Temporary Suspension of Certain Oil Spill Response Time Requirements To Support Deepwater Horizon Oil Spill of National Significance (SONS) Response, 79961-79964 [2010-32018]
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Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 154 and 155
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[Docket No. USCG–2010–0592; EPA–HQ–
OPA–2010–0559]
RIN 1625–AB49; 2050–AG63
Temporary Suspension of Certain Oil
Spill Response Time Requirements To
Support Deepwater Horizon Oil Spill of
National Significance (SONS)
Response
Coast Guard, DHS, and
Environmental Protection Agency.
ACTION: Notice of no further regulatory
action and alternative arrangements.
AGENCIES:
The Coast Guard and the
Environmental Protection Agency (EPA)
announce that we have considered the
comments, materials, and evidence
received in response to the joint
emergency temporary interim rule
issued on June 30, 2010, and do not
intend to take further regulatory action
regarding the rule. As such, the rule will
expire as scheduled on December 31,
2010. The Coast Guard and EPA also
provide notice of the alternative
arrangements under the National
Environmental Policy Act used for the
joint emergency temporary interim rule.
ADDRESSES: Documents indicated in this
preamble as being available in the
docket are part of dockets USCG–2010–
0592 and EPA–HQ–OPA–2010–0559
and are available online by going to
https://www.regulations.gov, inserting
USCG–2010–0592 or EPA–HQ–OPA–
2010–0559 in the ‘‘Keyword’’ box, and
then clicking ‘‘Search.’’ They are also
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays; and EPA
Docket Center (EPA/DC), EPA West,
Room 3334, 1301 Constitution Avenue,
NW., Washington, DC 20460, Public
Reading Room, between 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the EPA Docket Center
Public Reading Room is 202–566–1744,
and the telephone number to make an
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SUMMARY:
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appointment to view the docket is 202–
566–0276.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
rule, call or e-mail:
Coast Guard: (Facilities) Mr. David
Condino, Ports and Facilities Division,
Coast Guard, telephone 202–372–1145,
e-mail David.A.Condino@uscg.mil;
(Vessels) LCDR Ryan Allain, Office of
Vessel Activities, Coast Guard,
telephone 202–372–1226, e-mail
Ryan.D.Allain@uscg.mil. If you have
questions on viewing the USCG–2010–
0952 docket, call Renee V. Wright,
Program Manager, Docket Operations,
telephone 202–366–9826.
EPA: Troy Swackhammer, U.S.
Environmental Protection Agency,
telephone 202–564–1966, e-mail
swackhammer.j-troy@epa.gov.
SUPPLEMENTARY INFORMATION: On April
20, 2010, the Mobile Offshore Drilling
Unit (MODU) ‘‘Deepwater Horizon’’
exploded and sank, causing an
unprecedented discharge of crude oil
into the Gulf of Mexico, which was
thereafter declared a ‘‘Spill of National
Significance’’ (SONS). On April 24,
2010, the Commandant of the Coast
Guard designated a Federal On-Scene
Coordinator (FOSC) to coordinate
Federal and State responses to the oil
spill.
On June 16, 2010, the FOSC for the
Deepwater Horizon SONS determined,
after consulting with appropriate
Federal and State agencies, that an
adequate number of available oil spill
response resources could not be
employed in a timely manner to recover
the oil released from the Deepwater
Horizon SONS. (Memorandum from
Rear Admiral J.A. Watson, FOSC BP
Deepwater Horizon Oil Spill, to
National Incident Command (June 16,
2010), available in the docket for this
rulemaking).
In response to the FOSC’s
determination, on June 30, 2010, the
Coast Guard and EPA issued a joint
emergency temporary interim rule
permitting oil spill removal
organizations (OSROs) and facilities and
vessels with oil spill response resources
to relocate those resources to the Gulf of
Mexico Deepwater Horizon SONSat the
FOSC’s request. 75 FR 37712. The rule
also confirmed that the FOSC for the
Deepwater Horizon SONS requested
that the Armed Forces relocate response
resources, in particular those of the
Navy, from their current locations
within the continental United States to
the Gulf of Mexico to aid in the
response to the Deepwater Horizon
SONS.
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79961
The Navy did relocate response
resources to the Deepwater Horizon
SONS. While many spare State and
privately owned resources had already
relocated to the Gulf of Mexico before
publication of the rule, no State or
private entity relocated response
resources to the SONS under the
provisions of the rule.
The Coast Guard and EPA also
requested comments on the rule, and
stated that we would consider those
comments and any other materials or
evidence received from the field on an
ongoing basis every thirty days to
determine if changes to the rule might
be necessary. The comment period
closed on August 16, 2010, with the
Coast Guard and EPA receiving 27
comments. We discuss those comments
below. Neither the Coast Guard nor EPA
has received comments since the close
of the comment period. Although the
rule will expire as scheduled on
December 31, 2010, Coast Guard and
EPA will continue to consider any new
or additional comments, material or
evidence related to the provisions of the
rule until that date. If we decide to make
changes to the rule before its expiration,
we will publish another joint notice, or
other appropriate document, in the
Federal Register.
For this emergency rulemaking, and
in accordance with Council On
Environmental Quality (CEQ)
Regulations Implementing the
Procedural Requirements of the
National Environmental Policy Act (40
CFR parts 1500–1508) and the National
Environmental Policy Act of 1969
(NEPA) (43 U.S.C. 4321–4370f), the
Coast Guard, with the assistance of EPA,
consulted with CEQ about alternative
arrangements pursuant to 40 CFR
1506.11. The Coast Guard, with the
assistance of EPA, continued to consult
with CEQ as well as with the National
Oceanic and Atmospheric
Administration (NOAA) and other key
authorities in order to determine
appropriate environmental impact
analysis. A discussion of these
consultations and determinations is
below in B. Alternative Arrangements
under NEPA. As stated above and
discussed in greater detail below, the
rule will expire as scheduled on
December 31, 2010, without changes.
A. Discussion of Comments
The Coast Guard and EPA received 8
letters containing 27 comments in
response to the request for comments on
the rule. Commenters included
individuals; an organization that
represents companies that own, operate
or charter tankers, ships, and other
merchant vessels engaged in domestic
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and international trade; an organization
representing State environmental and
health agencies; and a trade association
representing companies involved in all
aspects of the oil and natural gas
industry. We also received comments
from the Makah Tribal Council (MTC),
and joint comments from the Governor
of Washington and the Governor of
Oregon. The Coast Guard and EPA
responded directly in writing to MTC
and the Governors. Those comments
and responses, together with all other
public comments, are available in the
docket for this rulemaking. Also in the
docket is a summary of an in-person
communication that occurred on July 1,
2010, between Coast Guard personnel
and OSRO community representatives
regarding the rule. The in-person
communication touched on concerns
and questions about the substance of the
rule, as well as questions relating to
implementation of the rule. These
concerns and questions and Coast Guard
responsive comments are included in
the summary of the communication, and
are covered in the discussion below.
Several of the comments expressed
support for the Coast Guard and EPA
efforts to respond to the Deepwater
Horizon SONS, and we appreciate the
statements of support. Several other
comments provided opinions about the
causes and effects of the oil spill. The
Coast Guard and EPA appreciate these
commenters’ participation in this
rulemaking, however, such comments
are beyond the scope of this rulemaking
and are not addressed in this document.
The remaining comments addressed the
rule and are discussed by topic below.
1. Plan Holder Liability
Commenters were concerned about
plan holder liability for damages and
penalties if a spill occurred in their
original location after the plan holder
already contractually released its spill
response providers and equipment for
use in the response to the Deepwater
Horizon SONS. Commenters were also
concerned about liability under State
requirements as well as other penalties,
such as natural resource damages, under
other Federal and State law.
Response: The intent of the rule is to
make available more response resources
for use in responding to the Deepwater
Horizon SONS by relieving certain
Coast Guard and EPA regulatory
requirements. Through this rule, the
Coast Guard and EPA encouraged plan
holders to relieve their contractedOSROs of certain responsibilities in
order for those OSROs to be available to
aid in responding to the Deepwater
Horizon SONS. The Coast Guard and
EPA coordinated on the rule because
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many oil spill response plans address
both Coast Guard and EPA oil spill
response requirements. The rule was not
meant to address all sources of potential
plan holder liability, including other
Federal requirements or State
requirements.
2. Oil Spill Response Resources Return
Time
Several comments noted concerns
about the return of assets to original
locations. One comment expressed
concern that the rule does not contain
a timetable for returning assets used in
response to the Deepwater Horizon
SONS. Other comments noted the
distances and travel time for response
assets from the West Coast, especially
for larger vessels, to deploy to the Gulf
in response to the Deepwater Horizon
SONS and to return to the assets’
original locations if needed to respond
to an oil spill in those locations.
Response: The rule does not address
return times for assets relocated in
support of the response to the
Deepwater Horizon SONS, because
under the rule such issues, including
the relative environmental impacts and
other risks and impacts of the FOSC
requesting and accepting offers for
specific response resources from
locations outside the Gulf of Mexico, are
coordinated at the local level with the
cognizant Captains of the Port (COTPs),
Regional Response Teams, and Area
Committees.
Additionally, in the letter to the
Governors of Washington and Oregon
dated September 3, 2010, (available in
the docket) the Coast Guard and EPA
specifically stated: ‘‘Any decision to
request or accept [deployment of
equipment or personnel that would
result in the loss of response capability
below worst case and maximum most
probable discharge response time
requirements in the Pacific Northwest]
will consider carefully the distances and
travel time from the West Coast to the
Gulf Coast spill.’’
3. Adequate Coverage in Regions
Outside the Gulf of Mexico
Comments addressed concerns about
whether the Average Most Probable
Discharge and Small Discharge
standards in the rule provided adequate
coverage, especially for the West Coast
and Pacific Northwest, as well as delays
in an adequate number of response
resources responding to any oil spill
outside of the Gulf Region. One
comment noted that almost all new
response equipment manufactured/built
during the Deepwater Horizon SONS
will likely be purchased/deployed for
response to the Deepwater Horizon
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SONS, further lengthening the time to
return other locations to full
preparedness levels under current
response plan standards.
Response: As discussed above, under
the rule, any decisions about equipment
and personnel deployment are
coordinated at the local level with the
cognizant COTPs, Regional Response
Teams, and Area Committees.
Additionally, the letter to the Governors
of Washington and Oregon stated that
Coast Guard and EPA will continue to
work in close coordination with state
and local governments, affected local
industries, Regional Response Teams
and Area Committees to maintain a
level of equipment able to best protect
all localities.
4. Regional Approach for Moving
Response Assets
Two comments suggested that the
Coast Guard and EPA develop a regional
approach rather than one nationwide
rule for moving response assets. The
comments encouraged developing
regional strategies to ensure sufficient
coverage remains in those regions before
moving oil spill response assets outside
of those regions. Another comment
specifically requested utilizing Regional
Response Teams for such a regional
approach.
Response: The Coast Guard and EPA
agree that the decision to actually move
response assets is best made at the local
and regional level. In order to allow
those local and regional decisions to be
made, however, this nationwide rule is
necessary to temporarily suspend
certain regulatory response time
requirements. As stated in the rule, the
Coast Guard and EPA coordinate and
consult with Regional Response Teams
and Area Committees, which include
State representatives, for such decisions.
Additionally, in a letter to the
Governors of Washington and Oregon,
the Coast Guard and EPA specifically
stated: ‘‘If there were to be a scenario in
which more response resources were
needed in the Gulf, we would work
closely with [state and local
governments and affected local
industries] and the Regional Response
Teams and Area Committees, to ensure
that we do not deploy equipment or
personnel that would result in the loss
of response capability below worst case
and maximum most probable discharge
response time requirements in the
Pacific Northwest.’’
5. Plan Holders Included in the Decision
To Move Assets
At least one comment requested that
plan holders be included in any
discussion regarding movement of
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Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations
response assets to the Gulf or any future
Spill of National Significance.
Response: The rule only addresses
relocating assets in response to the
Deepwater Horizon SONS. The Coast
Guard and EPA agree that plan holders
should be included in discussions
regarding movement of response assets
in response to the Deepwater Horizon
SONS. That is why, as stated in the rule,
any such relocation of assets is done
only through coordination with the
cognizant COTPs and Regional
Response Teams and Area Committees,
which include oil spill response
community and plan holder
representatives.
6. State Consultation
One comment requested that Coast
Guard and EPA formally consult with
state environmental agencies prior to
approving the deployment of additional
equipment and personnel out of their
region that would result in the loss of
response capability below the federal
Maximum Most Probable Discharge
standards.
Response: As stated in the rule, States
are involved in any decisions about
equipment and personnel deployment.
The Coast Guard and EPA stated that we
coordinate and consult with Regional
Response Teams and Area Committees,
which include State representatives, for
such decisions. Additionally, in the
letter to the Governors of Washington
and Oregon, the Coast Guard and EPA
stated that we will continue to work in
close coordination with state and local
governments and affected local
industries.
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7. Other Federal Laws and State and
Local Laws
Several comments noted that the rule
addresses only Coast Guard and EPA
requirements, but that plan holders are
also covered by other Federal regulatory
requirements as well as State and local
laws. One comment suggested revising
the rule to address other Federal
requirements as well as State and local
requirements. Another comment
suggested creating a permanent rule to
address all Federal and State response
standards for use in such emergency
situations. This comment suggested
working with States and Congress for a
legislatively established emergency
procedure for such situations.
Response: The Coast Guard and EPA
coordinated on the rule because many
oil spill response plans address both
Coast Guard and EPA oil spill response
requirements. The rule was not meant to
address all Federal requirements or
State requirements. In the rule, we
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specifically stated that States are
authorized to establish oil spill response
standards more stringent than Coast
Guard and EPA, and Coast Guard and
EPA coordinate and consult with State
representatives, regarding
implementation of the rule. The rule
will expire on December 31, 2010. The
Coast Guard and EPA are considering
whether a permanent rule addressing
this issue is necessary, but would
initiate a separate rulemaking for any
such permanent rule.
8. Tribal Implications
The MTC disagreed with the finding
in the rule that the rule does not have
tribal implications under EO 13175
because tribal marine resources could be
significantly jeopardized by an
uncontained oil spill due to the
depletion of government and private oil
spill response assets in this region.
Response: In a letter to the MTC dated
August 24, 2010, (available in the
docket), the Coast Guard reaffirmed its
determination that the rule does not
have any tribal implications because the
rule does not require the movement of
any oil spill response resources away
from current locations. Additionally, the
letter noted that the MTC has been
appointed to the Northwest Area
Committee and will be part of any
decision on whether to relocate oil spill
response resources away from that
Committee’s area. EPA has also
reaffirmed, through a letter to the MTC
dated October 25, 2010, its
determination that the rule does not
have any tribal implications because the
rule does not require the movement of
any oil spill response resources away
from current locations.
9. Plan Holder Input Into the Rule
One commenter felt that plan holders
did not have sufficient input into the
development of the rule.
Response: The Coast Guard and EPA
note that the rule was issued as an
emergency rulemaking in response to
the exigent circumstances presented by
the Deepwater Horizon SONS. Plan
holders were given an opportunity to
comment on the rule during the
comment period. All comments,
materials and evidence received on the
rule are discussed above in this section.
B. Alternative Arrangements Under
NEPA
Coast Guard and DHS, with the
assistance of EPA, consulted with CEQ
pursuant to NEPA regulations found in
40 CFR 1506.11 to develop alternative
NEPA arrangements for implementation
of this rule. These alternative
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79963
arrangements, which take the place of
an Environmental Impact Statement,
provide that Coast Guard and DHS will
consider the potential for significant
impacts to the human environment from
this rule during implementation of the
rule. The Alternative Arrangements
were posted to the Deepwater Horizon
Web site (https://www.dhs.gov/xabout/
laws/gc_1283521666674.shtm) on July
13, 2010, and remain available to
interested parties at this Web site. The
Alternative Arrangements are also
available in the docket as indicated
under ADDRESSES above.
Under the alternative arrangements,
each COTP consults with the Area
Committee and pertinent Regional
Response Teams to determine what
assets may be made available to address
the SONS using the Area Contingency
Plans (ACP). Each ACP includes an
annex containing a Fish and Wildlife
and Sensitive Environments Plan
prepared in consultation with the U.S.
Fish and Wildlife Service and NOAA
and other interested natural resource
management agencies and parties
(including coastal zone management
agencies). The annex addresses fish and
wildlife resources and their habitat, and
other areas the Area Committee
recommends be considered sensitive
environments. The annex provides the
information and procedures to
immediately and effectively respond to
discharges that may adversely affect fish
and wildlife and their habitat and
sensitive environments. Determination
of the needed response resources
considers local and regional factors such
as environmental risks, logistic
limitations, and unique local or regional
circumstances.
The determination by each COTP
regarding available assets in the area
includes considering the development
of equipment relocation and backfilling
(i.e., cascade plans) which will expand
the interlocking response back up of the
various OSROs, and integrates military
resources which have previously been
kept independent of supporting the
civilian OSROs. The COTP also
considers available information on the
availability of current response
resources, particularly in areas with
large vessel traffic lanes, heavy vessel
traffic, oil refineries, oil storage and
pipeline facilities, seasonal risks
associated with weather, and trends
associated with weather, currents and
tides.
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Federal Register / Vol. 75, No. 244 / Tuesday, December 21, 2010 / Rules and Regulations
Dated: December 2, 2010.
Robert Papp,
Admiral, U.S. Coast Guard, Commandant.
Lisa P. Jackson,
Administrator, U.S. Environmental Protection
Agency.
errors and areas within the final RFS2
regulations that could benefit from
clarification or modification. In a direct
final rule and parallel notice of
proposed rulemaking published on May
10, 2010, EPA included language to
amend the regulations to make the
[FR Doc. 2010–32018 Filed 12–20–10; 8:45 am]
appropriate corrections, clarifications,
BILLING CODE 9110–04–P; 6560–50–P
and modifications. However, EPA
received adverse comment on a few
provisions in the direct final rule and,
ENVIRONMENTAL PROTECTION
on June 30, 2010, withdrew those
AGENCY
provisions prior to their effective date of
July 1, 2010. In today’s action, EPA is
40 CFR Part 80
addressing the comments received on
[EPA EPA–HQ–OAR–2005–0161; FRL–9241– the portions of the direct final rule that
4]
were withdrawn and is taking final
action regarding the withdrawn
RIN 2060–AQ31
provisions based on consideration of the
Regulation of Fuels and Fuel
comments received.
Additives: Modifications to Renewable DATES: This final rule is effective on
Fuel Standard Program
January 1, 2011.
ADDRESSES: EPA has established a
AGENCY: Environmental Protection
docket for this action under Docket ID
Agency (EPA).
No. EPA–HQ–OAR–2005–0161. All
ACTION: Final r ule.
documents in the docket are listed on
SUMMARY: EPA is finalizing amendments the http:://www.regulations.gov Web
site. Although listed in the index, some
to certain of the Renewable Fuel
Standard program regulations that were information is not publicly available,
e.g., CBI or other information whose
published on March 26, 2010, and that
disclosure is restricted by statute.
took effect on July 1, 2010 (‘‘the RFS2
Certain other material, such as
regulations’’). Following publication of
copyrighted material, is not placed on
the RFS2 regulations, promulgated in
the Internet and will be publicly
response to the requirements of the
available only in hard copy form.
Energy Independence and Security Act
of 2007, EPA discovered some technical Publicly available docket materials are
NAICS codesa
Category
Industry
Industry
Industry
Industry
Industry
Industry
Industry
a North
........................................
........................................
........................................
........................................
........................................
........................................
........................................
SIC codesb
324110
325193
325199
424690
424710
424720
454319
generally available either electronically
through https://www.regulations.gov or
in hard copy at the Air and Radiation
Docket, ID No. EPA–HQ–OAR–2005–
0161, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the Air
and Radiation Docket is (202) 566–9744.
FOR FURTHER INFORMATION CONTACT:
Megan Brachtl, Compliance and
Innovative Strategies Division, Office of
Transportation and Air Quality (6405J),
Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., 20460;
telephone number: (202) 343–9473; fax
number: (202) 343–2802; e-mail
address: brachtl.megan@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected by this
final rule include those involved with
the production, importation,
distribution, and sale of transportation
fuels, including gasoline and diesel fuel
and renewable fuels such as ethanol and
biodiesel. Regulated categories and
entities affected by this action include:
Examples of potentially regulated parties
2911
2869
2869
5169
5171
5172
5989
Petroleum refiners, importers.
Ethyl alcohol manufacturers.
Other basic organic chemical manufacturers.
Chemical and allied products merchant wholesalers.
Petroleum bulk stations and terminals.
Petroleum and petroleum products merchant wholesalers.
Other fuel dealers.
American Industry Classification System (NAICS).
Industrial Classification (SIC) system code.
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b Standard
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
activities would be regulated by this
action, you should carefully examine
the applicability criteria of Part 80,
subpart M of title 40 of the Code of
Federal Regulations. If you have any
questions regarding the applicability of
this action to a particular entity, consult
the person in the FOR FURTHER
INFORMATION CONTACT section above.
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22:26 Dec 20, 2010
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II. Renewable Fuel Standard (RFS2)
Program Amendments
EPA issued final regulations
implementing changes to the Renewable
Fuel Standard program required by
EISA on March 26, 2010, at 75 FR 14670
(‘‘the RFS2 regulations’’). Following
publication of the RFS2 regulations,
EPA discovered some technical errors
and areas that could benefit from
clarification or modification and, in
parallel proposed and direct final rules
published on May 10, 2010 (75 FR
26049, 75 FR 26026), included
amendments to the regulations to
correct these deficiencies. EPA received
adverse comment on a few of the
amendments and therefore, on June 30,
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2010, withdrew the portions of the
direct final rule that were the subject of
adverse comment (75 FR 37733). The
withdrawn provisions consist of the
following:
—Certain of the amendments to
§ 80.1401, specifically those which
moved the definitions of ‘‘actual peak
capacity,’’ ‘‘baseline volume,’’ and
‘‘permitted capacity’’ from
§ 80.1403(a), revised the definition of
‘‘actual peak capacity’’ to clarify how
it is calculated, and revised the
definition of ‘‘permitted capacity’’ to
clarify the dates by which permits
used to establish a facility’s permitted
capacity must have been issued or
revised;
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]]>Agencies
[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Rules and Regulations]
[Pages 79961-79964]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32018]
[[Page 79961]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 154 and 155
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 112
[Docket No. USCG-2010-0592; EPA-HQ-OPA-2010-0559]
RIN 1625-AB49; 2050-AG63
Temporary Suspension of Certain Oil Spill Response Time
Requirements To Support Deepwater Horizon Oil Spill of National
Significance (SONS) Response
AGENCIES: Coast Guard, DHS, and Environmental Protection Agency.
ACTION: Notice of no further regulatory action and alternative
arrangements.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard and the Environmental Protection Agency (EPA)
announce that we have considered the comments, materials, and evidence
received in response to the joint emergency temporary interim rule
issued on June 30, 2010, and do not intend to take further regulatory
action regarding the rule. As such, the rule will expire as scheduled
on December 31, 2010. The Coast Guard and EPA also provide notice of
the alternative arrangements under the National Environmental Policy
Act used for the joint emergency temporary interim rule.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of dockets USCG-2010-0592 and EPA-HQ-OPA-2010-0559
and are available online by going to https://www.regulations.gov,
inserting USCG-2010-0592 or EPA-HQ-OPA-2010-0559 in the ``Keyword''
box, and then clicking ``Search.'' They are also available for
inspection or copying at the Docket Management Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays; and EPA Docket
Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW.,
Washington, DC 20460, Public Reading Room, between 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the EPA Docket Center Public Reading Room is 202-566-1744,
and the telephone number to make an appointment to view the docket is
202-566-0276.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or e-mail:
Coast Guard: (Facilities) Mr. David Condino, Ports and Facilities
Division, Coast Guard, telephone 202-372-1145, e-mail
David.A.Condino@uscg.mil; (Vessels) LCDR Ryan Allain, Office of Vessel
Activities, Coast Guard, telephone 202-372-1226, e-mail
Ryan.D.Allain@uscg.mil. If you have questions on viewing the USCG-2010-
0952 docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.
EPA: Troy Swackhammer, U.S. Environmental Protection Agency,
telephone 202-564-1966, e-mail swackhammer.j-troy@epa.gov.
SUPPLEMENTARY INFORMATION: On April 20, 2010, the Mobile Offshore
Drilling Unit (MODU) ``Deepwater Horizon'' exploded and sank, causing
an unprecedented discharge of crude oil into the Gulf of Mexico, which
was thereafter declared a ``Spill of National Significance'' (SONS). On
April 24, 2010, the Commandant of the Coast Guard designated a Federal
On-Scene Coordinator (FOSC) to coordinate Federal and State responses
to the oil spill.
On June 16, 2010, the FOSC for the Deepwater Horizon SONS
determined, after consulting with appropriate Federal and State
agencies, that an adequate number of available oil spill response
resources could not be employed in a timely manner to recover the oil
released from the Deepwater Horizon SONS. (Memorandum from Rear Admiral
J.A. Watson, FOSC BP Deepwater Horizon Oil Spill, to National Incident
Command (June 16, 2010), available in the docket for this rulemaking).
In response to the FOSC's determination, on June 30, 2010, the
Coast Guard and EPA issued a joint emergency temporary interim rule
permitting oil spill removal organizations (OSROs) and facilities and
vessels with oil spill response resources to relocate those resources
to the Gulf of Mexico Deepwater Horizon SONSat the FOSC's request. 75
FR 37712. The rule also confirmed that the FOSC for the Deepwater
Horizon SONS requested that the Armed Forces relocate response
resources, in particular those of the Navy, from their current
locations within the continental United States to the Gulf of Mexico to
aid in the response to the Deepwater Horizon SONS.
The Navy did relocate response resources to the Deepwater Horizon
SONS. While many spare State and privately owned resources had already
relocated to the Gulf of Mexico before publication of the rule, no
State or private entity relocated response resources to the SONS under
the provisions of the rule.
The Coast Guard and EPA also requested comments on the rule, and
stated that we would consider those comments and any other materials or
evidence received from the field on an ongoing basis every thirty days
to determine if changes to the rule might be necessary. The comment
period closed on August 16, 2010, with the Coast Guard and EPA
receiving 27 comments. We discuss those comments below. Neither the
Coast Guard nor EPA has received comments since the close of the
comment period. Although the rule will expire as scheduled on December
31, 2010, Coast Guard and EPA will continue to consider any new or
additional comments, material or evidence related to the provisions of
the rule until that date. If we decide to make changes to the rule
before its expiration, we will publish another joint notice, or other
appropriate document, in the Federal Register.
For this emergency rulemaking, and in accordance with Council On
Environmental Quality (CEQ) Regulations Implementing the Procedural
Requirements of the National Environmental Policy Act (40 CFR parts
1500-1508) and the National Environmental Policy Act of 1969 (NEPA) (43
U.S.C. 4321-4370f), the Coast Guard, with the assistance of EPA,
consulted with CEQ about alternative arrangements pursuant to 40 CFR
1506.11. The Coast Guard, with the assistance of EPA, continued to
consult with CEQ as well as with the National Oceanic and Atmospheric
Administration (NOAA) and other key authorities in order to determine
appropriate environmental impact analysis. A discussion of these
consultations and determinations is below in B. Alternative
Arrangements under NEPA. As stated above and discussed in greater
detail below, the rule will expire as scheduled on December 31, 2010,
without changes.
A. Discussion of Comments
The Coast Guard and EPA received 8 letters containing 27 comments
in response to the request for comments on the rule. Commenters
included individuals; an organization that represents companies that
own, operate or charter tankers, ships, and other merchant vessels
engaged in domestic
[[Page 79962]]
and international trade; an organization representing State
environmental and health agencies; and a trade association representing
companies involved in all aspects of the oil and natural gas industry.
We also received comments from the Makah Tribal Council (MTC), and
joint comments from the Governor of Washington and the Governor of
Oregon. The Coast Guard and EPA responded directly in writing to MTC
and the Governors. Those comments and responses, together with all
other public comments, are available in the docket for this rulemaking.
Also in the docket is a summary of an in-person communication that
occurred on July 1, 2010, between Coast Guard personnel and OSRO
community representatives regarding the rule. The in-person
communication touched on concerns and questions about the substance of
the rule, as well as questions relating to implementation of the rule.
These concerns and questions and Coast Guard responsive comments are
included in the summary of the communication, and are covered in the
discussion below.
Several of the comments expressed support for the Coast Guard and
EPA efforts to respond to the Deepwater Horizon SONS, and we appreciate
the statements of support. Several other comments provided opinions
about the causes and effects of the oil spill. The Coast Guard and EPA
appreciate these commenters' participation in this rulemaking, however,
such comments are beyond the scope of this rulemaking and are not
addressed in this document. The remaining comments addressed the rule
and are discussed by topic below.
1. Plan Holder Liability
Commenters were concerned about plan holder liability for damages
and penalties if a spill occurred in their original location after the
plan holder already contractually released its spill response providers
and equipment for use in the response to the Deepwater Horizon SONS.
Commenters were also concerned about liability under State requirements
as well as other penalties, such as natural resource damages, under
other Federal and State law.
Response: The intent of the rule is to make available more response
resources for use in responding to the Deepwater Horizon SONS by
relieving certain Coast Guard and EPA regulatory requirements. Through
this rule, the Coast Guard and EPA encouraged plan holders to relieve
their contracted-OSROs of certain responsibilities in order for those
OSROs to be available to aid in responding to the Deepwater Horizon
SONS. The Coast Guard and EPA coordinated on the rule because many oil
spill response plans address both Coast Guard and EPA oil spill
response requirements. The rule was not meant to address all sources of
potential plan holder liability, including other Federal requirements
or State requirements.
2. Oil Spill Response Resources Return Time
Several comments noted concerns about the return of assets to
original locations. One comment expressed concern that the rule does
not contain a timetable for returning assets used in response to the
Deepwater Horizon SONS. Other comments noted the distances and travel
time for response assets from the West Coast, especially for larger
vessels, to deploy to the Gulf in response to the Deepwater Horizon
SONS and to return to the assets' original locations if needed to
respond to an oil spill in those locations.
Response: The rule does not address return times for assets
relocated in support of the response to the Deepwater Horizon SONS,
because under the rule such issues, including the relative
environmental impacts and other risks and impacts of the FOSC
requesting and accepting offers for specific response resources from
locations outside the Gulf of Mexico, are coordinated at the local
level with the cognizant Captains of the Port (COTPs), Regional
Response Teams, and Area Committees.
Additionally, in the letter to the Governors of Washington and
Oregon dated September 3, 2010, (available in the docket) the Coast
Guard and EPA specifically stated: ``Any decision to request or accept
[deployment of equipment or personnel that would result in the loss of
response capability below worst case and maximum most probable
discharge response time requirements in the Pacific Northwest] will
consider carefully the distances and travel time from the West Coast to
the Gulf Coast spill.''
3. Adequate Coverage in Regions Outside the Gulf of Mexico
Comments addressed concerns about whether the Average Most Probable
Discharge and Small Discharge standards in the rule provided adequate
coverage, especially for the West Coast and Pacific Northwest, as well
as delays in an adequate number of response resources responding to any
oil spill outside of the Gulf Region. One comment noted that almost all
new response equipment manufactured/built during the Deepwater Horizon
SONS will likely be purchased/deployed for response to the Deepwater
Horizon SONS, further lengthening the time to return other locations to
full preparedness levels under current response plan standards.
Response: As discussed above, under the rule, any decisions about
equipment and personnel deployment are coordinated at the local level
with the cognizant COTPs, Regional Response Teams, and Area Committees.
Additionally, the letter to the Governors of Washington and Oregon
stated that Coast Guard and EPA will continue to work in close
coordination with state and local governments, affected local
industries, Regional Response Teams and Area Committees to maintain a
level of equipment able to best protect all localities.
4. Regional Approach for Moving Response Assets
Two comments suggested that the Coast Guard and EPA develop a
regional approach rather than one nationwide rule for moving response
assets. The comments encouraged developing regional strategies to
ensure sufficient coverage remains in those regions before moving oil
spill response assets outside of those regions. Another comment
specifically requested utilizing Regional Response Teams for such a
regional approach.
Response: The Coast Guard and EPA agree that the decision to
actually move response assets is best made at the local and regional
level. In order to allow those local and regional decisions to be made,
however, this nationwide rule is necessary to temporarily suspend
certain regulatory response time requirements. As stated in the rule,
the Coast Guard and EPA coordinate and consult with Regional Response
Teams and Area Committees, which include State representatives, for
such decisions. Additionally, in a letter to the Governors of
Washington and Oregon, the Coast Guard and EPA specifically stated:
``If there were to be a scenario in which more response resources were
needed in the Gulf, we would work closely with [state and local
governments and affected local industries] and the Regional Response
Teams and Area Committees, to ensure that we do not deploy equipment or
personnel that would result in the loss of response capability below
worst case and maximum most probable discharge response time
requirements in the Pacific Northwest.''
5. Plan Holders Included in the Decision To Move Assets
At least one comment requested that plan holders be included in any
discussion regarding movement of
[[Page 79963]]
response assets to the Gulf or any future Spill of National
Significance.
Response: The rule only addresses relocating assets in response to
the Deepwater Horizon SONS. The Coast Guard and EPA agree that plan
holders should be included in discussions regarding movement of
response assets in response to the Deepwater Horizon SONS. That is why,
as stated in the rule, any such relocation of assets is done only
through coordination with the cognizant COTPs and Regional Response
Teams and Area Committees, which include oil spill response community
and plan holder representatives.
6. State Consultation
One comment requested that Coast Guard and EPA formally consult
with state environmental agencies prior to approving the deployment of
additional equipment and personnel out of their region that would
result in the loss of response capability below the federal Maximum
Most Probable Discharge standards.
Response: As stated in the rule, States are involved in any
decisions about equipment and personnel deployment. The Coast Guard and
EPA stated that we coordinate and consult with Regional Response Teams
and Area Committees, which include State representatives, for such
decisions. Additionally, in the letter to the Governors of Washington
and Oregon, the Coast Guard and EPA stated that we will continue to
work in close coordination with state and local governments and
affected local industries.
7. Other Federal Laws and State and Local Laws
Several comments noted that the rule addresses only Coast Guard and
EPA requirements, but that plan holders are also covered by other
Federal regulatory requirements as well as State and local laws. One
comment suggested revising the rule to address other Federal
requirements as well as State and local requirements. Another comment
suggested creating a permanent rule to address all Federal and State
response standards for use in such emergency situations. This comment
suggested working with States and Congress for a legislatively
established emergency procedure for such situations.
Response: The Coast Guard and EPA coordinated on the rule because
many oil spill response plans address both Coast Guard and EPA oil
spill response requirements. The rule was not meant to address all
Federal requirements or State requirements. In the rule, we
specifically stated that States are authorized to establish oil spill
response standards more stringent than Coast Guard and EPA, and Coast
Guard and EPA coordinate and consult with State representatives,
regarding implementation of the rule. The rule will expire on December
31, 2010. The Coast Guard and EPA are considering whether a permanent
rule addressing this issue is necessary, but would initiate a separate
rulemaking for any such permanent rule.
8. Tribal Implications
The MTC disagreed with the finding in the rule that the rule does
not have tribal implications under EO 13175 because tribal marine
resources could be significantly jeopardized by an uncontained oil
spill due to the depletion of government and private oil spill response
assets in this region.
Response: In a letter to the MTC dated August 24, 2010, (available
in the docket), the Coast Guard reaffirmed its determination that the
rule does not have any tribal implications because the rule does not
require the movement of any oil spill response resources away from
current locations. Additionally, the letter noted that the MTC has been
appointed to the Northwest Area Committee and will be part of any
decision on whether to relocate oil spill response resources away from
that Committee's area. EPA has also reaffirmed, through a letter to the
MTC dated October 25, 2010, its determination that the rule does not
have any tribal implications because the rule does not require the
movement of any oil spill response resources away from current
locations.
9. Plan Holder Input Into the Rule
One commenter felt that plan holders did not have sufficient input
into the development of the rule.
Response: The Coast Guard and EPA note that the rule was issued as
an emergency rulemaking in response to the exigent circumstances
presented by the Deepwater Horizon SONS. Plan holders were given an
opportunity to comment on the rule during the comment period. All
comments, materials and evidence received on the rule are discussed
above in this section.
B. Alternative Arrangements Under NEPA
Coast Guard and DHS, with the assistance of EPA, consulted with CEQ
pursuant to NEPA regulations found in 40 CFR 1506.11 to develop
alternative NEPA arrangements for implementation of this rule. These
alternative arrangements, which take the place of an Environmental
Impact Statement, provide that Coast Guard and DHS will consider the
potential for significant impacts to the human environment from this
rule during implementation of the rule. The Alternative Arrangements
were posted to the Deepwater Horizon Web site (https://www.dhs.gov/xabout/laws/gc_1283521666674.shtm) on July 13, 2010, and remain
available to interested parties at this Web site. The Alternative
Arrangements are also available in the docket as indicated under
ADDRESSES above.
Under the alternative arrangements, each COTP consults with the
Area Committee and pertinent Regional Response Teams to determine what
assets may be made available to address the SONS using the Area
Contingency Plans (ACP). Each ACP includes an annex containing a Fish
and Wildlife and Sensitive Environments Plan prepared in consultation
with the U.S. Fish and Wildlife Service and NOAA and other interested
natural resource management agencies and parties (including coastal
zone management agencies). The annex addresses fish and wildlife
resources and their habitat, and other areas the Area Committee
recommends be considered sensitive environments. The annex provides the
information and procedures to immediately and effectively respond to
discharges that may adversely affect fish and wildlife and their
habitat and sensitive environments. Determination of the needed
response resources considers local and regional factors such as
environmental risks, logistic limitations, and unique local or regional
circumstances.
The determination by each COTP regarding available assets in the
area includes considering the development of equipment relocation and
backfilling (i.e., cascade plans) which will expand the interlocking
response back up of the various OSROs, and integrates military
resources which have previously been kept independent of supporting the
civilian OSROs. The COTP also considers available information on the
availability of current response resources, particularly in areas with
large vessel traffic lanes, heavy vessel traffic, oil refineries, oil
storage and pipeline facilities, seasonal risks associated with
weather, and trends associated with weather, currents and tides.
[[Page 79964]]
Dated: December 2, 2010.
Robert Papp,
Admiral, U.S. Coast Guard, Commandant.
Lisa P. Jackson,
Administrator, U.S. Environmental Protection Agency.
[FR Doc. 2010-32018 Filed 12-20-10; 8:45 am]
BILLING CODE 9110-04-P; 6560-50-P
