2011-3568. Tank Vessel and Marine Transportation-Related Facility Response Plans for Hazardous Substances

AGENCY:

Coast Guard, DHS.

ACTION:

Proposed rules; reopening of comment period.

SUMMARY:

The Coast Guard is reopening the comment periods on two proposed rules before issuing final rules regarding Tank Vessel Response Plans for Hazardous Substances (USCG-1998-4354) and Marine Transportation-Related Facility Response Plans for Hazardous Substances (USCG-1999-5705). The Coast Guard previously published two notices of proposed rulemaking (NPRMs) proposing to require response plans for certain tank vessels operating on the navigable waters of the United States, as well as marine transportation-related facilities, that could reasonably be expected to cause substantial harm to the environment by discharging a hazardous substance. The proposed regulations were published to implement the requirements put into place by the Oil Pollution Act of 1990, but were never published as final rules. Because of the lapse in time since the NPRM publications, the Coast Guard is reopening the comment period to allow for any additional or updated comments from the public before publishing the final rules.

DATES:

Comments and related material must either be submitted to the appropriate online docket via http://www.regulations.gov on or before May 18, 2011 or reach the Docket Management Facility by that date.

ADDRESSES:

You may submit comments identified by docket number USCG-1998-4354 and/or USCG-1999-5705 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. Please submit comments to the appropriate docket; if your comments apply to both proposed rules, please submit them to both dockets.

Viewing incorporation by reference material: You may inspect the material proposed for incorporation by reference at room 2100, U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001 between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-267-6716. Copies of the material are available as indicated in the “Incorporation by Reference” section of this preamble.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail Raymond Martin, Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

A. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-1998-4354 and/or USCG-1999-5705), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov,, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-1998-4354” or “USCG-1999-5705” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

B. Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-1998-4354” or “USCG-1999-5705” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

C. Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

D. Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one to either docket using one of the methods specified under ADDRESSES. In your request, explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

II. Background

The Clean Water Act (CWA), as amended by section 4202(a)(6) of the Oil Pollution Act of 1990 (OPA 90), requires owners or operators of tank vessels, offshore facilities, and onshore facilities to prepare response plans to mitigate spills of both oils and hazardous substances. Specifically, it requires the owners and operators of those vessels and facilities that could reasonably be expected to cause substantial or significant and substantial harm to the environment to prepare and submit response plans. These plans must address measures to respond, to the maximum extent practicable, to a worst-case discharge or a substantial threat of such a discharge, of oil or a hazardous substance into or on navigable waters, adjoining shorelines, or the exclusive economic zone of the United States. The primary purpose of requiring response plans is to minimize impact of a discharge of oil or hazardous substances into the navigable waters of the United States.

In response to the Congressional statute, the Coast Guard promulgated several rules regarding response plans for oil spills. The Final Rule for oil spill response plans for vessels was published on January 12, 1996 (61 FR 1052), and the rule for facilities followed on February 29, 1996 (61 FR 7890).

In addition to publication of oil spill response plan regulations, we published proposals regarding response plans for hazardous substances. On May 3, 1996, we published an ANRPM addressing vessel and facility response plans (61 FR 20084). The ANPRM discussed the background, statutory requirements, and possible regulatory approaches to developing plans for hazardous substance releases. It also posed 96 questions, and the Coast Guard Received 42 comment letters replying to the ANPRM.

The Coast Guard gathered additional information to formulate hazardous substance response plans from the public during public meetings and a response plan workshop. We conducted two public meetings on July 30, 1996, in Washington, DC, and August 5, 1996, in Houston, TX. The Coast Guard held a workshop and meeting in Houston, TX to engage various stakeholders in issues that had been identified as significant in response to the ANPRM. The workshop focused on four specific issues identified in advance: (1) The role and contents of first responders' guides; (2) the role and capabilities of decision support systems; (3) chemical removal technology; and (4) public responder versus private responder issues.

Finally, the Coast Guard received recommendations from advisory committees. Under the auspices of the Chemical Transportation Advisory Committee (CTAC), the Hazardous Substances Response Plan Subcommittee was formed to develop and recommend hazardous substance response plan criteria for the agency's consideration in developing requirements for response plans. The subcommittee formed working groups to address the various aspects of response planning: Fate and effects, response resources and methodology, and planning process. Based on the work done by these groups, the subcommittee delivered a report containing findings and recommendations, which was considered by the Coast Guard in developing its proposed regulations.

Based on the comments provided to the Coast Guard from the sources listed above, we published two separate NPRMs proposing to require hazardous substance response plans for tank vessels and marine transportation-related facilities on March 22, 1999 and March 31, 2000, respectively (64 FR 13734 and 65 FR 17416). The intent of the proposed regulations was to ensure access to the necessary information and equipment during a response to a spill of hazardous substances, as well as to ensure the availability of appropriate technical expertise as necessary. The proposed requirements allowed for flexibility in determining how to respond to a particular spill, given that the disparate nature of spills of hazardous substances do not lend themselves to standardized procedures, unlike the comparatively standardized procedures for oil spill responses.

The premise of the proposed regulations is that, through an analysis of the required information by area specialists, the most appropriate response strategies for dealing with a particular spill could be identified and performed. Furthermore, the proposed regulations were intended to accommodate the use of the National Response Team's Integrated Contingency Plan (ICP) Guidance, published in the Federal Register on June 5, 1996 (61 FR 28642). This guidance provided a mechanism for consolidating multiple plans into one functional emergency response plan, minimizing or eliminating duplication of information. In addition, the proposed regulations allowed plans to be structured in such a way that oil response plans for tank vessels and facilities could be amended or augmented to meet the requirements for hazardous substances.

At this time, we believe that the proposed regulations provide a basis to develop strong, flexible plans to address spills of hazardous substances. The proposals also encourage plans that make use of industry best practices and comply with international standards. We encourage readers to refer to the published NPRMs and their supporting documents for a more complete discussion of the proposed regulations.

III. Discussion

In the Coast Guard Authorization Act of 2010 (Pub. L. 111-281), Congress mandated that the agency promulgate final rules pursuant to section 311 of the CWA within 18 months. Despite publishing proposals for hazardous substance response plans in 1999 and 2000, the Coast Guard has not yet issued final rules on this issue. However, in accordance with the legislative mandate, we are planning to publish final rules based on these proposals within the required timeframe. The final rules will consider all of the comments received in the course of this rulemaking action, both written and presented in public meetings.

In this notice, the Coast Guard is reopening the comment period for the NPRMs on hazardous substance response plans for tank vessels and marine transportation-related facilities. At this time, we are not yet responding to comments received in response to the NPRMs, nor are we changing the proposals in any way. Due to the length of time that has elapsed since the publication of the proposed rules, we are reopening the comment period to solicit additional or updated comments regarding the proposed hazardous substance response plan regulations. Such information may relate to changed market conditions, industry practices, improvements in technology, or any other matter addressed by the proposed regulations.

One issue on which we are specifically not requesting comments at this time is the expansion of the requirement for response plans to noxious liquid substances not covered by 40 CFR part 116. In Section 701 of the Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-219), Congress amended the CWA by adding paragraph (B) to 33 U.S.C. 1321(j)(5), which authorized the Coast Guard to require response plans for noxious liquid substances not covered under other regulations. However, because the agency is required to publish a final rule by April of 2012, we will not be able to incorporate those chemicals into the current response plan proposals. The agency is closely studying the matter and intends to propose regulations in the future regarding those additional chemicals.

IV. Incorporation by Reference

Material proposed for incorporation by reference appears in § 155.3035 of the proposed text. You may inspect this material at U.S. Coast Guard Headquarters where indicated under ADDRESSES. Copies of the material are available from the sources listed in § 155.140.

Dated: February 11, 2011.

J.G. Lantz,

Director of Commercial Regulations and Standards, U.S. Coast Guard.