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[Federal Register: June 30, 2010 (Volume 75, Number 125)]
[Rules and Regulations]               
[Page 37712-37720]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn10-5]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 154 and 155

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

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

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

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

ACTION: Emergency temporary interim rule.

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SUMMARY: This joint Coast Guard and Environmental Protection Agency 
(EPA) temporary interim rule will suspend oil spill response time 
requirements, and certain identification and location requirements, for 
facilities and vessels

[[Page 37713]]

whose response resources are relocated in support of the Deepwater 
Horizon SONS response. By providing oil spill removal organizations 
(OSROs), and facilities and vessels with their own response resources, 
with the temporary opportunity to relocate response resources from 
current locations to the Gulf of Mexico, this rule directly assists in 
the urgently needed immediate relocation of nationwide oil spill 
response resources to the Gulf of Mexico to aid in the response to the 
Deepwater Horizon SONS. The rule also provides notice that the Federal 
On-Scene Coordinator for the Deepwater Horizon SONS has requested the 
Armed Forces to relocate Armed Forces oil spill response resources, in 
particular those of the Navy, from their current locations to the Gulf 
of Mexico to aid in the response to the Deepwater Horizon SONS.

DATES: Effective Date: This rule is effective from June 30, 2010 
through December 31, 2010.
    Comment Period: Comments and related material must reach the Coast 
Guard or EPA at the ADDRESSES listed below on or before August 16, 
2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0592; EPA-HQ-OPA-2010-0559 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: Coast Guard, 202-493-2251; EPA, 202-566-9744, 
Attention Docket ID No. EPA-HQ-OPA-2010-0559.
     Mail: Coast Guard, Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001. EPA, EPA Docket 
Center (EPA/DC), Docket ID No. EPA-HQ-OPA-2010-0559, Mail Code 2822T, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand delivery: Coast Guard, same as mail address above, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. The telephone number is 202-366-9329. EPA, EPA Docket Center 
(EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20460. Attention Docket ID No. EPA-HQ-OPA-2010-0559. 
Such deliveries are accepted only during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Documents indicated in this preamble as being available in the 
docket are part of dockets USCG-2010-0592 and EPA-HQ-OPA-2010-0559 and 
are available online by going to http://www.regulations.gov, inserting 
USCG-2010-0592 or EPA-HQ-OPA-2010-0559 in the ``Keyword'' box, and then 
clicking ``Search.'' They are also available for inspection or copying 
at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays; and EPA Docket Center 
(EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW., 
Washington, DC 20460, Public Reading Room, between 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the EPA Docket Center Public Reading Room is 202-566-1744, 
and the telephone number to make an appointment to view the docket is 
202-566-0276.
    EPA's policy is that all comments received will be included in the 
public docket without change, and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail:
    Coast Guard: (Facilities) Mr. David Condino, Ports and Facilities 
Division, Coast Guard, telephone 202-372-1145, e-mail 
David.A.Condino@uscg.mil; (Vessels) LCDR Ryan Allain, Office of Vessel 
Activities, Coast Guard, telephone 202-372-1226, e-mail 
Ryan.D.Allain@uscg.mil. If you have questions on viewing the USCG-2010-
0952 docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.
    EPA: Troy Swackhammer, U.S. Environmental Protection Agency, 
telephone 202-564-1966, e-mail swackhammer.j-troy@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials on this rule and on the environmental 
effects of this rule on the Gulf of Mexico and on the areas from which 
response resources could be deployed. All comments received will be 
posted, without change, to http://www.regulations.gov and will include 
any personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket numbers for this 
rulemaking (USCG-2010-0592; EPA-HQ-OPA-2010-0559), indicate the 
specific section of this document to which each comment applies, and 
provide a reason for each suggestion or recommendation. You may submit 
your comments and material online (via http://www.regulations.gov) or 
by fax, mail or hand delivery, but please use only one of these means. 
If you submit a comment online via http://www.regulations.gov, it will 
be considered received by the Coast Guard and EPA when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered received by the Coast Guard and EPA when it is 
received at either the Docket Management Facility or the EPA Docket 
Center. We recommend that you include your name and mailing address, e-
mail address, or telephone number in the body of your document so that 
we can contact you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2010-0592'' or ``EPA-HQ-OPA-2010-
0559'' in the ``Keyword'' box. Click ``Search'' then click on the 
balloon shape in the ``Actions'' column. If you submit comments by mail 
or hand delivery, submit them in an unbound format, no larger than 8\1/
2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
Facility, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period and may change this rule based on your comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-

[[Page 37714]]

0592'' or ``EPA-HQ-OPA-2010-0559'' and click ``Search.'' Click the 
``Open Docket Folder'' in the ``Actions'' column. You may also visit: 
the Docket Management Facility in Room W12-140 on the ground floor of 
the Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays (the Coast Guard has an agreement with 
the Department of Transportation to use the Docket Management 
Facility); or the EPA Docket Center Public Reading Room in Room 3334 of 
the EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 
20460, between 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of the dockets in http://www.regulations.gov by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review a Privacy Act notice regarding Coast Guard public dockets in the 
January 17, 2008, issue of the Federal Register (73 FR 3316).

II. Abbreviations

AMPD Average Most Probable Discharge
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
EPA Environmental Protection Agency
FOSC Federal On-Scene Coordinator
FR Federal Register
MMPD Maximum Most Probable Discharge
NEPA National Environmental Policy Act of 1969
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
OSRO Oil Spill Removal Organizations
RFA Regulatory Flexibility Act
SONS Spill of National Significance
U.S.C. United States Code
WCD Worst Case Discharge

III. Regulatory Information

    The Coast Guard and the Environmental Protection Agency (EPA) are 
issuing this temporary interim rule without prior notice and 
opportunity to comment pursuant to authority under section 4(a) of the 
Administrative Procedure Act (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 and EPA find that 
good cause exists for not publishing a notice of proposed rulemaking 
(NPRM) with respect to this rule because it is impracticable and 
contrary to public interest to do so for the reasons set forth in the 
following paragraphs.
    This temporary interim rule is part of the response to the 
explosion and sinking of the Mobile Offshore Drilling Unit ``Deepwater 
Horizon'' on April 20, 2010, causing an unprecedented crude oil 
discharge, which is a Spill of National Significance (SONS). Large 
quantities of oil continue to discharge into the waters of the Gulf of 
Mexico. Also recently, the Federal On-Scene Coordinator (FOSC) for the 
Deepwater Horizon SONS determined, after working with the appropriate 
Federal agencies, that an adequate number of available U.S. oil spill 
response vessels capable of skimming oil cannot be employed in a timely 
manner to recover the oil released from the Deepwater Horizon SONS. 
(Memorandum from Rear Admiral J.A. Watson, FOSC BP Deepwater Horizon 
Oil Spill, to National Incident Command (June 16, 2010), available in 
the docket).
    This temporary interim rule provides, in light of these exigent 
circumstances, oil spill removal organizations (OSROs) and facilities 
and vessels with their own response resources that are deploying 
response resources in support of the response to the Deepwater Horizon 
SONS, with the opportunity to relocate additional response resources 
from their current locations to the Gulf of Mexico region to aid in the 
response to the Deepwater Horizon SONS.
    This rule also confirms that the FOSC for the Deepwater Horizon 
SONS has requested that the Armed Forces relocate response resources, 
in particular those of the Navy, from their current locations within 
the continental United States to the Gulf of Mexico to aid in the 
response to the Deepwater Horizon SONS. This temporary rule is 
necessary to immediately relieve facilities and vessels from current 
regulatory requirements that would hinder OSROs, and facilities and 
vessels with response resources, in their opportunity to participate in 
the Deepwater Horizon SONS response.
    This rule is also necessary to facilitate any incorporation of 
Armed Forces response resources into cascade plans with private 
facilities and OSROs. A cascade plan contains a strategy to maximize 
arrival times and the availability of response resources for plan 
holders when identified response resources are being used to respond to 
another facility's or vessel's incident. OSRO's often contract their 
response resources to multiple facilities and vessels given the 
unlikelihood of the need to respond to simultaneous incidents among 
their clients. To account for the unlikely event of simultaneous 
incidents, OSROs utilize cascade plans to ensure each of their clients 
will have the necessary response resources and meet Coast Guard and EPA 
regulatory response time requirements, and EPA response equipment 
identification and location requirements. This strategy may include the 
identification of secondary resources, or backfilling resources that 
can be accessed through cooperative agreements as needed (cascading 
resources), through increased partnerships and the increased pooling of 
resources among several OSROs and other stakeholders.
    Publishing an NPRM is impractical because of the ongoing 
environmental and public health emergency created by the unprecedented 
release of oil from the Deepwater Horizon SONS, and the environmental 
damage which would occur during any delay in making this rule 
effective, including any time devoted to any comment period. In 
addition, publishing an NPRM is contrary to the public interest of 
addressing the ongoing environmental and public health emergency and 
minimizing environmental damage as quickly as possible in response to 
this situation.
    Under 5 U.S.C. 553(d)(3), the Coast Guard and EPA find that good 
cause exists for making this rule effective fewer than 30 days after 
publication in the Federal Register for the same reasons discussed in 
the paragraphs above.
    The Coast Guard and EPA request comments on this temporary interim 
rule, and will consider all material received as well as any evidence 
obtained from the field in order to determine whether any changes to 
this rule are necessary. The Coast Guard and EPA will perform the first 
such consideration of all material and evidence at the close of the 
comment period, and will then consider any new or additional material 
and evidence every 30 days thereafter.
    The Coast Guard and EPA have coordinated on this emergency 
temporary interim rule because many oil spill response plans address 
both Coast Guard and EPA oil spill response requirements. Similarly, 
many regulated entities utilize the same oil spill response assets for 
oil spill response plans to comply with Coast Guard and EPA oil spill 
response requirements. Additionally, States are authorized by Federal 
law to establish oil spill response standards more stringent than the 
Coast Guard and EPA. The Coast

[[Page 37715]]

Guard and EPA, based on their roles and responsibilities under 40 CFR 
300.175, will coordinate and consult with Regional Response Teams and 
Area Committees, which include State representatives, regarding the 
need to suspend Coast Guard and EPA response time requirements, and EPA 
response equipment identification and location requirements, as 
discussed below.

A. Basis and Purpose

    A major feature of the National Response System under the Federal 
Water Pollution Control Act (FWPCA) (codified at 33 U.S.C. 1251 et 
seq.) is the requirement that owners and operators of facilities and 
vessels have approved response plans that identify and ensure the 
availability of personnel and equipment, by contract or other approved 
means, to remove to the maximum extent practicable a worst case 
discharge or to mitigate or prevent a substantial threat of such a 
discharge. Coast Guard implementing regulations establish three levels 
of specific response resources and response times for: (1) A worst case 
discharge (USCG-regulated facilities and vessels WCD), (2) a maximum 
most probable discharge (MMPD), and (3) an average most probable 
discharge (AMPD). See 33 CFR parts 154 and 155. EPA implementing 
regulations under the FWPCA provide for oil spill responses at similar 
levels: (1) A worst case discharge to the maximum extent practicable 
(EPA-regulated facilities WCD), (2) discharges greater than 2,100 
gallons and less than or equal to 36,000 gallons or 10 percent of the 
capacity of the largest tank at the facility, whichever is less, 
provided that this amount is less than the worst case discharge (Medium 
Discharge), and (3) a discharge of 2,100 gallons or less, provided that 
this amount is less than the worst case discharge amount (Small 
Discharge). See 40 CFR part 112, subpart D.
    Currently, there is an urgent need to maximize the availability of 
oil spill response assets in the U.S. for use in responding to the 
unprecedented and ongoing Deepwater Horizon SONS. Those assets are 
needed in the Gulf region for the response to the Deepwater Horizon 
SONS. Therefore, the Coast Guard is temporarily releasing facilities 
and vessels subject to 33 CFR parts 154 and 155, and the EPA is 
temporarily releasing facilities subject to 40 CFR part 112, subpart D, 
who own or have under contract response resources deployed in support 
of the response to the Deepwater Horizon SONS from Coast Guard and EPA 
regulatory response time requirements, and EPA equipment identification 
and location requirements, that would otherwise preclude them from 
relocating owned response resources or releasing contracted response 
resources to be moved to the Gulf region.
    Some facilities and vessels subject to 33 CFR parts 154 and 155, 
and some facilities subject to 40 CFR part 112, subpart D, contract 
with OSROs for the availability of oil spill response resources to 
comply with Coast Guard and EPA regulatory requirements. These 
contractual obligations keep OSROs from making their response resources 
available for the response to the Deepwater Horizon SONS. Other such 
facilities and vessels have their own response resources to comply with 
these regulatory requirements, and these requirements make the 
facilities and vessels unable to make their response resources 
available for the response to the SONS. The Coast Guard and EPA are 
encouraging an increase in available response resources for the 
response to the SONS by temporarily releasing these facilities and 
vessels from the Coast Guard and EPA regulatory response time 
requirements, and EPA response equipment identification and location 
requirements, if and only if they have had their own or contracted 
response resources relocated to the Gulf of Mexico in support of the 
response to the Deepwater Horizon SONS.
    Section 1321(j)(5)(D)(iii) of 33 U.S.C. requires the identification 
and the availability of private personnel and equipment necessary to 
remove to the maximum extent practicable a worst case discharge, and to 
mitigate or prevent a substantial threat of such a discharge. Existing 
facility and vessel response plans must adequately plan for a worst 
case discharge to comply with section 1321(j)(5)(D)(iii), as well as 
additional regulatory requirements under 33 CFR parts 154 and 155 and/
or 40 CFR part 112, subpart D. Those regulatory requirements include 
response times for response resources to respond to incidents of 
varying degree. Response plans remain in effect as statutorily required 
by section 1321(j)(5)(D)(iii). The Coast Guard is temporarily 
suspending only the regulatory response time for those assets to 
respond to a USCG-regulated facilities and vessels WCD or a MMPD under 
the facility or vessel response plan, and the EPA is temporarily 
suspending only the regulatory response time requirements, and response 
equipment identification and location requirements, for those assets to 
respond to an EPA-regulated facilities WCD or Medium Discharge under 
the facility response plan, because of the unique challenges posed by 
the Deepwater Horizon spill.
    Section 1321(j)(5)(D)(iii) also requires that these response 
resources be ensured ``by contract or other means.'' Because 
contractual agreements between facility and vessel owners and OSROs are 
not the only way to satisfy the requirements of section 
1321(j)(5)(D)(iii), the Coast Guard and EPA are encouraging facilities 
and vessels to release OSROs under such contractual obligations to 
provide response resources within specified response times above the 
AMPD level and/or the Small Discharge level when those OSROs' response 
resources are deployed in response to the Deepwater Horizon SONS, and 
instead to prepare for USCG-regulated facilities and vessels WCDs and 
MMPDs and/or EPA-regulated facilities WCDs and Medium Discharges 
through ``other means,'' including cascade planning. The unique 
challenges posed by the Deepwater Horizon spill make ``other means'' 
more appropriate to ensure such capability while providing urgently 
needed response resources in the Gulf of Mexico.
    Additionally, the Coast Guard and EPA believe this rule meets the 
intent of 33 U.S.C. 1321 (j)(5)(A) both in terms of dealing, to the 
maximum extent practicable, with the catastrophic emergency presented 
by the Deepwater Horizon SONS, and in terms of meeting, to the maximum 
extent practicable, the potential worst case discharge in all other 
locations. Response resources located outside the Gulf of Mexico region 
are urgently needed in the Gulf region to assist in the Deepwater 
Horizon SONS response. The urgent need to use these assets in response 
to the Deepwater Horizon SONS affects what is the ``maximum extent 
practicable.''
    The phrase ``maximum extent practicable'' is not defined in the 
FWPCA. The phrase, however, is defined in Coast Guard regulations for 
use in 33 CFR parts 154 and 155 to mean ``the planned capability to 
respond to a worst case discharge in adverse weather, as contained in a 
response plan that meets the criteria [in Coast Guard regulations 
addressing oil spill response plans for facilities and vessels] or in a 
specific plan approved by the cognizant COTP.'' See 33 CFR 154.1020. 
This rule temporarily suspends the response time requirements for 33 
CFR parts 154 and 155, which in effect amends the regulatory definition 
of ``maximum extent practicable'' to exclude response time requirements 
for MMPD and USCG-regulated facilities and vessels WCD. The phrase is 
defined in EPA regulations for use in 40 CFR part 112

[[Page 37716]]

to mean ``within the limitations used to determine oil spill planning 
resources and response times for on-water recovery, shoreline 
protection, and cleanup for worst case discharges from onshore non-
transportation-related facilities in adverse weather. It includes the 
planned capability to respond to a worst case discharge in adverse 
weather, as contained in a response plan that meets the requirements in 
Sec.  112.20 or in a specific plan approved by the Regional 
Administrator.'' See 40 CFR 112.2. This rule temporarily suspends the 
response time requirements, and response equipment identification and 
location requirements, for 40 CFR part 112, which in effect amends the 
regulatory definition of ``maximum extent practicable'' to exclude 
response time requirements for Medium Discharges and EPA-regulated 
facilities WCD.
    Therefore, from June 30, 2010 through December 31, 2010 (or such 
other date as may be established by publication in the Federal Register 
after the effective date of this rule):
     Oil spill and facility response plan holders need not 
require response times for MMPD and USCG-regulated facilities and 
vessels WCD levels, and need not require response time requirements and 
response equipment identification and location requirements for Medium 
Discharge and EPA-regulated facilities WCD levels when their existing 
plans and contracts for response resources will be impacted due to 
providing response resources in support of the Deepwater Horizon SONS 
so that meeting those response requirements is impossible. The Coast 
Guard and EPA will allow greater use of cascade plans which, in 
combination, will protect ports and coastlines to the MMPD and USCG-
regulated facilities and vessels WCD levels and to Medium Discharge and 
EPA-regulated facilities WCD levels; and
     Owners of facilities and vessels with contracts with OSROs 
are encouraged to relieve those OSROs of their responsibility to 
respond to MMPD and USCG-regulated facilities and vessels WCD levels 
and to Medium Discharge and EPA-regulated facilities WCD levels within 
the required response times under such contracts when those OSROs' 
response resources are deployed in response to the Deepwater Horizon 
SONS.
    The Coast Guard and EPA response time requirements, and EPA 
identification and location requirements, for response resources for an 
AMPD and/or Small Discharge, as applicable, remain in effect, except 
for installations of the Armed Forces that relocate spill response 
assets to the Gulf of Mexico in response to the FOSC's request for 
assets. Those installations are authorized to drop below the Coast 
Guard and EPA response time requirements, and EPA response equipment 
identification and location requirements, for response resources for an 
AMPD and/or a Small Discharge, as applicable.
    The intent of this rule is to make available more response 
resources for use in responding to the Deepwater Horizon SONS. When the 
FOSC makes a request for response resources, the FOSC will coordinate 
with the cognizant Captains of the Port (COTPs), Regional Response 
Teams, Area Committees, EPA and the National Incident Commander in 
order to consider the relative environmental and other risks and 
impacts of requesting and accepting offers for specific response 
resources from locations outside the Gulf of Mexico.
    This action is supported by 33 U.S.C. 1321(c) and (j), and is 
promulgated under 33 U.S.C. 1321(j)(5)(A).

B. Discussion of Coast Guard Rule

    This rule adds to Coast Guard regulations a temporary, new Sec.  
154.T150 to 33 CFR part 154, and a temporary, new Sec.  155.T150 to 33 
CFR part 155. Paragraph (a) of the temporary sections sets forth 
applicability of each section. These sections only apply to facilities 
and vessels that have contracted response resources, or their own 
response resources, that are deployed to participate in the Deepwater 
Horizon SONS response.
    Paragraph (b) of the temporary sections suspend the regulatory 
response time requirements for (1) MMPD and (2) USCG-regulated 
facilities and vessels WCD. Paragraph (b) suspends these requirements 
only from June 30, 2010 through December 31, 2010. Except as described 
in paragraph (d), paragraph (c) of the temporary sections makes clear 
that the response time requirements for AMPD remain in effect for all 
facilities and vessels regulated by 33 CFR Parts 154 and 155.
    In addition to OSROs and facilities and vessels regulated by 33 CFR 
parts 154 and 155, Armed Forces installations have response resources 
that are needed to respond to the Deepwater Horizon SONS. Paragraph (d) 
of Sec.  154.T150 confirms that the FOSC has requested that the Armed 
Forces relocate response assets to support the SONS response, and 
authorizes Armed Forces installations responding to such a FOSC request 
to revise their response times below what is necessary for an AMPD in 
order to make the urgently needed response resources of Armed Forces 
installations available for deployment in support of the SONS response.
    Armed Forces installations are more able than private facilities 
and vessels to mitigate their own risk of delayed response times and 
take advantage of any cascade planning, if they relocate response 
resources to assist in the response to the Deepwater Horizon SONS. The 
National Contingency Plan at 40 CFR 300.175(b)(4) specifically 
authorizes the Department of Defense ``consistent with its operational 
requirements and upon request of the [F]OSC, provide locally deployed 
U.S. Navy oil spill equipment and provide assistance to other federal 
agencies on request.'' Because of the inherent mobility of the Armed 
Forces, an Armed Forces installation could more quickly return response 
resources to the original installation, if necessary, than an 
individual, private facility or vessel. Additionally, an Armed Forces 
installation provides its own response resources, which are dedicated 
to that installation, compared to a facility or vessel that relies on 
one or more OSROs to provide response resources which are also 
contracted to other facilities or vessels. Therefore, the FOSC has 
requested that Armed Forces installations relocate response resources 
to the urgent situation in the Gulf of Mexico as set forth in this 
temporary interim rule.

C. Discussion of EPA Rule

    This rule adds to EPA regulations a temporary, new Sec.  112.22 to 
40 CFR part 112. Paragraph (a) of the temporary section sets forth the 
applicability of this section. This section only applies to facilities 
that have contracted response resources, or their own response 
resources, that are deployed to participate in the SONS response.
    Paragraph (b) of the temporary section suspends the regulatory 
requirements for response times and the identification of response 
equipment and its location for (1) Medium Discharges and (2) EPA-
regulated facilities WCDs. Paragraph (b) suspends these requirements 
only from June 30, 2010 through December 31, 2010. Paragraph (b) also 
states that changes to facility response plans due to relocation of 
response equipment in support of the response to the Deepwater Horizon 
SONS are not required. Except as described in paragraph (d), paragraph 
(c) makes clear that the response times for Small Discharges remain in 
effect for facilities regulated by 40 CFR Part 112.
    In addition to facilities regulated by 40 CFR Part 112, Armed 
Forces installations have response resources that are needed to respond 
to the

[[Page 37717]]

Deepwater Horizon SONS. Paragraph (d) of Sec.  112.22 authorizes Armed 
Forces installations responding to a FOSC request to support SONS 
response to revise their response times below what is necessary for a 
Small Discharge in order to make the urgently needed response resources 
of Armed Forces installations available for deployment in support of 
the SONS response. The National Contingency Plan at 40 CFR 
300.175(b)(4) supports this provision for the Armed Forces.

IV. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 14 of these statutes or executive orders.

A. Regulatory Planning and Review

    This temporary interim rule is in response to an emergency 
situation and the Coast Guard and EPA must act more quickly than normal 
review procedures under Executive Order 12866, Regulatory Planning and 
Review. In accordance with section 6(a)(3)(D) of that Order, the Coast 
Guard and EPA have communicated with the Office of Management and 
Budget. The 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.
    This rule will temporarily suspend Coast Guard and EPA response 
time requirements, and EPA response equipment identification and 
location requirements, for facilities and vessels subject to 33 CFR 
parts 154 and 155 and/or 40 CFR 112, subpart D, as applicable. The 
suspension of these regulatory requirements provides industry and 
government the opportunity to relocate oil spill response resources to 
the Gulf of Mexico to aid in the response to the Deepwater Horizon 
SONS. There may be additional costs for relocating these resources.
    If OSROs, or facilities or vessels with their own response 
resources, temporarily relocate infrastructure and assets to the Gulf 
of Mexico, other regions may not have the same level of response times 
for response resources available in the event an oil spill occurred in 
those other regions. This may marginally increase the risk of delayed 
response times in those areas because there would be fewer assets 
immediately available for spill response. However, we expect these 
risks to be temporary and small, because the suspension of certain 
response time requirements is only until the end of this calendar year, 
and the Coast Guard and affected industry stakeholders will coordinate 
the positioning and deployment of additional response assets in the 
Gulf of Mexico.
    Additionally, if planned-for response resources have relocated to 
the Gulf of Mexico, cascade plans can be used to help minimize the risk 
of delayed response times. A cascade plan contains an OSRO's strategy 
to maximize arrival times and the availability of response resources 
for plan holders given the deployment of response resources. This 
strategy may include the identification of secondary or cascading 
resources through increased partnerships and the increased pooling of 
resources among several OSROs and other stakeholders. Coast Guard COTPs 
will assist in facilitating the incorporation of Armed Forces 
installations into cascade plans when revising their respective Area 
Response Plans. The inclusion of Armed Forces installations in cascade 
planning may be necessary to provide Armed Forces installations that 
have temporarily revised their response times below that necessary for 
an average most probable discharge and/or a Small Discharge with access 
to additional response resources. The inclusion of Armed Forces 
installations in cascade planning will also allow Coast Guard regulated 
facilities and vessels to access remaining Armed Forces installation 
response resources in the event they are needed.
    Additional assets are urgently needed in the Gulf region for the 
response to the unprecedented and ongoing Deepwater Horizon SONS. 
Current assets in the Gulf region have been fully utilized in response 
to the SONS. Based on the urgent need to maximize the availability of 
oil spill response assets from around the country, the Coast Guard is 
temporarily releasing facilities and vessels subject to 33 CFR parts 
154 and 155, and the EPA is temporarily releasing facilities subject to 
40 CFR part 112, subpart D, whose response plans are impacted by 
relocation of response resources in support of the response to the 
Deepwater Horizon SONS, from Coast Guard and EPA regulatory response 
time requirements, and EPA response equipment identification and 
location requirements, that would keep OSROs, and facilities with their 
own response resources, from relocating their response resources to the 
Gulf region. Some facilities and vessels subject to 33 CFR parts 154 
and 155, and some facilities subject to 40 CFR part 112, subpart D, 
contract with OSROs for the availability of response resources to 
comply with these required regulatory response times. These contractual 
obligations keep OSROs from making their response resources available 
for the response to the SONS. Other such facilities and vessels have 
their own response resources to comply with these regulatory 
requirements, and these requirements preclude the facilities and 
vessels from making their response resources available for the response 
to the SONS. By releasing these facilities and vessels from the 
required Coast Guard and EPA regulatory response times, and EPA 
response equipment identification and location requirements, the Coast 
Guard and EPA are encouraging owners and contracting facilities and 
vessels to make more response resources available for the response to 
the SONS. This will allow these additional response resources from 
these areas to begin being brought into the Gulf of Mexico to respond 
to the SONS.

B. Small Entities

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
agencies to consider whether regulatory actions would have a 
significant economic impact on a substantial number of small entities. 
The term ``small entities'' comprises small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. An RFA analysis is not required when a 
rule is exempt from notice and comment rulemaking under 5 U.S.C. 
553(b). The Coast Guard and EPA determined that this rule is exempt 
from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). 
Therefore, an RFA analysis is not required for this rule.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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 or EPA,

[[Page 37718]]

call 1-888-REG-FAIR (1-888-734-3247). Neither the Coast Guard nor EPA 
will retaliate against small entities that question or complain about 
this rule or any policy or action of the Coast Guard or EPA.

D. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, Coast Guard and EPA have made such a good cause finding, 
including the reasons therefor, and established an effective date of 
June 30, 2010. Coast Guard and EPA will submit a report, as described 
in Sec.  801(a)(1)(A), containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives, and 
the Comptroller General of the United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

E. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

H. Taking of Private Property

    This rule will not cause 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

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

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 because 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 does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

N. Environment

    This is an emergency rulemaking, and in accordance with the Council 
on Environmental Quality (CEQ) Regulations Implementing the Procedural 
Requirements of the National Environmental Policy Act (40 CFR parts 
1500-1508) and the National Environmental Policy Act of 1969 (NEPA) (43 
U.S.C. 4321-4370f), the Coast Guard, with the assistance of EPA, is 
consulting with CEQ for this action. The Coast Guard, with the 
assistance of EPA, will continue to consult CEQ as well as the National 
Oceanic and Atmospheric Administration and other key authorities in 
order to determine appropriate environmental impact analysis. The Coast 
Guard and EPA especially invite public comment on environmental impacts 
and management of relative risks of this regulatory action to address 
an immediate environmental need in the context of preparedness to meet 
potential environmental needs.

List of Subjects

33 CFR Part 154

    Alaska, Fire prevention, Hazardous substances, Oil pollution, 
Reporting and recordkeeping requirements.

33 CFR Part 155

    Alaska, Hazardous substances, Oil pollution, Reporting and 
recordkeeping requirements.

40 CFR Part 112

    Environmental protection, Facility response plan, Oil pollution, 
Oil spill response, Oil spill removal organization, OSRO, Penalties, 
Reporting and recordkeeping requirements.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 154 and 155 and the EPA amends 40 CFR part 112 as follows:

[[Page 37719]]

TITLE 33--NAVIGATION AND NAVIGABLE WATERS

PART 154--FACILITIES TRANSFERRING OIL OR HAZARDOUS MATERIAL IN BULK

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

    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. Add Sec.  154.T150 to read as follows:

Sec.  154.T150  Temporary Suspension of Requirements to Permit Support 
of Deepwater Horizon Spill Response.

    (a) Applicability. This section applies to--
    (1) Any facility described in Sec.  154.100 of this part, that has 
contracted with any oil spill removal organization (OSRO), as defined 
in Sec.  154.1020 of this part, if the OSRO's response resources, as 
defined in Sec.  154.1020 of this part, are deployed in coordination 
with the On-Scene Coordinator (OSC), as defined in 40 CFR 300.5, in 
support of the response to the Deepwater Horizon Spill of National 
Significance; and
    (2) Any facility described in Sec.  154.100 of this part, that 
owns, operates, or has under its direct control, response resources, as 
defined in Sec.  154.1020 of this part, deployed in coordination with 
the OSC, as described in 40 CFR 300.5, in support of the response to 
the Deepwater Horizon Spill of National Significance.
    (b) Suspension of certain response time requirements. From June 30, 
2010 through December 31, 2010, the stipulated response times, 
including the response times contained in any written contractual 
agreement with any OSRO, for the availability of response resources, as 
defined in Sec.  154.1020 of this part, for a maximum most probable 
discharge and a worst case discharge are not necessary to meet the 
requirements of this part.
    (c) Other response time requirements still effective. Any response 
time requirements for the availability of response resources, as 
defined in Sec.  154.1020 of this part, for an average most probable 
discharge, as required by this part, remain in effect.
    (d) Armed Forces installation planning factors. The Coast Guard 
authorizes the Armed Forces to revise Armed Forces installation 
response times to below that which is necessary to respond to an 
average most probable discharge at those installations that have 
deployed assets in support of the response to the Deepwater Horizon 
Spill of National Significance in response to a request from the OSC, 
as described in 40 CFR 300.5, for such assets.

PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION 
REGULATIONS FOR VESSELS

0
3. The authority citation for part 155 continues to read as follows:

    Authority:  33 U.S.C. 1231, 1321(j); 46 U.S.C. 3703; E.O. 12777, 
56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland 
Security Delegation No. 0170.1. 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). 
Section 155.490 also issued under section 4110(b) of Pub. L. 101-
380. Sections 155.1110 through 155.1150 also issued under 33 U.S.C. 
2735.

0
4. Add Sec.  155.T150 to read as follows:

Sec.  155.T150  Temporary Suspension of Requirements to Permit Support 
of Deepwater Horizon Spill Response.

    (a) Applicability. This section applies to--
    (1) Any ship and any tank vessel described in Sec.  155.100 of this 
part, that has contracted with any oil spill removal organization 
(OSRO), as defined in Sec.  155.1020 of this part, if the OSRO's 
response resources, as defined in Sec.  154.1020 of this part, are 
deployed in coordination with the On-Scene Coordinator (OSC), as 
defined in 40 CFR 300.5, in support of the response to the Deepwater 
Horizon Spill of National Significance; and
    (2) Any ship and any tank vessel described in Sec.  155.100 of this 
part, that owns, operates, or has under its direct control, response 
resources, as defined in Sec.  155.1020 of this part, deployed in 
coordination with the OSC, as defined in 40 CFR 300.5, in support of 
the response to the Deepwater Horizon Spill of National Significance.
    (b) Suspension of certain response time requirements. From June 30, 
2010 through December 31, 2010, the stipulated response times, 
including the response times contained in any written contractual 
agreement with any OSRO, for the availability of response resources, as 
defined in Sec.  155.1020 of this part, for a maximum most probable 
discharge and a worst case discharge are not necessary to meet the 
requirements of this part.
    (c) Other response time requirements still effective. Any response 
time requirements for the availability of response resources, as 
defined in Sec.  154.1020 of this part, for an average most probable 
discharge, as required by this part, remain in effect.

TITLE 40--PROTECTION OF ENVIRONMENT

PART 112--OIL POLLUTION PREVENTION

0
5. The authority citation for part 112 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.

0
6. Add Sec.  112.22 to read as follows:

Sec.  112.22  Temporary Suspension of Response Planning Level 
Requirements to Support Deepwater Horizon Spill Response.

    (a) Applicability. This section applies to any person who owns or 
operates--
    (1) Any facility described in Sec.  112.20 of this part, who has 
contracted with any oil spill removal organization (OSRO), as defined 
in Sec.  112.2 of this part, where the OSRO's response resources, as 
required under 112.20(h)(3) and Appendix E, Sections 4.0 and 5.0, are 
deployed in support of the response to the Deepwater Horizon Spill of 
National Significance; and
    (2) Any facility described in Sec.  112.20 of this part, who owns, 
operates, or has under direct control, response resources, as required 
under 112.20(h)(3) and Appendix E, Sections 4.0 and 5.0, deployed in 
support of the response to the Deepwater Horizon Spill of National 
Significance.
    (b) Suspension of certain response planning level requirements. 
From June 30, 2010 through December 31, 2010, facility response plan 
requirements relating to the identification of response equipment and 
its location and the stipulated response times, including the response 
times contained in any written contractual agreement with any OSRO, for 
the availability of response resources, as required under Sec.  
112.20(h)(3) and Appendix E, Sections 4.0 and 5.0, for a medium 
discharge as described in Sec.  112.20(h)(5)(iii) of this part, and for 
a worst case discharge over 2,100 gallons as described under Sec.  
112.20(h)(5)(i), are suspended. Changes to facility response plans due 
to relocation of response equipment in support of the response to the 
Deepwater Horizon Spill of National Significance, do not require a 
revision under Sec.  112.20(d).
    (c) Other response time and response equipment identification and 
location requirements still effective. Response times and response 
equipment identification and location requirements required under Sec.  
112.20(h)(3) and Appendix E, Section 3.0 for a small discharge, as 
described in 112.20(h)(5)(ii), remain in effect.

[[Page 37720]]

    (d) Armed Forces installation planning factors. Armed Forces may 
revise Armed Forces installation response times and response equipment 
identification and location requirements below that which is necessary 
to respond to a small discharge, as described in 112.20(h)(5)(ii), at 
those installations that have deployed assets in support of the 
response to the Deepwater Horizon Spill of National Significance in 
response to a request from the On-Scene Coordinator, as defined in 40 
CFR 300.5, for such assets.

    Dated: June 28, 2010.
Robert Papp,
Admiral, U.S. Coast Guard, Commandant.
Lisa P. Jackson,
Administrator, U.S. Environmental Protection Agency.
[FR Doc. 2010-16005 Filed 6-29-10; 8:45 am]
BILLING CODE 9110-04-P; 6560-50-P
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