application 

platforms for mandatory dispersant use. 

This rule does not make dispersant use 

mandatory. It seeks to ensure the 

availability of dispersant capability 

within limited areas where preauthorizations exist. The establishment 

of pre-authorization areas and the 

decision to use dispersants in any 

incident is governed by EPA in 40 CFR 

300.900 et seq. and are not within the 

scope of this rulemaking. 

One commenter believed this 

rulemaking would have an adverse 

impact on his small business because he 

thought his company could no longer 

act as an independent OSRO. This 

commenter was responding to a change 

to the OSRO classification process 

carried out by the National Strike Force 

Coordination Center (NSFCC). At one 

time, the NSFCC, classified OSROs who 

were capable of providing average most 

probable discharge (AMPD) coverage to 

a plan holder. Under the current 

classification process implemented in 

2002, the NSFCC no longer classifies 

OSROs that only provide AMPD 

response resources and coverage. AMPD 

response resources must be ensured 


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available, as applicable, by the plan 

holder and verified at the Coast Guard 

Captain of the Port (COTP) zone level. 

This commenter was concerned that the 

result would be that he could no longer 

provide AMPD coverage. The comment 

is outside the scope of this rulemaking. 

Furthermore, AMPD coverage for 

mechanical recovery remains 

unchanged by this final rule. 

Several commenters stated that 

requiring ISB and dispersant equipment 

in remote areas would place a large 

financial burden on responsible parties 

in certain areas of Alaska where there 

are few facilities and little or no 

infrastructure for response. Therefore, 

they suggested the requirements be 

modified for Alaskan waters outside of 

Prince William Sound and Cook Inlet. 

One of these commenters requested the 

regulations be modified to account for 

the short periods of the year when 

dispersants can be successfully used in 

areas such as Cook Inlet. 

The Coast Guard agrees that requiring 

dispersant and ISB capability in remote 

areas of Alaska may impose an undue 

burden on plan holders. This concern 

was one of many factors in the decision 

not to require ISB response equipment. 

As dispersant response equipment is 

only required for plan holders operating 

in pre-authorization areas, and because 

Alaska has no pre-authorizations as of 

September 27, 2008, this concern is not 

an immediate issue. 

In Alaska, the Area Planning 

Committee and the Regional Response 

Team have at least two options within 

the parameters of the regulations. They 

may either determine that preauthorization in remote areas is not 

feasible because of the potential 

financial burden, or they may adopt preauthorization but recommend that some, 

or all, plan holders be exempted from 

complying in accordance with the 

provisions of 33 CFR 154.108 for 

facilities or 33 CFR 155.130 for vessels. 

As part of the exemption request, 

alternative procedures, methods, and 

equivalent standards must be evaluated 

and implemented if available. This 

requirement would facilitate the 

decision process but leave the burden of 

providing the capability to the Area 

Committee and Regional Response 

Team. The Coast Guard has addressed 

the standard case in most of the country, 

but has provided sufficient flexibility at 

the local and regional levels to address 

local issues and concerns. 

The Coast Guard strongly agrees with 

the need for the regulations to be 

sufficiently flexible to allow 

consideration of alternatives. There are 

already provisions in 33 CFR 154.1065 

and 33 CFR 155.1065 intended precisely 

for this purpose. Plan holders, 

especially in remote areas of Alaska, 

Hawaii, and Guam, are encouraged to 

work with the Coast Guard and local 

response communities to determine 

suitable alternatives to the regulations 

that might be approved by the Coast 

Guard. 

Three commenters believed the Coast 

Guard should specifically define the 

methods used to determine compliance 

with dispersant (ISB and aerial 

surveillance) capability and availability. 

Another commenter felt procedures 

should be published to classify 

dispersant providers and aerial 

observation personnel. One commenter 

felt that requiring plan holders to list all 

resources would place an unreasonable 

burden on plan holders. In addition, 

several commenters stated that effective 

daily application capacity (EDAC) and 

other tabulated information is 

inaccurate and that recalculations 

should be made using the National 

Oceanic & Atmospheric Administration 

(NOAA) dispersant planner. One 

commenter recommended that an 

industry or government workgroup be 

established to update the NOAA 

Dispersant Mission Planner. 

Effective daily application capacities 

have been revised using the NOAA 

dispersant planning calculator (the 

updated version is now simply called 

the Dispersant Mission Planner 2 

[DMP2]). Therefore, rather than 

including tables approximating 

dispersant delivery response times in 

the regulations, which would be 

cumbersome to update in light of new 

technology, the Coast Guard decided to 

reference the DMP2, which was recently 

updated by a joint government and 

industry workgroup for this purpose. 

Plan holders can download the DMP2 

and other spill tools from the Internet at 

the following URL: http:// 

response.restoration.noaa.gov/spilltools. 

While the Coast Guard will use this 

calculator to assess plan holder 

dispersant plans, plan holders are not 

obligated to use it as a planning tool. 

Adequate dispersant application 

platforms will be evaluated by the 

NSFCC using the DMP2 based on an 

OSRO-submitted list that identifies 

sufficient and appropriately trained 

personnel, specific aircraft, vessels, 

delivery systems, dispersant, and any 

other input parameters specified in the 

calculator. The list should also provide 

the location of each identified item. 

Regarding availability of response 

resources, the NSFCC will use the 

DMP2, as specified in the regulations, to 

determine response times to the scene 

and EDAC. Accordingly, the definition 

of DMP2 in § 155.1020 has been revised 

from the definition proposed in the 

NPRM to clarify that the NSFCC will 

use the DMP2 application for evaluating 

dispersant classification levels. OSROs 

with dispersant capability must be 

identified in a vessel response plan in 

the same manner as is currently 

required of Coast Guard classified 

OSROs [see 33 CFR 155.1035(6)–(10)]. If 

the Coast Guard evaluates an OSRO for 

dispersants and determines their 

capability is equal to, or exceeds, the 

response capability needed by the 

vessel, only the OSRO and its applicable 

classification need to be identified. If 

the OSRO has not been evaluated for 

dispersant capability the appendix must 

contain comprehensive response lists. 

Aircraft air speeds will be limited as 

indicated in the calculator because these 

are planning standards and not response 

standards. Vessel speeds will be limited 

to five knots as indicated in the 

regulations. The NSFCC will use those 

standards to determine time to 

dispersant loading point, if different 

from delivery resource point, and then 

draw a radius from the dispersant stock 

point to determine response coverage 

provided by those resources. For 

dispersant vessels on water, response 

radius will be limited to 35 nautical 

miles from home base or usual station 

for tier 1 responses, 60 miles for tier 2 

responses, and 180 miles for tier 3 

responses. 

The OSRO classification processed by 

the NSFCC will ensure consistency of 

assumptions and terminology used by 

response service providers across the 

country and will also provide feedback 

for the national response resource 

inventory database maintained by the 

NSFCC. The classification is not 

intended to certify capability. 

Certification is the responsibility of the 

vessel and facility response plan holders 

who will rely on these services. 

Vessel and facility response plan 

holders must ensure these dispersant 

service providers meet the response 

requirements in the regulations. The 

vessel response plan certification 

statement required by the regulations is 

the plan holder’s certification that the 

cited items are available to deliver 

dispersants in accordance with 

applicable ASTM International 

standards within the timeframes 

specified in the regulations. 

The NSFCC, in cooperation with 

regional and local area-planning 

committees, will conduct periodic visits 

verifying that dispersant response 

providers’ equipment and personnel are 

available to provide the required 

services. These visits may be 

unannounced. No actual deployment 

will be required as part of these visits, 


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but maintenance records and material 

condition may be examined. 

Furthermore, plan holders must conduct 

deployment exercises of these resources 

at least annually. Finally, industry plan 

holders must include deployment of 

these resources as part of periodic 

participation in government or industryled area exercises when those exercises 

include these resources in the scenario. 

One commenter encouraged the Coast 

Guard to apply this rulemaking to nontank vessels and other facilities and 

entities that might spill oil into the 

environment. Otherwise, the commenter 

maintained, the entire burden for 

services, which may benefit these other 

entities, will fall to a small segment of 

the potential spillers. 

As a result of the Coast Guard and 

Maritime Transportation Act of 2004, 

the Coast Guard is also developing 

proposed response plan regulations for 

non-tank vessels over 400 gross tons. 

These regulations may be added to 33 

CFR 155 as a new subpart. This action 

may result in similar oil spill planning 

standards for tank and non-tank vessels, 

including the requirements for 

dispersant capability and aerial 

observation platforms. 

With respect to other facilities and 

entities, the U.S. Minerals Management 

Service (MMS) has followed this 

rulemaking closely and will determine 

what, if any, changes they will make to 

their requirements for the offshore oil 

exploration and production facilities it 

regulates. The Environmental Protection 

Agency (EPA) and Pipeline and 

Hazardous Materials Safety 

Administration are also monitoring this 

rulemaking for consistency and impact 

on the industry segments these agencies 

regulate. 

Several commenters objected to the 

proposed requirement for plan holders 

to comply with these regulations within 

8 months of publication of the final rule. 

Some were particularly concerned with 

the regulation’s focus on development 

of a nationwide dispersant capability. 

This focus will require acquisition and 

outfitting of multiple aircraft in multiple 

locations, along with dispersant 

stockpile depots and a logistical 

network to ensure compliance. 

Additionally, commenters argued, it 

may also require Federal Aviation 

Administration (FAA) approval of 

individual airframes and other 

implementation obstacles. Finally, 

commenters explained that because of 

the cost of compliance, none of these 

steps can be initiated until the nature 

and details of the final rule become 

clear. 

The Coast Guard agrees and has 

amended § 154.1065(e) and 

§ 155.1070(i) to extend the compliance 

date for facility and vessel owners or 

operators to 18 months from the 

publication of the final rule. 

One commenter suggested 

renumbering Table 154.1050(k) to 

154.1050(j) to conform to the numbering 

convention in the rest of the regulations. 

ISB tables will be removed from the 

regulations because ISB resources will 

no longer be used as an alternative to 

offset a portion of the required 

mechanical recovery equipment/ 

capability. 

Two commenters noted that Table 

154.1045(i) should include a footnote 

indicating that these response time 

frames are based on application in 

daylight hours. For example, in Alaska, 

where days are very short in winter, 

these response time frames should not 

apply to all tier 2 or tier 3 quantities in 

a limited operational period. 

Dispersant application requirements 

assume 12 hours of daylight in each tier 

period as a planning standard, not a 

performance standard. More precisely, 

tier 1 assumes that daylight begins upon 

notification and ends at hour 12. For tier 

2, planners can estimate daylight to 

begin at hour 24 and end at hour 36 and 

for tier 3, daylight begins at hour 48 and 

ends at hour 60. This is a planning 

standard, not a performance standard, 

which presumes that average daylight 

over a 12-month period is 12 hours. The 

12-hour assumption permits practical 

planning for an oil spill; however 

seasonal variance should be taken into 

account during actual response 

operations. As noted previously in this 

discussion of comments section, rather 

than including tables approximating 

dispersant delivery response times in 

the regulations, we have decided to 

reference NOAA’s Dispersant Mission 

Planner 2 (DMP2). The DMP2 is 

available from the Internet at the 

following URL: http:// 

response.restoration.noaa.gov/spilltools. 

Therefore, a footnote to the table is not 

applicable. 

Additionally, paragraphs (j) and (p) of 

Part 155.1050 have been removed. 

Two commenters wanted to know 

whether vessel speed waivers 

conducted under the OSRO guidelines 

will be accepted or, if not, whether the 

plan holder or OSRO will have to go 

through a separate waiver procedure. 

Existing response delivery speed 

waivers will still apply if owners and/ 

or operators can provide transit 

calculations demonstrating greater 

speed of transit than the assumed five 

knots over water or 35 miles per hour 

over land. 

Several commenters supported the 

decision that only plan holders 

operating in areas where dispersant use 

has been pre-authorized are required to 

have dispersant resources available. One 

of these commenters was concerned that 

the regulations would require plan 

holders operating in inland areas to 

comply with the dispersant capability 

requirements. Another commenter 

supported exemptions for inland barges. 

One commenter believed no inland 

waters exist where the commenter’s 

vessels operate that are pre-approved for 

dispersant use. 

The Coast Guard recognizes there are 

no pre-authorizations in inland areas 

(e.g., estuarine or freshwater) at this 

time. It is possible, although not likely, 

that such pre-authorizations may be 

developed over time. Currently, 

however, facilities and vessels operating 

in inland areas, including ports and 

harbors, rivers, and the Great Lakes, will 

not be required to have dispersant 

resources available. If pre-authorization 

is established in any of those waters, 

plan holders operating in the waters 

covered by that pre-authorization will 

be expected to comply within 24 

months of the date of publication of a 

Federal Register notice advising of the 

pre-authorization. The 24-month 

compliance time frame will allow 

owners and operators to stockpile the 

requisite dispersants and supporting 

delivery assests. 

One commenter suggested that the 

final rule define facilities that handle 

petroleum as primary cargo as those 

whose primary business is the frequent 

shipping and/or receiving of oil and 

therefore are facilities where the 

probability of oil releases is significantly 

greater than it is for facilities that 

handle oil infrequently. 

The definition of the term ‘‘facilities’’ 

for the purposes of these regulations 

was already established with the 

promulgation of the facility response 

plan regulations in 1993. See 33 CFR 

154.1020. Additionally, the local Coast 

Guard Captain of the Port can upgrade 

or downgrade the classification of a 

facility based on its operating status. See 

33 CFR 154.1016. The frequency of 

transfers at a particular location is not 

the only factor determining probability 

that the facility will suffer a major spill 

incident. 

Several commenters urged the Coast 

Guard to publish a list of preauthorization areas and expedited 

approval zones for both dispersant use 

and ISB to clarify who is presently 

required to provide this equipment. One 

commenter recommended that the 

regulations clearly state where 

dispersant and ISB use is preauthorized. Another commenter felt that 

governmental agencies do not have the 


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resources or motivation to develop preauthorization agreements. 

Pre-authorization areas are contained 

in individual Area Contingency Plans 

available at http:// 

www.homeport.uscg.mil under Port 

Directory. Additionally, the Coast Guard 

published a list of pre-authorization 

areas at http://www.uscg.mil/vrp/reg/ 

disperse.shtml. 

The Coast Guard Office of Incident 

Management and Preparedness at 

Headquarters (CG–533) maintains this 

list in coordination with Regional 

Response Teams. If new or revised preauthorizations are received, the Coast 

Guard will post the document on the 

Web site and publish a notice in the 

Federal Register. Plan holders within 

newly established pre-authorized areas 

will have 24 months from the date of 

publication of a pre-authorization area 

to achieve compliance. 

One commenter recommended that 

dispersant planning only be required in 

areas actually pre-authorized for 

dispersant use or pre-approved with 

consultation, and not in areas only 

designated for quick approval of 

dispersant use. The Coast Guard agrees. 

To eliminate ambiguity and confusion, 

the rule will apply to pre-approved 

areas only. 

One commenter recognized the value 

of input from qualified OSROs, and 

requested that the Coast Guard solicit 

their expertise. 

The Coast Guard agrees and has 

followed a deliberate public process in 

this regulatory development. Since 

1998, the Coast Guard has engaged in 

frequent dialogue with Federal, State, 

and local government agencies, 

industry, and OSROs. Throughout this 

process, the Coast Guard has 

incorporated many recommendations 

provided by OSROs. 

One commenter requested that the 

regulations not require detailed 

equipment lists, but instead require just 

a ‘‘simple reference’’ to the OSRO 

contracted by the plan holder. 

The Coast Guard agrees. The 

regulations will allow plan holders to 

reference in their plans an OSRO that 

provides dispersants, is classified by the 

Coast Guard, and whose availability has 

been ensured by contract or other 

approved means. 

One commenter agreed with the Coast 

Guard that it is the sole responsibility of 

the potential spiller to pay for all costs 

associated with maintaining large 

incident response capability. 

Several commenters felt it was 

premature to evaluate the proposed 

regulations prior to publication of the 

programmatic environmental impact 

statement (PEIS). One felt the comment 

period should be extended until the 

PEIS was completed. 

The Coast Guard disagrees. The 

comment period for the NPRM was 

open for approximately 6 months [Oct 

2002 to Apr 2003], and the comment 

period for the DPEIS was open for 3 

months [in 2005]. There was ample 

opportunity to comment following 

publication of the NPRM and the notice 

of availability for the DPEIS. 

Specifically, on June 1, 2005, we 

published the DPEIS. Shortly after the 

DPEIS publication we held four public 

hearings in July 2005. Public comments 

received on the DPEIS and the NPRM 

prompted the Coast Guard to alter its 

proposed action. As such, the new 

alternative 5 (without the ISB) was 

evaluated in the final PEIS, and was the 

selected alternative. 

The final PEIS has been completed. It 

describes the reasonable alternatives 

evaluated, the affected environment, 

and the environmental impacts 

associated with the alternatives on the 

resources analyzed. 

Three commenters were concerned 

that requirements for the Gulf of Mexico 

were higher than those for other areas of 

the country due to the large presence of 

oil and gas production facilities in that 

area. Oil and gas production facilities 

are not regulated by the Coast Guard, so 

they should not be used in establishing 

a Coast Guard requirement or to justify 

an increased level of dispersant 

coverage. The commenters also urged 

coordination with the Minerals 

Management Service (MMS), which 

regulates those facilities, to ensure 

consistent regulatory standards between 

agencies. 

The planning volumes in the Gulf of 

Mexico are higher because oil tanker 

traffic there is much higher than it is 

elsewhere in the country. This is partly 

due to the fact that much of the oil 

produced in this region, and most of the 

crude oil refined in the United States, 

travels on ships operating in and out of 

Gulf of Mexico ports. The Coast Guard 

developed this rule in close cooperation 

with MMS. 

One commenter stated that there are 

several plans which utilize 

bioremediation in spill response, 

contrary to what was stated in the 

NPRM preamble. 

The Coast Guard acknowledges that 

various regional and local area planning 

documents around the country 

appropriately use bioremediation in 

response to spills. However, none of 

these plans endorses the immediate use 

of bioremediation in treating large 

volumes of oil on water. Rather, 

bioremediation is generally seen as a 

‘‘polishing tool’’ for use on shoreline 

areas when further removal of 

remaining oil is impracticable or 

environmentally damaging. Unlike onwater mechanical recovery, on-water 

ISB, and chemical dispersion, 

bioremediation is not an initial response 

option and does not need to be applied 

within the first few days of a spill. Days 

or weeks may pass before 

bioremediation use is even considered 

during a response. The Coast Guard 

supports the use of biobased products as 

a part of the response evolution and 

encourages national, regional, and local 

area planners to consider use of 

bioremediation and bioacceleration. 

However, it is not necessary for vessel 

and facility owners to contract in 

advance for this response tool. 

A related comment recommended that 

this rule include a provision to require 

use of dispersants determined to be 

environmentally preferable products in 

accordance with Executive Orders 

13101, 13134, and 13148. 

Executive Order 13101 requires 

consideration of waste prevention in 

reference to our pollution response 

policies. In this instance we have 

complied with Executive Order 13101 

by ensuring that our regulation does not 

contradict 40 CFR Part 300—National 

Oil and Hazardous Substances Pollution 

Contingency Plan. Part 300 describes 

the structure and procedures for 

preparing for and responding to 

discharges of oil and releases of 

hazardous substances, pollutants, and 

contaminants. Recycling is the preferred 

disposal alternative cited in 40 CFR 

300.310. 

Executive Order 13134 encourages the 

development of a comprehensive 

national strategy, including research, 

development, and private sector 

incentives, to stimulate the creation and 

early adoption of technologies needed to 

make biobased products and bioenergy 

cost-competitive in large national and 

international markets. Although we note 

the commenter’s concern with regard to 

these products, the focus of this rule is 

on responding to oil spills with the 

technologies currently available. The 

Coast Guard may consider additional 

technologies as they become available. 

Executive Order 13148 charges 

Federal agencies with ensuring that all 

necessary actions are taken to integrate 

comprehensive environmental 

accountability in the agencies’ day-today decisionmaking and long-term 

planning processes. In this instance, we 

have integrated environmental 

accountability into this rulemaking 

process by complying with the 

mandates of the National Environmental 

Protection Act (please see the final 

Environmental Impact Statement on the 


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docket USCG–2000–7833). Further, in 

response to actual spills, the Coast 

Guard is accountable, as the Federal OnScene Coordinator, for response 

operations within our jurisdiction (40 

CFR 300). This jurisdiction includes 

oversight of disposal operations. 

One commenter asked the Coast 

Guard to revise or clarify the terms 

‘‘inland’’ and ‘‘nearshore’’ in the 

preamble. 

‘‘Inland area’’ and ‘‘nearshore area,’’ 

as used in the preamble, are defined in 

the existing vessel and facility response 

plan regulations at 33 CFR 154.1020 and 

155.1020. 

One commenter requested that the 

Coast Guard amend its ‘‘Guidelines for 

the U.S. Coast Guard Oil Spill Removal 

Organization Classification Program’’ to 

include detailed guidance on how the 

Coast Guard will evaluate, inspect, and 

classify OSROs that provide dispersant 

services. 

Once final regulations have been 

promulgated, the Coast Guard will 

provide adequate guidance to industry 

for classification as a dispersant OSRO. 

One commenter recommended that 

the Coast Guard recognize all applicable 

ASTM standards for dispersants. The 

ASTM represents broad-based industry 

and government review of equipment 

and procedural standards. The 

commenter stated that all of the 

applicable standards should be 

referenced in the regulations. 

The Coast Guard agrees and has 

included a list of all relevant ASTM 

standards to 33 CFR 155.140(b) and 

154.140(b). 

Several commenters suggested that 

the Coast Guard remove the definitions 

‘‘dispersant operations group 

supervisor’’ and ‘‘in-situ burn 

operations group supervisor’’ from the 

regulations. The commenters argued 

these are spill management positions, 

which are appropriately described in 

other Coast Guard guidance, such as the 

Coast Guard Incident Management 

Handbook, and are overly prescriptive 

and unnecessary for the implementation 

of these regulations. 

The Coast Guard agrees and has 

removed the terms from the definitions. 

Plan holders should still ensure that 

these positions are addressed in their 

spill management team structures for 

both plan holder-led and governmentled response operations. 

One commenter suggested the 

definition of ‘‘effective daily application 

capacity (EDAC)’’ be amended to 

include the assumption that the 

application system is used in 

accordance with approved standards 

and within acceptable operating 

parameters. 

The Coast Guard agrees that the EDAC 

for dispersants assumes the application 

system is used in accordance with 

ASTM standards and that operations 

occur within acceptable environmental 

conditions (e.g., sea state, winds, 

visibility) assigned in the National 

Contingency Plan (NCP) (40 CFR 

300.900 et seq.). The regulations 

describe these parameters in detail. 

However, to reinforce the intent of these 

planning standards, the Coast Guard has 

amended the definition of EDAC in 

§§ 154.1020 and 155.1020 to include, 

‘‘* * * when operated in accordance 

with approved standards and within 

acceptable environmental conditions’’ 

as specified in the NCP. 

Another commenter recommended 

increasing the proposed EDACs for 

dispersants. 

The Coast Guard disagrees. Many 

factors were considered when 

establishing the defined EDAC levels in 

these regulations, including cost-benefit 

analysis, availability of delivery 

systems, stockpiling dispersants, 

effective use, and statistics on volumes 

of spills where dispersants could be an 

effective mitigation technique. The 

Coast Guard does not intend to change 

the required minimum EDAC levels. 

One commenter felt that the 

regulations should include a minimum 

threshold volume of persistent oil 

transferred (or transfer capability) to 

trigger the dispersant planning 

requirements for facilities. 

The Coast Guard concurs. The 

applicability requirements for facility 

response plans are found at 33 CFR 

154.1015. These applicability 

requirements specify that a facility 

response plan is required to be 

submitted for approval if a facility is 

capable of transferring oil or hazardous 

materials to a vessel that has a total 

capacity of 250 bbls or more. 

One commenter recommended that 

the applicability of dispersant planning 

regulations be based upon risk 

assessments. Those facilities that can 

demonstrate through quantitative risk 

analysis that they are less likely to have 

spills in pre-authorized areas should be 

exempt from the regulations. 

The Coast Guard disagrees. Risk 

assessment tools have proven their 

utility in providing ‘‘quantitative’’ 

support to decision-making processes 

within industry and government 

agencies. However, the subjective nature 

of quantifying risk would make 

enforcement of these regulations 

difficult, if not impossible, using the 

commenter’s suggested method. The 

applicability of the regulations is based 

upon a risk assessment conducted by 

the Coast Guard. It was determined that 

those facilities and vessels subject to the 

regulations pose enough risk to warrant 

the requirement of this additional 

equipment coverage. 

One commenter felt that an 

assessment that arbitrarily starts with a 

25-percent increase without justification 

appears to bias the work product. 

The Coast Guard assumes the 

commenter refers to the planned 25- 

percent increase in mechanical recovery 

that was rejected by the Coast Guard. 

This topic is discussed in some detail 

under the ‘‘Mechanical Recovery’’ 

section of this preamble, which 

immediately follows this section. 

One commenter recommended that 

the Coast Guard clarify the language 

used in referring to OSROs regarding 

evaluation, approval, certification, and 

classification. 

In some cases, the regulations are 

broad or general to avoid being 

prescriptive. The NSFCC evaluates 

OSRO capabilities based on 

documentation submitted by an OSRO. 

This documentation includes detailed 

equipment specification and personnel 

qualifications. Based on the 

documentation review, the NSFCC 

issues a classification to an OSRO. The 

classification is a general estimate of an 

OSRO’s generic capability and does not 

imply that an OSRO can satisfy any 

individual plan holder’s requirements. 

Current and future guidelines for OSRO 

evaluation may be found at http:// 

www.uscg.mil/hq/nsfweb/nsfcc/ops/ 

ResponseSupport/RRAB/ 

osroclassifiedguidelines.html. NSFCC 

and Coast Guard field personnel visit 

OSRO equipment sites to verify the 

accuracy of documentation submitted. 

One commenter asked if an OSRO 

could provide services to several plan 

holders. Specifically, would an OSRO 

need multiple sets of supplies and 

equipment to cover a minimum number 

of plan holders and have the capability 

to respond to simultaneous worst-case 

discharges? If not, what would the 

OSRO or a plan holder that contracted 

their services need to provide during the 

time the OSRO’s services were being 

used by another plan holder or while 

supplies were being restocked and/or 

equipment decontaminated after a major 

response? 

The availability of services to meet a 

plan holder’s needs is the plan holder’s 

responsibility. In the event of a spill, the 

Coast Guard will expect the plan holder 

to respond in accordance with its plans, 

regardless of other spill events that may 

be occurring at the time of the response. 

Therefore, in its planning process, the 

plan holder should discuss with its 

service providers their ability to handle 

multiple incidents and the number of 


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other plan holders to which the service 

provider is already committed. 

Also, if a plan holder’s capabilities are 

diminished because service-provider 

resources are committed elsewhere for a 

response, that plan holder is obligated 

to notify the Coast Guard Captain of the 

Port (COTP) for the zone in which the 

plan holder operates of: (1) The plan 

holder’s reduced capability, and (2) the 

plan holder’s plans for overcoming the 

shortfall. This will enable the COTP to 

determine whether any operating 

restrictions should be imposed on the 

plan holder until such shortfalls are 

overcome. The Coast Guard recently 

published guidance to the public 

addressing this issue. See Navigation 

and Vessel and Inspection Circular 

(NVIC) 01–07, ‘‘Guidance on Vessel and 

Facility Response Plans in Relation to 

Oil Spill Removal Organization (OSRO) 

Resource Movements During Significant 

Pollution Events.’’ 

The NVIC is available on the Internet 

at: http://www.uscg.mil/hq/g-m/nvic/0- 

07/NVIC%2001-07.pdf. 

B. Mechanical Recovery 

Several commenters claimed that the 

mechanical recovery equipment 

requirement was sufficient in 1993. 

They argued that, since spill volume is 

considerably less today than in 1993, 

increasing the requirement for 

mechanical recovery equipment is 

unjustified. Several of these commenters 

supported the Coast Guard’s decision 

not to increase mechanical recovery 

caps and agreed that raising the caps 

would not cause a significant benefit. 

Other commenters disagreed and 

favored a 25-percent increase in 

mechanical recovery equipment, which 

was supported by a Coast Guard report 

published in 1999. See Response Plan 

Equipment Caps Review, pages 1–3, and 

55, which is available in the docket. 

The Coast Guard has concluded that 

an increase in mechanical recovery 

equipment is unjustified at this time. 

This rule eliminates provisions in 

§§ 154.1045(i) and 155.1050(j) that 

permit plan holders to offset their 

mechanical recovery equipment 

inventory by as much as 25 percent in 

exchange for including dispersants in 

their response plans. This change will 

effectively increase mechanical recovery 

equipment requirements for some plan 

holders. 

The Coast Guard also recognizes that 

oil spill volume decreased significantly 

since the implementation of oil spill 

prevention regulations and innovative 

industry measures. Because spill 

volume is significantly down, 

mechanical removal equipment 

inventory requirements have not 

increased. 

At the same time, mechanical 

recovery equipment effectiveness has, 

historically, been relatively low 

compared to that of dispersants. 

According to a 2001 International 

Petroleum Industry Environmental 

Conservation Association report: 

Estimates of dispersant effectiveness 

should be compared with estimates of the 

effectiveness of physical methods, which are 

more constrained by rough sea conditions 

than dispersant application. When 

appropriate, and under most circumstances, 

dispersants can generally remove a 

significantly greater proportion of oil from 

the water surface than physical methods. 

Dispersants and Their Role in Oil 

Spill Response, p. 10 (2d Ed., November 

2001). 

Although the two recovery modes are 

often preferred in different 

environments, the effectiveness of 

mechanical recovery fails to support a 

conclusion that significantly increased 

inventory would produce 

commensurate benefits. In fact, 

requiring additional mechanical 

equipment above the current 

requirements would not result in an 

appreciable increase in the ability to 

remove spilled oil from the water. 

Investment in dispersants, though, is 

expected to lead to significantly 

improved response capability. 

Additionally, in 2000, the Coast 

Guard convened a panel of 11 oil spill 

response experts who came from the 

response industry, the Coast Guard, and 

academia. That panel concluded that 

‘‘there was no justification for 

increasing mechanical recovery mode 

amounts * * *.’’ See Regulatory 

Assessment for Changes to Vessel and 

Facility Response Plans: 2003 Response 

Requirements for Mechanical Recovery, 

Dispersants, In Situ Burning, and Aerial 

Tracking, Appendix A, pages 28, 29, 34 

and 35 (February 2002), which is 

available on the docket. That judgment 

was validated by field experience when, 

immediately after Hurricanes Katrina 

and Rita in 2005, ten major and medium 

oil spills were cleaned up using 

mechanical recovery. Despite this huge 

spike in demand for mechanical 

equipment, only one plan holder 

requested a waiver for mechanical 

equipment capability reduced below 

minimum requirements. 

For these reasons, the Coast Guard 

agrees that an increase in mechanical 

recovery equipment is unjustified. The 

current total requirement for oil spill 

response assets, which includes a 25- 

percent increase in 2000 (see earlier 

‘‘Regulatory History’’ section), continues 

to be adequate. 

While another 25-percent increase is 

not supported at this time, the Coast 

Guard recognizes that the amount of 

mechanical recovery equipment is still 

inadequate to address fully the worstcase threat, or cases where 

environmental conditions render 

mechanical recovery ineffective or 

impracticable. For this reason, the Coast 

Guard will continue to evaluate the 

environmental benefits, cost efficiency, 

and practicality of increasing 

mechanical recovery capability 

requirements. This continuing 

evaluation is part of the Coast Guard’s 

long-term commitment to achieving and 

maintaining an optimum mix of oil spill 

response capability across the full 

spectrum of response modes. 

Accordingly, 33 CFR 154.1045(o) and 

§ 155.1050(q) were added to reflect this 

future assessment. 

Two commenters believed that the 

existing Coast Guard regulations stated 

that mechanical recovery equipment 

requirements would be increased by 25 

percent in 2003. One commenter 

recommended an increase in capability 

limits (caps) for mechanical recovery 

equipment on the Great Lakes and 

inland water areas if other areas gained 

the benefit of additional equipment. 

Another commenter noted that an 

increase was never scheduled for 2003. 

Previous regulations at 33 CFR 

154.1045(n) and § 155.1050(p) required 

the Coast Guard to establish caps in 

2003, based on a review of mechanical 

recovery, dispersant, ISB, and oil-spill 

tracking technologies. Those regulations 

required a review (Response Plan 

Equipment Caps Review, completed by 

the U.S. Coast Guard in May 1999; see 

65 FR 710 (January 6, 2000)) but did not 

require or propose an increase for any 

of those technologies. 

C. Dispersants 

This section addresses comments on 

dispersants, including their use in 

remote areas, classification, delivery 

platforms, ratios, environmental 

impacts, response times, peer review, 

compliance, and training. 

Several commenters agreed that 

requiring dispersant availability is 

acceptable, though they pointed out that 

the most likely and desirable method of 

response in nearshore waters is 

mechanical recovery. 

The Coast Guard agrees that the most 

desirable and likely method of response 

in nearshore waters is, and will remain, 

mechanical recovery. However, weather 

conditions or spill size may create 

conditions unsuitable for mechanical 

recovery. Therefore, the availability of 

other technologies to plan holders, 

especially dispersant technology, is 


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appropriate. It is also important to 

emphasize that these regulations intend 

only to make dispersant equipment 

available. Regulations regarding actual 

use in any situation are contained in the 

National Contingency Plan (NCP). 

Several commenters supported our 

decision not to allow offsets (reductions 

in the quantity of mechanical recovery 

equipment required) for plan holders 

maintaining dispersant capability. 

One commenter supported the 

development and use of new 

technologies for oil spill response in 

Prince William Sound, but believed 

mechanical recovery remains the bestsuited recovery platform. 

The Coast Guard agrees that under 

certain conditions, spills in any 

environment, including Prince William 

Sound, are amenable to mechanical 

recovery. However, under other 

conditions, in seas of greater than 2 to 

3 feet and winds greater than 16 knots, 

even the best mechanical recovery 

systems are likely to be ineffective. 

Under such conditions, dispersants 

provide a practicable option which 

allows responders to mitigate the 

negative effects of spilled oil before it 

moves into sensitive nearshore and 

onshore habitats. However, if a 

particular area committee or regional 

response team is not satisfied that there 

is sufficient credible scientific data to 

assess environmental tradeoffs between 

dispersant use, shoreline cleanup, and 

mechanical recovery, then the 

committee or team is fully empowered 

not to allow the use of a dispersantresponse option, as authorized under 40 

CFR 300, subpart J. 

Two commenters stated that the 

regulations require them to maintain 

equipment they may never use. 

To avoid unnecessary stockpiling of 

dispersant equipment, the Coast Guard 

requires equipment only in areas where 

it has been predetermined that 

dispersants would be a viable oil spill 

mitigation technique and preauthorizations have been established. 

Dispersant resources will not be located 

where their use was never considered or 

deemed appropriate. If and when new 

areas gain pre-authorization, plan 

holders operating in waters covered by 

that pre-authorization will be expected 

to comply within 24 months of the date 

of publication of a Federal Register 

notice advising of the pre-authorization. 

The pre-authorization agreements 

indicate that dispersant use may be 

appropriate and will be approved for 

use in a spill incident meeting certain 

predetermined criteria that may occur in 

the covered area. The regulations will 

ensure that the dispersant equipment 

and materials are available, and that the 

cost of maintaining those resources is 

shared equitably among all potential 

private sector users. 

Three commenters objected to the 

statement that plan holders should use 

private-sector aircraft and not count on 

Coast Guard or other government 

aircraft to apply dispersants. The 

commenters argued that this would 

destroy industry incentive to build a 

strong dispersant capability. Both 

Alaska and Hawaii are remote areas that 

have relied on memoranda of 

understanding (MOU) between industry 

and the Coast Guard to provide Coast 

Guard C–130 aircraft to serve as 

dispersant platforms. The commenters 

felt the proposed rule threatens these 

MOU and formally requested that 

Alaska and Hawaii be exempted from 

the regulations because the proposed 

rule does not take into account the 

limited availability of aircraft in these 

and other remote locations. 

The Coast Guard agrees that provision 

of response resources is the 

responsibility of members of the 

regulated industry who are potential 

spillers. In fact, these regulations are 

based on the Coast Guard’s 

determination that it is economically 

and technically feasible for the 

regulated industry to contract with the 

response industry to establish and 

maintain these resources at the levels 

specified in the regulations. For the 

Coast Guard or any other government 

agency to offer these resources in place 

of the response industry may place the 

government in competition with 

industry and is contradictory to 33 

U.S.C. 1321. Even in remote areas like 

Hawaii, tier 2 and tier 3 resources can 

be provided through contract with 

mainland dispersant providers. 

Nevertheless, the Coast Guard 

acknowledges that U.S. Air Force 

Reserve and Coast Guard aircraft have 

been made available through MOUs 

with local regional response 

communities in Hawaii, Alaska, the 

Caribbean, and Ohio. The Coast Guard 

will re-evaluate MOUs periodically to 

ensure an appropriate balance of private 

resources is maintained. Therefore, 

Alaska and Hawaii are not exempted 

from the regulations. 

The previously mentioned MOUs are 

limited in scope and degrees of 

commitment. They are intended to 

provide support in excess of 

commercially-available resources unless 

government resources are engaged in 

other missions. All agree to provide 

aircraft, if available. In all cases, 

however, the government considers this 

a secondary mission, on a ‘‘not to 

interfere with primary missions’’ basis. 

There is no assurance that aircraft or 

crews will be available at any time. In 

fact, for a period of time beginning in 

2003, the U.S. Air Force Reserve had to 

suspend its participation in its MOU 

with the Coast Guard, due to overseas 

commitments. Likewise, Coast Guard 

aircraft and crews routinely support law 

enforcement, maritime security, and 

search and rescue missions. For these 

reasons, availability of government 

resources is not assured and does not 

satisfy the regulatory standard or intent. 

We received several comments 

relating to Federal aircraft resources. 

One commenter suggested that the Coast 

Guard should allow State and industry 

stakeholders to work with the Coast 

Guard in each area to define a strategy 

tailored to that area’s unique needs, 

including the use of government 

aircraft. This commenter also 

questioned the volume of dispersants 

required for stockpiles and the potential 

‘‘shelf life’’ of stockpiles. Another 

commenter requested that the Coast 

Guard clarify the availability of Federal 

(aircraft) resources in the event of a 

major oil spill. And a different 

commenter urged that guidance 

language be provided and alternative 

compliance strategies (for aircraft 

resources) be included in the 

regulations. This commenter was 

particularly concerned about the ability 

to use Coast Guard C–130 aircraft as 

dispersant platforms in the Hawaiian 

Islands. 

The Federal Water Pollution Control 

Act (FWPCA) and existing regulations 

clearly require the plan holder to rely on 

private sector resources, not government 

resources (e.g., Coast Guard C–130 

aircraft), in meeting its response needs. 

This is partly due to the concern that 

the response is a private sector 

responsibility, the equipment is 

available in the private sector, and, if 

the government were to provide the 

equipment, the government would be 

interfering with the private sector and 

free enterprise. 

All plan holders everywhere are 

affected by the limited availability of 

aircraft, the volume of dispersant to be 

stockpiled, and the ‘‘shelf life’’ of these 

products. This is primarily a tier 1 issue 

where, in Alaska, Hawaii, and other 

select areas of the country, dispersant 

resources will have to be locally 

available. The regulations recognize the 

burden this imposes by limiting the 

amount of dispersant that needs to be 

delivered in the first 12 hours of the 

incident, so that local areas can rely on 

aircraft that are typically more readily 

available in the local area. 

For tier 2 and tier 3, it is feasible for 

commercial aircraft, strategically located 

on the mainland, to reach either Alaska 


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or Hawaii within established time 

frames. The Coast Guard anticipates that 

the plan holders will ultimately 

establish a small number of strategic 

dispersant and aircraft stockpiles on the 

U.S. mainland that will be fully capable 

of satisfying all tier 2 and tier 3 

requirements in nearly all remote areas 

of the U.S., including Alaska and 

Hawaii. Therefore, those areas should 

not be unfairly burdened in achieving 

compliance with the regulations. 

The Coast Guard has drafted these 

regulations to establish a national 

standard for compliance by industry. It 

is not appropriate to exempt 

automatically any area of the U.S. from 

these regulations. At the same time, the 

regulations do include a provision for 

alternate planning criteria and deviation 

from the regulations. This is outlined in 

33 CFR 154.107 for Facilties and 33 CFR 

155.1065(f) for vessels. 

For example, while the regulations 

require facility plan holders to rely on 

commercial, fixed-wing aircraft, local 

COTPs will have the flexibility to accept 

the use of rotary-wing aircraft in facility 

response plans, especially for tier 1 

response, if the plan holder can 

demonstrate an equivalent level of 

delivery capability. Alternatives for 

facilities required to comply with these 

regulations are permitted under 33 CFR 

154.107 and alternatives for vessels are 

permitted under the provisions of 33 

CFR 155.1065(f). 

One commenter stated that OSRO 

dispersant capability should not be 

classified by the NSFCC without input 

from the local COTP. 

The Coast Guard agrees that local 

input into the classification process 

followed by the NSFCC is very 

important. The NSFCC is well aware of 

its responsibility to solicit local input 

into any deviation from the regulatory 

standard in classifying an OSRO. The 

OSRO guidelines, as well as guidance in 

the field, have reiterated that the OSRO 

classification process merely validates 

compliance with a national standard. 

Furthermore, Vessel and Facility plan 

holders are required to certify, to the 

Coast Guard, that response plans meet 

the applicable standards in accordance 

with 33 CFR 154.1060(b) and 33 CFR 

155.1065(b), respectively. 

Several commenters felt that the Coast 

Guard should specifically reevaluate 

restrictions that limit dispersant aircraft 

to 50 percent of the dispersant delivery 

vehicle capability. One commenter 

recommended that the minimum 

percentage of dispersants delivered by 

fixed-winged aircraft be increased from 

50 percent to 90 percent due to the 

limited capability of helicopter and 

vessel delivery systems. Another 

commenter recommended that the 

maximum flexibility for application 

platforms be maintained at the tier 1 

level, and the 50-percent fixed-wing 

dispersant platform requirement be 

applied against the entire 60-hour 

application planning period. One 

commenter suggested the regulations be 

goal-oriented and non-prescriptive of 

aircraft in order to ensure long-term 

applicability of the regulations. Another 

commenter wanted dispersants applied 

from vessels to be considered as 

fulfilling part of the required tier 1 spill 

response. 

The regulatory requirement is not 

intended to restrict reliance on fixedwing aircraft. During an actual response, 

the responsible party or plan holder 

would ensure more application 

resources be brought to bear according 

to the needs of the particular incident. 

Fifty percent is a minimum, not a 

maximum. The regulations are goaloriented in that they prescribe the 

amount of dispersant a plan holder 

should have available to be applied. The 

Coast Guard has recognized the 

effectiveness of fixed-wing aircraft and 

will require that 50 percent of 

dispersant platforms be fixed-wing 

aircraft. If more fixed-wing aircraft are 

necessary to deliver the required 

dispersants, then the plan holder, in 

consultation with the FOSC, will take 

appropriate response action. To avoid 

creating regulations that are too 

prescriptive, the 50-percent requirement 

is intended as a minimum, and ensures 

a viable dispersant capability. 

One commenter disagreed with the 

proposed requirement that 50 percent of 

dispersant capability be delivered by 

fixed-wing aircraft for all tiers. The 

commenter stated that fixed-wing 

aircraft are expensive to maintain on 

standby and that helicopters and vessels 

could be used to meet tier 1 

requirements in certain operating areas. 

The Coast Guard agrees that vessels 

and rotary-wing aircraft can meet tier 1 

response times under certain scenarios 

if stationed in close proximity to spills. 

Accordingly, provisions of alternate 

compliance are allowed in the existing 

regulations. Requiring 50-percent fixedwing dispersant capability was based 

upon several planning factors, including 

the geographic scale of coverage in the 

offshore environment, the time it takes 

to arrive on scene, and the application 

time. As these regulations require 

planning for tier 1 operations up to 50 

miles from shore, and because forward 

vessel speed is calculated at a standard 

speed of five knots, vessels cannot be 

relied upon to meet tier 1 capabilities. 

Furthermore, rotary-wing aircraft are 

restricted in their ability to operate in 

the offshore environment and their 

dispersant-carrying capacities are very 

limited. Therefore, the regulations 

require planning for use of fixed-wing 

aircraft. Because these speeds and 

capacity limitations are assumptions, 

the regulations allow consideration of 

alternatives, such as the use of rotarywing aircraft and vessels, if it can be 

demonstrated that alternate systems 

adequately address special local 

conditions. Refer to 33 CFR 154.107 and 

33 CFR 155.1065(f) for provision to 

allow alternatives. 

One commenter stated that the 

dispersant-aircraft tables should identify 

aircraft by make and model number. 

This was done for the Douglas-made 

aircraft (DC–3, DC–4, DC–6) and the 

Lockheed (C–130), but not for 

helicopters and air tractors. 

The regulations are intended to serve 

as a planning tool, which approximates 

capability instead of serving as an allinclusive guide. The Coast Guard 

recognizes that not only are there 

different air frames produced by a single 

manufacturer, but that individual 

airframe types (e.g., C–130) include 

various models, not all of which are 

suitable for dispersant use. Therefore, it 

would be impossible to list all possible 

types of aircraft that might be used for 

such operations. The Coast Guard will 

rely on the plan holder to certify that 

specific aircraft contracted for 

dispersant application are suitable for 

this service and meet all FAA 

requirements for this service. Rather 

than listing all aircraft, plan holders are 

encouraged to correlate non-listed 

aircraft with the listed aircraft that most 

closely matches the available aircraft’s 

capabilities. 

One commenter believed aircraft 

should be required to apply dispersants 

using a racetrack pattern, which is best 

for spraying dispersants. 

The Coast Guard will rely on the 

Dispersant Mission Planner 2 (DMP2) 

for calculating dispersant-application 

capabilities of all dispersant-delivery 

vehicles. Plan holders are encouraged to 

do likewise. The DMP2 relies on best 

practices, including application patterns 

and turning times, in calculating 

application parameters. 

One commenter stated that safety 

requires all aircraft considered for use 

50 nautical miles from shore and 

beyond to be multi-engined with ample 

fuel capacity. 

The Coast Guard agrees that safety is 

of the greatest importance. The 

regulations require that all aircraft and 

pilots be fully certified by the 

appropriate agencies, including the 

FAA, for the operating environment and 

intended mission of the aircraft. 


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Because aircraft safety requirements are 

outside the scope of this rulemaking, we 

cannot impose the requirements 

suggested by the commenter. 

Two commenters questioned the use 

of a 1:20 dispersant ratio and suggested 

that some dispersants have shown that 

they can be effective when applied at 

ratios of 1:50 or higher, under fairly 

rigorous conditions. One commenter 

recommended that the column showing 

oil treated, in tables 154.1045(i) and 

155.1050(k), be deleted because it is 

unrelated to regulatory criteria for 

gallons of dispersant to be applied. 

The commenter was concerned that 

listing the amount of oil treated may 

cause confusion for the response 

community about the amount of oil that 

might be dispersed in a response. The 

commenter argued the 1:20 dispersant 

application ratio is only a rough 

approximation based on current 

technology. If advances are made in 

dispersant formulations and greater 

evidence of dispersant effectiveness is 

gained, then application ratios may 

climb to 1:30, 1:50, or even higher. The 

column in Tables 154.1045(i) and 

155.1050(k) cannot be deleted without 

impacting dispersant capability because 

the listed quantity of oil treated is for 

planning purposes only, it cannot be 

deleted without impacting dispersant 

capability. The tables list the maximum 

amount of oil to be treated for planning 

purposes only. The tables also identify 

the minimum quantity of dispersants 

needed to be ensured by contract or 

other approved means. The ratios have 

been constructed and listed as such to 

eliminate the need to revise the 

regulations at a later date based upon 

dispersant improvements. 

Another commenter recommended 

using the tables in 154.1045(i) and 

155.1050(k) as the basic standard and 

requiring that appropriate application 

be determined by the plan holder given 

existing environmental conditions. 

The quantity of oil treated as 

identified in table 154.1045(i) and table 

155.1050(k) is the basic standard, or 

minimum amount, for which the plan 

holder must contract. The tables set the 

planning standard to ensure that the 

equipment and materials are in place 

and available to respond to a worst-case 

scenario. The Coast Guard opted to use 

the 1:20 ratio as a planning standard, 

based on the fact that many of the preauthorization agreements around the 

country cite application at a ratio of 

1:20. Moreover, this ratio represents an 

optimal situation for oil spills that are 

less responsive to dispersion, either due 

to the oil type when initially spilled, or 

to the effects of weathering on the oil 

over time. 

With regard to the plan holder’s use 

of dispersants in an actual response 

scenario, this rule does not address the 

environmental conditions for use. 

Dispersant use conditions are set out in 

the Area Contingency Plans and 

Regional Contingency Plans, as 

appropriate, pursuant to 40 CFR 

300.910. 

One commenter noted that structuring 

the rule to specify minimum dispersant 

spraying capacity over time rather than 

for the amount of oil to be dispersed is 

an implied acknowledgement that oil 

slick dispersal will not be in accordance 

with the 1:20 assumption. 

The Coast Guard agrees. The 1:20 

ratio is a planning standard; it is not a 

performance standard. It provides clear 

guidance to the plan holder regarding 

the quantity of dispersant to be 

stockpiled along with the number and 

types of delivery vehicles. In actual 

response, it is anticipated that initial 

applications may be made at ratios of, 

for example, 1:50 or 1:100, depending 

on oil type, but with the overall ratio 

average of 1:20 for the entire spill. 

One commenter supported the 

requirement for aerial observers and 

offered that the observers could serve 

three roles: 

1. Providing information on spill 

location, size and trajectory; 

2. Providing guidance to response 

assets, including recommendations for 

response tactics; and 

3. Evaluating effectiveness of 

dispersant application. 

Another commenter recommended 

that plan holders be required to have the 

equipment and capability necessary to 

implement the special monitoring of 

applied response technologies protocols 

for dispersant monitoring. 

The Coast Guard agrees. By requiring 

training in protocols outlined in ASTM 

F1779–08, including NOAA’s ‘‘Open 

Water Oil Identification Job Aid for 

Aerial Observation’’ and ‘‘Characteristic 

Coastal Habitats,’’ aerial observers 

should be prepared to fulfill all three of 

these roles. See 155.1050(l)(2)(iii). 

One commenter wanted the proposed 

Appendix B Table 7 or Table 8 to reflect 

the requirement for dedicated vessel 

and aircraft crews for the dispersantdelivery platforms. 

The Coast Guard disagrees and feels 

this requirement would be too 

prescriptive and costly. Additionally, 

these tables were removed and replaced 

by the DMP2 planning tool. 

One commenter supported the 

requirement for advanced planning for 

dispersant use, as the window of 

opportunity to use a dispersant once an 

oil spill has occured is limited. 

Another commenter suggested that 

the Coast Guard should raise its spill 

planning volume for dispersant use 

from a requirement to treat 26,190 

barrels of oil to a requirement to treat 

100,000 barrels of oil. 

We believe the commenter is 

referencing the methodology which 

resulted in the tables found in 33 CFR 

154.1045(i) and 155.1050(k). Current 

regulations governing response plans 

limit the total required amount of all 

equipment for which vessel and facility 

owners and operators must contract for 

in advance (mechanical recovery, 

dispersant, etc.) to the predicted loss of 

cargo from two tanks of a vessel rather 

than total loss of all cargo. The Coast 

Guard will not increase required 

dispersant stockpile levels at this time. 

The Coast Guard acknowledges that 

spills may occur that far exceed the 

volumes contemplated in the 

regulations. However, the Coast Guard 

has determined that a limit of 26,190 

barrels is the optimum practical limit 

based on the costs and benefits in 

establishing and maintaining massive 

quantities of response equipment, 

combined with the limits of dispersant 

technologies. This number is based on 

a 40,000-barrel spill reduced by 

evaporation, natural dispersion, and 

other weathering effects. 

The commenter stated that a 

dispersant requirement is unnecessary 

and inappropriate because it has limited 

utility and is subject to the 

government’s decision. The commenter 

believes that the government should not 

fund such limited utility initiatives. 

Response options are designed to 

have specific utility for the 

circumstances they address, but the 

responsibility for maintaining the 

infrastructure to apply those options 

rests with the potential spillers. 

One commenter objected to the 

specification that at least 50 percent of 

the dispersant capability be provided by 

fixed-wing aircraft and suggested that 

plan holders be required to have the 

capability without reference to specific 

delivery systems. 

The Coast Guard has included 

references to specific dispersant 

application platforms by way of the 

Dispersant Mission Planner 2 (DMP2) in 

an effort to aid plan holders in the 

planning process. The platform 

specifications are intended as a tool to 

describe baseline presumptions about 

those capabilities. Plan holders are free 

to develop capabilities within those 

parameters or to suggest reasonable 

alternatives to them if those alternatives 

can be shown to achieve equal coverage. 

The Coast Guard has determined that 

the fixed-wing aircraft is the most 


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efficient and rapidly deployed 

dispersant delivery system. While 

deviations from the 50-percent 

requirement will be considered on a 

case-by-case basis, the Coast Guard 

believes that, given current technology, 

a minimum of 50 percent is achievable. 

We received several comments 

relating to dispersant testing and 

effectiveness. Two commenters believed 

that the Coast Guard’s rationale could be 

strengthened if the final rule included 

data and citations supporting the 

conclusion that dispersant technologies 

have been sufficiently documented and 

would, in certain circumstances, 

produce net environmental benefits 

compared to reliance on mechanical 

methods alone. Another commenter 

recommended extensive testing of 

dispersant and ISB use and, in 

particular, the long-term effects of 

dispersed oil. 

The Coast Guard only partially agrees 

with these commenters, because the 

primary source documents for our 

conclusions are the National Academy 

of Sciences’ ‘‘Using Oil Spill 

Dispersants on the Sea’’ and the 

dispersant use pre-authorization 

agreements adopted around the country 

in accordance with the requirements of 

40 CFR 300.900, subpart J of the 

National Oil and Hazardous Substances 

Pollution Contingency Plan. In 

accordance with those EPA regulations, 

the EPA, Department of the Interior, 

Department of Commerce, and State 

trustee agencies to the area committees 

and regional response teams determine 

whether pre-authorization for 

dispersants or other technologies are 

appropriate, and if so, under what 

conditions. 

This reliance on trustee agencies to 

make such decisions was specifically 

put in place to ensure that any decision 

to use these technologies was taken in 

the best interest of the environment; that 

is, to produce a net environmental 

benefit. We are confident that the 

decisions of Federal and State trustee 

agencies at the regional and local level 

are sound, rational, and in the best 

interest of the environment. The 

purpose of these regulations is to 

support those decisions by making 

available to the regions and areas the 

tools they need for execution. Therefore, 

it is our position that the matters of 

further testing/research concerning 

dispersant and/or ISB use, and the 

effects of dispersed oil, fall outside the 

scope of this rulemaking. 

One commenter recommended that 

the Coast Guard should communicate 

information to the regional response 

teams (RRTs) and other stakeholders 

about conditions unfavorable for 

dispersant use in order to help guard 

against indiscriminant use. The 

conditions can include material 

discharged, weather conditions, 

receiving waters, environmental risk, 

and other factors. 

The Coast Guard maintains constant 

communications with the RRTs and the 

Coast Guard Federal On-Scene 

Coordinators (FOSCs) regarding this and 

related subjects. Since 1998, the Coast 

Guard has sponsored a series of 

facilitated consensus workshops at the 

local level that brought natural resource 

trustees together with local responders 

to examine the ecological risks 

associated with dispersants and other 

oil spill response options. 

In partnership with the other Federal 

agencies of the National Response 

System, the Coast Guard actively 

supports the activities of the science 

and technology Committee of the 

National Response Team, whose 

function is to provide scientific and 

technical data of this nature to RRTs 

and area committees alike. The Coast 

Guard is a major sponsor of the 

International Oil Spill Conference, 

which convenes every three years and 

serves as a forum to disseminate the 

latest information on dispersants and 

other technologies to the response 

community. The CAPS Report (1999) 

points out that dispersants have reduced 

effectiveness with certain types of oil 

and when used in conditions of reduced 

salinity or calm winds. 

Two commenters expressed concern 

that the proposed rule would result in 

requests for dispersant use in areas that 

are inappropriate, such as freshwater. 

Therefore, the commenters suggested 

that certain plan holders, such as those 

likely to discharge oil only into 

freshwater, be exempted. Another 

commenter opposed dispersant and 

aerial tracking requirements for inland 

tank barge operations. 

The Coast Guard agrees. Dispersants 

should not be used in areas that are 

inappropriate, and we support the 

continued reliance on the dispersant use 

decision processes established by the 

EPA in 40 CFR 300, subpart J. The rule 

exempts any plan holder not operating 

in pre-authorized areas from compliance 

with the dispersant equipment 

requirements. However, because the 

EPA rule does not specifically exclude 

freshwater from dispersant use 

consideration, the Coast Guard 

regulations are flexible enough to allow 

imposition of requirements in those 

areas, should RRTs and area committees 

deem such use environmentally 

beneficial. 

One commenter was concerned that 

the Coast Guard’s inclusion of a 

proposed start time for dispersant 

application of 7 hours is overly 

prescriptive and may prevent earlier 

responses. Another commenter felt the 

time frames for aerial dispersant 

applications are too aggressive and 

recommended that dispersants be 

available for application outside the 

continental United States (OCONUS) in 

24 hours, at low volume ports in 12 

hours, and at high volume ports in 6 

hours. 

The dispersant operations start time is 

a planning standard and represents the 

maximum time allowed for planning to 

respond anywhere. It is expected that 

most actual response operations will 

begin in less than 7 hours and not over 

7 hours. The Coast Guard believes that 

there should be no variation in the time 

frame, regardless of the location (e.g., 

OCONUS) or the volume of the port (low 

vs. high). Basing response times upon 

the proximity of the spill location to 

environmentally sensitive areas may be 

more accurate, but the regulations do 

not intend to be so prescriptive. 

One commenter was concerned about 

linking dispersant requirements to 

regional response team (RRT) preapprovals because this would place 

undue pressure on RRTs in inland areas. 

If inland pre-approvals are established 

in the future, the available supply of 

dispersants and aircraft would likely be 

sufficient without further regulatory 

action. 

The Coast Guard disagrees. In fact, 

this rule is necessary to ensure that 

dispersant capabilities are available to 

meet the needs identified in the preauthorization agreements. Without the 

existence of the pre-authorizations, it 

would not be practicable to require 

dispersant capability. On the other 

hand, it is not this rule, but the National 

Contingency Plan (NCP), that puts 

pressure on inland RRTs to make 

decisions regarding these kinds of 

countermeasures. The requirement for 

RRTs to decide whether or not to preauthorize various countermeasures is 

contained in 40 CFR 300.910. While 

there may be sufficient equipment 

available to support dispersant use 

needs in newly pre-authorized areas, 

plan holders in those newly preauthorized areas would not be required 

to ensure the availability of this 

equipment by contract or other 

approved means unless specifically 

required by State or Federal agencies. 

One commenter stated that the use of 

dispersants creates the erroneous 

impression that there is no need to 

prevent a spill in the first place if 

dispersants are available as a response 

option. 


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The Coast Guard disagrees. All spill 

response options need to be considered 

to the extent that they may limit the 

damage caused by the oil itself once a 

spill has occurred. However, the Coast 

Guard continues to emphasize in all its 

programs that prevention is its highest 

priority. The Coast Guard will continue 

to pursue appropriate standards for 

vessel construction, inspection, and 

maintenance programs, while 

emphasizing competence and training 

requirements for vessel crews, vessel 

navigational and operations tools, and 

procedures. 

One commenter suggested adding a 

requirement that tier 2 and tier 3 aerial 

platforms be capable of applying 

dispersants in pre-authorized areas, 

ranging out to 200 nautical miles. 

Requiring dispersant capability 

ranging out to 200 miles is not justified, 

and this conclusion is supported by a 

combination of factors. The low 

percentage of spills occurring more than 

50 nautical miles offshore combined 

with the limited time frame for effective 

use of dispersants means that only a 

small volume of oil spills would benefit 

from this additional requirement. The 

limited benefits would not justify the 

cost to maintain this level of 

preparedness. 

Several commenters felt that firemonitor type dispersant application 

systems should be held to the same high 

level of independent peer review testing 

and documentation as aircraft and boat 

spray boom applications. 

The Coast Guard agrees. The intent of 

the regulations is to apply a similar 

level of review to fire monitors as is 

currently applied to vessel and aircraft 

application systems, both of which are 

subject to ASTM standards. Sections 

154.1045(i)(2)(iii) and 155.1050(k)(2)(iii) 

were amended to clarify that ‘‘firemonitor applicators and adequate 

criteria must be documented by 

presentation of independent, peer 

reviewed scientific evidence (e.g., an 

ASTM standard) * * *.’’ 

Two commenters claimed that the 

2005 National Research Council report 

entitled ‘‘Understanding Oil 

Dispersants: Efficacy and Effects’’ 

supported the conclusions that 

insufficient information exists to 

responsibly pre-approve application of 

dispersants. On the contrary, the study 

states on page 11 that, ‘‘the information 

base used by decision makers dealing 

with spills in areas where the 

consequences of dispersant use are 

fairly straightforward, has been 

adequate (for example, situations where 

rapid dilution has the potential to 

reduce the possible risk to sensitive 

habitat enough to allow the 

establishment of pre-approval zones).’’ 

The study explains further on page 12 

that, ‘‘[i]n deep open-water settings 

(deeper than 10 m or roughly 30 feet) 

where there is rapid dilution of the 

dispersed oil, impacts to water-column 

and benthic resources are likely to be 

low, thus most of the pre-approval 

zones are defined in terms of distance 

offshore and minimum water depths.’’ 

One commenter stated that a 

requirement for a logistics support plan 

should be added to the regulations to 

ensure that the dispersant systems can 

be effectively and timely deployed. 

The regulations need not be so 

prescriptive. The regulations are already 

goal-oriented and require the ability to 

apply dispersants. 

One commenter noted the limited 

capability of vessel dispersant systems 

to meet tier 1 capabilities because of 

their speed of advance of five knots. 

The five knots speed of advance is 

provided for planning purposes only. 

OSROs may request nonstandard 

classification from the NSFCC. If the 

supporting documentation 

accompanying their request is 

acceptable to the NSFCC, the OSRO may 

use a higher vessel speed for their 

classification. 

One commenter supported the use of 

dispersants in appropriate settings in 

the offshore environment. As discussed 

above, the Coast Guard agrees that 

dispersant use in certain conditions is 

appropriate. 

Another commenter felt that training 

in dispersant strategies should be 

required as part of the proposed 

dispersant planning requirements. 

OSROs will need to meet certain 

training proficiencies as required in 

their certification processes. The 

regulations do not seek to be as 

prescriptive as the commenter suggests. 

D. Aerial Tracking 

This part concerns availability, 

capability, response time, technology, 

applicability, and training. 

One commenter felt that requiring 

plan holders to have aerial tracking 

capability is unnecessary because this 

capability is essential to reduce spill 

costs and to improve cleanup efficiency. 

Therefore, plan holders will have aerial 

tracking capability available without 

being required to do so. 

Based on the May 1999 Response Plan 

Equipment CAPs Review and the 

conclusions of an expert panel 

documented in the February 2002 

Regulatory Assessment for the NPRM, 

the Coast Guard is certain that aerial 

tracking capability is necessary and 

appropriate to ensure efficient cleanup 

operations. However, the Coast Guard 

recognizes that unless required by 

regulations to do so, industry will be 

insufficiently motivated to guarantee 

availability of these services, especially 

in remote offshore areas where these 

services are most likely to be needed. 

Additionally, it is in the best interest of 

the plan holder to have trained aerial 

observer capability to reduce 

inefficiency of response resource 

utilization, thus reducing unnecessary 

response costs. 

Several commenters stated that aerial 

tracking requirements are supported but 

should account for refueling periods 

and be limited to daylight hours only. 

They felt that aerial tracking 

requirements were too prescriptive and 

should better reflect the realities of 

different aerial missions. Examples of 

these missions include the need to 

return to base for fuel, download 

pictures, and change crews, and the 

recognition that for mechanical recovery 

operations at least, it is not necessary to 

have aircraft continuously on-scene for 

an entire operational period. 

The Coast Guard agrees. The 

regulations were modified to make it 

clear that plan holders should plan to 

have aerial tracking capabilities 

available to support response operations 

for entire daily operational periods. As 

operations are not routinely conducted 

during darkness, these operational 

periods will be less than 10 hours per 

day when there is less than 10 hours of 

daylight, and longer than 10 hours when 

there is more than 10 hours of daylight. 

The 10-hour operational period is 

offered as a planning target. An 

individual plan holder may choose to 

plan more precisely, based on actual 

length of daylight operational periods. 

Additionally, the regulations do not 

intend to require continuous on-scene 

surveillance; they require sufficient 

surveillance to ensure effective 

employment of response resources. 

Continuous aerial tracking is 

appropriate to track dispersant 

applications. For mechanical recovery 

operations, routine over-flights are 

expected versus continuous 

surveillance. The purpose of the overflight is to track oil trajectories and to 

reorient on-water equipment to the 

largest patches of oil. 

Several commenters objected to the 

need to have aerial tracking resources 

on-scene within 3 hours of an incident. 

This objection is based on the fact that, 

in the early hours of an incident, the 

government typically relies on its own 

aircraft for spill assessment. 

The stated purpose of the aerial 

tracking resources is to ensure that 

response resources are appropriately 

directed to the heaviest concentrations 


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of oil for cleanup. Therefore, it is logical 

to require aerial tracking resources to 

arrive on-scene within the same 

timeframe as the other response 

resources. 

Another commenter stated that the 

prescribed time to establish aerial 

surveillance in the regulations is 

unrealistic. One commenter felt that the 

three-hour response time could not be 

justified based upon cost and 

applicability to marine transportationrelated (MTR) facilities. However, 

another commenter felt the three-hour 

response time was reasonable. Finally, 

one commenter wanted the regulations 

to recognize different missions for spill 

plotting and area delineation. 

The Coast Guard agrees with the 

concerns expressed about rapid 

response times for aerial-tracking 

resources; these response times are 

intended to ensure that aerial-tracking 

resources arrive prior to tier 1, 2, and 3 

resources being in place. The 

requirement is based on time of arrival 

on-scene, not on mobilization time. 

Aerial-tracking resources should be onscene before or at the time that response 

equipment begins operations to help 

optimize initial response activities. No 

aerial-tracking resources are required to 

support average most probable 

discharge (AMPD) or maximum most 

probable discharge (MMPD) planning. 

One commenter stated that the Coast 

Guard gave tracking buoys, global 

positioning systems, and satellite and 

aerial imaging only a cursory review 

and urged the Coast Guard to be more 

open-minded about their potential for 

use. Another commenter stated that the 

regulations should be less prescriptive 

and allow for the use of these 

technologies. 

The Coast Guard reviewed these and 

other technologies from the standpoint 

of practicability. The Coast Guard does 

not think that these technologies have 

sufficiently proven that they will 

significantly enhance the ability to 

recover or otherwise mitigate the effects 

of spilled oil. The Coast Guard does not 

think that the benefits of these 

technologies justify the costs to the 

response community, and therefore, it is 

not practicable to require industry to 

incur the costs of establishing and 

maintaining these capabilities. 

However, the regulations do not 

prohibit their use, and the Coast Guard 

encourages plan holders to explore 

other options to maximize the ability to 

track response operations. 

The Coast Guard continues to monitor 

development of other technologies. If 

these technologies can be demonstrated 

to be effective in supporting nighttime 

operations, with full regard and 

consideration for worker health and 

safety on water at night, then the Coast 

Guard may consider a regulatory change 

at a later date requiring plan holders to 

acquire the systems. This would likely 

be accompanied by a substantial 

increase in mechanical equipment 

requirements because the current 

requirements are based on operations 

being limited to daylight hours only. 

One commenter stated that the aerial 

tracking requirement should not apply 

to vessels and facilities operating on 

rivers and other confined waters where 

the direction of movement of spilled oil 

is well known and easily tracked from 

shore and by responding vessels. 

Several commenters supported aerial 

tracking for open waters, but wanted 

alternatives for inland waters and rivers 

to avoid burdensome costs and to allow 

for more practical spill-tracking 

methods. 

The Coast Guard agrees and has 

clarified that vessels and facilities 

operating on inland rivers will not be 

required to maintain aerial tracking 

capabilities. However, vessels operating 

on the open waters of the Great Lakes 

will be required to maintain these 

capabilities. 

One commenter recommended that 

plan holders should only need to 

reference aerial tracking resources 

approved by the Coast Guard rather than 

submit a detailed list of aerial tracking 

capabilities. The commenter noted that 

all other response resource lists allowed 

this exception. For those plan holders 

who have ensured the availability of 

aerial platforms for dispersant 

application purposes and who intend to 

use these platforms for aerial tracking 

purposes, the Coast Guard agrees and 

has added new sections 

155.1035(i)(10)(iii), 155.1040(j)(10)(iii), 

and 154.1035(b)(3)(vi)(D). If aerial 

platforms for dispersant application are 

not going to be used for aerial tracking 

purposes, then a detailed list of aerial 

tracking capabilites will be required to 

be submitted in accordance with 33 CFR 

154.1045(j) and 33 CFR 155.1050(m). 

The Coast Guard does not intend to 

implement a national classification 

system for the purpose of classifying 

providers of aerial tracking platforms 

and resources. 

One commenter supported increased 

over-flight capability and advances in 

technology such as infrared tracking and 

satellite imaging. 

The Coast Guard agrees, and 

encourages advancements in 

technology. Once these advancing 

technologies are proven to prevent or 

mitigate damage from oil spills in an 

economically feasible fashion, the Coast 

Guard will examine the viability of 

requiring them. 

One commenter felt that aerial 

tracking requirements were never part of 

any public discussion, dialogue, 

consultation, or study group. Therefore, 

the commenter felt that requirements 

are impractical, unrealistic, and 

unachievable. 

The Coast Guard disagrees. The 

public had an opportunity to comment 

on specific requirements for aerial 

tracking of mechanical recovery through 

the NPRM. Further, aerial tracking was 

also contained in the Notice of Intent for 

the EIS, published in September, 2000, 

and in the Draft Programmatic EIS, 

published in April, 2005. The 

requirement for aerial surveillance of 

dispersant and ISB operations has 

consistently been part of discussions 

regarding the use of these tools. In 

addition, the parameters for the aerial 

surveillance requirements for 

mechanical recovery were examined by 

a group of response community experts 

during the development of the 

regulatory assessment. Nevertheless, the 

Coast Guard attempted to address some 

of the commenter’s concerns by 

clarifying aerial tracking requirements 

both in this preamble and in the 

regulations themselves [see 

§§ 154.1045(j) and 155.1050(l)]. 

We received two comments relating to 

training requirements for aerial tracking 

and observation of oil spills. One 

commenter stated that the regulations 

should distinguish between training 

requirements for aerial observers 

assigned to ‘‘spotting for on-water 

recovery operations’’ and those 

‘‘performing overall assessment of the 

spill.’’ Another commenter 

recommended that plan holders be 

permitted to certify plan holder 

personnel as aerial observers instead of 

meeting other specific training. 

The Coast Guard disagrees. Because 

aerial tracking personnel are critical to 

the success of directing mechanical 

recovery resources and dispersant 

delivery, this rule calls for well-defined 

and concise training criteria. The aerial 

observation personnel are primarily 

responsible for monitoring and directing 

on-water clean up operations. This 

responsibility requires knowledge of oil 

characteristics and the capabilities and 

limitations of response resources, as 

well as familiarity with spill trajectories, 

resources at risk, coastal habitat 

identification, etc. 

One commenter stated that a pilot 

cannot act as an observer and that this 

may adversely impact the plan holder’s 

ability to provide aerial surveillance in 

a timely fashion. 


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Usually, the pilot’s primary 

responsibility is to fly the plane and the 

observer’s job is to direct spill assets. 

The Coast Guard believes it will be 

easier and quicker to match a trained 

observer with a trained pilot than to 

find and mobilize a pilot who is also a 

trained observer. The aerial observation 

personnel are primarily responsible for 

monitoring and directing on-water clean 

up operations. 

One commenter noted that under 

adverse weather, aerial surveillance will 

not be possible and the regulations do 

not address this issue. 

The regulations are written for 

planning purposes and cannot address 

every situation that may be encountered 

in an oil spill response. The regulations 

require the availability of, and planning 

for, certain capabilities. 

One commenter felt that the 

requirements for an aerial surveillance 

aircraft can be fulfilled by the dispersant 

application aircraft when it is not 

involved in dispersant application. 

The Coast Guard agrees, as long as the 

aircraft is not required to do both jobs 

at the same time. 

V. Additional Changes 

We are revising the compliance date 

for updates for VRPs required by the 

Salvage and Marine Firefighting final 

rule, which published on December 31, 

2008 (73 FR 80618) found in 33 CFR 

155.4020. This revision will delay 

compliance from June 1, 2010, until 

February 22, 2011. We are making this 

revision to ensure that plan holders are 

not required to update their VRPs twice 

within a 12-month period. Otherwise, a 

plan holder wishing to complete both 

updates at once would need to comply 

with the earlier salvage and marine 

firefighting compliance date, and would 

not receive the full benefit of the 

compliance period provided in this final 

rule. 

VI. Incorporation by Reference 

The Director of the Federal Register 

has approved the material in §§ 154.106 

and 155.140 for incorporation by 

reference under 5 U.S.C. 552 and 1 CFR 

part 51. The new items incorporated by 

reference in this rule are: ASTM F1413– 

07, Standard Guide for Oil Spill 

Dispersant Application Equipment: 

Boom and Nozzle System; ASTM 

F1737–07, Standard Guide for Use of 

Oil Spill Dispersant Application 

Equipment During Spill Response: 

Boom and Nozzle Systems; and ASTM 

F1779–08, Standard Practice for 

Reporting Visual Observations of Oil on 

Water. Additionally, we have updated 

the reference to NFPA 70, National 

Electric Code, to reflect the edition 

currently used by industry. Copies of 

the material are available from the 

sources listed in those sections. 

VI. Regulatory Analysis 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

A. Administrative Procedure Act 

The Coast Guard is issuing the 

revision to 33 CFR 155.4020 without 

prior notice and opportunity for 

comment pursuant to authority under 

section 4(a) of the Administrative 

Procedure Act (APA) (5 U.S.C. 553(b)). 

This provision 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)(B), the 

Coast Guard finds that good cause exists 

for not publishing a notice of proposed 

rulemaking (NPRM) with respect to the 

revision in this rule because doing so 

would be contrary to the public interest. 

Without this change, vessel response 

plan holders would be required to 

update their response plans twice 

within a 12-month time period, which 

would be unduly burdensome. 

Soliciting comment on this revision is 

also unnecessary, as it is unlikely that 

these plan holders would oppose the 

delay in compliance for the salvage and 

marine firefighting provisions within 

their response plans. Without this delay, 

a plan holder wishing to complete both 

updates at once would need to comply 

with the earlier salvage and marine 

firefighting compliance date, and would 

not receive the full benefit of the 

compliance period provided in this final 

rule. Those plan holders wishing to 

comply earlier may still do so. 

B. Regulatory Planning and Review 

This 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. The Office of Management and 

Budget has not reviewed it under that 

Order. A final Regulatory Assessment 

(‘‘Regulatory Analysis’’) is available in 

the docket as indicated under 

ADDRESSES. A summary of the analysis 

follows: 

This rulemaking is not an 

economically significant action under 

Section 3(f)(1) of the Order because the 

rulemaking will not have an annual 

effect on the economy of $100 million 

or more. 

The response resources considered in 

the final rule were: 

Mechanical recovery—increase the 

amount of mechanical recovery 

equipment available for oil spill 

response. There is currently a large 

amount of mechanical recovery 

equipment available for oil spill 

response. 

Dispersants—require a minimum 

amount of dispersant capability for oil 

spill response. Applying dispersant 

requires additional equipment and 

stockpiles of dispersant. Dispersants can 

diffuse large amounts of oil for quicker 

spill recovery but have limiting factors, 

including location and conditions. 

Aerial tracking of the oil spill— 

require aerial tracking capabilities in the 

event of an oil spill. Aerial tracking of 

a spill increases the efficiency of other 

response resources. 

The rule directly regulates vessels 

carrying oil in bulk and marine 

transportation related (MTR) oil 

facilities that are required to have an oil 

response plan under the current vessel 

response plan (VRP) or facility response 

plan (FRP) rules. We estimate that there 

are 795 VRP plan holders and 2,798 FRP 

plan holders. These plan holders 

contract with Oil Spill Removal 

Organizations (OSROs) to ensure that 

response resources required by 

regulations are available to mitigate a 

worst case discharge (WCD) oil spill. As 

a result, we anticipate these plan 

holders will incur the costs associated 

with revised response requirements 

through price increases from OSROs. 

We considered the costs and 

effectiveness of the five regulatory 

alternatives discussed in this preamble 

(see the ‘‘Regulatory History’’ and 

‘‘Background and Purpose’’ sections for 

more information on the regulatory 

alternatives). These alternatives provide 

combinations that emphasize either 

mechanical or non-mechanical response 

assets. We anticipate the increased cost 

to the plan holders from the rulemaking 

will begin when the rule becomes 

effective. For the preferred alternative 

(5), the estimated first-year cost is 

$25.96 million with a recurring annual 

cost of $8.40 million (non-discounted 

estimates). 

Since the equipment considered has 

an estimated 15-year replacement 

interval, we estimated cost for 15 years 

(2009–2023). The 15-year cost of the 

preferred alternative is $92.92 million at 

a 7-percent discount rate, and $117.33 

million at a 3-percent discount rate. The 

preferred alternative is the least 

expensive of the five alternatives. Table 

1 presents the costs, benefits, and cost 

effectiveness (i.e., costs divided by 

benefits) for each regulatory alternative 


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considered over the 15-year period of 

analysis. 

TABLE 1—TOTAL COST, BENEFIT, AND COST EFFECTIVENESS BY REGULATORY ALTERNATIVE (2009–2023)* 

Alternative 

7 percent 3 percent 

Cost ($M) Benefit 

(bbls) 

Cost effectiveness Cost ($M) Benefit 

(bbls) 

Cost effectiveness 

1 ....................................................................................... $0 0 NA $0 0 NA 

2 ....................................................................................... 84.56 11,492 $7,358 102.13 15,590 $6,551 

3 ....................................................................................... 129.53 62,348 2,077 159.91 84,584 1,891

4 ....................................................................................... 112.97 63,039 1,792 140.63 85,521 1,644

5 ....................................................................................... 92.92 63,039 1,474 117.33 85,521 1,372 

* Costs are in $ million ($M) and benefits are in barrels (bbls). Costs and benefits are discounted at 7 and 3 percent. 

Alternative 5 uses a combination of 

dispersant capability and aerial 

surveillance to provide the most costeffective improvement in oil spill 

response. Related equipment costs drive 

the national cost of this rule. Table 2 

displays the discounted first-year cost 

and annualized costs across the period 

of analysis associated with the preferred 

alternative (5) by requirement. 

TABLE 2—COSTS OF THE PREFERRED ALTERNATIVE

[$ Millions] 

Requirements 

Initial costs 

(2009)* 

Annualized 

(2009–2023) 

7% 3% 7% 3% 

Dispersants Option B ....................................................................................................... $8.79 $9.13 $4.84 $4.73 

Aerial tracking .................................................................................................................. 9.48 9.84 2.71 2.53 

Employee training ............................................................................................................ 0.36 0.38 0.39 0.39 

Recordkeeping ................................................................................................................. 5.63 5.86 2.26 2.17 

Total .......................................................................................................................... 24.26 25.21 10.20 9.82 

* Total non-discounted (1st year) initial cost is $25.96 million. 

From our analysis, we conclude that 

Alternative 5 is the most cost-effective 

alternative from the standpoint of a 

potential worst-case discharge. See the 

Regulatory Analysis available in the 

docket for more details. 

We received comments on the 

Regulatory Analysis for the NPRM. 

These comments divide into concerns 

about the overall cost of the regulations 

and the impact of the regulations on the 

Oil Spill Removal Organizations 

(OSROs) indirectly affected by the rule. 

Responses to these comments are 

summarized in the ‘‘General 

Comments’’ section of the rule. 

We note that this rule only directly 

regulates vessels carrying oil in bulk 

and marine transportation related oil 

facilities that are required to have an oil 

response plan under the current vessel 

response plan or facility response plan 

rules. Consequently, we believe that the 

impact of this rule on OSROs is indirect 

since individual OSROs are not required 

by this rule to provide additional 

services. OSROs would make a business 

decision whether the revenue generated 

by providing additional services would 

provide the financial return sufficient to 

justify the cost of providing such 

services. 

Regulatory Flexibility Analyses are 

required to include only the direct 

impacts of a regulation on a small entity 

that is required to comply with the 

regulation. Mid-Tex Electric Coop. v. 

FERC, 773 F.2d 327, 340–343 (D.C. Cir. 

1985) (holding indirect impact of a 

regulation on small entities that do 

business with or are otherwise 

dependent on the regulated entities not 

considered in RFA analyses). See also 

Cement Kiln Recycling Coalition v. EPA, 

255 F.3d 855, 869 (DC Cir. 2001) (In 

passing the Regulatory Flexibility Act, 

‘‘Congress did not intend to require that 

every agency consider every indirect 

effect that any regulation might have on 

small businesses in any stratum of the 

national economy. * * * [T]o require an 

agency to assess the impact on all of the 

nation’s small businesses possibly 

affected by a rule would be to convert 

every rulemaking process into a massive 

exercise in economic modeling, an 

approach we have already rejected.’’). 

See, also, Regulatory Flexibility 

Improvements Act, Hearing before the 

Subcommittee on Commercial and 

Administrative Law, Committee on the 

Judiciary, on H.R. 682, 109th Cong., 2nd 

Sess. (2006), at 13 (Statement of Thomas 

Sullivan, Chief Counsel for Advocacy, 

Small Business Administration, 

testifying on the RFA by noting that 

‘‘the RFA * * * does not require 

agencies to analyze indirect impacts.’’) 

C. Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we considered 

whether this proposed rule will 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. We 

have prepared a Final Regulatory 

Flexibility Analysis (FRFA) assessing 

the potential impact on small entities 

from this rulemaking. The FRFA is in 

the final Regulatory Analysis, which is 

available in the docket as indicated 

under ADDRESSES. 

We determined which plan holders 

were small entities based on an 

evaluation of North American Industry 


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Classification System (NAICS) codes, 

publicly available and proprietary 

revenue and employee size data, and the 

size standards published by the Small 

Business Administration (SBA). We 

found 90 percent of VRP holders and 87 

percent of FRP holders to be small. 

The estimated first year and annually 

recurring costs to FRP holders are $525 

and $129, respectively. The estimated 

first year and annually recurring costs 

for VRP holders are higher at $1,838 and 

$732, respectively. This cost difference 

is due to the requirement that VRP 

holders provide dispersant capability, 

while most FRP holders are in areas 

where dispersant use will be 

impracticable. We found that the costs 

of this rule will have less than a 1- 

percent revenue impact on affected 

small plan holders. We have determined 

that this rulemaking will not have a 

significant economic impact on a 

substantial number of small entities 

under section 605(b) of the Regulatory 

Flexibility Act. 

We did receive comments about the 

cost for small OSROs to purchase new 

equipment. Based on information from 

industry, we expect most of the costs 

from this rule will be passed on to plan 

holders. In comparison to OSRO 

revenues, any costs not passed will be 

low and impact revenues by less than 1 

percent. In addition, most OSROs do not 

provide all services being required for 

plan holders. As small OSROs are not 

required to provide any of the services 

mandated by this regulation, any impact 

of this regulation on OSROs is indirect. 

A small OSRO is not required to provide 

any of the services mandated by this 

regulation. Most small OSROs will need 

to contract with other entities or access 

other resources in the case of a worstcase discharge. Small OSROs will only 

provide these services if they consider 

them to be beneficial to the company. 

D. Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we offered to assist small entities in 

understanding this rule so that they 

could better evaluate its effects on them 

and participate in the rulemaking. As 

indicated in the ‘‘Regulatory History’’ 

section of the preamble, the Coast Guard 

held a public meeting to receive public 

comment and to explain the NPRM to 

affected parties, including small 

entities. 

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). 

E. Collection of Information 

This rule calls for a collection of 

information (COI) 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, and a 

description of those who must collect 

the information, follow. 

This rule modifies COI 1625–0066, 

‘‘Vessel and Facility Response Plans 

(Domestic and International), and 

Additional Response Requirements for 

Prince William Sound Alaska.’’ The 

estimate below covers the time for 

reviewing instructions, searching 

existing sources of data, gathering and 

maintaining the data needed, and 

completing and reviewing the 

collection. 

Title: Vessel and Facility Response 

Plans (Domestic and International), and 

Additional Response Requirements for 

Prince William Sound Alaska. 

OMB Control Number: 1625–0066. 

Summary of the Collection of 

Information: Vessel Response Plan 

(VRP) holders and Facility Response 

Plan (FRP) holders will need to collect 

additional information to comply with 

the rule for oil-spill response 

requirements. 

This information includes: Name and 

contact information for oil spill 

responders for each vessel or facility 

with appropriate equipment and 

resources located in each zone of 

operation; specific lists of equipment 

that the resource providers will make 

available in case of an incident in each 

zone; and certification that the 

responders are qualified and have given 

permission to be included in the plan. 

OSROs will also need to update 

contracts and their own records to add 

dispersant capabilities when 

appropriate. 

Need for Information: The 

information is necessary to show 

evidence that plan holders have 

properly planned to prevent or mitigate 

oil outflow and to provide that 

information to the Coast Guard for its 

use in emergency response. 

Use of Information: The Coast Guard 

will use this information to determine 

whether a vessel or facility meets the 

statutory requirements. 

Description of the Respondents: The 

respondents are OSROs and vessel and 

facility response plan holders. 

Number of Respondents: The number 

of respondents is 3,683–3,593 plan 

holders (795 VRP plan holders + 2,798 

FRP plan holders) and 90 OSROs. 

Frequency of Response: Each 

respondent will have one response per 

year (amending and submitting the 

response plan the first year; updating in 

subsequent years). 

Burden of Response: According to 

information from the Coast Guard’s 

Office of Vessel Activities, the estimated 

burden for the 3,593 plan holders is 27.5 

hours the first year and 8 hours each 

additional year and the estimated 

burden for the 90 OSROs is 2 hours per 

year for each plan holder the first year 

and 1 hour per year for each plan holder 

in the following years. 

Estimate of Total Annual Burden: The 

existing OMB-approved total annual 

burden, as adjusted in December 2006, 

is 220,559 hours. The total additional 

hours requested for this rulemaking are 

56,889. This rule increases the 

estimated annual burden for plan 

holders by 98,808 hours (27.5 × 3,593) 

the first year, followed by 28,744 hours 

per year (8 × 3,593) in subsequent years. 

The rule will increase the estimated 

annual burden for OSROs by 7,186 

hours the first year (2 × 3,593), followed 

by 3,593 hours per year (1 × 3,593) in 

subsequent years. The new burden as a 

result of this rulemaking is 277,448 

hours. 

In addition to this rulemaking, COI 

1625–0066 is being revised by 2 other 

Coast Guard rulemakings. These 

rulemakings are—(1) Salvage and 

Marine Firefighting Requirements; 

Vessel Response Plans for Oil [Docket 

No. USCG–1998–3417; RIN 1625– 

AA19]; and (2) Nontank Vessel 

Response Plans and Other Vessel 

Response Plan Requirements [Docket 

No. USCG–2008–0180; RIN 1625– 

AB27]. Once these rulemakings are 

finalized, the hour burden for 1625– 

0066 may differ from the figures noted 

above. See the COI preamble section of 

each rulemaking for details on how the 

hour burden will differ. 

As required by 44 U.S.C. 3507(d), we 

submitted a copy of this rule to the 

Office of Management and Budget 

(OMB) for its review of the collection of 

information. OMB has not yet 

completed its review of this collection, 

and the response plan reporting and 

recordkeeping requirements of this rule 

will not be enforced until this collection 

is approved by OMB. We will publish 

a notice in the Federal Register 


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announcing the effective date of those 

requirements after OMB approves the 

collection. 

You are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

F. 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 rule under that Order and have 

determined that it does not have 

implications for federalism. 

G. 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. 

Although this rule will not result in 

such expenditure, we discuss the effects 

of this rule elsewhere in this preamble. 

H. Taking of Private Property 

This 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. 

I. Civil Justice Reform 

This 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. 

J. Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This 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. 

K. Indian Tribal Governments 

The Coast Guard received two 

comment letters from Indian Tribal 

Government sources in response to the 

Draft Programmatic Environmental 

Impact Statement (DPEIS). Those letters 

from the Makah Tribal Council (MTC) 

and the Northwest Indian Fisheries 

Commission disagreed with the 

selection of Alternative 5 in the DPEIS, 

and suggested that consultation with the 

Makah Tribal Council was necessary. 

Additionally, the Coast Guard received 

a letter from the MTC dated May 30, 

2006, concerning revised provisions on 

dispersants in the Northwest Area 

Contingency Plan. All three letters 

expressed concern that dispersant use 

on or near the Makah Usual and 

Accustomed Marine Area could cause 

environmental damage. 

The Coast Guard agrees that 

consultation pursuant to Executive 

Order 13175 is appropriate. The Makah 

Usual and Accustomed Marine Area 

(UAMA) is excluded from the 

dispersant pre-approval zone described 

in the Northwest Area Contingency 

Plan, § 4610.1. After consultations 

between the MTC and the Coast Guard, 

the MTC decided that it preferred the 

UAMA to not be exempt from the 

requirements of this rule. Had the MTC 

chosen otherwise, the UAMA would 

have been explicitly exempt from the 

requirements of this rule, even if the 

Northwest Area Contingency Plan were 

to include the UAMA in a pre-approval 

zone at some future date. With regard to 

the Makah Tribe’s preference for 

increasing mechanical recovery 

requirements, please see the discussion 

of mechanical recovery in section IV (B) 

of this preamble. 

In consideration of the foregoing, the 

Coast Guard certifies all relevant 

requirements under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, have 

been met. 

L. Energy Effects 

We have analyzed this 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. Though 

it is a ‘‘significant regulatory action’’ 

under Executive Order 12866, it 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 Executive Order 13211. 

M. 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 rule uses the following voluntary 

consensus standards: ASTM F1413–07, 

Standard Guide for Oil Spill Dispersant 

Application Equipment: Boom and 

Nozzle Systems; ASTM F1737–07, 

Standard Guide for Use of Oil Spill 

Dispersant Application Equipment 

During Spill Response: Boom and 

Nozzle Systems; and, ASTM F1779–08, 

Standard Practice for Reporting Visual 

Observations of Oil on Water. The 

sections that reference these standards 

and the locations where these standards 

are available are listed in 33 CFR 

154.106 and 155.140. 

N. Environment 

We analyzed this rule under 

Department of Homeland Security 

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 concluded that preparation of an 

Environmental Impact Statement (EIS) 

was necessary. A final ‘‘Environmental 

Impact Statement’’ has been completed 

and a ‘‘Record of Decision’’ was made. 

This record was based on the 

assumption that this rulemaking would 

result in a net environmental benefit 

within the context of oil spill response 

efforts. The EIS is available in the 

docket. 

List of Subjects 

33 CFR Part 154 

Alaska, Fire prevention, Hazardous 

substances, Oil pollution, Reporting and 

recordkeeping requirements, 

Incorporation by reference. 

33 CFR Part 155 

Alaska, Hazardous substances, Oil 

pollution, Reporting and recordkeeping 

requirements, Incorporation by 

reference. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR parts 154 and 155 as follows: 

PART 154—FACILITIES 

TRANSFERRING OIL OR HAZARDOUS 

MATERIAL IN BULK 

■ 1. The authority citation for part 154 

continues to read as follows: 


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45022 Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 

Authority: 33 U.S.C. 1231, 1321(j)(1)(C), 

(j)(5), (j)(6), and (m)(2); sec. 2, E.O. 12777, 56 

FR 54757; Department of Homeland Security 

Delegation No. 0170.1. Subpart F is also 

issued under 33 U.S.C. 2735. 

■ 2. Revise § 154.106 to read as follows: 

§ 154.106 Incorporation by reference: 

Where can I get a copy of the publications 

incorporated by reference in this part? 

(a) Certain material is incorporated by 

reference (IBR) into this part with the 

approval of the Director of the Federal 

Register under 5 U.S.C. 552(a) and 1 

CFR part 51. To enforce any edition 

other than that specified in this section, 

the Coast Guard must publish notice of 

change in the Federal Register and the 

material must be available to the public. 

All approved material is available for 

inspection at the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030 or 

go to http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. Also, it is available 

for inspection at the Coast Guard, Office 

of Port and Facility Activities, Cargo 

and Facilities Division (CG–5332), 2100 

Second Street SW., Washington, DC 

20593–0001, 202–372–2234 and is 

available from the sources indicated in 

this section below. 

(b) American Petroleum Institute 

(API), 1220 L Street NW., Washington, 

DC 20037, 202–682–8000, http:// 

www.api.org/: 

(1) API Standard 2000, Venting 

Atmospheric and Low-Pressure Storage 

Tanks (Nonrefrigerated and 

Refrigerated), Third Edition, January 

1982 (reaffirmed December 1987), IBR 

approved for § 154.814. 

(2) API Recommended Practice 550, 

Manual on Installation of Refinery 

Instruments and Control Systems, Part 

II—Process Stream Analyzers, Section 

1—Oxygen Analyzers, Fourth Edition, 

February 1985, IBR approved for 

§ 154.824. 

(c) American National Standards 

Institute (ANSI), 11 West 42nd Street, 

New York, NY 10036, 202–293–8020, 

http://www.ansi.org: 

(1) ANSI B16.5, Steel Pipe Flanges 

and Flanged Fittings, 1988, IBR 

approved for §§ 154.500, 154.808, and 

154.810. 

(2) ANSI B16.24, Bronze Pipe Flanges 

and Flange Fittings Class 150 and 300, 

1979, IBR approved for §§ 154.500 and 

154.808. 

(3) ANSI B31.3, Chemical Plant and 

Petroleum Refinery Piping, 1987 

(including B31.3a–1988, B31.3b–1988, 

and B31.3c–1989 addenda), IBR 

approved for §§ 154.510 and 154.808. 

(d) ASTM International, 100 Barr 

Harbor Drive, West Conshohocken, PA 

19428–2959, 610–832–9585, http:// 

www.astm.org/: 

(1) ASTM F631–93, Standard Guide 

for Collecting Skimmer Performance 

Data in Controlled Environments, IBR 

approved for Appendix C. 

(2) ASTM F715–95, Standard Test 

Methods for Coated Fabrics Used for Oil 

Spill Control and Storage, IBR approved 

for Appendix C. 

(3) ASTM F722–82 (1993), Standard 

Specification for Welded Joints for 

Shipboard Piping Systems, IBR 

approved for Appendix A and 

Appendix B. 

(4) ASTM F1122–87 (1992), Standard 

Specification for Quick Disconnect 

Couplings, IBR approved for § 154.500. 

(5) ASTM F1155–98, Standard 

Practice for Selection and Application 

of Piping System Materials, IBR 

approved for Appendix A and 

Appendix B. 

(6) ASTM F1413–07, Standard Guide 

for Oil Spill Dispersant Application 

Equipment: Boom and Nozzle Systems, 

IBR approved for § 154.1045. 

(7) ASTM F1737–07, Standard Guide 

for Use of Oil Spill Dispersant 

Application Equipment During Spill 

Response: Boom and Nozzle Systems, 

IBR approved for § 154.1045. 

(8) ASTM F1779–08, Standard 

Practice for Reporting Visual 

Observations of Oil on Water, IBR 

approved for § 154.1045. 

(e) International Electrotechnical 

Commission (IEC), Bureau Central de la 

Commission Electrotechnique 

Internationale, 1 rue de Varembe, 

Geneva, Switzerland, +41–22–919–02– 

11, http://www.iec.ch/: 

(1) IEC 309–1—Plugs, Socket-Outlets 

and Couplers for Industrial Purposes: 

Part 1, General Requirements, 1979, IBR 

approved for § 154.812. 

(2) IEC 309–2—Plugs, Socket-Outlets 

and Couplers for Industrial Purposes: 

Part 2, Dimensional Interchangeability 

Requirements for Pin and Contact-tube 

Accessories, 1981, IBR approved for 

§ 154.812. 

(f) National Electrical Manufacturers 

Association (NEMA), 1300 North 17th 

Street, Suite 1752, Rosslyn, Virginia 

22209, 703–841–3200, http:// 

www.nema.org/: 

(1) ANSI NEMA WD–6—Wiring 

Devices, Dimensional Requirements, 

1988, IBR approved for § 154.812. 

(2) [Reserved] 

(g) National Fire Protection 

Association (NFPA), 1 Batterymarch 

Park, Quincy, MA 02269–9101, 617– 

770–3000, http://www.nfpa.org/: 

(1) NFPA 51B, Standard for Fire 

Prevention in Use of Cutting and 

Welding Processes, 1994, IBR approved 

for § 154.735. 

(2) NFPA 70, National Electrical Code, 

2008, IBR approved for § 154.812. 

(h) Oil Companies International 

Marine Forum (OCIMF), 29 Queen 

Anne’s Gate, London, SW1H 9BU, 

England, +44–0–20–7654–1200, http:// 

www.ocimf.com/: 

(1) International Safety Guide for Oil 

Tankers and Terminals, Section 6.10, 

Fourth Ed., 1996, IBR approved for 

§ 154.810. 

(2) International Safety Guide for Oil 

Tankers and Terminals, Sections 9.1, 

9.2, 9.3 and 9.5, Fourth Ed., 1996, IBR 

approved for § 154.735. 

3. In § 154.500, revise paragraph (d)(2) 

to read as follows: 

§ 154.500 Hose assemblies. 

* * * * * 

(d) * * * 

(2) Flanges that meet ANSI B16.5 or 

B16.24 (both incorporated by reference; 

see § 154.106); or 

* * * * * 

■ 4. In § 154.510, revise paragraph (a) to 

read as follows: 

§ 154.510 Loading arms. 

(a) Each mechanical loading arm used 

for transferring oil or hazardous material 

and placed into service after June 30, 

1973, must meet the design, fabrication, 

material, inspection, and testing 

requirements in ANSI B31.3 

(incorporated by reference; see 

§ 154.106). 

* * * * * 

■ 5. In § 154.735, revise paragraphs (l) 

introductory text and (s) introductory 

text to read as follows: 

§ 154.735 Safety requirements. 

* * * * * 

(l) All welding or hot work conducted 

on or at the facility is the responsibility 

of the facility operator. The COTP may 

require that the operator of the facility 

notify the COTP before any welding or 

hot work operations are conducted. Any 

welding or hot work operations 

conducted on or at the facility must be 

conducted in accordance with NFPA 

51B (incorporated by reference; see 

§ 154.106). The facility operator shall 

ensure that the following additional 

conditions or criteria are met: 

* * * * * 

(s) Tank cleaning or gas freeing 

operations conducted by the facility on 

vessels carrying oil residues or mixtures 

shall be conducted in accordance with 

sections 9.1, 9.2, 9.3, and 9.5 of the 

OCIMF International Safety Guide for 

Oil Tankers and Terminals (ISGOTT) 


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(incorporated by reference; see 

§ 154.106), except that— 

* * * * * 

■ 6. In § 154.808, revise paragraph (b) to 

read as follows: 

§ 154.808 Vapor control system, general. 

* * * * * 

(b) Vapor collection system piping 

and fittings must be in accordance with 

ANSI B31.3 (incorporated by reference; 

see § 154.106) and designed for a 

maximum allowable working pressure 

of at least 150 psig. Valves and flanges 

must be in accordance with ANSI B16.5 

or B16.24 (both incorporated by 

reference; see § 154.106), 150 pound 

class. 

* * * * * 

■ 7. In § 154.810, revise paragraphs 

(d)(5)(i) and (g) to read as follows: 

§ 154.810 Vapor line connections. 

* * * * * 

(d) * * * 

(5) * * * 

(i) A bolt hole arrangement complying 

with the requirements for 150 pound 

class ANSI B16.5 (incorporated by 

reference; see § 154.106) flanges, and 

* * * * * 

(g) The facility vapor connection must 

be electrically insulated from the vessel 

vapor connection in accordance with 

section 6.10 of the OCIMF International 

Safety Guide for Oil Tankers and 

Terminals (incorporated by reference; 

see § 154.106). 

* * * * * 

■ 8. In § 154.812, revise paragraphs 

(a)(1), (a)(2), and (b)(6) introductory text 

to read as follows: 

§ 154.812 Facility requirements for vessel 

liquid overfill protection. 

(a) * * * 

(1) ANSI/NEMA WD6 (incorporated 

by reference; see § 154.106); 

(2) NFPA 70, National Electrical Code, 

Articles 410–57 and 501–12; 

incorporated by reference; see 

§ 154.106); and 

* * * * * 

(b) * * * 

(6) Has a female connecting plug for 

the tank barge level sensor system with 

a 5 wire, 16 amp connector body 

meeting IEC 309–1/309–2 (incorporated 

by reference; see § 154.106) which is: 

* * * * * 

■ 9. In § 154.814, revise paragraph (j)(4) 

to read as follows: 

§ 154.814 Facility requirements for vessel 

vapor overpressure and vacuum protection. 

* * * * * 

(j) * * * 

(4) Has been tested for relieving 

capacity in accordance with paragraph 

1.5.1.3 of API 2000 (incorporated by 

reference; see § 154.106) with a flame 

screen fitted. 

* * * * * 

■ 10. In § 154.824, revise paragraph 

(f)(1) to read as follows: 

§ 154.824 Inerting, enriching, and diluting 

systems. 

* * * * * 

(f) * * * 

(1) Be installed in accordance with 

API Recommended Practice 550 

(incorporated by reference; see 

§ 154.106); 

* * * * * 

■ 11. In § 154.1020, add the definitions 

‘‘Dispersant-application platform,’’ 

‘‘Dispersant Mission Planner 2,’’ 

‘‘Effective Daily Application Capacity or 

EDAC,’’ ‘‘Gulf Coast,’’ ‘‘Operational 

effectiveness monitoring,’’ ‘‘Preauthorization for dispersant use,’’ and 

‘‘Primary dispersant staging site’’ in 

alphabetical order to read as follows: 

§ 154.1020 Definitions. 

* * * * * 

Dispersant-application platform 

means the vessel or aircraft outfitted 

with the dispersant-application 

equipment acting as the delivery system 

for the dispersant onto the oil spill. 

Dispersant Mission Planner 2 or 

(DMP2) means an Internetdownloadable application that estimates 

EDAC for different dispersant response 

systems. The NSFCC will use DPMP2 

for evaluating OSRO dispersant 

classification levels. 

Effective Daily Application Capacity 

or EDAC means the estimated amount of 

dispersant that can be applied to a 

discharge by an application system 

given the availability of supporting 

dispersant stockpiles, when operated in 

accordance with approved standards 

and within acceptable environmental 

conditions. 

* * * * * 

Gulf Coast means, for the purposes of 

dispersant-application requirements, the 

region encompassing the following 

Captain of the Port Zones: 

(1) Corpus Christi, TX. 

(2) Houston/Galveston, TX. 

(3) Port Arthur, TX. 

(4) Morgan City, LA. 

(5) New Orleans, LA. 

(6) Mobile, AL. 

(7) St. Petersburg, FL. 

* * * * * 

Operational effectiveness monitoring 

means monitoring concerned primarily 

with determining whether the 

dispersant was properly applied and 

how the dispersant is affecting the oil. 

* * * * * 

Pre-authorization for dispersant use 

means an agreement, adopted by a 

regional response team in coordination 

with area committees, which authorizes 

the use of dispersants at the discretion 

of the Federal On-Scene Coordinator 

without the further approval of other 

Federal or State authorities. These preauthorization areas are generally limited 

to particular geographic areas within 

each region. 

Primary dispersant staging site means 

a site designated within a Captain of the 

Port zone that has been identified as a 

forward staging area for dispersant 

application platforms and the loading of 

dispersant stockpiles. Primary staging 

sites are typically the planned locations 

where platforms load or reload 

dispersants before departing for 

application at the site of the discharge 

and may not be the locations where 

dispersant stockpiles are stored or 

application platforms are home-based. 

* * * * * 

■ 10. In § 154.1035— 

■ a. Revise paragraph (b)(3)(iv); 

■ b. Redesignate paragraph (b)(3)(v) as 

paragraph (b)(3)(ix); and, 

■ c. Add new paragraphs (b)(3)(v), 

(b)(3)(vi), (b)(3)(vii), and (b)(3)(viii) to 

read as follows: 

§ 154.1035 Specific requirements for 

facilities that could reasonably be expected 

to cause significant and substantial harm to 

the environment. 

* * * * * 

(b) * * * 

(3) * * * 

(iv) This subsection of the plan must 

identify the oil spill removal 

organizations and the spill management 

team that will be capable of providing 

the following resources: 

(A) Equipment and supplies to meet 

the requirements of §§ 154.1045, 

154.1047, or subparts H or I of this part, 

as appropriate. 

(B) Trained personnel necessary to 

continue operation of the equipment 

and staff the oil spill removal 

organization and spill management team 

for the first 7 days of the response. 

(v) This section must include job 

descriptions for each spill management 

team member within the organizational 

structure described in paragraph 

(b)(3)(iii) of this section. These job 

descriptions must include the 

responsibilities and duties of each spill 

management team member in a response 

action. 

(vi) For facilities that handle, store, or 

transport group II through group IV 

petroleum oils, and that operate in 

waters where dispersant use is preauthorized, this subsection of the plan 

must also separately list the resource 


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providers and specific resources, 

including appropriately trained 

dispersant-application personnel, 

necessary to provide the dispersant 

capabilities required in this subpart. All 

resource providers and resources must 

be available by contract or other 

approved means as described in 

§ 154.1028(a). The dispersant resources 

to be listed within this section must 

include the following: 

(A) Identification of each primary 

dispersant staging site to be used by 

each dispersant-application platform to 

meet the requirements of this subpart. 

(B) Identification of the platform type, 

resource-providing organization, 

location, and dispersant payload for 

each dispersant-application platform 

identified. Location data must identify 

the distance between the platform’s 

home base and the identified primary 

dispersant staging site for this section. 

(C) For each unit of dispersant 

stockpile required to support the 

effective daily application capacity 

(EDAC) of each dispersant-application 

platform necessary to sustain each 

intended response tier of operation, 

identify the dispersant product resource 

provider, location, and volume. 

Location data must include the 

stockpile’s distance to the primary 

staging sites where the stockpile would 

be loaded onto the corresponding 

platforms. 

(D) If an oil spill removal organization 

has been evaluated by the Coast Guard, 

and its capability is equal to or exceeds 

the response capability needed by the 

owner or operator, the section may 

identify only the oil spill removal 

organization, and not the information 

required in paragraphs (b)(3)(vi)(A) 

through (b)(3)(vi)(C) of this section. 

(vii) This subsection of the plan must 

also separately list the resource 

providers and specific resources 

necessary to provide aerial oil tracking 

capabilities required in this subpart. 

The oil tracking resources to be listed 

within this section must include the 

following: 

(A) The identification of a resource 

provider; and 

(B) Type and location of aerial 

surveillance aircraft that are ensured 

available, through contract or other 

approved means, to meet the oil 

tracking requirements of § 154.1045(j). 

(viii) For mobile facilities that operate 

in more than one COTP zone, the plan 

must identify the oil spill removal 

organization and the spill management 

team in the applicable geographicspecific appendix. The oil spill removal 

organization(s) and the spill 

management team discussed in 

paragraph (b)(3)(iv) of this section must 

be included for each COTP zone in 

which the facility will handle, store, or 

transport oil in bulk. 

* * * * * 

■ 11. In § 154.1045— 

■ a. Revise paragraph (i) as set out 

below; 

■ b. Redesignate paragraphs (j), (k), (l), 

(m), and (n) as paragraphs (k), (l), (m), 

(n), and (o), respectively; 

■ c. Add new paragraph (j) to read as 

follows; 

■ d. Revise newly designated paragraph 

(o) to read as set out below: 

§ 154.1045 Response plan development 

and evaluation criteria for facilities that 

handle, store, or transport Group I through 

Group IV petroleum oils. 

* * * * * 

(i) The owner or operator of a facility 

that handles, stores, or transports groups 

II through IV petroleum oils within the 

inland, nearshore, or offshore areas 

where pre-authorization for dispersant 

use exists must identify in their 

response plan, and ensure the 

availability of, through contract or other 

approved means, response resources 

capable of conducting dispersant 

operations within those areas. 

(1) Dispersant response resources 

must be capable of commencing 

dispersant-application operations at the 

site of a discharge within 7 hours of the 

decision by the Federal On-Scene 

Coordinator to use dispersants. 

(2) Dispersant response resources 

must include all of the following: 

(i) Sufficient volumes of dispersants 

for application as required by paragraph 

(i)(3) of this section. Any dispersants 

identified in a response plan must be of 

a type listed on the National Oil and 

Hazardous Substances Pollution 

Contingency Plan Product Schedule 

(which is contained in 40 CFR part 300, 

and available online from the U.S. 

Government Printing Office). 

(ii) Dispersant-application platforms 

capable of delivering and applying the 

dispersant on a discharge in the 

amounts as required by paragraph (i)(3) 

of this section. At least 50 percent of 

each EDAC tier requirement must be 

achieved through the use of fixed-wing, 

aircraft-based application platforms. For 

dispersant-application platforms not 

detailed within the DMP2, adequacy of 

performance criteria must be 

documented by presentation of 

independent evaluation materials (e.g., 

field tests and reports of actual use) that 

record the performance of the platform. 

(iii) Dispersant-application systems 

that are consistent in design with, and 

are capable of applying dispersants 

within, the performance criteria in 

ASTM F1413–07 (incorporated by 

reference, see § 154.106). For dispersantapplication systems not fully covered by 

ASTM F1413–07, such as fire monitortype applicators, adequacy of 

performance criteria must be 

documented by presentation of 

independent evaluation materials (e.g., 

laboratory tests, field tests, and reports 

of actual use) that record the design of 

performance specifications. 

(iv) Dispersant-application personnel 

trained in and capable of applying 

dispersants according to the 

recommended procedures contained 

within ASTM F1737–07 (incorporated 

by reference, see § 154.106). 

(3) Dispersant stockpiles, application 

platforms, and other supporting 

resources must be available in a 

quantity and type sufficient to treat a 

facility’s worst-case discharge (as 

determined by using the criteria in 

appendix C, section 8) or in quantities 

sufficient to meet the requirements in 

Table 154.1045(i) of this section, 

whichever is the lesser amount. 

TABLE 154.1045(I)—TIERS FOR EFFECTIVE DAILY APPLICATION CAPABILITY

Response time for 

completed 

application 

(hours) 

Dispersant 

application 

dispersant: oil treated in 

gallons 

(Gulf Coast) 

Dispersant application 

dispersant: oil treated in 

gallons 

all other U.S. 

Tier 1 ............................................................................................ 12 8,250:165,000 4,125:82,500

Tier 2 ............................................................................................ 36 23,375:467,000 23,375:467,000 

Tier 3 ............................................................................................ 60 23,375:467,000 23,375:467,000 

Total ...................................................................................... 60 55,000:1,100,000 50,875:1,017,500


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Note to Table 154.1045(i): Gulf Coast Tier 

1 is higher due to greater potential spill size 

and frequency in that area, and it is assumed 

that dispersant stockpiles would be 

centralized in the Gulf area. Alternative 

application ratios may be considered based 

upon submission to Coast Guard 

Headquarters, Office of Incident Management 

and Preparedness (CG–533, 202–372–2234, 

2100 2nd Street, SW., room 2100, 

Washington, DC 20593) of peer-reviewed 

scientific evidence of improved capability. 

(j) The owner or operator of a facility 

handling Groups I through IV petroleum 

oil as a primary cargo must identify in 

the response plan, and ensure the 

availability through contract or other 

approved means, of response resources 

necessary to provide aerial oil tracking 

to support oil spill assessment and 

cleanup activities. Facilities operating 

exclusively on inland rivers are not 

required to comply with this paragraph. 

Aerial oil tracking resources must: 

(1) Be capable of arriving at the site 

of a discharge in advance of the arrival 

of response resources identified in the 

plan for tiers 1, 2, and 3 Worst-Case 

Discharge response times, and for a 

distance up to 50 nautical miles from 

shore (excluding inland rivers); 

(2) Be capable of supporting oil spill 

removal operations continuously for 

three 10-hour operational periods 

during the initial 72 hours of the 

discharge; 

(3) Include appropriately located 

aircraft and personnel capable of 

meeting the response time requirement 

for oil tracking from paragraph (j)(1) of 

this section; and 

(4) Include sufficient numbers of 

aircraft, pilots, and trained observation 

personnel to support oil spill removal 

operations, commencing upon initial 

assessment, and capable of coordinating 

on-scene cleanup operations, including 

dispersant and mechanical recovery 

operations. Observation personnel must 

be trained in: 

(i) The protocols of oil-spill reporting 

and assessment, including estimation of 

slick size, thickness, and quantity; and 

(ii) The use of assessment techniques 

in ASTM F1779–08 (incorporated by 

reference, see § 154.106), and familiar 

with the use of other guides, such as 

NOAA’s ‘‘Open Water Oil Identification 

Job Aid for Aerial Observation,’’ and 

NOAA’s ‘‘Characteristic Coastal 

Habitats’’ guide (available on the 

Internet at http:// 

response.restoration.noaa.gov/use the 

following links in the order presented: 

Home|Emergency Response|Responding 

to Oil Spills). 

* * * * * 

(o) The Coast Guard will continue to 

evaluate the environmental benefits, 

cost efficiency and practicality of 

increasing mechanical recovery 

capability requirements. This 

continuing evaluation is part of the 

Coast Guard’s long term commitment to 

achieving and maintaining an optimum 

mix of oil spill response capability 

across the full spectrum of response 

modes. As best available technology 

demonstrates a need to evaluate or 

change mechanical recovery capacities, 

a review of cap increases and other 

requirements contained within this 

subpart may be performed. Any changes 

in the requirements of this section will 

occur through a public notice and 

comment process. During this review, 

the Coast Guard will determine if 

established caps remain practicable and 

if increased caps will provide any 

benefit to oil spill recovery operations. 

The review will include, at least, an 

evaluation of: 

(1) Best available technologies for 

containment and recovery; 

(2) Oil spill tracking technology; 

(3) High rate response techniques; 

(4) Other applicable response 

technologies; and 

(5) Increases in the availability of 

private response resources. 

* * * * * 

■ 12. In § 154.1065, add new paragraph 

(e) to read as follows: 

§ 154.1065 Plan review and revision 

procedures. 

* * * * * 

(e) If required by §§ 154.1035(b)(3) or 

154.1045, a new or existing facility 

owner or operator must submit the 

required dispersant and aerial oil 

tracking resource revisions to a 

previously submitted or approved plan, 

made pursuant to §§ 154.1035(b)(3) or 

154.1045, to the COTP and all other 

holders of the response plan for 

information or approval no later than 

February 22, 2011. 

■ 13. In appendix C to Part 154, revise 

section 8 and amend Table 5 in section 

9 by revising the entries for ‘‘February 

18, 2003’’ to read as follows: 

Appendix C to Part 154—Guidelines for 

Determining and Evaluating Required 

Response Resources for Facility 

Response Plans 

* * * * * 

8. Determining the Capability of High-Rate 

Response Methods 

8.1. Calculate cumulative dispersant 

application capacity as follows: 

8.1.1 A facility owner or operator must 

plan either for a dispersant capacity to 

respond to a facility’s worst case discharge 

(WCD) of oil, or for the amount of the 

dispersant resource cap as required by 

§ 154.1045(i)(3) of this chapter, whichever is 

the lesser amount. When planning for the 

cumulative application capacity required, the 

calculations must account for the loss of 

some oil to the environment due to natural 

dissipation causes (primarily evaporation). 

The following procedure must be used to 

determine the cumulative application 

requirements: 

8.1.2 Determine the WCD volume of oil in 

gallons and the appropriate oil group for the 

type of petroleum oil (persistent Groups II, 

III, and IV). For facilities with mixed 

petroleum oils, assume a total WCD volume 

using the group that constitutes the largest 

portion of the oil being handled or the group 

with the smallest natural dissipation factor; 

8.1.3 Multiply the total WCD amount in 

gallons by the natural dissipation factor for 

the appropriate oil group as follows: Group 

II factor is 0.50; Group III is 0.30; and Group 

IV is 0.10. This represents the amount of oil 

that can be expected to be lost to natural 

dissipation in a nearshore environment. 

Subtract the oil amount lost to natural 

dissipation from the total WCD amount to 

determine the remaining oil available for 

treatment by dispersant application; and 

8.1.4 Multiply the oil available for 

dispersant treatment by the dispersant-to-oil 

planning application ratio of 1 part 

dispersant to 20 parts oil (0.05). The resulting 

number represents the cumulative total 

dispersant-application capability that must 

be ensured available within the first 60 

hours. 

8.1.5(i) The following is an example of 

the procedure described in paragraphs 8.1.1 

through 8.1.4 above: A facility with a 

1,000,000 gallon WCD of crude oil (specific 

gravity 0.87) is located in an area with preauthorization for dispersant use in the 

nearshore environment on the U.S. East 

Coast: 

WCD: 1,000,000 gallons, Group III oil. 

Natural dissipation factor for Group III: 30 

percent. 

General formula to determine oil available 

for dispersant treatment: (WCD)¥[(WCD) × 

(natural dissipation factor)] = available oil. 

E.g., 1,000,000 gal¥(1,000,000 gal × .30) = 

700,000 gallons of available oil. 

Cumulative application capacity = 

Available oil × planning application ratio (1 

gal dispersant/20 gals oil = 0.05). 

E.g., 700,000 gal oil × (0.05) = 35,000 

gallons cumulative dispersant-application 

capacity. 

(ii) The requirements for cumulative 

dispersant-application capacity (35,000 

gallons) for this facility’s WCD is less than 

the overall dispersant capability for non-Gulf 

Coast waters required by § 155.1045(i)(3) of 

this chapter. Because paragraph 8.1.1 of this 

appendix requires owners and operators to 

ensure the availability of the lesser of a 

facility’s dispersant requirements for WCD or 

the amount of the dispersant cap provided 

for in § 154.1045(i)(3), the facility in this 

example would be required to ensure the 

availability of 35,000 gallons of dispersant. 

More specifically, this facility would be 

required to meet the following tier 

requirements in § 154.1045(i)(3), which total 

35,000 gallons application: 

Tier 1—4,125 gallons—Completed in 12 

hours. 


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Tier 2—23,375 gallons—Completed in 36 

hours. 

Tier 3—7,500 gallons—Completed in 60 

hours. 

8.2 Determine Effective Daily Application 

Capacities (EDACs) for dispersant response 

systems as follows: 

8.2.1 EDAC planning estimates for 

compliance with the dispersant application 

requirements in § 154.1045(i)(3) are to be 

based on: 

8.2.1.1 The spill occurring at the facility; 

8.2.1.2 Specific dispersant application 

platform operational characteristics 

identified in the Dispersant Mission Planner 

2 or as demonstrated by operational tests; 

8.2.1.3 Locations of primary dispersant 

staging sites; and 

8.2.1.4 Locations and quantities of 

dispersant stockpiles. 

8.2.2 EDAC calculations with supporting 

documentation must be submitted to the 

NSFCC for classification as a Dispersant Oil 

Spill Removal Organization. 

8.2.3(i) EDAC can also be calculated 

using the Dispersant Mission Planner 2 

(DMP2). The DMP2 is a downloadable 

application that calculates EDAC for different 

dispersant response systems. It is located on 

the Internet at: http:// 

www.response.restoration.noaa.gov/ 

spilltools. 

(ii) The DMP2 contains operating 

information for the vast majority of 

dispersant application platforms, including 

aircraft, both rotary and fixed wing, and 

vessels. The DMP2 produces EDAC estimates 

by performing calculations based on 

performance parameters of dispersant 

application platforms, locations of primary 

dispersant staging sites, home-based airport 

or port locations, and the facility location (for 

the spill site). 

8.2.4 For each Captain of the Port zone 

where a dispersant response capability is 

required, the response plan must identify: 

8.2.4.1 The type, number, and location of 

each dispersant-application platform 

intended for use to meet dispersant delivery 

requirements specified in § 154.1045(i)(3) of 

this chapter; 

8.2.4.2 The amount and location of 

available dispersant stockpiles to support 

each platform; and, 

8.2.4.3 A primary staging site for each 

platform that will serve as its base of 

operations for the duration of the response. 

8.3 In addition to the equipment and 

supplies required, a facility owner or 

operator must identify a source of support to 

conduct the monitoring and post-use 

effectiveness evaluation required by 

applicable regional plans and ACPs. 

8.4 Identification of the resources for 

dispersant application does not imply that 

the use of this technique will be authorized. 

Actual authorization for use during a spill 

response will be governed by the provisions 

of the National Oil and Hazardous 

Substances Contingency Plan (40 CFR part 

300) and the applicable Local or Area 

Contingency Plan. 

9. Additional Equipment Necessary To 

Sustain Response Operations 

* * * * * 

TABLE 5—RESPONSE CAPABILITY CAPS BY OPERATING AREA

Tier 1 Tier 2 Tier 3 

* * * * * * * 

February 18, 2003: 

All except rivers & canals & Great Lakes ...................................................... 12.5K bbls/day ...... 25K bbls/day ......... 50K bbls/day. 

Great Lakes ................................................................................................... 6.25K bbls/day ...... 12.3K bbls/day ...... 25K bbls/day. 

Rivers & canals .............................................................................................. 1,875 bbls/day ...... 3,750 bbls/day ...... 7,500 bbls/day. 

* * * * * * * 

* * * * * 

PART 155—OIL OR HAZARDOUS 

MATERIAL POLLUTION PREVENTION 

REGULATIONS FOR VESSELS 

■ 14. The authority citation for part 155 

continues to read as follows: 

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

11735, 3 CFR, 1971–1975 Comp., p. 793. 

Sections 155.100 through 155.130, 150.350 

through 155.400, 155.430, 155.440, 155.470, 

155.1030(j) and (k), and 155.1065(g) are also 

issued under 33 U.S.C. 1903(b). Sections 

155.480, 155.490, 155.750(e), and 155.775 are 

also issued under 46 U.S.C. 3703. Section 

155.490 also issued under section 4110(b) of 

Pub. L. 101–380. 

Note: Additional requirements for vessels 

carrying oil or hazardous materials are 

contained in 46 CFR parts 30 through 40, 

150, 151, and 153. 

■ 15. In § 155.140— 

■ (a) In paragraph (a), after the words 

‘‘Washington, DC 20593–0001’’ add the 

phone number ‘‘, 202–372–1251’’; and, 

■ (b) Add new paragraphs (c)(4), (c)(5), 

and (c)(6) to read as follows: 

§ 155.140 Incorporation by reference. 

* * * * * 

(c) * * * 

(4) ASTM F1413–07, Standard Guide 

for Oil Spill Dispersant Application 

Equipment: Boom and Nozzle Systems, 

incorporation by reference approved for 

§ 155.1050. 

(5) ASTM F1737–07, Standard Guide 

for Use of Oil Spill DispersantApplication Equipment During Spill 

Response: Boom and Nozzle Systems, 

incorporation by reference approved for 

§ 155.1050. 

(6) ASTM F1779–08, Standard 

Practice for Reporting Visual 

Observations of Oil on Water, 

incorporation by reference approved for 

§ 155.1050. 

* * * * * 

■ 16. In § 155.230, revise paragraph 

(b)(1)(i)(D) to read as follows: 

§ 155.230 Emergency control systems for 

tank barges. 

* * * * * 

(b) * * * 

(1) * * * 

(i) * * * 

(D) Each operator of the system 

should wear a safety belt or harness 

secured by a lanyard to a lifeline, drop 

line, or fixed structure such as a welded 

padeye, if the sea or the weather 

warrants this precaution. Each safety 

belt, harness, lanyard, lifeline, and drop 

line must meet the specifications of 

ANSI A10.14 (incorporated by 

reference, see § 155.140). 

* * * * * 

■ 17. Revise § 155.235 to read as 

follows: 

§ 155.235 Emergency towing capability for 

oil tankers. 

An emergency towing arrangement 

shall be fitted at both ends on board all 

oil tankers of not less than 20,000 

deadweight tons (dwt), constructed on 

or after September 30, 1997. For oil 

tankers constructed before September 

30, 1997, such an arrangement shall be 

fitted at the first scheduled dry-docking, 

but not later than January 1, 1999. The 

design and construction of the towing 

arrangement shall be in accordance with 

IMO resolution MSC.35(63) 

(incorporated by reference; see 

§ 155.140). 

■ 18. In § 155.1020, add the following 

definitions, ‘‘Dispersant-application 

platform,’’ ‘‘Dispersant Mission Planner 

2 (DMP2),’’ ‘‘Effective daily application 

capacity or EDAC,’’ ‘‘Gulf Coast,’’ 

‘‘Operational effectiveness monitoring,’’ 


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‘‘Pre-authorization for dispersant,’’ and 

‘‘Primary dispersant staging site’’ in 

alphabetical order to read as follows: 

§ 155.1020 Definitions. 

* * * * * 

Dispersant-application platform 

means the vessel or aircraft outfitted 

with the dispersant-application 

equipment acting as the delivery system 

for the dispersant onto the oil spill. 

Dispersant Mission Planner 2 (DMP2) 

means an Internet-downloadable 

application that estimates EDAC for 

different dispersant response systems. 

The NSFCC will use DPMP2 for 

evaluating OSRO dispersant 

classification levels. 

Effective daily application capacity or 

EDAC means the estimated amount of 

dispersant that can be applied to a 

discharge by an application system, 

given the availability of supporting 

dispersant stockpiles, when operated in 

accordance with approved standards 

and within acceptable environmental 

conditions. 

* * * * * 

Gulf Coast means for the purposes of 

dispersant application requirements, the 

regions encompassing the following 

Captain of the Port Zones: 

(1) Corpus Christi, TX; 

(2) Houston/Galveston, TX; 

(3) Port Arthur, TX; 

(4) Morgan City, LA; 

(5) New Orleans, LA; 

(6) Mobile, AL; and 

(7) St. Petersburg, FL. 

* * * * * 

Operational effectiveness monitoring 

means monitoring concerned primarily 

with determining whether the 

dispersant was properly applied and 

how the dispersant is affecting the oil. 

* * * * * 

Pre-authorization for dispersant use 

means an agreement, adopted by a 

regional response team in coordination 

with area committees, that authorizes 

the use of dispersants at the discretion 

of the Federal On-Scene Coordinator 

without the further approval of other 

Federal or State authorities. These preauthorization areas are generally limited 

to particular geographic areas within 

each region. 

Primary dispersant staging site means 

a site designated within a Captain of the 

Port zone which is identified as a 

forward staging area for dispersantapplication platforms and the loading of 

dispersant stockpiles. Primary staging 

sites would normally be the planned 

location where the platform would load 

or reload dispersants prior to departing 

for application at the site of the 

discharge and may not be the location 

where dispersant stockpiles are stored 

or application platforms are home 

based. 

* * * * * 

■ 19. In § 155.1035— 

■ a. Revise paragraph(c)(5)(i) and 

paragraph (i)(9); and, 

■ b. Add paragraphs (i)(10) and (i)(11) to 

read as follows: 

§ 155.1035 Response plan requirements 

for manned vessels carrying oil as a 

primary cargo. 

* * * * * 

(c) * * * 

(5) * * * 

(i) The format and content of the shipto-ship transfer procedures must be 

consistent with the Ship to Ship 

Transfer Guide (Petroleum) 

(incorporated by reference; see 

§ 155.140) published jointly by the 

International Chamber of Shipping and 

the Oil Companies International Marine 

Forum (OCIMF). 

* * * * * 

(i) * * * 

(9) For vessels that handle, store, or 

transport Group I through Group V 

petroleum oils, the appendix must also 

separately list the resource providers 

identified to provide the salvage, vessel 

firefighting, and lightering capabilities 

required in this subpart. 

(10) For vessels that handle, store, or 

transport Group II through Group IV 

petroleum oils, and that operate in 

waters where dispersant use preauthorization agreements exist, the 

appendix must also separately list the 

resource providers and specific 

resources, including appropriately 

trained dispersant-application 

personnel, necessary to provide, if 

appropriate, the dispersant capabilities 

required in this subpart. All resource 

providers and resources must be 

available by contract or other approved 

means. The dispersant resources to be 

listed within this section must include 

the following: 

(i) Identification of each primary 

dispersant staging site to be used by 

each dispersant-application platform to 

meet the requirements of § 155.1050(k) 

of this chapter; 

(ii) Identification of the platform type, 

resource provider, location, and 

dispersant payload for each dispersantapplication platform identified. 

Location data must identify the distance 

between the platform’s home base and 

the identified primary dispersantstaging site(s) for this section. 

(iii) For each unit of dispersant 

stockpile required to support the 

effective daily application capacity 

(EDAC) of each dispersant-application 

platform necessary to sustain each 

intended response tier of operation, 

identify the dispersant product resource 

provider, location, and volume. 

Location data must include the distance 

from the stockpile to the primary staging 

sites where the stockpile would be 

loaded onto the corresponding 

platforms. If an oil spill removal 

organization has been evaluated by the 

Coast Guard and its capability has been 

determined to meet the response 

capability needed by the owner or 

operator, the section may identify the 

oil spill removal organization only, and 

not the information required in 

paragraphs (i)(10)(i) through (i)(10)(iii) 

of this section. 

(11) The appendix must also 

separately list the resource providers 

and specific resources necessary to 

provide oil-tracking capabilities 

required in this subpart. The oil tracking 

resources to be listed within this section 

must include the following: 

(i) The identification of a resource 

provider; and 

(ii) The type and location of aerial 

surveillance aircraft that have been 

ensured available, through contract or 

other approved means, to meet the oil 

tracking requirements of § 155.1050(l) of 

this chapter. 

* * * * * 

■ 18. In § 155.1040— 

■ a. Revise paragraph (j)(9); and, 

■ b. Add new paragraphs (j)(10) and 

(j)(11) to read as follows: 

§ 155.1040 Response plan requirements 

for unmanned tank barges carrying oil as a 

primary cargo. 

* * * * * 

(j) * * * 

(9) The appendix must include a 

separate listing of the resource providers 

identified to provide the salvage, vessel 

firefighting, and lightering capabilities 

required in this subpart. 

(10) The appendix must include a 

separate listing of the resource providers 

and specific resources necessary to 

provide, if appropriate, the dispersant 

capabilities required in this subpart. 

The dispersant resources to be listed 

within this section must include: 

(i) Identification of a primary 

dispersant-staging site or sites to be 

used by each dispersant-application 

platform that is ensured available, 

through contract or other approved 

means, to meet the requirements of 

§ 155.1050(k); 

(ii) Identification of the type, resource 

provider, location, and dispersant 

payload for each dispersant-application 

platform identified and ensured 

available. Location data must identify 

the distance between the platform’s 


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home base and the identified primary 

dispersant staging sites for this section; 

and, 

(iii) For each unit of dispersant 

stockpile required to support the 

effective daily application capacity 

(EDAC) of each dispersant-application 

platform necessary to sustain each 

intended response tier of operation, 

identification of the dispersant product 

resource provider, location, and volume. 

Location data must include the 

stockpile’s distance to the primary 

staging sites where it will be loaded 

onto the corresponding platforms. If an 

oil spill removal organization has been 

evaluated by the Coast Guard and its 

capability has been determined to equal 

or exceed the response capability 

needed by the owner or operator, the 

appendix may identify only the oil spill 

removal organization, and not the 

information required in paragraphs 

(j)(10)(i) through (j)(10)(iii) of this 

section. 

(11) The appendix must include a 

separate listing of the resource providers 

and specific resources necessary to 

provide oil-tracking capabilities 

required in this subpart. The oil tracking 

resources listed within this section must 

include: 

(i) The identification of a resource 

provider; and, 

(ii) The type and location of aerial 

surveillance aircraft that have been 

ensured available, through contract or 

other approved means, to meet the oil 

tracking requirements of § 155.1050(l) of 

this chapter. 

* * * * * 

■ 19. In § 155.1050— 

■ a. Remove paragraph (j); 

■ b. Redesignate paragraph (p) as 

paragraph (q), and revise the newly 

redesignated paragraph (q); 

■ c. Redesignate paragraphs (k), (l), (m), 

(n), and (o) as paragraphs (j), (m), (n), 

(o), and (p), respectively; and, 

■ d. Add new paragraphs (k), and (l) to 

read as follows: 

§ 155.1050 Response plan development 

and evaluation criteria for vessels carrying 

groups I through IV petroleum oil as a 

primary cargo. 

* * * * * 

(k) The owner or operator of a vessel 

carrying groups II through IV petroleum 

oil as a primary cargo that operates in 

any inland, nearshore, or offshore area 

with pre-authorization for dispersant 

use must identify in their response plan, 

and ensure availability through contract 

or other approved means, of response 

resources capable of conducting 

dispersant operations within those 

areas. 

(1) Dispersant response resources 

must be capable of commencing 

dispersant-application operations at the 

site of a discharge within 7 hours of the 

decision by the Federal On-Scene 

Coordinator to use dispersants. 

(2) Dispersant response resources 

must include all of the following: 

(i) Sufficient dispersant capability for 

application as required by paragraph 

(k)(3) of this section. Any dispersants 

identified in a response plan must be of 

a type listed on the National Oil and 

Hazardous Substances Pollution 

Contingency Plan Product Schedule 

(contained in 40 CFR part 300, and 

available online from the U.S. 

Government Printing Office). 

(ii) Dispersant-application platforms 

capable of delivering and applying 

dispersant in the amounts required by 

paragraph (k)(3) of this section. At least 

50 percent of each effective daily 

application capacity (EDAC) tier 

requirement must be achieved through 

the use of fixed wing aircraft-based 

application platforms. The adequacy of 

dispersant-application platforms not 

detailed within the Dispersant Mission 

Planner 2 must be documented by 

presentation of independent evaluation 

materials (e.g., field tests and reports of 

actual use). 

(iii) Dispersant-application personnel 

trained in and capable of applying 

dispersants within the performance 

criteria in ASTM F1413–07 

(incorporated by reference, see 

§ 155.140). The adequacy of dispersantapplication systems not fully covered by 

ASTM F1413–07, such as fire monitortype applicators, must be documented 

by presentation of independent 

evaluation materials (e.g., laboratory 

tests, field tests, and reports of actual 

use). 

(iv) Dispersant-application systems 

ensured to be available, including 

trained personnel, that are capable of 

applying dispersants in accordance with 

the recommended procedures in ASTM 

F1737–07 (incorporated by reference, 

see § 155.140). 

TABLE 155.1050(K)—TIERS FOR EFFECTIVE DAILY APPLICATION CAPABILITY

Response 

time for 

completed 

application 

Dispersant application 

dispersant: oil treated in 

gallons 

(Gulf Coast) 

Dispersant application 

dispersant: oil treated in 

gallons 

All other U.S. 

Tier 1 ................................................................................................................ 12 8,250:165,000 4,125:82,500 

Tier 2 ................................................................................................................ 36 23,375:467,000 23,375:467,000 

Tier 3 ................................................................................................................ 60 23,375:467,000 23,375:467,000 

Total .......................................................................................................... 60 55,000:1,100,000 50,875:1,017,500 

Note: Gulf Coast Tier 1 is higher due to 

greater potential spill size and frequency in 

that area, and it is assumed that dispersant 

stockpiles would be centralized in the Gulf 

area. Alternative application ratios may be 

considered based on submission to Coast 

Guard Headquarters, Office of Incident 

Management & Preparedness (CG–533) of 

peer-reviewed scientific evidence of 

improved capability. 

(3) Dispersant stockpiles, application 

platforms, and other supporting 

resources must be ensured available in 

a quantity and type sufficient to treat a 

vessel’s worst case discharge (as 

determined by using the criteria in 

Section 8 of appendix B), or in 

quantities sufficient to meet the 

requirements in Table 155.1050(k), 

whichever is the lesser amount. 

(l) The owner or operator of a vessel 

carrying groups I through IV petroleum 

oil as a primary cargo must identify in 

the response plan, and ensure their 

availability through contract or other 

approved means, response resources 

necessary to provide aerial oil tracking 

to support oil spill assessment and 

cleanup activities. Vessels operating on 

inland rivers are not required to comply 

with this paragraph. 

(1) Aerial oil tracking resources must 

be capable of arriving at the site of a 

discharge in advance of the arrival of 

response resources identified in the 

plan for tiers 1, 2, and 3 Worst Case 

Discharge response times, and for a 

distance up to 50 nautical miles from 

shore (excluding inland rivers). 

(2) Aerial oil tracking resources must 

include the following: 


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(i) Appropriately located aircraft and 

personnel capable of meeting the 

response time requirement for oil 

tracking in § 155.1050(l)(1) of this 

section; 

(ii) Sufficient numbers of aircraft, 

pilots, and trained observation 

personnel to support oil spill 

operations, commencing upon initial 

assessment, and capable of coordinating 

on-scene cleanup operations, including 

dispersant, in-situ burning, and 

mechanical recovery operations; 

(iii) Observation personnel must be 

trained in the protocols of oil spill 

reporting and assessment, including 

estimation of slick size, thickness, and 

quantity. Observation personnel must be 

trained in the use of assessment 

techniques in ASTM F1779–08 

(incorporated by reference, see 

§ 155.140), and familiar with the use of 

pertinent guides, including, but not 

limited to, NOAA’s ‘‘Open Water Oil 

Identification Job Aid for Aerial 

Observation’’ and the ‘‘Characteristic 

Coastal Habitats’’ guide; and 

(iv) The capability of supporting oil 

spill removal operations continuously 

for three 10-hour operational periods 

during the initial 72 hours of the 

discharge. 

* * * * * 

(q) The Coast Guard will continue to 

evaluate the environmental benefits, 

cost efficiency and practicality of 

increasing mechanical recovery 

capability requirements. This 

continuing evaluation is part of the 

Coast Guard’s long term commitment to 

achieving and maintaining an optimum 

mix of oil spill response capability 

across the full spectrum of response 

modes. As best available technology 

demonstrates a need to evaluate or 

change mechanical recovery capacities, 

a review of cap increases and other 

requirements contained within this 

subpart may be performed. Any changes 

in the requirements of this section will 

occur through a public notice and 

comment process. During this review, 

the Coast Guard will determine if 

established caps remain practicable and 

if increased caps will provide any 

benefit to oil spill recovery operations. 

The review will include and evaluation 

of: 

(1) Best available technologies for 

containment and recovery; 

(2) Oil spill tracking technology; 

(3) High rate response techniques; 

(4) Other applicable response 

technologies; and 

(5) Increases in the availability of 

private response resources. 

■ 20. In § 155.1070, add new paragraph 

(i) to read as follows: 

§ 155.1070 Procedures for plan review, 

revision, amendment and appeal. 

* * * * * 

(i) If required by §§ 155.1035(i), 

155.1040(j), and 155.1050 (k) and (l), a 

new or existing vessel owner or operator 

must submit the required dispersant and 

aerial oil tracking resource revisions to 

a previously submitted or approved 

plan, made pursuant to §§ 155.1035(i), 

155.1040(j), and 155.1050(k) and (l), to 

Coast Guard Headquarters, Office of 

Vessel Activities (CG–543) and all other 

holders of the response plan for 

information or approval no later than 

February 22, 2011. 

§ 155.4020 [Amended] 

■ 21. In § 155.4020, amend paragraphs 

(a) and (c)(1) by removing the date ‘‘June 

1, 2010’’ and adding in its place 

‘‘February 22, 2011’’. 

■ 22. In Appendix B to Part 155: 

■ A. Amend section 7.2.4. by removing 

the last 3 sentences and adding 2 

sentences in their place. 

■ B. Revise section 8. 

■ C. Amend Table 6 in section 9 by 

revising the entries for ‘‘February 18, 

2003’’. 

The additions and revisions read as 

follows: 

APPENDIX B TO PART 155— 

DETERMINING AND EVALUATING 

REQUIRED RESPONSE RESOURCES 

FOR VESSEL RESPONSE PLANS 

* * * * * 

7. Calculating the Worst Case Discharge 

Planning Volumes 

* * * * * 

7.2.4 * * * If the required capacity 

exceeds the applicable cap described in 

Table 6 of this appendix, then a vessel owner 

or operator must contract for at least the 

quantity of resources required to meet the 

cap, but must identify sources of additional 

resources as indicated in § 155.1050(p). For 

a vessel that carries multiple groups of oil, 

the required effective daily recovery capacity 

for each group is calculated and summed 

before applying the cap. 

* * * * * 

8. Determining the Capability of High-Rate 

Response Methods 

8.1 Calculate cumulative dispersant 

application capacity requirements as follows: 

8.1.1 A vessel owner or operator must 

plan either for a dispersant capacity to 

respond to a vessel’s worst case discharge 

(WCD) of oil, or for the amount of the 

dispersant resource capability as required by 

§ 155.1050(k)(3) of this chapter, whichever is 

the lesser amount. When planning for the 

cumulative application capacity that is 

required, the calculations should account for 

the loss of some oil to the environment due 

to natural dissipation causes (primarily 

evaporation). The following procedure 

should be used to determine the cumulative 

application requirements: 

8.1.2 Determine the WCD volume of oil 

carried in gallons, and the appropriate oil 

group for the type of petroleum oil carried 

(Groups II, III, IV). For vessels carrying 

different oil groups, assume a WCD using the 

oil group that constitutes the largest portion 

of the oil being carried, or the oil group with 

the smallest natural dissipation factor; 

8.1.3 Multiply the WCD in gallons by the 

natural dissipation factor for the appropriate 

oil group as follows: Group II factor is 0.50; 

Group III factor is 0.30; and Group IV factor 

is 0.10. This represents the amount of oil that 

can be expected to be lost to natural 

dissipation. Subtract the WCD lost to natural 

dissipation from the total oil amount carried 

to determine the remaining oil available for 

treatment by dispersant-application; and 

8.1.4 Multiply the oil available for 

dispersant treatment by the dispersant to oil 

planning application ratio of 1 part 

dispersant to 20 parts oil (0.05). The resulting 

number represents the cumulative total 

dispersant-application capability that must 

be ensured available within the first 60 

hours. 

8.1.5(i) The following is an example of 

the procedure described in paragraphs 8.1.1 

through 8.1.4 above: A vessel with a 

1,000,000 gallons capacity of crude oil 

(specific gravity 0.87) will transit through an 

area with pre-authorization for dispersant use 

in the nearshore environment on the U.S. 

East Coast. 

WCD: 1,000,000 gallons, Group III oil. 

Natural Dissipation Factor for Group III: 30 

percent. 

General formula to determine oil available 

for dispersant treatment: ((WCD)—[(WCD) × 

(natural dissipation factor)] = available oil. 

E.g., 1,000,000 gal¥(1,000,000 gal × 0.30) 

= 700,000 gallons of available oil. 

Cumulative application capacity = 

Available oil × planning application ratio (1 

gal dispersant/20 gals oil = 0.05). 

E.g., 700,000 gal oil × (0.05) = 35,000 

gallons cumulative dispersant-application 

capacity. 

(ii) The requirements for cumulative 

dispersant-application capacity (35,000) for 

this vessel’s WCD is less than the overall 

dispersant capability cap for non-Gulf Coast 

waters required by § 155.1050(k) of this 

chapter. Because paragraph 8.1.1 of this 

appendix requires owners and operators to 

ensure the availability of the lesser of a 

vessel’s dispersant requirements for WCD or 

the amount of the dispersant cap provided 

for in § 155.1050(k)(3), the vessel in this 

example would be required to ensure the 

availability of 35,000 gallons of dispersant. 

More specifically, this vessel would be 

required to meet the following tier 

requirements in § 155.1050(k), which total 

35,000 gallons application: 

Tier—1 4,125 gallons—Completed in 12 

hours. 

Tier—2 23,375 gallons—Completed in 36 

hours. 

Tier—3 7,500 gallons—Completed in 60 

hours. 

8.2 Determining Effective Daily 

Application Capacities ‘‘EDACs’’ for 

dispersant response systems as follows: 

8.2.1 EDAC planning estimates for 

compliance with the dispersant application 


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45030 Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 

requirements in § 155.1050(k)(3) are to be 

based on: 

8.2.1.1 The spill occurring at sites 50 

nautical miles off shore furthest from the 

primary dispersant staging site(s); 

8.2.1.2 Specific dispersant application 

platform operational characteristics 

identified in the Dispersant Mission Planner 

2 or as demonstrated by operational tests; 

8.2.1.3 Locations of primary dispersant 

staging sites; and 

8.2.1.4 Locations and quantities of 

dispersant stockpiles. 

8.2.2 EDAC calculations with supporting 

documentation must be submitted to the 

NSFCC for classification as a Dispersant Oil 

Spill Removal Organization. 

8.2.3(i) EDAC can also be calculated 

using the Dispersant Mission Planner 2 

(DMP2). The DMP2 is a downloadable 

application that calculates EDAC for different 

dispersant response systems. It is located on 

the Internet at: http:// 

www.response.restoration.noaa.gov/spilltools 

(ii) The DMP2 contains operating 

information for the vast majority of 

dispersant application platforms, to include 

aircraft, both rotary and fixed wing, and 

vessels. The DMP2 produces EDAC estimates 

by performing calculations that are based on 

performance parameters of dispersant 

application platforms, locations of primary 

dispersant staging sites, home based airport 

or port locations, and for planning purposes, 

a 50 mile from shore dispersant application 

site. The 50 mile offshore site used in the 

DMP2 would be the location furthest from 

the primary dispersant staging site identified 

in the vessel response plan. 

8.2.4 For each Captain of the Port Zone 

where a dispersant response capability is 

required, the response plan must identify the 

following: 

8.2.4.1 The type, number, and location of 

each dispersant application platform 

intended for use in meeting dispersant 

delivery requirements specified in 

§ 155.1050(k)(3) of this chapter; 

8.2.4.2 The amount and location of 

available dispersant stockpiles to support 

each platform; and 

8.2.4.3 A primary staging site for each 

platform that will serve as its base of 

operations for the duration of the response. 

8.3 In addition to the equipment and 

supplies required, a vessel owner or operator 

must identify a source of support to conduct 

the monitoring and post-use effectiveness 

evaluation required by applicable Local and 

Area Contingency Plans. 

8.4 Identification of the resources for 

dispersant application does not imply that 

the use of this technique will be authorized. 

Actual authorization for use during a spill 

response will be governed by the provisions 

of the National Oil and Hazardous 

Substances Contingency Plan (40 CFR part 

300) and the applicable Local or Area 

Contingency Plan. 

9. Additional Equipment Necessary To 

Sustain Response Operations 

* * * * * 

TABLE 6—RESPONSE CAPABILITY CAPS BY OPERATING AREA

Tier 1 Tier 2 Tier 3 

* * * * * * * 

February 18, 2003: 

All except rivers & canals & Great Lakes ...................................................... 12.5K bbls/day ...... 25K bbls/day ......... 50K bbls/day. 

Great Lakes ................................................................................................... 6.25K bbls/day ...... 12.3K bbls/day ...... 25K bbls/day. 

Rivers & canals .............................................................................................. 1,875 bbls/day ...... 3,750 bbls/day ...... 7,500 bbls/day. 

* * * * * * * 

Dated: August 14, 2009. 

Lincoln D. Stroh, 

Captain, U.S. Coast Guard, Acting Director 

of Prevention Policy. 

[FR Doc. E9–20311 Filed 8–28–09; 8:45 am] 

BILLING CODE 4910–15–P 


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