[Federal Register Volume 65, Number 4 (Thursday, January 6, 2000)]
[Rules and Regulations]
[Pages 710-716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 154 and 155

[USCG-1998-3350]


Review of Cap Increases; Response Plans for Marine 
Transportation-Related (MTR) Facilities and Tank Vessels

AGENCY: Coast Guard, DOT.

ACTION: Notice of decision.

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SUMMARY: Coast Guard response plan regulations contain requirements for 
on-water oil recovery capacity (referred to as caps). These caps were 
scheduled to increase by 25 percent on February 18, 1998, provided the 
Coast Guard completed a review of the cap increases. The Coast Guard 
has completed its review and the 25 percent increase for on-water 
mechanical recovery will take effect 90 days from the date of this 
notice. The Coast Guard will consider a 2003 cap for mechanical on-
water removal capability and requirements for other removal 
technologies in a subsequent notice of proposed rulemaking.

DATES: The scheduled cap increase for on-water mechanical recovery 
requirements will take effect on April 5, 2000.

ADDRESSES: The Docket Management Facility maintains the public docket 
for this notice (USCG-1998-3350). The Response Plan Equipment Cap 
Review (Cap Review) is part of the docket and is available for 
inspection or copying at room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC 20590-0001, 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://dms.dot.gov. The 
Cap Review is also available for examination on the Vessel Response 
Plan Internet site at http://www.uscg.mil/vrp.

FOR FURTHER INFORMATION CONTACT: For questions on this notice, call 
Lieutenant Commander John Caplis, Office of Response (G-MOR), Coast 
Guard, telephone 202-267-6922 or by e-mail at JC<a href="/cdn-cgi/l/email-protection#7f1e0f13160c3f1c10121b0b510a0c1c1851121613"><span class="__cf_email__" data-cfemail="4a2b3a2623390a2925272e3e643f39292d64272326">[email protected]</span></a>. 
For questions on viewing materials in the docket, call Dorothy Walker, 
Chief, Dockets, Department of Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

    In 1996, the Coast Guard published two final rules entitled 
``Vessel Response Plans'' (61 FR 1052, January 12, 1996) and ``Response 
Plans for Marine Transportation-Related Facilities'' (61 FR 7890, 
February 29, 1996). Those rules finalized the 1993 interim rules (58 FR 
7330, February 5, 1993, and 58 FR 7376, February 5, 1993, for Marine 
Transportation-Related Facilities and Vessels, respectively) and are 
located in the Code of Federal Regulations (CFR) in 33 CFR parts 154 
and 155. 33 CFR 154.1045(m) and 155.1050(o) contain requirements for 
on-water oil recovery capacity (referred to as caps) that an owner or 
operator must ensure is available, through contract or other approved 
means, in planning for a worst case discharge. These caps were 
established taking into account 1993 technology, deployment capability, 
and availability of response resources.

    The 1993 and 1996 rules established a 1998 cap, a 25 percent 
increase from the 1993 levels, as a target for increasing response 
capabilities. This increase was endorsed by the Vessel Response Plan 
Negotiated Rulemaking Committee as an incentive to expand response

[[Page 711]]

capabilities within the United States to an obtainable and desirable 
level by 1998. The Coast Guard concurred with the recommendation from 
the Committee, adopted for both vessel and facility rules, to review 
the proposed cap increase before the increase would be implemented to 
determine if it remains practicable.

    On January 27, 1998, we published a ``Request for Comment'' notice 
(63 FR 3861) with regard to the Cap Review and stated that the 1993 
caps would remain in effect pending the results of that review and that 
the cap increases as originally scheduled would not be implemented 
until the review was complete.

    On June 24, 1998, we published a Notice of Meetings (63 FR 34500) 
that announced three public workshops to solicit comments on the 
potential changes to the equipment requirements within the response 
plan regulations (33 CFR parts 154 and 155) for mechanical recovery, 
dispersants, and other spill removal technologies. These workshops were 
held in Oakland, CA, on July 24, 1998, with 55 attendees; in Houston, 
TX, on August 19, 1998, with 71 attendees; and in Washington, DC, on 
September 16, 1998, with 49 attendees. We completed the Response Plan 
Equipment Cap Review (Cap Review) in May 1999, placed it in the docket 
and made it available on-line on July 26, 1999. The Cap Review can be 
viewed on the Internet at the sites listed in the ADDRESSES section.

Discussion of Comments

    The Coast Guard received 25 written comments in response to a 
``Request for Comment'' published in the Federal Register on January 
27, 1998 (63 FR 3861). In addition, we recorded 41 verbal comments 
regarding mechanical recovery caps in the summaries for three public 
workshops which were conducted in the summer of 1998. We received 37 
letters in response to the workshops. These letters were placed in the 
public docket. In general, public comment regarding an increase in the 
mechanical recovery equipment is divided, with numerous comments 
received both for and against such an increase.

Current Equipment Inventories

    Five comments stated that the cap increase is practicable since 
equipment inventories already exceed the increased cap requirements. We 
agree that equipment inventories are sufficient throughout the nation 
to support an increase in the equipment required to be ensured 
available by any individual planholder. The Cap Review indicates that 
only a few port areas do not have aggregate equipment stockpiles 
significantly in excess of the increased cap requirements, and that 
from an availability standpoint, the caps are practicable.

    Five comments suggested that the cap increase was not necessary 
because the additional mechanical recovery equipment already exists and 
is sufficient to respond to most anticipated spills. We disagree that 
the mere existence of surplus equipment in the regional response 
inventories negates the need for an increase in an individual 
planholder's equipment requirements. The Oil Pollution Act of 1990 
(Pub. L. 101-380) (OPA 90) directed that response plans should prepare 
for, to the maximum extent possible, a response to a worst case 
discharge. Scheduled increases in recovery capability were intended and 
remain necessary to close the gap between the equipment required to be 
ensured available by a planholder and that amount which would be 
necessary to respond to a worst case discharge. The equipment 
requirements, however, should not be elevated to the entire worst case 
discharge amount simply because aggregate regional inventories are now 
available at those levels. This is because the capped amounts also 
attempt to discount for operational considerations, such as limitations 
regarding the effective deployment of equipment during the first 72 
hours of the response. Total availability within regional equipment 
inventories is only one of many factors that must be considered in 
determining what is a practicable equipment cap.

    Two comments stated that the cap increases are not necessary 
because free market forces have generated the large equipment 
inventories as a result of competition between the oil spill removal 
organizations (OSROs). We agree that competition between OSROs, who 
have individually acquired enough resources each to meet the cap 
requirements, has resulted in the accumulation of large aggregate 
equipment inventories in each regional and port area. We determined 
that these accumulations are suitable and necessary, as the caps rely 
on these excess stockpiles to come into play in the event of a 
catastrophic spill, such as a worst case discharge from a large 
tankship. The cap requirements reflect the limitations of a 
planholder's ability to deploy and effectively manage equipment during 
the initial phase of a response. As such, the capped equipment tiers 
are designed to ensure an increasing availability of equipment during 
that first 72 hours of a response. If a worst case discharge were to 
occur from a large tank vessel or facility, however, the equipment 
needed to respond past that initial 72-hour period is likely to exceed 
the cap levels. As spill management team and incident command systems 
are firmly established, their ability to effectively deploy and manage 
equipment should also surpass the capped levels. The response will need 
to draw upon those aggregate inventories in excess of the caps to 
ensure the response can continue to expand in scope beyond that initial 
72-hour period.

    Five comments supported the cap increase, stating that the 
equipment has already been obtained in anticipation of the scheduled 
increase, and that a failure to implement the new requirements will 
result in additional equipment being sold off or put out of service. We 
agree that a failure to implement a cap increase may result in 
declining equipment inventories. If the equipment caps are not 
increased, economic pressures may force a sell-off of un-mandated 
equipment which may result in a lessening of our overall response 
capability.

    Three comments stated that the evaluation of equipment stockpiles 
must account for the fact that tiered response requirements allow 
equipment to be brought in from other regions and that this 
``cascading'' of equipment may strip the providing area of critical 
response capability. This was cited as a major concern where ports and 
stockpiles are separated by hundreds of miles. We acknowledge that the 
cascading of equipment out of a region may impact the ability of a 
particular OSRO or planholder to respond in that port. This possibility 
reinforces the need to maintain aggregate levels of response equipment 
within a port area that significantly exceed the cap requirements. 
These surplus inventories will ensure that a viable response capability 
is retained within one region when some of its resources are cascaded 
into another region in response to a discharge.

    Four comments stated that the equipment required under the current 
cap has been sufficient to respond to all spills since the passage of 
OPA 90 and is also sufficient to respond to the current risk of spills. 
Two comments stated the Cap Review should evaluate responses to actual 
incidents in order to determine whether more response equipment is 
necessary or not. The Coast Guard has the responsibility for issuing 
regulations that require a

[[Page 712]]

planholder to respond, to the maximum extent possible, a worst case 
discharge. The fact that a worst case discharge from a large tank 
vessel (such as an ultra-large crude carrier) or large tank facility 
has not occurred in the United States since the passage of OPA 90 does 
not mean that such a discharge could not happen. Nor does it change the 
intent of Congress that industry develop response plans that prepare 
for, to the maximum extent possible, a worst case discharge. While 
spill tendencies since the passage of OPA 90 do show a decline in large 
oil spill events, the risk of future spills still includes the 
contingency of a worst case discharge. Evaluating the cap increase with 
regard to the smaller incidents that have occurred since the passage of 
the OPA 90 does not satisfy the intent of Congress in preparing for a 
worst case discharge.

    One comment stated that the cap increase must be based upon a 
determination that the resources currently required are not sufficient 
to remove a worst case discharge. One comment stated the caps should be 
increased because the current cap levels represent a very small 
percentage of the overall capability required to respond to a worst 
case discharge from a large tankship. The Cap Review evaluated the 
scheduled increase to determine if it required resources that exceeded 
the amount necessary to respond to a worst case discharge. This 
evaluation was based on the planning assumptions and calculations 
contained within 33 CFR part 154, Appendix C and 33 CFR part 155, 
Appendix B, and compared the increased caps against the worst case 
discharge volumes found within the Area Contingency Plans throughout 
the country. The comparison revealed that the increase is still far 
below the levels of equipment that would be necessary to respond to a 
worst case discharge (see Cap Review Tables 3-9, A-C for more 
information).

Regional, State, and Local Issues

    Two comments stated that the caps should be consistent with State 
requirements. One comment stated that California has already mandated a 
25 percent increase in State equipment caps. The State of California 
Office of Spill Prevention and Response (OSPR) commented that a 25 
percent increase in the planning standards for on-water oil recovery 
volumes was both feasible and necessary to meet the best achievable 
protection of the California coast. The State of Alaska Department of 
Environmental Conservation (ADEC) has also commented that their State 
requirements exceed the existing cap requirements and that the Federal 
caps should increase in order to strengthen and stabilize equipment 
inventories. Another comment stated that the U.S. Environmental 
Protection Agency (EPA) has already implemented the 25 percent increase 
in the caps for the OPA 90 response plans required under their 
regulations. We agree that response requirements should be as 
consistent as possible across Federal agency and State requirements. 
Increasing the national response standards for caps will promote 
consistency between EPA, Coast Guard, and State cap requirements. The 
State of California OSPR, Alaska ADEC and the EPA have all commented 
that the caps should increase, both for reasons of ensuring 
consistency, as well as for ensuring an adequate level of national 
preparedness. We will continue to work with the Federal and State 
agencies to ensure consistency and as much harmony between requirements 
as possible.

    Three comments recommended that the mechanical recovery equipment 
caps should be flexible to accommodate local priorities and concerns 
and should be developed regionally. Another comment stated that the cap 
increases should not be applicable in areas shown to have lower levels 
of risk. We disagree. The equipment caps were designed to establish on 
a national level a minimum baseline for response equipment that would 
be ensured available for any given location. Similarly, the cap 
increase was designed to raise the baseline to provide consistency on a 
national basis. The use of a national standard does not impede the 
development of response inventories that are reflective of regional and 
local needs or risks. Market forces will shape a region's response 
equipment inventory irrespective of the regulatory baseline. The Gulf 
Coast region is an example where market forces have built a 
substantially larger stock of equipment than most other regions of the 
country. This larger equipment stockpile is also reflective of the 
higher regional risk of an oil spill. Conversely, the response plan 
rules allow for situations where market forces dictate that the 
sustainable level of response equipment in an area falls below the 
national baseline. Under these circumstances, planholders may request 
an alternative planning criteria from the Coast Guard.

    One comment suggested that Area Committees should establish the 
equipment requirements for each region. We disagree. The National 
Contingency Plan charges Area Committees with many responsibilities as 
outlined in the Section 311(j)(4) of the Federal Water Pollution 
Control Act (Pub. L. 92-500). These responsibilities include, but are 
not limited to, developing an area contingency plan, response 
strategies and procedures, joint contingency plans, agency 
responsibilities, and the identification of sensitive resources. Area 
Committee's do not have the responsibility for establishing response 
plan equipment requirements, nor have they been delegated that 
authority by the President under the Federal Water Pollution Control 
Act.

    One comment stated that the Coast Guard should evaluate the net 
environmental benefit in each regional area to determine if any 
equipment increases are necessary. Before the adoption of the vessel 
and facility response plan requirements, we conducted a regulatory 
assessment that determined an acceptable level of benefits would result 
from an increase in the equipment caps as a national planning standard. 
In addition, the response plan rules charge the Coast Guard with 
conducting a review to determine whether an equipment cap increase is 
practicable. Our determination of practicability has included an 
evaluation of technological, operational, and economic feasibility. Net 
environmental benefit studies are better suited for evaluating area 
specific response strategies and are beyond the scope of the analysis 
needed to evaluate the cap increase as a national planning standard.

    One comment stated that the Coast Guard should use the Preparedness 
for Response Exercise Program (PREP) as an evaluation tool in assessing 
the need for increased equipment caps at local and regional levels 
throughout the United States. We disagree. PREP was developed as a 
workable, voluntary program that would facilitate the planholders' 
compliance with the exercise requirements of OPA 90. PREP was designed 
to test preparedness of the Area, vessel, or facility level, but was 
not designed to establish regional or national equipment requirements. 
While government-led exercises do occasionally test an area contingency 
plan's worst case discharge scenario, the resultant tabletop exercise 
is not suitable for determining the baseline of equipment that should 
be ensured available by all planholders. A PREP exercise cannot test 
the adequacy of a national equipment cap in the isolation of a single 
simulated response. Nor would a series of such exercises held around 
the country be suitable for evaluating the sufficiency of an increased 
national planning standard.

[[Page 713]]

High-rate Removal Technology

    The Texas General Land Office stated that the addition of high-rate 
removal technologies is preferred to an increase in mechanical recovery 
systems, indicating that the surplus of mechanical equipment stationed 
on the Gulf Coast already exceeds the scheduled increase. We agree that 
mechanical stockpiles on the Gulf Coast already exceed the cap 
increase. However, the cap increase is necessary to raise the 
individual planholder's level of preparedness. The increase will raise 
the amount of equipment ensured available by an individual planholder, 
but will not necessarily raise the level of overall equipment located 
on the Gulf Coast. The Coast Guard acknowledges that high-rate removal 
technologies, such as dispersants, are valuable response options that 
should complement the existing mechanical recovery capabilities on the 
Gulf Coast. We are considering the addition of such technologies to the 
response plan requirements in a separate rulemaking.

    Many comments suggested that high-rate removal technologies are 
more cost-effective and capacity-enhancing than additional mechanical 
recovery and advocated the inclusion of these high-rate removal 
technologies, rather than the addition of more mechanical recovery. 
Other comments suggested that the high-rate removal technologies should 
be included, but not at the expense of mechanical recovery 
capabilities. We disagree that the scheduled increases in mechanical 
recovery should be replaced by requirements for high-rate removal 
technologies. Each response technology is unique and the situations 
where these technologies provide an environmental benefit may vary 
considerably, dependant upon the circumstances of each response. The 
Coast Guard determined that high-rate removal technologies should 
augment and not necessarily replace required mechanical recovery 
capacities. We will consider requirements for high-rate removal 
technologies in a separate response cap rulemaking. A credit provision 
currently exists within the vessel and facility regulations for 
ensuring the availability of a dispersant capability (high-rate removal 
technology), which may be applied toward the total required recovery 
capacity a planholder must ensure available. Planholders may take 
advantage of this existing credit, as appropriate, to meet the 
scheduled cap increase. However, planholders should be aware that we 
are considering the removal of this credit from the regulations as part 
of a separate rulemaking.

Recovery System Components

    One comment suggested the caps review should take a ``systems'' 
approach to evaluating the need for an equipment cap increase. We 
agree. The Cap Review, in making its determination of the 
practicability of an increase, reviewed each of the components of a 
mechanical recovery system, including containment booms, skimming 
mechanisms, pumps, storage devices, and oil-water separators. The 
review revealed that improvements to the overall technology and 
operability of mechanical recovery systems support the practicability 
of an equipment increase.

    One comment stated that the proposed increases should apply to all 
components of a mechanical recovery system, not just boom, skimmers, 
and storage devices. We agree. The cap increase as set out in 33 CFR 
154.1045(m) and 33 CFR 155.1050(o) specifically addresses the 
requirements in 33 CFR part 154, Table 5 of Appendix C and 33 CFR part 
155, Table 6 of Appendix B. These tables establish increased amounts 
for effective daily recovery capacity (EDRC) that must be ensured 
available. While EDRC is used to determine the required number of oil 
recovery devices (through calculations outlined in 33 CFR part 154, 
paragraph 6 of Appendix C and 33 CFR part 155, paragraph 6 of Appendix 
B), the increased EDRC values are also indirectly applied to the 
``system'' of resources necessary to sustain those recovery devices. 
Title 33 CFR part 154, paragraph 9.2 of Appendix C, and 33 CFR part 
155, paragraph 9.2 of Appendix B, both require that temporary storage 
for the recovered oil be ensured available in amounts equivalent to 
twice that of EDRC. Since the regulations establish a direct proportion 
between EDRC and temporary storage, an increase in EDRC requires that 
temporary storage amounts also increase by 25 percent. Title 33 CFR 
part 154, paragraph 9.1 of Appendix C, and 33 CFR part 155, paragraph 
9.1 of Appendix B, also require that sufficient numbers of ancillary 
equipment (such as trained personnel, boats, spotting aircraft, 
sorbents, booms and other resources as necessary to support the oil 
recovery devices employed), are ensured available to achieve the 
required EDRC values. While specific amounts of such ancillary 
equipment are not required to be listed in the response plans, the 
levels of ancillary equipment should increase as necessary to support 
the 25 percent increase in EDRC. It is the planholder's responsibility 
to ensure and certify that ancillary response resources are available 
to support the cap increase. We may amend the OSRO classification 
guidelines to include more detailed guidance concerning ancillary 
equipment necessary to support the cap increase in an effort to assist 
planholders and reviewers.

    One comment stated that the cap increase should not be required for 
containment boom. We disagree. Title 33 CFR 154.1045(e)(3) and 33 CFR 
part 154, paragraph 5.6 of Appendix C (for facilities), and 33 CFR 
155.1050(f)(3) and 33 CFR part 155, paragraph 5.6 of Appendix B (for 
vessels) indicate that sufficient amounts of containment and collection 
boom must be ensured available to recover the required EDRC volumes. If 
EDRC values increase as a result of the cap increase, then it is 
reasonable to assume that the amounts of containment and collection 
boom must increase proportionately. While specific amounts of 
containment and collection boom are not required to be listed in the 
response plans, the levels of boom ensured available should increase as 
necessary to support the increase in EDRC. We may amend the OSRO 
classification guidelines to include more detailed guidance concerning 
amounts of collection and containment boom necessary to support the cap 
increase.

    Two comments stated that the cap increase should increase the 
amount of shoreline protection boom that must be ensured available. One 
comment stated that the cap increases should not apply to shoreline 
protection boom requirements. The cap increase, as set out in 33 CFR 
154.1045(m) and 33 CFR 155.1050(o), applies specifically to the 
equipment requirements contained in 33 CFR part 154, Table 5 of 
Appendix C and 33 CFR part 155, Table 6 of Appendix B. Tables 5 and 6 
do not contain any requirements to increase shoreline protection boom 
amounts. Therefore, the cap increase will not affect the amount of 
shoreline protection boom required to be ensured available. The 
regulatory requirements for shoreline protection boom will not increase 
and will remain as originally outlined in 1993 (see 33 CFR 155.1050(m) 
and 33 CFR part 155, Appendix B, Table 2 for vessel response plans, and 
by 33 CFR 154.1045(k) and 33 CFR part 154, Appendix C, paragraph 5.6 
for facility response plans).

[[Page 714]]

Deployment Ability

    One comment stated that the Cap Review should consider the ability 
to deploy equipment when determining whether a cap increase is 
practicable. We agree. The cap requirements were originally designed in 
part to reflect the limitations of a planholder's ability to deploy and 
effectively manage equipment during the initial phase of a response. 
The Cap Review, in making its determination for practicability, 
evaluated the technological and operational feasibility of deploying 
increased amounts of equipment. Improvements in equipment technology 
and availability, as well as advances in the ability to track, deploy, 
and manage resources were all factors that indicate an increase is 
practicable.

    One comment stated that training and exercising of response 
personnel and equipment has improved greatly since 1993 and has 
resulted in a far greater capability to operate and deploy such 
equipment effectively. We agree that personnel training and response 
exercises have improved the ability of today's responders to deploy and 
operate response equipment effectively. The improvements to personnel 
training and response exercises support the determination that it is 
practicable to increase the cap for mechanical recovery systems.

OSRO Classification

    One comment stated that the 25 percent cap increase appears 
reasonable and should carry over to OSRO classification standards. We 
agree and the OSRO guidelines will be adjusted to reflect the increases 
in equipment required by the cap increase.

    Seven comments stated the Cap Review should focus on the quality of 
equipment, rather than increasing the quantity. We agree that quality 
is a relevant issue, but one that will be addressed outside of the Cap 
Review process. Standards or guidelines that address the quality of 
response equipment would be better addressed as revisions to the OSRO 
classification guidelines. We will review the OSRO guidelines and 
consider the question of equipment quality during that process.

    Two comments stated that the Coast Guard must revise the OSRO 
classification program before any cap increases are implemented. We 
disagree. Potential changes to the OSRO classification program are best 
addressed separately from the cap increase. Most OSRO-related issues of 
recent concern do not directly involve the cap increase and do not need 
to be addressed before the implementation of the increase. The Coast 
Guard will be addressing the OSRO-related issues in workshops that are 
planned during the next year. The Coast Guard will announce the 
schedule and agenda for these workshops in a separate Federal Register 
document.

Response Database

    One comment suggested that the government should capture 
information on personnel, vessels, and response equipment and store 
that information in a database that is universally available and 
frequently updated. We agree. Currently this information is maintained 
in the Response Resource Inventory (RRI). However, it is not 
universally available at this time. We are considering methods to 
improve or increase public accessibility to this database.

Costs

    Two comments stated that the economic costs and benefits of all OPA 
90 requirements should be considered when determining whether to 
increase the response caps. Four comments stated that a cap increase 
must consider the cost and benefits of such an increase, and is not 
practicable because the caps will increase costs without providing any 
benefits to the preparedness of a planholder to respond. And, an 
additional comment stated that OPA 90 prevention measures have lowered 
the risk of spills substantially, and the need for a cap increase 
should look at current risk rather than pre-OPA 90 risk.

    We agree. The Coast Guard has determined that the treatment of 
equipment caps increases presented in the regulatory impact analysis 
for vessel response plans that was published in January of 1993 is 
legally sufficient to support actions enumerated in this notice of 
decision. We also agree that consideration of the economic costs and 
benefits of all the OPA 90 requirements, and therefore, consideration 
of current risk rather than pre-OPA 90 risk, is a valid approach. 
Accordingly, a risk analysis based on post-OPA 90 experience will be 
completed as part of a new economic analysis. The new economic analysis 
will in turn be used as a principal program decision tool for equipment 
caps decisions scheduled for the year 2003.

    One comment stated that the Cap Review should consider the economic 
impacts of additional equipment requirements on OSROs. It stated that 
there are fewer OSROs today resulting in a reduction of the number of 
qualified and trained personnel available for a major response. 
Additional cost burdens on the OSROs may result in OSROs going out of 
business. OPA 90 and resulting vessel response plan rules that were 
mandated by OPA 90, established a demand for response products and 
services as it established a captive market for them. Market-driven 
adjustments, such as ``shakeouts'' among providers that result from 
cost pressures, are a natural occurrence which we would expect. A 
threat to the availability of qualified and trained personnel does not 
necessarily follow. The federally established demand remains and prices 
are expected to be the incentive that results in a balance with the 
supply of qualified and trained personnel available for a major 
response.

    One comment stated that the cap increase will force OSROs to 
purchase new equipment, which will reduce the amount of funds spent on 
training and exercises in the future. We disagree. The Cap Review has 
found by examination of public comment and independent research that 
most OSROs have already purchased the required equipment in 
anticipation of the scheduled increase. The majority of OSROs will not 
have to purchase new equipment to meet this cap increase. The Coast 
Guard has no evidence to suggest that funding normally spent on 
personnel training and response exercises will decrease as a result of 
equipment purchases driven by this cap increase.

Review Standard for Increase

    Two comments stated that the Cap Review must show a scientific and 
economic justification for an increase. One comment stated that the Cap 
Review must prove that a net environmental benefit would result from an 
increase. Section 4202(a) of the OPA 90 states that response plans 
shall ensure the availability of private personnel and equipment 
necessary to remove, to the maximum extent practicable, a worst case 
discharge. The Cap Review evaluated the scheduled increase against the 
standard of practicability, as required by the statute. This evaluation 
included an assessment of the technological, operational, and economic 
feasibility, and found the increase to be practicable.

Public Resources

    One comment stated that the equipment ensured available by industry 
should not increase, but should be augmented with public resources in 
order to meet the demands of a worst case discharge. We disagree. 
Section 4202(a) of OPA 90 states that response

[[Page 715]]

plans must ensure, by contract or other means approved by the 
President, the availability of private personnel and equipment 
necessary to remove, to the maximum extent practicable, a worst case 
discharge. OPA 90 clearly states that the capability to respond to a 
worst case discharge should be provided by the private sector, to the 
maximum extent practicable. The Cap Review evaluated the scheduled 
increase against the standard of practicability and found that it is 
practicable for the private sector to provide the increase.

Discussion of Decision

    In accordance with 33 CFR 154.1045(n) and 155.1050(p), we have 
completed our review of the 25 percent cap increase for on-water 
mechanical recovery capacity, and have determined that the increase, as 
originally scheduled for February 18, 1998, is practicable. This notice 
announces the results of the Cap Review and sets an implementation date 
for the scheduled increase listed in Table 1. The increase was 
originally scheduled for vessel response plans in 33 CFR part 155, 
Appendix B, Table 6, and for facility response plans in 33 CFR part 
154, Appendix C, Table 5, to take effect on February 18, 1998.

                 Table 1.--1993 and Scheduled Increases to Capability Limits on Mechanical Recovery Equipment for Vessels and Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          1993 Caps (BPD)                            Scheduled Increase (BPD)
                     Geographic area                     -----------------------------------------------------------------------------------------------
                                                              Tier I          Tier II        Tier III         Tier I          Tier II        Tier III
--------------------------------------------------------------------------------------------------------------------------------------------------------
All except rivers and canals and Great Lakes............          10,000          20,000          40,000          12,500          25,000          50,000
Great Lakes.............................................           5,000          10,000          20,000           6,250          12,500          25,000
Rivers and canals.......................................           1,500           3,000           6,000           1,875           3,750          7,500
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: BPD, barrels per day. Table 1 corrects previously published typographical errors in Great Lakes Tier I and Tier II increases.


    A team of policy and technical professionals prepared the Cap 
Review for the Coast Guard. This team had extensive experience in oil 
spill preparedness and response, USCG policy and regulatory 
development, and technical, operational, and policy considerations 
affecting mechanical recovery, dispersant, and in situ burn equipment 
and its use. The team examined peer-reviewed, scientific, and technical 
papers as well as government documents, including Federal Register 
documents, government reports, the USCG spill database (Marine Safety 
Information System (MSIS)), and comments to the docket regarding the 
proposed cap increase.

    This Cap Review focused on the open-water removal of Groups I 
through IV oils as defined in 33 CFR 155.1020. Although the recovery of 
Group V oils has become a topic of interest in recent years, the 
recovery techniques and equipment for these oils are not well 
developed, and equipment caps have not been established for such oils 
under the current regulations (per 33 CFR 154.1047 and 33 CFR 
155.1052).

    In order to assess the practicability of the scheduled 25 percent 
increase in mechanical recovery equipment, the review evaluated the 
planholders' current capability to implement the oil recovery process 
as compared with that which existed in 1993. In doing so throughout the 
United States for each generic operating environment (oceans, inland, 
Great Lakes, rivers, and canals), primarily three important elements 
were considered: technological capability, commercial or market 
availability, and the availability of existing equipment stocks to 
respond within the prescribed time limitations (Tiers I, II, and III 
response times).

    Technological capability was assessed by reviewing advances in 
systems and equipment design, which have occurred over the past 5 
years. This assessment evaluated improvements in oil spill tracking 
systems, booms and skimming devices, oil/water separation and emulsion-
breaking systems, and modular, easily transported, temporary storage 
devices. The original caps were limited, in part, due to the 
difficulties in effectively tracking multiple response operations 
simultaneously. Visual observation by aircraft and the use of remote 
sensing systems enhance oil recovery by allowing more precise direction 
of oil removal response resources to the thickest portions of the 
spilled oil. Advances in aerial surveillance and other oil tracking 
systems have improved and, when used in conjunction with improved 
command and control systems, support the deployment of increased levels 
of response equipment effectively. Improvements in command and control, 
such as the increased use of an incident command system (ICS), and the 
establishment of a network of qualified individuals (QIs), and spill 
management teams (SMTs) also support the effective deployment and 
tracking of a greater number of response resources during the initial 
phases of a spill than was possible in 1993.

    Conventional on-water mechanical recovery equipment, however, has 
not improved significantly since 1993 in terms of design efficiency or 
effectiveness. While improved storage units are more readily available 
to support skimming units, actual recovery rates are still limited by 
skimmer mechanics and pump rates. Therefore, the increases in daily 
recovery capacity require that additional recovery equipment is ensured 
available. As the efficiency of most skimming devices has not improved 
significantly, increases in recovery capacity continue to require an 
additional increase in storage at the existing storage to EDRC ratio of 
two to one (2:1). While there has been some improvement in oil/water 
separation systems, this type of technology has not been widely 
procured and is not generally available in most recovery systems. In 
situations where large recovery units, such as large seagoing oil spill 
response vessels (OSRVs), have demonstrated that installed separation 
systems have improved their ability to store and recover oil, 
allowances have been granted through the OSRO classification program. 
Situations such as these, however, do not support a generic credit or 
offset for separator systems with respect EDRC or storage requirements.

    Commercial or market availability was assessed by reviewing 
equipment currently on the market in terms of representative models and 
their intended applications as compared with that which was available 5 
years ago. The primary references for this assessment were the fourth 
and sixth editions of the World Catalog of Oil Spill Response Products 
(Schulze, 1993, 1997). The assessment revealed that the number of 
models available for each of the components of an on-water recovery 
system has increased. Equipment is

[[Page 716]]

widely available for purchase, and a healthy level of competition 
exists among manufacturers capable of maintaining a current and 
adequate stock of response equipment at increased levels. The overall 
availability of new oil spill response equipment in the commercial 
market has improved since 1993.

    The availability of existing equipment stocks for deployment to 
spills was assessed by reviewing nationwide inventories of major items 
such as booms, skimmers, skimming vessels, and temporary storage 
devices. Primary data was compiled using the Coast Guard National 
Strike Force Coordination Center's (NSFCC) Response Resource Inventory 
(RRI). The resulting equipment distribution and the daily recovery 
capacity it represented were examined for each geographic region and 
operating environment. The comparison of the scheduled cap increase 
with the existing equipment stocks available to planholders clearly 
indicated that planning for a response is not equipment limited. The 
scheduled 25 percent cap increase can easily be accommodated with the 
existing stocks of equipment available to planholders for each 
geographical region and operating environment.

    The assessments of technological capability, market availability, 
and regional availability of existing stocks, support the determination 
that the scheduled increase in caps is practicable. For a more detailed 
explanation of these findings, the Cap Review can be viewed on the 
Internet at the sites listed in the ADDRESSES section.

    Other removal technologies. The Cap Review also evaluated the 
following topics:

    a. Additional proposed increases for on-water mechanical removal 
capacity in 2003.

    b. Advances in oil tracking technology.

    c. Improvements in high-rate removal technologies such as 
dispersants or in situ burning.

    The conclusions and recommendations of the Cap Review concerning 
these topics are contained within the Response Plan Equipment Cap 
Review document. This notice does not address these topics and makes no 
changes to existing regulations or policy. However, we intend to 
address any additional cap increases for mechanical recovery or other 
removal technologies in a subsequent rulemaking. The Cap Review 
recommendations regarding these other removal technologies should be 
viewed as information only. We will consider them along with previously 
received public comments when formulating any subsequent rulemakings.

    Dated: December 28, 1999.
Joseph J. Angelo,
Acting Assistant Commandant for Marine Safety and Environmental 
Protection.
[FR Doc. 00-31 Filed 1-5-00; 8:45 am]
BILLING CODE 4910-15-U


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