[Federal Register Volume 75, Number 125 (Wednesday, June 30, 2010)]
[Rules and Regulations]
[Pages 37712-37720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16005]
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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
[email protected]; (Vessels) LCDR Ryan Allain, Office of Vessel
Activities, Coast Guard, telephone 202-372-1226, e-mail
[email protected]. 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 [email protected].
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