1625-0066 V&FRP Final Rule

Monday,
August 31, 2009

Part IV

Department of
Homeland Security
Coast Guard

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33 CFR Parts 154 and 155
Vessel and Facility Response Plans for
Oil: 2003 Removal Equipment
Requirements and Alternative Technology
Revisions; Final Rule

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Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 154 and 155

Table of Contents

[Docket No. USCG–2001–8661]

I. Abbreviations
II. Regulatory History
III. Background and Purpose
IV. Discussion of Comments and Changes
A. General Comments
B. Mechanical Recovery
C. Dispersants
D. Aerial Tracking
V. Incorporation by Reference
VI. Regulatory Analysis
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment

RIN 1625–AA26 [Formerly RIN 2115–AG05]

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

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AGENCY: Coast Guard, DHS.
ACTION: Final rule.
SUMMARY: The Coast Guard is updating
its requirements for oil-spill removal
equipment associated with vessel
response plans and marine
transportation-related facility response
plans. This update is based on an
ongoing review of these requirements
conducted by the Coast Guard pursuant
to our regulations. These changes will
add requirements for new response
technologies and revise methods and
procedures for responding to oil spills
upon the navigable waters of the United
States, adjoining shorelines, and the
exclusive economic zone. The Coast
Guard is also revising the compliance
date for updates of vessel response
plans (VRPs) required by the Salvage
and Marine Firefighting final rule. This
extension of the compliance date will
ensure that plan holders are not
required to update their VRPs twice
within a 12-month period.
DATES: This final rule is effective
September 30, 2009. The incorporation
by reference of certain publications
listed in the rule is approved by the
Director of the Federal Register as of
September 30, 2009.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–2001–8661 and are
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: If
you have questions concerning˜ this rule,
call or e-mail LT Xochitl Castaneda,
Office of Vessel Activities, Vessel
Response Plan Program, (CG–5431)
telephone 202–372–1225, or
[email protected]. If you have questions on

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I. Abbreviations
AMPD average most probable discharge
ANSI American National Standards
Institute
API American Petroleum Institute
ASTM American Society for Testing and
Materials
BA Biodegradation Accelerant
bbls barrels
BR Bioremediation
caps Capability Limits
COTP Captain of the Port
DMP Dispersant Mission Planner
DMP2 Dispersant Mission Planner 2
DPEIS Draft Programmatic Environmental
Impact Statement
EDAC effective daily application capacity
EIS Environmental Impact Statement
EPA Environmental Protection Agency
FAA Federal Aviation Administration
FOSC Federal On-Scene Coordinator
FPEIS Final Programmatic Environmental
Impact Statement
FRFA Final Regulatory Flexibility Analysis
FRP facility response plan
FWPCA Federal Water Pollution Control
Act
IBR Incorporation by Reference
IEC International Electrotechnical
Commission
IMO International Maritime Organization
ISB in-situ burning
MMPD maximum most probable discharge
MMS Minerals Management Service
MOU memoranda of understanding
MTC Makah Tribal Council
MTR marine transportation-related
NAICS North American Industry
Classification System
NARA National Archives and Records
Administration
NCP National Contingency Plan
NEMA National Electrical Manufacturers
Association
NEPA National Environmental Policy Act

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NFPA National Fire Protection Association
NOAA National Oceanic & Atmospheric
Administration
NPRM notice of proposed rulemaking
NSFCC National Strike Force Coordination
Center
NTTA National Technology Transfer and
Advancement Act
NVIC Navigation and Vessel and Inspection
Circular
OCIMF Oil Companies International Marine
Forum
OCONUS outside the continental United
States
OPA 90 Oil Pollution Act of 1990
OSRO Oil Spill Removal Organization
PEIS Programmatic Environmental Impact
Statement
RA regulatory assessment
RRT regional response team
SBA Small Business Administration
UAMA Usual and Accustomed Marine Area
VRP vessel response plan
WCD worst case discharge

II. Regulatory History
In 1996, the Coast Guard published
final tank vessel response plan
regulations (61 FR 1052 (January 12,
1996)) and final marine transportation
related (MTR) facilities response plan
regulations (61 FR 7890 (February 29,
1996)) pursuant to the Oil Pollution Act
of 1990 (OPA 90) (Pub. L. 101–380) and
Executive Order 12777. These
regulations contain minimum on-water
oil removal equipment requirements
that plan holders (vessel and/or facility
owners and operators) transporting or
transferring petroleum oil must meet to
be prepared for an oil spill. Under these
regulations, the Coast Guard
periodically reviews existing oil
removal equipment requirements to
determine if increases in mechanical
recovery systems and additional
requirements for new response
technologies are practicable.
On January 27, 1998, the Coast Guard
published a Request for Comments (63
FR 3861) regarding our intent to
conduct a review of oil removal
equipment response plan requirements.
In the request, we stated that the 1993
oil removal equipment requirements
would remain in effect until the review
was complete. On June 24, 1998, we
published a Notice of Meetings (63 FR
34500) that announced three public
workshops. The meetings were set up to
solicit comments on potential changes
to oil removal equipment requirements
associated with the response plan
regulations (33 CFR parts 153, 154 and
155) for mechanical recovery,
dispersants, and other spill removal
technologies. The meetings were held at
the following places and times:
• Friday, July 24, 1998, from 9:30
a.m. to 3 p.m. at the Oakland Airport

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Hilton, One Hegenberger Road,
Oakland, California 94621;
• Wednesday, August 19, 1998, from
9:30 a.m. to 3 p.m. at the Houston
Marriott West Loop-by the Galleria,
1750 West Look South, Houston, Texas
77027; and
• Wednesday, September 16, 1998,
from 9:30 a.m. to 3 p.m. at the U.S.
Department of Transportation, Nassif
Building, Room 2230, 400 Seventh
Street, SW., Washington, DC 20590.
Based on comments to the Federal
Register notice and the three
workshops, the Coast Guard
commissioned an in-depth assessment
of advances in oil spill response
equipment since 1993. We completed
the assessment, ‘‘Summary Report of
Public Workshop for Response Plan
Equipment CAPs,’’ in May 1999 and,
based on its recommendations,
published a notice of decision (65 FR
710, January 6, 2000) that announced a
25-percent increase in on-water
mechanical recovery equipment for
response plans of MTR facilities and
tank vessels, effective April 6, 2000.
Furthermore, we started a regulatory
project to evaluate the potential for

additional increases in mechanical onwater recovery and new requirements
for other response technologies, which
would, if practicable, become effective
in 2003.
To ensure that a broad range of
environmental issues is adequately
considered in the rulemaking, the Coast
Guard prepared a Programmatic
Environmental Impact Statement (PEIS)
for revising the oil removal equipment
requirements for tank vessels and MTR
facilities response plans. On September
1, 2000, we published a Notice of Intent
to prepare and circulate a draft PEIS (65
FR 53335). We requested public input
on environmental concerns related to
the alternatives for increasing spill
removal equipment requirements for an
oil discharge, and suggested analyses or
methodologies for inclusion in the PEIS.
The Coast Guard received 70
comments in response to the 1998
Request for Comments and from the
three public workshops. Those
comments, as well as the
recommendation of the Federal
Government-Oil Spill Response
Industry Partnership Action Team, were

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

Alternative 2 .................

Mechanical recovery ...

Alternative 3 .................

Mechanical recovery ...
Dispersants .................
Aerial tracking .............
In-situ burning .............

Alternative 4 .................

Alternative 5 .................

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placed on the Federal rulemaking
docket for this rulemaking and
addressed in the notice of proposed
rulemaking (NPRM).
On October 11, 2002, the Coast Guard
published an NPRM in the Federal
Register (67 FR 63331) entitled, ‘‘Vessel
and Facility Response Plans for Oil:
2003 Removal Equipment Requirements
and Alternative Technology Revisions.’’
On November 19, 2002, we published a
notice of public meeting and extension
of the comment period (67 FR 69697).
The meeting was held on December 18,
2002, at Coast Guard Headquarters in
Washington, DC, and the comment
period closed on April 8, 2003.
The NPRM described five regulatory
alternatives, including a ‘‘no action’’
alternative, which emphasized either
mechanical or non-mechanical response
assets. In addition to addressing
different modes of oil-spill response, the
alternatives included differing
capabilities within each response mode.
The five regulatory alternatives
presented in the NPRM and considered
by the Coast Guard are summarized
briefly below:

Alternative 1 .................

Dispersants .................
Aerial tracking .............

Mechanical recovery ...

Increase of 25 percent for all operating areas of water (inland, nearshore, offshore, Open
Ocean, Great Lakes, rivers and canals).
No response requirements.
Required.
Increase of 25 percent for all operating areas of water (inland, nearshore, offshore, Open
Ocean, Great Lakes, rivers and canals).
Option A Effective Daily Application Capability (EDAC) for Tier 1 response time.
Required.
Credit against mechanical recovery.

Dispersants .................
Aerial tracking .............
In-situ burning .............

Increase of 25 percent for certain operating areas of water (inland, Great Lakes, rivers and
canals).
Option B EDAC for Tier 1 response time.
Required.
Credit against mechanical recovery.

Mechanical recovery ...
Dispersants .................
Aerial tracking .............
In-situ burning .............

No added response requirements.
Option B EDAC for Tier 1 response time.
Required.
Credit against mechanical recovery.

We received 116 comments on the
proposed rule in response to the NPRM,
which are discussed below in the
‘‘Discussion of Comments and Changes’’
section of this preamble.
On December 31, 2008, the Coast
Guard published the Salvage and
Marine Firefighting final rule (73 FR
80618). In that final rule, the Coast
Guard amended the vessel response
plan salvage and marine firefighting
requirements for tank vessels carrying
oil. The revisions clarified the salvage
and marine firefighting services that
must be identified in VRPs and set new

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response plan requirements for each of
the required salvage and marine
firefighting services. The final rule also
revised 33 CFR 1520 addressing when
plan holders were required to comply
with the new salvage and marine
firefighting requirements to change the
compliance date from 6 months to 18
months after the December 31, 2008,
publication of the final rule based on
public comments on the issue.
III. Background and Purpose
Under OPA 90 and Executive Order
12777, the Coast Guard is authorized to

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issue regulations requiring the owners
and operators of tank vessels and MTR
facilities to prepare and submit response
plans. OPA 90 amended the Federal
Water Pollution Control Act (FWPCA) to
require the preparation and submission
of oil spill response plans by the owners
or operators of certain facilities and
vessels. It also required these vessels
and facilities to operate in compliance
with their submitted response plans.
Vessel and facility owners or operators
were told to submit a response plan to
the Coast Guard for approval to handle,

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store, or transport oil. In 1996, the Coast
Guard published final tank vessel
response plan regulations (61 FR 1052
(January 12, 1996)) and final MTR
facility response plan regulations (61 FR
7890 (February 29, 1996)). These
regulations defined the minimum onwater oil removal equipment
requirements that plan holders
transporting or transferring petroleum
oil must meet to be prepared for an oil
spill. Under these regulations, the Coast
Guard periodically reviews the existing
oil removal equipment requirements to
determine if increases in mechanical
recovery systems and additional
requirements for new response
technologies are practicable. The Coast
Guard is promulgating this final rule in
keeping with its obligation to
periodically review and update these
requirements.

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IV. Discussion of Comments and
Changes
During the comment period, we
received 116 comments. Discussion of
comments on the NPRM, including
those from the public meetings, are
organized into sections concerning
general comments, mechanical recovery,
dispersants, and aerial tracking.
Material on the comparative merits of
mechanical recovery and dispersants is
included in the dispersants section.
A. General Comments
This section concerns in-situ burning
(ISB), costs and benefits, environmental
impacts, editorial changes, compliance
dates, and other subjects of a general
nature.
We received several comments on the
use of ISB. In the NPRM, burn credits
were proposed to offset the
requirements for mechanical recovery,
rather than requiring specific ISB
response requirements. As a result of
further Coast Guard analysis and
associated public comments received on
the Draft Programmatic Environmental
Impact Statement (DPEIS), we decided
not to include ISB or the associated
burn credits in the regulatory scheme.
Because ISB is eliminated in our final
decision, we are not addressing
comments that solely concern ISB.
However, we still evaluated ISB credits
in the Final PEIS because they remained
reasonable (but not selected)
alternatives.
We removed ISB from this rulemaking
because allowing a credit for ISB may
reduce the amount of mechanical
recovery response equipment available
in areas where ISB pre-authorizations
are in place. Removal of the ISB credit
will prevent the potential for reduction
in mechanical recovery equipment.

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Removal of the ISB credit is justified
because on-water ISB is, operationally,
too limited an option to require the
capability nationally. There are only
limited opportunities to employ ISB in
open waters. Those limitations,
however, are so severe, and the cost of
ISB equipment so high, that the Coast
Guard cannot justify requiring
stockpiling of ISB equipment in
addition to required mechanical
recovery stockpiles. Furthermore, ISB
has very limited potential for use with
on-water spills, even in the event of
catastrophic oil releases from vessels.
ISB has significant potential value for
use on land, in marshes, and other
areas. However, in those situations, the
oil is usually stabilized in place and
specialized burn booms addressed in
these regulations are either not required
at all, or are not subjected to emergency
delivery. ISB may also be useful in
response to a continuous discharge,
such as an incident involving an oil
production facility. However, such
facilities are not covered in this
rulemaking. ISB may offer some benefit
for response to oil trapped in ice. But,
in those areas, icing is typically a
seasonal situation, such that the loss of
mechanical recovery capability has not
been justified. If local area planning
committees determine that the loss of
mechanical recovery is justified, then
they may work with plan holders to
permit alternative compliance strategies
that may accommodate some tradeoff
between mechanical recovery and ISB
equipment.
For the reasons set out above, the
Coast Guard is eliminating the offer of
credit against mechanical recovery for
ISB capability. The ISB preauthorizations in place provide
sufficient incentive to encourage plan
holders to stockpile ISB equipment if
such equipment will be useful in
addressing response situations without
requiring them in the regulations.
Since vessel and facility owners or
operators are not required to contract
with Oil Spill Removal Organizations
(OSROs) for ISB resources, we removed
the ISB tables from the final rule.
Two commenters believed that the
benefits of the proposed regulations do
not justify the costs of implementation.
Furthermore, the commenters stated
that future regulations should focus on
oil spill prevention.
As technology and science advance,
regulations must change to facilitate
those advances. Regulation
implementation cost was considered in
the development of these regulations.
While the number and volume of small
spills have decreased, these regulations
are aimed at minimizing catastrophic

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spills. These regulations consider
advances in technology and scientific
understanding, and changes in regional
oil spill response preparedness efforts.
Additionally, they establish the
appropriate roles for various response
technologies, including dispersants,
ISB, and aerial monitoring.
Another commenter asked why the
Coast Guard is implementing increased
mandatory recovery capabilities when
current containment requirements and
equipment have adequately addressed
the problem.
This rule does not increase the
mechanical recovery capabilities
already required. It requires that
dispersants complement the existing
capability. Dispersants may reduce
environmental damage from an oil spill
in circumstances where use of
mechanical recovery systems is not
practical. For instance, in rough seas,
mechanical containment and recovery
systems are of little use while
dispersants are very effective at
scattering the oil and reducing shoreline
impacts.
Several commenters expressed
general concern with the costs
discussed in the assessment of the
proposed rule. However, some
commenters did not provide specific
data or additional details that would
support their concerns and, as a result,
we were unable to address their
comments directly.
One commenter was concerned with
the limited use of dispersants and the
limited availability of application
platforms for mandatory dispersant use.
This rule does not make dispersant use
mandatory. It seeks to ensure the
availability of dispersant capability
within limited areas where preauthorizations exist. The establishment
of pre-authorization areas and the
decision to use dispersants in any
incident is governed by EPA in 40 CFR
300.900 et seq. and are not within the
scope of this rulemaking.
One commenter believed this
rulemaking would have an adverse
impact on his small business because he
thought his company could no longer
act as an independent OSRO. This
commenter was responding to a change
to the OSRO classification process
carried out by the National Strike Force
Coordination Center (NSFCC). At one
time, the NSFCC, classified OSROs who
were capable of providing average most
probable discharge (AMPD) coverage to
a plan holder. Under the current
classification process implemented in
2002, the NSFCC no longer classifies
OSROs that only provide AMPD
response resources and coverage. AMPD
response resources must be ensured

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available, as applicable, by the plan
holder and verified at the Coast Guard
Captain of the Port (COTP) zone level.
This commenter was concerned that the
result would be that he could no longer
provide AMPD coverage. The comment
is outside the scope of this rulemaking.
Furthermore, AMPD coverage for
mechanical recovery remains
unchanged by this final rule.
Several commenters stated that
requiring ISB and dispersant equipment
in remote areas would place a large
financial burden on responsible parties
in certain areas of Alaska where there
are few facilities and little or no
infrastructure for response. Therefore,
they suggested the requirements be
modified for Alaskan waters outside of
Prince William Sound and Cook Inlet.
One of these commenters requested the
regulations be modified to account for
the short periods of the year when
dispersants can be successfully used in
areas such as Cook Inlet.
The Coast Guard agrees that requiring
dispersant and ISB capability in remote
areas of Alaska may impose an undue
burden on plan holders. This concern
was one of many factors in the decision
not to require ISB response equipment.
As dispersant response equipment is
only required for plan holders operating
in pre-authorization areas, and because
Alaska has no pre-authorizations as of
September 27, 2008, this concern is not
an immediate issue.
In Alaska, the Area Planning
Committee and the Regional Response
Team have at least two options within
the parameters of the regulations. They
may either determine that preauthorization in remote areas is not
feasible because of the potential
financial burden, or they may adopt preauthorization but recommend that some,
or all, plan holders be exempted from
complying in accordance with the
provisions of 33 CFR 154.108 for
facilities or 33 CFR 155.130 for vessels.
As part of the exemption request,
alternative procedures, methods, and
equivalent standards must be evaluated
and implemented if available. This
requirement would facilitate the
decision process but leave the burden of
providing the capability to the Area
Committee and Regional Response
Team. The Coast Guard has addressed
the standard case in most of the country,
but has provided sufficient flexibility at
the local and regional levels to address
local issues and concerns.
The Coast Guard strongly agrees with
the need for the regulations to be
sufficiently flexible to allow
consideration of alternatives. There are
already provisions in 33 CFR 154.1065
and 33 CFR 155.1065 intended precisely

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for this purpose. Plan holders,
especially in remote areas of Alaska,
Hawaii, and Guam, are encouraged to
work with the Coast Guard and local
response communities to determine
suitable alternatives to the regulations
that might be approved by the Coast
Guard.
Three commenters believed the Coast
Guard should specifically define the
methods used to determine compliance
with dispersant (ISB and aerial
surveillance) capability and availability.
Another commenter felt procedures
should be published to classify
dispersant providers and aerial
observation personnel. One commenter
felt that requiring plan holders to list all
resources would place an unreasonable
burden on plan holders. In addition,
several commenters stated that effective
daily application capacity (EDAC) and
other tabulated information is
inaccurate and that recalculations
should be made using the National
Oceanic & Atmospheric Administration
(NOAA) dispersant planner. One
commenter recommended that an
industry or government workgroup be
established to update the NOAA
Dispersant Mission Planner.
Effective daily application capacities
have been revised using the NOAA
dispersant planning calculator (the
updated version is now simply called
the Dispersant Mission Planner 2
[DMP2]). Therefore, rather than
including tables approximating
dispersant delivery response times in
the regulations, which would be
cumbersome to update in light of new
technology, the Coast Guard decided to
reference the DMP2, which was recently
updated by a joint government and
industry workgroup for this purpose.
Plan holders can download the DMP2
and other spill tools from the Internet at
the following URL: http://
response.restoration.noaa.gov/spilltools.
While the Coast Guard will use this
calculator to assess plan holder
dispersant plans, plan holders are not
obligated to use it as a planning tool.
Adequate dispersant application
platforms will be evaluated by the
NSFCC using the DMP2 based on an
OSRO-submitted list that identifies
sufficient and appropriately trained
personnel, specific aircraft, vessels,
delivery systems, dispersant, and any
other input parameters specified in the
calculator. The list should also provide
the location of each identified item.
Regarding availability of response
resources, the NSFCC will use the
DMP2, as specified in the regulations, to
determine response times to the scene
and EDAC. Accordingly, the definition
of DMP2 in § 155.1020 has been revised

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from the definition proposed in the
NPRM to clarify that the NSFCC will
use the DMP2 application for evaluating
dispersant classification levels. OSROs
with dispersant capability must be
identified in a vessel response plan in
the same manner as is currently
required of Coast Guard classified
OSROs [see 33 CFR 155.1035(6)–(10)]. If
the Coast Guard evaluates an OSRO for
dispersants and determines their
capability is equal to, or exceeds, the
response capability needed by the
vessel, only the OSRO and its applicable
classification need to be identified. If
the OSRO has not been evaluated for
dispersant capability the appendix must
contain comprehensive response lists.
Aircraft air speeds will be limited as
indicated in the calculator because these
are planning standards and not response
standards. Vessel speeds will be limited
to five knots as indicated in the
regulations. The NSFCC will use those
standards to determine time to
dispersant loading point, if different
from delivery resource point, and then
draw a radius from the dispersant stock
point to determine response coverage
provided by those resources. For
dispersant vessels on water, response
radius will be limited to 35 nautical
miles from home base or usual station
for tier 1 responses, 60 miles for tier 2
responses, and 180 miles for tier 3
responses.
The OSRO classification processed by
the NSFCC will ensure consistency of
assumptions and terminology used by
response service providers across the
country and will also provide feedback
for the national response resource
inventory database maintained by the
NSFCC. The classification is not
intended to certify capability.
Certification is the responsibility of the
vessel and facility response plan holders
who will rely on these services.
Vessel and facility response plan
holders must ensure these dispersant
service providers meet the response
requirements in the regulations. The
vessel response plan certification
statement required by the regulations is
the plan holder’s certification that the
cited items are available to deliver
dispersants in accordance with
applicable ASTM International
standards within the timeframes
specified in the regulations.
The NSFCC, in cooperation with
regional and local area-planning
committees, will conduct periodic visits
verifying that dispersant response
providers’ equipment and personnel are
available to provide the required
services. These visits may be
unannounced. No actual deployment
will be required as part of these visits,

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but maintenance records and material
condition may be examined.
Furthermore, plan holders must conduct
deployment exercises of these resources
at least annually. Finally, industry plan
holders must include deployment of
these resources as part of periodic
participation in government or industryled area exercises when those exercises
include these resources in the scenario.
One commenter encouraged the Coast
Guard to apply this rulemaking to nontank vessels and other facilities and
entities that might spill oil into the
environment. Otherwise, the commenter
maintained, the entire burden for
services, which may benefit these other
entities, will fall to a small segment of
the potential spillers.
As a result of the Coast Guard and
Maritime Transportation Act of 2004,
the Coast Guard is also developing
proposed response plan regulations for
non-tank vessels over 400 gross tons.
These regulations may be added to 33
CFR 155 as a new subpart. This action
may result in similar oil spill planning
standards for tank and non-tank vessels,
including the requirements for
dispersant capability and aerial
observation platforms.
With respect to other facilities and
entities, the U.S. Minerals Management
Service (MMS) has followed this
rulemaking closely and will determine
what, if any, changes they will make to
their requirements for the offshore oil
exploration and production facilities it
regulates. The Environmental Protection
Agency (EPA) and Pipeline and
Hazardous Materials Safety
Administration are also monitoring this
rulemaking for consistency and impact
on the industry segments these agencies
regulate.
Several commenters objected to the
proposed requirement for plan holders
to comply with these regulations within
8 months of publication of the final rule.
Some were particularly concerned with
the regulation’s focus on development
of a nationwide dispersant capability.
This focus will require acquisition and
outfitting of multiple aircraft in multiple
locations, along with dispersant
stockpile depots and a logistical
network to ensure compliance.
Additionally, commenters argued, it
may also require Federal Aviation
Administration (FAA) approval of
individual airframes and other
implementation obstacles. Finally,
commenters explained that because of
the cost of compliance, none of these
steps can be initiated until the nature
and details of the final rule become
clear.
The Coast Guard agrees and has
amended § 154.1065(e) and

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§ 155.1070(i) to extend the compliance
date for facility and vessel owners or
operators to 18 months from the
publication of the final rule.
One commenter suggested
renumbering Table 154.1050(k) to
154.1050(j) to conform to the numbering
convention in the rest of the regulations.
ISB tables will be removed from the
regulations because ISB resources will
no longer be used as an alternative to
offset a portion of the required
mechanical recovery equipment/
capability.
Two commenters noted that Table
154.1045(i) should include a footnote
indicating that these response time
frames are based on application in
daylight hours. For example, in Alaska,
where days are very short in winter,
these response time frames should not
apply to all tier 2 or tier 3 quantities in
a limited operational period.
Dispersant application requirements
assume 12 hours of daylight in each tier
period as a planning standard, not a
performance standard. More precisely,
tier 1 assumes that daylight begins upon
notification and ends at hour 12. For tier
2, planners can estimate daylight to
begin at hour 24 and end at hour 36 and
for tier 3, daylight begins at hour 48 and
ends at hour 60. This is a planning
standard, not a performance standard,
which presumes that average daylight
over a 12-month period is 12 hours. The
12-hour assumption permits practical
planning for an oil spill; however
seasonal variance should be taken into
account during actual response
operations. As noted previously in this
discussion of comments section, rather
than including tables approximating
dispersant delivery response times in
the regulations, we have decided to
reference NOAA’s Dispersant Mission
Planner 2 (DMP2). The DMP2 is
available from the Internet at the
following URL: http://
response.restoration.noaa.gov/spilltools.
Therefore, a footnote to the table is not
applicable.
Additionally, paragraphs (j) and (p) of
Part 155.1050 have been removed.
Two commenters wanted to know
whether vessel speed waivers
conducted under the OSRO guidelines
will be accepted or, if not, whether the
plan holder or OSRO will have to go
through a separate waiver procedure.
Existing response delivery speed
waivers will still apply if owners and/
or operators can provide transit
calculations demonstrating greater
speed of transit than the assumed five
knots over water or 35 miles per hour
over land.
Several commenters supported the
decision that only plan holders

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operating in areas where dispersant use
has been pre-authorized are required to
have dispersant resources available. One
of these commenters was concerned that
the regulations would require plan
holders operating in inland areas to
comply with the dispersant capability
requirements. Another commenter
supported exemptions for inland barges.
One commenter believed no inland
waters exist where the commenter’s
vessels operate that are pre-approved for
dispersant use.
The Coast Guard recognizes there are
no pre-authorizations in inland areas
(e.g., estuarine or freshwater) at this
time. It is possible, although not likely,
that such pre-authorizations may be
developed over time. Currently,
however, facilities and vessels operating
in inland areas, including ports and
harbors, rivers, and the Great Lakes, will
not be required to have dispersant
resources available. If pre-authorization
is established in any of those waters,
plan holders operating in the waters
covered by that pre-authorization will
be expected to comply within 24
months of the date of publication of a
Federal Register notice advising of the
pre-authorization. The 24-month
compliance time frame will allow
owners and operators to stockpile the
requisite dispersants and supporting
delivery assests.
One commenter suggested that the
final rule define facilities that handle
petroleum as primary cargo as those
whose primary business is the frequent
shipping and/or receiving of oil and
therefore are facilities where the
probability of oil releases is significantly
greater than it is for facilities that
handle oil infrequently.
The definition of the term ‘‘facilities’’
for the purposes of these regulations
was already established with the
promulgation of the facility response
plan regulations in 1993. See 33 CFR
154.1020. Additionally, the local Coast
Guard Captain of the Port can upgrade
or downgrade the classification of a
facility based on its operating status. See
33 CFR 154.1016. The frequency of
transfers at a particular location is not
the only factor determining probability
that the facility will suffer a major spill
incident.
Several commenters urged the Coast
Guard to publish a list of preauthorization areas and expedited
approval zones for both dispersant use
and ISB to clarify who is presently
required to provide this equipment. One
commenter recommended that the
regulations clearly state where
dispersant and ISB use is preauthorized. Another commenter felt that
governmental agencies do not have the

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resources or motivation to develop preauthorization agreements.
Pre-authorization areas are contained
in individual Area Contingency Plans
available at http://
www.homeport.uscg.mil under Port
Directory. Additionally, the Coast Guard
published a list of pre-authorization
areas at http://www.uscg.mil/vrp/reg/
disperse.shtml.
The Coast Guard Office of Incident
Management and Preparedness at
Headquarters (CG–533) maintains this
list in coordination with Regional
Response Teams. If new or revised preauthorizations are received, the Coast
Guard will post the document on the
Web site and publish a notice in the
Federal Register. Plan holders within
newly established pre-authorized areas
will have 24 months from the date of
publication of a pre-authorization area
to achieve compliance.
One commenter recommended that
dispersant planning only be required in
areas actually pre-authorized for
dispersant use or pre-approved with
consultation, and not in areas only
designated for quick approval of
dispersant use. The Coast Guard agrees.
To eliminate ambiguity and confusion,
the rule will apply to pre-approved
areas only.
One commenter recognized the value
of input from qualified OSROs, and
requested that the Coast Guard solicit
their expertise.
The Coast Guard agrees and has
followed a deliberate public process in
this regulatory development. Since
1998, the Coast Guard has engaged in
frequent dialogue with Federal, State,
and local government agencies,
industry, and OSROs. Throughout this
process, the Coast Guard has
incorporated many recommendations
provided by OSROs.
One commenter requested that the
regulations not require detailed
equipment lists, but instead require just
a ‘‘simple reference’’ to the OSRO
contracted by the plan holder.
The Coast Guard agrees. The
regulations will allow plan holders to
reference in their plans an OSRO that
provides dispersants, is classified by the
Coast Guard, and whose availability has
been ensured by contract or other
approved means.
One commenter agreed with the Coast
Guard that it is the sole responsibility of
the potential spiller to pay for all costs
associated with maintaining large
incident response capability.
Several commenters felt it was
premature to evaluate the proposed
regulations prior to publication of the
programmatic environmental impact
statement (PEIS). One felt the comment

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period should be extended until the
PEIS was completed.
The Coast Guard disagrees. The
comment period for the NPRM was
open for approximately 6 months [Oct
2002 to Apr 2003], and the comment
period for the DPEIS was open for 3
months [in 2005]. There was ample
opportunity to comment following
publication of the NPRM and the notice
of availability for the DPEIS.
Specifically, on June 1, 2005, we
published the DPEIS. Shortly after the
DPEIS publication we held four public
hearings in July 2005. Public comments
received on the DPEIS and the NPRM
prompted the Coast Guard to alter its
proposed action. As such, the new
alternative 5 (without the ISB) was
evaluated in the final PEIS, and was the
selected alternative.
The final PEIS has been completed. It
describes the reasonable alternatives
evaluated, the affected environment,
and the environmental impacts
associated with the alternatives on the
resources analyzed.
Three commenters were concerned
that requirements for the Gulf of Mexico
were higher than those for other areas of
the country due to the large presence of
oil and gas production facilities in that
area. Oil and gas production facilities
are not regulated by the Coast Guard, so
they should not be used in establishing
a Coast Guard requirement or to justify
an increased level of dispersant
coverage. The commenters also urged
coordination with the Minerals
Management Service (MMS), which
regulates those facilities, to ensure
consistent regulatory standards between
agencies.
The planning volumes in the Gulf of
Mexico are higher because oil tanker
traffic there is much higher than it is
elsewhere in the country. This is partly
due to the fact that much of the oil
produced in this region, and most of the
crude oil refined in the United States,
travels on ships operating in and out of
Gulf of Mexico ports. The Coast Guard
developed this rule in close cooperation
with MMS.
One commenter stated that there are
several plans which utilize
bioremediation in spill response,
contrary to what was stated in the
NPRM preamble.
The Coast Guard acknowledges that
various regional and local area planning
documents around the country
appropriately use bioremediation in
response to spills. However, none of
these plans endorses the immediate use
of bioremediation in treating large
volumes of oil on water. Rather,
bioremediation is generally seen as a
‘‘polishing tool’’ for use on shoreline

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45009

areas when further removal of
remaining oil is impracticable or
environmentally damaging. Unlike onwater mechanical recovery, on-water
ISB, and chemical dispersion,
bioremediation is not an initial response
option and does not need to be applied
within the first few days of a spill. Days
or weeks may pass before
bioremediation use is even considered
during a response. The Coast Guard
supports the use of biobased products as
a part of the response evolution and
encourages national, regional, and local
area planners to consider use of
bioremediation and bioacceleration.
However, it is not necessary for vessel
and facility owners to contract in
advance for this response tool.
A related comment recommended that
this rule include a provision to require
use of dispersants determined to be
environmentally preferable products in
accordance with Executive Orders
13101, 13134, and 13148.
Executive Order 13101 requires
consideration of waste prevention in
reference to our pollution response
policies. In this instance we have
complied with Executive Order 13101
by ensuring that our regulation does not
contradict 40 CFR Part 300—National
Oil and Hazardous Substances Pollution
Contingency Plan. Part 300 describes
the structure and procedures for
preparing for and responding to
discharges of oil and releases of
hazardous substances, pollutants, and
contaminants. Recycling is the preferred
disposal alternative cited in 40 CFR
300.310.
Executive Order 13134 encourages the
development of a comprehensive
national strategy, including research,
development, and private sector
incentives, to stimulate the creation and
early adoption of technologies needed to
make biobased products and bioenergy
cost-competitive in large national and
international markets. Although we note
the commenter’s concern with regard to
these products, the focus of this rule is
on responding to oil spills with the
technologies currently available. The
Coast Guard may consider additional
technologies as they become available.
Executive Order 13148 charges
Federal agencies with ensuring that all
necessary actions are taken to integrate
comprehensive environmental
accountability in the agencies’ day-today decisionmaking and long-term
planning processes. In this instance, we
have integrated environmental
accountability into this rulemaking
process by complying with the
mandates of the National Environmental
Protection Act (please see the final
Environmental Impact Statement on the

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docket USCG–2000–7833). Further, in
response to actual spills, the Coast
Guard is accountable, as the Federal OnScene Coordinator, for response
operations within our jurisdiction (40
CFR 300). This jurisdiction includes
oversight of disposal operations.
One commenter asked the Coast
Guard to revise or clarify the terms
‘‘inland’’ and ‘‘nearshore’’ in the
preamble.
‘‘Inland area’’ and ‘‘nearshore area,’’
as used in the preamble, are defined in
the existing vessel and facility response
plan regulations at 33 CFR 154.1020 and
155.1020.
One commenter requested that the
Coast Guard amend its ‘‘Guidelines for
the U.S. Coast Guard Oil Spill Removal
Organization Classification Program’’ to
include detailed guidance on how the
Coast Guard will evaluate, inspect, and
classify OSROs that provide dispersant
services.
Once final regulations have been
promulgated, the Coast Guard will
provide adequate guidance to industry
for classification as a dispersant OSRO.
One commenter recommended that
the Coast Guard recognize all applicable
ASTM standards for dispersants. The
ASTM represents broad-based industry
and government review of equipment
and procedural standards. The
commenter stated that all of the
applicable standards should be
referenced in the regulations.
The Coast Guard agrees and has
included a list of all relevant ASTM
standards to 33 CFR 155.140(b) and
154.140(b).
Several commenters suggested that
the Coast Guard remove the definitions
‘‘dispersant operations group
supervisor’’ and ‘‘in-situ burn
operations group supervisor’’ from the
regulations. The commenters argued
these are spill management positions,
which are appropriately described in
other Coast Guard guidance, such as the
Coast Guard Incident Management
Handbook, and are overly prescriptive
and unnecessary for the implementation
of these regulations.
The Coast Guard agrees and has
removed the terms from the definitions.
Plan holders should still ensure that
these positions are addressed in their
spill management team structures for
both plan holder-led and governmentled response operations.
One commenter suggested the
definition of ‘‘effective daily application
capacity (EDAC)’’ be amended to
include the assumption that the
application system is used in
accordance with approved standards
and within acceptable operating
parameters.

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The Coast Guard agrees that the EDAC
for dispersants assumes the application
system is used in accordance with
ASTM standards and that operations
occur within acceptable environmental
conditions (e.g., sea state, winds,
visibility) assigned in the National
Contingency Plan (NCP) (40 CFR
300.900 et seq.). The regulations
describe these parameters in detail.
However, to reinforce the intent of these
planning standards, the Coast Guard has
amended the definition of EDAC in
§§ 154.1020 and 155.1020 to include,
‘‘* * * when operated in accordance
with approved standards and within
acceptable environmental conditions’’
as specified in the NCP.
Another commenter recommended
increasing the proposed EDACs for
dispersants.
The Coast Guard disagrees. Many
factors were considered when
establishing the defined EDAC levels in
these regulations, including cost-benefit
analysis, availability of delivery
systems, stockpiling dispersants,
effective use, and statistics on volumes
of spills where dispersants could be an
effective mitigation technique. The
Coast Guard does not intend to change
the required minimum EDAC levels.
One commenter felt that the
regulations should include a minimum
threshold volume of persistent oil
transferred (or transfer capability) to
trigger the dispersant planning
requirements for facilities.
The Coast Guard concurs. The
applicability requirements for facility
response plans are found at 33 CFR
154.1015. These applicability
requirements specify that a facility
response plan is required to be
submitted for approval if a facility is
capable of transferring oil or hazardous
materials to a vessel that has a total
capacity of 250 bbls or more.
One commenter recommended that
the applicability of dispersant planning
regulations be based upon risk
assessments. Those facilities that can
demonstrate through quantitative risk
analysis that they are less likely to have
spills in pre-authorized areas should be
exempt from the regulations.
The Coast Guard disagrees. Risk
assessment tools have proven their
utility in providing ‘‘quantitative’’
support to decision-making processes
within industry and government
agencies. However, the subjective nature
of quantifying risk would make
enforcement of these regulations
difficult, if not impossible, using the
commenter’s suggested method. The
applicability of the regulations is based
upon a risk assessment conducted by
the Coast Guard. It was determined that

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those facilities and vessels subject to the
regulations pose enough risk to warrant
the requirement of this additional
equipment coverage.
One commenter felt that an
assessment that arbitrarily starts with a
25-percent increase without justification
appears to bias the work product.
The Coast Guard assumes the
commenter refers to the planned 25percent increase in mechanical recovery
that was rejected by the Coast Guard.
This topic is discussed in some detail
under the ‘‘Mechanical Recovery’’
section of this preamble, which
immediately follows this section.
One commenter recommended that
the Coast Guard clarify the language
used in referring to OSROs regarding
evaluation, approval, certification, and
classification.
In some cases, the regulations are
broad or general to avoid being
prescriptive. The NSFCC evaluates
OSRO capabilities based on
documentation submitted by an OSRO.
This documentation includes detailed
equipment specification and personnel
qualifications. Based on the
documentation review, the NSFCC
issues a classification to an OSRO. The
classification is a general estimate of an
OSRO’s generic capability and does not
imply that an OSRO can satisfy any
individual plan holder’s requirements.
Current and future guidelines for OSRO
evaluation may be found at http://
www.uscg.mil/hq/nsfweb/nsfcc/ops/
ResponseSupport/RRAB/
osroclassifiedguidelines.html. NSFCC
and Coast Guard field personnel visit
OSRO equipment sites to verify the
accuracy of documentation submitted.
One commenter asked if an OSRO
could provide services to several plan
holders. Specifically, would an OSRO
need multiple sets of supplies and
equipment to cover a minimum number
of plan holders and have the capability
to respond to simultaneous worst-case
discharges? If not, what would the
OSRO or a plan holder that contracted
their services need to provide during the
time the OSRO’s services were being
used by another plan holder or while
supplies were being restocked and/or
equipment decontaminated after a major
response?
The availability of services to meet a
plan holder’s needs is the plan holder’s
responsibility. In the event of a spill, the
Coast Guard will expect the plan holder
to respond in accordance with its plans,
regardless of other spill events that may
be occurring at the time of the response.
Therefore, in its planning process, the
plan holder should discuss with its
service providers their ability to handle
multiple incidents and the number of

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other plan holders to which the service
provider is already committed.
Also, if a plan holder’s capabilities are
diminished because service-provider
resources are committed elsewhere for a
response, that plan holder is obligated
to notify the Coast Guard Captain of the
Port (COTP) for the zone in which the
plan holder operates of: (1) The plan
holder’s reduced capability, and (2) the
plan holder’s plans for overcoming the
shortfall. This will enable the COTP to
determine whether any operating
restrictions should be imposed on the
plan holder until such shortfalls are
overcome. The Coast Guard recently
published guidance to the public
addressing this issue. See Navigation
and Vessel and Inspection Circular
(NVIC) 01–07, ‘‘Guidance on Vessel and
Facility Response Plans in Relation to
Oil Spill Removal Organization (OSRO)
Resource Movements During Significant
Pollution Events.’’
The NVIC is available on the Internet
at: http://www.uscg.mil/hq/g-m/nvic/007/NVIC%2001-07.pdf.

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B. Mechanical Recovery
Several commenters claimed that the
mechanical recovery equipment
requirement was sufficient in 1993.
They argued that, since spill volume is
considerably less today than in 1993,
increasing the requirement for
mechanical recovery equipment is
unjustified. Several of these commenters
supported the Coast Guard’s decision
not to increase mechanical recovery
caps and agreed that raising the caps
would not cause a significant benefit.
Other commenters disagreed and
favored a 25-percent increase in
mechanical recovery equipment, which
was supported by a Coast Guard report
published in 1999. See Response Plan
Equipment Caps Review, pages 1–3, and
55, which is available in the docket.
The Coast Guard has concluded that
an increase in mechanical recovery
equipment is unjustified at this time.
This rule eliminates provisions in
§§ 154.1045(i) and 155.1050(j) that
permit plan holders to offset their
mechanical recovery equipment
inventory by as much as 25 percent in
exchange for including dispersants in
their response plans. This change will
effectively increase mechanical recovery
equipment requirements for some plan
holders.
The Coast Guard also recognizes that
oil spill volume decreased significantly
since the implementation of oil spill
prevention regulations and innovative
industry measures. Because spill
volume is significantly down,
mechanical removal equipment

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inventory requirements have not
increased.
At the same time, mechanical
recovery equipment effectiveness has,
historically, been relatively low
compared to that of dispersants.
According to a 2001 International
Petroleum Industry Environmental
Conservation Association report:
Estimates of dispersant effectiveness
should be compared with estimates of the
effectiveness of physical methods, which are
more constrained by rough sea conditions
than dispersant application. When
appropriate, and under most circumstances,
dispersants can generally remove a
significantly greater proportion of oil from
the water surface than physical methods.

Dispersants and Their Role in Oil
Spill Response, p. 10 (2d Ed., November
2001).
Although the two recovery modes are
often preferred in different
environments, the effectiveness of
mechanical recovery fails to support a
conclusion that significantly increased
inventory would produce
commensurate benefits. In fact,
requiring additional mechanical
equipment above the current
requirements would not result in an
appreciable increase in the ability to
remove spilled oil from the water.
Investment in dispersants, though, is
expected to lead to significantly
improved response capability.
Additionally, in 2000, the Coast
Guard convened a panel of 11 oil spill
response experts who came from the
response industry, the Coast Guard, and
academia. That panel concluded that
‘‘there was no justification for
increasing mechanical recovery mode
amounts * * *.’’ See Regulatory
Assessment for Changes to Vessel and
Facility Response Plans: 2003 Response
Requirements for Mechanical Recovery,
Dispersants, In Situ Burning, and Aerial
Tracking, Appendix A, pages 28, 29, 34
and 35 (February 2002), which is
available on the docket. That judgment
was validated by field experience when,
immediately after Hurricanes Katrina
and Rita in 2005, ten major and medium
oil spills were cleaned up using
mechanical recovery. Despite this huge
spike in demand for mechanical
equipment, only one plan holder
requested a waiver for mechanical
equipment capability reduced below
minimum requirements.
For these reasons, the Coast Guard
agrees that an increase in mechanical
recovery equipment is unjustified. The
current total requirement for oil spill
response assets, which includes a 25percent increase in 2000 (see earlier
‘‘Regulatory History’’ section), continues
to be adequate.

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45011

While another 25-percent increase is
not supported at this time, the Coast
Guard recognizes that the amount of
mechanical recovery equipment is still
inadequate to address fully the worstcase threat, or cases where
environmental conditions render
mechanical recovery ineffective or
impracticable. For this reason, the Coast
Guard will continue to evaluate the
environmental benefits, cost efficiency,
and practicality of increasing
mechanical recovery capability
requirements. This continuing
evaluation is part of the Coast Guard’s
long-term commitment to achieving and
maintaining an optimum mix of oil spill
response capability across the full
spectrum of response modes.
Accordingly, 33 CFR 154.1045(o) and
§ 155.1050(q) were added to reflect this
future assessment.
Two commenters believed that the
existing Coast Guard regulations stated
that mechanical recovery equipment
requirements would be increased by 25
percent in 2003. One commenter
recommended an increase in capability
limits (caps) for mechanical recovery
equipment on the Great Lakes and
inland water areas if other areas gained
the benefit of additional equipment.
Another commenter noted that an
increase was never scheduled for 2003.
Previous regulations at 33 CFR
154.1045(n) and § 155.1050(p) required
the Coast Guard to establish caps in
2003, based on a review of mechanical
recovery, dispersant, ISB, and oil-spill
tracking technologies. Those regulations
required a review (Response Plan
Equipment Caps Review, completed by
the U.S. Coast Guard in May 1999; see
65 FR 710 (January 6, 2000)) but did not
require or propose an increase for any
of those technologies.
C. Dispersants
This section addresses comments on
dispersants, including their use in
remote areas, classification, delivery
platforms, ratios, environmental
impacts, response times, peer review,
compliance, and training.
Several commenters agreed that
requiring dispersant availability is
acceptable, though they pointed out that
the most likely and desirable method of
response in nearshore waters is
mechanical recovery.
The Coast Guard agrees that the most
desirable and likely method of response
in nearshore waters is, and will remain,
mechanical recovery. However, weather
conditions or spill size may create
conditions unsuitable for mechanical
recovery. Therefore, the availability of
other technologies to plan holders,
especially dispersant technology, is

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appropriate. It is also important to
emphasize that these regulations intend
only to make dispersant equipment
available. Regulations regarding actual
use in any situation are contained in the
National Contingency Plan (NCP).
Several commenters supported our
decision not to allow offsets (reductions
in the quantity of mechanical recovery
equipment required) for plan holders
maintaining dispersant capability.
One commenter supported the
development and use of new
technologies for oil spill response in
Prince William Sound, but believed
mechanical recovery remains the bestsuited recovery platform.
The Coast Guard agrees that under
certain conditions, spills in any
environment, including Prince William
Sound, are amenable to mechanical
recovery. However, under other
conditions, in seas of greater than 2 to
3 feet and winds greater than 16 knots,
even the best mechanical recovery
systems are likely to be ineffective.
Under such conditions, dispersants
provide a practicable option which
allows responders to mitigate the
negative effects of spilled oil before it
moves into sensitive nearshore and
onshore habitats. However, if a
particular area committee or regional
response team is not satisfied that there
is sufficient credible scientific data to
assess environmental tradeoffs between
dispersant use, shoreline cleanup, and
mechanical recovery, then the
committee or team is fully empowered
not to allow the use of a dispersantresponse option, as authorized under 40
CFR 300, subpart J.
Two commenters stated that the
regulations require them to maintain
equipment they may never use.
To avoid unnecessary stockpiling of
dispersant equipment, the Coast Guard
requires equipment only in areas where
it has been predetermined that
dispersants would be a viable oil spill
mitigation technique and preauthorizations have been established.
Dispersant resources will not be located
where their use was never considered or
deemed appropriate. If and when new
areas gain pre-authorization, plan
holders operating in waters covered by
that pre-authorization will be expected
to comply within 24 months of the date
of publication of a Federal Register
notice advising of the pre-authorization.
The pre-authorization agreements
indicate that dispersant use may be
appropriate and will be approved for
use in a spill incident meeting certain
predetermined criteria that may occur in
the covered area. The regulations will
ensure that the dispersant equipment
and materials are available, and that the

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cost of maintaining those resources is
shared equitably among all potential
private sector users.
Three commenters objected to the
statement that plan holders should use
private-sector aircraft and not count on
Coast Guard or other government
aircraft to apply dispersants. The
commenters argued that this would
destroy industry incentive to build a
strong dispersant capability. Both
Alaska and Hawaii are remote areas that
have relied on memoranda of
understanding (MOU) between industry
and the Coast Guard to provide Coast
Guard C–130 aircraft to serve as
dispersant platforms. The commenters
felt the proposed rule threatens these
MOU and formally requested that
Alaska and Hawaii be exempted from
the regulations because the proposed
rule does not take into account the
limited availability of aircraft in these
and other remote locations.
The Coast Guard agrees that provision
of response resources is the
responsibility of members of the
regulated industry who are potential
spillers. In fact, these regulations are
based on the Coast Guard’s
determination that it is economically
and technically feasible for the
regulated industry to contract with the
response industry to establish and
maintain these resources at the levels
specified in the regulations. For the
Coast Guard or any other government
agency to offer these resources in place
of the response industry may place the
government in competition with
industry and is contradictory to 33
U.S.C. 1321. Even in remote areas like
Hawaii, tier 2 and tier 3 resources can
be provided through contract with
mainland dispersant providers.
Nevertheless, the Coast Guard
acknowledges that U.S. Air Force
Reserve and Coast Guard aircraft have
been made available through MOUs
with local regional response
communities in Hawaii, Alaska, the
Caribbean, and Ohio. The Coast Guard
will re-evaluate MOUs periodically to
ensure an appropriate balance of private
resources is maintained. Therefore,
Alaska and Hawaii are not exempted
from the regulations.
The previously mentioned MOUs are
limited in scope and degrees of
commitment. They are intended to
provide support in excess of
commercially-available resources unless
government resources are engaged in
other missions. All agree to provide
aircraft, if available. In all cases,
however, the government considers this
a secondary mission, on a ‘‘not to
interfere with primary missions’’ basis.
There is no assurance that aircraft or

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crews will be available at any time. In
fact, for a period of time beginning in
2003, the U.S. Air Force Reserve had to
suspend its participation in its MOU
with the Coast Guard, due to overseas
commitments. Likewise, Coast Guard
aircraft and crews routinely support law
enforcement, maritime security, and
search and rescue missions. For these
reasons, availability of government
resources is not assured and does not
satisfy the regulatory standard or intent.
We received several comments
relating to Federal aircraft resources.
One commenter suggested that the Coast
Guard should allow State and industry
stakeholders to work with the Coast
Guard in each area to define a strategy
tailored to that area’s unique needs,
including the use of government
aircraft. This commenter also
questioned the volume of dispersants
required for stockpiles and the potential
‘‘shelf life’’ of stockpiles. Another
commenter requested that the Coast
Guard clarify the availability of Federal
(aircraft) resources in the event of a
major oil spill. And a different
commenter urged that guidance
language be provided and alternative
compliance strategies (for aircraft
resources) be included in the
regulations. This commenter was
particularly concerned about the ability
to use Coast Guard C–130 aircraft as
dispersant platforms in the Hawaiian
Islands.
The Federal Water Pollution Control
Act (FWPCA) and existing regulations
clearly require the plan holder to rely on
private sector resources, not government
resources (e.g., Coast Guard C–130
aircraft), in meeting its response needs.
This is partly due to the concern that
the response is a private sector
responsibility, the equipment is
available in the private sector, and, if
the government were to provide the
equipment, the government would be
interfering with the private sector and
free enterprise.
All plan holders everywhere are
affected by the limited availability of
aircraft, the volume of dispersant to be
stockpiled, and the ‘‘shelf life’’ of these
products. This is primarily a tier 1 issue
where, in Alaska, Hawaii, and other
select areas of the country, dispersant
resources will have to be locally
available. The regulations recognize the
burden this imposes by limiting the
amount of dispersant that needs to be
delivered in the first 12 hours of the
incident, so that local areas can rely on
aircraft that are typically more readily
available in the local area.
For tier 2 and tier 3, it is feasible for
commercial aircraft, strategically located
on the mainland, to reach either Alaska

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or Hawaii within established time
frames. The Coast Guard anticipates that
the plan holders will ultimately
establish a small number of strategic
dispersant and aircraft stockpiles on the
U.S. mainland that will be fully capable
of satisfying all tier 2 and tier 3
requirements in nearly all remote areas
of the U.S., including Alaska and
Hawaii. Therefore, those areas should
not be unfairly burdened in achieving
compliance with the regulations.
The Coast Guard has drafted these
regulations to establish a national
standard for compliance by industry. It
is not appropriate to exempt
automatically any area of the U.S. from
these regulations. At the same time, the
regulations do include a provision for
alternate planning criteria and deviation
from the regulations. This is outlined in
33 CFR 154.107 for Facilties and 33 CFR
155.1065(f) for vessels.
For example, while the regulations
require facility plan holders to rely on
commercial, fixed-wing aircraft, local
COTPs will have the flexibility to accept
the use of rotary-wing aircraft in facility
response plans, especially for tier 1
response, if the plan holder can
demonstrate an equivalent level of
delivery capability. Alternatives for
facilities required to comply with these
regulations are permitted under 33 CFR
154.107 and alternatives for vessels are
permitted under the provisions of 33
CFR 155.1065(f).
One commenter stated that OSRO
dispersant capability should not be
classified by the NSFCC without input
from the local COTP.
The Coast Guard agrees that local
input into the classification process
followed by the NSFCC is very
important. The NSFCC is well aware of
its responsibility to solicit local input
into any deviation from the regulatory
standard in classifying an OSRO. The
OSRO guidelines, as well as guidance in
the field, have reiterated that the OSRO
classification process merely validates
compliance with a national standard.
Furthermore, Vessel and Facility plan
holders are required to certify, to the
Coast Guard, that response plans meet
the applicable standards in accordance
with 33 CFR 154.1060(b) and 33 CFR
155.1065(b), respectively.
Several commenters felt that the Coast
Guard should specifically reevaluate
restrictions that limit dispersant aircraft
to 50 percent of the dispersant delivery
vehicle capability. One commenter
recommended that the minimum
percentage of dispersants delivered by
fixed-winged aircraft be increased from
50 percent to 90 percent due to the
limited capability of helicopter and
vessel delivery systems. Another

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commenter recommended that the
maximum flexibility for application
platforms be maintained at the tier 1
level, and the 50-percent fixed-wing
dispersant platform requirement be
applied against the entire 60-hour
application planning period. One
commenter suggested the regulations be
goal-oriented and non-prescriptive of
aircraft in order to ensure long-term
applicability of the regulations. Another
commenter wanted dispersants applied
from vessels to be considered as
fulfilling part of the required tier 1 spill
response.
The regulatory requirement is not
intended to restrict reliance on fixedwing aircraft. During an actual response,
the responsible party or plan holder
would ensure more application
resources be brought to bear according
to the needs of the particular incident.
Fifty percent is a minimum, not a
maximum. The regulations are goaloriented in that they prescribe the
amount of dispersant a plan holder
should have available to be applied. The
Coast Guard has recognized the
effectiveness of fixed-wing aircraft and
will require that 50 percent of
dispersant platforms be fixed-wing
aircraft. If more fixed-wing aircraft are
necessary to deliver the required
dispersants, then the plan holder, in
consultation with the FOSC, will take
appropriate response action. To avoid
creating regulations that are too
prescriptive, the 50-percent requirement
is intended as a minimum, and ensures
a viable dispersant capability.
One commenter disagreed with the
proposed requirement that 50 percent of
dispersant capability be delivered by
fixed-wing aircraft for all tiers. The
commenter stated that fixed-wing
aircraft are expensive to maintain on
standby and that helicopters and vessels
could be used to meet tier 1
requirements in certain operating areas.
The Coast Guard agrees that vessels
and rotary-wing aircraft can meet tier 1
response times under certain scenarios
if stationed in close proximity to spills.
Accordingly, provisions of alternate
compliance are allowed in the existing
regulations. Requiring 50-percent fixedwing dispersant capability was based
upon several planning factors, including
the geographic scale of coverage in the
offshore environment, the time it takes
to arrive on scene, and the application
time. As these regulations require
planning for tier 1 operations up to 50
miles from shore, and because forward
vessel speed is calculated at a standard
speed of five knots, vessels cannot be
relied upon to meet tier 1 capabilities.
Furthermore, rotary-wing aircraft are
restricted in their ability to operate in

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the offshore environment and their
dispersant-carrying capacities are very
limited. Therefore, the regulations
require planning for use of fixed-wing
aircraft. Because these speeds and
capacity limitations are assumptions,
the regulations allow consideration of
alternatives, such as the use of rotarywing aircraft and vessels, if it can be
demonstrated that alternate systems
adequately address special local
conditions. Refer to 33 CFR 154.107 and
33 CFR 155.1065(f) for provision to
allow alternatives.
One commenter stated that the
dispersant-aircraft tables should identify
aircraft by make and model number.
This was done for the Douglas-made
aircraft (DC–3, DC–4, DC–6) and the
Lockheed (C–130), but not for
helicopters and air tractors.
The regulations are intended to serve
as a planning tool, which approximates
capability instead of serving as an allinclusive guide. The Coast Guard
recognizes that not only are there
different air frames produced by a single
manufacturer, but that individual
airframe types (e.g., C–130) include
various models, not all of which are
suitable for dispersant use. Therefore, it
would be impossible to list all possible
types of aircraft that might be used for
such operations. The Coast Guard will
rely on the plan holder to certify that
specific aircraft contracted for
dispersant application are suitable for
this service and meet all FAA
requirements for this service. Rather
than listing all aircraft, plan holders are
encouraged to correlate non-listed
aircraft with the listed aircraft that most
closely matches the available aircraft’s
capabilities.
One commenter believed aircraft
should be required to apply dispersants
using a racetrack pattern, which is best
for spraying dispersants.
The Coast Guard will rely on the
Dispersant Mission Planner 2 (DMP2)
for calculating dispersant-application
capabilities of all dispersant-delivery
vehicles. Plan holders are encouraged to
do likewise. The DMP2 relies on best
practices, including application patterns
and turning times, in calculating
application parameters.
One commenter stated that safety
requires all aircraft considered for use
50 nautical miles from shore and
beyond to be multi-engined with ample
fuel capacity.
The Coast Guard agrees that safety is
of the greatest importance. The
regulations require that all aircraft and
pilots be fully certified by the
appropriate agencies, including the
FAA, for the operating environment and
intended mission of the aircraft.

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Because aircraft safety requirements are
outside the scope of this rulemaking, we
cannot impose the requirements
suggested by the commenter.
Two commenters questioned the use
of a 1:20 dispersant ratio and suggested
that some dispersants have shown that
they can be effective when applied at
ratios of 1:50 or higher, under fairly
rigorous conditions. One commenter
recommended that the column showing
oil treated, in tables 154.1045(i) and
155.1050(k), be deleted because it is
unrelated to regulatory criteria for
gallons of dispersant to be applied.
The commenter was concerned that
listing the amount of oil treated may
cause confusion for the response
community about the amount of oil that
might be dispersed in a response. The
commenter argued the 1:20 dispersant
application ratio is only a rough
approximation based on current
technology. If advances are made in
dispersant formulations and greater
evidence of dispersant effectiveness is
gained, then application ratios may
climb to 1:30, 1:50, or even higher. The
column in Tables 154.1045(i) and
155.1050(k) cannot be deleted without
impacting dispersant capability because
the listed quantity of oil treated is for
planning purposes only, it cannot be
deleted without impacting dispersant
capability. The tables list the maximum
amount of oil to be treated for planning
purposes only. The tables also identify
the minimum quantity of dispersants
needed to be ensured by contract or
other approved means. The ratios have
been constructed and listed as such to
eliminate the need to revise the
regulations at a later date based upon
dispersant improvements.
Another commenter recommended
using the tables in 154.1045(i) and
155.1050(k) as the basic standard and
requiring that appropriate application
be determined by the plan holder given
existing environmental conditions.
The quantity of oil treated as
identified in table 154.1045(i) and table
155.1050(k) is the basic standard, or
minimum amount, for which the plan
holder must contract. The tables set the
planning standard to ensure that the
equipment and materials are in place
and available to respond to a worst-case
scenario. The Coast Guard opted to use
the 1:20 ratio as a planning standard,
based on the fact that many of the preauthorization agreements around the
country cite application at a ratio of
1:20. Moreover, this ratio represents an
optimal situation for oil spills that are
less responsive to dispersion, either due
to the oil type when initially spilled, or
to the effects of weathering on the oil
over time.

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With regard to the plan holder’s use
of dispersants in an actual response
scenario, this rule does not address the
environmental conditions for use.
Dispersant use conditions are set out in
the Area Contingency Plans and
Regional Contingency Plans, as
appropriate, pursuant to 40 CFR
300.910.
One commenter noted that structuring
the rule to specify minimum dispersant
spraying capacity over time rather than
for the amount of oil to be dispersed is
an implied acknowledgement that oil
slick dispersal will not be in accordance
with the 1:20 assumption.
The Coast Guard agrees. The 1:20
ratio is a planning standard; it is not a
performance standard. It provides clear
guidance to the plan holder regarding
the quantity of dispersant to be
stockpiled along with the number and
types of delivery vehicles. In actual
response, it is anticipated that initial
applications may be made at ratios of,
for example, 1:50 or 1:100, depending
on oil type, but with the overall ratio
average of 1:20 for the entire spill.
One commenter supported the
requirement for aerial observers and
offered that the observers could serve
three roles:
1. Providing information on spill
location, size and trajectory;
2. Providing guidance to response
assets, including recommendations for
response tactics; and
3. Evaluating effectiveness of
dispersant application.
Another commenter recommended
that plan holders be required to have the
equipment and capability necessary to
implement the special monitoring of
applied response technologies protocols
for dispersant monitoring.
The Coast Guard agrees. By requiring
training in protocols outlined in ASTM
F1779–08, including NOAA’s ‘‘Open
Water Oil Identification Job Aid for
Aerial Observation’’ and ‘‘Characteristic
Coastal Habitats,’’ aerial observers
should be prepared to fulfill all three of
these roles. See 155.1050(l)(2)(iii).
One commenter wanted the proposed
Appendix B Table 7 or Table 8 to reflect
the requirement for dedicated vessel
and aircraft crews for the dispersantdelivery platforms.
The Coast Guard disagrees and feels
this requirement would be too
prescriptive and costly. Additionally,
these tables were removed and replaced
by the DMP2 planning tool.
One commenter supported the
requirement for advanced planning for
dispersant use, as the window of
opportunity to use a dispersant once an
oil spill has occured is limited.

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Another commenter suggested that
the Coast Guard should raise its spill
planning volume for dispersant use
from a requirement to treat 26,190
barrels of oil to a requirement to treat
100,000 barrels of oil.
We believe the commenter is
referencing the methodology which
resulted in the tables found in 33 CFR
154.1045(i) and 155.1050(k). Current
regulations governing response plans
limit the total required amount of all
equipment for which vessel and facility
owners and operators must contract for
in advance (mechanical recovery,
dispersant, etc.) to the predicted loss of
cargo from two tanks of a vessel rather
than total loss of all cargo. The Coast
Guard will not increase required
dispersant stockpile levels at this time.
The Coast Guard acknowledges that
spills may occur that far exceed the
volumes contemplated in the
regulations. However, the Coast Guard
has determined that a limit of 26,190
barrels is the optimum practical limit
based on the costs and benefits in
establishing and maintaining massive
quantities of response equipment,
combined with the limits of dispersant
technologies. This number is based on
a 40,000-barrel spill reduced by
evaporation, natural dispersion, and
other weathering effects.
The commenter stated that a
dispersant requirement is unnecessary
and inappropriate because it has limited
utility and is subject to the
government’s decision. The commenter
believes that the government should not
fund such limited utility initiatives.
Response options are designed to
have specific utility for the
circumstances they address, but the
responsibility for maintaining the
infrastructure to apply those options
rests with the potential spillers.
One commenter objected to the
specification that at least 50 percent of
the dispersant capability be provided by
fixed-wing aircraft and suggested that
plan holders be required to have the
capability without reference to specific
delivery systems.
The Coast Guard has included
references to specific dispersant
application platforms by way of the
Dispersant Mission Planner 2 (DMP2) in
an effort to aid plan holders in the
planning process. The platform
specifications are intended as a tool to
describe baseline presumptions about
those capabilities. Plan holders are free
to develop capabilities within those
parameters or to suggest reasonable
alternatives to them if those alternatives
can be shown to achieve equal coverage.
The Coast Guard has determined that
the fixed-wing aircraft is the most

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efficient and rapidly deployed
dispersant delivery system. While
deviations from the 50-percent
requirement will be considered on a
case-by-case basis, the Coast Guard
believes that, given current technology,
a minimum of 50 percent is achievable.
We received several comments
relating to dispersant testing and
effectiveness. Two commenters believed
that the Coast Guard’s rationale could be
strengthened if the final rule included
data and citations supporting the
conclusion that dispersant technologies
have been sufficiently documented and
would, in certain circumstances,
produce net environmental benefits
compared to reliance on mechanical
methods alone. Another commenter
recommended extensive testing of
dispersant and ISB use and, in
particular, the long-term effects of
dispersed oil.
The Coast Guard only partially agrees
with these commenters, because the
primary source documents for our
conclusions are the National Academy
of Sciences’ ‘‘Using Oil Spill
Dispersants on the Sea’’ and the
dispersant use pre-authorization
agreements adopted around the country
in accordance with the requirements of
40 CFR 300.900, subpart J of the
National Oil and Hazardous Substances
Pollution Contingency Plan. In
accordance with those EPA regulations,
the EPA, Department of the Interior,
Department of Commerce, and State
trustee agencies to the area committees
and regional response teams determine
whether pre-authorization for
dispersants or other technologies are
appropriate, and if so, under what
conditions.
This reliance on trustee agencies to
make such decisions was specifically
put in place to ensure that any decision
to use these technologies was taken in
the best interest of the environment; that
is, to produce a net environmental
benefit. We are confident that the
decisions of Federal and State trustee
agencies at the regional and local level
are sound, rational, and in the best
interest of the environment. The
purpose of these regulations is to
support those decisions by making
available to the regions and areas the
tools they need for execution. Therefore,
it is our position that the matters of
further testing/research concerning
dispersant and/or ISB use, and the
effects of dispersed oil, fall outside the
scope of this rulemaking.
One commenter recommended that
the Coast Guard should communicate
information to the regional response
teams (RRTs) and other stakeholders
about conditions unfavorable for

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dispersant use in order to help guard
against indiscriminant use. The
conditions can include material
discharged, weather conditions,
receiving waters, environmental risk,
and other factors.
The Coast Guard maintains constant
communications with the RRTs and the
Coast Guard Federal On-Scene
Coordinators (FOSCs) regarding this and
related subjects. Since 1998, the Coast
Guard has sponsored a series of
facilitated consensus workshops at the
local level that brought natural resource
trustees together with local responders
to examine the ecological risks
associated with dispersants and other
oil spill response options.
In partnership with the other Federal
agencies of the National Response
System, the Coast Guard actively
supports the activities of the science
and technology Committee of the
National Response Team, whose
function is to provide scientific and
technical data of this nature to RRTs
and area committees alike. The Coast
Guard is a major sponsor of the
International Oil Spill Conference,
which convenes every three years and
serves as a forum to disseminate the
latest information on dispersants and
other technologies to the response
community. The CAPS Report (1999)
points out that dispersants have reduced
effectiveness with certain types of oil
and when used in conditions of reduced
salinity or calm winds.
Two commenters expressed concern
that the proposed rule would result in
requests for dispersant use in areas that
are inappropriate, such as freshwater.
Therefore, the commenters suggested
that certain plan holders, such as those
likely to discharge oil only into
freshwater, be exempted. Another
commenter opposed dispersant and
aerial tracking requirements for inland
tank barge operations.
The Coast Guard agrees. Dispersants
should not be used in areas that are
inappropriate, and we support the
continued reliance on the dispersant use
decision processes established by the
EPA in 40 CFR 300, subpart J. The rule
exempts any plan holder not operating
in pre-authorized areas from compliance
with the dispersant equipment
requirements. However, because the
EPA rule does not specifically exclude
freshwater from dispersant use
consideration, the Coast Guard
regulations are flexible enough to allow
imposition of requirements in those
areas, should RRTs and area committees
deem such use environmentally
beneficial.
One commenter was concerned that
the Coast Guard’s inclusion of a

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proposed start time for dispersant
application of 7 hours is overly
prescriptive and may prevent earlier
responses. Another commenter felt the
time frames for aerial dispersant
applications are too aggressive and
recommended that dispersants be
available for application outside the
continental United States (OCONUS) in
24 hours, at low volume ports in 12
hours, and at high volume ports in 6
hours.
The dispersant operations start time is
a planning standard and represents the
maximum time allowed for planning to
respond anywhere. It is expected that
most actual response operations will
begin in less than 7 hours and not over
7 hours. The Coast Guard believes that
there should be no variation in the time
frame, regardless of the location (e.g.,
OCONUS) or the volume of the port (low
vs. high). Basing response times upon
the proximity of the spill location to
environmentally sensitive areas may be
more accurate, but the regulations do
not intend to be so prescriptive.
One commenter was concerned about
linking dispersant requirements to
regional response team (RRT) preapprovals because this would place
undue pressure on RRTs in inland areas.
If inland pre-approvals are established
in the future, the available supply of
dispersants and aircraft would likely be
sufficient without further regulatory
action.
The Coast Guard disagrees. In fact,
this rule is necessary to ensure that
dispersant capabilities are available to
meet the needs identified in the preauthorization agreements. Without the
existence of the pre-authorizations, it
would not be practicable to require
dispersant capability. On the other
hand, it is not this rule, but the National
Contingency Plan (NCP), that puts
pressure on inland RRTs to make
decisions regarding these kinds of
countermeasures. The requirement for
RRTs to decide whether or not to preauthorize various countermeasures is
contained in 40 CFR 300.910. While
there may be sufficient equipment
available to support dispersant use
needs in newly pre-authorized areas,
plan holders in those newly preauthorized areas would not be required
to ensure the availability of this
equipment by contract or other
approved means unless specifically
required by State or Federal agencies.
One commenter stated that the use of
dispersants creates the erroneous
impression that there is no need to
prevent a spill in the first place if
dispersants are available as a response
option.

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The Coast Guard disagrees. All spill
response options need to be considered
to the extent that they may limit the
damage caused by the oil itself once a
spill has occurred. However, the Coast
Guard continues to emphasize in all its
programs that prevention is its highest
priority. The Coast Guard will continue
to pursue appropriate standards for
vessel construction, inspection, and
maintenance programs, while
emphasizing competence and training
requirements for vessel crews, vessel
navigational and operations tools, and
procedures.
One commenter suggested adding a
requirement that tier 2 and tier 3 aerial
platforms be capable of applying
dispersants in pre-authorized areas,
ranging out to 200 nautical miles.
Requiring dispersant capability
ranging out to 200 miles is not justified,
and this conclusion is supported by a
combination of factors. The low
percentage of spills occurring more than
50 nautical miles offshore combined
with the limited time frame for effective
use of dispersants means that only a
small volume of oil spills would benefit
from this additional requirement. The
limited benefits would not justify the
cost to maintain this level of
preparedness.
Several commenters felt that firemonitor type dispersant application
systems should be held to the same high
level of independent peer review testing
and documentation as aircraft and boat
spray boom applications.
The Coast Guard agrees. The intent of
the regulations is to apply a similar
level of review to fire monitors as is
currently applied to vessel and aircraft
application systems, both of which are
subject to ASTM standards. Sections
154.1045(i)(2)(iii) and 155.1050(k)(2)(iii)
were amended to clarify that ‘‘firemonitor applicators and adequate
criteria must be documented by
presentation of independent, peer
reviewed scientific evidence (e.g., an
ASTM standard) * * *.’’
Two commenters claimed that the
2005 National Research Council report
entitled ‘‘Understanding Oil
Dispersants: Efficacy and Effects’’
supported the conclusions that
insufficient information exists to
responsibly pre-approve application of
dispersants. On the contrary, the study
states on page 11 that, ‘‘the information
base used by decision makers dealing
with spills in areas where the
consequences of dispersant use are
fairly straightforward, has been
adequate (for example, situations where
rapid dilution has the potential to
reduce the possible risk to sensitive
habitat enough to allow the

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establishment of pre-approval zones).’’
The study explains further on page 12
that, ‘‘[i]n deep open-water settings
(deeper than 10 m or roughly 30 feet)
where there is rapid dilution of the
dispersed oil, impacts to water-column
and benthic resources are likely to be
low, thus most of the pre-approval
zones are defined in terms of distance
offshore and minimum water depths.’’
One commenter stated that a
requirement for a logistics support plan
should be added to the regulations to
ensure that the dispersant systems can
be effectively and timely deployed.
The regulations need not be so
prescriptive. The regulations are already
goal-oriented and require the ability to
apply dispersants.
One commenter noted the limited
capability of vessel dispersant systems
to meet tier 1 capabilities because of
their speed of advance of five knots.
The five knots speed of advance is
provided for planning purposes only.
OSROs may request nonstandard
classification from the NSFCC. If the
supporting documentation
accompanying their request is
acceptable to the NSFCC, the OSRO may
use a higher vessel speed for their
classification.
One commenter supported the use of
dispersants in appropriate settings in
the offshore environment. As discussed
above, the Coast Guard agrees that
dispersant use in certain conditions is
appropriate.
Another commenter felt that training
in dispersant strategies should be
required as part of the proposed
dispersant planning requirements.
OSROs will need to meet certain
training proficiencies as required in
their certification processes. The
regulations do not seek to be as
prescriptive as the commenter suggests.
D. Aerial Tracking
This part concerns availability,
capability, response time, technology,
applicability, and training.
One commenter felt that requiring
plan holders to have aerial tracking
capability is unnecessary because this
capability is essential to reduce spill
costs and to improve cleanup efficiency.
Therefore, plan holders will have aerial
tracking capability available without
being required to do so.
Based on the May 1999 Response Plan
Equipment CAPs Review and the
conclusions of an expert panel
documented in the February 2002
Regulatory Assessment for the NPRM,
the Coast Guard is certain that aerial
tracking capability is necessary and
appropriate to ensure efficient cleanup
operations. However, the Coast Guard

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recognizes that unless required by
regulations to do so, industry will be
insufficiently motivated to guarantee
availability of these services, especially
in remote offshore areas where these
services are most likely to be needed.
Additionally, it is in the best interest of
the plan holder to have trained aerial
observer capability to reduce
inefficiency of response resource
utilization, thus reducing unnecessary
response costs.
Several commenters stated that aerial
tracking requirements are supported but
should account for refueling periods
and be limited to daylight hours only.
They felt that aerial tracking
requirements were too prescriptive and
should better reflect the realities of
different aerial missions. Examples of
these missions include the need to
return to base for fuel, download
pictures, and change crews, and the
recognition that for mechanical recovery
operations at least, it is not necessary to
have aircraft continuously on-scene for
an entire operational period.
The Coast Guard agrees. The
regulations were modified to make it
clear that plan holders should plan to
have aerial tracking capabilities
available to support response operations
for entire daily operational periods. As
operations are not routinely conducted
during darkness, these operational
periods will be less than 10 hours per
day when there is less than 10 hours of
daylight, and longer than 10 hours when
there is more than 10 hours of daylight.
The 10-hour operational period is
offered as a planning target. An
individual plan holder may choose to
plan more precisely, based on actual
length of daylight operational periods.
Additionally, the regulations do not
intend to require continuous on-scene
surveillance; they require sufficient
surveillance to ensure effective
employment of response resources.
Continuous aerial tracking is
appropriate to track dispersant
applications. For mechanical recovery
operations, routine over-flights are
expected versus continuous
surveillance. The purpose of the overflight is to track oil trajectories and to
reorient on-water equipment to the
largest patches of oil.
Several commenters objected to the
need to have aerial tracking resources
on-scene within 3 hours of an incident.
This objection is based on the fact that,
in the early hours of an incident, the
government typically relies on its own
aircraft for spill assessment.
The stated purpose of the aerial
tracking resources is to ensure that
response resources are appropriately
directed to the heaviest concentrations

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Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
of oil for cleanup. Therefore, it is logical
to require aerial tracking resources to
arrive on-scene within the same
timeframe as the other response
resources.
Another commenter stated that the
prescribed time to establish aerial
surveillance in the regulations is
unrealistic. One commenter felt that the
three-hour response time could not be
justified based upon cost and
applicability to marine transportationrelated (MTR) facilities. However,
another commenter felt the three-hour
response time was reasonable. Finally,
one commenter wanted the regulations
to recognize different missions for spill
plotting and area delineation.
The Coast Guard agrees with the
concerns expressed about rapid
response times for aerial-tracking
resources; these response times are
intended to ensure that aerial-tracking
resources arrive prior to tier 1, 2, and 3
resources being in place. The
requirement is based on time of arrival
on-scene, not on mobilization time.
Aerial-tracking resources should be onscene before or at the time that response
equipment begins operations to help
optimize initial response activities. No
aerial-tracking resources are required to
support average most probable
discharge (AMPD) or maximum most
probable discharge (MMPD) planning.
One commenter stated that the Coast
Guard gave tracking buoys, global
positioning systems, and satellite and
aerial imaging only a cursory review
and urged the Coast Guard to be more
open-minded about their potential for
use. Another commenter stated that the
regulations should be less prescriptive
and allow for the use of these
technologies.
The Coast Guard reviewed these and
other technologies from the standpoint
of practicability. The Coast Guard does
not think that these technologies have
sufficiently proven that they will
significantly enhance the ability to
recover or otherwise mitigate the effects
of spilled oil. The Coast Guard does not
think that the benefits of these
technologies justify the costs to the
response community, and therefore, it is
not practicable to require industry to
incur the costs of establishing and
maintaining these capabilities.
However, the regulations do not
prohibit their use, and the Coast Guard
encourages plan holders to explore
other options to maximize the ability to
track response operations.
The Coast Guard continues to monitor
development of other technologies. If
these technologies can be demonstrated
to be effective in supporting nighttime
operations, with full regard and

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consideration for worker health and
safety on water at night, then the Coast
Guard may consider a regulatory change
at a later date requiring plan holders to
acquire the systems. This would likely
be accompanied by a substantial
increase in mechanical equipment
requirements because the current
requirements are based on operations
being limited to daylight hours only.
One commenter stated that the aerial
tracking requirement should not apply
to vessels and facilities operating on
rivers and other confined waters where
the direction of movement of spilled oil
is well known and easily tracked from
shore and by responding vessels.
Several commenters supported aerial
tracking for open waters, but wanted
alternatives for inland waters and rivers
to avoid burdensome costs and to allow
for more practical spill-tracking
methods.
The Coast Guard agrees and has
clarified that vessels and facilities
operating on inland rivers will not be
required to maintain aerial tracking
capabilities. However, vessels operating
on the open waters of the Great Lakes
will be required to maintain these
capabilities.
One commenter recommended that
plan holders should only need to
reference aerial tracking resources
approved by the Coast Guard rather than
submit a detailed list of aerial tracking
capabilities. The commenter noted that
all other response resource lists allowed
this exception. For those plan holders
who have ensured the availability of
aerial platforms for dispersant
application purposes and who intend to
use these platforms for aerial tracking
purposes, the Coast Guard agrees and
has added new sections
155.1035(i)(10)(iii), 155.1040(j)(10)(iii),
and 154.1035(b)(3)(vi)(D). If aerial
platforms for dispersant application are
not going to be used for aerial tracking
purposes, then a detailed list of aerial
tracking capabilites will be required to
be submitted in accordance with 33 CFR
154.1045(j) and 33 CFR 155.1050(m).
The Coast Guard does not intend to
implement a national classification
system for the purpose of classifying
providers of aerial tracking platforms
and resources.
One commenter supported increased
over-flight capability and advances in
technology such as infrared tracking and
satellite imaging.
The Coast Guard agrees, and
encourages advancements in
technology. Once these advancing
technologies are proven to prevent or
mitigate damage from oil spills in an
economically feasible fashion, the Coast

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45017

Guard will examine the viability of
requiring them.
One commenter felt that aerial
tracking requirements were never part of
any public discussion, dialogue,
consultation, or study group. Therefore,
the commenter felt that requirements
are impractical, unrealistic, and
unachievable.
The Coast Guard disagrees. The
public had an opportunity to comment
on specific requirements for aerial
tracking of mechanical recovery through
the NPRM. Further, aerial tracking was
also contained in the Notice of Intent for
the EIS, published in September, 2000,
and in the Draft Programmatic EIS,
published in April, 2005. The
requirement for aerial surveillance of
dispersant and ISB operations has
consistently been part of discussions
regarding the use of these tools. In
addition, the parameters for the aerial
surveillance requirements for
mechanical recovery were examined by
a group of response community experts
during the development of the
regulatory assessment. Nevertheless, the
Coast Guard attempted to address some
of the commenter’s concerns by
clarifying aerial tracking requirements
both in this preamble and in the
regulations themselves [see
§§ 154.1045(j) and 155.1050(l)].
We received two comments relating to
training requirements for aerial tracking
and observation of oil spills. One
commenter stated that the regulations
should distinguish between training
requirements for aerial observers
assigned to ‘‘spotting for on-water
recovery operations’’ and those
‘‘performing overall assessment of the
spill.’’ Another commenter
recommended that plan holders be
permitted to certify plan holder
personnel as aerial observers instead of
meeting other specific training.
The Coast Guard disagrees. Because
aerial tracking personnel are critical to
the success of directing mechanical
recovery resources and dispersant
delivery, this rule calls for well-defined
and concise training criteria. The aerial
observation personnel are primarily
responsible for monitoring and directing
on-water clean up operations. This
responsibility requires knowledge of oil
characteristics and the capabilities and
limitations of response resources, as
well as familiarity with spill trajectories,
resources at risk, coastal habitat
identification, etc.
One commenter stated that a pilot
cannot act as an observer and that this
may adversely impact the plan holder’s
ability to provide aerial surveillance in
a timely fashion.

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Usually, the pilot’s primary
responsibility is to fly the plane and the
observer’s job is to direct spill assets.
The Coast Guard believes it will be
easier and quicker to match a trained
observer with a trained pilot than to
find and mobilize a pilot who is also a
trained observer. The aerial observation
personnel are primarily responsible for
monitoring and directing on-water clean
up operations.
One commenter noted that under
adverse weather, aerial surveillance will
not be possible and the regulations do
not address this issue.
The regulations are written for
planning purposes and cannot address
every situation that may be encountered
in an oil spill response. The regulations
require the availability of, and planning
for, certain capabilities.
One commenter felt that the
requirements for an aerial surveillance
aircraft can be fulfilled by the dispersant
application aircraft when it is not
involved in dispersant application.
The Coast Guard agrees, as long as the
aircraft is not required to do both jobs
at the same time.

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V. Additional Changes
We are revising the compliance date
for updates for VRPs required by the
Salvage and Marine Firefighting final
rule, which published on December 31,
2008 (73 FR 80618) found in 33 CFR
155.4020. This revision will delay
compliance from June 1, 2010, until
February 22, 2011. We are making this
revision to ensure that plan holders are
not required to update their VRPs twice
within a 12-month period. Otherwise, a
plan holder wishing to complete both
updates at once would need to comply
with the earlier salvage and marine
firefighting compliance date, and would
not receive the full benefit of the
compliance period provided in this final
rule.
VI. Incorporation by Reference
The Director of the Federal Register
has approved the material in §§ 154.106
and 155.140 for incorporation by
reference under 5 U.S.C. 552 and 1 CFR
part 51. The new items incorporated by
reference in this rule are: ASTM F1413–
07, Standard Guide for Oil Spill
Dispersant Application Equipment:
Boom and Nozzle System; ASTM
F1737–07, Standard Guide for Use of
Oil Spill Dispersant Application
Equipment During Spill Response:
Boom and Nozzle Systems; and ASTM
F1779–08, Standard Practice for
Reporting Visual Observations of Oil on
Water. Additionally, we have updated
the reference to NFPA 70, National
Electric Code, to reflect the edition

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currently used by industry. Copies of
the material are available from the
sources listed in those sections.
VI. Regulatory Analysis
We developed this rule after
considering numerous statutes and
executive orders related to rulemaking.
A. Administrative Procedure Act
The Coast Guard is issuing the
revision to 33 CFR 155.4020 without
prior notice and opportunity for
comment pursuant to authority under
section 4(a) of the Administrative
Procedure Act (APA) (5 U.S.C. 553(b)).
This provision authorizes an agency to
issue a rule without prior notice and
opportunity to comment when the
agency for good cause finds that those
procedures are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ Under 5 U.S.C. 553(b)(B), the
Coast Guard finds that good cause exists
for not publishing a notice of proposed
rulemaking (NPRM) with respect to the
revision in this rule because doing so
would be contrary to the public interest.
Without this change, vessel response
plan holders would be required to
update their response plans twice
within a 12-month time period, which
would be unduly burdensome.
Soliciting comment on this revision is
also unnecessary, as it is unlikely that
these plan holders would oppose the
delay in compliance for the salvage and
marine firefighting provisions within
their response plans. Without this delay,
a plan holder wishing to complete both
updates at once would need to comply
with the earlier salvage and marine
firefighting compliance date, and would
not receive the full benefit of the
compliance period provided in this final
rule. Those plan holders wishing to
comply earlier may still do so.
B. Regulatory Planning and Review
This rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order. A final Regulatory Assessment
(‘‘Regulatory Analysis’’) is available in
the docket as indicated under
ADDRESSES. A summary of the analysis
follows:
This rulemaking is not an
economically significant action under
Section 3(f)(1) of the Order because the
rulemaking will not have an annual
effect on the economy of $100 million
or more.

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The response resources considered in
the final rule were:
Mechanical recovery—increase the
amount of mechanical recovery
equipment available for oil spill
response. There is currently a large
amount of mechanical recovery
equipment available for oil spill
response.
Dispersants—require a minimum
amount of dispersant capability for oil
spill response. Applying dispersant
requires additional equipment and
stockpiles of dispersant. Dispersants can
diffuse large amounts of oil for quicker
spill recovery but have limiting factors,
including location and conditions.
Aerial tracking of the oil spill—
require aerial tracking capabilities in the
event of an oil spill. Aerial tracking of
a spill increases the efficiency of other
response resources.
The rule directly regulates vessels
carrying oil in bulk and marine
transportation related (MTR) oil
facilities that are required to have an oil
response plan under the current vessel
response plan (VRP) or facility response
plan (FRP) rules. We estimate that there
are 795 VRP plan holders and 2,798 FRP
plan holders. These plan holders
contract with Oil Spill Removal
Organizations (OSROs) to ensure that
response resources required by
regulations are available to mitigate a
worst case discharge (WCD) oil spill. As
a result, we anticipate these plan
holders will incur the costs associated
with revised response requirements
through price increases from OSROs.
We considered the costs and
effectiveness of the five regulatory
alternatives discussed in this preamble
(see the ‘‘Regulatory History’’ and
‘‘Background and Purpose’’ sections for
more information on the regulatory
alternatives). These alternatives provide
combinations that emphasize either
mechanical or non-mechanical response
assets. We anticipate the increased cost
to the plan holders from the rulemaking
will begin when the rule becomes
effective. For the preferred alternative
(5), the estimated first-year cost is
$25.96 million with a recurring annual
cost of $8.40 million (non-discounted
estimates).
Since the equipment considered has
an estimated 15-year replacement
interval, we estimated cost for 15 years
(2009–2023). The 15-year cost of the
preferred alternative is $92.92 million at
a 7-percent discount rate, and $117.33
million at a 3-percent discount rate. The
preferred alternative is the least
expensive of the five alternatives. Table
1 presents the costs, benefits, and cost
effectiveness (i.e., costs divided by
benefits) for each regulatory alternative

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Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
considered over the 15-year period of
analysis.

TABLE 1—TOTAL COST, BENEFIT, AND COST EFFECTIVENESS BY REGULATORY ALTERNATIVE (2009–2023)*
7 percent
Alternative
Cost ($M)
1
2
3
4
5

.......................................................................................
.......................................................................................
.......................................................................................
.......................................................................................
.......................................................................................

3 percent

Benefit
(bbls)

$0
84.56
129.53
112.97
92.92

Cost effectiveness

0
11,492
62,348
63,039
63,039

Cost ($M)

NA
$7,358
2,077
1,792
1,474

$0
102.13
159.91
140.63
117.33

Benefit
(bbls)

Cost effectiveness

0
15,590
84,584
85,521
85,521

NA
$6,551
1,891
1,644
1,372

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

Alternative 5 uses a combination of
dispersant capability and aerial
surveillance to provide the most costeffective improvement in oil spill

response. Related equipment costs drive
the national cost of this rule. Table 2
displays the discounted first-year cost
and annualized costs across the period

of analysis associated with the preferred
alternative (5) by requirement.

TABLE 2—COSTS OF THE PREFERRED ALTERNATIVE
[$ Millions]
Initial costs
(2009)*

Requirements
7%

Annualized
(2009–2023)
3%

7%

3%

Dispersants Option B .......................................................................................................
Aerial tracking ..................................................................................................................
Employee training ............................................................................................................
Recordkeeping .................................................................................................................

$8.79
9.48
0.36
5.63

$9.13
9.84
0.38
5.86

$4.84
2.71
0.39
2.26

$4.73
2.53
0.39
2.17

Total ..........................................................................................................................

24.26

25.21

10.20

9.82

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

From our analysis, we conclude that
Alternative 5 is the most cost-effective
alternative from the standpoint of a
potential worst-case discharge. See the
Regulatory Analysis available in the
docket for more details.
We received comments on the
Regulatory Analysis for the NPRM.
These comments divide into concerns
about the overall cost of the regulations
and the impact of the regulations on the
Oil Spill Removal Organizations
(OSROs) indirectly affected by the rule.
Responses to these comments are
summarized in the ‘‘General
Comments’’ section of the rule.
We note that this rule only directly
regulates vessels carrying oil in bulk
and marine transportation related oil
facilities that are required to have an oil
response plan under the current vessel
response plan or facility response plan
rules. Consequently, we believe that the
impact of this rule on OSROs is indirect
since individual OSROs are not required
by this rule to provide additional
services. OSROs would make a business
decision whether the revenue generated
by providing additional services would
provide the financial return sufficient to

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justify the cost of providing such
services.
Regulatory Flexibility Analyses are
required to include only the direct
impacts of a regulation on a small entity
that is required to comply with the
regulation. Mid-Tex Electric Coop. v.
FERC, 773 F.2d 327, 340–343 (D.C. Cir.
1985) (holding indirect impact of a
regulation on small entities that do
business with or are otherwise
dependent on the regulated entities not
considered in RFA analyses). See also
Cement Kiln Recycling Coalition v. EPA,
255 F.3d 855, 869 (DC Cir. 2001) (In
passing the Regulatory Flexibility Act,
‘‘Congress did not intend to require that
every agency consider every indirect
effect that any regulation might have on
small businesses in any stratum of the
national economy. * * * [T]o require an
agency to assess the impact on all of the
nation’s small businesses possibly
affected by a rule would be to convert
every rulemaking process into a massive
exercise in economic modeling, an
approach we have already rejected.’’).
See, also, Regulatory Flexibility
Improvements Act, Hearing before the
Subcommittee on Commercial and
Administrative Law, Committee on the

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Judiciary, on H.R. 682, 109th Cong., 2nd
Sess. (2006), at 13 (Statement of Thomas
Sullivan, Chief Counsel for Advocacy,
Small Business Administration,
testifying on the RFA by noting that
‘‘the RFA * * * does not require
agencies to analyze indirect impacts.’’)
C. Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we considered
whether this proposed rule will have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. We
have prepared a Final Regulatory
Flexibility Analysis (FRFA) assessing
the potential impact on small entities
from this rulemaking. The FRFA is in
the final Regulatory Analysis, which is
available in the docket as indicated
under ADDRESSES.
We determined which plan holders
were small entities based on an
evaluation of North American Industry

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Classification System (NAICS) codes,
publicly available and proprietary
revenue and employee size data, and the
size standards published by the Small
Business Administration (SBA). We
found 90 percent of VRP holders and 87
percent of FRP holders to be small.
The estimated first year and annually
recurring costs to FRP holders are $525
and $129, respectively. The estimated
first year and annually recurring costs
for VRP holders are higher at $1,838 and
$732, respectively. This cost difference
is due to the requirement that VRP
holders provide dispersant capability,
while most FRP holders are in areas
where dispersant use will be
impracticable. We found that the costs
of this rule will have less than a 1percent revenue impact on affected
small plan holders. We have determined
that this rulemaking will not have a
significant economic impact on a
substantial number of small entities
under section 605(b) of the Regulatory
Flexibility Act.
We did receive comments about the
cost for small OSROs to purchase new
equipment. Based on information from
industry, we expect most of the costs
from this rule will be passed on to plan
holders. In comparison to OSRO
revenues, any costs not passed will be
low and impact revenues by less than 1
percent. In addition, most OSROs do not
provide all services being required for
plan holders. As small OSROs are not
required to provide any of the services
mandated by this regulation, any impact
of this regulation on OSROs is indirect.
A small OSRO is not required to provide
any of the services mandated by this
regulation. Most small OSROs will need
to contract with other entities or access
other resources in the case of a worstcase discharge. Small OSROs will only
provide these services if they consider
them to be beneficial to the company.
D. Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we offered to assist small entities in
understanding this rule so that they
could better evaluate its effects on them
and participate in the rulemaking. As
indicated in the ‘‘Regulatory History’’
section of the preamble, the Coast Guard
held a public meeting to receive public
comment and to explain the NPRM to
affected parties, including small
entities.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman

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and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call
1–888–REG–FAIR (1–888–734–3247).
E. Collection of Information
This rule calls for a collection of
information (COI) under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520). As defined in 5 CFR 1320.3(c),
‘‘collection of information’’ comprises
reporting, recordkeeping, monitoring,
posting, labeling, and other similar
actions. The title and description of the
information collections, and a
description of those who must collect
the information, follow.
This rule modifies COI 1625–0066,
‘‘Vessel and Facility Response Plans
(Domestic and International), and
Additional Response Requirements for
Prince William Sound Alaska.’’ The
estimate below covers the time for
reviewing instructions, searching
existing sources of data, gathering and
maintaining the data needed, and
completing and reviewing the
collection.
Title: Vessel and Facility Response
Plans (Domestic and International), and
Additional Response Requirements for
Prince William Sound Alaska.
OMB Control Number: 1625–0066.
Summary of the Collection of
Information: Vessel Response Plan
(VRP) holders and Facility Response
Plan (FRP) holders will need to collect
additional information to comply with
the rule for oil-spill response
requirements.
This information includes: Name and
contact information for oil spill
responders for each vessel or facility
with appropriate equipment and
resources located in each zone of
operation; specific lists of equipment
that the resource providers will make
available in case of an incident in each
zone; and certification that the
responders are qualified and have given
permission to be included in the plan.
OSROs will also need to update
contracts and their own records to add
dispersant capabilities when
appropriate.
Need for Information: The
information is necessary to show
evidence that plan holders have
properly planned to prevent or mitigate
oil outflow and to provide that
information to the Coast Guard for its
use in emergency response.
Use of Information: The Coast Guard
will use this information to determine

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whether a vessel or facility meets the
statutory requirements.
Description of the Respondents: The
respondents are OSROs and vessel and
facility response plan holders.
Number of Respondents: The number
of respondents is 3,683–3,593 plan
holders (795 VRP plan holders + 2,798
FRP plan holders) and 90 OSROs.
Frequency of Response: Each
respondent will have one response per
year (amending and submitting the
response plan the first year; updating in
subsequent years).
Burden of Response: According to
information from the Coast Guard’s
Office of Vessel Activities, the estimated
burden for the 3,593 plan holders is 27.5
hours the first year and 8 hours each
additional year and the estimated
burden for the 90 OSROs is 2 hours per
year for each plan holder the first year
and 1 hour per year for each plan holder
in the following years.
Estimate of Total Annual Burden: The
existing OMB-approved total annual
burden, as adjusted in December 2006,
is 220,559 hours. The total additional
hours requested for this rulemaking are
56,889. This rule increases the
estimated annual burden for plan
holders by 98,808 hours (27.5 × 3,593)
the first year, followed by 28,744 hours
per year (8 × 3,593) in subsequent years.
The rule will increase the estimated
annual burden for OSROs by 7,186
hours the first year (2 × 3,593), followed
by 3,593 hours per year (1 × 3,593) in
subsequent years. The new burden as a
result of this rulemaking is 277,448
hours.
In addition to this rulemaking, COI
1625–0066 is being revised by 2 other
Coast Guard rulemakings. These
rulemakings are—(1) Salvage and
Marine Firefighting Requirements;
Vessel Response Plans for Oil [Docket
No. USCG–1998–3417; RIN 1625–
AA19]; and (2) Nontank Vessel
Response Plans and Other Vessel
Response Plan Requirements [Docket
No. USCG–2008–0180; RIN 1625–
AB27]. Once these rulemakings are
finalized, the hour burden for 1625–
0066 may differ from the figures noted
above. See the COI preamble section of
each rulemaking for details on how the
hour burden will differ.
As required by 44 U.S.C. 3507(d), we
submitted a copy of this rule to the
Office of Management and Budget
(OMB) for its review of the collection of
information. OMB has not yet
completed its review of this collection,
and the response plan reporting and
recordkeeping requirements of this rule
will not be enforced until this collection
is approved by OMB. We will publish
a notice in the Federal Register

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Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
announcing the effective date of those
requirements after OMB approves the
collection.
You are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
F. Federalism
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on State or local governments and
would either preempt State law or
impose a substantial direct cost of
compliance on them. We have analyzed
this rule under that Order and have
determined that it does not have
implications for federalism.
G. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector, of
$100,000,000 or more in any one year.
Although this rule will not result in
such expenditure, we discuss the effects
of this rule elsewhere in this preamble.
H. Taking of Private Property
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.

K. Indian Tribal Governments

L. Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order. Though
it is a ‘‘significant regulatory action’’
under Executive Order 12866, it is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.

The Coast Guard received two
comment letters from Indian Tribal
Government sources in response to the
Draft Programmatic Environmental
Impact Statement (DPEIS). Those letters
from the Makah Tribal Council (MTC)
and the Northwest Indian Fisheries
Commission disagreed with the
selection of Alternative 5 in the DPEIS,

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

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.

PWALKER on DSK8KYBLC1PROD with RULES3

and suggested that consultation with the
Makah Tribal Council was necessary.
Additionally, the Coast Guard received
a letter from the MTC dated May 30,
2006, concerning revised provisions on
dispersants in the Northwest Area
Contingency Plan. All three letters
expressed concern that dispersant use
on or near the Makah Usual and
Accustomed Marine Area could cause
environmental damage.
The Coast Guard agrees that
consultation pursuant to Executive
Order 13175 is appropriate. The Makah
Usual and Accustomed Marine Area
(UAMA) is excluded from the
dispersant pre-approval zone described
in the Northwest Area Contingency
Plan, § 4610.1. After consultations
between the MTC and the Coast Guard,
the MTC decided that it preferred the
UAMA to not be exempt from the
requirements of this rule. Had the MTC
chosen otherwise, the UAMA would
have been explicitly exempt from the
requirements of this rule, even if the
Northwest Area Contingency Plan were
to include the UAMA in a pre-approval
zone at some future date. With regard to
the Makah Tribe’s preference for
increasing mechanical recovery
requirements, please see the discussion
of mechanical recovery in section IV (B)
of this preamble.
In consideration of the foregoing, the
Coast Guard certifies all relevant
requirements under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments, have
been met.

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standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule uses the following voluntary
consensus standards: ASTM F1413–07,
Standard Guide for Oil Spill Dispersant
Application Equipment: Boom and
Nozzle Systems; ASTM F1737–07,
Standard Guide for Use of Oil Spill
Dispersant Application Equipment
During Spill Response: Boom and
Nozzle Systems; and, ASTM F1779–08,
Standard Practice for Reporting Visual
Observations of Oil on Water. The
sections that reference these standards
and the locations where these standards
are available are listed in 33 CFR
154.106 and 155.140.
N. Environment
We analyzed this rule under
Department of Homeland Security
Directive 023–01 and Commandant
Instruction M16475.lD, which guide the
Coast Guard in complying with the
National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321–4370f),
and concluded that preparation of an
Environmental Impact Statement (EIS)
was necessary. A final ‘‘Environmental
Impact Statement’’ has been completed
and a ‘‘Record of Decision’’ was made.
This record was based on the
assumption that this rulemaking would
result in a net environmental benefit
within the context of oil spill response
efforts. The EIS is available in the
docket.
List of Subjects
33 CFR Part 154
Alaska, Fire prevention, Hazardous
substances, Oil pollution, Reporting and
recordkeeping requirements,
Incorporation by reference.
33 CFR Part 155
Alaska, Hazardous substances, Oil
pollution, Reporting and recordkeeping
requirements, Incorporation by
reference.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR parts 154 and 155 as follows:

■

PART 154—FACILITIES
TRANSFERRING OIL OR HAZARDOUS
MATERIAL IN BULK
1. The authority citation for part 154
continues to read as follows:

■

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

Authority: 33 U.S.C. 1231, 1321(j)(1)(C),
(j)(5), (j)(6), and (m)(2); sec. 2, E.O. 12777, 56
FR 54757; Department of Homeland Security
Delegation No. 0170.1. Subpart F is also
issued under 33 U.S.C. 2735.
■

2. Revise § 154.106 to read as follows:

PWALKER on DSK8KYBLC1PROD with RULES3

§ 154.106 Incorporation by reference:
Where can I get a copy of the publications
incorporated by reference in this part?

(a) Certain material is incorporated by
reference (IBR) into this part with the
approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1
CFR part 51. To enforce any edition
other than that specified in this section,
the Coast Guard must publish notice of
change in the Federal Register and the
material must be available to the public.
All approved material is available for
inspection at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030 or
go to http://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html. Also, it is available
for inspection at the Coast Guard, Office
of Port and Facility Activities, Cargo
and Facilities Division (CG–5332), 2100
Second Street SW., Washington, DC
20593–0001, 202–372–2234 and is
available from the sources indicated in
this section below.
(b) American Petroleum Institute
(API), 1220 L Street NW., Washington,
DC 20037, 202–682–8000, http://
www.api.org/:
(1) API Standard 2000, Venting
Atmospheric and Low-Pressure Storage
Tanks (Nonrefrigerated and
Refrigerated), Third Edition, January
1982 (reaffirmed December 1987), IBR
approved for § 154.814.
(2) API Recommended Practice 550,
Manual on Installation of Refinery
Instruments and Control Systems, Part
II—Process Stream Analyzers, Section
1—Oxygen Analyzers, Fourth Edition,
February 1985, IBR approved for
§ 154.824.
(c) American National Standards
Institute (ANSI), 11 West 42nd Street,
New York, NY 10036, 202–293–8020,
http://www.ansi.org:
(1) ANSI B16.5, Steel Pipe Flanges
and Flanged Fittings, 1988, IBR
approved for §§ 154.500, 154.808, and
154.810.
(2) ANSI B16.24, Bronze Pipe Flanges
and Flange Fittings Class 150 and 300,
1979, IBR approved for §§ 154.500 and
154.808.
(3) ANSI B31.3, Chemical Plant and
Petroleum Refinery Piping, 1987
(including B31.3a–1988, B31.3b–1988,
and B31.3c–1989 addenda), IBR
approved for §§ 154.510 and 154.808.

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(d) ASTM International, 100 Barr
Harbor Drive, West Conshohocken, PA
19428–2959, 610–832–9585, http://
www.astm.org/:
(1) ASTM F631–93, Standard Guide
for Collecting Skimmer Performance
Data in Controlled Environments, IBR
approved for Appendix C.
(2) ASTM F715–95, Standard Test
Methods for Coated Fabrics Used for Oil
Spill Control and Storage, IBR approved
for Appendix C.
(3) ASTM F722–82 (1993), Standard
Specification for Welded Joints for
Shipboard Piping Systems, IBR
approved for Appendix A and
Appendix B.
(4) ASTM F1122–87 (1992), Standard
Specification for Quick Disconnect
Couplings, IBR approved for § 154.500.
(5) ASTM F1155–98, Standard
Practice for Selection and Application
of Piping System Materials, IBR
approved for Appendix A and
Appendix B.
(6) ASTM F1413–07, Standard Guide
for Oil Spill Dispersant Application
Equipment: Boom and Nozzle Systems,
IBR approved for § 154.1045.
(7) ASTM F1737–07, Standard Guide
for Use of Oil Spill Dispersant
Application Equipment During Spill
Response: Boom and Nozzle Systems,
IBR approved for § 154.1045.
(8) ASTM F1779–08, Standard
Practice for Reporting Visual
Observations of Oil on Water, IBR
approved for § 154.1045.
(e) International Electrotechnical
Commission (IEC), Bureau Central de la
Commission Electrotechnique
Internationale, 1 rue de Varembe,
Geneva, Switzerland, +41–22–919–02–
11, http://www.iec.ch/:
(1) IEC 309–1—Plugs, Socket-Outlets
and Couplers for Industrial Purposes:
Part 1, General Requirements, 1979, IBR
approved for § 154.812.
(2) IEC 309–2—Plugs, Socket-Outlets
and Couplers for Industrial Purposes:
Part 2, Dimensional Interchangeability
Requirements for Pin and Contact-tube
Accessories, 1981, IBR approved for
§ 154.812.
(f) National Electrical Manufacturers
Association (NEMA), 1300 North 17th
Street, Suite 1752, Rosslyn, Virginia
22209, 703–841–3200, http://
www.nema.org/:
(1) ANSI NEMA WD–6—Wiring
Devices, Dimensional Requirements,
1988, IBR approved for § 154.812.
(2) [Reserved]
(g) National Fire Protection
Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02269–9101, 617–
770–3000, http://www.nfpa.org/:
(1) NFPA 51B, Standard for Fire
Prevention in Use of Cutting and

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Welding Processes, 1994, IBR approved
for § 154.735.
(2) NFPA 70, National Electrical Code,
2008, IBR approved for § 154.812.
(h) Oil Companies International
Marine Forum (OCIMF), 29 Queen
Anne’s Gate, London, SW1H 9BU,
England, +44–0–20–7654–1200, http://
www.ocimf.com/:
(1) International Safety Guide for Oil
Tankers and Terminals, Section 6.10,
Fourth Ed., 1996, IBR approved for
§ 154.810.
(2) International Safety Guide for Oil
Tankers and Terminals, Sections 9.1,
9.2, 9.3 and 9.5, Fourth Ed., 1996, IBR
approved for § 154.735.
3. In § 154.500, revise paragraph (d)(2)
to read as follows:
§ 154.500

Hose assemblies.

*

*
*
*
*
(d) * * *
(2) Flanges that meet ANSI B16.5 or
B16.24 (both incorporated by reference;
see § 154.106); or
*
*
*
*
*
■ 4. In § 154.510, revise paragraph (a) to
read as follows:
§ 154.510

Loading arms.

(a) Each mechanical loading arm used
for transferring oil or hazardous material
and placed into service after June 30,
1973, must meet the design, fabrication,
material, inspection, and testing
requirements in ANSI B31.3
(incorporated by reference; see
§ 154.106).
*
*
*
*
*
■ 5. In § 154.735, revise paragraphs (l)
introductory text and (s) introductory
text to read as follows:
§ 154.735

Safety requirements.

*

*
*
*
*
(l) All welding or hot work conducted
on or at the facility is the responsibility
of the facility operator. The COTP may
require that the operator of the facility
notify the COTP before any welding or
hot work operations are conducted. Any
welding or hot work operations
conducted on or at the facility must be
conducted in accordance with NFPA
51B (incorporated by reference; see
§ 154.106). The facility operator shall
ensure that the following additional
conditions or criteria are met:
*
*
*
*
*
(s) Tank cleaning or gas freeing
operations conducted by the facility on
vessels carrying oil residues or mixtures
shall be conducted in accordance with
sections 9.1, 9.2, 9.3, and 9.5 of the
OCIMF International Safety Guide for
Oil Tankers and Terminals (ISGOTT)

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Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
(incorporated by reference; see
§ 154.106), except that—
*
*
*
*
*
■ 6. In § 154.808, revise paragraph (b) to
read as follows:
§ 154.808

Vapor control system, general.

*

*
*
*
*
(b) Vapor collection system piping
and fittings must be in accordance with
ANSI B31.3 (incorporated by reference;
see § 154.106) and designed for a
maximum allowable working pressure
of at least 150 psig. Valves and flanges
must be in accordance with ANSI B16.5
or B16.24 (both incorporated by
reference; see § 154.106), 150 pound
class.
*
*
*
*
*
■ 7. In § 154.810, revise paragraphs
(d)(5)(i) and (g) to read as follows:
§ 154.810

Vapor line connections.

*

*
*
*
*
(d) * * *
(5) * * *
(i) A bolt hole arrangement complying
with the requirements for 150 pound
class ANSI B16.5 (incorporated by
reference; see § 154.106) flanges, and
*
*
*
*
*
(g) The facility vapor connection must
be electrically insulated from the vessel
vapor connection in accordance with
section 6.10 of the OCIMF International
Safety Guide for Oil Tankers and
Terminals (incorporated by reference;
see § 154.106).
*
*
*
*
*
■ 8. In § 154.812, revise paragraphs
(a)(1), (a)(2), and (b)(6) introductory text
to read as follows:

PWALKER on DSK8KYBLC1PROD with RULES3

§ 154.812 Facility requirements for vessel
liquid overfill protection.

(a) * * *
(1) ANSI/NEMA WD6 (incorporated
by reference; see § 154.106);
(2) NFPA 70, National Electrical Code,
Articles 410–57 and 501–12;
incorporated by reference; see
§ 154.106); and
*
*
*
*
*
(b) * * *
(6) Has a female connecting plug for
the tank barge level sensor system with
a 5 wire, 16 amp connector body
meeting IEC 309–1/309–2 (incorporated
by reference; see § 154.106) which is:
*
*
*
*
*
■ 9. In § 154.814, revise paragraph (j)(4)
to read as follows:
§ 154.814 Facility requirements for vessel
vapor overpressure and vacuum protection.

*

*
*
*
*
(j) * * *
(4) Has been tested for relieving
capacity in accordance with paragraph

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1.5.1.3 of API 2000 (incorporated by
reference; see § 154.106) with a flame
screen fitted.
*
*
*
*
*
■ 10. In § 154.824, revise paragraph
(f)(1) to read as follows:
§ 154.824
systems.

Inerting, enriching, and diluting

*

*
*
*
*
(f) * * *
(1) Be installed in accordance with
API Recommended Practice 550
(incorporated by reference; see
§ 154.106);
*
*
*
*
*
■ 11. In § 154.1020, add the definitions
‘‘Dispersant-application platform,’’
‘‘Dispersant Mission Planner 2,’’
‘‘Effective Daily Application Capacity or
EDAC,’’ ‘‘Gulf Coast,’’ ‘‘Operational
effectiveness monitoring,’’ ‘‘Preauthorization for dispersant use,’’ and
‘‘Primary dispersant staging site’’ in
alphabetical order to read as follows:
§ 154.1020

Definitions.

*

*
*
*
*
Dispersant-application platform
means the vessel or aircraft outfitted
with the dispersant-application
equipment acting as the delivery system
for the dispersant onto the oil spill.
Dispersant Mission Planner 2 or
(DMP2) means an Internetdownloadable application that estimates
EDAC for different dispersant response
systems. The NSFCC will use DPMP2
for evaluating OSRO dispersant
classification levels.
Effective Daily Application Capacity
or EDAC means the estimated amount of
dispersant that can be applied to a
discharge by an application system
given the availability of supporting
dispersant stockpiles, when operated in
accordance with approved standards
and within acceptable environmental
conditions.
*
*
*
*
*
Gulf Coast means, for the purposes of
dispersant-application requirements, the
region encompassing the following
Captain of the Port Zones:
(1) Corpus Christi, TX.
(2) Houston/Galveston, TX.
(3) Port Arthur, TX.
(4) Morgan City, LA.
(5) New Orleans, LA.
(6) Mobile, AL.
(7) St. Petersburg, FL.
*
*
*
*
*
Operational effectiveness monitoring
means monitoring concerned primarily
with determining whether the
dispersant was properly applied and
how the dispersant is affecting the oil.
*
*
*
*
*

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Pre-authorization for dispersant use
means an agreement, adopted by a
regional response team in coordination
with area committees, which authorizes
the use of dispersants at the discretion
of the Federal On-Scene Coordinator
without the further approval of other
Federal or State authorities. These preauthorization areas are generally limited
to particular geographic areas within
each region.
Primary dispersant staging site means
a site designated within a Captain of the
Port zone that has been identified as a
forward staging area for dispersant
application platforms and the loading of
dispersant stockpiles. Primary staging
sites are typically the planned locations
where platforms load or reload
dispersants before departing for
application at the site of the discharge
and may not be the locations where
dispersant stockpiles are stored or
application platforms are home-based.
*
*
*
*
*
■ 10. In § 154.1035—
■ a. Revise paragraph (b)(3)(iv);
■ b. Redesignate paragraph (b)(3)(v) as
paragraph (b)(3)(ix); and,
■ c. Add new paragraphs (b)(3)(v),
(b)(3)(vi), (b)(3)(vii), and (b)(3)(viii) to
read as follows:
§ 154.1035 Specific requirements for
facilities that could reasonably be expected
to cause significant and substantial harm to
the environment.

*

*
*
*
*
(b) * * *
(3) * * *
(iv) This subsection of the plan must
identify the oil spill removal
organizations and the spill management
team that will be capable of providing
the following resources:
(A) Equipment and supplies to meet
the requirements of §§ 154.1045,
154.1047, or subparts H or I of this part,
as appropriate.
(B) Trained personnel necessary to
continue operation of the equipment
and staff the oil spill removal
organization and spill management team
for the first 7 days of the response.
(v) This section must include job
descriptions for each spill management
team member within the organizational
structure described in paragraph
(b)(3)(iii) of this section. These job
descriptions must include the
responsibilities and duties of each spill
management team member in a response
action.
(vi) For facilities that handle, store, or
transport group II through group IV
petroleum oils, and that operate in
waters where dispersant use is preauthorized, this subsection of the plan
must also separately list the resource

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providers and specific resources,
including appropriately trained
dispersant-application personnel,
necessary to provide the dispersant
capabilities required in this subpart. All
resource providers and resources must
be available by contract or other
approved means as described in
§ 154.1028(a). The dispersant resources
to be listed within this section must
include the following:
(A) Identification of each primary
dispersant staging site to be used by
each dispersant-application platform to
meet the requirements of this subpart.
(B) Identification of the platform type,
resource-providing organization,
location, and dispersant payload for
each dispersant-application platform
identified. Location data must identify
the distance between the platform’s
home base and the identified primary
dispersant staging site for this section.
(C) For each unit of dispersant
stockpile required to support the
effective daily application capacity
(EDAC) of each dispersant-application
platform necessary to sustain each
intended response tier of operation,
identify the dispersant product resource
provider, location, and volume.
Location data must include the
stockpile’s distance to the primary
staging sites where the stockpile would
be loaded onto the corresponding
platforms.
(D) If an oil spill removal organization
has been evaluated by the Coast Guard,
and its capability is equal to or exceeds
the response capability needed by the
owner or operator, the section may
identify only the oil spill removal
organization, and not the information
required in paragraphs (b)(3)(vi)(A)
through (b)(3)(vi)(C) of this section.
(vii) This subsection of the plan must
also separately list the resource
providers and specific resources
necessary to provide aerial oil tracking
capabilities required in this subpart.
The oil tracking resources to be listed
within this section must include the
following:
(A) The identification of a resource
provider; and

(B) Type and location of aerial
surveillance aircraft that are ensured
available, through contract or other
approved means, to meet the oil
tracking requirements of § 154.1045(j).
(viii) For mobile facilities that operate
in more than one COTP zone, the plan
must identify the oil spill removal
organization and the spill management
team in the applicable geographicspecific appendix. The oil spill removal
organization(s) and the spill
management team discussed in
paragraph (b)(3)(iv) of this section must
be included for each COTP zone in
which the facility will handle, store, or
transport oil in bulk.
*
*
*
*
*
■ 11. In § 154.1045—
■ a. Revise paragraph (i) as set out
below;
■ b. Redesignate paragraphs (j), (k), (l),
(m), and (n) as paragraphs (k), (l), (m),
(n), and (o), respectively;
■ c. Add new paragraph (j) to read as
follows;
■ d. Revise newly designated paragraph
(o) to read as set out below:
§ 154.1045 Response plan development
and evaluation criteria for facilities that
handle, store, or transport Group I through
Group IV petroleum oils.

*

*
*
*
*
(i) The owner or operator of a facility
that handles, stores, or transports groups
II through IV petroleum oils within the
inland, nearshore, or offshore areas
where pre-authorization for dispersant
use exists must identify in their
response plan, and ensure the
availability of, through contract or other
approved means, response resources
capable of conducting dispersant
operations within those areas.
(1) Dispersant response resources
must be capable of commencing
dispersant-application operations at the
site of a discharge within 7 hours of the
decision by the Federal On-Scene
Coordinator to use dispersants.
(2) Dispersant response resources
must include all of the following:
(i) Sufficient volumes of dispersants
for application as required by paragraph

(i)(3) of this section. Any dispersants
identified in a response plan must be of
a type listed on the National Oil and
Hazardous Substances Pollution
Contingency Plan Product Schedule
(which is contained in 40 CFR part 300,
and available online from the U.S.
Government Printing Office).
(ii) Dispersant-application platforms
capable of delivering and applying the
dispersant on a discharge in the
amounts as required by paragraph (i)(3)
of this section. At least 50 percent of
each EDAC tier requirement must be
achieved through the use of fixed-wing,
aircraft-based application platforms. For
dispersant-application platforms not
detailed within the DMP2, adequacy of
performance criteria must be
documented by presentation of
independent evaluation materials (e.g.,
field tests and reports of actual use) that
record the performance of the platform.
(iii) Dispersant-application systems
that are consistent in design with, and
are capable of applying dispersants
within, the performance criteria in
ASTM F1413–07 (incorporated by
reference, see § 154.106). For dispersantapplication systems not fully covered by
ASTM F1413–07, such as fire monitortype applicators, adequacy of
performance criteria must be
documented by presentation of
independent evaluation materials (e.g.,
laboratory tests, field tests, and reports
of actual use) that record the design of
performance specifications.
(iv) Dispersant-application personnel
trained in and capable of applying
dispersants according to the
recommended procedures contained
within ASTM F1737–07 (incorporated
by reference, see § 154.106).
(3) Dispersant stockpiles, application
platforms, and other supporting
resources must be available in a
quantity and type sufficient to treat a
facility’s worst-case discharge (as
determined by using the criteria in
appendix C, section 8) or in quantities
sufficient to meet the requirements in
Table 154.1045(i) of this section,
whichever is the lesser amount.

PWALKER on DSK8KYBLC1PROD with RULES3

TABLE 154.1045(I)—TIERS FOR EFFECTIVE DAILY APPLICATION CAPABILITY
Response time for
completed
application
(hours)

Dispersant
application
dispersant: oil treated in
gallons
(Gulf Coast)

Dispersant application
dispersant: oil treated in
gallons
all other U.S.

Tier 1 ............................................................................................
Tier 2 ............................................................................................
Tier 3 ............................................................................................

12
36
60

8,250:165,000
23,375:467,000
23,375:467,000

4,125:82,500
23,375:467,000
23,375:467,000

Total ......................................................................................

60

55,000:1,100,000

50,875:1,017,500

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Note to Table 154.1045(i): Gulf Coast Tier
1 is higher due to greater potential spill size
and frequency in that area, and it is assumed
that dispersant stockpiles would be
centralized in the Gulf area. Alternative
application ratios may be considered based
upon submission to Coast Guard
Headquarters, Office of Incident Management
and Preparedness (CG–533, 202–372–2234,
2100 2nd Street, SW., room 2100,
Washington, DC 20593) of peer-reviewed
scientific evidence of improved capability.

(j) The owner or operator of a facility
handling Groups I through IV petroleum
oil as a primary cargo must identify in
the response plan, and ensure the
availability through contract or other
approved means, of response resources
necessary to provide aerial oil tracking
to support oil spill assessment and
cleanup activities. Facilities operating
exclusively on inland rivers are not
required to comply with this paragraph.
Aerial oil tracking resources must:
(1) Be capable of arriving at the site
of a discharge in advance of the arrival
of response resources identified in the
plan for tiers 1, 2, and 3 Worst-Case
Discharge response times, and for a
distance up to 50 nautical miles from
shore (excluding inland rivers);
(2) Be capable of supporting oil spill
removal operations continuously for
three 10-hour operational periods
during the initial 72 hours of the
discharge;
(3) Include appropriately located
aircraft and personnel capable of
meeting the response time requirement
for oil tracking from paragraph (j)(1) of
this section; and
(4) Include sufficient numbers of
aircraft, pilots, and trained observation
personnel to support oil spill removal
operations, commencing upon initial
assessment, and capable of coordinating
on-scene cleanup operations, including
dispersant and mechanical recovery
operations. Observation personnel must
be trained in:
(i) The protocols of oil-spill reporting
and assessment, including estimation of
slick size, thickness, and quantity; and
(ii) The use of assessment techniques
in ASTM F1779–08 (incorporated by
reference, see § 154.106), and familiar
with the use of other guides, such as
NOAA’s ‘‘Open Water Oil Identification
Job Aid for Aerial Observation,’’ and
NOAA’s ‘‘Characteristic Coastal
Habitats’’ guide (available on the
Internet at http://
response.restoration.noaa.gov/use the
following links in the order presented:
Home|Emergency Response|Responding
to Oil Spills).
*
*
*
*
*
(o) The Coast Guard will continue to
evaluate the environmental benefits,

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cost efficiency and practicality of
increasing mechanical recovery
capability requirements. This
continuing evaluation is part of the
Coast Guard’s long term commitment to
achieving and maintaining an optimum
mix of oil spill response capability
across the full spectrum of response
modes. As best available technology
demonstrates a need to evaluate or
change mechanical recovery capacities,
a review of cap increases and other
requirements contained within this
subpart may be performed. Any changes
in the requirements of this section will
occur through a public notice and
comment process. During this review,
the Coast Guard will determine if
established caps remain practicable and
if increased caps will provide any
benefit to oil spill recovery operations.
The review will include, at least, an
evaluation of:
(1) Best available technologies for
containment and recovery;
(2) Oil spill tracking technology;
(3) High rate response techniques;
(4) Other applicable response
technologies; and
(5) Increases in the availability of
private response resources.
*
*
*
*
*
■ 12. In § 154.1065, add new paragraph
(e) to read as follows:
§ 154.1065 Plan review and revision
procedures.

*

*
*
*
*
(e) If required by §§ 154.1035(b)(3) or
154.1045, a new or existing facility
owner or operator must submit the
required dispersant and aerial oil
tracking resource revisions to a
previously submitted or approved plan,
made pursuant to §§ 154.1035(b)(3) or
154.1045, to the COTP and all other
holders of the response plan for
information or approval no later than
February 22, 2011.
■ 13. In appendix C to Part 154, revise
section 8 and amend Table 5 in section
9 by revising the entries for ‘‘February
18, 2003’’ to read as follows:
Appendix C to Part 154—Guidelines for
Determining and Evaluating Required
Response Resources for Facility
Response Plans
*

*

*

*

*

8. Determining the Capability of High-Rate
Response Methods
8.1. Calculate cumulative dispersant
application capacity as follows:
8.1.1 A facility owner or operator must
plan either for a dispersant capacity to
respond to a facility’s worst case discharge
(WCD) of oil, or for the amount of the
dispersant resource cap as required by
§ 154.1045(i)(3) of this chapter, whichever is

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the lesser amount. When planning for the
cumulative application capacity required, the
calculations must account for the loss of
some oil to the environment due to natural
dissipation causes (primarily evaporation).
The following procedure must be used to
determine the cumulative application
requirements:
8.1.2 Determine the WCD volume of oil in
gallons and the appropriate oil group for the
type of petroleum oil (persistent Groups II,
III, and IV). For facilities with mixed
petroleum oils, assume a total WCD volume
using the group that constitutes the largest
portion of the oil being handled or the group
with the smallest natural dissipation factor;
8.1.3 Multiply the total WCD amount in
gallons by the natural dissipation factor for
the appropriate oil group as follows: Group
II factor is 0.50; Group III is 0.30; and Group
IV is 0.10. This represents the amount of oil
that can be expected to be lost to natural
dissipation in a nearshore environment.
Subtract the oil amount lost to natural
dissipation from the total WCD amount to
determine the remaining oil available for
treatment by dispersant application; and
8.1.4 Multiply the oil available for
dispersant treatment by the dispersant-to-oil
planning application ratio of 1 part
dispersant to 20 parts oil (0.05). The resulting
number represents the cumulative total
dispersant-application capability that must
be ensured available within the first 60
hours.
8.1.5(i) The following is an example of
the procedure described in paragraphs 8.1.1
through 8.1.4 above: A facility with a
1,000,000 gallon WCD of crude oil (specific
gravity 0.87) is located in an area with preauthorization for dispersant use in the
nearshore environment on the U.S. East
Coast:
WCD: 1,000,000 gallons, Group III oil.
Natural dissipation factor for Group III: 30
percent.
General formula to determine oil available
for dispersant treatment: (WCD)·[(WCD) ×
(natural dissipation factor)] = available oil.
E.g., 1,000,000 gal·(1,000,000 gal × .30) =
700,000 gallons of available oil.
Cumulative application capacity =
Available oil × planning application ratio (1
gal dispersant/20 gals oil = 0.05).
E.g., 700,000 gal oil × (0.05) = 35,000
gallons cumulative dispersant-application
capacity.
(ii) The requirements for cumulative
dispersant-application capacity (35,000
gallons) for this facility’s WCD is less than
the overall dispersant capability for non-Gulf
Coast waters required by § 155.1045(i)(3) of
this chapter. Because paragraph 8.1.1 of this
appendix requires owners and operators to
ensure the availability of the lesser of a
facility’s dispersant requirements for WCD or
the amount of the dispersant cap provided
for in § 154.1045(i)(3), the facility in this
example would be required to ensure the
availability of 35,000 gallons of dispersant.
More specifically, this facility would be
required to meet the following tier
requirements in § 154.1045(i)(3), which total
35,000 gallons application:
Tier 1—4,125 gallons—Completed in 12
hours.

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Tier 2—23,375 gallons—Completed in 36
hours.
Tier 3—7,500 gallons—Completed in 60
hours.
8.2 Determine Effective Daily Application
Capacities (EDACs) for dispersant response
systems as follows:
8.2.1 EDAC planning estimates for
compliance with the dispersant application
requirements in § 154.1045(i)(3) are to be
based on:
8.2.1.1 The spill occurring at the facility;
8.2.1.2 Specific dispersant application
platform operational characteristics
identified in the Dispersant Mission Planner
2 or as demonstrated by operational tests;
8.2.1.3 Locations of primary dispersant
staging sites; and
8.2.1.4 Locations and quantities of
dispersant stockpiles.
8.2.2 EDAC calculations with supporting
documentation must be submitted to the
NSFCC for classification as a Dispersant Oil
Spill Removal Organization.
8.2.3(i) EDAC can also be calculated
using the Dispersant Mission Planner 2

(DMP2). The DMP2 is a downloadable
application that calculates EDAC for different
dispersant response systems. It is located on
the Internet at: http://
www.response.restoration.noaa.gov/
spilltools.
(ii) The DMP2 contains operating
information for the vast majority of
dispersant application platforms, including
aircraft, both rotary and fixed wing, and
vessels. The DMP2 produces EDAC estimates
by performing calculations based on
performance parameters of dispersant
application platforms, locations of primary
dispersant staging sites, home-based airport
or port locations, and the facility location (for
the spill site).
8.2.4 For each Captain of the Port zone
where a dispersant response capability is
required, the response plan must identify:
8.2.4.1 The type, number, and location of
each dispersant-application platform
intended for use to meet dispersant delivery
requirements specified in § 154.1045(i)(3) of
this chapter;

8.2.4.2 The amount and location of
available dispersant stockpiles to support
each platform; and,
8.2.4.3 A primary staging site for each
platform that will serve as its base of
operations for the duration of the response.
8.3 In addition to the equipment and
supplies required, a facility owner or
operator must identify a source of support to
conduct the monitoring and post-use
effectiveness evaluation required by
applicable regional plans and ACPs.
8.4 Identification of the resources for
dispersant application does not imply that
the use of this technique will be authorized.
Actual authorization for use during a spill
response will be governed by the provisions
of the National Oil and Hazardous
Substances Contingency Plan (40 CFR part
300) and the applicable Local or Area
Contingency Plan.
9. Additional Equipment Necessary To
Sustain Response Operations

*

*

*

*

*

TABLE 5—RESPONSE CAPABILITY CAPS BY OPERATING AREA
Tier 1
*
*
*
*
February 18, 2003:
All except rivers & canals & Great Lakes ......................................................
Great Lakes ...................................................................................................
Rivers & canals ..............................................................................................
*

*

*

*

*

*

*

*

PART 155—OIL OR HAZARDOUS
MATERIAL POLLUTION PREVENTION
REGULATIONS FOR VESSELS
14. The authority citation for part 155
continues to read as follows:

■

Authority: 33 U.S.C. 1231, 1321(j); E.O.
11735, 3 CFR, 1971–1975 Comp., p. 793.
Sections 155.100 through 155.130, 150.350
through 155.400, 155.430, 155.440, 155.470,
155.1030(j) and (k), and 155.1065(g) are also
issued under 33 U.S.C. 1903(b). Sections
155.480, 155.490, 155.750(e), and 155.775 are
also issued under 46 U.S.C. 3703. Section
155.490 also issued under section 4110(b) of
Pub. L. 101–380.
Note: Additional requirements for vessels
carrying oil or hazardous materials are
contained in 46 CFR parts 30 through 40,
150, 151, and 153.

15. In § 155.140—
(a) In paragraph (a), after the words
‘‘Washington, DC 20593–0001’’ add the
phone number ‘‘, 202–372–1251’’; and,
■ (b) Add new paragraphs (c)(4), (c)(5),
and (c)(6) to read as follows:

PWALKER on DSK8KYBLC1PROD with RULES3

■
■

§ 155.140

*

Incorporation by reference.

*
*
(c) * * *

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*

*

18:40 Aug 28, 2009

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*

*

*

*
*
*
*
(b) * * *
(1) * * *
(i) * * *
(D) Each operator of the system
should wear a safety belt or harness
secured by a lanyard to a lifeline, drop
line, or fixed structure such as a welded
padeye, if the sea or the weather

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25K bbls/day .........
12.3K bbls/day ......
3,750 bbls/day ......

*

§ 155.230 Emergency control systems for
tank barges.

Frm 00024

*

12.5K bbls/day ......
6.25K bbls/day ......
1,875 bbls/day ......

(4) ASTM F1413–07, Standard Guide
for Oil Spill Dispersant Application
Equipment: Boom and Nozzle Systems,
incorporation by reference approved for
§ 155.1050.
(5) ASTM F1737–07, Standard Guide
for Use of Oil Spill DispersantApplication Equipment During Spill
Response: Boom and Nozzle Systems,
incorporation by reference approved for
§ 155.1050.
(6) ASTM F1779–08, Standard
Practice for Reporting Visual
Observations of Oil on Water,
incorporation by reference approved for
§ 155.1050.
*
*
*
*
*
■ 16. In § 155.230, revise paragraph
(b)(1)(i)(D) to read as follows:

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*

Tier 3
*
50K bbls/day.
25K bbls/day.
7,500 bbls/day.
*

warrants this precaution. Each safety
belt, harness, lanyard, lifeline, and drop
line must meet the specifications of
ANSI A10.14 (incorporated by
reference, see § 155.140).
*
*
*
*
*
■ 17. Revise § 155.235 to read as
follows:
§ 155.235 Emergency towing capability for
oil tankers.

An emergency towing arrangement
shall be fitted at both ends on board all
oil tankers of not less than 20,000
deadweight tons (dwt), constructed on
or after September 30, 1997. For oil
tankers constructed before September
30, 1997, such an arrangement shall be
fitted at the first scheduled dry-docking,
but not later than January 1, 1999. The
design and construction of the towing
arrangement shall be in accordance with
IMO resolution MSC.35(63)
(incorporated by reference; see
§ 155.140).
■ 18. In § 155.1020, add the following
definitions, ‘‘Dispersant-application
platform,’’ ‘‘Dispersant Mission Planner
2 (DMP2),’’ ‘‘Effective daily application
capacity or EDAC,’’ ‘‘Gulf Coast,’’
‘‘Operational effectiveness monitoring,’’

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Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
‘‘Pre-authorization for dispersant,’’ and
‘‘Primary dispersant staging site’’ in
alphabetical order to read as follows:
§ 155.1020

Definitions.

PWALKER on DSK8KYBLC1PROD with RULES3

*

*
*
*
*
Dispersant-application platform
means the vessel or aircraft outfitted
with the dispersant-application
equipment acting as the delivery system
for the dispersant onto the oil spill.
Dispersant Mission Planner 2 (DMP2)
means an Internet-downloadable
application that estimates EDAC for
different dispersant response systems.
The NSFCC will use DPMP2 for
evaluating OSRO dispersant
classification levels.
Effective daily application capacity or
EDAC means the estimated amount of
dispersant that can be applied to a
discharge by an application system,
given the availability of supporting
dispersant stockpiles, when operated in
accordance with approved standards
and within acceptable environmental
conditions.
*
*
*
*
*
Gulf Coast means for the purposes of
dispersant application requirements, the
regions encompassing the following
Captain of the Port Zones:
(1) Corpus Christi, TX;
(2) Houston/Galveston, TX;
(3) Port Arthur, TX;
(4) Morgan City, LA;
(5) New Orleans, LA;
(6) Mobile, AL; and
(7) St. Petersburg, FL.
*
*
*
*
*
Operational effectiveness monitoring
means monitoring concerned primarily
with determining whether the
dispersant was properly applied and
how the dispersant is affecting the oil.
*
*
*
*
*
Pre-authorization for dispersant use
means an agreement, adopted by a
regional response team in coordination
with area committees, that authorizes
the use of dispersants at the discretion
of the Federal On-Scene Coordinator
without the further approval of other
Federal or State authorities. These preauthorization areas are generally limited
to particular geographic areas within
each region.
Primary dispersant staging site means
a site designated within a Captain of the
Port zone which is identified as a
forward staging area for dispersantapplication platforms and the loading of
dispersant stockpiles. Primary staging
sites would normally be the planned
location where the platform would load
or reload dispersants prior to departing
for application at the site of the
discharge and may not be the location

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where dispersant stockpiles are stored
or application platforms are home
based.
*
*
*
*
*
■ 19. In § 155.1035—
■ a. Revise paragraph(c)(5)(i) and
paragraph (i)(9); and,
■ b. Add paragraphs (i)(10) and (i)(11) to
read as follows:
§ 155.1035 Response plan requirements
for manned vessels carrying oil as a
primary cargo.

*

*
*
*
*
(c) * * *
(5) * * *
(i) The format and content of the shipto-ship transfer procedures must be
consistent with the Ship to Ship
Transfer Guide (Petroleum)
(incorporated by reference; see
§ 155.140) published jointly by the
International Chamber of Shipping and
the Oil Companies International Marine
Forum (OCIMF).
*
*
*
*
*
(i) * * *
(9) For vessels that handle, store, or
transport Group I through Group V
petroleum oils, the appendix must also
separately list the resource providers
identified to provide the salvage, vessel
firefighting, and lightering capabilities
required in this subpart.
(10) For vessels that handle, store, or
transport Group II through Group IV
petroleum oils, and that operate in
waters where dispersant use preauthorization agreements exist, the
appendix must also separately list the
resource providers and specific
resources, including appropriately
trained dispersant-application
personnel, necessary to provide, if
appropriate, the dispersant capabilities
required in this subpart. All resource
providers and resources must be
available by contract or other approved
means. The dispersant resources to be
listed within this section must include
the following:
(i) Identification of each primary
dispersant staging site to be used by
each dispersant-application platform to
meet the requirements of § 155.1050(k)
of this chapter;
(ii) Identification of the platform type,
resource provider, location, and
dispersant payload for each dispersantapplication platform identified.
Location data must identify the distance
between the platform’s home base and
the identified primary dispersantstaging site(s) for this section.
(iii) For each unit of dispersant
stockpile required to support the
effective daily application capacity
(EDAC) of each dispersant-application

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platform necessary to sustain each
intended response tier of operation,
identify the dispersant product resource
provider, location, and volume.
Location data must include the distance
from the stockpile to the primary staging
sites where the stockpile would be
loaded onto the corresponding
platforms. If an oil spill removal
organization has been evaluated by the
Coast Guard and its capability has been
determined to meet the response
capability needed by the owner or
operator, the section may identify the
oil spill removal organization only, and
not the information required in
paragraphs (i)(10)(i) through (i)(10)(iii)
of this section.
(11) The appendix must also
separately list the resource providers
and specific resources necessary to
provide oil-tracking capabilities
required in this subpart. The oil tracking
resources to be listed within this section
must include the following:
(i) The identification of a resource
provider; and
(ii) The type and location of aerial
surveillance aircraft that have been
ensured available, through contract or
other approved means, to meet the oil
tracking requirements of § 155.1050(l) of
this chapter.
*
*
*
*
*
■ 18. In § 155.1040—
■ a. Revise paragraph (j)(9); and,
■ b. Add new paragraphs (j)(10) and
(j)(11) to read as follows:
§ 155.1040 Response plan requirements
for unmanned tank barges carrying oil as a
primary cargo.

*

*
*
*
*
(j) * * *
(9) The appendix must include a
separate listing of the resource providers
identified to provide the salvage, vessel
firefighting, and lightering capabilities
required in this subpart.
(10) The appendix must include a
separate listing of the resource providers
and specific resources necessary to
provide, if appropriate, the dispersant
capabilities required in this subpart.
The dispersant resources to be listed
within this section must include:
(i) Identification of a primary
dispersant-staging site or sites to be
used by each dispersant-application
platform that is ensured available,
through contract or other approved
means, to meet the requirements of
§ 155.1050(k);
(ii) Identification of the type, resource
provider, location, and dispersant
payload for each dispersant-application
platform identified and ensured
available. Location data must identify
the distance between the platform’s

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home base and the identified primary
dispersant staging sites for this section;
and,
(iii) For each unit of dispersant
stockpile required to support the
effective daily application capacity
(EDAC) of each dispersant-application
platform necessary to sustain each
intended response tier of operation,
identification of the dispersant product
resource provider, location, and volume.
Location data must include the
stockpile’s distance to the primary
staging sites where it will be loaded
onto the corresponding platforms. If an
oil spill removal organization has been
evaluated by the Coast Guard and its
capability has been determined to equal
or exceed the response capability
needed by the owner or operator, the
appendix may identify only the oil spill
removal organization, and not the
information required in paragraphs
(j)(10)(i) through (j)(10)(iii) of this
section.
(11) The appendix must include a
separate listing of the resource providers
and specific resources necessary to
provide oil-tracking capabilities
required in this subpart. The oil tracking
resources listed within this section must
include:
(i) The identification of a resource
provider; and,
(ii) The type and location of aerial
surveillance aircraft that have been
ensured available, through contract or
other approved means, to meet the oil
tracking requirements of § 155.1050(l) of
this chapter.
*
*
*
*
*

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

§ 155.1050 Response plan development
and evaluation criteria for vessels carrying
groups I through IV petroleum oil as a
primary cargo.

*

*
*
*
*
(k) The owner or operator of a vessel
carrying groups II through IV petroleum
oil as a primary cargo that operates in
any inland, nearshore, or offshore area
with pre-authorization for dispersant
use must identify in their response plan,
and ensure availability through contract
or other approved means, of response
resources capable of conducting
dispersant operations within those
areas.
(1) Dispersant response resources
must be capable of commencing
dispersant-application operations at the
site of a discharge within 7 hours of the
decision by the Federal On-Scene
Coordinator to use dispersants.
(2) Dispersant response resources
must include all of the following:
(i) Sufficient dispersant capability for
application as required by paragraph
(k)(3) of this section. Any dispersants
identified in a response plan must be of
a type listed on the National Oil and
Hazardous Substances Pollution
Contingency Plan Product Schedule

(contained in 40 CFR part 300, and
available online from the U.S.
Government Printing Office).
(ii) Dispersant-application platforms
capable of delivering and applying
dispersant in the amounts required by
paragraph (k)(3) of this section. At least
50 percent of each effective daily
application capacity (EDAC) tier
requirement must be achieved through
the use of fixed wing aircraft-based
application platforms. The adequacy of
dispersant-application platforms not
detailed within the Dispersant Mission
Planner 2 must be documented by
presentation of independent evaluation
materials (e.g., field tests and reports of
actual use).
(iii) Dispersant-application personnel
trained in and capable of applying
dispersants within the performance
criteria in ASTM F1413–07
(incorporated by reference, see
§ 155.140). The adequacy of dispersantapplication systems not fully covered by
ASTM F1413–07, such as fire monitortype applicators, must be documented
by presentation of independent
evaluation materials (e.g., laboratory
tests, field tests, and reports of actual
use).
(iv) Dispersant-application systems
ensured to be available, including
trained personnel, that are capable of
applying dispersants in accordance with
the recommended procedures in ASTM
F1737–07 (incorporated by reference,
see § 155.140).

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

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Response
time for
completed
application

Dispersant application
dispersant: oil treated in
gallons
(Gulf Coast)

Dispersant application
dispersant: oil treated in
gallons
All other U.S.

Tier 1 ................................................................................................................
Tier 2 ................................................................................................................
Tier 3 ................................................................................................................

12
36
60

8,250:165,000
23,375:467,000
23,375:467,000

4,125:82,500
23,375:467,000
23,375:467,000

Total ..........................................................................................................

60

55,000:1,100,000

50,875:1,017,500

Note: Gulf Coast Tier 1 is higher due to
greater potential spill size and frequency in
that area, and it is assumed that dispersant
stockpiles would be centralized in the Gulf
area. Alternative application ratios may be
considered based on submission to Coast
Guard Headquarters, Office of Incident
Management & Preparedness (CG–533) of
peer-reviewed scientific evidence of
improved capability.

(3) Dispersant stockpiles, application
platforms, and other supporting
resources must be ensured available in
a quantity and type sufficient to treat a

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vessel’s worst case discharge (as
determined by using the criteria in
Section 8 of appendix B), or in
quantities sufficient to meet the
requirements in Table 155.1050(k),
whichever is the lesser amount.
(l) The owner or operator of a vessel
carrying groups I through IV petroleum
oil as a primary cargo must identify in
the response plan, and ensure their
availability through contract or other
approved means, response resources
necessary to provide aerial oil tracking
to support oil spill assessment and

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cleanup activities. Vessels operating on
inland rivers are not required to comply
with this paragraph.
(1) Aerial oil tracking resources must
be capable of arriving at the site of a
discharge in advance of the arrival of
response resources identified in the
plan for tiers 1, 2, and 3 Worst Case
Discharge response times, and for a
distance up to 50 nautical miles from
shore (excluding inland rivers).
(2) Aerial oil tracking resources must
include the following:

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(i) Appropriately located aircraft and
personnel capable of meeting the
response time requirement for oil
tracking in § 155.1050(l)(1) of this
section;
(ii) Sufficient numbers of aircraft,
pilots, and trained observation
personnel to support oil spill
operations, commencing upon initial
assessment, and capable of coordinating
on-scene cleanup operations, including
dispersant, in-situ burning, and
mechanical recovery operations;
(iii) Observation personnel must be
trained in the protocols of oil spill
reporting and assessment, including
estimation of slick size, thickness, and
quantity. Observation personnel must be
trained in the use of assessment
techniques in ASTM F1779–08
(incorporated by reference, see
§ 155.140), and familiar with the use of
pertinent guides, including, but not
limited to, NOAA’s ‘‘Open Water Oil
Identification Job Aid for Aerial
Observation’’ and the ‘‘Characteristic
Coastal Habitats’’ guide; and
(iv) The capability of supporting oil
spill removal operations continuously
for three 10-hour operational periods
during the initial 72 hours of the
discharge.
*
*
*
*
*
(q) The Coast Guard will continue to
evaluate the environmental benefits,
cost efficiency and practicality of
increasing mechanical recovery
capability requirements. This
continuing evaluation is part of the
Coast Guard’s long term commitment to
achieving and maintaining an optimum
mix of oil spill response capability
across the full spectrum of response
modes. As best available technology
demonstrates a need to evaluate or
change mechanical recovery capacities,
a review of cap increases and other
requirements contained within this
subpart may be performed. Any changes
in the requirements of this section will
occur through a public notice and
comment process. During this review,
the Coast Guard will determine if
established caps remain practicable and
if increased caps will provide any
benefit to oil spill recovery operations.
The review will include and evaluation
of:
(1) Best available technologies for
containment and recovery;
(2) Oil spill tracking technology;
(3) High rate response techniques;
(4) Other applicable response
technologies; and
(5) Increases in the availability of
private response resources.
■ 20. In § 155.1070, add new paragraph
(i) to read as follows:

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

*

*
*
*
*
(i) If required by §§ 155.1035(i),
155.1040(j), and 155.1050 (k) and (l), a
new or existing vessel owner or operator
must submit the required dispersant and
aerial oil tracking resource revisions to
a previously submitted or approved
plan, made pursuant to §§ 155.1035(i),
155.1040(j), and 155.1050(k) and (l), to
Coast Guard Headquarters, Office of
Vessel Activities (CG–543) and all other
holders of the response plan for
information or approval no later than
February 22, 2011.
§ 155.4020

[Amended]

21. In § 155.4020, amend paragraphs
(a) and (c)(1) by removing the date ‘‘June
1, 2010’’ and adding in its place
‘‘February 22, 2011’’.
■ 22. In Appendix B to Part 155:
■ A. Amend section 7.2.4. by removing
the last 3 sentences and adding 2
sentences in their place.
■ B. Revise section 8.
■ C. Amend Table 6 in section 9 by
revising the entries for ‘‘February 18,
2003’’.
The additions and revisions read as
follows:
■

APPENDIX B TO PART 155—
DETERMINING AND EVALUATING
REQUIRED RESPONSE RESOURCES
FOR VESSEL RESPONSE PLANS
*

*

*

*

*

7. Calculating the Worst Case Discharge
Planning Volumes

*

*

*

*

*

7.2.4 * * * If the required capacity
exceeds the applicable cap described in
Table 6 of this appendix, then a vessel owner
or operator must contract for at least the
quantity of resources required to meet the
cap, but must identify sources of additional
resources as indicated in § 155.1050(p). For
a vessel that carries multiple groups of oil,
the required effective daily recovery capacity
for each group is calculated and summed
before applying the cap.

*

*

*

*

*

8. Determining the Capability of High-Rate
Response Methods
8.1 Calculate cumulative dispersant
application capacity requirements as follows:
8.1.1 A vessel owner or operator must
plan either for a dispersant capacity to
respond to a vessel’s worst case discharge
(WCD) of oil, or for the amount of the
dispersant resource capability as required by
§ 155.1050(k)(3) of this chapter, whichever is
the lesser amount. When planning for the
cumulative application capacity that is
required, the calculations should account for
the loss of some oil to the environment due
to natural dissipation causes (primarily
evaporation). The following procedure
should be used to determine the cumulative
application requirements:

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45029

8.1.2 Determine the WCD volume of oil
carried in gallons, and the appropriate oil
group for the type of petroleum oil carried
(Groups II, III, IV). For vessels carrying
different oil groups, assume a WCD using the
oil group that constitutes the largest portion
of the oil being carried, or the oil group with
the smallest natural dissipation factor;
8.1.3 Multiply the WCD in gallons by the
natural dissipation factor for the appropriate
oil group as follows: Group II factor is 0.50;
Group III factor is 0.30; and Group IV factor
is 0.10. This represents the amount of oil that
can be expected to be lost to natural
dissipation. Subtract the WCD lost to natural
dissipation from the total oil amount carried
to determine the remaining oil available for
treatment by dispersant-application; and
8.1.4 Multiply the oil available for
dispersant treatment by the dispersant to oil
planning application ratio of 1 part
dispersant to 20 parts oil (0.05). The resulting
number represents the cumulative total
dispersant-application capability that must
be ensured available within the first 60
hours.
8.1.5(i) The following is an example of
the procedure described in paragraphs 8.1.1
through 8.1.4 above: A vessel with a
1,000,000 gallons capacity of crude oil
(specific gravity 0.87) will transit through an
area with pre-authorization for dispersant use
in the nearshore environment on the U.S.
East Coast.
WCD: 1,000,000 gallons, Group III oil.
Natural Dissipation Factor for Group III: 30
percent.
General formula to determine oil available
for dispersant treatment: ((WCD)—[(WCD) ×
(natural dissipation factor)] = available oil.
E.g., 1,000,000 gal·(1,000,000 gal × 0.30)
= 700,000 gallons of available oil.
Cumulative application capacity =
Available oil × planning application ratio (1
gal dispersant/20 gals oil = 0.05).
E.g., 700,000 gal oil × (0.05) = 35,000
gallons cumulative dispersant-application
capacity.
(ii) The requirements for cumulative
dispersant-application capacity (35,000) for
this vessel’s WCD is less than the overall
dispersant capability cap for non-Gulf Coast
waters required by § 155.1050(k) of this
chapter. Because paragraph 8.1.1 of this
appendix requires owners and operators to
ensure the availability of the lesser of a
vessel’s dispersant requirements for WCD or
the amount of the dispersant cap provided
for in § 155.1050(k)(3), the vessel in this
example would be required to ensure the
availability of 35,000 gallons of dispersant.
More specifically, this vessel would be
required to meet the following tier
requirements in § 155.1050(k), which total
35,000 gallons application:
Tier—1 4,125 gallons—Completed in 12
hours.
Tier—2 23,375 gallons—Completed in 36
hours.
Tier—3 7,500 gallons—Completed in 60
hours.
8.2 Determining Effective Daily
Application Capacities ‘‘EDACs’’ for
dispersant response systems as follows:
8.2.1 EDAC planning estimates for
compliance with the dispersant application

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requirements in § 155.1050(k)(3) are to be
based on:
8.2.1.1 The spill occurring at sites 50
nautical miles off shore furthest from the
primary dispersant staging site(s);
8.2.1.2 Specific dispersant application
platform operational characteristics
identified in the Dispersant Mission Planner
2 or as demonstrated by operational tests;
8.2.1.3 Locations of primary dispersant
staging sites; and
8.2.1.4 Locations and quantities of
dispersant stockpiles.
8.2.2 EDAC calculations with supporting
documentation must be submitted to the
NSFCC for classification as a Dispersant Oil
Spill Removal Organization.
8.2.3(i) EDAC can also be calculated
using the Dispersant Mission Planner 2
(DMP2). The DMP2 is a downloadable
application that calculates EDAC for different
dispersant response systems. It is located on
the Internet at: http://
www.response.restoration.noaa.gov/spilltools

(ii) The DMP2 contains operating
information for the vast majority of
dispersant application platforms, to include
aircraft, both rotary and fixed wing, and
vessels. The DMP2 produces EDAC estimates
by performing calculations that are based on
performance parameters of dispersant
application platforms, locations of primary
dispersant staging sites, home based airport
or port locations, and for planning purposes,
a 50 mile from shore dispersant application
site. The 50 mile offshore site used in the
DMP2 would be the location furthest from
the primary dispersant staging site identified
in the vessel response plan.
8.2.4 For each Captain of the Port Zone
where a dispersant response capability is
required, the response plan must identify the
following:
8.2.4.1 The type, number, and location of
each dispersant application platform
intended for use in meeting dispersant
delivery requirements specified in
§ 155.1050(k)(3) of this chapter;

8.2.4.2 The amount and location of
available dispersant stockpiles to support
each platform; and
8.2.4.3 A primary staging site for each
platform that will serve as its base of
operations for the duration of the response.
8.3 In addition to the equipment and
supplies required, a vessel owner or operator
must identify a source of support to conduct
the monitoring and post-use effectiveness
evaluation required by applicable Local and
Area Contingency Plans.
8.4 Identification of the resources for
dispersant application does not imply that
the use of this technique will be authorized.
Actual authorization for use during a spill
response will be governed by the provisions
of the National Oil and Hazardous
Substances Contingency Plan (40 CFR part
300) and the applicable Local or Area
Contingency Plan.
9. Additional Equipment Necessary To
Sustain Response Operations

*

*

*

*

*

TABLE 6—RESPONSE CAPABILITY CAPS BY OPERATING AREA
Tier 1
*
*
*
*
February 18, 2003:
All except rivers & canals & Great Lakes ......................................................
Great Lakes ...................................................................................................
Rivers & canals ..............................................................................................
*

*

*

Tier 2

*
12.5K bbls/day ......
6.25K bbls/day ......
1,875 bbls/day ......

*

*
25K bbls/day .........
12.3K bbls/day ......
3,750 bbls/day ......

*

*

Dated: August 14, 2009.
Lincoln D. Stroh,
Captain, U.S. Coast Guard, Acting Director
of Prevention Policy.
[FR Doc. E9–20311 Filed 8–28–09; 8:45 am]

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Tier 3
*
50K bbls/day.
25K bbls/day.
7,500 bbls/day.
*