96-4274. Response Plans for Marine Transportation-Related Facilities

[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7890-7939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4274]

[[Page 7889]]

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Part III

Department of Transportation

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Coast Guard

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33 CFR Parts 150 and 154

Response Plans for Marine Transportation-Related Facilities; Final Rule

Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
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[[Page 7890]]

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 150 and 154

[CGD 91-036]
RIN 2115-AD82

Response Plans for Marine Transportation-Related Facilities

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is adopting with some changes, as final, the
interim final rule which establishes regulations requiring response
plans for marine transportation-related (MTR) facilities including
deepwater ports, certain Coast Guard regulated onshore facilities,
marinas, tank trucks, and railroad tank cars. This final rule also
adopts with some changes, as final, the interim final rule which
establishes additional response plan requirements for facilities
located in Prince William Sound, Alaska, permitted under the Trans-
Alaska Pipeline Authorization Act (TAPAA). These regulations are
mandated by the Federal Water Pollution Control Act (FWPCA), as amended
by the Oil Pollution Act of 1990 (OPA 90). The purpose of requiring
facility response plans is to enhance private sector planning and
response capabilities to minimize the environmental impact of spilled
oil.

EFFECTIVE DATE: May 29, 1996.

ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406) (CGD 91-036),
U.S. Coast Guard Headquarters, 2100 Second Street SW., room 3406,
Washington, DC 20593-0001, between 8 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. The telephone number is (202) 267-
1477.

FOR FURTHER INFORMATION CONTACT:
LCDR Walter (Bud) Hunt, Response Division (G-MEP), (202) 267-0441. This
telephone is equipped to record messages on a 24-hour basis.

SUPPLEMENTARY INFORMATION:

Drafting Information

The principal persons involved in drafting this document are LT
Cliff Thomas, Project Manager, Standards Evaluation Branch (G-MES-2),
and Jacqueline Sullivan, Project Counsel, Office of Chief Counsel (G-
LRA).

Regulatory History

On March 11, 1992 the Coast Guard published an advance notice of
proposed rulemaking (ANPRM) in the Federal Register (57 FR 8708)
entitled ``Facility Response Plans.'' The ANPRM discussed the
background, statutory requirements of section 311(j) of the FWPCA, and
possible regulatory approaches. In addition, the ANPRM posed questions
for public comment. The Coast Guard received 116 comments.
On June 19, 1992, the Coast Guard published a notice of proposed
rulemaking (NPRM) on the related rulemaking project Vessel Response
Plans (VRP) (57 FR 27514). The Coast Guard also gathered public input
on the proposed VRP rule through the Oil Spill Response Plan Negotiated
Rulemaking Committee. Twenty-six organizations and the Coast Guard were
members of the Committee. To maintain consistency between the two
regulations, this rule uses certain concepts developed in the VRP NPRM
and negotiated rulemaking committee.
The Coast Guard released Navigation and Vessel Inspection Circular
(NVIC) No. 7-92 on September 15, 1992. NVIC No. 7-92 provided immediate
guidance to the marine industry for preparing facility response plans
to meet the February 1993 deadline established by the Oil Pollution Act
of 1990 (OPA 90).
On February 5, 1993, the Coast Guard published an Interim Final
Rule (IFR) entitled ``Response Plans for Marine Transportation-Related
Facilities'' in the Federal Register (58 FR 7330). The Coast Guard
received 55 comments on the IFR. These comments were considered in
developing this final rule.

Background and Purpose

In response to several recent major oil spills, Congress passed the
Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101-380). OPA 90 amended
section 311(j) of the Federal Water Pollution Control Act (FWPCA) (33
U.S.C. 1321(j)). It established requirements, and an implementation
schedule, for facility response plans and periodic inspections of
discharge-removal equipment.
As amended by OPA 90, section 311(j)(5) directs the President to
issue regulations implementing the new FWPCA requirements for facility
response plans. The President delegated this authority, in part, to the
Secretary of Transportation (DOT) by Executive Order 12777 (3 CFR, 1991
Comp.; 56 FR 54757). The Secretary of Transportation, in 49 CFR 1.46(m)
(57 FR 8581; March 11, 1992), further delegated, to the Commandant of
the Coast Guard, the authority to regulate marine transportation-
related (MTR) onshore facilities, and deepwater ports subject to the
Deepwater Ports Act of 1974, as amended (33 U.S.C. 1501, et seq.). This
rule addresses only MTR facilities that handle, store, or transport
oil. Oil spill response plan regulations for vessels are the subject of
a separate rulemaking project (CGD 91-034).
Section 311(a)(1) of the FWPCA defines oil as including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with
waste other than dredge spoils (33 U.S.C. 1321(a)(1)). While the most
common oils are the various petroleum oils (e.g., crude oil, gasoline,
diesel, etc.), non-petroleum oils such as animal fats (e.g., tallow,
lard, etc.), vegetable oils (e.g., corn oil, sunflower seed oil, palm
oil, etc.), and other non-petroleum oils, such as turpentine, are
included within the ambit of this regulation when handled, stored or
transported by an MTR facility.
A major objective of the OPA 90 amendments to the FWPCA was to
create a national planning and response system. OPA 90 requires the
President to develop nationwide criteria for determining those
facilities which could reasonably be expected to cause substantial harm
to the environment. The OPA 90 Conference Report (Report 101-653)
states that the criteria should result in a broad requirement for
facility owners or operators to prepare and submit response plans.
Those facilities identified by the President are required to submit
response plans.
Section 311(j)(5) of the FWPCA requires the preparation and
submission of response plans from all onshore facilities that could
reasonably be expected to cause either ``substantial'' or ``significant
and substantial'' harm to the environment by discharging oil into or on
the navigable waters, adjoining shorelines, or exclusive economic zone
of the United States. Response plans must also be consistent with the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP)
(40 CFR part 300) and applicable Area Contingency Plans (ACPs).
Section 311(j)(5) also requires that, in a facility response plan,
an owner or operator identify and ensure by contract or other means
approved by the President the availability of private personnel and
equipment sufficient to remove, to the maximum extent practicable, a
worst case discharge and to mitigate or prevent substantial threat of
such a discharge.
Section 311(j)(5)(F) of the FWPCA allows the Coast Guard to
authorize an MTR facility requiring plan approval to

[[Page 7891]]
operate for up to 2 years after a plan is submitted for approval. This
provides an interim period in which the facility may continue to
operate while the plan approval process is completed.
Section 5005 of OPA 90 establishes requirements for response plans
for MTR facilities located in Prince William Sound, Alaska, which are
permitted under the Trans-Alaska Pipeline Authorization Act (TAPAA) (43
U.S.C. 1651, et seq.). This section requires a higher level of
preparedness for facilities in Prince William Sound in order to provide
an even greater margin of safety.
Although OPA 90 requires response plans for oil or hazardous
substance spills, section 4202(b)(4) establishes an implementation
schedule only for oil spill response plans. Response plans for
hazardous substance spills will be the subject of a separate
rulemaking.

Discussion of Comments and Changes

The Coast Guard received 55 comments on the IFR. The following
discussion summarizes the comments and explains substantive changes
made to the regulation in response to the comments. Comments are
categorized by the specific section of the IFR to which they apply. In
addition to these changes, editorial changes have been made to clarify
the rule or standardize terminology. The following sections have
changes which are purely editorial: Secs. 154.1010, 154.1017, 154.1030,
154.1047, 154.1050, 154.1070, 154.1075, 154.1125, and appendix C,
sections 1, 3, 4, 5, 7, and 8. The following sections were not changed:
Secs. 154.1028, 154.1029, 154.1041, 154.1057, 154.1115, 154.1130,
154.1135, 154.1140 and appendix C, sections 6 and 9 and Tables 1-5. For
the convenience of the public, the Coast Guard has reprinted subparts F
and G of part 154 in their entirety, including both changed and
unchanged sections. Two new subparts H and I have also been added to
part 154.

General Comments

One comment argued that the regulations do not consider economic
reasonableness, overstep the intent of Congress in their scope and
essentially place the entire burden for cleanup on owners and operators
of facilities. The Coast Guard disagrees. The primary intent of the
response planning portions of OPA 90 was to require that facility
owners or operators identify and ensure, by contract or other approved
means, the availability of private personnel and equipment to remove a
worst case discharge. The Coast Guard has considered the economic costs
of this final rule and they are summarized in this preamble in the
section entitled ``Assessment.''
Regulatory consistency. The Coast Guard received 16 comments urging
regulatory consistency in the development of these regulations. All of
these comments stated that there should be consistency with the other
regulations issued under OPA 90. One of these comments also recommended
the establishment of an interagency working group to identify which
sections of rules should be consistent and work toward achieving that
consistency. Another of these comments also urged that response plan
requirements should be amended to resemble EPA's requirements more
closely but that the Coast guard's requirements should have a much
closer focus on emergency response. The Coast Guard, EPA, and other
Federal agencies met repeatedly throughout the development of each
agency's rules. This coordination has produced significant similarities
between agencies issuing response plan rules. For example, the Coast
Guard and EPA have adopted the same requirements with respect to
planning volumes, amounts of response equipment, and the use of
dispersants, and other similar new or unconventional spill mitigation
techniques including mechanical dispersal.
Public Participation. Six comments addressed concerns of public
participation in the process of this rulemaking. Four comments argued
that the Coast Guard should have issued an NPRM instead of an IFR to
facilitate public comment. The IFR was issued to meet OPA 90's deadline
for implementing these oil pollution rules. Public comment to the IFR
has been considered in the development of this final rule.
One comment argued that the IFR did not meet the requirements of
OPA 90 for public input regarding the adequacy of the plans because it
does not provide for notification of plan receipt by the Coast Guard;
supplying copies of the plans to interested people; making copies of
the plans available in a central location for public review; or
allowing the public to appeal Coast Guard decisions on deficiencies or
classification.
The Coast Guard concludes that there is no requirement contained in
OPA 90 for the public to determine the adequacy of individual response
plans from onshore or offshore facilities. Along with Federal, state,
and local government representatives who are responsible for
coordinating environmental issues and emergency response operations,
the Coast Guard has encouraged Area Committees to include environmental
groups, representatives from academia, and concerned citizens. The
Coast Guard concludes that this is an appropriate method for private
citizens to provide advice, guidance, and expertise to the Area
Committee and will result in a coordinated community response to an oil
discharge.
This same comment requested a public hearing and the establishment
of a negotiated rulemaking committee for this regulation. The Coast
Guard established an Oil Spill Response Plan Negotiated Rulemaking
Committee (56 FR 58202, November 18, 1991). The Coast Guard used
information in the final report provided by the Committee in the
drafting of the VRP Rule (CGD 91-036) and this rule. The Coast Guard
finds it unnecessary to conduct a separate negotiated rulemaking for
the Facility Response Plan (FRP) rule.
Clarification. Two comments requested general clarification of the
IFR. One comment stated that the regulations must be clarified in many
respects to avoid differences of interpretation. The other comment was
concerned with words in the regulations having different meanings from
their accepted meanings. The Coast Guard recognizes these concerns and
has strived for clarity in this final rule. For example, in this final
rule, the Coast Guard has added definitions of the terms ``complex'',
``tier'', and ``fish and wildlife and sensitive environment''. It has
also issued guidance to response plan reviewers to assure uniform
understanding and enforcement of response plan requirements.
Agency jurisdiction. Two comments addressed the issue of
jurisdictional conflicts between agencies. One comment asserted that
there is an overlap in Coast Guard and Research and Special Programs
Administration (RSPA) authority over pipelines. This comment argued
that pipelines used only for transporting fuel between tanks and
vessels were previously subject only to Coast Guard jurisdiction.
However, this comment argues, new RSPA regulations now apply to all
pipelines. This comment contended that such regulation conflicts with
the delegation of authority in E.O. 12777 giving RSPA authority over
non-MTR pipelines only.
Executive Order 12777 delegated to the Secretary of Transportation
responsibility for the issuance of regulations requiring the owner or
operator of a transportation-related onshore facility and deepwater
ports to prepare and submit response plans. The Secretary delegated to
the Commandant of the Coast Guard the responsibility for

[[Page 7892]]
the issuance of regulations requiring the owner or operator of a marine
transportation-related onshore facility and deepwater ports to prepare
and submit response plans. The Secretary delegated to the Administrator
of RSPA the same authority for non-marine transportation-related
pipelines. The Coast Guard finds that there is no conflict over
jurisdiction.

Section 150.129 Response Plans

The Coast Guard received one comment on this section. The comment
requested that the Coast Guard clarify the submission requirements for
deepwater ports. Under the IFR, the Coast Guard determined that
deepwater ports are significant and substantial harm facilities under
Sec. 154.1015 and, therefore, are required to submit a response plan
for review and approval. The Coast Guard finds that the submission
requirements are clear and, therefore, has made no changes to the final
rule on the classification of deepwater ports.

Section 154.106 Incorporation by Reference

The Coast Guard received one comment on this section. The comment
stressed that the Coast Guard should review the standard test methods
developed by the American Society of Testing Materials (ASTM) that are
incorporated by reference in this section as the standards are revised.
The Coast Guard intends to review any revisions to these standards and
will conduct appropriate rulemaking to revise this section if warranted
by changes to these standards.

Section 154.1010 Purpose

The Coast Guard received several comments requesting clarification
of this section. In response to these comments, the Coast Guard has
revised this section to clarify the purpose of response plans.

Section 154.1015 Applicability

The Coast Guard received eight comments on this section of the IFR.
Three comments argued that the classification of facilities should not
be determined solely by the amount of oil that a facility is capable of
transferring. The comments stated that other factors such as a
facility's spill history, proximity to fish and wildlife and sensitive
environments, presence of containment structures, and potential worst
case discharge should be considered in the classification of
facilities.
The IFR reflects the Coast Guard determination that all MTR
facilities that transfer oil to or from a vessel with a capacity of 250
barrels or more could reasonably be expected to cause at least
substantial harm to the environment, and that large fixed facilities
and deepwater ports could reasonably be expected to cause significant
and substantial harm to the environment in the case of an oil
discharge. If a facility owner or operator believes that his or her
facility should be reclassified from significant and substantial harm
to substantial harm or excluded from the substantial harm category
based on factors other than the facility's capacity for transferring
oil, then under Sec. 154.1075 the facility owner or operator is
permitted to appeal the classification to the COTP and then to the
District Commander, and then to the Commandant. There have been no
changes in these provisions in the final rule.
Although the Coast Guard has not changed the final rule to reflect
the consideration of factors other than the facility's type and its
capacity for transferring oil in the classification of the facility,
the Coast Guard has modified the threshold for the initial
classification of significant and substantial harm facilities in the
final rule, thereby decreasing the number of facilities which will be
classified as significant and substantial harm facilities. The Coast
Guard has identified several fixed MTR facilities which are segments of
non-MTR facilities that have a total storage capacity of less than
42,000 gallons. The Environmental Protection Agency (EPA) has
determined that such non-transportation related facilities with a
storage capacity of less than 42,000 gallons associated with a MTR
facility are not considered as substantial harm facilities. However,
these MTR facilities are capable of transferring oil to or from a
vessel with a capacity of 250 barrels or more. The Coast Guard has
determined that these facilities could reasonably be expected to cause
substantial harm to the environment. These facilities must still submit
response plans; however, they are no longer classified as ``significant
and substantial harm'' facilities. Paragraph (c)(1) of Sec. 154.1015
has been amended to incorporate this change.
One comment suggested that facilities that transfer only oily water
mixtures should be classified as substantial harm facilities. The Coast
Guard disagrees. Although a facility may transfer only oil that is
mixed with water, the facility may transfer enough oil to reasonably be
expected to cause significant and substantial harm to the environment
if a discharge were to occur.
Another comment stated that the Coast Guard should clarify that
mobile facilities are the only facilities that are not classified as
significant and substantial harm facilities. Under the IFR, mobile
facilities are the only facilities which initially are classified only
as substantial harm facilities; however, under Sec. 154.1016, the COTP
may determine that other facilities may reasonably be expected to cause
substantial harm to the environment and may upgrade mobile MTR
facilities to significant and substantial harm facilities.
Additionally, the amended paragraph (c)(1) of Sec. 154.1015 of the
final rule, which modifies the threshold for significant and
substantial harm facilities, has increased the number of facilities
that will initially be classified only as substantial harm facilities.
One comment suggested that the Coast Guard provide guidance on how
to determine whether a facility is part of a complex. A facility is
part of a complex if the entire facility is regulated by more than one
Federal agency under section 311(j) of the FWPCA. Most MTR facilities
are part of a larger facility that has segments which are regulated by
agencies such as EPA, RSPA or the Minerals Management Service (MMS). If
a facility owner or operator is unable to determine whether his or her
facility is part of a complex, he or she may request guidance from the
COTP.
Two comments contended that the regulation should not apply to non-
petroleum oils. One comment specifically stated that the regulation
should not apply to facilities which handle animal and vegetable oils
because these oils are not toxic to the environment. The Coast Guard
disagrees. The response planning requirements of this regulation were
developed to ensure that facility owners or operators are prepared to
respond to an oil spill originating from their facility, regardless of
the type of oil spilled. The Coast Guard recognizes that certain non-
petroleum oils, including certain animal fats and vegetable oils, are
non-toxic in the marine environment; however, lethal acute aquatic
toxicity is not the sole factor considered in determining harm to the
environment. A discharge of animal fats or vegetable oils may cause
chronic effects for waterfowl and aquatic organisms. Proper response
planning for a discharge of non-petroleum oils will have a significant
effect in limiting harm to the environment. Therefore, facility owners
or operators handling non-petroleum oils at their facility are required
to prepare response plans under this regulation.

[[Page 7893]]

The Coast Guard has determined, based upon comments, that animal
fats and vegetable oils, and other non-petroleum oils will be addressed
separately from petroleum oils, and from one another, in the final
rule. The final rule removes the response planning requirements for
animal fats and vegetable oils, and other non-petroleum oils from
Sec. 154.1049 in the IFR and establishes two new subparts H and I,
containing requirements for these oils. Subpart H contains requirements
for animal fats and vegetable oils, while subpart I contains
requirements for other non-petroleum oils. Although new subparts have
been established for animal fats and vegetable oils, and other non-
petroleum oils, the response planning requirements for these oils are
not changed in the final rule.
One comment stated that a facility that is capable of transferring
oil to or from a vessel with a capacity of 250 barrels or more, but
that does not transfer to a vessel of this size should not be required
to submit a response plan. Although the Coast Guard has not lowered the
threshold for substantial harm facilities in the final rule, the
revised final rule permits the COTP to downgrade a facility. The COTP
is in the position to evaluate the individual situation of each
facility under his or her jurisdiction with respect to operational
history and other factors which would affect the facility's
classification. The COTP may downgrade a facility's classification,
acting either on his own or upon request of the facility's owner or
operator, if he finds that such action is warranted.

Section 154.1016 Facility Classification by COTP

The Coast Guard received four comments on this section. One comment
stated that the COTP should not be permitted to upgrade a facility
based on the facility's proximity to areas of economic importance and
environmental sensitivity. The comment contended that OPA 90 does not
permit such an action. Another comment stated that a facility's spill
history does not indicate that the facility is at greater risk for
future spills and, therefore, spill history should not be considered in
determining a facility's classification. The Coast Guard disagrees. OPA
90 permits the Coast Guard to require response plans for facilities
that could reasonably be expected to cause substantial harm and
significant and substantial harm to the environment. OPA 90 does not
define these terms; therefore, the Coast Guard must determine the
criteria used to distinguish these facilities. The Coast Guard has
adopted EPA's term ``fish and wildlife and sensitive environments'' to
refer to areas of environmental sensitivity. The Coast Guard has
concluded that a facility's proximity to fish and wildlife and
sensitive environments and its spill history are relevant factors in
determining whether a facility could reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
in the case of an oil discharge.
Two comments stated that a facility owner or operator should be
permitted to appeal the COTP's decision to upgrade a facility. Under
Sec. 154.1075 of the IFR, a facility owner or operator is permitted to
request the COTP to review the initial facility classification. The
owner or operator may submit relevant data to the COTP to support his
or her argument. If the owner or operator is dissatisfied with the
COTP's decision, the owner or operator may appeal the decision to the
District Commander. The decision of the District Commander may be
appealed to the Commandant. This appeals provision is unchanged in the
final rule.
Under the IFR, the COTP was permitted only to upgrade a facility's
initial classification. Under the final rule, the COTP is permitted to
upgrade or downgrade the facility's classification. Upon written
request from the facility owner or operator to review the facility's
classification, the COTP may downgrade a facility from significant and
substantial harm to substantial harm or from substantial harm to a
status in which it is exempt from the regulation. This provides the
COTP with greater latitude to appropriately regulate his or her port
area. This change has prompted the renaming of this section to
``Facility Classification by COTP'' in the final rule.

Section 154.1017 Response Plan Submission Requirement

The Coast Guard received many comments on this section of the IFR.
Four comments requested the Coast Guard to clarify whether the FRP
regulations apply to inactive facilities. Under Sec. 154.100(a), the
applicability section for part 154, facilities in caretaker status are
exempt from the requirements of this part, with the exception of
certain safety requirements set out in Sec. 154.735.
Two comments stated that facility complexes should not be required
to submit response plans to more than one Federal agency for approval.
The comments further stated that all facilities that transfer oil over
water should be regulated exclusively by the Coast Guard. The Coast
Guard recognizes that submitting plans to several agencies for approval
may have been burdensome for those facilities whose options
necessitated submission of response plans to more than one Federal
agency. The initial delegation under Executive Order 12777 to issue
regulations and review and approve response plan to multiple Federal
agencies reflected agency expertise in the regulated industries and the
traditional jurisdiction of Federal agencies under section 311 of the
FWPCA. This delegation provided each agency with the opportunity to
review response plans and to ensure that the plans reflected industry
practices and were in compliance with statutory requirements.
Today, virtually every facility required to submit response plans
has already done so in compliance with the rules promulgated by the
appropriate agency. It has become apparent that some response plans
unnecessarily duplicate information contained in other plans. Federal
agencies are interested in streamlining the response plan preparation
and submission procedures to reduce significantly the burden when plan
revision and resubmission is required. The Coast Guard believes that
the ``One Plan'' or Integrated Contingency Planning concept has merit
and discussions are ongoing between industry, the appropriate Federal
agencies, and members of the National Response Team (NRT). The NRT is
developing guidance for preparation of integrated response plans that
will satisfy the regulatory requirements of various Federal agencies
while avoiding unnecessary and confusing duplication of standard
response procedures and organizational details. With the completion of
guidance on Integrated Contingency Planning, the Coast Guard will
accept plans developed in accordance with that guidance. The NRT is
also examining the feasibility of vesting response plan review in the
On Scene Coordinator. The NRT is discussing minimizing the number of
Federal agencies involved in reviewing a response plan for those
facilities that, due to their diverse nature, may have to prepare and
submit a response plan to more than one Federal agency. The Coast Guard
is committed to working with the NRT on these issues and working to
minimize the regulatory burden on facilities that have marine
transportation-related mode and non-transportation-related components.

[[Page 7894]]

Section 154.1020 Definitions

The Coast Guard received many comments on the definitions of the
terms used in the IFR. Some comments suggested clarification of certain
terms while others suggested the addition of terms. The following
discussion addresses only those definitions or issues on which the
Coast Guard received comment or made significant revisions.
Adverse weather. The Coast Guard received one comment on ``adverse
weather'' which suggested that wind, tides, and the number of daylight
hours be included as three additional environmental factors that
contribute to adverse weather conditions for a spill response. The
Coast Guard did not intend the listed conditions to be exclusive. To
address this comment's concern, the Coast Guard is adding language to
the definition of ``adverse weather'' to indicate that other relevant
factors including wind, tides, etc., should also be taken into account
when identifying response systems and equipment.
Availability (of response resources). The Coast Guard received one
comment which requested that this term be defined. The comment stated
that the definition should indicate that response organizations often
have contracts with many facilities and, as a result, there may be
instances where the contractor's obligations to one facility may limit
its ability to arrive at the scene of an oil spill at another facility
within the specified times. The Coast Guard recognizes that actual
availability of response resources may be limited by unforeseeable
events such as multiple, simultaneous oil spills. The Coast Guard
stresses that the requirements are not performance standards. They are
intended to be used to develop a plan for responding to a discharge of
oil to the maximum extent practicable in the existing conditions. The
Coast Guard recognizes that actual conditions may not permit the
arrival of resources within the prescribed timelines. The Coast Guard
concludes that there is no need to provide a definition.
Complex. The Coast Guard received one comment suggesting that it
clarify the meaning of ``complex'' and that the Coast Guard definition
be consistent with the definition in EPA regulations. A ``complex'' is
composed of facilities regulated by two or more Federal agencies, and
that are used, or intended to be used, to transfer oil to or from a
vessel. A ``complex'' may include marine transportation-related
portions and other non-marine transportation-related portions. The
Coast Guard has included a definition that is consistent with the FWPCA
and applicable EPA regulations.
Consistency with EPA regulations. Two comments stated that the
definitions in the Coast Guard regulation should be consistent with
those in the EPA regulation. Wherever relevant, the Coast Guard has
consulted other agencies and their regulations to ensure that the Coast
Guard's OPA 90 regulations do not conflict with those of other
agencies. Occasionally, the Coast Guard's definitions diverge from
similar definitions of other agencies. In those cases, the Coast Guard
has examined the other agency regulations and decided upon a different
approach for legal, policy, or technical reasons.
Environmentally Sensitive Area. The Coast Guard received one
comment suggesting that it add a definition of the term
``environmentally sensitive area'' to be consistent with EPA
regulations, the NCP, and OPA 90. The EPA has adopted the term ``fish
and wildlife and sensitive environment.'' For consistency, the Coast
Guard is adopting EPA's term and its definition. However, the Coast
Guard is adding economically important areas to the EPA definition. OPA
90 requires that response plans be consistent with the applicable Area
Contingency Plan (ACP). The ACPs are prepared by Area Committees
composed of qualified personnel from Federal, State and local agencies.
The Coast Guard has provided guidance to the Area Committees on the
preparation of ACPs. Coastal ACPs have been prepared and are available
for preparation of facility response plans. The Area Committees
identify, and prioritize for protection, specific locations that fall
under the category ``fish and wildlife and sensitive environments.''
The ACPs will be revised annually and will identify areas of economic
importance. The completed fish and wildlife and sensitive environments
plans will likely be geographic-specific annexes to the ACPs. The
National Oceanic and Atmospheric Administration (NOAA) published a
notice in the Federal Register on March 29, 1994 entitled ``Guidance
for Facility and Vessel Response Plans Fish and Wildlife and Sensitive
Environments.'' (59 FR 14714) NOAA's notice provides detailed guidance
which facility and vessel owners may use to supplement the information
contained in the applicable Coast Guard regulations. However, the ACP
will still be used to make the final determination regarding fish and
wildlife and sensitive environments.
Full-scale. The Coast Guard received five comments suggesting the
addition of the term ``full scale'' in order to clarify certain
requirements for spill drills. The comments proposed that the term mean
maximum participation by all levels of a facility's response
organization to test major portions of the plan with a high degree of
realism and extensive involvement. The Coast Guard extensively revised
Sec. 154.1055 of subpart F to reflect concerns expressed by comments,
as well as to bring the section into alignment with the vessel response
plan final rule and the applicable EPA regulations. Section 154.1055 is
now entitled ``Exercises'' and requires the owner or operator of a
facility to conduct exercises that will test the entire response plan
every 3 years. The requirements allow the owner or operator to exercise
different elements of the plan (e.g. qualified individual notification,
spill management team, equipment deployment) at different times.
However, the exercises must still test every element of the plan every
3 years and, in addition, an unannounced exercise must also be
conducted every 3 years. The revised Sec. 154.1055 also allows owners
or operators to fulfill the exercise requirements by complying with the
National Preparedness for Response Exercise Program (PREP). In view of
these changes, a definition of ``full scale'' is not necessary.
Functional. The Coast Guard received five comments suggesting that
the term ``functional'' be added to the definitions section in the
final rule to clarify certain requirements for spill drills. The
comments proposed that the term be defined as the limited exercising of
specific functions, such as a command and control, internal
coordination, external coordination, and tests of the functional
planning and response capabilities of personnel and systems. In
response to these, and other comments, the Coast Guard has extensively
revised Sec. 154.1055 which was entitled ``Drills'' in the IFR and is
now entitled ``Exercises.'' The Coast Guard concludes that the
Exercises section now adequately addresses the meaning of the term
functional. The functional areas are laid out in
Sec. 154.1035(b)(3)(iii) of subpart F. Response plans must contain an
organizational structure incorporating the listed functional areas.
Section 154.1035(b)(3)(iv) requires response plans to also contain job
descriptions for the spill management team members in each functional
area identified in the organizational structure described in
Sec. 154.1035(b)(3)(iii).
Group IV oil. The Coast Guard received several comments indicating
that the definition for Group IV oil included Group V oil. The Coast
Guard has revised the definition of Group IV

[[Page 7895]]
oil which is found in the definition of ``persistent oils'' to mean oil
having a specific gravity equal to or greater than .95 and less than or
equal to 1.0.
Higher volume port areas. The Coast Guard received one comment
which proposed to add Cook Inlet, Alaska to the list of higher volume
port areas. The Coast Guard classified higher volume port areas based
upon a study of the relative volumes of oil handled, stored or
transported. The U.S. Army Corps of Engineers reports on ``Waterborne
Commerce of the United States'' provided the statistics for 34 port
areas. The decision to classify some ports as higher volume was based
upon the Coast Guard's analysis of the data from the reports. The data
revealed a distinct break point. Cook Inlet, Alaska falls below the
break point and, as such, does not meet the criteria for designation as
a higher volume port area.
Marine transportation-related facility. The Coast Guard received
three comments on the definition of MTR facility. One comment requested
that the Coast Guard clarify the definition by citing specific types of
facilities to which it refers. The Coast Guard gave examples of MTR
facilities in the preamble to the IFR (e.g., fixed onshore MTR
facilities include marinas; and mobile MTR facilities include tank
trucks and railroad tank cars). Two other comments requested
clarification of Coast Guard and RSPA jurisdiction over pipelines at
MTR facilities. As stated in the preamble to the IFR, the definition of
transportation-related and non-transportation-related facilities
appeared in a 1971 Memorandum of Understanding (MOU) between the
Environmental Protection Agency and the Department of Transportation.
The MOU appears in the appendix to 40 CFR part 112. The Coast Guard
definition of MTR is drawn directly from the MOU. The division point
between the transportation-related portion of a pipeline, and the non-
transportation-related portion of a pipeline is the first design
discontinuance (valve) inside the secondary containment surrounding the
tanks in the non-transportation-related portion of the facility. The
Coast Guard finds that MTR is clearly defined in accordance with the
appropriate legal authority. In a particular situation, if the location
of the division between the MTR portion and the non-MTR portion is
unclear, then the appropriate Federal officials, including the Coast
Guard COTP, should be consulted. As set forth in the definition, these
officials may agree to a specific location for the separation.
Maximum extent practicable. One comment asserted that the
definition of ``maximum extent practicable'' is too rigid and does not
allow for the flexibility that Congress intended. According to the
comment, location, size, configuration, and other similar factors,
should be considered in developing response plans. The Coast Guard has
used a number of factors in determining the need to prepare and submit
a response plan. The planning process also considers other factors as
provided in Secs. 154.1035 and 154.1045.
Maximum most probable discharge. The Coast Guard received four
comments on the definition of maximum most probable discharge
suggesting that the Coast Guard revise the maximum most probable
discharge volume of 1,200 barrels or 10 percent of the volume of the
worst case discharge to be consistent with the EPA maximum most
probable discharge volume of 36,000 gallons. As stated in the preamble
to the IFR, the Coast Guard based its maximum most probable discharge
definition upon historical spill data which indicated that 99 percent
of oil spills from coastal zone facilities were approximately 1,200
barrels or less. The Coast Guard concludes that the existing definition
is appropriate because it protects the environment while not overly
burdening small volume facilities.
Nearshore area. The Coast Guard received two comments on the
definition of nearshore area. One comment stated that the definition
should exclude areas which also meet the definition of rivers and
canals. Another comment requested clarification of the relationship
between nearshore areas and other terms such as ``close-to-shore'' in
Appendix C and ``close to shore response activities in shallow water''
in Sec. 154.1045(e). The definition of ``Nearshore area'' does not
presently include areas which meet the definition of rivers and canals
because ``Rivers and canals'' is a subset of the definition of ``Inland
areas'' not ``Nearshore areas.'' The precise meaning of ``close-to-
shore'' is specified at the point where the term is used. Close-to-
shore refers to waters six feet or less in depth.
Notification drill. The Coast Guard received five comments that
suggested the addition of the term ``notification drill'' to the
definition section of the final rule. The comments suggested defining
the term to mean a test of the facility's system of notifying or
activating, according to the facility's response plan, appropriate
agencies, the facility spill management team, the oil spill removal
organization, and the next higher level of the facility owner's or
operator's organization. A notification drill tests the facility's
ability to start activation of its plan. To be successful, a
notification drill need not result in calls to the top of the
facility's response organization. The Coast Guard has extensively
revised Sec. 154.1055 which was previously entitled ``Drills'' and is
now entitled ``Exercises.'' The revised section includes a ``Qualified
Individual notification exercise'' and specifies that compliance with
the National Preparedness for Response Exercise Program (PREP) fulfills
all exercise requirements. The Coast Guard concludes that these changes
adequately address the points raised by the comments.
Oil. The Coast Guard received seven comments on this definition.
One comment requested that the Coast Guard narrow the definition of oil
to exclude substances which contain small percentages of oil such as
ship bilge and ballast water. One comment indicated that the definition
of oil in the regulations should be consistent with the definition in
OPA 90, which excludes hazardous substances subject to CERCLA. Four
comments stated that oil should be limited only to petroleum oils which
are liquid under the range of ambient conditions which exist at a
facility and which are not considered CERCLA substances. OPA 90 did not
amend the definition of oil in section 311 of the FWPCA. The Coast
Guard's definition of ``oil'' is the same definition used by the FWPCA.
The statutory definition refers to oil in any form. That includes oily
bilge and ballast water because they have been shown to be sources of
oil pollution and discharges may result in substantial harm to the
environment. The Coast Guard has determined that it is appropriate for
response plans to include provisions covering oils which may not be
liquid in all conditions. Such oils may sink to the bottom or remain
suspended in the water column. In either case, they may cause
substantial harm to the environment if not cleaned up as soon as
possible. The Coast Guard concludes that the current definition of oil
meets both the letter and the spirit of the FWPCA and therefore is not
changing the definition of oil.
Another comment stated that the response plan regulations should
not apply to edible oils. The comment contended that if edible oils
were excluded from the regulations, the owner or operator of a facility
handling edible oils still would be required to report and cleanup a
spill under the Clean Water Act (CWA). The Coast Guard definition of
``oil'' is the same definition that is used by the FWPCA. That
definition includes edible oils. The

[[Page 7896]]
Coast Guard has created new subparts in the final rule to distinguish
non-petroleum oils, including edible oils such as animal fats and
vegetable oils, from petroleum oils. The scientific data currently
available to the Coast Guard strongly indicate that these oils may have
an adverse impact upon the environment that is similar to the impact of
petroleum oils. As a result, the Coast Guard is not exempting non-
petroleum oils from response planning in the final rule. The Coast
Guard will continue to assess its position as further data become
available on the subject.
Oil spill removal organization. The Coast Guard received two
comments on the definition of oil spill removal organization which
suggested that the definition be revised to be more specific. The Coast
Guard crafted the definition if oil spill removal organization to be
flexible enough to apply to varying types of organizations which may be
called upon to respond to a discharge of oil while complying with OPA
90 requirements. A more specific definition, while useful to some in
the industry, might exclude organizations which are able to provide
useful and needed response capabilities. The Coast Guard is not
changing the definition of oil spill removal organization and suggests
that any questions regarding the suitability of a particular
organization be directed to the COTP for the area in which the facility
is located.
Other non-petroleum oil. The Coast Guard has added a definition of
``other non-petroleum oil.'' Other non-petroleum oil means a non-
petroleum oil of any kind that is not generally an animal fat or
vegetable oil.
Persistent oil. The Coast Guard received two comments on the
definition of persistent oil. Both comments indicated that the
definition proposed in the IFR does not account for oils that have a
specific gravity greater than 1.0 that do not sink in salt water. The
comments suggest that the definition be revised to include all products
which could reasonably be expected to sink in the environment in which
they are likely to be discharged. The definition of persistent oils is
subdivided based upon specific gravity into Groups II, III, IV and V.
The Coast Guard finds that further subdivision is unnecessary because
the definition currently includes all oils with a specific gravity of
greater than 1.0, regardless of whether or not they sink in salt water.
Furthermore, the Coast Guard concludes that, in combination with other
factors, even those oils referred to in the comments are very likely to
sink in salt water.
Private shore-based personnel. The Coast Guard received one comment
suggesting the addition of this term to the regulation. The comment
indicated that certain Occupational Safety and Health Administration
(OSHA) standards are not enforced. The Coast Guard is not tasked with
enforcement of OSHA standards except in very specific instances. In the
context of pollution control regulations such as OPA 90, the Coast
Guard is not responsible for enforcing OSHA standards. Therefore, it is
unnecessary for the Coast Guard to add this term to the final rule.
Rivers and canals. The Coast Guard received 8 comments on this
definition. All eight comments questioned the use of the 12 foot
project depth as a criterion for determining whether a waterway is a
river or canal. One comment suggested that a project depth of 18 feet
be applied as the standard. Four comments suggested that the COTP
should be given the discretion to determine which waterways will be
determined to be rivers or canals. The 4 comments also stated that the
terms rivers and canals should be applied only to certain areas with
definite geographical demarcations. Two comments requested
clarification on whether the 12-foot project depth criterion applies
only to artificially created waterways. Additionally, these 2 comments
indicated that the definition of rivers and canals excludes certain
rivers. The definition of rivers and canals applies to all waterways
with a project depth of 12 feet or less including both naturally and
artificially occurring ones. The Coast Guard finds that the 12-foot
depth is appropriate to define the inland areas where shallow draft
vessels may call at MTR facilities and has not changed it in the final
rule. The COTP has the authority to redefine specific operating
environments within his or her jurisdiction. This provisions is
continued in the final rule.
Specific gravity. Several comments encouraged the Coast Guard to
define specific gravity in the final rule. The Coast Guard agrees and
has used the definition of specific gravity found in ASTM Standard D
1298 entitled ``Standard Practice for Density, Relative Density
(Specific Gravity), or API Gravity of Crude Petroleum and Liquid
Petroleum Projects by Hydrometer Method.''
Spill management team. The Coast Guard received 5 comments on this
definition. Four comments stated that the definition of spill
management team should reflect the allowance for tiered spill
management teams. Another comment indicated that the FRP regulation
should be consistent with the VRP regulation which permits the spill
management team function to be fulfilled by an organization outside the
planning area of the spill. A ``tiered'' spill management team is not
prohibited by the regulations as they appeared in the IFR and remain in
the final rule. The definition is identical in both the VRP and FRP
final rules to ensure consistency in spill management team
requirements.
The Coast Guard received 5 comments suggesting that it define the
term ``corporate spill management team.'' One comment suggested that
this term be defined to mean a national team of operational and
functional experts and consultants responsible for moving quickly to a
spill site to replace or support a facility response team in managing a
response. The Coast Guard also received 5 comments requesting that it
add the term ``facility spill management team'' to the regulation. The
comments suggested that the term be defined to mean a team responsible
for initiating and managing a response to a spill to its conclusion or
until a team member from a higher tier in the overall response
organization is activated and on-scene to support the facility team or
manage the response until its conclusion.
The Coast Guard concludes that the existing definition of ``spill
management team'' already incorporates the elements that the comments
suggest. The Coast Guard therefore finds that it is both unnecessary
and undesirable to complicate the regulation by subdividing the
definition of spill management team. Section 154.1035(b) contains
detailed requirements regarding plan content including the spill
management team. The spill management team may include all persons
relevant to an effective spill response except Federal, State and local
authorities. It may include local, as well as regional or national
corporate officials, operational, as well as functional experts, and
representatives of OSROs. The local or on-site spill response team
members can, and should, be prepared to integrate other persons, such
as regional and national corporate officials, into their spill response
team structure.
Table top. The Coast Guard received 5 comments requesting that it
add the term ``table top'' to the final rule to clarify certain spill
drill requirements. The comments suggested that the term be defined as
a verbal walk-through to discuss action to be taken during simulated
emergency situations, designed to elicit constructive discussion by the
participants without time constraints. A table top drill does

[[Page 7897]]
not involve the movement of equipment or people. The Coast Guard has
extensively revised Sec. 154.1055 which was previously entitled
``Drills'' and is now entitled ``Exercises.'' The revised section
specifies that compliance with the National Preparedness for Response
Exercise Program (PREP) fulfills all exercise requirements. The Coast
Guard concludes that the changes adequately address the points raised
by the comments.
Tier. The Coast Guard received one comment which stated that the
use of ``tier'' in the IFR was unclear, and suggested that the Coast
Guard define the term in the final rule. The Coast Guard agrees and has
defined ``tier'' in the final rule.
The requirements for response to a worst case discharge to the
maximum extent practicable are based on the tiering of response
resources. The concept of ``tier'' has two primary components: The
amount of equipment and personnel required for a response to a worst
case discharge, and the amount of time in which these response
resources are required to be on-scene from the time of discovery of an
oil discharge. Tiering allows for the arrival of response resources at
various stages of the response effort. Tiering the mobilization of
response resources recognizes the need for a rapid initial response to
an oil spill, yet allows for the identification of response resources
from outside the area of the facility to meet the response resource
planning requirements.
Sections 154.1045(e) and 154.1047(a)(1) of subpart F of the final
rule require a facility owner or operator to identify, by contract or
other approved means, equipment and personnel to respond to the
facility's worst case discharge for Group I-IV oils and Group V oils,
respectively. Appendix C and especially Tables 2, 3, and 4 provide
specific guidance on calculating the amount of response equipment
required by these sections. Table 4 provides mobilization factors used
to calculate the amount of response resources required for on-water
recovery for each tier. Table 5 establishes caps to the amount of
response resources for which a facility owner or operator must contract
in advance. Caps have been established for response resources required
for Tiers 1, 2, and 3. The caps recognize the current limits on
technology and private removal capabilities. The caps are for planning
purposes only; in no way do the caps limit the amount of resources
which a facility owner or operator may be required to mobilize during
an actual spill response.
Section 154.1045(f) of subpart F establishes three time tiers for
the on-scene arrival of response resources for the different operating
environments for Group I-IV oils.

Section 154.1025 Operating Restrictions and Interim Operating
Authorization

The Coast Guard received 10 comments on this section of the
regulation. One comment requested that the Coast Guard clarify the
requirement for facilities to submit response plans meeting the
requirements of Sec. 154.1030 for review and approval to the Coast
Guard COTP and the requirement to operate in full compliance with the
approved plans.
Section 154.1017 requires all facilities which could reasonably be
expected to cause at least substantial harm to the environment to
prepare and submit response plans to the Coast Guard. Only facilities
which could reasonably be expected to cause significant and substantial
harm to the environment are required to submit response plans for
review and approval by the Coast Guard. Section 154.1025(b) requires
all facilities that are required to prepare response plans to operate
in compliance with their plans.
The Coast Guard has added to the final rule a provision that
requires facility owners or operators making initial response plan
submissions after May 29, 1996, to comply with the requirements of the
final rule. The Coast Guard is not requiring facility owners or
operators who submitted response plans under the IFR or NVIC to revise
their response plans to conform with the requirements of the final rule
until the plan's 5-year resubmission date. However, a facility owner or
operator who has prepared a response plan under the NVIC or the IFR may
comply with any of the provisions of this final rule by revising the
appropriate section of the previously submitted plan in accordance with
the revision and amendment procedures in Sec. 154.1065. An owner or
operator who elects to comply with all of the requirements of the final
rule must resubmit the entire plan for review and approval, if
appropriate, in accordance with Sec. 154.1060.
One comment suggested that Sec. 154.1025(d) be revised to give the
Coast Guard authority to prohibit a facility from operating if the COTP
determines that a previously approved plan has not been properly
revised or updated. The Coast Guard finds that Sec. 154.1065 provides
the COTP with adequate authority to enforce the requirements for
response plan amendments and revisions. Under Sec. 154.1065(c), the
COTP may require a facility owner or operator to revise a response plan
at any time if the COTP determines that the plan does not meet the
requirements of this regulation.
Section 154.1025(d) provides four specific circumstances under
which a facility may not handle, store, or transport oil including a
COTP determination that owner-certified response resources or a
submitted response plan do not meet the requirements of the subpart.
One comment indicated that the Coast Guard should limit its review
and approval of response plans to 30 days for those plans submitted by
February 18, 1993, the deadline for plan submission under the IFR.
Limited resources prevented the Coast Guard from guaranteeing a review
of every submitted response plan within 30 days. However, to facilitate
the operations of facilities requiring Coast Guard review and approval
under Sec. 154.1025(c), the Coast Guard permitted these facilities to
continue operations for up to 2 years from the date of plan submission.
This procedure is in accordance with Sec. 311(j)(5)(F) of the FWPCA.
The same comment suggested that a facility owner or operator should
have no more than 30 days to make corrections to a plan if the plan is
not approved by the COTP. Because of the varying degrees of plan
deficiencies, the Coast Guard has determined that the COTP must have
the flexibility to specify the period in which the facility owner or
operator could reasonably be expected to correct the deficiencies.
One comment stated that, to be consistent with EPA and RSPA
regulations, the Coast Guard should not formally review the letter from
a facility owner or operator certifying the availability of response
resources. Conversely, another comment indicated that a facility owner
or operator should be required to certify in writing not only that he
or she has ensured the availability of the necessary response
resources, but also that the response resources are capable of being
on-scene within the specified response times. The Coast Guard has
determined that, until it is able to complete the review of the
submitted response plans, its review and acceptance of the
certification letters is its primary means of ensuring that facilities
are in compliance with the statutory provisions of OPA 90 requiring the
identification of response resources. The Coast Guard requires facility
owners or operators to indicate in the certification letter that the
response resources identified are in compliance with subpart F, G, or H
as appropriate.

[[Page 7898]]
Section 154.1028(a) requires response resources to be capable of being
on-scene within specified times.
One comment indicated that response contractors probably would not
have all of the spill response equipment in stock that is necessary to
meet the August 18, 1993 deadline in the IFR, particularly the
equipment used for recovering oil in shallow waters. The comment
requested that the Coast Guard exempt this type of equipment from the
response plan requirements. The Coast Guard found that at the time of
the comment there was no evidence to indicate that facility owners or
operators were unable to identify adequate response resources for
recovering oil in shallow water.
Another comment suggested that the Coast Guard clarify the language
in Sec. 154.1025(c) permitting interim operating requirements prior to
Coast Guard approval of a response plan. The Coast Guard has updated
and clarified Sec. 154.1025(c). Additionally, the comment indicated
that this paragraph should apply also to substantial harm facilities.
Section 154.1025(c) applies only to the owners or operators of
facilities for which the Coast Guard must review and approve response
plans. Under section 311(j) of the FWPCA and 33 CFR 154.1017(b), only
significant and substantial harm facilities are required to submit
response plans for Coast Guard review and approval.

Section 154.1026 Qualified Individual and Alternate Qualified
Individual

The Coast Guard received 9 comments on this section of the IFR.
Four of the comments contended that the Coast Guard should permit the
qualified individual to be identified in the plan by his or her title,
rather than his or her name. Two comments suggested that the Coast
Guard establish a mechanism by which the qualified individual can be
chosen from a group of individuals among whom the responsibility of the
qualified individual rotates. Another comment stated that the facility
owner or operator should not be required to provide documentation to
the qualified individual in order to activate his or her authority as
the qualified individual. The Coast Guard finds that the amount of
authority vested in the qualified individual warrants that the response
plan identify the specific individual(s) assuming this position. For
this reason, the Coast Guard also requires the qualified individual to
have documentation which clearly indicates his or her role in the
facility's response activities.
Five comments requested clarification on the responder immunity
provisions in Sec. 154.1026 (e) and (f). Three of the comments
specifically requested that the Coast Guard clarify who is immune from
liability under the provisions. Two comments suggested that the Coast
Guard address the immunity of the qualified individual in the
regulatory text. One comment suggested that the potential liability for
the qualified individual is too significant to attract many capable and
qualified persons for the position.
As discussed in the preamble to the IFR, section 311(c)(4) of the
FWPCA provides that only a responsible party is liable for the removal
costs or damages which result from actions taken or omitted in the
course of rendering care, assistance, or advice consistent with the
National Response Plan or as otherwise directed by the President. A
person does not become a responsible party under section 311(c) of the
FWPCA by being designated as a qualified individual for response plan
purposes. However, a person whose acts or omissions are grossly
negligent, or who engages in willful misconduct may, as a result,
become liable for the resulting damages. The Coast Guard does not have
the authority to grant immunity to the qualified individual and,
therefore, cannot establish immunity provisions in the final rule.
However, the Coast Guard does recognize that the qualified individual
is not responsible for the adequacy of response plans, nor is he or she
responsible for contracting response resources beyond the authority
delegated from the facility owner or operator. These points are
reflected in the regulatory text.
Seven comments addressed the facility owner's or operator's ability
to substitute a person from a higher level of management for the
designated qualified individual. Four comments requested that the Coast
Guard state this option in the regulatory text. Additionally, three
comments questioned whether the person from a higher level of
management who is assuming the responsibilities of the qualified
individual is considered to be the qualified individual during an
actual spill response. The Coast Guard does not intend to limit the
discretion of the facility owner or operator to select any qualified
person to assume the full range of responsibilities of the qualified
individual. A facility owner or operator may, at any time, substitute
the designated qualified individual or alternate qualified individual
with a person from a higher organizational level who meets the
requirements of Sec. 154.1026. In order for that person to be
recognized as the qualified individual, the facility owner or operator
must provide the individual with a document designating them as the
qualified individual as required by Sec. 154.1026(c). The Coast Guard
has changed the language in Sec. 154.1026 to clarify that the Qualified
Individual or an Alternate Qualified Individual must be available on a
24-hour basis and must be able to arrive at the facility within a
reasonable time.
One comment requested a more stringent English language requirement
for the qualified individual and suggested that the qualified
individual be required not only to speak fluent English, but also be
required to read, comprehend, and write in English at a level of high
school equivalency. Although the regulation states only that the
qualified individual must speak fluent English, the Coast Guard
concludes that this requirement will restrict the designation of the
qualified individuals to persons who can communicate effectively with
the On-Scene Coordinator during a response effort.
One comment objected to the requirement that both the qualified
individual and the alternate qualified individual be available on a 24-
hour basis. The preamble to the IFR stated that the Coast Guard's
intent is to ensure that either the qualified individual or the
alternate qualified individual be available to respond to an oil spill
on a 24-hour basis. In response to this comment, the Coast Guard has
reworded Sec. 154.1026(a) to make it clear that either the qualified
individual or the alternate, but not both, must be available on a 24-
hour basis. This conforms with both the intent stated in the IFR
preamble and the related section of the VRP rule.
One comment stressed that the qualified individual should be
knowledgeable about not only the financial aspect of an oil spill
response, but also the technical issues pertaining to an oil spill
response. The Coast Guard agrees that familiarity with response methods
is an asset to a Qualified Individual and encourages facility owners or
operators to designate such persons as qualified individuals; however
the ability to commit response resources is the primary requirement.
Under the regulations, the facility owner or operator is required
to identify a qualified individual who is capable of arriving at the
facility in a reasonable time. To ensure this, the Coast Guard has
amended this section to require the qualified individual to be located
in the United States. This issue was previously discussed in the
preamble to the IFR.

[[Page 7899]]

Section 154.1028 Methods for Ensuring the Availability of Response
Resources by Contract or Other Approved Means

The Coast Guard received 11 comments on this section of the IFR.
Four comments suggested that Sec. 154.1028(a)(1), the first means of
identifying response resources by contract or other approved means, be
revised to indicate that an oil spill removal organization is unable to
guarantee the availability of identified response resources to respond
to a spill at a facility. The regulations require the owner or operator
of a facility to ``ensure'' the availability of response resources
because this is the terminology used in the statute. The Coast Guard
has emphasized that response plans are planning documents, not
performance criteria, and that neither the owner or operator nor the
spill removal organization can guarantee the availability of resources
at all times. Acts of God, extremes of weather, labor disputes, the
prior commitment of resources, and other events may preclude
performance as planned. The Coast Guard also expects certain caveats to
be placed in a contract indicating that the response resources
identified are not guaranteed to perform response activities at a
facility. The Coast Guard expects that the contract will provide for
prompt notification of impaired ability to perform and that, when
appropriate, facility owners and operators will seek alternate response
resources. Notification of changes in response resources may be
required under Sec. 154.1065(b)(3).
Another comment stated the Coast Guard should require a facility
owner or operator who ensures the availability of response resources by
certifying his or her active membership in an oil spill removal
organization under Sec. 154.1028(a)(3) also to certify that the oil
spill removal organization has committed to respond to an oil spill
from the facility. The Coast Guard finds that a facility's active
membership in a spill removal organization that has identified
specified personnel and equipment required by the regulation to arrive
at the specified times is adequate assurance that the spill removal
organization will respond to an oil spill at the facility.
Four comments questioned whether an oil spill removal organization
that has identified specific response resources to respond to an oil
spill at one facility can list the same resources to respond to a spill
at another facility. The Coast Guard recognizes that there are current
limits on the amount of available response resources in the U.S.
Facilities would be unable to operate due to their inability to
identify available response resources which were not contracted for by
other facilities. In addition, prohibiting oil spill removal
organizations from contracting response resources for more than one
facility is economically prohibitive for oil spill removal
organizations.
One comment suggested that the Coast Guard remove the fourth method
of ensuring by contract or other approved means in Sec. 154.1028(a)(4).
Section 154.1028(a)(4) permits the facility owner or operator to ensure
the availability of response resources by providing a document that:
(1) Identifies response resources to be provided by an oil spill
removal organization in the stipulated response times in specific
geographic areas; (2) sets out the parties' acknowledgment that the oil
spill removal organization intends to commit the resources in the case
of a spill; (3) permits the Coast Guard to verify the availability of
the response resources through tests, inspections, and drills; and (4)
is referenced in the response plan. The comment indicated that this
provision is not necessary. The Coast Guard disagrees. Section
154.1028(a)(4) provides the owner or operator of a facility with an
alternate means of identifying and ensuring the availability of
response resources. This flexibility may prove to be economically
essential for certain facilities.
Four comments stated that an oil spill removal organization should
not be required to list the names of the response personnel who are
identified to be available to respond to an oil spill. The comments
contend that OSROs are responsible for maintaining sufficient numbers
of trained personnel to respond to any potential spills to which it has
committed to respond. The Coast Guard agrees. An OSRO is not required
to list the names of persons who are identified to be available to
respond to an oil spill; however, an oil spill removal organization
must specify the response personnel available to respond to an oil
spill.
One comment indicated that a signed service agreement should be
sufficient to meet the requirements of Sec. 154.1028(a)(5). As long as
the ``signed service agreement'' meets the requirements of
Sec. 154.1028 it is acceptable to the Coast Guard. Such an agreement,
to be valid under Sec. 154.1028(a)(5), would need to identify specified
equipment and personnel available within the applicable stipulated
response times; and, the OSRO would need to consent to being identified
in the plan.
Another comment stated that the Coast Guard should require a
facility owner or operator to ensure that identified response resources
not only are available to arrive at stipulated times, but also are
capable of sustaining a response effort. The comment indicated that the
Coast Guard should analyze the adequacy of response resources on a
systems basis to ensure that all identified resources are capable of
functioning together. The Coast Guard finds that the response resource
requirements are sufficient as set forth in this final rule. The
requirements are for planning purposes only and are not intended to be
performance standards. Where the Coast Guard has determined that it is
both appropriate and necessary it has included times for sustained
response effort (see Appendix C).
One comment indicated that a facility that operates only on a
seasonal basis should not be required to ensure the availability of
response resources when it is not operating. Under the provisions of
Sec. 154.100(a), a facility which is in caretaker status is exempt from
the requirements of this regulation and, therefore, is not required to
ensure the availability of response resources when it is in caretaker
status.
One comment suggested that the Coast Guard provide a mechanism for
contractors to exercise some control over where they are named as
response resources. This comment expanded upon its suggestion by
stating that the Coast Guard should require some documentation which
validates the relationship between the contractor and the owner or
operator. Section 154.1028 provides for five methods of ensuring the
availability of response resources, including OSROs, by contract or
other approved means. At a minimum, the OSRO must provide written
consent to being identified in a response plan. Under some conditions,
a written contractual agreement must be executed between the OSRO and
the owner or operator of the facility. These contracts must be made
available for review upon request by the Coast Guard. The Coast Guard
contends that this provides adequate documentation that the proper
relationship exists between the OSRO and the owner or operator of the
facility.
One comment argued that contracts should be required as an
outgrowth of comprehensive risk analyses at each potential spill site
rather than the result of an intuitive need to have resources
available. The Coast Guard disagrees. OPA 90 requires the preparation
and submission of a response plan for an onshore facility that, because
of its

[[Page 7900]]
location, could reasonably be expected to cause substantial harm to the
environment by discharging into or on the navigable waters or adjoining
shorelines. The OPA 90 Conference Report (Report 101-653) states that
even small onshore facilities could result in substantial harm under
some circumstances. Therefore, the requirements to prepare and submit a
response plan should be broadly applied. Along with other Federal
agencies, the Coast Guard has established criteria to be considered in
designating a facility as substantial harm. These factors include, but
are not limited to: type and quantity of oils handled in bulk, facility
spill history, proximity to public and commercial water supply intakes;
proximity to navigable water and proximity to areas of economic
importance.

Section 154.1029 Worst Case Discharge

The Coast Guard received a total of 16 comments on this section of
the IFR. Ten comments addressed the relationship between the Coast
Guard's definition of worst case discharge and the term as it is
defined by other Federal agencies. Four comments indicated that the
Coast Guard's definition of worst case discharge should be the same as
the definition found in EPA's response plan regulations. Five comments
indicated the need for consistency among Coast Guard, EPA, and RSPA
definitions of worst case discharge, and suggested that the Coast Guard
adopt RSPA's definition. The Coast Guard disagrees with these comments.
Because the Coast Guard, EPA, and RSPA regulate different portions of
an oil complex, the amount of oil in a worst case discharge volume from
each of these portions of the complex will vary depending on the nature
of the facility's operations. Coast Guard regulations address only the
MTR portion of the complex.
Three comments indicated that the Coast Guard should adopt the EPA
and RSPA policy of giving credit to the facility for the use of
secondary containment and other preventive measures. Seven comments
reiterated the point that Coast Guard regulations should encourage the
use of preventive measures. The Coast Guard strongly encourages
facilities to employ pollution prevention measures including secondary
containment. However, the nature of MTR facilities makes secondary
containment impractical in most cases and therefore very uncommon. For
this reason, the Coast Guard does not require MTR facilities to have
secondary containment. The Coast Guard does not give credit for such
measures because, while these measures will reduce the risk to the
environment from an oil spill, they will not eliminate it altogether.
Subparts A and B of 33 CFR part 154 already contain pollution
prevention regulations. The Coast Guard considers additional pollution
prevention regulations to be outside the scope of this regulation.
The Coast Guard received several comments on the amount of the
worst case discharge volume. All comments indicated that the worst case
discharge volume, as calculated using the formula in
Sec. 154.1029(a)(2), should be reduced. Many of the comments stated
that the Coast Guard's definition of worst case discharge should not
include a total loss of a facility's oil storage capacity and suggested
that it be based on factors such as spill history, the capacity of the
largest single pipeline, or the capacity of pipelines to the single
largest docking pier. Additionally, four comments indicated that the
definition exceeded the congressional intent of this term--the largest
foreseeable discharge from a facility. The Coast Guard disagrees.
Section 4201(b) of OPA 90 defines a worst case discharge as the largest
foreseeable discharge (from a facility) in adverse weather conditions.
The Coast Guard has interpreted this to mean the largest probable
discharge that could occur from a facility and has determined that the
worst case discharge includes the volumes of oil from all pipelines
between the dock and the storage tanks. Additionally, the formula for
calculating the worst case discharge in Sec. 154.1029(a)(2) accounts
for the time to detect a spill from the piping and the time to secure
the operation.
One comment contended that the Coast Guard should not deny the
validity of a response time calculation without substantial evidence
that it cannot be accomplished in the time stated. The Coast Guard
disagrees. Section 154.1045 and appendix C of the final rule provide
requirements on which to base on-water and on-land response times. A
facility owner or operator proposing to use more rapid response times
bears the burden of proving the validity of the alternate calculation.
One comment suggested that both human and mechanical systems should
be considered for detecting spills during transfer operations. The
comment notes that, in the preamble to the IFR for this section, the
Coast Guard referred only to ``fail-safe features designed into the
operation such as leak detection and mechanical methods of isolating
segments of the pipeline.''
The Coast Guard is concerned that undue reliance on fail-safe
features may lead to an underestimation of necessary response resources
in the event of a discharge from the facility. The Coast Guard
concludes that it is reasonable to base the worst case discharge
planning volume on the failure of such fail-safe features since it has
been the Coast Guard's experience that these features do not always
work as expected.
One comment argued that worst case discharge calculation methods
should be maintained separate from the facility response plan to keep
the document from becoming too bulky. The Coast Guard agrees. It is not
required that the response plan contain the method or numbers used in
calculating the worst case discharge. Only the volume of the average
most probable, maximum most probable, and worst case discharges need be
provided. However, providing the numbers used to arrive at the worst
case discharge will facilitate review of the response plan.

Section 154.1030 General Response Plan Contents

The Coast Guard received 10 comments on the requirements for
general response plan contents. Two comments expressed approval of the
plan format requirements established in the IFR and indicated that
other Federal agencies should adopt these requirements. Another
comment, however, expressed that the order of the sections required in
the plan is inappropriate and should be changed. The Coast Guard has
reviewed the response plan formatting requirements and has determined
that the current response plan format facilitates easy use of the
response plan; therefore, the Coast Guard has made no changes to the
formatting requirements in the final rule. Section 154.1030(e),
however, does permit a facility owner or operator to submit a response
plan that does not follow the format specified in the regulation as
long as the plan is supplemented with a detailed cross-reference
section identifying the location of the applicable sections required by
the regulation.
One comment stated that a facility owner or operator should be
permitted to reference previously established procedures in the plan's
appendices rather than restating them in the plan. The Coast Guard
disagrees. The Coast Guard intends for the response plan to serve as
the primary document referenced by facility personnel during a spill
response. In the event of an oil discharge, facility personnel should
be required to refer to only one comprehensive manual for instruction

[[Page 7901]]
on spill response activities and procedures. The regulation, however,
does not preclude a facility owner or operator from referencing
previously established material in the plan as long as the information
required by the regulation is contained in the appropriate section on
the response plan.
Many comments addressed the requirements for response plan
contents. One comment suggested that response plans be expanded to
include measures for prevention, control, containment, and restoration
as well as methods for cleanup and disposal. The regulation currently
addresses these issues, with the exception of prevention and
restoration methods. Section 4202 of OPA 90, the authorizing provision
for response plan requirements, grants the Coast Guard authority to
issue regulations addressing only spill response activities. It does
not address spill prevention or restoration and, therefore, these
issues are not addressed by this regulation.
Four comments suggested that the plans address company or site-
specific information. Section 154.1035(g) requires facility specific
information to be included as an appendix to the plan. A facility owner
or operator may also include company specific information as a separate
appendix to the plan.
One comment suggested that the Coast Guard reduce the amount of
information required in the plan and indicated that the Coast Guard
should require only vital emergency response information in the plan to
streamline the initial notification process. The regulations establish
minimum content requirements for response plans and require information
that the Coast Guard has determined to be essential for the plan to be
of significant use by facility personnel. The Coast Guard, however,
encourages facility owners or operators to develop response plans which
incorporate flowcharts and checklists to facilitate the use of the plan
in an emergency.
Several comments addressed the requirement for response plans to be
consistent with the NCP and the ACPs, particularly as it applies to the
identification of sensitive areas under Sec. 154.1035(b)(4). Some
comments pointed out the difficulties of developing response plans that
are consistent with the ACPs when many of the ACPs are not yet
published. In the preamble to the IFR, the Coast Guard recognized that
many of the ACPs were not complete when the IFR was published. The
Coast Guard indicated that, in these cases, the facility owner or
operator would be required to identify the fish and wildlife and
sensitive environments described in the applicable local contingency
plans. Additionally, Appendix D of part 154 was developed to assist
facility owners or operators in identifying fish and wildlife and
sensitive environments which could be impacted by a worst case
discharge from the facility. Because the coastal ACPs are now complete,
in this final rule the Coast Guard has replaced appendix D of part 154
which provided guidance in identifying fish and wildlife and sensitive
environments with a new appendix D which covers training. On March 29,
1994, the National Oceanic and Atmospheric Administration (NOAA) of the
Department of Commerce published a notice establishing guidelines for
the identification of fish and wildlife and sensitive environments to
further assist facility owners or operators in identifying areas
requiring additional protection from discharged oil (59 FR 14714). This
interim guidance was to be used by a facility owner or operator until
the applicable ACPs were completed.
Since the publication of the NOAA guidance, all of the ACPs have
been completed. Facility owners or operators must ensure that their
response plans are in accordance with the ACP in effect 6 months prior
to initial plan submission or the annual plan review required under
Sec. 154.1065(a). The facility owner or operator who submits plan is
not required to, but may, at the owner or operator's option, conform to
an ACP which is less than 6 months old at the time of plan submission.
One comment expressed that the ACPs should be open for public
comment because of their impact on the response plans. Any member of
the public may attend meetings held on the development of the ACP.
One comment urged the Coast Guard to provide guidance as to how an
owner or operator could cover more than one facility in a response
plan. Facility response plans must be developed for a specific facility
and it is not practical for a plan to cover more than one facility.
Portions of a corporate response plan may be appropriate for inclusion
in several facility response plans.
Two comments urged that the facility response plan be part of a
more comprehensive plan and not necessarily a stand-alone document. The
Coast Guard disagrees. The facility response plan must be
comprehensive. While it may reference other documents, it must
demonstrate adequate response planning and outline facility response to
a discharge from the facility.

Section 154.1035 Specific Requirements for Facilities That Could
Reasonably be Expected to Cause Significant and Substantial Harm to the
Environment

The Coast Guard received 19 comments on the response plan
requirements for significant and substantial harm facilities. The
following discussion is divided to address the specific sections of the
response plan on which comments were received.
General. The Coast Guard received 2 comments addressing
Sec. 154.1035(a), the response plan requirements for significant and
substantial harm facilities, in general. One comment stated that the
regulations require too much detail to be continued in the response
plans. Another comment suggested that the response plans be required to
address planning and prevention programs for spills that occur most
frequently. The Coast Guard disagrees. As explained in the discussions
on the requirements of Sec. 154.1030, the regulations require
information that the Coast Guard has determined to be essential for a
response plan to be of significant use to facility personnel for all
reasonably foreseeable discharges. The plans address only spill
response activities; they do not address spill prevention. Although the
Coast Guard encourages facility owners or operators to establish spill
prevention measures, they are beyond the scope of this regulation. The
Coast Guard has issued pollution prevention regulations in 33 CFR part
154.
Notification procedures. Six comments addressed
Sec. 154.1035(b)(1), requirements for notification procedures in the
response plan. One comment suggested that the Coast Guard require the
facility owner or operator to report to the initial notification if
there was an early arrival of response equipment and whether response
equipment was on-site during the transfer. The comment indicated that
this would assist the Coast Guard On-Scene Coordinator (OSC) in
assessing the need for additional response resources and in determining
an appropriate response strategy for the spill.
Under this section, the facility owner or operator is required to
develop a notification sheet, which contains the information identified
in Figure 1, to be transmitted to Federal, State, or local agencies in
the initial and follow-up notifications of an oil discharges. The Coast
Guard limited the required information to the minimum necessary. The
facility owner or operator is not

[[Page 7902]]
required to use the same format as Figure 1, but must develop a
notification sheet that includes space for the information contained in
Figure 1. The notification sheet may include any additional information
that the facility owner or operator determines could be helpful to
responding agencies. For this reason, the Coast Guard will not require
additional information to be included on the notification sheet. The
Coast Guard, however, urges the facility owner or operator to provide
agency officials with any information that will assist them in
developing appropriate spill response strategies.
Five comments question whether the facility owner or operator is
required to notify each individual in the spill management team and oil
spill removal organization. This is not required. However, the facility
owner or operator must notify someone in the management team and a
representative of the oil spill removal organization. The Coast Guard
encourage facility owners or operators to coordinate with the spill
management team and oil spill removal organization to designate a
primary, and an alternate, point-of-contact for notifications in each
organization.
Facility spill mitigation procedures. The Coast Guard received two
comments on Sec. 154.1035(b)(2), facility spill mitigation procedures
which addressed spill prevention measures, secondary containment, and
requirements for complexes. These issues have been addressed in
discussions on Secs. 154.1030, 154.1029, and 154.1017 respectively.
Facility response activities. The Coast Guard received two comments
on Sec. 154.1035(b)(3) which suggested that the Coast Guard require an
OSRO to provide trained personnel necessary to continue operation not
only for the first 7 days of the response, but for the total time
needed to complete the spill response or until the OSRO is released
from its response obligations by the COTP. The comments indicated that
7 days is too short to complete response activities for a large oil
spill. The Coast Guard agrees that 7 days is not long enough to
complete a response to a large spill; however, the requirements of this
section are for planning purposes only. The facility owner or operator
is required only to identify resources for the first 7 days of the
spill response; however, he or she is required to ensure that adequate
response resources are available until all spill response activities
are concluded and the resources are dismissed by the OSC.
One of the comments also suggested that the Coast Guard require the
use of the National Interagency Incident Management System (NIIMS)
Incident Command System (ICS) to standardize incident command in the
United States. Facility owners or operators should refer to the ACPs
for guidance on the use of NIIMS ICS.
The Coast Guard has revised Sec. 154.1035(b)(3)(iii) and (iv) of
the final rule to be consistent with the language found in comparable
sections of the VRP regulation. These revisions do not change the
substantive requirements of this section.
Sensitive environments. The Coast Guard received 14 comments
addressing Sec. 154.1035(b)(4), requirements to protect sensitive
environments.
Two comments stated that the definition of sensitive environments
should be the same in both the Coast Guard and EPA response plan
regulations. As previously stated in the discussion on Sec. 154.1020,
the Coast Guard has added the term ``fish and wildlife and sensitive
environments'' to the definitions in the final rule. This term also has
been adopted by EPA. Accordingly, this subsection has been renamed
``Fish and Wildlife and Sensitive Environments'' in the final rule.
Several comments addressed the identification of fish and wildlife
and sensitive environments, particularly the requirement that these
areas be consistent with those identified in the ACPs. These comments
have been addressed in the preamble discussion on Sec. 154.1030.
Many comments indicated that the requirement in the IFR to identify
areas of economic importance results in the identification of certain
areas that have no significant environmental sensitivity. As an
example, one comment indicated that certain areas such as
transportation routes are economically important, but not
environmentally sensitive. As this comment illustrates, this
requirement is not intended to result in the identification of every
area of economic importance. It is, however, intended to protect those
areas that are not otherwise identified as environmentally sensitive,
such as recreational beaches, parks, and aquaculture sites, industrial
water intakes and other areas important to the economic well-being of
the surrounding community. These areas of economic importance will be
identified by the ACPs.
One comment suggested that the Coast Guard include water intakes
within fish and wildlife and sensitive environments. The Coast Guard
defers to the ACPs for such identifications.
Two comments indicated that this section of the regulation does not
provide enough guidance on determining the adequacy of the planning
distances and the response equipment identified for the protection of
fish and wildlife and sensitive environments. The comments recognized
the utility of spill trajectory models, but indicated that they all are
not equally reliable. Under the regulation, facility owners or
operators are not limited to using spill trajectory models to determine
the location of fish and wildlife and sensitive environments that may
be affected by a discharge of oil from their facility.
Section 154.1035(b)(4)(iii)(B)(1) of the final rule provides
facility owners or operators with a basic formula for calculating the
distances that discharged oil will flow from the facility under certain
conditions at specified times. The Coast Guard recognizes that this
formula may not take into account certain geographic and weather-
related conditions that normally exist in some ports which may affect
the distances that discharged oil may travel from the facility;
therefore, the COTP will determine whether the appropriate factors have
been accounted for in the identification of fish and wildlife and
sensitive environments. The adequacy of the identified resources also
will be assessed by the COTP.
The final rule also provides facility owners or operators with a
third means of complying with the requirements of this section. In
addition to using the formula in Sec. 154.1035(b)(4)(iii)(B)(1) or
developing a spill trajectory model, facility owners or operators are
permitted to use the formula in appendix C of Attachment C-III of EPA's
FRP final rule that is most appropriate for the facility (59 FR 34070;
July 1, 1994).
Three comments addressed the planning distances required under the
IFR. Two comments suggested that the Coast Guard expand the provision
in Sec. 154.1035(b)(4)(iii)(B)(1) of the IFR, which requires the
identification of response resources for areas that will be impacted in
48 hours in non-tidal waters, to non-persistent oils. Because of the
rapid rate at which non-persistent oils evaporate, the Coast Guard is
only requiring facility owners or operators to plan to respond to areas
reached by non-persistent oil in 24 hours in non-tidal waters at
maximum current.
Conversely, one comment stated that the planning distances required
by this section are significantly greater than is warranted by the
potential impact of the facility's worst case discharge. The Coast
Guard disagrees and contends that the effects of tides and currents on
discharged oil warrant these planning distances.

[[Page 7903]]

Two comments addressed response activities for wildlife protection.
One comment suggested that response plans be required to address issues
such as wildlife dispersal, collection, cleaning, rehabilitation, and
recovery. Another comment suggested that response personnel be required
to undergo special training for wildlife response. Although the Coast
Guard encourages facility owners or operators to identify resources for
wildlife response, it will not require these resources to be identified
by contract or other approved means. The applicable ACP identifies
these private and public sector resources.
One comment states that the facility owner or operator should be
permitted to estimate the amount of shoreline requiring protection and
suggested that the estimate be reviewed and approved by the COTP. The
regulation requires the owner or operator to identify required
quantities of boom for the protection of fish and wildlife and
sensitive environments. Facility owners or operators will be expected
to identify enough boom to adequately protect each of the fish and
wildlife and sensitive environments identified in their plan.
Another comment indicated that 1 day should be reduced from the
planning requirement if the response equipment is determined to be
capable of arriving in less than half of the maximum required arrival
time. The Coast Guard encourages the early arrival of response
resources; however, it does not plan to reduce the requirements of this
section.
Hazard Evaluation and Spill Scenarios. The Coast Guard received a
total of four comments on these two topics. The comments indicated that
the final rule should include information on hazard evaluations and
spill scenarios. Sections 154.1035(c) and (d) has been reserved for
these topics to ensure consistent formatting of Coast Guard and EPA
response plan regulations and to prevent plans which contained
information required by the EPA regulations from being rejected by the
Coast Guard. However, because the Coast Guard does not intend to
provide guidance on hazard evaluation or spill scenarios at this time,
it has removed these reserved paragraphs from the final rule and has
redesignated the remaining paragraphs of this section accordingly. It
will continue to accept plans prepared to comply with both EPA and
Coast Guard response plan regulations.
Training and Exercises. The Coast Guard received one comment on
Sec. 154.1035(c) of the regulation. It is addressed in the preamble
discussion on Sec. 154.1055.
Appendices. The Coast Guard received one comment on
Sec. 154.1035(e) which contended that the information in the appendices
is redundant with information found elsewhere in the plan and suggested
that the appendices should not be required. The Coast Guard disagrees.
However, it recognizes that some of the information in the appendices
may be found in other sections of the plan; telephone numbers need not
be listed elsewhere in the response plan if provided in the appendices.
Facility specific information. The Coast Guard received three
comments on Sec. 154.1035(e)(1). Two comments suggested that the Coast
Guard should not require material safety data sheets for materials
which are not handled by the MTR portion of the facility. The Coast
Guard agrees and does not require this information for substances that
are not handled by the MTR portion of the facility. The third comment
addressed firefighting capabilities and is discussed in the appropriate
section of Sec. 154.1045.
Equipment lists and records. The Coast Guard received one comment
on the Sec. 154.1035(e)(3) requirement to include equipment lists and
records in the response plan. The comment stated that the Coast Guard
should require the identification of equipment that would be used to
respond to the maximum most probable discharge in addition to the
equipment used to respond to the average most probable discharge, as
currently required by the regulation. The Coast Guard agrees and, under
the final rule, requires facility owners or operators to list all the
major equipment belonging to the oil spill removal organization for
response to a maximum most probable discharge.
Four comments were received addressing the issue of contractor
classification and one of these comments also addressed classification
as outlined in NVIC 12-92. One comment urged the Coast Guard not to
require plans to list specific quantities of equipment when listing a
Coast Guard classified oil spill response organization (OSRO) for
recovering volumes above the caps. This same comment urged that the
Coast Guard and the EPA extend the classification program to include
both coastal and inland contractors, arguing that this extension would
enhance uniformity and improve response capabilities for large oil
spills.
Section 154.1035(g)(3)(iii) of the final rule states that it is not
necessary to list response equipment from an OSRO when the OSRO has
been classified by the Coast Guard and its capacity has been determined
to equal or exceed the response capability needed by the facility. The
Coast Guard will accept the listing of an appropriate OSRO for response
resources up to and beyond the listed caps. The EPA has determined that
it will utilize the OSRO classification system established by the Coast
Guard. An OSRO may be classified for certain size discharges and
operations in certain specified geographic areas. Both coastal and
inland contractors may apply for classification by the Coast Guard.
One comment argued that industry rather than the Coast Guard should
certify contractors. The Coast Guard finds that this is impractical.
The Coast Guard is concerned that inconsistencies may occur in the
classification of OSROs unless it is conducted by one organization. At
the present time, the Coast Guard is the appropriate agency to conduct
on OSRO classification program. The Coast Guard plans to explore using
third parties to inspect or approve OSROs.

Section 154.1040 Specific Requirements for Facilities That Could
Reasonably be Expected to Cause Substantial Harm to the Environment

The Coast Guard received 2 comments on this section of the IFR. One
comment indicated that the requirement for significant and substantial
harm facilities to identify a corporate organizational structure that
would be used to manage the oil spill response under
Sec. 154.1035(b)(3)(iii) should be applied to substantial harm
facilities. Additionally, the comment suggested that the Coast Guard
require contacts for wildlife response resources; however, another
comment stated that these facilities should be required to use legally
binding contracts for the identification of all responses resources.
The Coast Guard disagrees. The requirements of this section were
developed to lessen the regulatory burden and economic impact on
substantial harm facilities. The Coast Guard has determined that the
costs of identifying a corporate organizational structure and
contracting for response resources outweigh the benefits for
substantial harm facilities.
The IFR required the owners or operators of substantial harm
facilities to have at least 200 feet of containment boom immediately
available to respond to the average most probable discharge. The IFR
was unintentionally more stringent for substantial harm facilities than
for significant and substantial harm facilities. However, under the
final rule, the requirement has been reduced to permit facility owner
or operators to identify 200 feet of boom and the means

[[Page 7904]]
of deploying it that is capable of arriving at the spill site within 1
hour of the detection of the spill.

Section 155.1041 Specific Response Information to be Maintained on
Mobile MTR Facilities

The Coast Guard received one comment on this section of the IFR
which addresses contracts or training permits for wildlife response.
This issue is addressed in the discussion of fish and wildlife and
sensitive environment requirements in Sec. 154.1035.

Section 154.1045 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Group I Through Group IV
Petroleum Oils

The Coast Guard received several comments addressing this section
which concerns the inclusion of certain information in the response
plans for facilities handling, storing, or transporting Group I through
Group IV petroleum oils. Two of these comments addressed this section
generally. One comment argued that the Coast Guard should require
contracts or training and permits, for wildlife response. As indicated
in the discussion on fish and wildlife and sensitive environments in
Sec. 154.1035, the Coast Guard will not require these resources to be
contracted for in the final rule.
Another comment contended that the regulations should provide
further guidance on matching response equipment with the grade of
petroleum oil spilled, arguing that the groups of petroleum oil do not
necessarily correspond to the grades of petroleum oil and that the
grade spilled is not necessarily the grade recovered. Response
equipment must be certified for the grade of oil handled, stored or
transported by any facility for which the equipment is identified as a
response resource. The Coast Guard expects that discharged petroleum
oil will weather and that the grade of petroleum oil discharged will
weather sufficiently to be recovered by response equipment.
Reclassification of bodies of water. Six comments were received
specifically addressing the COTP's reclassification of specific bodies
of water as being operating environments needing more or less stringent
response resource planning in Sec. 154.1045(a)(3). Four comments argued
that significant wave height may be such that it is unsafe to conduct
recovery operations, making more response equipment moot. These
comments suggested that the regulation allow less response equipment if
operation would be unsafe in wave conditions exceeding the significant
wave height criteria during more than 35 percent of the year. The Coast
Guard requires the facility owner or operator to plan to recover the
oil in the operating environment in which the facility is located. As
stated in Sec. 154.1010, the regulation establishes a planning standard
and not a performance standard. Decisions on whether to deploy
equipment at the time of a discharge will remain with the COTP in
consultation with the responsible party and OSRO.
Two comments argued that significant wave height is only one
criterion which should be considered during the reclassification
determination. These comments stated that the presence of debris, ice,
currents, wind, and darkness should also be determining factors. These
comments further argued that the standard for reducing classification
should be the presence of prevailing wave conditions not exceeding the
significant wave height criteria for the less stringent operating
environment during 85 percent of the year while the standard for
increasing classification should remain the presence of prevailing wave
conditions exceeding the significant wave height criteria for more than
35 percent of the year.
The Coast Guard has retained the percentages from the IFR. The 35
percent threshold provides balance between anticipated area
environmental conditions and equipment available to operate in those
conditions. Setting a lower threshold would require new areas to
stockpile equipment with the capability of operating in unlikely
conditions. The rule requires that ice conditions, debris, and other
conditions as determined by the COTP must also be considered in the
area where the facility operates.
Requirements pertaining to average most probable discharges. The
Coast Guard received one comment which responded to the requirements of
Sec. 154.1045(c). It argued that the Coast Guard should clarify that
facilities are not responsible or obligated to respond to spills from
vessels they do not own or operate. While the Coast Guard requires the
facility to plan for responding to an average most probable discharge
at the facility, it remains the responsibility of the owner or operator
of the source of the discharge to initiate effective response at the
time of the discharge. The regulation does not require the facility to
respond to a discharge from a vessel and the regulation has not been
changed to state otherwise.
Under Sec. 154.1045(c) (1) and (2) of the IFR, facility owners or
operators are required to identify certain equipment such as
containment boom and means of deploying and anchoring the boom, oil
recovery devices, and recovered oil storage capacity that are capable
of arriving at the facility within specified times to respond to the
average most probable discharge. Upon review of the IFR, the Coast
Guard determined that the phrase ``at the facility'' does not indicate
that this response equipment must be available at the scene of the oil
discharge in the specified times. Accordingly, the Coast Guard has
revised these provisions of the final rule to require the
identification of response equipment that is capable of arriving at the
spill site within the times specified by this section. This change also
applies to comparable sections in Sec. 154.1047 of subpart F,
Sec. 154.1225 of subpart H, and Sec. 154.1325 of subpart I.
Requirements pertaining to response to maximum most probable
discharges. The Coast Guard received three comments in response to the
requirements of Sec. 154.1045(d). One comment argued that the planned
response time for possible spills in the Great Lakes should not be
lower than it is for other bodies of water. The Coast Guard disagrees
and has retained the 6-hour requirement for response to a maximum most
probable discharge. The Great Lakes are unique, self-contained, bodies
of fresh water especially vulnerable to spills. Because of this, it is
especially important that the response capability be available to
respond rapidly. The maximum most probable discharge response
capability provides a base capability that can be deployed rapidly to
the scene of a discharge to mitigate its effects.
Several comments argued that the Coast Guard should allow resources
located in one or more COTP zones to be moved to another zone as part
of a response effort. The Coast Guard expects that response resources
may be shifted in response to large pollution incidents. The rule does
not prohibit this shifting of resources. It may be necessary for the
facility owner or operator to confirm the availability of other
response resources or those response resources identified in the
response plan above the caps. The Coast Guard reserves the right to
invalidate a plan due to the absence of available response resources to
respond to a maximum most probable discharge or the worst case
discharge. However, under the final rule, the COTP may impose
operational restrictions on a case-by-case basis, such as limitations
on the number of transfers at the facility, or, where appropriate, may
permit the facility to operate with temporarily modified response plan

[[Page 7905]]
development and evaluation criteria (e.g., modified response times,
alternate response resources, etc.).
The Coast Guard has made minor organizational changes to this
section of the final rule to clarify the planning requirements for the
maximum most probable discharge. These changes more clearly indicate
that resources identified to respond to the maximum most probable
discharge include all equipment and personnel identified to respond to
the average most probable discharge.
Requirements pertaining to response to a worst case discharge to
the maximum extent practicable. The Coast Guard received 3 comments
responding to the requirements of Sec. 154.1045(e). One comment argued
that owners and operators should be required to plan only for a worst
case discharge.
The Coast Guard's authority to regulate is broader than OPA 90.
Section 311(j)(1)(C) of the FWPCA authorizes the Coast Guard to require
planning for discharges other than the worst case. Based on the
recommendations of the Oil Spill Response Plan Negotiated Rulemaking
Committee, the Coast Guard determined that the rule also should address
operational discharges. The Coast Guard is using its FWPCA authority to
require planning for spills other than a worst case discharge.
Response times and tiers. The Coast Guard received 12 comments
addressing the response time and tier requirements for worst case
discharges (Sec. 154.1045(f)). Two of these comments dealt with the
issue of giving credit for early arrival of response resources. One
comment argued in favor of this proposal and suggested that such credit
take the form of a reduction of monetary liability for a spill, a
reduction in liability for natural resource damage assessments, or a
reduction in drill requirements. One comment argued against issuing
credit for early arrival. This comment specifically argued that credit
should not be given for dispersants if such credit would result in
planning to use a lesser amount of mechanical recovery equipment during
a spill. The other comment argued that the Coast Guard should encourage
early arrival of response equipment but that it should not issue credit
for meeting an early or minimum arrival time.
The rule is written to require the arrival of resources in a timely
manner to contain and remove discharged oil before it has the
opportunity for greater dispersal. The Coast Guard cannot lessen the
monetary liability or the liability for damage to natural resources
based on the arrival times of response resources. The early arrival of
these resources will lessen the likelihood of damage to natural
resources.
The use of dispersants is a valid response technique in certain
circumstances. A facility that handles, stores, or transports Group II
or III petroleum oils can receive up to 25 percent credit against on-
water recovery capability in any environment with year-round
preapproval for use of dispersants. The response plan must address the
arrival of these dispersants within 12 hours. The Coast Guard's
position is that the rule strikes a proper balance in planning for the
use of dispersants and mechanical recovery.
One comment addressed the tiering of response resources. The
comment indicated that this approach is not useful because it does not
allow for an initial response with all available resources. The tiering
requirements provide a maximum time in which certain response resources
are capable of arriving at the scene of a petroleum oil spill; they do
not preclude the early arrival of response resources and, therefore, do
not preclude an initial spill response with all available resources.
The same comment also indicated that the evaluation of the
equipment's recovery capacity should not be based on the equipment's
operability in the different operating environments because those
conditions may not exist during an actual spill response. The Coast
Guard recognizes that the conditions and assumptions on which a
response plan is based may not exist during an actual spill response.
However, to develop an effective response plan, a facility owner or
operator must identify and plan to respond in the conditions which
normally exist in the port or at the facility. As Sec. 154.1010
indicates, the regulation establishes a planning standard and not a
performance standard. During an actual spill response, a final
assessment as to the type of equipment to be deployed for response to a
discharge will be made by the COTP in the consultation with the
responsible party and OSRO.
Eight comments addressed various issues concerning the amounts of
time allotted for responding to an oil spill. Two comments argued that
facilities in higher volume port areas and the Great Lakes should plan
using 48-hour response times for Tier 3 response resources. Two
comments urged the Coast Guard to increase the Tier 1 response time to
12 hours as opposed to 6 hours for higher volume port areas. Four
comments argued that the response times should be the same regardless
of the location of the spill. These comments further contended that the
major reason for requiring shorter times should be for fish and
wildlife and sensitive environment purposes, which varies for vessels
but seems irrelevant for stationary facilities. Two comments argued
that the response times were too low in light of the levels agreed upon
at the Negotiated Rulemaking meetings. One of these comments urged the
Coast Guard to reconsider these response times because current response
times are difficult and expensive to achieve. One comment urged the
Coast Guard to review and revise the response times in light of
response capability. This comment also urged the Coast Guard to clarify
that response times apply to arrival on-scene rather than deployment of
response resources and argued that the Coast Guard should only require
first tier dispersants to be on-scene within 12 hours, with more
dispersants being available as needed.
The Coast Guard contends that the tiering concept is valid and
adequately approximates the availability of response resources. The
tiering process reflects the arrival of available response resources
from nearby and more distant locations. The response times in this rule
are different than those applicable to vessels. The response times for
vessels are predicated on responding to an incident at the outermost
boundaries of the applicable areas, including up to 6 hours on-water
transit of response equipment. Since MTR facilities are located on or
along the shoreline, it will not be necessary to account for extensive
over-water transit times. The response times provided in the final rule
are for the planned arrival of response resources at the MTR facility
which is the likely site of the initial cleanup activity and does not
account for on-water deployment time. Therefore, the transit times in
this final rule are less than those provided for vessel response plans.
One comment addressed the definition of tiers and urged the Coast
Guard to adopt the EPA terminology and definitions of tiers to avoid
confusion and duplication. The EPA and the Coast Guard have used the
same approach to the concept of tiering response resources. Tier has
been defined under Sec. 154.1020 of the final rule.
Identification of firefighting capability. The Coast Guard received
several comments on firefighting capability requirements
(Sec. 154.1045(j)). Because many of the requirements for firefighting
capability in this section also are contained in Secs. 154.1047 and
154.1049, comments addressing those sections also will be discussed.

[[Page 7906]]

Two comments suggested that the coordinator of firefighting
activities for a facility should be extremely familiar with the
facility and its operations. Additionally, one comment argued that
``sufficient firefighting capacity'' would be difficult to define and
should not be included in the rule. Another comment urged the Coast
Guard to develop more specific firefighting requirements.
The many variables involved in the design and construction of MTR
facilities, the products handled, and the conditions encountered in an
actual fire, preclude the development of a fixed definition or formula
for calculating ``sufficient firefighting capacity.'' The IRF and the
final rule require a facility owner or operator to provide an in-house
expert to work with the local and facility firefighting resources. This
in-house expert is responsible for verifying that the firefighting
resources are sufficient to respond to a worst case scenario. The Coast
Guard believes that this approach is flexible enough to be adapted to
the peculiarities of different facilities, and at the same time,
provides the best practical assurance that the firefighting resources
identified in the plan will be able to handle a fire or explosion
resulting in a facility's worst case discharge scenario.
One comment argued that firefighting should be addressed by the
facility itself along with its local fire department. As written, the
rule requires a facility owner or operator to work with local fire
departments through an in-house expert when developing and implementing
response planning requirements. The rule requires additional
firefighting capability, ensured by contract or other approved means,
only when both the facility's firefighting resources and the local
firefighting resources are inadequate.
One comment argued that petroleum oil fires are so rare that
firefighting contracts should not be required. The Coast Guard
disagrees. A facility owner or operator must be prepared to respond to
any situation which may cause or arise from a petroleum oil discharge
into the marine environment. Section 311(j)(5)(C)(iii) of the FWPCA
requires resources to remove, mitigate or prevent a discharge including
one caused by fire. The Coast Guard has consistently interpreted this
provision to authorize the requirement that response plans ensure the
availability of firefighting resources by contract or other approved
means.
One comment suggested that the Coast Guard cross-reference other
applicable firefighting sections of the regulation (Secs. 154.1047 and
154.1049). The Coast Guard has determined that these requirements
should be set out in each section for ease of reference.
Consistency with ACP(s). The Coast Guard received one comment on
Sec. 154.1045(k). This comment argued that according to the IFR, a
response method not mentioned in the ACP would be considered
appropriate to protect fish and wildlife and sensitive environments.
This comment suggested that the Coast Guard change the language of the
IFR to indicate that the response plan must be consistent with the
appropriate ACP.
The Coast Guard has revised this section of the final rule to state
that any plan submitted 6 months or more after the appropriate ACP is
published must be consistent with that ACP. A plan that is consistent
with that ACP must at least identify the fish and wildlife and
sensitive environments covered by the ACP; however, a facility owner or
operator who has identified additional fish and wildlife and sensitive
environments also may identify these areas in the plan. The IFR
provision was developed so that the facility owner or operator who
submitted a response plan prior to the publication of the ACP would not
be required to resubmit or amend the plan once the ACP was published or
at the time of each annual revision of the ACP. However, since the
publication of the IFR, all of the ACPs have been published; therefore,
all facility owners or operators making initial plan submissions under
the final rule, the required annual update, or resubmitting plans at
the plan's 5-year resubmission date will be required to submit plans
which are consistent with the appropriate ACP.
Future caps review process. The Coast Guard received seven comments
which addressed the provisions of Sec. 154.1045(m) regarding the review
of caps in the years 1998 and 2003. One comment argued that the Coast
Guard should delete the 1998 cap increases until the need for such
increases is assessed. This comment contended that the percentage
increase as noted currently in the regulations is arbitrary and instead
should be based on valid data.
One important goal of OPA 90 is to increase the overall oil spill
response capability in the United States. The Coast Guard believes that
setting the 1998 cap now provides a clear upper target for which
facility owners or operators and the oil spill response industry must
plan. The Coast Guard, however, will conduct an evaluation of the 1998
cap increase to determine if it remains practicable before it becomes
effective.
Four comments suggested that if the spill history of a facility
between 1993 and 1998 is consistently better than required, then the 25
percent increase in caps should not be required. These comments argued
that such an exemption would encourage a quick response to an oil
spill. Although the Coast Guard encourages rapid response to an oil
spill, it does not believe that exempting certain facilities from the
cap increases will expedite a facility's spill response. Additionally,
this option does not move toward Congress's goal to increase the
overall spill response capacity in the United States.
One comment suggested that planning caps be increased when the plan
is due for resubmission rather than in 1998. The Coast Guard has
determined that the planning caps will be increased in 1998 provided
that the required review confirms the practicability of the increases.
A facility owner or operator will not be required to incorporate these
caps into their plans until the Coast Guard completes the review.
One comment suggested that the caps be rejected because the Coast
Guard offers no rationale for the levels prescribed. This comment
further suggested that the Coast Guard reevaluate its approach to caps
and instead base it on an analysis of what would be a response to the
maximum extent practicable. Alternatively, this comment suggested that
the cap increases in Table 5 of the regulations would be acceptable if
the amounts were doubled initially.
As discussed in the VRP NPRM (57 FR 27514, June 19, 1992), the caps
set out in the IFR were established by the Coast Guard upon
recommendation by the Negotiated Rulemaking Committee. The Committee
recognized that the current limits on response technologies would
require a cap to be placed on the amount of response resources required
to be identified for responding to a petroleum oil discharge to the
maximum extent practicable. The caps established in the IFR reflect the
Coast Guard's assessment of the overall response capability that can be
achieved in the United States by 1998 taking into account factors such
as anticipated advances in skimming efficiencies and technology, the
development of high rate response techniques, and other applicable
response technologies.
Identification of equipment above Tier 3 cap. One comment was
received addressing this provision. It argued that the capability may
not exist to meet this requirement. Through its discussions with
representatives of the spill response industry, the Coast Guard has
determined that adequate response

[[Page 7907]]
resources are currently available to enable facility owners or
operators to meet this requirement. The final rule requires the
identification of response equipment above the Tier 1 and 2 caps, as
well as the Tier 3 cap. Since there is no requirement to contract for
these resources, this is not a significant change. Response plans
submitted prior to the IFR, following the guidance in NVIC 7-92,
readily met this requirement.

Section 154.1047 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Group V Petroleum Oils

The Coast Guard received three comments on this section which
requires the inclusion of certain information in response plans for
facilities involving Group V petroleum oils. One comment addressed this
section generally, asking for clarification of the term ``the impact of
such discharges'' in paragraph (c)(4) of this section which requires
the identification of equipment necessary to assess the impact of a
worst case discharge of Group V petroleum oils to the maximum extent
practicable. The physical characteristics of Group V petroleum oils
make them likely to sink when spilled. As a result, traditional
response techniques such as containing the spread of the oil on the
surface of the water are often ineffective against these petroleum
oils. The Coast Guard has required equipment to assess the impact of
Group V petroleum oil discharges because that impact cannot be
ascertained by the usual methods such as visual examination. The impact
of discharges of Group V petroleum oil will only be detectable through
the use of such methods as sonar or sampling equipment which can, for
example, ascertain what petroleum oil has sunk to the bottom or remains
suspended in the water column.
Response time for deployment of response equipment. One comment was
received which concerned the provisions in Sec. 154.1047(d) regarding
the required response time for deployment of equipment. This comment
argued that the 24-hour response time would not necessarily be the best
for heavy petroleum oils since they are best recovered after hardening.
This comment further argued that the Coast Guard should design more
appropriate response times for Group V petroleum oils in general and
asphalt in particular. The Coast Guard has designed the response times
to ensure that an effective response is made while taking into account
the different properties of the various petroleum oils, as well as the
different natures of the MTR facilities and their operating
environments. The Coast Guard recognizes that Group V petroleum oils
react differently from other petroleum oils and this is why the Coast
Guard separated these oils into a different category. The Coast Guard
believes that the 24-hour response time is appropriate given the varied
nature of Group V petroleum oils themselves, as well as the varied
environments and conditions in which a discharge might occur.
Firefighting capability. The Coast Guard received one comment
addressing the requirements for firefighting capability contained
within Sec. 154.1047(e). This comment argued that ``sufficient
firefighting capacity'' would be difficult to define and should not be
included in the rule. This comment further argued that firefighting
should be addressed by the facility itself along with its local fire
department. Identical comments were also made to Secs. 154.1045 and
154.1049. See Sec. 154.1045 of this preamble for the Coast Guard
response.

Section 154.1049 Response Plan Development and Evaluation Criteria for
Facilities That Handle, Store, or Transport Non-Petroleum Oil

Firefighting capability. The Coast Guard received one comment
addressing the requirements for firefighting capability contained
within Sec. 154.1049(e) of the IFR. This comment argued that
``sufficient firefighting capacity'' would be difficult to define and
should not be included in the rule. This comment further argued that
firefighting should be addressed by the facility itself along with its
local fire department. Identical comments also were made to
Secs. 154.1045 and 154.1047. See Sec. 154.1045 of this preamble for the
Coast Guard response.
Non-Petroleum Oils. The Coast Guard received comments addressing
the issue of whether the requirements set forth in the IFR for
petroleum oils should apply to animal fats and vegetable oils and other
non-petroleum oils. The comments proposed that animal fats and
vegetable oils should be more clearly differentiated from petroleum
based oils. The comments also suggested allowing unique response
procedures for non-petroleum oil spills.
In support of their proposals, the comments provided an industry
sponsored study entitled ``Environmental Effects of Releases of Animal
Fats and Vegetable Oils to Waterways'' and an associated study. The
study claimed that the presence of these oils in the environment does
not cause significant harm. The study reached its conclusion based upon
its assertions that animal fats and vegetable oils are not toxic to the
environment; are essential components of human and wildlife diets;
readily biodegrade; and are not persistent in the environment like
petroleum oils. The industry study also found that these oils can coat
aquatic biota and foul wildlife, causing matting of fur or feathers
which may lead to hypothermia; and that animal fats and vegetable oils
in the environment have a high Biological Oxygen Demand which could
result in oxygen deprivation where there is a large spill in a confined
body of water that has a low flow and a low dilution rate.
The comments acknowledged that the International Maritime
Organization (IMO) Subcommittee on Bulk Chemicals recently recognized
the potentially harmful effect on birds from contact with floating
animal fats and vegetable oils discharged from vessels. The comments
also conclude, based upon Coast Guard data, that the likelihood of a
non-petroleum oil spill of a magnitude to cause environmental harm is
extremely small. Additionally, the comments noted the differences in
the average size of the vessels which carry petroleum and non-petroleum
oils.
In the preamble to the VRP IFR, the Coast Guard disagreed with
comments on the VRP NPRM which claimed that edible oils pose less
relative risk to the environment. The environmental effects of
discharges of non-petroleum oils are clearly documented and in many
respects are similar to the environmental effects of discharges of
petroleum oils.
In letters to the docket, the Department of the Interior (DOI), the
National Oceanic and Atmospheric Administration (NOAA), and the U.S.
Fish and Wildlife Service (FWS) discussed the environmental effects of
discharges of animal fats and vegetable oils and other non-petroleum
oils. DOI, NOAA and FWS all concluded that these oils pose risks to the
marine environment when spilled.
The agencies attributed the detrimental effects of non-petroleum
oils to the similarity in physical properties between petroleum and
non-petroleum oils. The effects outlined by DOI and NOAA include
physical coating of bird feathers and mammal fur leading to
hypothermia, a loss of buoyancy, and subsequent morality. All three
agencies also confirmed the industry report's conclusion that
discharges of non-petroleum oils can result in increased Biological
Oxygen Demand in receiving waters, thereby decreasing available oxygen
in the

[[Page 7908]]
affected waterbody and often resulting in fishkills. NOAA also stated
that coconut and palm oils are very viscous and when spilled in most
coastal waters would behave like Crisco (a hydrogenated animal fat)
probably persisting for over a decade.
The Fish and Wildlife Service letter specifically responded to the
industry sponsored study. The FWS expressed great concern over the
veracity of many of the study's conclusions. The FWS characterized the
industry study as ``misleading, weak and erroneous'' and stated that
``key facts have been misrepresented, are incomplete or are omitted,''
and that ``[t]he biggest oversight of the (industry study) is the
insignificance given to the fouling potential of the edible oils.''
The FWS acknowledged that there are differences between petroleum
and non-petroleum oils including different toxicity levels. It pointed
out that physical fouling is similar for both petroleum and non-
petroleum oils, and additionally, that the removal of non-petroleum
oils can be more difficult and strenuous for the wildlife because, in
many instances, complete removal can only be accomplished with scalding
hot water and excessive washing. The FWS also stated that wildlife
rehabilitators consider edible oils and fats to be some of the most
difficult substances to remove from wildlife because the low viscosity
of these oils allows deeper penetration into the plumage of fur,
creating a more thoroughly contaminated animal.
The FWS was extremely critical of the industry study for suggesting
that ingestion of edible oils is harmless to wildlife. The FWS stated
that the study misleads uninformed readers by not clarifying that these
oils, if consumed in large quantities, will cause harm to organisms
through means other than toxicity. For example, according to the FWS,
the ingestion of large quantities of non-petroleum oils can cause lipid
pneumonia, diarrhea, and dehydration in birds or other wildlife which
try to clean these oils from their feathers or coats by preening. This
problem is magnified, also according to the FWS, by the fact that these
oils do not have a repugnant smell or iridescent appearance to frighten
wildlife away, therefore making it more likely that wildlife will come
in contact with them during a spill.
In addition to the agency letters, the Coast Guard has placed in
the docket several studies attesting to the harmful effects of non-
petroleum oils in the environment. One such study, conducted by the
International Maritime Organization (IMO) is titled ``Harmful Effects
on Birds of Floating Lipophilic Substances Discharged from Ships.''
This study examined the literature concerning non-petroleum oils
spilled into the environment and concluded that a number of lipophilic
substances, including vegetable oils, cause lethal harm to birds as a
specific group of marine life. The study found that lipophilic
substances adhere to the feathers of seabirds due to the lipophilic
character of the feathers' wax layer. This causes the grid structure of
the plumage to be disrupted thereby destroying its insulating
properties.
The IMO study gives numerous examples of lethal contamination of
seabirds by lipophilic substances spilled from ships. These examples
include the death of thousands of seabirds because of a discharge of
palm oil off the Netherlands coast; over 300 dead birds as a result of
a 1,000-liter spill of rapeseed oil into the harbor of Vancouver,
Canada; diseased gannets found along the Dutch coastline whose plumage
was found to be coated with paraffin and consequently was no longer
water repellent; and surveys of Dutch beaches in 1990 which found that
25 percent of the dead birds washed ashore were at least partly
contaminated with vegetable oils. The IMO study also warns that a
serious discharge of lipophilic substances in the open sea would cause
more harm to seabirds than a nearshore discharge because the birds in
the open sea would be unable to rest on shore to clean their plumage.
For these reasons, the Coast Guard has determined that a worst case
discharge of animal fats or vegetable oils or other non-petroleum oils
from an MTR facility could reasonably be expected to cause harm to the
environment. Therefore, facilities that handle, store, or transport
these oils, and meet the requirements of Sec. 154.1015(b), are required
to prepare and submit response plans. If the facility meets the
criteria in Sec. 154.1015(c) for a facility that could cause
significant and substantial harm, the response plan must be approved by
the Coast Guard.
Because there is insufficient data to support a finding that a
spill of a large quantity of animal fats or vegetable oils or other
non-petroleum oils will have less adverse impact on the environment
than a spill of other kinds of oil, the Coast Guard does not believe
that a facility that handles, stores, or transports these oils should
have reduced response requirements from those provided in the IFR.
However, the Coast Guard does acknowledge that animal fats and
vegetable oils or other non-petroleum oils may behave differently from
petroleum or petroleum-based oils and has created new subparts H and I
to address response plan requirements for these oils. For further
information see the discussions of subparts H and I in this preamble.
The Coast Guard received one comment which requested the suspension
of the IFR's implementation until hearings can be held on amending the
rule to exclude animal and vegetable fats from these regulations. The
Coast Guard disagrees. Animal fats and vegetable oils are considered to
be oils under the FWPCA. They are specifically defined as non-petroleum
oils in the final rule and may result in serious harm to the
environment in the event of a discharge to navigable waters. For
additional information on this issue, see response to similar comments
in Sec. 154.1015.

Section 154.1050 Training

The Coast Guard received 15 comments on this section. The comments
were not in agreement about whether the Coast Guard should include more
specific training requirements in the final rule. Three comments stated
they wanted more detailed standards to define the frequency of
refresher courses and the minimum level of Occupational Safety and
Health Administration (OSHA) training required. One comment suggested
making training requirements compatible with EPA standards. Five
comments were against developing any additional training requirements.
The Coast Guard has not modified the training requirement of this
section in the final rule; however, a new appendix D entitled
``Training Elements for Oil Spill Response Plans'' has been added to
subpart 154 to provide guidelines to facility owners or operators for
the development of the training portions of their response plans.
Additionally, training guidelines for facility response plans,
including refresher training, are defined in OSHA standards for
emergency response operations in 29 CFR part 1910, appendix D. As
indicated in appendix D to part 154, the specifics of the training
program should be determined by the facility owner or operator. On the
job training and experience may cover parts or all of the training
requirements, as appropriate.
Many comments remarked that the responsibility of a facility owner
or operator to ensure adequate training of all private response
personnel in Sec. 154.1050(d) is inappropriate, costly, and possibly
duplicative when an OSRO also is required to demonstrate training. One
comment argued that the Coast Guard should require OSROs rather than
the owners or operators to be

[[Page 7909]]
responsible for training employees and maintaining proper records. The
Coast Guard disagrees. While the owner or operator of the facility may
shift training requirements to an OSRO through contract or agreement,
the owner or operator of the facility remains responsible to ensure
that adequate trained response resources are available.
One comment suggested specifying that OSHA retains enforcement
authority for working conditions not addressed by Coast Guard
standards. The Coast Guard agrees, but does not find it necessary to
state that enforcement of the OSHA standards remains with that agency.
One comment mentioned that facilities handling only edible oils
should be exempt from the training requirements. The Coast Guard
believes training standards are necessary for MTR facilities regardless
of the specific type of oil handled, stored, or transported. Therefore,
the Coast Guard will not change the requirements.
One comment remarked that it was not practical to ensure that
volunteers and casual laborers have OSHA training. In Sec. 154.1050
(a), the Coast Guard requires only that a ``method of training'' be
identified to comply with the requirements of 29 CFR 1910.120.
Volunteers and casual laborers who are not trained or familiar with
hazards associated from contact with oil must be trained to meet OSHA
requirements.

Section 154.1055 Exercises

The Coast Guard has extensively revised Sec. 154.1055 which was
previously entitled ``Drills'' and is now entitled ``Exercises.'' The
changes make the terminology in the final rule consistent with the
National Preparedness for Response Exercise Program (PREP). In response
to the need to provide facility owners or operators with additional
direction on conducting exercises, the Coast Guard has revised this
section to specify that compliance with PREP fulfills all exercise
requirements. However, participation in the PREP itself remains
voluntary. If an owner or operator does not choose to participate in
the PREP, they may develop their own program for compliance with the
exercise requirements in this regulation.
The National Preparedness for Response Exercise Program (PREP) was
developed through a joint effort of the Federal agencies implementing
OPA 90 response plan regulations and other Federal representatives
(e.g., natural resource trustees), state agencies, members of the
regulated community, and OSROs. Four public workshops were announced in
the Federal Register and were conducted in Washington, DC, and Tampa,
FL. These efforts resulted in the creation of unified requirements that
reduce the possibility of owners and operators having to participate in
numerous duplicative exercises. Following the PREP guidelines has been
determined to be an acceptable means to satisfy the OPA 90
requirements.
Equipment. The Coast Guard received 16 comments on
Sec. 154.1055(a)(3), equipment deployment drills. One comment argued
that facility owners and operators should not be penalized when
response resources are not available due to a real emergency. The Coast
Guard recognizes that actual availability of response resources may be
limited by unforeseeable events such as multiple simultaneous oil
spills.
Three comments requested additional information on equipment
deployment. Another wanted specific information on equipment deployment
drills for facilities that have no equipment of their own. One comment
stated that the Coast Guard should remove mandatory equipment
deployment for the entire plan drill. Two comments remarked that it
would be better to require one major equipment deployment exercise in
each COTP zone every 3 years. Another comment suggested that full scale
drills should determine only the response time of contractors and test
only strategic personnel, and not require equipment deployment. The
Coast Guard's position is that equipment deployment exercises are vital
for maintaining readiness and for testing the effectiveness of a
facility's response plan. The revised Sec. 154.1055 continues to
require semiannual equipment deployment exercises for facility owned or
operated equipment and annual equipment deployment exercises for OSRO
equipment. These standards are in accord with the requirements of the
PREP program.
Frequency. Several comments remarked that the costs of drills were
excessive. Many suggested that the frequency of various drills should
be decreased. Two comments requested additional details on frequency of
drills and credit provisions for separate drill elements. Two comments
also suggested that the number of drills required should be decreased
over time because they lose effectiveness. As indicated earlier, the
Coast Guard has revised the exercises section of the final rule to be
in accordance with PREP. It has adjusted the frequency of some
exercises. Qualified individual notification exercises are required
quarterly instead of monthly and whole plan exercises may now be
carried out in parts rather than all at once. The Coast Guard believes
exercises continue to be effective over time as equipment and personnel
change.
A significant number of comments suggested that credit be given for
equipment and personnel drill requirements when other drills provide
adequate practice. The different kinds of required exercises test
different aspects of a response plan. However, if an exercise includes
components which fulfill the requirements for some other type of
required exercise (e.g., an equipment deployment exercise that includes
a qualified individual notification) then both requirements may be
fulfilled by the single exercise.
Two comments suggested that an actual response situation should
credit some drills. In this final rule, the Coast Guard has made
participation in the PREP program satisfy all exercise requirements.
Under PREP, facilities which have an actual response situation may get
exercise credit. For more detailed guidance the PREP guidelines should
be consulted.
Six comments remarked that participation in one drill by a spill
management team (SMT) should meet the requirements for all facilities
using that team. The PREP guidelines address this concern in detail;
PREP allows multiple facilities using the same SMT to receive credit
for a single exercise of that SMT as long as the specified criteria are
met.
Seven comments wanted other Federal, state, or local drills to
credit Coast Guard drills where appropriate. The Coast Guard has no
control over whether other agencies give credit for Coast Guard
exercises.
One comment suggested that the Coast Guard coordinate nationally to
determine that credit be given only for personnel and equipment which
actually participated in drills. The Coast Guard requires that the
facility maintain records of exercises; and that these records be made
available to the COTP upon request. A facility that lists an OSRO
located outside the facility's COTP zone must still satisfy the
facility's own COTP that the listed OSRO has fulfilled the applicable
exercise requirements. Any facility which does not satisfy the
applicable COTP that it has fulfilled its exercise requirements is
subject to enforcement action by the COTP under this regulation. The
Coast Guard believes that the existing requirements are sufficient to
ensure that all personnel and equipment listed in facility response
plans are exercised at the appropriate intervals.
Details of plan. The Coast Guard received 6 comments suggesting

[[Page 7910]]
wording changes. One general comment was received discussing the need
for more detailed guidance. Due to extensive revisions of this section,
these changes would not be applicable and, therefore, will not be
incorporated into the text.
Unannounced drills. Some comments requested that the Coast Guard
decrease the number of unannounced drills required by Sec. 154.1055(b)
to one drill every 1, 2, or 5 years. Many argued that unannounced
drills were too costly and should either be limited due to economic
concerns or not required at all. Some also remarked that such drills
were unnecessary due to the need for other drills. Some comments
asserted that operations should not be disrupted by unannounced drills.
Others wanted facility owners and operators to be compensated for the
cost associated with unannounced drills. Two comments suggested that
OSROs and SMTs should only be activated if experience and available
resources were believed to be inadequate, two others remarked that only
the SMT should be activated. One comment suggested focusing on the
initial callout only. A few comments asked that the unannounced drills
be limited in scope, kept short and only required after 24-hour
notification. One comment suggested requiring notification of the Coast
Guard during an unannounced drill and having the Coast Guard observe
the drill rather than requesting their own drills separately. Finally,
one comment questioned whether customers would be expected to
participate in unannounced drills and wondered who would be liable for
the costs incurred. The Coast Guard finds that unannounced exercises
serve an important purpose in maintaining response resource readiness.
The final rule states that annually one of the required exercises
(spill management team tabletop, equipment deployment, or emergency
procedures) must be conducted unannounced. Unannounced means that the
personnel participating in the exercise must not be advised in advance
of the exact date, time and scenario of the exercise. Additionally, the
facility owner or operator may be required by the COTP to conduct an
unannounced exercise at the facility. These COTP initiated exercises
will be limited to average most probable discharge exercises as
outlined in the facility's response plan. Such exercises involve
notifications and equipment deployment. Each COTP will limit the number
of COTP initiated unannounced exercises to no more than 4 per year. If
a facility owner or operator participates in an unannounced exercise
initiated by the COTP, the facility will be exempt from participating
in a COTP initiated unannounced exercise for at least 3 years.
Records. The Coast Guard received 5 comments on Sec. 154.1055(d),
stating that the facility owner or operator should bear the
responsibility for keeping and maintaining the records at the facility
along with the plan. The comments asserted that it would suffice to
have the records signed by an authorized federal representative at the
drill site, rather than having the records sent to the Coast Guard. The
Coast Guard has changed Sec. 154.1055 to reflect this comment. The
section now requires records to be maintained at the facility for 3
years and be made available to the Coast Guard upon request.

Section 154.1060 Submission and Approval Procedures

The Coast Guard received 9 comments addressing the proposed
requirement for a maximum validation period of up to 5 years. Three
comments did not support having a plan expiration date at all,
suggesting that the Coast Guard would not have sufficient time to
approve the new plans. Four comments suggested that substantive changes
as a result of major NCP or ACP revisions should not require plans to
be resubmitted until the 5-year term is complete. Several comments did
not want facility owners or operators to be required to resubmit plans
when no substantive changes were made. One comment asked for
clarification as to whether plans must be resubmitted to the Coast
Guard 5 years from the date of COTP approval or every 5 years,
regardless of whether there have been revisions.
OPA 90 requires a facility owner or operator to resubmit response
plans to the Coast Guard for information or approval, as appropriate.
In the IFR, the Coast Guard required that response plans must be
resubmitted every 5 years regardless of whether any revisions have been
made. In his memorandum of April 21, 1995, President Clinton directed
agencies to reduce by one-half the frequency of regularly scheduled
reports that the public is required to provide to the Government. An
exception to this requirement is provided when the agency head
determines that such action would not adequately protect the
environment or would impede the effective administration of the
agency's program. The Coast Guard has reviewed the need for
resubmission of response plans at 5-year intervals, and has concluded
that extending this to 10 years would not ensure that plans were still
viable and would not meet the goal of OPA 90, to improve the response
to spills of oil. Changes in technology and in available response
resources over a 5-year period may make a response plan fall below
acceptable standards. To effectively administer an oversight program
and ensure that the maximum practicable response capability is being
utilized, review of response plans at 5-year intervals is considered to
be an appropriate balance between program needs and reporting burden.
The Secretary of Transportation has approved retaining the requirement
to submit response plans at a maximum interval of 5 years.
Although the plans need not be resubmitted until the end of the 5-
year term, major revisions to a response plan as set out in
Sec. 154.1065(b) must be sent to the COTP within 30 days; and
deficiencies in an originally submitted plan or a 5-year resubmission
of a plan, must be corrected within the time specified by the COTP. NCP
or ACP changes will not require resubmission of the plan until the 5-
year term is complete. The requirements for plan resubmission after the
5-year term are set out in Sec. 154.1060 of the final rule. The COTP
will notify the facility owner or operator in writing of the status of
the plan.
Another two comments requested 60 days rather than 30 days to
forward major plan corrections to the COTP in response to COTP noted
deficiencies in the originally submitted plan, or a 5-year plan
resubmission. Several comments proposed that the COTP determine the
time period for sending such plan corrections, but that the period be
not less than 30 days. As a result of the comments on the 30-day time
limit for sending plan corrections to the COTP in response to COTP
noted deficiencies, the Coast Guard has changed this provision and now
requires that a facility owner or operator correct noted deficiencies
within the time period provided by the COTP. This adjustment allows for
greater flexibility in determining an appropriate time period based on
the corrections needed.
Two comments expressed concern over the number of copies needed to
review the facility response plan, and asserted that only one copy was
needed by the COTP. The comment also argued that the COTP need not
return the approved plan, but instead, that an approval notice would be
sufficient. The Coast Guard has changed Sec. 154.1060 of the final rule
to require only one copy of the plan to be submitted to the COTP.
Additionally, one copy of the plan must be maintained at the facility
in a

[[Page 7911]]
position where the plan is readily available to persons in charge of
conducting transfer operations.
Two comments suggested that a copy of the plan should be forwarded
to the state water pollution control agency and the emergency response
organization's and be available to the local response organizations
upon request. Any state agency which desires a copy of the response
plan should request one from the facility owner or operator directly.
The Coast Guard cannot involve itself in matters which would be largely
governed by state statute. In order to fulfill the requirements for
exercises under Sec. 154.1055, OSROs must be familiar with any response
plans in which they are listed. The Coast Guard leaves to the owners or
operators and their OSROs the specific method by which the OSROs will
gain the needed familiarity with the plan.
One comment stated that there should be an appeals process,
allowing the facility owner or operator to contest the COTP decision.
Both the IFR and the final rule already contain an appeal process
located in Sec. 154.1075 and entitled ``Appeal process.''

Section 154.1065 Plan Review and Revision Procedures

The Coast Guard received 6 comments on the revision of plans. Four
comments requested that the facility owner or operator be given at
least 6 months to incorporate major revisions into the plan. One
comment suggested that the rule needed a better definition of which
facilities are required to revise plans. Another comment requested
clarification of which revisions to facility plans require notification
of the Coast Guard.
Section 154.1065 requires all facilities to review their plans
annually and to send any revisions to the COTP for information or
approval; or if no revisions are made during the course that year, the
facility owner or operator must certify by letter to the COTP that the
plan remains valid with no revisions. Revisions which must be submitted
to the COTP for approval or inclusion in the plan are listed in
Sec. 154.1065(b). Requirements for 5-year plan resubmission have been
removed from Sec. 154.1065(b)(7) and now are specified in
Sec. 154.1060(e) of the final rule.
The Coast Guard received two comments recommending that plan
revisions be sent to the COTP before planned actions occur, to ensure
COTP approval. A 30-day period for approving a plan was also suggested.
In order to meet the statutory requirements of OPA 90, facilities must
operate in full compliance with their submitted response plan. the
Coast Guard concludes that a 30-day period is appropriate for COTP
action on submitted revisions(s); and as an effective date for
submitted revision(s). This final rule provides that when revision(s)
to a plan are necessary, the facility owner or operator must submit the
proposed revision(s) to the COTP. The COTP will review the proposed
revision(s) and will provide any necessary feedback to the facility
owner or operator within 30 days. The revisions will become effective
not later than 30 days from their submission to the COTP, unless the
COTP indicates otherwise.
Another comment argued that requiring annual certification by
facility owners and operators was too administratively burdensome to
the Coast Guard. Five comments suggested that it should only be
necessary to notify the Coast Guard of significant changes to the plan.
Two comments requested that facilities be allowed to file a letter at
the facility instead of placing it with the plan itself to avoid
unnecessary paper buildup. The Coast Guard has reviewed this
requirement in light of these comments and the President's directive to
reduce reporting requirements and has eliminated the requirement to
submit an annual certification that the owner or operator has reviewed
the facility response plan. The regulation has been modified to reflect
that the owner or operator is still required to annually review the
plan and notify the Coast Guard of changes; however, no report is
required if changes are not needed.

Section 154.1070 Deficiencies

The Coast Guard received 6 comments addressing this section. One
comment stressed that the Coast Guard should allow 30 days, rather than
7, to appeal a deficiency notice from the COTP. Another comment argued
that 60 days minimum should be allowed to correct deficiencies. Other
comments stated that the revised plan should be submitted within a time
period provided by the COTP, after a minimum of 30 days. It has been
the Coast Guard's experience that the 7 day appeal limit allows
adequate time for a facility owner or operator to make an initial
appeal of a COTP issued deficiency and it is not expected that a
shorter time frame would be imposed unless a significant hazard exists.
However, because these time requirements are relatively new, the Coast
Guard will continue to monitor this time frame as well as other time
limits contained in the FRP appeal process and may modify the time
limits in the future.
One comment urged the Coast Guard to provide more detail on
enforcement mechanisms. The Coast Guard has provided guidance directly
to the COTPs responsible for enforcing these regulations. This guidance
will be updated as the Coast Guard gains more experience in the review
and usefulness of response plans.

Section 154.1075 Appeal Process

The Coast Guard received 6 comments concerning the appeal process.
Four comments wanted the scope of appealable issues more clearly
defined. Another comment stated that the Coast Guard should allow a
time period to determine whether a facility is a substantial harm, or
significant and substantial harm facility. The comment continued by
arguing that notification to a facility owner or operator of
reclassification should occur within 60 days. If no response is
received within this time frame, then the facility owner or operator
can assume that reclassification is accepted. The comment continued by
stating that 30 days should be allowed to appeal the COTP's decision to
the District Commander. Another comment agreed and stressed that
facility owners and operators should be able to appeal the COTP's
decision that a plan is not adequate. A facility owner or operator may
appeal any initial determination made by a COTP regarding that
facility's plan. This includes but is not limited to, classification
decisions, reclassification decisions and deficiency decisions. The
Coast Guard believes the present procedures give owners or operators
sufficient time and opportunity to appeal a decision.

Subpart G--Additional Response Plan Requirements for a Trans-Alaska
Pipeline Authorization Act (TAPAA) Facility Operating in Prince William
Sound, Alaska

Section 154.1120 Operating Restrictions and Interim Operating
Authorization

The Coast Guard received one comment recommending that it establish
a 4-day time limit in which a 200,000 barrel spill must be removed. The
comment also suggested changing the wording in this section by
replacing ``provided, through an oil spill removal organization
required by Sec. 154.1125'' with ``ensured, by contract or other
approved means.'' The Coast Guard concludes that the required response
times are appropriate and will ensure that adequate response is made in

[[Page 7912]]
Prince William Sound. A set 4-day time limit would be too inflexible
and would not take into account varying conditions. Section 154.1110 of
subpart G requires a TAPAA facility owner or operator to meet all
requirements of subpart F in addition to the requirements of subpart G
itself. Because subpart F includes requirements for ensuring by
contract or other approved means any OSRO, a restatement of the
requirement in subpart G is unnecessarily repetitive.
The comment also recommended that the Coast Guard include a
statement telling facility owners or operators that plan approval for
Prince William Sound facilities is valid only as long as the Prince
William Sound Regional Citizens Advisory Council is funded in
accordance with OPA 90. The Coast Guard agrees with the comment and has
added language to Sec. 154.1120 to that effect.

Section 154.1125 Additional Response Plan Requirements

The Coast Guard received one comment on this section stating that
additional communities should be included for training. The communities
suggested are Seward, Seldovia, Homer, and Kodiak, Alaska. The comment
also argued that a minimum of 2,000 trained personnel should be
required to remove a 200,000 barrel discharge. The Coast Guard finds
that the existing list of communities is currently sufficient and is
not adding the communities suggested in the comment. However, should
circumstances change, a COTP may recommend adding ports if the spill
training requirements are deemed appropriate. This change would be
subject to a notice and comment rulemaking project. There were no
specific details included in this comment as to the basis for requiring
2,000 personnel for a spill of 200,000 barrels. The COTP has a great
deal of experience in this type of operation, and he or she is the one
who makes the determination as to the number of personnel necessary for
the cleanup of a spill.

Section 154.1130 Requirements for Prepositioned Response Equipment

The Coast Guard received one comment on this section of the IFR.
The comment agreed that an independent inspection or certification
entity was a good idea. The comment also stated that the section should
be revised to include the standard for response capabilities which is
currently 200,000 barrels per day in the Prince William Sound to
reflect the true maximum extent practicable. Maximum extent practicable
is based upon the planned capability to respond to a worst case
discharge in adverse weather. The standards set forth in the IFR, and
continued in the final rule, include a daily recovery rate of 30,000
barrels per day on scene within 2 hours, and a daily recovery rate of
40,000 barrels on scene within 18 hours. In addition, Sec. 154.1130
also requires on-water storage capability of 100,000 barrels to be on
scene within 2 hours, and on-water storage capability of 300,000
barrels to be on scene within 12 hours. The Coast Guard concludes that
the standards set forth are sufficient to protect Prince William Sound
and meet OPA 90's requirement of a response to the maximum extent
practicable.

Section 154.1140 TAPAA Facility Contracting With a Vessel

The Coast Guard received one comment that the section on TAPAA
facility contracting with a vessel was unclear because it referred to
subpart G of the VRP IFR, which does not exist. The Coast Guard has
corrected the cross reference in this section of the FRP final rule to
refer to subpart E of the VRP final rule.

Subpart H--Response Plan Requirements for Facilities That Handle,
Store, or Transport Animal Fats and Vegetable Oils

This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils. It requires such facilities
to also meet the applicable requirements set forth in subpart F of this
part. This subpart, and subpart I, were created to address concerns
that some of the criteria proposed in subpart F of this part were not
applicable to animal fats and vegetable oils, and other non-petroleum
oils. The specific comments on non-petroleum oils which the Coast Guard
received are addressed in this preamble under Sec. 154.1049 which was
the non-petroleum oils section of the IFR.
In the preamble to the VRP IFR, the Coast Guard stated that it had
been unable to verify that the evaporation and emulsification factors
in appendix B of the VRP IFR were applicable to both petroleum oils and
non-petroleum oils. As a result of that determination, non-petroleum
oils were divided from petroleum oils in both the Vessel and MTR
Facility Response Plan regulations.
In response to the comments to the IFR on this issue, the Coast
Guard is creating two new subparts and further subdividing non-
petroleum oils into three categories. Subpart H covers animal fats and
vegetable oils, and subpart I covers other non-petroleum oils.
These new subparts and categories are intended to form the
foundation of possible future rulemaking efforts in this area. The
Coast Guard welcomes information that may be useful in determining the
types and quantities of response equipment necessary to respond to a
discharge of these oils, and information on new or innovative response
techniques that will be appropriate for these oils. This information
would be helpful in deciding whether additional rulemaking is
appropriate.
Section 154.1225 requires owners or operators of MTR facilities
that handle, store, or transport animal fats and vegetable oils to
identify the procedures and equipment necessary to respond to a worst
case discharge of these oils to the maximum extent practicable. Animal
fats include lard, tallow and other oils of animal origin. Vegetable
oils include oils from seeds, nuts, kernels or fruits of plants such as
corn oil, safflower oil, jojoba oil, coconut oil or palm oil. Subpart H
allows the owner or operator of the facility to propose the amount of
equipment needed to respond to a worst case discharge of animal fats or
vegetable oils to the maximum extent practicable. It does not include
specific requirements for identifying the amount of response resources.
The Coast Guard will evaluate the information submitted by the owner or
operator of the facility to determine if the resources identified are
consistent with the volume of animal fats or vegetable oils that may be
spilled as a result of the worst case discharge. This procedure was the
same in the IFR.
As with petroleum oils, the owner or operator must ensure the
availability of removal equipment through contract or other approved
means. At a minimum, the owner or operator of the facility must obtain
a letter from an oil spill removal organization stating that it will
respond to a worst case discharge from the facility. It is not intended
that this letter imply a formal contractual agreement between the
parties but that the owner or operator has identified specific response
resources and that those resources will respond to a worst case
discharge from the facility.
Section 154.1225 also requires the owner or operator of an MTR
facility that handles, stores, or transports animal fats and vegetable
oils to contract for firefighting resources should the facility not
have access to sufficient local firefighting resources. For further
discussion of firefighting

[[Page 7913]]
resources see the preamble discussion of Sec. 154.1045(j).
The Coast Guard has included in subpart H, for animal fats and
vegetable oils, Sec. 154.1225(f) on the use of dispersants, and other
similar, new, or unconventional spill mitigation techniques including
mechanical dispersal. Response plans for facilities located in
environments with year-round preapproval for use of chemical
dispersants will be allowed to receive credit up to 25 percent of the
plan's required worst case planning volume. In all cases, the
identified response measures must comply with the NCP and the
applicable ACP.
The Coast Guard has included in appendix C a new paragraph 2.8
covering non-petroleum oils including animal fats and vegetable oils.

Subpart I--Response Plan Requirements for Facilities That Handle,
Store, or Transport Other Non-petroleum Oils

This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports non-petroleum oils other than animal fats and vegetable
oils. It requires such facilities to also meet the applicable
requirements set forth in subpart F of this part. This subpart was
created to address industry concerns with grouping animal fats and
vegetable oils together with other non-petroleum oils. This separation
of animal fats and vegetable oils from other non-petroleum oils
recognizes that while animal fats and vegetable oils have harmful
effects, they are not toxic to the marine environment as maybe other
non-petroleum oils. The specific comments on non-petroleum oils which
the Coast Guard received are addressed in this preamble under
Sec. 154.1049 which was the non-petroleum oils section of the IFR.
Section 154.1325 requires owners or operators of MTR facilities
that handle, store, or transport other non-petroleum oils to identify
the procedures and equipment necessary to respond to a worst case
discharge of these oils to the maximum extent practicable. Other non-
petroleum oils include those that are not animal fats or vegetable oils
such as essential oils, turpentine and tung oil.
Section 154.1325 allows the owner or operator of the facility to
propose the amount of equipment needed to respond to a worst case
discharge of other non-petroleum oils to the maximum extent
practicable. It does not include specific requirements for identifying
the amount of response resources. The Coast Guard will evaluate the
information submitted by the owner or operator of the facility to
determine if the resources identified are consistent with the volume of
other non-petroleum oils that may be spilled as a result of the worst
case discharge. This procedure was the same in the IFR.
As with petroleum oils, Sec. 154.1325 requires that the owner or
operator must ensure the availability of removal equipment through
contract or other approved means. At a minimum, the owner or operator
of the facility must obtain a letter from an oil spill removal
organization stating that it will respond to a worst case discharge
from the facility. It is not intended that this letter imply a formal
contractual agreement between the parties but that the owner or
operator has identified specific response resources and that those
resources will respond to a worst case discharge from the facility.
Subpart I also requires the owner or operator of an MTR facility
that handles, stores, or transports other non-petroleum oils to
contract for firefighting resources should the facility not have access
to sufficient local firefighting resources. For further discussion of
firefighting resources see the preamble discussion of Sec. 154.1045(j).
Under subpart I, a response plan may propose, for other non-
petroleum oils, the use of other spill mitigation techniques provided
that the identified response measures comply with the NCP and the
applicable ACP.
The Coast Guard has included in appendix C a new paragraph 2.8
covering the evaluation of response plans for non-petroleum oils
including other non-petroleum oils.

Appendix C of Part 154. Guidelines for Determining and Evaluating
Required Response Resources for Facility Response Plans

The Coast Guard received one comment recommending that special
allowance be made for harbors since they often have conditions similar
to rivers and canals. The comment also recommended that such special
allowance not be limited only to waterways having depths of 12 feet or
less. The Coast Guard disagrees. The term harbor is a broad term and
can be applied to a sheltered part of a body of water deep enough to
provide anchorage for ships. In reality, a harbor may range from small
embayments to large bodies of water. Under the final rule, a harbor
could be considered as either being in a rivers and canals operating
environment or an inland operating environment. The 12 feet project
depth was selected as part of the rivers and canals operating
environment to assist in establishing the ability of response resources
to operate in specific water depths. The Coast Guard finds that the
depth of 12 feet remains relevant in establishing the rivers and canals
environment or the inland operating environment.

1. Purpose

The Coast Guard did not receive comments to this section but has
revised appendix C to reference the newly created subparts H and I and
indicate the portions of appendix C which are applicable.

2. Equipment Operability and Readiness

2.5 The Coast Guard received 2 comments on this paragraph. Both
comments asked whether Table 1 adverse weather conditions can be
reduced or increased if the Area Committee determines that the
conditions listed in the table are not appropriate. Both comments also
recommended that the local COTP be allowed to determine the applicable
weather conditions until the ACP is finalized. The comments also
requested a mechanism for input by the regulated community to the Area
Committee before that committee's determinations are completed.
The COTP may reclassify a specific body of water or location within
the COTP zone. Section 154.1045 provides details on COTP
reclassification to more or less stringent operating environments. The
Coast Guard has issued guidance that strongly encourages Area
Committees to solicit advice, guidance, and expertise from all
appropriate sources including facility owners or operators, OSROs,
environmental groups, members of academia, and concerned citizens.
2.6 The Coast Guard received one comment on this paragraph. The
comment noted that currently the Coast Guard, EPA and RSPA each have a
different planning speed and recommended that a single standardized
speed be adopted. The Coast Guard agrees and the Coast Guard, EPA, and
RSPA will use the same planning speeds.
2.7 The Coast Guard received one comment on this paragraph. The
comment recommended that each type of boom only be required to have
compatible connectors with the same type of boom because, for example,
there would be no reason to connect high seas boom to harbor or river
boom. This statement in the appendix is there only to remind facility
owners or operators to ensure that the equipment on which they are
going to rely in the event of an oil spill will be capable of

[[Page 7914]]
carrying out the function for which it is intended. If boom of varying
types will never be used together, the need for compatible connectors
is moot.
2.8 The Coast Guard has added paragraph 2.8 covering the newly
created subparts H and I.

3. Determining Response Resources Required for the Average Most
Probable Discharge

3.1 The Coast Guard received one comment on this paragraph. The
comment expressed concern that under the IFR's current language small
facilities would be required to purchase booms and boats rather than
contracting for them. It recommended that the language be amended to
require only a ``means of initiating deployment.'' The Coast Guard
disagrees. Section 154.1045(c) provides for the use of contracted
response resources for an average most probable discharge provided that
the responders can meet the stated response times.
3.2.1 The Coast Guard received one comment on this paragraph. The
comment proposed that the Coast Guard amend the language on required
boom length to read: ``two times the length of the largest vessel * * *
or the amount needed to contain a 50 barrel discharge during a transfer
operation.'' The Coast Guard disagrees. Requiring an amount of boom to
contain only a ``50 barrel discharge'' could result in many variations
between facilities. Requiring a minimum of 1,000 feet creates a more
uniform standard.
3.2.2 The Coast Guard received one comment on this paragraph. The
comment said that the Coast Guard should require a minimum level of
sorbent material to support other recovery equipment. The Coast Guard
disagrees. While sorbents are effective in certain circumstances, they
are not considered major spill response equipment. They are expendable
resources and may be used during routine facility operations. It is the
responsibility of the owner or operator of the facility to make sure
that adequate amounts of sorbent materials are available.

5. Determining Response Resources Required for the Worst Case Discharge
to the Maximum Extent Practicable

5.5 The Coast Guard received one comment on this paragraph. This
comment recommended that the paragraph be amended by adding language
which restricts the definition of shallow water resources to vessels
with a fully loaded draft of not more than six feet. The Coast Guard
concludes that the response plan must demonstrate that sufficient
resourses are available to operate in shallow water. It may be
necessary to operate vessels at less than their fully loaded draft. In
that event, it may be necessary for the response plan to identify
additional resources due to vessels not being able to operate at their
fully loaded draft. However, ideally only those vessels which can be
utilized in a full range of loading conditions in waters of 6 feet or
less depth should be listed for use in close-to-shore response
activities (10% of those to be used in the offshore areas and 20% of
those to be used in the nearshore inland, Great Lakes, and rivers and
canals).
5.6 The Coast Guard received one comment on this paragraph. The
comment suggested that a more specific planning standard be adopted for
determining the required length of boom in order to avoid wide
variations in interpretation. The Coast Guard disagrees. Environmental
conditions vary at each recovery site and each fish and wildlife and
sensitive environment that must be protected. The Coast Guard contends
that there is sufficient guidance, ``rules of thumb'', and practical
experience to be used in determining the quantities of boom necessary
to contain oil or provide protective booming for fish and wildlife and
sensitive environments. In addition, ACPs address the strategies to
protect these areas.

7. Calculating Worst Case Discharge Planning Volumes

7.2.2 The Coast Guard received one comment on this paragraph. The
comment addressed the requirement that facilities which handle, store,
or transport oils from different petroleum groups assume, for planning
purposes, that the oil groups resulting in the largest on-water
recovery volume will be stored in the tank or tanks identified as
constituting the worst case discharge. The comment recommended that the
oil groups resulting in the largest on-water recovery volume should
apply only if the largest tank does, in fact, store the largest oil
volume. The comment stated that if the product changed in a way that
required more planning then the plan could be amended accordingly at
that time. The marine transportation-related (MTR) facility pertains to
the piping that conveys the oils between the vessel and the non-
transportation-related storage tanks. The MTR facility does not
generally include the storage tanks and therefore the comment applies
to the non-transportation related portion which is regulated by the
EPA, not the Coast Guard. The EPA has addressed this comment in their
final rule issued on July 1, 1994 (59 FR 34071).

8. Determining the Availability of Alternative Response Methods

8.6 The Coast Guard received one comment on this paragraph. The
comment encouraged the Coast Guard to credit a portion of the required
on-water recovery capacity for in-situ burning similar to the credit
allowed for dispersants. The comment asserted that in-situ burning is
most effective early in a spill response and in order to use it as
early as possible authority to use in-situ burning must be authorized
ahead of time. The Coast Guard will not permit an owner or operator of
a facility to use in-situ burning as a planning response strategy in
the final rule. The use of in-situ burning is still being studied. As
the effectiveness and environmental effects of non-mechanical methods
of pollution recovery are studied, they may be included as alternate
response strategies. The Coast Guard will evaluate in-situ burning as a
permissible response strategy for capability increases in 1998.

9. Additional Equipment Necessary to Sustain Response Operations

9.1 The Coast Guard received 1 comment on this paragraph. The
comment expressed concern that the language of the IFR regarding
additional equipment and personnel allows for varying interpretations.
It recommended adoption of a planning standard using a ``systems''
approach to clarify the final rule. The Coast Guard agrees and
concludes that the section reflects a ``systems'' approach to spill
response. The equipment must be suitable for use with the primary
equipment identified in the response plan. Section 2.4 of appendix C
and Sec. 154.1045 require that equipment must be capable of operating
in the applicable operating environment.
9.2 The Coast Guard received 1 comment on this paragraph. The
comment recommended using a 10-hour operating day in determining the
level of adequate temporary storage capacity. The comment also asked
for guidance from the Coast Guard in determining the time needed for
transferring recovered oil to a temporary storage facility. The
suggested guidance included pumping capacity, number of oil discharge
stations, and any other pertinent factors. The Coast Guard disagrees
and determines that the storage capacity should be based on the types
and quantities of oil recovery identified in the plan. Pump capacities
are variable and discharge stations are dependent on local factors. The
owner or operator is

[[Page 7915]]
best equipped to estimate and certify the availability of these
resources.

Appendix C of Part 154. Tables 1-5

Table 1 Response Resource Operating Criteria

The Coast Guard received two comments stating that Tables 1, 2 and
3 are oversimplified because they do not take into account variables
such as temperature and flow rate, which the comments claim affect
dissipation and emulsification rates. Another comment recommended
referencing the factors used to calculate the figures in the tables.
That comment asked for clarification because it stated that the 3-day
quick mobilization mentioned in the explanatory note is incompatible
with the 3, 4, or 6-day sustainability requirements in Table 2. The
comment also claimed that the 3-day quick mobilization is inconsistent
with the tiering of response equipment which is required to be on-scene
within 60 hours.
The Coast Guard disagrees with these comments. Table 1 is based on
information for equipment selection in the 1991 World Catalog of Oil
Spill Response Products [Schulze, Robert, ed., 1991]. The American
Society of Testing and Material (ASTM) used this resource as the
starting point for its oil recovery equipment standard. The values in
Table 2 were drawn from the deliberations among the Negotiated
Rulemaking Committee. They are based on the general behavior of oil
that has been observed during actual discharges. The variances in
values reflect the amount of oil most likely to be available for
recovery.
The three days referred to by the comment appears in the preamble
to the IFR. This reflects a desire for the planned mobilization of
response resources within the first 3 days of the response. It should
not be confused with the equipment sustainability listed in Table 2.

Table 2 Removal Capacity Planning Table

The Coast Guard received one comment remarking that the values in
Table 2 should not total over 100 percent. As was explained in the IFR,
the Coast Guard recognizes that the percentages exceed 100 percent in
the inland, nearshore, Great Lakes, and offshore areas. This reflects a
desire to increase the quantity of response that are planned for
mobilization within the first 3 days of a response.

Table 3 Emulsification Factors for Petroleum Oil Groups

The Coast Guard received four comments on Table 3. One comment
asserted that the entire amount of oil spilled will not emulsify
because emulsification occurs over time, and therefore, the IFR's rapid
spill response requirements will not allow the impact to be as
extensive as suggested. The comment stated that emulsification factors
are only appropriate for open ocean spills from vessels; and that the
factors should not apply to the total worst case discharge in river/
nearshore areas. The comment also recommended that the regulations not
use emulsification factors at all. Another comment pointed out that
emulsification is already accounted for in the derating of recovery
devices in paragraph 6.2 of appendix C. Two comments stated that Table
3 is overly simple because it does not take into account other
variables which affect emulsification such as flow rate and
temperature. One comment recommended that the emulsification factor for
Group III oil should be changed to 3.0 to better reflect the level of
Alaskan crude oil.
Emulsification factors vary considerably within an oil group and
are dependent on many factors, such as temperature and weather
conditions. The proposed Table 3 values were derived from ITOPF data
and reflected the maximum amount of emulsification that could occur
over a prolonged period of time in environmental conditions that favor
the emulsification process. No other factors were proposed. The Coast
Guard does not require that the entire amount of oil be emulsified.
Rather the oil to be emulsified depends on the percentage of recovered
floating oil taken from Table 2.
The Coast Guard disagrees with the comment that the emulsification
is accounted for in the derating of recovery devices. The
emulsification factors listed in Table 3 are to account for actual
emulsification that occurs to the oils prior to being encountered by
the skimming equipment. The derating factor included, among other
things, consideration of the actual skimming device to remove oily
material from water, the two issues are unrelated.
The emulsification factors in this final rule are the same as those
in the VRP IFR. The factors in the VRP IFR were revised from the
factors in the VRP NPRM. The factors were revised down because the
Coast Guard was convinced that the original factors were too high.

Table 5 Response Capability Caps by Operating Area

The Coast Guard received one comment on Table 5. The comment
suggested that the 1998 caps be changed to ``To Be Determined'' because
practical experience may demonstrate that the 1993 values may not need
to be increased. The Coast Guard disagrees. The caps provided in Table
5 reflect a 25 percent increase in response resources from 1993 to
1998. Prior to these caps becoming effective, the Coast Guard will
initiate a review of the cap increases. This review will determine if
the scheduled increases for 1998 remain practicable and will also
establish a specific cap for 2003.

Appendix D of Part 154. Interim Guidelines for Determining Economically
Important and Environmentally Sensitive Areas for Facility Response
Plans

The Coast Guard received 12 comments to Appendix D--Guidelines for
Determining Economically Important and Environmentally Sensitive Areas
for Facility Response Plans. The Coast Guard reviewed the comments and
provided them to the National Oceanic and Atmospheric Administration
(NOAA). NOAA used the comments in drafting its Federal Register notice
entitled ``Guidance for Facility and Vessel Response Plans Fish and
Wildlife and Sensitive Environments.''
The Coast Guard has adopted EPA's terminology in this final rule
and therefore the term ``Environmentally Sensitive Areas'' has been
changed to ``Fish and Wildlife and Sensitive Environments.'' The Coast
Guard determined that Appendix D on sensitive areas is unnecessary
because fish and wildlife and sensitive environments are identified in
the Area Contingency Plans (ACPs) and all coastal ACPs are now
complete. Since the ACPs identify fish and wildlife and sensitive
environments for each area, there is no longer a need for the Coast
Guard to provide the guidance that was contained in appendix D to the
IFR. Therefore, the Coast Guard has removed appendix D on sensitive
areas from the final rule and has replaced it with a new Appendix D
entitled ``Training Elements for Oil Spill Response Plans.''

Appendix D to Part 154--Training Elements for Oil Spill Response Plans

This appendix was added to the final rule to provide guidelines to
facility owners and operators for the development of the training
portions of their response plans. These guidelines were developed in
the same manner as PREP, which is addressed in the preamble discussion
on the revisions to Sec. 154.1055.

Assessment

This final rule is a significant regulatory action under section
3(f) of

[[Page 7916]]
Executive Order 12866 and has been reviewed by the Office of Management
and Budget (OMB) under that order. It requires an assessment of
potential costs and benefits under section 6(a)(3) of that order. It is
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11040, February 26, 1979). An
Assessment has been prepared and is available in the docket for
inspection or copying where indicated under ADDRESSES. Seven public
comments addressed the Regulatory Evaluation section of the IFR. The
comments are discussed in the appropriate section of this discussion.

1. Facility Response Plan Costs and Benefits

In the aggregate, the requirement for facility response plans will
result in substantial costs to the facilities affected. If all the
costs for MTR facilities affected by this rule are attributed to the
Coast Guard's regulations, the present value cost of this regulation
for the first 10 years is estimated at $305.9 million. In the first
year, most of this cost is attributable to conducting training and
exercise evaluations and arranging for or providing adequate response
capability. In subsequent years, the majority of the cost is
attributable to conducting exercising and retaining the response
capability. The incremental cost of the entire regulation was $63
million for 1992, but declined to $40 million annually in subsequent
years. However, since many of these facilities are complexes which are
being jointly regulated by the Coast Guard and the EPA and the total
costs are already accounted for under EPA's facility response plan
regulation (59 FR 34097, July 1, 1994), these costs could be reduced to
reflect this fact. Thus, total present value costs for Coast Guard
facility response plans will be $90 million and incremental costs will
be $18.7 million for the first full year and $11.9 million for
subsequent years.
Four comments argued that the costs of this regulation are
excessive and have not been thoroughly examined in the IFR. The Coast
Guard disagrees with these comments. The Coast Guard has reexamined its
cost data and concludes that costs are not excessive. Two comments
argued that the $25,000 cost estimate for large facilities is much too
low and does not take into consideration expenditures such as equipment
purchases, costs of training, costs of exercises, and retainer fees.
With regard to exercises, two comments argued that the costs would be
prohibitive. The Coast Guard disagrees with these comments. The
Regulatory Impact Analysis did take into consideration equipment
purchases, costs of training, costs of exercises, and retainer fees.
Facility owners or operators are already required to comply with
existing pollution regulations which require them to prepare operations
manuals and Spill Prevention Control and Countermeasures (SPCC) plans
that address some elements of the facility response plan regulations.
The Coast Guard assumed in its analysis that facility owners or
operators would not be redundant when complying with requirements. The
Coast Guard's analysis indicated that the requirements set forth are
the most practical and least burdensome which give acceptable levels of
planning for spill response.
The benefit analysis indicates an incremental volume of 230,848
discounted barrels of spilled oil (using a 7 percent discount rate)
that will be recovered due to compliance with this regulation. The cost
effectiveness ratio (costs divided by benefits) is $1,325 per barrel of
oil recovered.
A Regulatory Impact Analysis (RIA) is available in the docket for
inspection or copying, as indicated under ADDRESSES. The RIA prepared
for the IFR was reviewed based upon comments received and no changes
made in the final rule caused a great enough impact on costs to require
redrafting the RIA. It has also been placed in a separate docket (CGD
91-047) established to facilitate review of the programmatic RIA for
titles IV and V of OPA 90.
One comment expressed concern that the RIA for the final rule would
be different from the RIA on which the IFR was based and that an
opportunity for comment would not be permitted before the rule would be
finalized. While the costs and benefits in the RIA have changed from
the IFR to the final rule, the change is the result of lowering the
discount rate from 10 to 7 percent, reflecting a change in OMB guidance
between publication of the IFR and publication of the final rule.

2. Additional Response Plans Requirements for Trans-Alaska Pipeline
Authorization Act (TAPAA) Facilities Operating in Prince William Sound,
Alaska

At present, there is only one Trans-Alaska Pipeline (TAPAA)
facility operating in Prince William Sound. This facility is the Valdez
Marine Terminal which is operated by Alyeska Pipeline Service Company.
This facility transfers approximately 700 million barrels annually to
approximately 900 tank vessels.
The increase in unit cost of handling, storing, and transporting
crude oil to comply with section 5005 of OPA 90 is relatively small.
This can easily be absorbed by the Alyeska Pipeline Service Company.
Overall industry costs for complying with additional response
planning requirements were previously discussed in the Draft Regulatory
Evaluation for Prince William sound, Alaska referenced in the VRP NPRM
published in the Federal Register on June 19, 1992 (57 FR 27514). While
this specifically addressed requirements for certain vessels in Prince
William Sound, Alaska, it also included the costs and benefits incurred
by the sole TAPAA facility located in Prince William Sound. The costs
of complying with section 5005 of OPA 90 are estimated to be $232
million for the 10-year period, 1993 through 2002. The benefits include
the quick recovery of spilled oil from the environment and subsequent
reduction in net impact of the spill. The regulations for Prince
William Sound are estimated to increase the volume of recovered oil by
25 percent for crude oil.
A copy of the Assessment for Prince William Sound is available in
the docket for inspection or copying, as indicated under ``ADDRESSES.''

Small Entities

The Coast Guard has examined the impact of this rule on small
entities. Its analysis indicates that the majority of small businesses
subject to this regulation should be able to absorb the estimated
compliance costs without experiencing significant adverse economic
effects. Therefore, the Coast Guard certifies under section 605(b) of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule
will not have a significant economic impact on a substantial number of
small entities.
The Coast Guard received one comment to the IFR concerning the
impact of the Facility Response Plan regulation on small businesses.
The comment argued that smaller operators may not have the resources to
comply with regulations as the Coast Guard has envisioned. The Coast
Guard disagrees. The regulation may have a significant impact on a very
few small facility operators. The impact on small entities of the
changes in this final rule are not substantial.

Collection of Information

This rule contains collection-of-information requirements. The
Coast Guard previously submitted the requirements to the Office of
Management and Budget (OMB) for

[[Page 7917]]
review under section 3504(h) of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.) and OMB approved them. The Coast Guard has submitted
revised requirements to OMB for renewed approval under the current OMB
Control Number 2115-0595. For subpart F, the section numbers are
Secs. 154.1025, 154.1030, 154.1050, 154.1055, 154.1060, and 154.1065,
and the corresponding OMB approval number is OMB Control Number 2115-
0595. For subpart G, the section numbers are Secs. 154.1120 and
154.1125, and the corresponding OMB approval number is OMB Control
Number 2115-0595. Subparts H and I refer to subpart F for all
collection-of-information requirements. Accordingly, additional OMB
approval is not needed.
The Coast Guard received one comment responding to this portion of
the IFR, which contended that the estimated recordkeeping burden of 4.5
hours annually is much too low. The Coast Guard disagrees. The Coast
Guard has reexamined its recordkeeping analysis and has concluded that
its estimate is accurate.

Federalism

The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 (October 26, 1987) and has
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Executive Order 12612 and the FWPCA emphasize the President's and
Congress' intent to preserve state authority to address matters of
pollution prevention and response. Executive Order 12612 directs a
Federal executive branch agency (which includes the Coast Guard) to
encourage states to develop their own policies to achieve program
objectives. Consequently, a Federalism Assessment would be necessary
only if the facility response plan rule unduly impinged on a state's
authority to establish its own regulatory structure, or imposed undue
costs on a state.
The FWPCA provides convincing evidence of Congress' intent that,
within 3 miles of shore, the protection of the marine environment
should be a collaborative Federal and state effort. Chevron v.
Governor, State of Alaska, 726 F.2d 483 (9th Cir. 1984), cert. denied,
471 U.S. 1140 (1985). For example, section 402 of the FWPCA (33 U.S.C.
1342) establishes the National Pollutant Discharge Elimination System,
a regulatory program for regulating the discharge of pollutants into
U.S. navigable waters. Minimum Federal standards apply to the discharge
of certain pollutants, but the States have authority to establish and
administer their own permit systems and to set standards stricter than
the Federal ones (33 U.S.C. 1342(b) and 1370). Further, in the
Declaration of Goals and Policy contained in section 101 of the FWPCA
(33 U.S.C. 1251), Congress states that it is the policy of the Congress
to recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution of land
and water resources.
United States courts have long recognized the rights of States to
make both U.S.-flag and foreign-flag vessels conform to ``reasonable,
nondiscriminatory conservation and environmental protection measures *
* * imposed by a State.'' Ray v. Atlantic Richfield, 435 U.S. 151, 164
(1973). Also section 311(o)(3) of the FWPCA (33 U.S.C. 1321(o)(3))
contains express nonpreemption language. Therefore, a State standard
setting more stringent planning requirements for facilities owners and
operators in the regulating State's water is encouraged under the FWPCA
and in valid as long as the State requirement does not preclude
compliance with the Federal requirements. Similarly, if a State chose
to establish performance requirements for response to an oil spill, the
Federal facility response plan rules would not preclude that option.
The Federal facility response plan rules preempt State rules only to
the extent that State rules may make it impossible to comply with
Federal requirements. Florida Lime and Avocado Growers v. Paul, 373
U.S. 132 (1963).

Environment

The Coast Guard considered the environmental impact of this final
rule and prepared an Environmental Assessment (EA) under section 311(j)
of the FWPCA (33 U.S.C. 1321(j)), and a separate EA for Prince William
Sound under section 5005 of OPA 90. These documents were prepared in
accordance with the Council on Environmental Quality regulations (40
CFR parts 1500-1508) and Commandant Instruction M16475.1B implementing
the provisions of the National Environmental Policy Act (NEPA).
The EA prepared for section 311(j) requirements was amended when
section 5209(b) of the Coast Guard Authorization Act of 1992 (Pub. L.
102-587) declared offshore supply vessels and certain fishing vessels
not to be ``tank vessels'' for purposes of implementing the VRP rule.
The Prince William Sound EA was entirely revised when section 352 of
the Department of Transportation Appropriations Act effectively made
section 5005 of OPA 90 inapplicable to non-TAPS-trade vessels. The
original language of section 5005 created special response plan
provisions applicable to all tank vessels operating in Prince Williams
Sound, including non-TAPS vessels. The Coast Guard received no comments
on the EAs.
The Coast Guard has identified and studies the relevant
environmental issues and alternatives, and based on its assessment,
does not expect this final rule to result in a significant impact on
the quality of the human environment. Therefore, Findings of No
Significant Impact (FONSIs) have been prepared. The revised and amended
EAs and the FONSIs are available in the public docket where indicated
under ADDRESSES.

List of Subjects

33 CFR Part 150

Harbors, Marine safety, Navigation (water), Occupational safety and
health, Oil pollution, Reporting and recordkeeping requirements.

33 CFR 154

Fire prevention, Oil pollution, Hazardous substances, Incorporation
by reference, Reporting and recordkeeping requirements.

For the reasons set out in the preamble, the interim rule amending
33 CFR parts 150 and 154 which was published at 58 FR 7330 on February
5, 1993, is adopted as final except for changes to part 154 which are
set forth below:

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

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

Authority: 33 U.S.C. 1231, 1321 (j)(1)(C), (j)(5), (j)(6) and
(m)(2); sec. 2, E.O. 12777, 56 FR 54757; 49 CFR 1.46. Subpart F is
also issued under 33 U.S.C. 2735.

2. Subpart F of part 154 is revised to read as follows:

Subpart F--Response Plans for Oil Facilities

Sec.
154.1010 Purpose.
154.1015 Applicability.
154.1016 Facility Classification by COTP.
154.1017 Response plan submission requirements.
154.1020 Definitions.
154.1025 Operating restrictions and interim operating
authorization.
154.1026 Qualified individual and alternate qualified individual.
154.1028 Methods of ensuring the availability of response resources
by contract or other approved means.
154.1029 Worst case discharge.

[[Page 7918]]

154.1030 General response plan contents.
154.1035 Specific requirements for facilities that could reasonably
be expected to cause significant and substantial harm to the
environment.
154.1040 Specific requirements for facilities that could reasonably
be expected to cause substantial harm to the environment.
154.1041 Specific response information to be maintained on mobile
MTR facilities.
154.1045 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group I through Group IV
petroleum oils.
154.1047 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group V petroleum oils.
154.1050 Training.
154.1055 Exercises.
154.1057 Inspection and maintenance of response resources.
154.1060 Submission and approval procedures.
154.1065 Plan review and revision procedures.
154.1070 Deficiencies.
154.1075 Appeal process.

Subpart F--Response Plans for Oil Facilities

Sec. 154.1010 Purpose.

This subpart establishes oil spill response plan requirements for
all marine transportation-related (MTR) facilities (hereafter also
referred to as facilities) that could reasonably be expected to cause
substantial harm or significant and substantial harm to the environment
by discharing oil into or on the navigable waters, adjoining
shorelines, or exclusive economic zone. The development of a response
plan prepares the facility owner or operator to respond to an oil
spill. These requirements specify criteria to be used during the
planning process to determine the appropriate response resources. The
specific criteria for response resources and their arrival times are
not performance standards. The criteria are based on a set of
assumptions that may not exist during an actual oil spill incident.

Sec. 154.1015 Applicability.

(a) This subpart applies to all MTR facilities that because of
their location could reasonably be expected to cause at least
substantial harm to the environment by discharging oil into or on the
navigable waters, adjoining shorelines, or exclusive economic zone.
(b) The following MTR facilities that handle, store, or transport
oil, in bulk, could reasonably be expected to cause substantial harm to
the environment by discharging oil into or on the navigable waters or
adjoining shorelines and are classified as substantial harm MTR
facilities:
(1) Fixed MTR onshore facilities capable of transferring oil to or
from a vessel with a capacity of 250 barrels or more and deepwater
ports;
(2) Mobile MTR facilities used or intended to be used to transfer
oil to or from a vessel with a capacity of 250 barrels or more; and
(3) Those MTR facilities specifically designated as substantial
harm facilities by the COTP under Sec. 154.1016.
(c) The following MTR facilities that handle, store, or transport
oil in bulk could not only reasonably be expected to cause substantial
harm, but also significant and substantial harm, to the environment by
discharging oil into or on the navigable waters, adjoining shorelines,
or exclusive economic zone and are classified as significant and
substantial harm MTR facilities:
(1) Deepwater ports, and fixed MTR onshore facilities capable of
transferring oil to or from a vessel with a capacity of 250 barrels or
more except for facilities that are part of a non-transportation-
related fixed onshore facility with a storage capacity of less than
42,000 gallons; and
(2) Those MTR facilities specifically designated as significant and
substantial harm facilities by the COTP under Sec. 154.1016.
(d) An MTR facility owner or operator who believes the facility is
improperly classified may request review and reclassification in
accordance with Sec. 154.1075.

Sec. 154.1016 Facility classification by COTP.

(a) The COTP may upgrade the classification of:
(1) An MTR facility not specified in Sec. 154.1015 (b) or (c) to a
facility that could reasonably be expected to cause substantial harm to
the environment; or
(2) An MTR facility specified in Sec. 154.1015(b) to a facility
that could reasonably be expected to cause significant and substantial
harm to the environment.
(b) The COTP may downgrade, the classification of:
(1) An MTR facility specified in Sec. 154.1015(c) to a facility
that could reasonably be expected to cause substantial harm to the
environment; or
(2) An MTR facility specified in Sec. 154.1015(b) to a facility
that could not reasonably be expected to cause substantial, or
significant and substantial harm to the environment.
(3) The COTP will consider downgrading an MTR facility's
classification only upon receiving a written request for a downgrade of
classification from the facility's owner or operator.
(c) When changing a facility classification the COTP may, as
appropriate, consider all relevant factors including, but not limited
to: Type and quantity of oils handled in bulk; facility spill history;
age of facility; proximity to public and commercial water supply
intakes; proximity to navigable waters based on the definition of
navigable waters in 33 CFR 2.05-25; and proximity to fish and wildlife
and sensitive environments.

154.1017 Response plan submission requirements.

(a) The owner or operator of an MTR facility identified only in
Sec. 154.1015(b), or designated by the COTP as a substantial harm
facility, shall prepare and submit to the cognizant COTP a response
plan that meets the requirements of Secs. 154.1030, 154.1040, 154.1045,
or Sec. 154.1047, as appropriate. This applies to:
(1) A mobile MTR facility used or intended to be used to transfer
oil to or from a vessel with a capacity of 250 barrels or more; and
(2) A fixed MTR facility specifically designated as a substantial
harm facility by the COTP under Sec. 154.1016.
(b) The owner or operator of an MTR facility identified in
Sec. 154.1015(c) or designated by the COTP as a significant and
substantial harm facility shall prepare and submit for review and
approval of the cognizant COTP a response plan that meets the
requirements of Secs. 154.1030, 154.1035, 154.1045, or 154.1047, as
appropriate. This applies to:
(1) A fixed MTR facility capable of transferring oil, in bulk, to
or from a vessel with a capacity of 250 barrels or more; and
(2) An MTR facility specifically designated as a significant and
substantial harm facility by the COTP under Sec. 154.1016.
(c) In addition to the requirements in paragraphs (a) and (b) of
this section, the response plan for a mobile MTR facility must meet the
requirements of Sec. 154.1041 subpart F.

Sec. 154.1020 Definition.

Except as otherwise defined in this section, the definition in 33
CFR 154.105 apply to this subpart and subparts H and I.
Adverse weather means the weather conditions that will be
considered when identifying response systems and equipment in a
response plan for the applicable operating environment. Factors to
consider include, but are not limited to, significant wave height as
specified in Secs. 154.1045, 154.1047, 154.1225, or 154.1325, as
appropriate;

[[Page 7919]]
ice conditions, temperatures, weather-related visibility, and currents
within the COTP zone in which the systems or equipment are intended to
function.
Animal fat means a non-petroleum oil, fat, or grease derived from
animals, and not specifically identified elsewhere in this part.
Average most probable discharge means a discharge of the lesser of
50 barrels or 1 percent of the volume of the worst case discharge.
Captain of the Port (COTP) Zone means a zone specified in 33 CFR
part 3 and, where applicable, the seaward extension of that zone to the
outer boundary of the exclusive economic zone (EEZ).
Complex means a facility possessing a combination of marine-
transportation related and non-transportation-related components that
is subject to the jurisdiction of more than one Federal agency under
section 311(j) of the Clean Water Act.
Exclusive economic zone (EEZ) means the zone contiguous to the
territorial sea of the United States extending to a distance up to 200
nautical miles from the baseline from which the breadth of the
territorial sea is measured.
Facility that could reasonably be expected to cause significant and
substantial harm means any MTR facility (including piping and any
structures that are used for the transfer of oil between a vessel and a
facility) classified as a ``significant and substantial harm'' facility
under Sec. 154.1015(c) including a facility specifically designated by
the COTP under Sec. 154.1016(a).
Facility that could reasonably be expected to cause substantial
harm means any MTR facility classified as a ``substantial harm''
facility under Sec. 154.1015(b) including a facility specifically
designated by the COTP under Sec. 154.1016(a).
Fish and Wildlife and Sensitive Environment means areas that may be
identified by either their legal designation or by Area Committees in
the applicable Area Contingency Plan (ACP) (for planning) or by members
of the Federal On-Scene Coordinator's spill response structure (during
responses). These areas may include: Wetlands, national and state
parks, critical habitats for endangered or threatened species,
wilderness and natural resource areas, marine sanctuaries and estuarine
reserves, conservation areas, preserves, wildlife areas, wildlife
refuges, wild and scenic rivers, areas of economic importance,
recreational areas, national forests, Federal and state lands that are
research areas, heritage program areas, land trust areas, and
historical and archaeological sites and parks. These areas may also
include unique habitats such as: aquaculture sites and agricultural
surface water intakes, bird nesting areas, critical biological resource
areas, designated migratory routes, and designated seasonal habitats.
Great Lakes means Lakes Superior, Michigan, Huron, Erie, and
Ontario, their connecting and tributary waters, the Saint Lawrence
River as far as Saint Regis, and adjacent port areas.
Higher volume port area means the following ports:
(1) Boston, MA.
(2) New York, NY.
(3) Delaware Bay and River to Philadelphia, PA.
(4) St. Croix, VI.
(5) Pascagoula, MS.
(6) Mississippi River from Southwest Pass, LA. to Baton Rouge, LA.
(7) Louisiana Offshore Oil Port (LOOP), LA.
(8) Lake Charles, LA.
(9) Sabine-Neches River, TX.
(10) Galveston Bay and Houston Ship Channel, TX.
(11) Corpus Christi, TX.
(12) Los Angeles/Long Beach harbor, CA.
(13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun
Bay to Antioch, CA.
(14) Straits of Juan De Fuca from Port Angeles, WA, to and
including Puget Sound, WA.
(15) Prince William Sound, AK.
Inland area means the area shoreward of the boundary lines defined
in 46 CFR part 7, except in the Gulf of Mexico. In the Gulf of Mexico,
it means the area shoreward of the lines of demarcation (COLREG lines)
defined in Secs. 80.740 through 80.850 of this chapter. The inland area
does not include the Great Lakes.
Marine transportation-related facility (MTR facility) means any
onshore facility or segment of a complex regulated under section 311(j)
of the Federal Water Pollution Control Act (FWPCA) by two or more
Federal agencies, including piping and any structure used or intended
to be used to transfer oil to or from a vessel, subject to regulation
under this part and any deepwater port subject to regulation under part
150 of this chapter. For a facility or segment of a complex regulated
by two or more Federal agencies under section 311(j) of the FWPCA, the
MTR portion of the complex extends from the facility oil transfer
system's connection with the vessel to the first valve inside the
secondary containment surrounding tanks in the non-transportation-
related portion of the facility or, in the absence of secondary
containment, to the valve or manifold adjacent to the tanks comprising
the non-transportation-related portion of the facility, unless another
location has otherwise been agreed to by the COTP and the appropriate
Federal official.
Maximum extent practicable means the planned capability to respond
to a worst case discharge in adverse weather, as contained in a
response plan that meets the criteria in this subpart or in a specific
plan approved by the cognizant COTP.
Maximum most probable discharge means a discharge of the lesser of
1,200 barrels or 10 percent of the volume of a worst case discharge.
Nearshore area means the area extending seaward 12 miles from the
boundary lines defined in 46 CFR part 7, except in the Gulf of Mexico.
In the Gulf of Mexico, it means the area extending seaward 12 miles
from the line of demarcation (COLREG lines) defined in Secs. 80.740-
80.850 of this chapter.
Non-persistent or Group I oil means a petroleum-based oil that, at
the time of shipment, consists of hydrocarbon fractions--
(1) At least 50 percent of which by volume, distill at a
temperature of 340 degrees C (645 degrees F); and
(2) At least 95 percent of which by volume, distill at a
temperature of 370 degrees C (700 degrees F).
Ocean means the offshore area and nearshore area as defined in this
subpart.
Offshore area means the area beyond 12 nautical miles measured from
the boundary lines defined in 46 CFR part 7 extending seaward to 50
nautical miles, except in the Gulf of Mexico. In the Gulf of Mexico, it
is the area beyond 12 nautical miles of the line of demarcation (COLREG
lines) defined in Secs. 80.740-80.850 of this chapter extending seaward
to 50 nautical miles.
Oil means oil of any kind or in any form, including, but not
limited to, petroleum, fuel oil, sludge, oil refuse, oil mixed with
wastes other than dredge spoil.
Oil spill removal organization (OSRO) means an entity that provides
response resources.
On-Scene Coordinator (OSC) means the definition in the National Oil
and Hazardous Substances Pollution Contingency Plan (40 CFR part 300).
Operating area means Rivers and Canals, Inland, Nearshore, Great
Lakes, or Offshore geographic location(s) in which a facility is
handling, storing, or transporting oil.

[[Page 7920]]

Operating environment means Rivers and Canals, Inland, Great Lakes,
or Ocean. These terms are used to define the conditions in which
response equipment is designed to function.
Operating in compliance with the plan means operating in compliance
with the provisions of this subpart including, ensuring the
availability of the response resources by contract or other approved
means, and conducting the necessary training and drills.
Other non-petroleum oil means a non-petroleum oil of any kind that
is not generally an animal fat or vegetable oil.
Persistent oil means a petroleum-based oil that does not meet the
distillation criteria for a non-persistent oil. For the purposes of
this subpart, persistent oils are further classified based on specific
gravity as follows:
(1) Group II--specific gravity of less than .85.
(2) Group III--specific gravity equal to or greater than .85 and
less than .95.
(3) Group IV--specific gravity equal to or greater than .95 and
less than or equal to 1.0.
(4) Group V--specific gravity greater than 1.0.
Qualified individual and alternate qualified individual means a
person located in the United States who meets the requirements of
Sec. 154.1026.
Response activities means the containment and removal of oil from
the land, water, and shorelines, the temporary storage and disposal of
recovered oil, or the taking of other actions as necessary to minimize
or mitigate damage to the public health or welfare or the environment.
Response resources means the personnel, equipment, supplies, and
other capability necessary to perform the response activities
identified in a response plan.
Rivers and canals means a body of water confined within the inland
area, including the Intracoastal Waterways and other waterways
artificially created for navigation, that has a project depth of 12
feet or less.
Specific gravity means the ratio of the mass of a given volume of
liquid at 15 deg.C (60 deg.F) to the mass of an equal volume of pure
water at the same temperature.
Spill management team means the personnel identified to staff the
organizational structure identified in a response plan to manage
response plan implementation.
Substantial threat of a discharge means any incident or condition
involving a facility that may create a risk of discharge of oil. Such
incidents include, but are not limited to storage tank or piping
failures, above ground or underground leaks, fires, explosions,
flooding, spills contained within the facility, or other similar
occurrences.
Tier means the combination of required response resources and the
times within which the resources must arrive on scene.

[Note: Tiers are applied in three categories:
(1) Higher Volume Port Areas,
(2) Great Lakes, and
(3) All other operating environments, including rivers and
canals, inland, nearshore, and offshore areas.
Appendix C, Table 4 of this part, provides specific guidance on
calculating response resources. Sections 154.1045(f) and 154.1135,
set forth the required times within which the response resources
must arrive on-scene.]

Vegetable oil means a non-petroleum oil or fat derived from plant
seeds, nuts, kernels or fruits, and not specifically identified
elsewhere in this part.
Worst case discharge means in the case of an onshore facility and
deepwater port, the largest foreseeable discharge in adverse weather
conditions meeting the requirements of Sec. 154.1029.

Sec. 154.1025 Operating restrictions and interim operating
authorization.

(a) The owner or operator of an MTR facility who submitted a
response plan prior to May 29, 1996, may elect to comply with any of
the provisions of this final rule by revising the appropriate section
of the previously submitted plan in accordance with Sec. 154.1065. An
owner or operator of an MTR facility who elects to comply with all
sections of this final rule must resubmit the plan in accordance with
Sec. 154.1060 of this part.
(b) No facility subject to this subpart may handle, store, or
transport oil unless it is operating in full compliance with a
submitted response plan. No facility categorized under Sec. 154.1015(c)
as a significant and substantial harm facility may handle, store, or
transport oil unless the submitted response plan has been approved by
the COTP. The owner or operator of each new facility to which this
subpart applies must submit a response plan meeting the requirements
listed in Sec. 154.1017 not less than 60 days prior to handling,
storing, or transporting oil. Where applicable, the response plan shall
be submitted along with the letter of intent required under
Sec. 154.110.
(c) Notwithstanding the requirements of paragraph (b) of this
section, a facility categorized under Sec. 154.1015(c) as a significant
and substantial harm facility may continue to handle, store, or
transport oil for 2 years after the date of submission of a response
plan, pending approval of that plan. To continue to handle, store, or
transport oil without a plan approved by the COTP, the facility owner
or operator shall certify in writing to the COTP that the owner or
operator has ensured, by contract or other approved means as described
in Sec. 154.1028(a), the availability of the necessary private
personnel and equipment to respond, to the maximum extend practicable
to a worst case discharge or substantial threat of such a discharge
from the facility. Provided that the COTP is satisfied with the
certification of response resources provided by the owner or operator
of the facility, the COTP will provide written authorization for the
facility to handle, store, or transport oil while the submitted
response plan is being reviewed. Pending approval of the submitted
response plan, deficiencies noted by the COTP must be corrected in
accordance with Sec. 154.1070.
(d) A facility may not continue to handle, store, or transport oil
if--
(1) The COTP determines that the response resources identified in
the facility certification statement or reference response plan do not
substantially meet the requirements of this subpart;
(2) The contracts or agreements cited in the facility's
certification statement or referenced response plans are no longer
valid;
(3) The facility is not operating in compliance with the submitted
plan;
(4) The response plan has not been resubmitted or approved within
the last 5 years; or
(5) The period of the authorization under paragraph (c) of this
section has expired.

Sec. 154.1026 Qualified individual and alternate qualified individual.

(a) The response plan must identify a qualified individual and at
least one alternate who meet the requirements of this section. The
qualified individual or alternate must be available on a 24-hour basis
and be able to arrive at the facility in a reasonable time.
(b) The qualified individual and alternate must:
(1) Be located in the United States;
(2) Speak fluent English;
(3) Be familiar with the implementation of the facility response
plan; and
(4) Be trained in the responsibilities of the qualified individual
under the response plan.
(c) The owner or operator shall provide each qualified individual
and alternate qualified individual identified in the plan with a
document designating them as a qualified individual and specifying
their full authority to:
(1) Activate and engage in contracting with oil spill removal
organization(s);

[[Page 7921]]

(2) Act as a liaison with the predesignated Federal On-Scene
Coordinator (OSC); and
(3) Obligate funds required to carry out response activities.
(d) The owner or operator of a facility may designate an
organization to fulfill the role of the qualified individual and the
alternate qualified individual. The organization must then identify a
qualified individual and at least one alternate qualified individual
who meet the requirements of this section. The facility owner or
operator is required to list in the response plan the organization, the
person identified as the qualified individual, and the person or
person(s) identified as the alternate qualified individual(s).
(e) The qualified individual is not responsible for--
(1) The adequacy of response plans prepared by the owner or
operator; or
(2) Contracting or obligating funds for response resources beyond
the authority contained in their designation from the owner or operator
of the facility.
(f) The liability of a qualified individual is considered to be in
accordance with the provisions of 33 USC 1321(c)(4).

Sec. 154.1028 Methods of ensuring the availability of response
resources by contract or other approved means.

(a) When required in this subpart, the availability of response
resources must be ensured by the following methods:
(1) A written contractual agreement with an oil spill removal
organization. The agreement must identify and ensure the availability
of specified personnel and equipment required under this subpart within
stipulated response times in the specified geographic areas;
(2) Certification by the facility owner or operator that specified
personnel and equipment required under this subpart are owned,
operated, or under the direct control of the facility owner or
operator, and are available within stipulated response times in the
specified geographic areas;
(3) Active membership in a local or regional oil spill removal
organization that has identified specified personnel and equipment
required under this subpart that are available to respond to a
discharge within stipulated response times in the specified geographic
areas;
(4) A document which--
(i) Identifies the personnel, equipment, and services capable of
being provided by the oil spill removal organization within stipulated
response times in the specified geographic areas;
(ii) Sets out the parties' acknowledgment that the oil spill
removal organization intends to commit the resources in the event of a
response;
(iii) Permits the Coast Guard to verify the availability of the
identified response resources through tests, inspections, and drills;
and
(iv) Is referenced in the response plan; or
(5) The identification of an oil spill removal organization with
specified equipment and personnel available within stipulated response
times in specified geographic areas. The organization must provide
written consent to being identified in the plan.
(b) The contracts and documents required in paragraph (a) of this
section must be retained at the facility and must be produced for
review upon request by the COTP.

Sec. 154.1029 Worst case discharge.

(a) The response plan must use the appropriate criteria in this
section to develop the worst case discharge.
(b) For the MTR segment of a facility, not less than--
(1) Where applicable, the loss of the entire capacity of all in-
line and break out tank(s) needed for the continuous operation of the
pipelines used for the purposes of handling or transporting oil, in
bulk, to or from a vessel regardless of the presence of secondary
containment; plus
(2) The discharge from all piping carrying oil between the marine
transfer manifold and the non-transportation-related portion of the
facility. The discharge from each pipe is calculated as follows: The
maximum time to discover the release from the pipe in hours, plus the
maximum time to shut down flow from the pipe in hours (based on
historic discharge data or the best estimate in the absence of historic
discharge data for the facility) multiplied by the maximum flow rate
expressed in barrels per hour (based on the maximum relief valve
setting or maximum system pressure when relief valves are not provided)
plus the total line drainage volume expressed in barrels for the pipe
between the marine manifold and the non-transportation-related portion
of the facility; and
(c) For a mobile facility it means the loss of the entire contents
of the container in which the oil is stored or transported.

Sec. 154.1030 General response plan contents.

(a) The plan must be written in English.
(b) A response plan must be divided into the sections listed in
this paragraph and formatted in the order specified herein unless noted
otherwise. It must also have some easily found marker identifying each
section listed below. The following are the sections and subsections of
a facility response plan:
(1) Introduction and plan contents.
(2) Emergency response action plan:
(i) Notification procedures.
(ii) Facility's spill mitigation procedures.
(iii) Facility's response activities.
(iv) Fish and wildlife and sensitive environments.
(v) Disposal plan.
(3) Training and Exercises:
(i) Training procedures.
(ii) Exercise procedures.
(4) Plan review and update procedures.
(5) Appendices.
(i) Facility-specific information.
(ii) List of contacts.
(iii) Equipment lists and records.
(iv) Communications plan.
(v) Site-specific safety and health plan.
(vi) List of acronyms and definitions.
(vii) A geographic-specific appendix for each zone in which a
mobile facility operates.
(c) The required contents for each section and subsection of the
plan are contained in Secs. 154.1035, 154.1040, and 154.1041, as
appropriate.
(d) The sections and subsections of response plans submitted to the
COTP must contain at a minimum all the information required in
Secs. 154.1035, 154.1040, and 154.1041, as appropriate. It may contain
other appropriate sections, subsections, or information that are
required by other Federal, State, and local agencies.
(e) For initial and subsequent submission, a plan that does not
follow the format specified in paragraph (b) of this section must be
supplemented with a detailed cross-reference section to identify the
location of the applicable sections required by this subpart.
(f) The information contained in a response plan must be consistent
with the National Oil and Hazardous Substances Pollution Contingency
Plan (NCP) (40 CFR part 300) and the Area Contingency Plan(s) (ACP)
covering the area in which the facility operates. Facility owners or
operators shall ensure that their response plans are in accordance with
the ACP in effect 6 months prior to initial plan submission or the
annual plan review required under Sec. 154.1065(a). Facility owners or
operators are not required to, but may at their option, conform to an
ACP which is less than 6 months old at the time of plan submission.

[[Page 7922]]

Sec. 154.1035 Specific requirements for facilities that could
reasonably be expected to cause significant and substantial harm to the
environment.

(a) Introduction and plan content. This section of the plan must
include facility and plan information as follows:
(1) The facility's name, street address, city, county, state, ZIP
code, facility telephone number, and telefacsimile number, if so
equipped. Include mailing address if different from street address.
(2) The facility's location described in a manner that could aid
both a reviewer and a responder in locating the specific facility
covered by the plan, such as, river mile or location from a known
landmark that would appear on a map or chart.
(3) The name, address, and procedures for contacting the facility's
owner or operator on a 24-hour basis.
(4) A table of contents.
(5) During the period that the submitted plan does not have to
conform to the format contained in this subpart, a cross index, if
appropriate.
(6) A record of change(s) to record information on plan updates.
(b) Emergency Response Action Plan. This section of the plan must
be organized in the subsections described in this paragraph:
(1) Notification procedures. (i) This subsection must contain a
prioritized list identifying the person(s), including name, telephone
number, and their role in the plan, to be notified of a discharge or
substantial threat of a discharge of oil. The telephone number need not
be provided if it is listed separately in the list of contacts required
in the plan. This Notification Procedures listing must include--
(A) Facility response personnel, the spill management team, oil
spill removal organizations, and the qualified individual(s) and the
designated alternate(s); and
(B) Federal, State, or local agencies, as required.
(ii) This subsection must include a form, such as that depicted in
Figure 1, which contains information to be provided in the initial and
follow-up notifications to Federal, State, and local agencies. The form
shall include notification of the National Response Center as required
in part 153 of this chapter. Copies of the form also must be placed at
the location(s) from which notification may be made. The initial
notification form must include space for the information contained in
Figure 1. The form must contain a prominent statement that initial
notification must not be delayed pending collection of all information.

Figure 1.--Information on discharge *
[Involved Parties]
------------------------------------------------------------------------
(A) Reporting party (B) Suspected responsible party
------------------------------------------------------------------------
Name Name
Phones ( ) - Phones ( ) -
Company Company
Position Organization Type:
Address Private citizen
Address Private enterprise
Public utility
Local government
State government
Federal government
City City
State State
Zip Zip
------------------------------------------------------------------------
* It is not necessary to wait for all information before calling NRC.
National Response Center--1-800-424-8802.

Were materials Discharged (Y/N)?
Calling for Responsible Party (Y/N)

------------------------------------------------------------------------
Incident Description

------------------------------------------------------------------------
Source and/or Cause of Incident

------------------------------------------------------------------------
Date - - Time:
Cause

------------------------------------------------------------------------
Incident Address/Location Nearest City
Distance from City
Storage Tank Container Type--Above ground (Y/N) Below ground (Y/
N) Unknown
------------------------------------------------------------------------

Facility Capacity

------------------------------------------------------------------------
Tank Capacity
Latitude Degrees
Longitude Degrees
Mile Post or River Mile

------------------------------------------------------------------------
Materials

------------------------------------------------------------------------
Discharge Unit of Quantity Measure Discharged Material
Quantity in Water

------------------------------------------------------------------------

[[Page 7923]]

Response Action

------------------------------------------------------------------------
Actions Taken to Correct or Mitigate Incident

------------------------------------------------------------------------
Impact

------------------------------------------------------------------------
Number of Injuries Number of Fatalities
Were there Evacuations (Y/N/U)? Number Evacuated
Was there any Damage (Y/N/U)? Damage in Dollars

------------------------------------------------------------------------
Additional Information

------------------------------------------------------------------------
Any information about the Incident not recorded elsewhere in the report

------------------------------------------------------------------------
Caller Notifications

------------------------------------------------------------------------
USCG EPA State Other

(2) Facility's spill mitigation procedures. (i) This subsection
must describe the volume(s) and oil groups that would be involved in
the--
(A) Average most probable discharge from the MTR facility;
(B) Maximum most probable discharge from the MTR facility;
(C) Worst case discharge from the MTR facility; and
(D) Where applicable, the worst case discharge from the non-
transportation-related facility. This must be the same volume provided
in the response plan for the non-transportation-related facility.
(ii) This subsection must contain prioritized procedures for
facility personnel to mitigate or prevent any discharge or substantial
threat of a discharge of oil resulting from operational activities
associated with internal or external facility transfers including
specific procedures to shut down affected operations. Facility
personnel responsible for performing specified procedures to mitigate
or prevent any discharge or potential discharge shall be identified by
job title. A copy of these procedures shall be maintained at the
facility operations center. These procedures must address actions to be
taken by facility personnel in the event of a discharge, potential
discharge, or emergency involving the following equipment and
scenarios:
(A) Failure of manifold, mechanical loading arm, other transfer
equipment, or hoses, as appropriate;
(B) Tank overfill;
(C) Tank failure;
(D) Piping rupture;
(E) Piping leak, both under pressure and not under pressure, if
applicable;
(F) Explosion or fire; and
(G) Equipment failure (e.g. pumping system failure, relief valve
failure, or other general equipment relevant to operational activities
associated with internal or external facility transfers.)
(iii) This subsection must contain a listing of equipment and the
responsibilities of facility personnel to mitigate an average most
probable discharge.
(3) Facility's response activities. (i) This subsection must
contain a description of the facility personnel's responsibilities to
initiate a response and supervise response resources pending the
arrival of the qualified individual.
(ii) This subsection must contain a description of the
responsibilities and authority of the qualified individual and
alternate as required in Sec. 154.1026.
(iii) This subsection must describe the organizational structure
that will be used to manage the response actions. This structure must
include the following functional areas.
(A) Command and control;
(B) Public information;
(C) Safety;
(D) Liaison with government agencies;
(E) Spill Operations;
(F) Planning;
(G) Logistics support; and
(H) Finance.
(iv) This subsection must identify the oil spill removal
organizations and the spill management team to:
(A) Be capable of providing the following response resources:
(1) Equipment and supplies to meet the requirements of
Secs. 154.1045, 154.1047 or subparts H or I of this part, as
appropriate; and
(2) Trained personnel necessary to continue operation of the
equipment and staff of the oil spill removal organization and spill
management team for the first 7 days of the response.
(B) 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 should
include the responsibilities and duties of each spill management team
member in a response action.
(v) 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 geographic-specific appendix. The oil
spill removal organization(s) and the spill management team discussed
in paragraph (b)(3)(iv)(A) of this section must be included for each
COTP zone in which the facility will handle, store, or transport oil in
bulk.
(4) Fish and wildlife and sensitive environments. (i) This section
of the plan must identify areas of economic importance and
environmental sensitivity, as identified in the ACP, which are
potentially impacted by a worst case discharge. ACPs are required under
section 311(j)(4) of the FWPCA to identify fish and wildlife and
sensitive environments. The applicable ACP shall be used to designate
fish and wildlife and sensitive environments in the plan. Changes to
the ACP regarding fish and wildlife and sensitive environments shall be
included in the annual update of the response plan, when available.
(ii) For a worst case discharge from the facility, this section of
the plan must--
(A) List all fish and wildlife and sensitive environments
identified in the ACP which are potentially impacted by a discharge of
persistent oils, non-persistent oils, or non-petroleum oils.
(B) Describe all the response actions that the facility anticipates
taking to protest these fish and wildlife and sensitive environments.
(C) Contain a map or chart showing the location of those fish and
wildlife and sensitive environments which are potentially impacted. The
map or chart shall also depict each response action that the facility
anticipates taking to protect these areas. A legend of

[[Page 7924]]
activities must be included on the map page.
(iii) For a worst case discharge, this section must identify
appropriate equipment and required personnel, available by contract or
other approved means as described in Sec. 154.1028, to protect fish and
wildlife and sensitive environments which fall within the distances
calculated using the methods outlined in this paragraph as follows:
(A) Identify the appropriate equipment and required personnel to
protect all fish and wildlife and sensitive environments in the ACP for
the distances, as calculated in paragraph (b)(4)(iii)(B) of this
section, that the persistent oils, non-persistent oils, or non-
petroleum oils are likely to travel in the noted geographic area(s) and
number of days listed in Table 2 of appendix C of this part;
(B) Calculate the distances required by paragraph (b)(4)(iii)(A) of
this section by selecting one of the methods described in this
paragraph;
(1) Distances may be calculated as follows:
(i) For persistent oils and non-petroleum oils discharged into non-
tidal waters, the distance from the facility reached in 48 hours at
maximum current.
(ii) For persistent and non-petroleum oils discharged into tidal
waters, 15 miles from the facility down current during ebb tide and to
the point of maximum tidal influence or 15 miles, whichever is less,
during flood tide.
(iii) For non-persistent oils discharged into non-tidal waters, the
distance from the facility reached in 24 hours at maximum current.
(iv) For non-persistent oils discharged into tidal waters, 5 miles
from the facility down current during ebb tide and to the point of
maximum tidal influence or 5 miles, whichever is less, during flood
tide.
(2) A spill trajectory or model may be substituted for the
distances calculated under paragraph (b)(4)(iii)(B)(l) of this section.
The spill trajectory or model must be acceptable to the COTP.
(3) The procedures contained in the Environmental Protection's
Agency's regulations on oil pollution prevention for non-
transportation-related onshore facilities at 40 CFR part 112, appendix
C, Attachment C-III may be substituted for the distances listed in non-
tidal and tidal waters; and
(C) Based on historical information or a spill trajectory or model,
the COTP may require the additional fish and wildlife and sensitive
environments also be protected.
(5) Disposal Plan. This subsection must describe any actions to be
taken or procedures to be used to ensure that all recovered oil and oil
contaminated debris produced as a result of any discharge are disposed
according to Federal, state, or local requirements.
(c) Training and exercises. This section must be divided into the
following two subsections:
(1) Training procedures. This subsection must describe the training
procedures and programs of the facility owner or operator to meet the
requirements in Sec. 154.1050.
(2) Exercise procedures. This subsection must describe the exercise
program to be carried out by the facility owner or operator to meet the
requirements in Sec. 154.1055.
(d) Plan review and update procedures. This section must address
the procedures to be followed by the facility owner or operator to meet
the requirements of Sec. 154.1065 and the procedures to be followed for
any post-discharge review of the plan to evaluate and validate its
effectiveness.
(e) Appendices. This section of the response plan must include the
appendices described in this paragraph.
(1) Facility-specific information. This appendix must contain a
description of the facility's principal characteristics.
(i) There must be a physical description of the facility including
a plan of the facility showing the mooring areas, transfer locations,
control stations, locations of safety equipment, and the location and
capacities of all piping and storage tanks.
(ii) The appendix must identify the sizes, types, and number of
vessels that the facility can transfer oil to or from simultaneously.
(iii) The appendix must identify the first valve(s) on facility
piping separating the transportation-related portion of the facility
from the non-transportation-related portion of the facility, if any.
For piping leading to a manifold located on a dock serving tank
vessels, this valve is the first valve inside the secondary containment
required by 40 CFR part 112.
(iv) The appendix must contain information on the oil(s) and
hazardous material handled, stored, or transported at the facility in
bulk. A material safety data sheet meeting the requirements of 29 CFR
1910.1200, 33 CFR 154.310(a)(5) or an equivalent will meet this
requirement. This information can be maintained separately providing it
is readily available and the appendix identifies its location. This
information must include--
(A) The generic or chemical name;
(B) A description of the appearance and odor;
(C) The physical and chemical characteristics;
(D) The hazards involved in handling the oil(s) and hazardous
materials. This shall include hazards likely to be encountered if the
oil(s) and hazardous materials come in contact as a result of a
discharge; and
(E) A list of firefighting procedures and extinguishing agents
effective with fires involving the oil(s) and hazardous materials.
(v) The appendix may contain any other information which the
facility owner or operator determines to be pertinent to an oil spill
response.
(2) List of contacts. This appendix must include information on 24-
hour contact of key individuals and organizations. If more appropriate,
this information may be specified in a geographic-specific appendix.
The list must include--
(i) The primary and alternate qualified individual(s) for the
facility;
(ii) The contact(s) identified under paragraph (b)(3)(iv) of this
section for activation of the response resources; and
(iii) Appropriate Federal, State, and local officials.
(3) Equipment list and records. This appendix must include the
information specified in this paragraph.
(i) The appendix must contain a list of equipment and facility
personnel required to respond to an average most probable discharge, as
defined in Sec. 154.1020. The appendix must also list the location of
the equipment.
(ii) The appendix must contain a detailed listing of all the major
equipment identified in the plan as belonging to an oil spill removal
organization(s) that is available, by contract or other approved means
as described in Sec. 154.1028(a), to respond to a maximum most probable
or worst case discharge, as defined in Sec. 154.1020. The detailed
listing of all major equipment may be located in a separate document
referenced by the plan. Either the appendix or the separate document
referenced in the plan must provide the location of the major response
equipment.
(iii) It is not necessary to list response equipment from oil spill
removal organization(s) when the organization has been classified by
the Coast Guard and their capacity has been determined to equal or
exceed the response capability needed by the facility. For oil spill
removal organization(s) classification by the Coast Guard, the
classified must be noted in this section of the plan. When it is
necessary for the appendix to contain a listing of response equipment,
it shall include all of the following items that are identified in the

[[Page 7925]]
response plan: Skimmers; booms; dispersant application, in-situ
burning, bioremediation equipment and supplies, and other equipment
used to apply other chemical agents on the NCP Product Schedule (if
applicable); communications, firefighting, and beach cleaning
equipment; boats and motors; disposal and storage equipment; and heavy
equipment. The list must include for each piece of equipment--
(A) The type, make, model, and year of manufacture listed on the
nameplate of the equipment;
(B) For oil recovery devices, the effective daily recovery rate, as
determined using section 6 of Appendix C of this part;
(C) For containment boom, the overall boom height (draft and
freeboard) and type of end connectors;
(D) The spill scenario in which the equipment will be used for or
which it is contracted;
(E) The total daily capacity for storage and disposal of recovered
oil;
(F) For communication equipment, the type and amount of equipment
intended for use during response activities. Where applicable, the
primary and secondary radio frequencies must be specified.
(G) Location of the equipment; and
(H) The date of the last inspection by the oil spill removal
organization(s).
(4) Communications plan. This appendix must describe the primary
and alternate method of communication during discharges, including
communications at the facility and at remote locations within the areas
covered by the response plan. The appendix may refer to additional
communications packages provided by the oil spill removal organization.
This may reference another existing plan or document.
(5) Site-specific safety and health plan. This appendix must
describe the safety and health plan to be implemented for any response
location(s). It must provide as much detailed information as is
practicable in advance of an actual discharge. This appendix may
reference another existing plan requiring under 29 CFR 1910.120.
(6) List of acronyms and definitions. This appendix must list all
acronyms used in the response plan including any terms or acronyms used
by Federal, State, or local governments and any operational terms
commonly used at the facility. This appendix must include all
definitions that are critical to understanding the response plan.

Sec. 154.1040 Specific requirements for facilities that could
reasonably be expected to cause substantial harm to the environment.

(a) The owner or operator of a facility that, under Sec. 154.1015,
could reasonably be expected to cause substantial harm to the
environment, shall submit a response plan that meets the requirements
of Sec. 154.1035, except as modified by this section.
(b) The facility's response activities section of the response plan
need not list the facility or corporate organizational structure that
will be used to manage the response, as required by
Sec. 154.1035(b)(3)(iii).
(c) The owner or operator of a facility must ensure the
availability of response resources required to be identified in
Sec. 154.1035(b)(3)(iv) by contract or other approved means described
in Sec. 154.1028.
(d) A facility owner or operator must have at least 200 feet of
containment boom and the means of deploying and anchoring the boom
available at the spill site within 1 hour of the detection of a spill
to respond to the average most probable discharge in lieu of the
quantity of containment boom specified in Sec. 154.1045(c)(1). Based on
site-specific or facility-specific information, the COTP may specify
that additional quantities of containment boom are available within one
hour. In addition, there must be adequate sorbent material for initial
response to an average most probable discharge. If the facility is a
fixed facility, the containment boom and sorbent material must be
located at the facility. If the facility is a mobile facility, the
containment boom and sorbent must be available locally and be at the
site of the discharge within 1 hour of its discovery.

Sec. 154.1041 Specific response information to be maintained on mobile
MTR facilities.

(a) Each mobile MTR facility must carry the following information
as contained in the response plan when performing transfer operations:
(1) A description of response activities for a discharge which may
occur during transfer operations. This may be a narrative description
or a list of procedures to be followed in the event of a discharge.
(2) Identity of response resources to respond to a discharge from
the mobile MTR facility.
(3) List of the appropriate persons and agencies (including the
telephone numbers) to be contacted in regard to a discharge and its
handling, including the National Response Center.
(b) The owner or operator of the mobile facility must also retain
the information in this paragraph at the principal place of business.

Sec. 154.1045 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group I through Group IV
petroleum oils.

(a) The owner or operator of a facility that handles, stores, or
transports Group I through Group IV petroleum oils shall use the
criteria in this section to evaluate response resources identified in
the response plan for the specified operating environment.
(1) The criteria in Table 1 of appendix C of this part are to be
used solely for identification of appropriate equipment in a response
plan. These criteria reflect conditions used for planning purposes to
select mechanical response equipment and are not conditions that would
limit response actions or affect normal facility operations.
(2) The response resources must be evaluated considering
limitations for the COTP zones in which the facility operates,
including but not limited to--
(i) Ice conditions;
(ii) Debris;
(iii) Temperature ranges;
(iv) Weather-related visibility; and
(v) Other appropriate environmental conditions as determined by the
COTP.
(3) The COTP may reclassify a specific body of water or location
within the COTP zone. Any reclassifications will be identified by the
COTP in the applicable ACP. Reclassifications may be to--
(i) A more stringent operating environment if the prevailing wave
conditions exceed the significant wave height criteria during more than
35 percent of the year; or
(ii) A less stringent operating environment if the prevailing wave
conditions do not exceed the significant wave height criteria for the
less stringent operating environment during more than 35 percent of the
year.
(b) Response equipment must--
(1) Meet or exceed the operating criteria listed in Table 1 of
appendix C of this part;
(2) Function in the applicable operating environment; and
(3) Be appropriate for the petroleum oil carried.
(c) The response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify
response resources that are available, by contract or other approved
means as described in Sec. 154.1028(a)(1)(4), to respond to the
facility's average most probable discharge. The response resources must
include, at a minimum--
(1) 1,000 feet of containment boom or two times the length of the
largest vessel

[[Page 7926]]
that regularly conducts petroleum oil transfers to or from the
facility, whichever is greater, and the means of deploying and
anchoring the boom available at the spill site within 1 hour of the
detection of a spill; and
(2) Oil recovery devices and recovered oil storage capacity capable
of being at the spill site within 2 hours of the discovery of a
petroleum oil discharge from a facility.
(d) The response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify
response resources that are available, by contract or other approved
means as described in Sec. 154.1028(a)(1)(4), to respond to a discharge
up to the facility's maximum most probable discharge volume.
(1) The response resources must include sufficient containment
boom, oil recovery devices, and storage capacity for any recovery of up
to the maximum most probable discharge planning volume, as contained in
appendix C.
(2) The response resources must be appropriate for each group of
petroleum oil identified in Sec. 154.1020 that is handled, stored, or
transported by the facility.
(3) These response resources must be positioned such that they can
arrive at the scene of a discharge within the following specified
times:
(i) The equipment identified in paragraphs (c)(1) and (c)(2) of
this section or in Sec. 154.1040(d) must arrive within the times
specified in those paragraphs or that section, as appropriate.
(ii) In higher volume port areas and the Great Lakes, response
resources must be capable of arriving on scene within 6 hours of the
discovery of an petroleum oil discharge from a facility.
(iii) In all other locations, response resources must be capable of
arriving on scene within 12 hours of the discovery of a petroleum oil
discharge from a facility.
(4) The COTP may determine that mobilizing response resources to an
area beyond the response times indicated in this paragraph invalidates
the response plan. In this event, the COTP may impose additional
operational restrictions (e.g., limitations on the number of transfers
at a facility), or, at the COTP's discretion, the facility may operate
with temporarily modified response plan development and evaluation
criteria (e.g., modified response times, alternate response resources,
etc.).
(e) The response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify the
response resources that are available, by contract or other approved
means as described in Sec. 154.1028(a)(1)(4), to respond to the worst
case discharge volume of petroleum oil to the maximum extent
practicable.
(1) The location of these response resources must be suitable to
meet the response times identified in paragraph (f) of this section for
the applicable geographic area(s) of operation and response tier.
(2) The response resources must be appropriate for--
(i) The volume of the facility's worst case discharge;
(ii) Group(s) of petroleum oil as identified in Sec. 154.1020 that
are handled, stored, or transported by the facility; and
(iii) The geographic area(s) in which the facility operates.
(3) The response resources must include sufficient boom, oil
recovery devices, and storage capacity to recover the worst case
discharge planning volumes.
(4) The guidelines in appendix C of this part must be used for
calculating the quantity of response resources required to respond at
each tier to the worst case discharge to the maximum extent
practicable.
(5) When determining response resources necessary to meet the
requirements of this section, a portion of those resources must be
capable of use in close-to-shore response activities in shallow water.
The following percentages of the response equipment identified for the
applicable geographic area must be capable of operating in waters of 6
feet or less depth.
(i) Offshore--10 percent.
(ii) Nearshore/inland/Great Lakes/rivers and canals--20 percent.
(6) The COTP may determine that mobilizing response resources to an
area beyond the response times indicated in this paragraph invalidates
the response plan. In this event, the COTP may impose additional
operational restrictions (e.g., limitations on the number of transfers
at a facility), or, at the COTP's discretion, the facility may be
permitted to operate with temporarily modified response plan
development and evaluation criteria (e.g., modified response times,
alternate response resources, etc.).
(f) Response equipment identified in a response plan for a facility
that handles, stores, or transports Group I through Group IV petroleum
oils must be capable of arriving on scene within the times specified in
this paragraph for the applicable response tier in a higher volume port
area, Great Lakes, and in other areas. Response times for these tiers
from the time of discovery of a discharge are--

------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
(hrs.) (hrs.) (hrs.)
------------------------------------------------------------------------
Higher volume port area (except for a TAPAA
facility located in Prince William Sound,
see Sec. 154.1135)......................... 6 30 54
Great Lakes.................................. 12 36 60
All other river and canal, inland, nearshore,
and offshore areas.......................... 12 36 60
------------------------------------------------------------------------

(g) For the purposes of arranging for response resources for a
facility that handles, stores, or transports Group I through Group IV
petroleum oils, by contract or other approved means as described in
Sec. 154.1028(a)(1)-(4), response equipment identified for Tier 1 plan
credit must be capable of being mobilized and en route to the scene of
a discharge within 2 hours of notification. The notification procedures
identified in the plan must provide for notification and authorization
of mobilization of identified Tier 1 response resources--
(1) Either directly or through the qualified individual; and
(2) Within 30 minutes of a discovery of a discharge or substantial
threat of discharge.
(h) Response resources identified for Tier 2 and Tier 3 plan credit
must be capable of arriving on scene within the time specified for the
applicable tier.
(i) The response plan for a facility that is located in any
environment with year-round preapproval for use of dispersants and that
handles, stores, or transports Group II or III persistent petroleum
oils may request a credit for up to 25 percent of the on-water recovery
capability set forth by this part. To receive this credit, the facility
owner or operator must identify in the plan and ensure, by contract or
other approved means as described in Sec. 154.1028(a)(1)-(4), the
availability of specified resources to apply the dispersants and to
monitor their effectiveness. The extent of the credit will be based on
the volumes of the dispersant available to sustain operations at the
manufacturers' recommend dosage rates. Resources identified for plan
credit should be capable of being on scene within 12 hours of a
discovery of a discharge. Identification of these resources does not
imply that they will be authorized for use. Actual authorization for
use

[[Page 7927]]
during a spill response will be governed by the provisions of the NCP
and the applicable ACP.
(j) A response plan for a facility that handles, stores, or
transports Group I through Group IV petroleum oils must identify
response resources with firefighting capability. The owner or operator
of a facility that does not have adequate firefighting resources
located at the facility or that can not rely on sufficient local
firefighting resources must identify and ensure, by contract or other
approved means as described in Sec. 154.1028(a)(1)-(4), the
availability of adequate firefighting resources. The response plan must
also identify an individual located at the facility to work with the
fire department for petroleum oil fires. This individual shall also
verify that sufficient well-trained firefighting resources are
available within a reasonable time to respond to a worst case
discharge. The individual may be the qualified individual as defined in
Sec. 154.1020 and identified in the response plan or another
appropriate individual located at the facility.
(k) The response plan for a facility that handles, stores, or
transports Groups I through IV petroleum oils must identify equipment
and required personnel available, by contract or other approved means
as described in Sec. 154.1028(a) (1)-(4), to protect fish and wildlife
and sensitive environments.
(1) Except as set out in paragraph (k)(2) of this section, the
identified response resources must include the quantities of boom
sufficient to protect fish and wildlife and sensitive environments as
required by Sec. 154.1035(b)(4).
(2) The resources and response methods identified in a facility
response plan must be consistent with the required resources and
response methods to be used in fish and wildlife and sensitive
environments, contained in the appropriate ACP. Facility owners or
operators shall ensure that their response plans are in accordance with
the ACP in effect 6 months prior to initial plan submission or the
annual plan review required under Sec. 154.1065(a). Facility owners or
operators are not required to, but may at their option, conform to an
ACP which is less than 6 months old at the time of plan submission.
(l) The response plan for a facility that handles, stores, or
transports Groups I through IV petroleum oils must identify an oil
spill removal organization(s) with response resources that are
available, by contract or other approved means as described in
Sec. 154.1028(a) (1)-(4), to effect a shoreline cleanup operation
commensurate with the quantity of emulsified petroleum oil to be
planned for in shoreline cleanup operations.
(1) Except as required in paragraph (l)(2) of this section, the
shoreline cleanup response resources required must be determined as
described in appendix C of this part.
(2) The resources and response methods identified in a facility
response plan must be consistent with the required shoreline cleanup
resources and methods contained in the appropriate ACP. Facility owners
or operators shall ensure that their response plans are in accordance
with the ACP in effect 6 months prior to initial plan submission or the
annual plan review required under Sec. 154.1065(a). Facility owners or
operators are not required to, but may at their option, conform to an
ACP which is less than 6 months old at the time of plan submission.
(m) Appendix C of this part describes the procedures to determine
the maximum extent practicable quantity of response resources that must
be identified and available, by contract or other approved means as
described in Sec. 154.1028(a) (1)-(4), for the maximum most probable
discharge volume, and for each worst case discharge response tier.
(1) Included in appendix C of this part is a cap that recognizes
the practical and technical limits of response capabilities that an
individual facility owner or operator can be expected to contract for
in advance.
(2) Table 5 in appendix C of this part lists the caps that apply in
February 18, 1993, and February 18, 1998. Depending on the quantity and
type of petroleum oil handled by the facility and the facility's
geographic area of operations, the resource capability caps in this
table may be reached. The owner or operator of a facility whose
estimated recovery capacity exceeds the applicable contracting caps in
Table 5 shall identify sources of additional equipment equal to twice
the cap listed in Tiers 1, 2, and 3 or the amount necessary to reach
the calculated planning volume, whichever is lower. The identified
resources must be capable of arriving on scene not later than the Tier
1, 2, and 3 response times in this section. No contract is required.
While general listings of available response equipment may be used to
identify additional sources, a response plan must identify the specific
sources, locations, and quantities of equipment that a facility owner
or operator has considered in his or her planning. When listing Coast
Guard classified oil spill removal organization(s) which have
sufficient removal capacity to recover the volume above the response
capability cap for the specific facility, as specified in Table 5 in
appendix C of this part, it is not necessary to list specific
quantities of equipment.
(n) The Coast Guard will initiate a review of cap increases and
other requirements contained within this subpart that are scheduled to
be phased in over time. Any changes in the requirements of this section
will occur through a public notice and comment process.
(1) During this review, the Coast Guard will determine if the
scheduled increase for February 1998 remains practicable, and will also
establish a specific cap for 2003. The review will include but is not
limited to--
(i) Increase in skimming efficiencies and design technology;
(ii) Oil tracking technology;
(iii) High rate response techniques;
(iv) Other applicable response technologies; and
(v) Increases in the availability of private response resources.
(2) All scheduled future requirements will take effect unless the
Coast Guard determines that they are not practicable. Scheduled changes
will be effective in February 1998 and 2003 unless the review of the
additional requirements has not been completed by the Coast Guard. If
this occurs, the additional requirements will not be effective until 90
days after publication of a Federal Register notice with the results of
the review.

Sec. 154.1047 Response plan development and evaluation criteria for
facilities that handle, store, or transport Group V petroleum oils.

(a) An owner or operator of a facility that handles, stores, or
transports Group V petroleum oils must provide information in his or
her response plan that identifies--
(1) Procedures and strategies for responding to a worst case
discharge of Group V petroleum oils to the maximum extent practicable;
and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
(b) An owner or operator of a facility that handles, stores, or
transports Group V petroleum oil must ensure that any equipment
identified in a response plan is capable of operating in the conditions
expected in the geographic area(s) in which the facility operates using
the criteria in Table 1 of appendix C of this part. When evaluating the
operability of equipment, the facility owner or operator must consider
limitations that are identified in the ACPs for the COTP

[[Page 7928]]
zones in which the facility operates, including--
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
(c) The owner or operator of a facility that handles, stores, or
transports Group V petroleum oil must identify the response resources
that are available by contract or other approved means as described in
Sec. 154.1028. The equipment identified in a response plan must
include--
(1) Sonar, sampling equipment, or other methods for locating the
petroleum oil on the bottom or suspended in the water column;
(2) Containment boom, sorbent boom, silt curtains, or other methods
for containing the petroleum oil that may remain floating on the
surface or to reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment necessary to recover
petroleum oil from the bottom and shoreline;
(4) Equipment necessary to assess the impact of such discharges;
and
(5) Other appropriate equipment necessary to respond to a discharge
involving the type of petroleum oil handled, stored, or transported.
(d) Response resources identified in a response plan for a facility
that handles, stores, or transports Group V petroleum oils under
paragraph (c) of this section must be capable of being at the spill
site within 24 hours of discovery of a discharge.
(e) A response plan for a facility that handles, stores, or
transports Group V petroleum oils must identify response resources with
firefighting capability. The owner or operator of a facility that does
not have adequate firefighting resources located at the facility or
that can not rely on sufficient local firefighting resources must
identity and ensure, by contract or other approved means as described
in Sec. 154.1028, the availability of adequate firefighting resources.
The response plan must also identify an individual located at the
facility to work with the fire department for petroleum oil fires. This
individual shall also verify that sufficient well-trained firefighting
resources are available within a reasonable response time to a worst
case scenario. The individual may be the qualified individual as
defined in Sec. 154.1020 and identified in the response plan or another
appropriate individual located at the facility.

Sec. 154.1050 Training.

(a) A response plan submitted to meet the requirements of
Secs. 154.1035 or 154.1040, as appropriate, must identify the training
to be provided to each individual with responsibilities under the plan.
A facility owner or operator must identify the method to be used for
training any volunteers or casual laborers used during a response to
comply with the requirements of 29 CFR 1910.120.
(b) A facility owner or operator shall ensure the maintenance of
records sufficient to document training of facility personnel; and
shall make them available for inspection upon request by the U.S. Coast
Guard. Records for facility personnel must be maintained at the
facility for 3 years.
(c) Where applicable, a facility owner or operator shall ensure
that an oil spill removal organization identified in a response plan to
meet the requirements of this subpart maintains records sufficient to
document training for the organization's personnel and shall make them
available for inspection upon request by the facility's management
personnel, the qualified individual, and U.S. Coast Guard. Records must
be maintained for 3 years following completion of training.
(d) The facility owner or operator remains responsible for ensuring
that all private response personnel are trained to meet the
Occupational Safety and Health Administration (OSHA) standards for
emergency response operations in 29 CFR 1910.120.

Sec. 154.1055 Exercises.

(a) A response plan submitted by an owner or operator of an MTR
facility must include an exercise program containing both announced and
unannounced exercises. The following are the minimum exercise
requirements for facilities covered by this subpart:
(1) Qualified individual notification exercises (quarterly).
(2) Spill management team tabletop exercises (annually). In a 3-
year period, at least one of these exercises must include a worst case
discharge scenario.
(3) Equipment deployment exercises:
(i) Semiannually for facility owned and operated equipment.
(ii) Annually for oil spill removal organization equipment.
(4) Emergency procedures exercises (optional).
(5) Annually, at least one of the exercises listed in
Sec. 154.1055(a)(2) through (4) must be unannounced. Unannounced means
the personnel participating in the exercise must not be advised in
advance, of the exact date, time and scenario of the exercise.
(6) The facility owner or operator shall design the exercise
program so that all components of the response plan are exercised at
least once every 3 years. All of the components do not have to be
exercised at one time; they may be exercised over the 3-year period
through the required exercises or through an Area exercise.
(b) A facility owner or operator shall participate in unannounced
exercises, as directed by the COTP. The objectives of the unannounced
exercises will be to test notifications and equipment deployment for
response to the average most probable discharge. After participating in
an unannounced exercise directed by a COTP, the owner or operator will
not be required to participate in another COTP initiated unannounced
exercise for at least 3 years from the date of the exercise.
(c) A facility owner or operator shall participate in Area
exercises as directed by the applicable On-Scene Coordinator. The Area
exercises will involve equipment deployment to respond to the spill
scenario developed by the Exercise Design Team, of which the facility
owner or operator will be a member. After participating in an Area
exercise, a facility owner or operator will not be required to
participate in another Area exercise for at least 6 years.
(d) The facility owner or operator shall ensure that adequate
records of all required exercises are maintained at the facility for 3
years. Records shall be made available to the Coast Guard upon request.
(e) The response plan submitted to meet the requirements of this
subpart must specify the planned exercise program. The plan must detail
the exercise program, including the types of exercises, frequency,
scope, objectives and the scheme for exercising the entire response
plan every 3 years.
(f) Compliance with the National Preparedness for Response Exercise
Program (PREP) Guidelines will satisfy the facility response plan
exercise requirements.

Sec. 154.1057 Inspection and maintenance of response resources.

(a) A facility owner or operator required to submit a response plan
under this part must ensure that--
(1) Containment booms, skimmers, vessels, and other major equipment
listed or referenced in the plan are periodically inspected and
maintained in good operating condition, in accordance with
manufacturer's recommendations, and best commercial practices; and
(2) All inspection and maintenance is documented and that these
records are maintained for 3 years.

[[Page 7929]]

(b) For equipment which must be inspected and maintained under this
section the Coast Guard may--
(1) Verify that the equipment inventories exist as represented;
(2) Verify the existences of records required under this section;
(3) Verify that the records of inspection and maintenance reflect
the actual condition of any equipment listed or referenced; and
(4) Inspect and require operational tests of equipment.
(c) This section does not apply to containment booms, skimmers,
vessels, and other major equipment listed or referenced in the plan and
ensured available from an oil spill removal organization through the
written consent required under Sec. 154.1028(a)(5).

Sec. 154.1060 Submission and approval procedures.

(a) The owner or operator of a facility to which this subpart
applies shall submit one copy of a facility response plan meeting the
requirements of this subpart to the COTP for initial review and, if
appropriate, approval.
(b) The owner or operator of a facility to which this subpart
applies shall include a statement certifying that the plan meets the
applicable requirements of subparts F, G, H, and I of this part, as
appropriate.
(c) For an MTR facility that is located in the inland response zone
where the EPA Regional Administrator is the predesignated Federal On-
Scene Coordinator, the COTP may consult with the EPA Federal On-Scene
Coordinator prior to any final approval.
(d) For an MTR facility identified in Sec. 154.1015(c) of this
subpart that is also required to prepare a response plan under 40 CFR
part 112, if the COTP determines that the plan meets all applicable
requirements and the EPA Regional Administrator raises no objection to
the response plan contents, the COTP will notify the facility owner or
operator in writing that the plan is approved.
(e) The plan will be valid for a period of up to 5 years. The
facility owner or operator must resubmit an updated plan every 5 years
as follows:
(1) For facilities identified in only Sec. 154.1015(b) of this
subpart, the 5-year period will commence on the date the plan is
submitted to the COTP.
(2) For facilities identified in Sec. 154.1015(c) of this subpart,
the 5-year period will commence on the date the COTP approves the plan.
(3) All resubmitted response plans shall be accompanied by a cover
letter containing a detailed listing of all revisions to the response
plan.
(f) For an MTR facility identified in Sec. 154.1015(c)(2) the COTP
will notify the facility owner or operator in writing that the plan is
approved.
(g) If a COTP determines that a plan does not meet the requirements
of this subpart either upon initial submission or upon 5-year
resubmission, the COTP will return the plan to the facility owner or
operator along with an explanation of the response plan's deficiencies.
The owner or operator must correct any deficiencies in accordance with
Sec. 154.1070 and return the plan to the COTP within the time specified
by the COTP in the letter describing the deficiencies.
(h) The facility owner or operator and the qualified individual and
the alternative qualified individual shall each maintain a copy of the
most current response plan submitted to the COTP. One copy must be
maintained at the facility in a position where the plan is readily
available to persons in charge of conducting transfer operations.

Sec. 154.1065 Plan review and revision procedures.

(a) A facility owner or operator must review his or her response
plan(s) annually. This review shall incorporate any revisions to the
plan, including listings of fish and wildlife and sensitive
environments identified in the ACP in effect 6 months prior to plan
review.
(1) For an MTR facility identified in Sec. 154.1015(c) of this
subpart as a ``significant and substantial harm facility,'' this review
must occur within 1 month of the anniversary date of COTP approval of
the plan. For an MTR facility identified in Sec. 154.1015(b) of this
subpart, as a ``substantial harm facility'' this review must occur
within 1 month of the anniversary date of submission of the plan to the
COTP.
(2) The facility owner or operator shall submit any revision(s) to
the response plan to the COTP and all other holders of the response
plan for information or approval, as appropriate.
(i) Along with the revisions, the facility owner or operator shall
submit a cover letter containing a detailed listing of all revisions to
the response plan.
(ii) If no revisions are required, the facility owner or operator
shall indicate the completion of the annual review on the record of
changes page.
(iii) The COTP will review the revision(s) submitted by the owner
or operator and will give written notice to the owner or operator of
any COTP objection(s) to the proposed revisions within 30 days of the
date the revision(s) were submitted to the COTP. The revisions shall
become effective not later than 30 days from their submission to the
COTP unless the COTP indicates otherwise in writing as provided in this
paragraph. If the COTP indicates that the revision(s) need to be
modified before implementation, the owner or operator will modify the
revision(s) within the time period set by the COTP.
(3) Any required revisions must be entered in the plan and noted on
the record of changes page.
(b) The facility owner or operator shall submit revisions to a
previously submitted or approved plan to the COTP and all other holders
of the response plan for information or approval within 30 days,
whenever there is--
(1) A change in the facility's configuration that significantly
affects the information included in the response plan;
(2) A change in the type of oil (petroleum oil group) handled,
stored, or transported that affects the required response resources;
(3) A change in the name(s) or capabilities of the oil spill
removal organization required by Sec. 154.1045;
(4) A change in the facility's emergency response procedures;
(5) A change in the facility's operating area that includes ports
or geographic area(s) not covered by the previously approved plan. A
facility may not operate in an area not covered in a plan previously
submitted or approved, as appropriate, unless the revised plan is
approved or interim operating approval is received under Sec. 154.1025;
or
(6) Any other changes that significantly affect the implementation
of the plan.
(c) Except as required in paragraph (b) of this section, revisions
to personnel and telephone number lists included in the response plan
do not require COTP approval. The COTP and all other holders of the
response plan shall be advised of these revisions and provided a copy
of the revisions as they occur.
(d) The COTP may require a facility owner or operator to revise a
response plan at any time as a result of a compliance inspection if the
COTP determines that the response plan does not meet the requirements
of this subpart or as a result of inadequacies noted in the response
plan during an actual pollution incident at the facility.

Sec. 154.1070 Deficiencies.

(a) The cognizant COTP will notify the facility owner or operator
in writing of any deficiencies noted during review of a response plan,
drills observed by the Coast Guard, or inspection of equipment or
records maintained in connection with this subpart.

[[Page 7930]]

(b) Deficiencies shall be corrected within the time period
specified in the written notice provided by the COTP. The facility
owner or operator who disagrees with a deficiency issued by the COTP
may appeal the deficiency to the cognizant COTP within 7 days or the
time specified by the COTP to correct the deficiency, whichever is
less. This time commences from the date of receipt of the COTP notice.
The owner or operator may request a stay from the COTP decision pending
appeal in accordance with Sec. 154.1075.
(c) If the facility owner or operator fails to correct any
deficiencies or submit a written appeal, the COTP may invoke the
provisions of Sec. 154.1025 prohibiting the facility from storing,
handling, or transporting oil.

Sec. 154.1075 Appeal process.

(a) Any owner or operator of a facility who desires to appeal the
classification that a facility could reasonably be expected to cause
substantial harm or significant and substantial harm to the
environment, shall submit a written request to the cognizant COTP
requesting review and reclassification by the COTP. The facility owner
or operator shall identify those factors to be considered by the COTP.
The factors to be considered by the COTP regarding reclassification of
a facility include, but are not limited to, those listed in
Sec. 154.1016(b). After considering all relevant material presented by
the facility owner or operator and any additional material available to
the COTP, the COTP will notify the facility owner or operator of the
decision on the reclassification of the facility.
(b) Any facility owner or operator directly affected by an initial
determination or action of the COTP may submit a written request to the
cognizant COTP requesting review and reconsideration of the COTP's
decision or action. The facility owner or operator shall identify those
factors to be considered by the COTP in making his or her decision on
reconsideration.
(c) Within 10 days of the COTP's decision under paragraph (b) of
this section, the facility owner or operator may appeal the decision of
the COTP to the District Commander. This appeal shall be made in
writing via the cognizant COTP to the District Commander of the
district in which the office of the COTP is located.
(d) Within 30 days of the District Commander's decision, the
facility owner or operator may formally appeal the decision of the
District Commander. This appeal shall be submitted in writing to
Commandant (G-MEP) via the District Commander.
(e) When considering an appeal, the COTP, District Commander, or
Commandant may stay the effect of the decision or action being appealed
pending the determination of the appeal.
3. Subpart G is revised to read as follows:
Subpart G--Additional Response Plan Requirements for a Trans Alaska
Pipeline Authorization Act (TAPAA) Facility Operating in Prince William
Sound, Alaska
Sec. 154.1110 Purpose and applicability.
154.1115 Definitions.
154.1120 Operating restrictions and interim operating authorization.
154.1125 Additional response plan requirements.
154.1130 Requirements for prepositioned response equipment.
154.1135 Response plan development and evaluation criteria.
154.1140 TAPAA facility contracting with a vessel.

Subpart G--Additional Response Plan Requirements for a Trans-Alaska
Pipeline Authorization Act (TAPAA) Facility Operating in Prince
William Sound, Alaska

Sec. 154.1110 Purpose and applicability.

(a) This subpart establishes oil spill response planning
requirements for a facility permitted under the Tans-Alaska Pipeline
Authorization Act (TAPAA), in addition to the requirements of subpart F
of this part. The requirements of this subpart are intended for use in
developing response plans and identifying response resources during the
planning process. They are not performance standards.
(b) The information required by this subpart must be included in
the Prince William Sound facility-specific appendix to the facility
response plan required by subpart F of this part.

Sec. 154.1115 Definitions.

In addition to the definitions in this section, the definitions in
Secs. 154.105 and 154.1020 apply to this subpart. As used in this
subpart--
Crude oil means any liquid hydrocarbon mixture occurring naturally
in the earth, whether or not treated to render it suitable for
transportation, and includes crude oil from which certain distillate
fractions may have been removed, and crude oil to which certain
distillate fractions may have been added.
Non-crude oil means any oil other than crude oil.
Prince William Sound means all State and Federal waters within
Prince William Sound, Alaska, including the approach to Hinchinbrook
Entrance out to and encompassing Seal Rocks.

Sec. 154.1120 Operating restrictions and interim operating
authorization.

(a) The owner or operator of a TAPAA facility may not operate in
Prince William Sound, Alaska, unless the requirements of this subpart
as well as Sec. 154.1025 have been met. The owner or operator of a
TAPAA facility shall certify to the COTP that he or she has provided,
through an oil spill removal organization required by Sec. 154.1125,
the necessary response resources to remove, to the maximum extend
practicable, a worst case discharge or a discharge of 200,000 barrels
of oil, whichever is grater, in Prince William Sound.
(b) Coast Guard approval of a TAPAA facility response plan is
effective only so long as the appropriate Regional Citizens Advisory
Council(s) is funded pursuant to the requirements of section 5002(k) of
the Oil Pollution Act of 1990 (Pub. L. 101-380; 104 Stat. 484, 550).

Sec. 154.1125 Additional response plan requirements.

(a) The owner or operator of a TAPAA facility shall include the
following information in the Prince William Sound appendix to the
response plan required by subpart F of this part:
(1) Oil spill removal organization. Identification of an oil spill
removal organization that shall--
(i) Perform response activities;
(ii) Provide oil spill removal and containment training, including
training in the operation of prepositioned equipment for personnel,
including local residents and fishermen, from the following locations
in Prince William Sound:
(A) Valdez;
(B) Tatitlek;
(C) Cordova;
(D) Whittier;
(E) Chenega; and
(F) Fish hatcheries located at Port San Juan, Main Bay, Esther
Island, Cannery Creek, and Solomon Gulch.
(iii) Provide a plan for training, in addition to the personnel
listed in paragraph (a)(1)(ii) of this section, sufficient numbers of
trained personnel to remove, to the maximum extent practicable, a worst
case discharge; and
(iv) Address the responsibilities required in
Sec. 154.1035(b)(3)(iii).
(2) Exercises. Identification of exercise procedures that must--
(i) Provide for two exercises of the oil spill removal organization
each year that test the ability of the prepositioned equipment and
trained personnel required under this subpart to perform effectively;
(ii) Consist of both announced and unannounced drills; and

[[Page 7931]]

(iii) Include design(s) for exercises that test either the entire
appendix or individual components(s).
(3) Testing, inspection, and certification. Identification of a
testing, inspecting, and certification program for the prepositioned
response equipment required in Sec. 154.1130 that must provide for--
(i) Annual testing and equipment inspection in accordance with the
manufacturer's recommended procedures, to include--
(A) Start-up and running under load all electrical motors, pumps,
power packs, air compressors, internal combustion engines, and oil
recovery devices; and
(B) Removal for inspection of no less than one-third of required
boom from storage annually, such that all boom will have been removed
and inspected within a period of 3 years; and
(ii) Records of equipment tests and inspection.
(iii) Use of an independent entity to certify that the equipment is
on-site and in good operating condition and that required tests and
inspection have been preformed. The independent entity must have
appropriate training and expertise to provide this certification.
(4) Prepositioned response equipment. Identification and location
of the prepositioned response equipment required in Sec. 154.1130
including the make, model, and effective daily recovery rate of each
oil recovery resource.
(b) The owner or operator of a TAPAA facility shall submit to the
COTP a schedule for the training and drills required by the geographic-
specific appendix for Prince William Sound for the following calendar
year.
(c) All records required by this section must be available for
inspection by the COTP.

Sec. 154.1130 Requirements for prepositioned response equipment.

The owner or operator of a TAPAA facility shall provide the
following prepositioned response equipment, located within Prince
William Sound, in addition to that required by Secs. 154.1035,
154.1045, or 154.1050:
(a) On-water recovery equipment with a minimum effective daily
recovery rate of 30,000 barrels capable of being a scene within 2 hours
of notification of a discharge.
(b) On-water storage capacity of 100,000 barrels for recovered oily
material capable of being on scene within 2 hours of notification of a
discharge.
(c) On-water recovery equipment with a minimum effective daily
recovery rate of 40,000 barrels capable of being on scene within 18
hours of notification of discharge.
(d) On-water storage capacity of 300,000 barrels for recovered oily
material capable of being on scene within 12 hours of notification of a
discharge.
(e) On-water recovery devices and storage equipment located in
communities at strategic locations.
(f) Equipment as identified below, for the locations identified in
Sec. 154.1125(a)(1)(ii) sufficient for the protection of the
environment in these locations:
(1) Boom appropriate for the specific locations.
(2) Sufficient boats to deploy boom and sorbents.
(3) Sorbent materials.
(4) Personnel protective clothing and equipment.
(5) Survival equipment.
(6) First aid supplies.
(7) Buckets, shovels, and various other tools.
(8) Decontamination equipment.
(9) Shoreline cleanup equipment.
(10) Mooring equipment.
(11) Anchored buoys at appropriate locations to facilitate the
positioning of defensive boom.
(12) Other appropriate removal equipment for the protection of the
environment as identified by the COTP.

Sec. 154.1135 Response plan development and evaluation criteria.

The following response times must be used in determining the on
scene arrival time in Prince William Sound for the response resources
required by Sec. 154.1045:

------------------------------------------------------------------------
Tier 1 Tier 2 tier 3
(hrs.) (hrs.) (hrs.)
------------------------------------------------------------------------
Prince William Sound Area.................... 12 24 36
------------------------------------------------------------------------

Sec. 154.1140 TAPAA facility contracting with a vessel.

The owner or operator of a TAPAA facility may contract with a
vessel owner or operator to meet some of all of the requirements of
subpart G of part 155 of this chapter. The extent to which these
requirements are met by the contractual arrangement will be determined
by the COTP.
4. Subpart H, consisting of Secs. 154.1210 through 154.1228, is
added to read as follows:

Subpart H--Response Plans for Animal Fats and Vegetable Oils Facilities

Sec.
154.1210 Purpose and applicability.
154.1220 Response plan submission requirements.
154.1225 Response plan development and evaluation criteria for
facilities that handle, store, or transport animal fats and
vegetable oils.
154.1228 Methods of ensuring the availability of response resources
by contract or other approved means.
Subpart H--Response Plans for Animal Fats and Vegetable Oils
Facilities
Sec. 154.1210 Purpose and applicability.

This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils. The requirements of this
subpart are intended for use in developing response plans and
identifying response resources during the planning process. They are
not performance standards.

Sec. 154.1220 Response plan submission requirements.

An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils shall submit a response plan
in accordance with the requirements of this subpart, and with all
sections of subpart F of this part, except Secs. 154.1045 and 154.1047,
which apply to petroleum oils.

Sec. 154.1225 Response plan development and evaluation criteria for
facilities that handle, store, or transport animal fats and vegetable
oils.

(a) An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must provide information in
his or her plan that identifies--
(1) Procedures and strategies for responding to a worst case
discharge of animal fats and vegetable oils to the maximum extent
practicable; and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.
(b) An owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must ensure that any
equipment identified in a response plan is capable of operating in the
conditions expected in the geographic area(s) in which the facility
operates using the criteria in section 2 and Table 1 of appendix C of
this part. When evaluating the operability of equipment, the facility
owner or operator must consider limitations that are identified in the
ACPs for the COTP zone in which the facility is located, including--
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.

[[Page 7932]]

(c) The owner or operator of a facility that handles, stores, or
transports animal fats and vegetable oils must identify the response
resources that are available by contract or other means as described in
Sec. 154.1228(a). The equipment identified in a response plan must
include--
(1) Containment boom, sorbent boom, or other methods for containing
oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of animal fats or
vegetable oils handled; and
(3) Other appropriate equipment necessary to respond to a discharge
involving the type of oil handled.
(d) Response resources identified in a response plan under
paragraph (c) of this section must be capable of commencing an
effective on-scene response within the times specified in this
paragraph for the applicable operating area:

------------------------------------------------------------------------
Tier 1
(hrs.) Tier 2 Tier 3
------------------------------------------------------------------------
Higher volume port area.................... 6 N/A N/A
Great Lakes................................ 12 N/A N/A
All other river and canal, inland,
nearshore, and offshore areas............. 12 N/A N/A
------------------------------------------------------------------------

(e) A response plan for a facility that handles, stores, or
transports animal fats and vegetable oils must identify response
resources with firefighting capability. The owner or operator of a
facility that does not have adequate firefighting resources located at
the facility or that can not rely on sufficient local firefighting
resources must identify and ensure, by contract or other approved means
as described in Sec. 154.1228(a), the availability of adequate
firefighting resources. The response plan must also identify an
individual located at the facility to work with the fire department on
animal fats and vegetable oil fires. This individual shall also verify
that sufficient well-trained firefighting resources are available
within a reasonable response time to a worst case scenario. The
individual may be the qualified individual as defined in Sec. 154.1020
and identified in the response plan or another appropriate individual
located at the facility.
(f) The response plan for a facility that is located in any
environment with year-round preapproval for use of dispersants and that
handles, stores, or transports animal fats and vegetable oils may
request a credit for up to 25 percent of the worst case planning volume
set forth by subpart F of this part. To receive this credit, the
facility owner or operator must identify in the plan and ensure, by
contract or other approved means as described in Sec. 154.1228(a), the
availability of specified resources to apply the dispersants and to
monitor their effectiveness. The extent of the credit for dispersants
will be based on the volumes of the dispersant available to sustain
operations at the manufacturers' recommended dosage rates. Other spill
mitigation techniques, including mechanical dispersal, may be
identified in the response plan provided they are in accordance with
the NCP and the applicable ACP. Resources identified for plan credit
should be capable of being on scene within 12 hours of a discovery of a
discharge. Identification of these resources does not imply that they
will be authorized for use. Actual authorization for use during a spill
response will be governed by the provisions of the NCP and the
applicable ACP.

Sec. 154.1228 Methods of ensuring the availability of response
resources by contract or other approved means.

(a) When required in this subpart, the availability of response
resources must be ensured by the following methods:
(1) The identification of an oil spill removal organization with
specified equipment and personnel available within stipulated response
times in specified geographic areas. The organization must provide
written consent to being identified in the plan;
(2) A document which----
(i) Identifies the personnel, equipment, and services capable of
being provided by the oil spill removal organization within stipulated
response times in the specified geographic areas;
(ii) Sets out the parties' acknowledgment that the oil spill
removal organization intends to commit the resources in the event of a
response;
(iii) Permits the Coast Guard to verify the availability of the
identified response resources through tests, inspections, and drills;
(iv) Is referenced in the response plan;
(3) Active membership in a local or regional oil spill removal
organization that has identified specified personnel and equipment
required under this subpart that are available to response to a
discharge within stipulated response times in the specified geographic
areas;
(4) Certification by the facility owner or operator that specified
personnel and equipment required under this subpart are owned,
operated, or under the direct control of the facility owner or
operator, and are available within stipulated response times in the
specified geographic areas; or
(5) A written contractual agreement with an oil spill removal
organization. The agreement must identify and ensure the availability
of specified personnel and equipment required under this subpart within
stipulated response times in the specified geographic areas.
(b) The contracts and documents required in paragraph (a) of this
section must be retained at the facility and must be produced for
review upon request by the COTP.
5. Subpart I, consisting of Secs. 154.1310 through 154.1325, is
added to read as follows:

Subpart I--Response Plans for Other Non-Petroleum Oil Facilities

Sec.
154.1310 Purpose and applicability.
154.1320 Response plan submission requirements.
154.1325 Response plan development and evaluation criteria for
facilities that handle, store, or transport other non-petroleum
oils.

Subpart I--Response Plans for Other Non-Petroleum Oil Facilities

Sec. 154.1310 Purpose and applicability.

This subpart establishes oil spill response planning requirements
for an owner or operator of a facility that handles, stores, or
transports other non-petroleum oils. The requirements of this subpart
are intended for use in developing response plans and identifying
response resources during the planning process. They are not
performance standards.

Sec. 154.1320 Response plan submission requirements.

An owner or operator of a facility that handles, stores, or
transports other non-petroleum oils shall submit a response plan in
accordance with the requirements of this subpart, and with all sections
of subpart F of this part, except Secs. 154.1045 and 154.1047, which
apply to petroleum oils.

Sec. 154.1325 Response plan development and evaluation criteria for
facilities that handle, store, or transport other non-petroleum oils.

(a) An owner or operator of a facility that handles, stores, or
transports other non-petroleum oils must provide information in his or
her plan that identifies--
(1) Procedures and strategies for responding to a worst case
discharge of other non-petroleum oils to the maximum extent
practicable; and
(2) Sources of the equipment and supplies necessary to locate,
recover, and mitigate such a discharge.

[[Page 7933]]

(b) An owner or operator of a facility that handles, stores, or
transports other non-petroleum oils must ensure that any equipment
identified in a response plan is capable of operating in the conditions
expected in the geographic area(s) in which the facility operates using
the criteria in Table 1 of appendix C of this part. When evaluating the
operability of equipment, the facility owner or operator must consider
limitations that are identified in the ACPs for the COTP zone in which
the facility is located, including--
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
(c) The owner or operator of a facility that handles, stores, or
transports other non-petroleum oils must identify the response
resources that are available by contract or other approved means as
described in Sec. 154.1028(a). The equipment identified in a response
plan must include--
(1) Containment boom, sorbent boom, or other methods for containing
oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of other non-
petroleum oils handled; and
(3) Other appropriate equipment necessary to respond to a discharge
involving the type of oil handled.
(d) Response resources identified in a response plan under
paragraph (c) of this section must be capable of commencing an
effective on-scene response within the times specified in this
paragraph for the applicable operating area:

------------------------------------------------------------------------
Tier 1 Tier Tier
(hrs.) 2 3
------------------------------------------------------------------------
Higher volume port area........................... 6 N/A N/A
Great Lakes....................................... 12 N/A N/A
All other river and canal, inland, nearshore, and
offshore areas................................... 12 N/A N/A
------------------------------------------------------------------------

(e) A response plan for a facility that handles, stores, or
transports other non-petroleum oils must identify response resources
with firefighting capability. The owner or operator of a facility that
does not have adequate firefighting resources located at the facility
or that cannot rely on sufficient local firefighting resources must
identify and ensure, by contract or other approved means as described
in Sec. 154.1028(a), the availability of adequate firefighting
resources. The response plan must also identify an individual located
at the facility to work with the fire department on other non-petroleum
oil fires. This individual shall also verify that sufficient well-
trained firefighting resources are available within a reasonable
response time to a worst case scenario. The individual may be the
qualified individual as defined in Sec. 154.1020 and identified in the
response plan or another appropriate individual located at the
facility.
(f) The response plan for a facility that is located in any
environment with year-round preapproval for use of dispersants and that
handles, stores, or transports other non-petroleum oils may request a
credit for up to 25 percent of the worst case planning volume set forth
by subpart F of this part. To receive this credit, the facility owner
or operator must identify in the plan and ensure, by contract or other
approved means as described in Sec. 154.1028(a), the availability of
specified resources to apply the dispersants and to monitor their
effectiveness. The extent of the credit will be based on the volumes of
the dispersant available to sustain operations at the manufacturers'
recommended dosage rates. Identification of these resources does not
imply that they will be authorized for use. Actual authorization for
use during a spill response will be governed by the provisions of the
NCP and the applicable ACP.
6. Appendix C is revised to read as follows:

Appendix C--Guidelines for Determining and Evaluating Required Response
Resources for Facility Response Plans

1. Purpose

1.1 The purpose of this appendix is to describe the procedures
for identifying response resources to meet the requirements of
subpart F of this part. These guidelines will be used by the
facility owner or operator in preparing the response plan and by the
Captain of the Port (COTP) when reviewing them. Response resources
identified in subparts H and I of this part should be selected using
the guidelines in section 2 and Table 1 of this appendix.

2. Equipment Operability and Readiness

2.1 All equipment identified in a response plan must be
designed to operate in the conditions expected in the facility's
geographic area. These conditions vary widely based on location and
season. Therefore, it is difficult to identify a single stockpile of
response equipment that will function effectively in each geographic
location.
2.2 Facilities handling, storing, or transporting oil in more
than one operating environment as indicated in Table 1 of this
appendix must identify equipment capable of successfully functioning
in each operating environment.
2.3 When identifying equipment for response plan credit, a
facility owner or operator must consider the inherent limitations in
the operability of equipment components and response systems. The
criteria in Table 1 of this appendix should be used for evaluating
the operability in a given environment. These criteria reflect the
general conditions in certain operating areas.
2.3.1 The Coast Guard may require documentation that the boom
identified in a response plan meets the criteria in Table 1. Absent
acceptable documentation, the Coast Guard may require that the boom
be tested to demonstrate that it meets the criteria in Table 1.
Testing must be in accordance with ASTM F 715, ASTM F 989, or other
tests approved by the Coast Guard.
2.4 Table 1 of this appendix lists criteria for oil recovery
devices and boom. All other equipment necessary to sustain or
support response operations in the specified operating environment
must be designed to function in the same conditions. For example,
boats which deploy or support skimmers or boom must be capable of
being safely operated in the significant wave heights listed for the
applicable operating environment.
2.5 A facility owner or operator must refer to the applicable
local contingency plan or ACP, as appropriate, to determine if ice,
debris, and weather-related visibility are significant factors in
evaluating the operability of equipment. The local contingency plan
or ACP will also identify the average temperature ranges expected in
the facility's operating area. All equipment identified in a
response plan must be designed to operate within those conditions or
ranges.
2.6 The requirements of subparts F, G, H and I of this part
establish response resource mobilization and response times. The
distance of the facility from the storage location of the response
resources must be used to determine whether the resources can arrive
on scene within the stated time. A facility owner or operator shall
include the time for notification, mobilization, and travel time of
response resources identified to meet the maximum most probable
discharge and Tier 1 worst case discharge response time
requirements. For subparts F and G, tier 2 and 3 response resources
must be notified and mobilized as necessary to meet the requirements
for arrival on scene in accordance with Secs. 154.1045 or 154.1047
of subpart F, or Sec. 154.1135 of subpart G, as appropriate. An on
water speed of 5 knots and a land speed of 35 miles per hour is
assumed unless the facility owner or operator can demonstrate
otherwise.
2.7 For subparts F and G, in identifying equipment, the
facility owner or operator shall list the storage location,
quantity, and manufacturer's make and model. For oil recovery
devices, the effective daily recovery capacity, as determined using
section 6 of this appendix must be included. For boom, the overall
boom height (draft plus freeboard) should be included. A facility
owner or operator is responsible for ensuring that identified boom
has compatible connectors.
2.8 For subparts H and I, in identifying equipment, the
facility owner or operator shall list the storage location,
quantity, and manufacturer's make and model. For boom,

[[Page 7934]]
the overall boom height (draft plus freeboard) should be included. A
facility owner or operator is responsible for ensuring that
identified boom has compatible connectors.

3. Determining Response Resources Required for the Average Most
Probable Discharge

3.1 A facility owner or operator shall identify sufficient
response resources available, through contract or other approved
means as described in Sec. 154.1028(a), to respond to the average
most probable discharge. The equipment must be designed to function
in the operating environment at the point of expected use.
3.2 The response resources must include:
3.2.1 1,000 feet of containment boom or two times the length of
the largest vessel that regularly conducts oil transfers to or from
the facility, whichever is greater, and a means deploying it
available at the spill site within 1 hour of the discovery of a
spill.
3.2.2 Oil recovery devices with an effective daily recovery
capacity equal to the amount of oil discharged in an average most
probable discharge or greater available at the facility within 2
hours of the detection of an oil discharge.
3.2.3 Oil storage capacity for recovered oily material
indicated in section 9.2 of this appendix.

4. Determining Response Resources Required for the Maximum Most
Probable Discharge

4.1 A facility owner or operator shall identify sufficient
response resources available, by contract or other approved means as
described in Sec. 154.1028(a), to respond to discharges up to the
maximum most probable discharge volume for that facility. This will
require response resources capable of containing and collecting up
to 1,200 barrels of oil or 10 percent of the worst case discharge,
whichever is less. All equipment identified must be designed to
operate in the applicable operating environment specified in Table 1
of this appendix.
4.2 Oil recovery devices identified to meet the applicable
maximum most probable discharge volume planning criteria must be
located such that they arrive on scene within 6 hours in higher
volume port areas (as defined in 154.1020) and the Great Lakes and
within 12 hours in all other areas.
4.3 Because rapid control, containment, and removal of oil is
critical to reduce spill impact, the effective daily recovery
capacity for oil recovery devices must equal 50 percent of the
planning volume applicable for the facility as determined in section
4.1 of this appendix. The effective daily recovery capacity for oil
recovery devices identified in the plan must be determined using the
criteria in section 6 of this appendix.
4.4 In addition to oil recovery capacity, the plan must
identify sufficient quantities of containment boom available, by
contract or other approved means as described in Sec. 154.1028(a),
to arrive within the required response times for oil collection and
containment and for protection of fish and wildlife and sensitive
environments. While the regulation does not set required quantities
of boom for oil collection and containment, the response plan must
identify and ensure, by contract or other approved means as
described in Sec. 154.1028(a), the availability of the boom
identified in the plan for this purpose.
4.5 The plan must indicate the availability of temporary
storage capacity to meet the guidelines of section 9.2 of this
appendix. If available storage capacity is insufficient to meet this
level, then the effective daily recovery capacity must be derated to
the limits of the available storage capacity.
4.6 The following is an example of a maximum most probable
discharge volume planning calculation for equipment identification
in a higher volume port area: The facility's worst case discharge
volume is 20,000 barrels. Ten percent of this is 2,000 barrels.
Since this is greater than 1,200 barrels, 1,200 barrels is used as
the planning volume. The effective daily recovery capacity must be
50 percent of this, or 600 barrels per day. The ability of oil
recovery devices to meet this capacity will be calculated using the
procedures in section 6 of this appendix. Temporary storage capacity
available on scene must equal twice the daily recovery rate as
indicated in section 9 of this appendix, or 1,200 barrels per day.
This is the information the facility owner or operator will use to
identify and ensure the availability of, through contract or other
approved means as described in Sec. 154.1028(a), the required
response resources. The facility owner will also need to identify
how much boom is available for use.

5. Determining Response Resources Required for the Worst Case
Discharge to the Maximum Extent Practicable

5.1 A facility owner or operator shall identify and ensure
availability of, by contract or other approved means, as described
in Sec. 154.1028(a), sufficient response resources to respond to the
worst case discharge of oil to the maximum extent practicable.
Section 7 of this appendix describes the method to determine the
required response resources.
5.2 Oil spill response resources identified in the response
plan and available through contract or other approved means, as
described in Sec. 154.1028(a), to meet the applicable worst case
discharge planning volume must be located such that they can arrive
at the scene of a discharge within the times specified for the
applicable response tiers listed in Sec. 154.1045.
5.3 The effective daily recovery capacity for oil recovery
devices identified in a response plan must be determined using the
criteria in section 6 of this appendix. A facility owner or operator
shall identify the storage locations of all response resources that
must be used to fulfill the requirements for each tier. The owner or
operator of a facility whose required daily recovery capacity
exceeds the applicable response capability caps in Table 5 of this
appendix shall identify sources of additional equipment, their
locations, and the arrangements made to obtain this equipment during
a response. The owner or operator of a facility whose calculated
planning volume exceeds the applicable contracting caps in Table 5
shall identify sources of additional equipment equal to twice the
cap listed in Tiers 1, 2, and 3 or the amount necessary to reach the
calculated planning volume, whichever is lower. The resources
identified above the cap must be capable of arriving on scene not
later than the Tiers 1, 2, and 3 response times in Sec. 154.1045. No
contract is required. While general listings of available response
equipment may be used to identify additional sources, a response
plan must identify the specific sources, locations, and quantities
of equipment that a facility owner or operator has considered in his
or her planning. When listing Coast Guard classified oil spill
removal organization(s) which have sufficient removal capacity to
recover the volume above the response capability cap for the
specific facility, as specified in Table 5 of this appendix, it is
not necessary to list specific quantities of equipment.
5.4 A facility owner or operator shall identify the
availability of temporary storage capacity to meet the requirements
of section 9.2 of this appendix. If available storage capacity is
insufficient to meet this requirement, then the effective daily
recovery capacity must be derated to the limits of the availabile
storage capacity.
5.5 When selecting response resources necessary to meet the
response plan requirements, the facility owner or operator must
ensure that a portion of those resources are capable of being used
in close-to-shore response activities in shallow water. The
following percentages of the on-water response equipment identified
for the applicable geographic area must be capable of operating in
waters of 6 feet or less depth:
(i) Offshore--10 percent
(ii) Nearshore/inland/Great Lakes/rivers and canals--20 percent.
5.6 In addition to oil spill recovery devices, a facility owner
or operator shall identify sufficient quantities of boom that are
available, by contract or other approved means as described in
Sec. 154.1028(a), to arrive on scene within the required response
times for oil containment and collection. The specific quantity of
boom required for collection and containment will depend on the
specific recovery equipment and strategies employed. A facility
owner or operator shall also identify sufficient quantities of oil
containment boom to protect fish and wildlife and sensitive
environments for the number of days and geographic areas specified
in Table 2. Sections 154.1035(b)(4)(iii) and 154.1040(a), as
appropriate, shall be used to determine the amount of containment
boom required, through contract or other approved means as described
in Sec. 154.1028(a), to protect fish and wildlife and sensitive
environments.
5.7 A facility owner or operator must also identify, through
contract or other approved means as described in Sec. 154.1028(a),
the availability of an oil spill removal organization capable of
responding to a shoreline cleanup operation involving the calculated
volume of oil and emulsified oil that might impact the affected
shoreline. The volume of oil that must be planned for is calculated
through the application of factors contained in Tables 2 and 3. The
volume

[[Page 7935]]
calculated from these tables is intended to assist the facility owner
or operator in identifying a contractor with sufficient resources
and expertise. This planning volume is not used explicitly to
determine a required amount of equipment and personnel.

6. Determining Effective Daily Recovery Capacity for Oil Recovery
Devices

6.1 Oil recovery devices identified by a facility owner or
operator must be identified by manufacturer, model, and effective
daily recovery capacity. These rates must be used to determine
whether there is sufficient capacity to meet the applicable planning
critieria for the average most probable discharge, maximum most
probable discharge, and worst case discharge to the maximum extent
practicable.
6.2 For the purpose of determining the effective daily recovery
capacity of oil recovery devices, the formula listed in section
6.2.1 of this appendix will be used. This method considers potential
limitations due to available daylight, weather, sea state, and
percentage of emulsified oil in the recovered material. The Coast
Guard may assign a lower efficiency factor to equipment listed in a
response plan if it determines that such a reduction is warranted.
6.2.1 The following formula must be used to calculate the
effective daily recovery capacity:

R=T x 24 hours x E

R=Effective daily recovery capacity
T=Throughout rate in barrels per hour (nameplate capacity)
E=20 percent Efficiency factor (or lower factor as determined by
Coast Guard)

6.2.2 For those devices in which the pump limits the throughput
of liquid, throughput rate will be calculated using the pump
capacity.
6.2.3 For belt or mop type devices, the throughput rate will be
calculated using the speed of the belt or mop through the device,
assumed thickness of oil adhering to or collected by the device, and
surface area of the belt or mop. For purposes of this calculation,
the assumed thickness of oil will be 1/4 inch.
6.2.4 Facility owners or operators including oil recovery
devices whose throughput is not measurable using a pump capacity or
belt/mop speed may provide information to support an alternative
method of calculation. This information must be submitted following
the procedures in paragraph 6.3.2 of this appendix.
6.3 As an alternative to 6.2, a facility owner or operator may
submit adequate evidence that a different effective daily recovery
capacity should be applied for a specific oil recovery device.
Adequate evidence is actual verified performance data in spill
conditions or tests using ASTM F 631, ASTM F 808, or an equivalent
test approved by the Coast Guard.
6.3.1 The following formula must be used to calculate the
effective daily recovery capacity under this alternative:

R=D x U

R=Effective daily recovery capacity
D=Average Oil Recovery Rate in barrels per hour (Item 26 in ASTM F
808; Item 13.1.15 in ASTM F 631; or actual performance data)
U=Hours per day that a facility owner or operator can document
capability to operate equipment under spill conditions. Ten hours
per day must be used unless a facility owner or operator can
demonstrate that the recovery operation can be sustained for longer
periods.

6.3.2 A facility owner or operator proposing a different
effective daily recovery rate for use in a response plan shall
provide data for the oil recovery devices listed. The following is
an example of these calculations:
A weir skimmer identified in a response plan has a
manufacturer's rated throughput at the pump of 267 gallons per
minute (gpm).

267 gpm=381 barrels per hour
R=381 x 24 x .2=1829 barrels per day

After testing using ASTM procedures, the skimmer's oil recovery
rate is determined to be 220 gpm. The facility owner of operator
identifies sufficient response resources available to support
operations 12 hours per day.

220 gpm=314 barrels per hour
R=314 x 12=3768 barrels per day

The facility owner or operator will be able to use the higher
rate if sufficient temporary oil storage capacity is available.
Determinations of alternative efficiency factors under paragraph 6.2
or alternative effective daily recovery capacities under paragraph
6.3 of this appendix will be made by Commandant, (G-MEP-6), Coast
Guard Headquarters, 2100 Second Street SW., Washington, DC 20593.
Response contractors or equipment manufacturers may submit required
information on behalf of multiple facility owners or operators
directly in lieu of including the request with the response plan
submission.

7. Calculating the Worst Case Discharge Planning Volumes

7.1 The facility owner or operator shall plan for a response to
a facility's worst case discharge. The planning for on-water
recovery must take into account a loss of some oil to the
environment due to evaporative and natural dissipation, potential
increases in volume due to emulsification, and the potential for
deposit of some oil on the shoreline.
7.2 The following procedures must be used to calculate the
planning volume used by a facility owner or operator for determining
required on water recovery capacity:
7.2.1 The following must be determined: The worst case
discharge volume of oil in the facility; the appropriate group(s)
for the type of oil handled, stored, or transported at the facility
(non-persistent (Group I) or persistent (Groups II, III, or IV));
and the facility's specific operating area. Facilities which handle,
store, or transport oil from different petroleum oil groups must
calculate each group separately. This information is to be used with
Table 2 of this appendix to determine the percentages of the total
volume to be used for removal capacity planning. This table divides
the volume into three categories: Oil lost to the environment; oil
deposited on the shoreline; and oil available for on-water recovery.
7.2.2 The on-water oil recovery volume must be adjusted using
the appropriate emulsification factor found in Table 3 of this
appendix. Facilities which handle, store, or transport oil from
different petroleum groups must assume that the oil group resulting
in the largest on-water recovery volume will be stored in the tank
or tanks identified as constituting the worst case discharge.
7.2.3 The adjusted volume is multiplied by the on-water oil
recovery resource mobilization favor found in Table 4 of this
appendix from the appropriate operating area and response tier to
determine the total on-water oil recovery capacity in barrels per
day that must be identified or contracted for to arrive on-scene
with the applicable time for each response tier. Three tiers are
specified. For higher volume port areas, the contracted tiers of
resources must be located such that they can arrive on scene within
6, 30, and 54 hours of the discovery of an oil discharge. For all
other river, inland, nearshore, offshore areas, and the Great Lakes,
these tiers are 12, 36, and 60 hours.
7.2.4 The resulting on-water recovery capacity in barrels per
day for each tier must be used to identify response resources
necessary to sustain operations in the applicable operating area.
The equipment must be capable of sustaining operations for the time
period specified in Table 2 of this appendix. The facility owner or
operator must identify and ensure the availability, through contract
or other approved means as described in Sec. 154.1028(a), of
sufficient oil spill recovery devices to provide the effective daily
recovery oil recovery capacity required. If the required capacity
exceeds the applicable cap specified in Table 5 of this appendix,
then a facility owner or operator shall ensure, by contract or other
approved means as described in Sec. 154.1028(a), only for the
quantity of resources required to meet the cap, but shall identify
sources of additional resources as indicated in Sec. 154.1045(m).
The owner or operator of a facility whose planning volume exceeds
the cap for 1993 must make arrangements to identify and ensure the
availability, through contract or other approved means as described
in Sec. 154.1028(a), of the additional capacity in 1998 or 2003, as
appropriate. For a facility that handles, stores, or transports
multiple groups of oil, the required effective daily recovery
capacity for each group is calculated before applying the cap.
7.3 The following procedures must be used to calculate the
planning volume for identifying shoreline cleanup capacity:
7.3.1 The following must be determined: The worst case
discharge volume of oil for the facility; the appropriate group(s)
for the type of oil handled, stored, or transported at the facility
(non-persistent (Group I) or persistent (Groups II, III, or IV));
and the operating area(s) in which the facility operates. For a
facility storing oil from different groups, each group must be
calculated separately. Using this information, Table 2 of this
appendix must be used to determine the percentages of the total

[[Page 7936]]
planning volume to be used for shoreline cleanup resource planning.
7.3.2 The shoreline cleanup planning volume must be adjusted to
reflect an emulsification factor using the same procedure as
described in section 7.2.2.
7.3.3 The resulting volume will be used to identify an oil
spill removal organization with the appropriate shoreline cleanup
capability.
7.3.4 The following is an example of the procedure described
above: A facility receives oil from barges via a dock located on a bay
and transported by piping to storage tanks. The facility handles Number
6 oil (specific gravity .96) and stores the oil in tanks where it is
held prior to being burned in an electric generating plant. The MTR
segment of the facility has six 18-inch diameter pipelines running one
mile from the dock-side manifold to several storage tanks which are
located in the non-transportation-related portion of the facility.
Although the facility piping has a normal working pressure of 100
pounds per square inch, the piping has a maximum allowable working
pressure (MAWP) of 150 pounds per square inch. At MAWP, the pumping
system can move 10,000 barrels (bbls) of Number 6 oil every hour
through each pipeline. The facility has a roving watchman who is
required to drive the length of the piping every 2 hours when the
facility is receiving oil from a barge. The facility operator estimates
that it will take approximately 10 minutes to secure pumping operations
when a discharge is discovered. Using the definition of worst case
discharge provided in Sec. 154.1029(b)(ii), the following calculation
is provided:

bbls.

2 hrs + 0.17 hour x 10,000 bbls per hour.................... 21,700
Piping volume = 37,322 ft \3\ 5.6 ft \3\/bbl......... +6,664
---------
Discharge volume per pipe..................................... 28,364
Number of pipelines........................................... x 6
---------
Worst case discharge from MTR facility........................ 170,184

To calculate the planning volumes for onshore recovery:

Worst case discharge: 170,184 bbls. Group IV oil
Emulsification factor (from Table 3): 1.4
Operating Area impacted: Inland
Planned percent oil onshore recovery (from Table 2): Inland 70%
Planning volumes for onshore recovery: Inland 170,184 x .7 x 1.4
= 166,780 bbls.

Conclusion: The facility owner or operator must contract with a
response resource capable of managing a 166,780 barrel shoreline
cleanup.
To calculate the planning volumes for on-water recovery:

Worst case discharge: 170,184 bbls. Group IV oil
Emulsification factor (from Table 3): 1.4
Operating Area impacted: Inland
Planned percent oil on-water recovery (from Table 2): Inland 50%
Planning volumes for on-water recovery: Inland 170,184 x .5 x
1.4 = 119,128 bbls.

To determine the required resources for on-water recovery for
each tier, use the mobilization factors from Table 4:

------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
------------------------------------------------------------------------
Inland = 119,128 bbls........................ x .1
5 x .2
5 x .4
0
--------------------------
Barrels per day (pbd)........................ 17,869 29,782 47,652
------------------------------------------------------------------------

Conclusion: Since the requirements for all tiers for inland
exceed the caps, the facility owner will only need to contract for
10,000 bpd for Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd for
Tier 3. Sources for the bpd on-water recovery resources above the
caps for all three Tiers need only be identified in the response
plan.
Twenty percent of the capability for Inland, for all tiers, must
be capable of operating in water with a depth of 6 feet or less.
The facility owner or operator will also be required to identify
or ensure, by contract or other approved means as described in
Sec. 154.1028(a), sufficient response resources required under
Secs. 154.1035(b)(4) and 154.1045(k) to protect fish and wildlife
and sensitive environments identified in the response plan for the
worst case discharge from the facility.
The COTP has the discretion to accept that a facility can
operate only a limited number of the total pipelines at a dock at a
time. In those circumstances, the worst case discharge must include
the drainage volume from the piping normally not in use in addition
to the drainage volume and volume of oil discharged during discovery
and shut down of the oil discharge from the operating piping.

8. Determining the Availability of Alternative Response Methods

8.1 Response plans for facilities that handle, store, or
transport Groups II or III persistent oils that operate in an area
with year-round preapproval for dispersant use may receive credit
for up to 25 percent of their required on-water recovery capacity
for 1993 if the availability of these resources is ensured by
contract or other approved means as described in Sec. 154.1028(a).
For response plan credit, these resources must be capable of being
on-scene within 12 hours of a discharge.
8.2 To receive credit against any required on-water recover
capacity a response plan must identify the locations of dispersant
stockpiles, methods of shipping to a staging area, and appropriate
aircraft, vessels, or facilities to apply the dispersant and monitor
its effectiveness at the scene of an oil discharge.
8.2.1 Sufficient volumes of dispersants must be available to
treat the oil at the dosage rate recommended by the dispersant
manufacturer. Dispersants identified in a response plan must be on
the NCP Product Schedule that is maintained by the Environmental
Protection Agency. (Some states have a list of approved dispersants
and within state waters only they can be used.)
8.2.2 Dispersant application equipment identified in a response
plan for credit must be located where it can be mobilized to
shoreside staging areas to meet the time requirements in section 8.1
of this appendix. Sufficient equipment capacity and sources of
appropriate dispersants should be identified to sustain dispersant
application operations for at least 3 days.
8.2.3 Credit against on-water recovery capacity in preapproved
areas will be based on the ability to treat oil at a rate equivalent
to this credit. For example, a 2,500 barrel credit against the Tier
1 10,000 barrel on-water cap would require the facility owner or
operator to demonstrate the ability to treat 2,500 barrel/day of oil
at the manufacturers recommended dosage rate. Assuming a dosage rate
of 10:1, the plan would need to show stockpiles and sources of 250
barrels of dispersants at a rate of 250 barrels per day and the
ability to apply the dispersant at that daily rate for 3 days in the
geographic area in which the facility is located. Similar data would
need to be provided for any additional credit against Tier 2 and 3
resources.
8.3 In addition to the equipment and supplies required, a
facility owner or operator shall 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 response 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 NCP and the applicable
regional plan or ACP. A facility owner or operator who operates a
facility in areas with year-round preapproval of dispersant can
reduce the required on-water recovery capacity for 1993 up to 25
percent. A facility owner or operator may reduce the required on
water recovery cap increase for 1998 and 2003 up to 50 percent by
identifying pre-approved alternative response methods.
8.5 In addition to the credit identified above, a facility
owner or operator that operates in a year-round area pre-approved
for dispersant use may reduce their required on water recovery cap
increase for 1998 and 2003 by up to 50 percent by identifying non-
mechanical methods.
8.6 The use of in-situ burning as a non-mechanical response
method is still being studied. Because limitations and uncertainties
remain for the use of this method, it may not be used to reduce
required oil recovery capacity in 1993.

9. Additional Equipment Necessary to Sustain Response Operations

9.1 A facility owner or operator is responsible for ensuring
that sufficient numbers of trained personnel and boats, aerial
spotting aircraft, containment boom, sorbent materials, boom
anchoring materials, and other supplies are available to sustain

[[Page 7937]]
response operations to completion. All such equipment must be suitable
for use with the primary equipment identified in the response plan.
A facility owner or operator is not required to list these response
resources, but shall certify their availability.
9.2 A facility owner or operator shall evaluate the
availability of adequate temporary storage capacity to sustain the
effective daily recovery capacities from equipment identified in the
plan. Because of the inefficiencies of oil spill recovery devices,
response plans must identify daily storage capacity equivalent to
twice the effective daily recovery rate required on scene. This
temporary storage capacity may be reduced if a facility owner or
operator can demonstrate by waste stream analysis that the
efficiencies of the oil recovery devices, ability to decant waste,
or the availability of alternative temporary storage or disposal
locations will reduce the overall volume of oily material storage
requirement.
9.3 A facility owner or operator shall ensure that his or her
planning includes the capability to arrange for disposal of
recovered oil products. Specific disposal procedures will be
addressed in the applicable ACP.

Table 1.--Response Resource Operating Criteria Oil Recovery Devices

Operating environment Significant wave height \1\ Sea State
Rivers and Canals............................ 1 Foot................................... 1
Inland....................................... 3 feet................................... 2
Great Lakes.................................. 4 feet................................... 2-3
Ocean........................................ 6 feet................................... 3-4
BOOM

----------------------------------------------------------------------------------------------------------------
Use
-------------------------------------------------------
Boom property Rivers and
canals Inland Great Lakes Ocean
----------------------------------------------------------------------------------------------------------------
Significant Wave Height \1\............................. 1 3 4 6
Sea State............................................... 1 2 2-3 3-4
Boom height--in. (draft plus freeboard)................. 6-18 18-42 18-42 4
2
Reserve Buoyancy to Weight Ratio........................ 2:1 2:1 2:1 3:1 to 4:1
Total Tensile Strength--lbs............................. 4,500 15-20,000 15-20,000 2
0,000
Skirt Fabric Tensile Strength--lbs...................... 200 300 300 500
Skirt Fabric Tear Strength--lbs......................... 100 100 100 125
----------------------------------------------------------------------------------------------------------------
\1\ Oil recovery devices and boom must be at least capable of operating in wave heights up to and including the
values listed in Table 1 for each operating environment.

Table 2.--Removal Capacity Planning Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spill location Rivers and canals Nearshore/inland Great Lakes Offshore
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sustainability of on-water oil recovery 3 Days 4 Days 6 Days
--------------------------------------------------------------------------------------------------------------------------------------------------------
% % %
% Natural Recovered % Oil on % Natural Recovered % Oil on % Natural Recovered % Oil on
Oil group dissipation floating shore dissipation floating shore dissipation floating shore
oil oil oil
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Non-persistent oils............................ 80 10 10 80 20 10 95 5 /
2 Light crudes................................... 40 15 45 50 50 30 75 25 5
3 Medium crudes and fuels........................ 20 15 65 30 50 50 60 40 20
4 Heavy crudes and fuels......................... 5 20 75 10 50 70 50 40 30
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 3.--Emulsification Factors for Petroleum Oil Groups
------------------------------------------------------------------------

------------------------------------------------------------------------
Non-Persistent Oil:
Group I........................................................ 1.0
Persistent Oil:
Group II....................................................... 1.8
Group III...................................................... 2.0
Group IV....................................................... 1.4
------------------------------------------------------------------------

Table 4.--On Water Oil Recovery Resource Mobilization Factors
------------------------------------------------------------------------
Tier Tier Tier
Operating Area 1 2 3
------------------------------------------------------------------------
Rivers & Canals.................................... .30 .40 .60
Inland/Nearshore/Great Lakes....................... .15 .25 .40
Offshore........................................... .10 .165 .21
------------------------------------------------------------------------
Note: These mobilization factors are for total response resources
mobilized, not incremental response resources.

Table 5.--Response Capability Caps by Operating Area
----------------------------------------------------------------------------------------------------------------
Tier 1 Tier 2 Tier 3
----------------------------------------------------------------------------------------------------------------
February 18, 1993:
All except rivers and 10K bbls/day............. 20K bbls/day............. 40K bbls/day/
canals, Great Lakes.
Great Lakes................ 5K bbls/day.............. 10K bbls/day............. 20K bbls/day.
Rivers and canals.......... 1,500 bbls/day........... 3,000 bbls/day........... 6,000 bbls/day.
February 18, 1998:
All except rivers and 12.5K bbls/day........... 25K bbls/day............. 50K bbls/day.
canals, Great Lakes.

[[Page 7938]]

Great Lakes................ 6.35K bbls/day........... 12.3K bbls/day........... 25K bbls/day.
Rivers and canals.......... 1,875 bbls/day........... 3,750 bbls/day........... 7,500 bbls/day.
February 18, 2003:
All except rivers and TBD...................... TBD...................... TBD.
canals, Great Lakes.
Great Lakes................ TBD...................... TBD...................... TBD.
Rivers and canals.......... TBD...................... TBD...................... TBD.
----------------------------------------------------------------------------------------------------------------
Note: The caps show cumulative overall effective daily recovery capacity, not incremental increases.
TBD = To be determined.

7. Appendix D is revised to read as follows:

Appendix D--Training Elements for Oil Spill Response Plans

1. General

1.1 The portion of the plan dealing with training is one of the
key elements of a response plan. This concept is clearly expressed
by the fact that Congress, in writing OPA 90, specifically included
training as one of the sections required in a vessel or facility
response plan. In reviewing submitted response plans, it has been
noted that the plans often do not provide sufficient information in
the training section of the plan for either the user or the reviewer
of the plan. In some cases, plans simply state that the crew and
others will be trained in their duties and responsibilities, with no
other information being provided. In other plans, information is
simply given that required parties will receive the necessary worker
safety training (HAZWOPER).
1.2 The training section of the plan need not be a detailed
course syllabus, but it must contain sufficient information to allow
the user and reviewer (or evaluator) to have an understanding of
those areas that are believed to be critical. Plans should identify
key skill areas and the training that is required to ensure that the
individual identified will be capable of performing the duties
prescribed to them. It should also describe how the training will be
delivered to the various personnel. Further, this section of the
plan must work in harmony with those sections of the plan dealing
with exercises, the spill management team, and the qualified
individual.
1.3 The material in this appendix D is not all-inclusive and is
provided for guidance only.

2. Elements To Be Addressed

2.1 To assist in the preparation of the training section of a
facility response plan, some of the key elements that should be
addressed are indicated in the following sections. Again, while it
is not necessary that the comprehensive training program for the
company be included in the response plan, it is necessary for the
plan to convey the elements that define the program as appropriate.
2.2 An effective spill response training program should
consider and address the following:
2.2.1 Notification requirements and procedures.
2.2.2 Communication system(s) used for the notifications.
2.2.3 Procedures to mitigate or prevent any discharge or a
substantial threat of a discharge of oil resulting from failure of
manifold, mechanical loading arm, or other transfer equipment or
hoses, as appropriate;
2.2.3.1 Tank overfill;
2.2.3.2 Tank rupture;
2.2.3.3 Piping rupture;
2.2.3.4 Piping leak, both under pressure and not under
pressure, if applicable;
2.2.3.5 Explosion or fire;
2.2.3.6 Equipment failure (e.g., pumping system failure, relief
valve failure, or other general equipment relevant to operational
activities associated with internal or external facility transfers).
2.2.4 Procedures for transferring responsibility for direction
of response activities from facility personnel to the spill
management team.
2.2.5 Familiarity with the operational capabilities of the
contracted oil spill removal organizations and the procedures to
notify the activate such organizations.
2.2.6 Familiarity with the contracting and ordering procedures
to acquire oil spill removal organization resources.
2.2.7 Familiarity with the ACP(s).
2.2.8 Familiarity with the organizational structures that will
be used to manage the response actions.
2.2.9 Responsibilities and duties of the spill management team
members in accordance with designated job responsibilities.
2.2.10 Responsibilities and authority of the qualified
individual as described in the facility response plan and company
response organization.
2.2.11 Responsibilities of designated individuals to initiate a
response and supervise response resources.
2.2.12 Actions to take, in accordance with designated job
responsibilities, in the event of a transfer system leak, tank
overflow, or suspected cargo tank or hull leak.
2.2.13 Information on the cargoes handled by the vessel or
facility, including familiarity with--
2.2.13.1 Cargo material safety data sheets;
2.2.13.2 Chemical characteristic of the cargo;
2.2.13.3 Special handling procedures for the cargo;
2.2.13.4 Health and safety hazards associated with the cargo;
and
2.2.13.5 Spill and firefighting procedures for cargo.
2.2.14 Occupational Safety and Health Administration
requirements for worker health and safety (29 CFR 1910.120).

3. Further Considerations

In drafting the training section of the facility response plan,
some further considerations are noted below (these points are raised
simply as a reminder):
3.1 The training program should focus on training provided to
facility personnel.
3.2 An organization is comprised of individuals, and a training
program should be structured to recognize this fact by ensuring that
training is tailored to the needs of the individuals involved in the
program.
3.3 An owner or operator may identify equivalent work
experience which fulfills specific training requirements.
3.4 The training program should include participation in
periodic announced and unannounced exercises. This participation
should approximate the actual roles and responsibilities of
individual specified in the plan.
3.5 Training should be conducted periodically to reinforce the
required knowledge and to ensure an adequate degree of preparedness
by individuals with responsibilities under the facility response
plan.
3.6 Training may be delivered via a number of different means;
including classroom sessions, group discussions, video tapes, self-
study workbooks, resident training courses, on-the-job training, or
other means as deemed appropriate to ensure proper instruction.
3.7 New employees should complete the training program prior to
being assigned job responsibilities which require participation in
emergency response situations.

4. Conclusion

The information in this appendix is only intended to assist
response plan preparers in reviewing the content of and in modifying
the training section of their response plans. It may be more
comprehensive than is needed for some facilities and not
comprehensive enough for others. The Coast Guard expects that plan
preparers have determined the training needs of their organizations
created by the development of the response plans and the actions
identified as necessary to increase the preparedness of the company
and its personnel to respond to actual or threatened discharges of
oil from their facilities.

[[Page 7939]]

Dated: February 15, 1996.
A.E. Henn,
Vice Admiral, U.S. Coast Guard, Acting Commandant.
[FR Doc. 96-4274 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-14-M

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Document Information

Effective Date:: 5/29/1996
Published:: 02/29/1996
Department:: Coast Guard
Entry Type:: Rule
Action:: Final rule.
Document Number:: 96-4274
Dates:: May 29, 1996.
Pages:: 7890-7939 (50 pages)
Docket Numbers:: CGD 91-036
RINs:: 2115-AD82: Facility Response Plans (CGD 91-036)
RIN Links:: https://www.federalregister.gov/regulations/2115-AD82/facility-response-plans-cgd-91-036-
PDF File:: 96-4274.pdf
CFR: (175): 33 CFR 154.100(a); 33 CFR 154.1029(a)(2); 33 CFR 154.1065(a); 33 CFR 154.1035(a); 33 CFR 154.1055(a)(3); More ...