[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45004-45030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20311]



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Part IV





Department of Homeland Security





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Coast Guard



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33 CFR Parts 154 and 155



Vessel and Facility Response Plans for Oil: 2003 Removal Equipment 
Requirements and Alternative Technology Revisions; Final Rule

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

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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.

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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 Casta[ntilde]eda, Office of Vessel 
Activities, Vessel Response Plan Program, (CG-5431) telephone 202-372-
1225, or <a href="/cdn-cgi/l/email-protection#d4a2a6a494a1a7b7b3fab9bdb8"><span class="__cf_email__" data-cfemail="c2b4b0b282b7b1a1a5ecafabae">[email protected]</span></a>. 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:
    <bullet> Friday, July 24, 1998, from 9:30 a.m. to 3 p.m. at the 
Oakland Airport

[[Page 45005]]

Hilton, One Hegenberger Road, Oakland, California 94621;
    <bullet> 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
    <bullet> 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 on-
water 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         Increase of 25
                                 recovery.          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         Increase of 25
                                 recovery.          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         Increase of 25
                                 recovery.          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         No added response
                                 recovery.          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,

[[Page 45006]]

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 on-water 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 
pre-authorizations 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 pre-authorizations 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

[[Page 45007]]

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 pre-authorization in remote 
areas is not feasible because of the potential financial burden, or 
they may adopt pre-authorization 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 Sec.  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,

[[Page 45008]]

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 industry-led area exercises when those exercises 
include these resources in the scenario.
    One commenter encouraged the Coast Guard to apply this rulemaking 
to non-tank 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 Sec.  154.1065(e) and Sec.  
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 pre-
authorization 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 pre-authorized. Another commenter felt 
that governmental agencies do not have the

[[Page 45009]]

resources or motivation to develop pre-authorization 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 pre-authorizations 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 on-water 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-to-day 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

[[Page 45010]]

docket USCG-2000-7833). Further, in response to actual spills, the 
Coast Guard is accountable, as the Federal On-Scene 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 government-led 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 Sec. Sec.  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

[[Page 45011]]

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 Sec. Sec.  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 worst-case 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 Sec.  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 Sec.  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

[[Page 45012]]

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 best-suited 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 
dispersant-response 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 
pre-authorizations 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

[[Page 45013]]

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 
fixed-wing 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 goal-oriented 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 fixed-wing 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 rotary-wing 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 all-inclusive 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.

[[Page 45014]]

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 pre-
authorization 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 
dispersant-delivery 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

[[Page 45015]]

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) pre-approvals 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 pre-authorization 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 pre-authorize 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 pre-authorized 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.

[[Page 45016]]

    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 fire-monitor 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 ``fire-monitor 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 over-flight 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

[[Page 45017]]

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 transportation-related (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 on-scene 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 Sec. Sec.  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.

[[Page 45018]]

    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 
Sec. Sec.  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

[[Page 45019]]

considered over the 15-year period of analysis.

           Table 1--Total Cost, Benefit, and Cost Effectiveness by Regulatory Alternative (2009-2023)*
----------------------------------------------------------------------------------------------------------------
                                                 7 percent                               3 percent
                                 -------------------------------------------------------------------------------
           Alternative                           Benefit         Cost                     Benefit    Cost effect-
                                   Cost ($M)      (bbls)    effectiveness   Cost ($M)      (bbls)      iveness
----------------------------------------------------------------------------------------------------------------
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 cost-effective 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]
----------------------------------------------------------------------------------------------------------------
                                                               Initial costs  (2009)*    Annualized (2009-2023)
                        Requirements                         ---------------------------------------------------
                                                                   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

[[Page 45020]]

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 worst-case 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 x 3,593) the first year, followed by 28,744 hours per year 
(8 x 3,593) in subsequent years. The rule will increase the estimated 
annual burden for OSROs by 7,186 hours the first year (2 x 3,593), 
followed by 3,593 hours per year (1 x 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

[[Page 45021]]

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, Sec.  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.


0
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

0
1. The authority citation for part 154 continues to read as follows:


[[Page 45022]]


    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.


0
2. Revise Sec.  154.106 to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  
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 Sec.  154.1045.
    (8) ASTM F1779-08, Standard Practice for Reporting Visual 
Observations of Oil on Water, IBR approved for Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  154.735.
    (2) NFPA 70, National Electrical Code, 2008, IBR approved for Sec.  
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 Sec.  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 
Sec.  154.735.
    3. In Sec.  154.500, revise paragraph (d)(2) to read as follows:


Sec.  154.500  Hose assemblies.

* * * * *
    (d) * * *
    (2) Flanges that meet ANSI B16.5 or B16.24 (both incorporated by 
reference; see Sec.  154.106); or
* * * * *

0
4. In Sec.  154.510, revise paragraph (a) to read as follows:


Sec.  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 Sec.  
154.106).
* * * * *

0
5. In Sec.  154.735, revise paragraphs (l) introductory text and (s) 
introductory text to read as follows:


Sec.  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 Sec.  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)

[[Page 45023]]

(incorporated by reference; see Sec.  154.106), except that--
* * * * *

0
6. In Sec.  154.808, revise paragraph (b) to read as follows:


Sec.  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 Sec.  
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 Sec.  154.106), 
150 pound class.
* * * * *

0
7. In Sec.  154.810, revise paragraphs (d)(5)(i) and (g) to read as 
follows:


Sec.  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 Sec.  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 Sec.  154.106).
* * * * *

0
8. In Sec.  154.812, revise paragraphs (a)(1), (a)(2), and (b)(6) 
introductory text to read as follows:


Sec.  154.812  Facility requirements for vessel liquid overfill 
protection.

    (a) * * *
    (1) ANSI/NEMA WD6 (incorporated by reference; see Sec.  154.106);
    (2) NFPA 70, National Electrical Code, Articles 410-57 and 501-12; 
incorporated by reference; see Sec.  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 Sec.  154.106) which is:
* * * * *

0
9. In Sec.  154.814, revise paragraph (j)(4) to read as follows:


Sec.  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 Sec.  
154.106) with a flame screen fitted.
* * * * *

0
10. In Sec.  154.824, revise paragraph (f)(1) to read as follows:


Sec.  154.824  Inerting, enriching, and diluting systems.

* * * * *
    (f) * * *
    (1) Be installed in accordance with API Recommended Practice 550 
(incorporated by reference; see Sec.  154.106);
* * * * *

0
11. In Sec.  154.1020, add the definitions ``Dispersant-application 
platform,'' ``Dispersant Mission Planner 2,'' ``Effective Daily 
Application Capacity or EDAC,'' ``Gulf Coast,'' ``Operational 
effectiveness monitoring,'' ``Pre-authorization for dispersant use,'' 
and ``Primary dispersant staging site'' in alphabetical order to read 
as follows:


Sec.  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 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 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 pre-authorization 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.
* * * * *

0
10. In Sec.  154.1035--
0
a. Revise paragraph (b)(3)(iv);
0
b. Redesignate paragraph (b)(3)(v) as paragraph (b)(3)(ix); and,
0
c. Add new paragraphs (b)(3)(v), (b)(3)(vi), (b)(3)(vii), and 
(b)(3)(viii) to read as follows:


Sec.  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 Sec. Sec.  
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 pre-authorized, this subsection of the plan must also 
separately list the resource

[[Page 45024]]

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 Sec.  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 Sec.  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 geographic-specific 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.
* * * * *

0
11. In Sec.  154.1045--
0
a. Revise paragraph (i) as set out below;
0
b. Redesignate paragraphs (j), (k), (l), (m), and (n) as paragraphs 
(k), (l), (m), (n), and (o), respectively;
0
c. Add new paragraph (j) to read as follows;
0
d. Revise newly designated paragraph (o) to read as set out below:


Sec.  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 Sec.  
154.106). For dispersant-application systems not fully covered by ASTM 
F1413-07, such as fire monitor-type 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 Sec.  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
----------------------------------------------------------------------------------------------------------------
                                                                                          Dispersant application
                                          Response time for     Dispersant  application  dispersant: oil treated
                                        completed  application  dispersant: oil treated    in gallons all other
                                               (hours)          in gallons (Gulf Coast)            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
----------------------------------------------------------------------------------------------------------------



[[Page 45025]]

    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 Sec.  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[bond]Emergency Response[bond]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.
* * * * *

0
12. In Sec.  154.1065, add new paragraph (e) to read as follows:


Sec.  154.1065  Plan review and revision procedures.

* * * * *
    (e) If required by Sec. Sec.  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 Sec. Sec.  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.
0
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 Sec.  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 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) x (natural dissipation factor)] = available 
oil.
    E.g., 1,000,000 gal-(1,000,000 gal x .30) = 700,000 gallons of 
available oil.
    Cumulative application capacity = Available oil x planning 
application ratio (1 gal dispersant/20 gals oil = 0.05).
    E.g., 700,000 gal oil x (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 
Sec.  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 Sec.  
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 Sec.  154.1045(i)(3), which total 35,000 
gallons application:
    Tier 1--4,125 gallons--Completed in 12 hours.

[[Page 45026]]

    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 Sec.  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 Sec.  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 &       12.5K bbls/day.........  25K bbls/day...........  50K bbls/day.
     Great Lakes.
    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

0
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.


0
15. In Sec.  155.140--
0
(a) In paragraph (a), after the words ``Washington, DC 20593-0001'' add 
the phone number ``, 202-372-1251''; and,
0
(b) Add new paragraphs (c)(4), (c)(5), and (c)(6) to read as follows:


Sec.  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 Sec.  155.1050.
    (5) ASTM F1737-07, Standard Guide for Use of Oil Spill Dispersant-
Application Equipment During Spill Response: Boom and Nozzle Systems, 
incorporation by reference approved for Sec.  155.1050.
    (6) ASTM F1779-08, Standard Practice for Reporting Visual 
Observations of Oil on Water, incorporation by reference approved for 
Sec.  155.1050.
* * * * *

0
16. In Sec.  155.230, revise paragraph (b)(1)(i)(D) to read as follows:


Sec.  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 Sec.  155.140).
* * * * *

0
17. Revise Sec.  155.235 to read as follows:


Sec.  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 Sec.  155.140).

0
18. In Sec.  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,''

[[Page 45027]]

``Pre-authorization for dispersant,'' and ``Primary dispersant staging 
site'' in alphabetical order to read as follows:


Sec.  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 pre-authorization 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 dispersant-application 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.
* * * * *

0
19. In Sec.  155.1035--
0
a. Revise paragraph(c)(5)(i) and paragraph (i)(9); and,
0
b. Add paragraphs (i)(10) and (i)(11) to read as follows:


Sec.  155.1035  Response plan requirements for manned vessels carrying 
oil as a primary cargo.

* * * * *
    (c) * * *
    (5) * * *
    (i) The format and content of the ship-to-ship transfer procedures 
must be consistent with the Ship to Ship Transfer Guide (Petroleum) 
(incorporated by reference; see Sec.  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 pre-authorization 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 Sec.  155.1050(k) of this chapter;
    (ii) Identification of the platform type, resource provider, 
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(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 Sec.  155.1050(l) of this 
chapter.
* * * * *

0
18. In Sec.  155.1040--
0
a. Revise paragraph (j)(9); and,
0
b. Add new paragraphs (j)(10) and (j)(11) to read as follows:


Sec.  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 Sec.  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

[[Page 45028]]

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 Sec.  155.1050(l) of this 
chapter.
* * * * *

0
19. In Sec.  155.1050--
0
a. Remove paragraph (j);
0
b. Redesignate paragraph (p) as paragraph (q), and revise the newly 
redesignated paragraph (q);
0
c. Redesignate paragraphs (k), (l), (m), (n), and (o) as paragraphs 
(j), (m), (n), (o), and (p), respectively; and,
0
d. Add new paragraphs (k), and (l) to read as follows:


Sec.  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 Sec.  155.140). The adequacy of 
dispersant-application systems not fully covered by ASTM F1413-07, such 
as fire monitor-type 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 Sec.  155.140).

                       Table 155.1050(k)--Tiers for Effective Daily Application Capability
----------------------------------------------------------------------------------------------------------------
                                                     Response                             Dispersant application
                                                     time for    Dispersant application  dispersant: oil treated
                                                    completed   dispersant: oil treated    in gallons All other
                                                   application  in gallons (Gulf Coast)            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:

[[Page 45029]]

    (i) Appropriately located aircraft and personnel capable of meeting 
the response time requirement for oil tracking in Sec.  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 Sec.  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.

0
20. In Sec.  155.1070, add new paragraph (i) to read as follows:


Sec.  155.1070  Procedures for plan review, revision, amendment and 
appeal.

* * * * *
    (i) If required by Sec. Sec.  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 
Sec. Sec.  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.


Sec.  155.4020  [Amended]

0
21. In Sec.  155.4020, amend paragraphs (a) and (c)(1) by removing the 
date ``June 1, 2010'' and adding in its place ``February 22, 2011''.
0
22. In Appendix B to Part 155:
0
A. Amend section 7.2.4. by removing the last 3 sentences and adding 2 
sentences in their place.
0
B. Revise section 8.
0
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 Sec.  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 Sec.  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) x (natural dissipation factor)] = 
available oil.
    E.g., 1,000,000 gal-(1,000,000 gal x 0.30) = 700,000 gallons of 
available oil.
    Cumulative application capacity = Available oil x planning 
application ratio (1 gal dispersant/20 gals oil = 0.05).
    E.g., 700,000 gal oil x (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 
Sec.  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 Sec.  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 Sec.  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

[[Page 45030]]

requirements in Sec.  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 Sec.  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 &       12.5K bbls/day.........  25K bbls/day...........  50K bbls/day.
     Great Lakes.
    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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