Vessel Response Plans

SUMMARY: The Coast Guard is adopting with some changes, as final, the

interim final rule which establishes regulations requiring response

plans for certain vessels that carry oil in bulk as cargo and

additional requirements for certain vessels operating in Prince William

Sound, Alaska. 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 vessel response plans is to

enhance private sector planning and response capabilities to minimize

the impact of spilled oil.

EFFECTIVE DATE: April 11, 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), 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 Mark Hamilton, Project Manager, Response Division, (202) 267-1983.

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 Marcia

Landman, Project Manager, and Jacqueline Sullivan, Project Counsel,

Office of the Chief Counsel.

Regulatory History

On August 30, 1991, the Coast Guard published an advance notice of

proposed rulemaking (ANPRM) entitled Vessel Response Plans and Carriage

and Inspection of Discharge-Removal Equipment in the Federal Register

(56 FR 43534). The Coast Guard received 172 letters commenting on the

proposal.

On November 14, 1991, the Coast Guard held a public workshop in

Washington, DC, concerning the development of proposed regulations for

vessel response plans. A total of 196 persons participated in the

workshop.

On November 18, 1991, the Coast Guard published a Notice of Intent

to Form a Negotiated Rulemaking Committee in the Federal Register (56

FR 58202). On January 10, 1992, the Coast Guard published a notice in

the Federal Register announcing the establishment of the Oil Spill

Response Plan Negotiated Rulemaking Committee (the Committee) (57 FR

1139). Twenty-six organizations and the Coast Guard were members of the

Committee. The Committee met between January 8 and March 27, 1992.

Copies of the Committee's final report and all documents considered by

the Committee are available in the public docket where indicated under

ADDRESSES.

On June 19, 1992, the Coast Guard published a notice of proposed

rulemaking (NPRM) entitled ``Vessel Response Plans'' in the Federal

Register (57 FR 27514). A correction notice concerning portions of the

NPRM was published on July 1, 1992 in the Federal Register (57 FR

29354). The Coast Guard received 246 letters commenting on the

proposal. Additional comments were received after the close of the

comment period. They were considered in developing the interim final

rule (IFR).

The Oil Spill Response Plan Negotiated Rulemaking Committee

reconvened August 18-20, 1992, after the close of the public comment

period on the NPRM, to review the comments received on its

recommendations. The Committee did not amend its final report. All

documents considered by the Committee during the final meeting are

available in the public docket where indicated under ADDRESSES.

The Coast Guard released Navigation and Vessel Inspection Circular

(NVIC) No. 8-92 on September 15, 1992. Change 1 to NVIC No. 8-92 was

released on December 4, 1992. NVIC No. 8-92 and Change 1 to it provided

immediate guidance to the marine industry for preparing response plans

covering certain vessels 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 ``Vessel Response Plans'' in the Federal Register

(58 FR 7424). The Coast Guard received 68 letters commenting on the

IFR. These comments were considered in developing this final rule.

Background and Purpose

Section 311(j)(5) of the Federal Water Pollution Control Act

(FWPCA) (33 U.S.C. 1321(j)(5)), as amended by section 4202 of OPA 90,

requires the owner or operator of a facility, or a tank vessel as

defined under 46 U.S.C. 2101, to prepare and submit to the President a

plan for responding, to the maximum extent practicable, to a worst case

discharge, and to a substantial threat of such a discharge, of oil or a

hazardous substance. The worst case discharge for a vessel is defined

in section 311(a)(24) of the FWPCA as the loss of the entire cargo in

adverse weather conditions (33 U.S.C. 1321(a)(24)).

Oil spill response plan regulations for marine transportation-

related onshore facilities are the subject of a separate rulemaking

project (CGD 91-036).

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

[Tank Vessel and Facility Response Plans, and Discharge Response

Equipment for Hazardous Substances; CGD 94-032 and 94-048].

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 turpentine and the various

animal fats (e.g., tallow lard, etc.) and vegetable oils (e.g., corn

oil, sunflower seed oil, palm oil, etc.) are included within the ambit

of this regulation when carried in bulk as cargo by tank vessels.

The vessel response plan requirements are applicable to all vessels

certificated under 46 CFR chapter 1, subchapter D, vessels that are

required to have a Certificate of Compliance or Tank Vessel Examination

Letter, other certificated vessels that are permitted to carry limited

quantities of oil, and uninspected vessels that carry oil in bulk as

cargo or cargo residue. The requirements are also applicable to vessels

carrying oil in bulk as cargo or cargo residue pursuant to an

International Oil Pollution Prevention (IOPP) or Noxious Liquid

Substance (NLS) certificate required by 33 CFR 151.33 or 151.35, and

dedicated response vessels carrying oil in bulk as cargo or cargo

residue when not engaged in response operations. The Coast Guard

Authorization Act of 1992 (Pub. L. 102-587, November 4, 1992) removed

offshore supply vessels, and certain fishing or fish tender vessels

from the definition of ``tank vessels''; therefore, those vessels do

not fall under the FWPCA's vessel response plan requirements.

[[Page 1053]]

Section 5005 of OPA 90 sets additional oil spill removal planning

requirements for tank vessels and facilities operating on Prince

William Sound (PWS), Alaska. On October 5, 1992, section 5005 was

amended by the Department of Transportation Appropriations Act (Pub. L.

102-388, 106 Stat. 1520). The only vessels to which the enhanced

requirements of section 5005 now apply are tankers loading cargo at a

facility permitted under the Trans-Alaska Pipeline Authorization Act

(TAPAA) (43 U.S.C. 1651 et seq.).

Section 311(j)(5)(C) of the FWPCA requires that response plans

must--

(1) Be consistent with the requirements of the National Oil and

Hazardous Substances Pollution Contingency Plan (NCP) (40 CFR part 300)

and Area Contingency Plans (ACPs);

(2) Identify the qualified individual with full authority to

implement removal actions, and require immediate communications between

that individual and the appropriate Federal official and the oil spill

removal organizations providing personnel and equipment;

(3) Identify and ensure the availability of, by contract or other

approved means, private personnel and equipment necessary to remove to

the maximum extent practicable a worst case discharge and to mitigate

or prevent a substantial threat of such a discharge;

(4) Describe the training, equipment testing, periodic unannounced

exercises, and response actions of persons on the vessel to be carried

out under the plan to ensure the safety of the vessel and to mitigate

or prevent the discharge, or the substantial threat of a discharge; and

(5) Be updated periodically and resubmitted for approval of each

significant change.

Discussion of Comments and Changes

The Coast Guard received 68 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 authority citation and the

following sections have changes which are purely editorial:

Secs. 155.1025, 155.1026, 155.1052, 155.1062, 155.1115, 155.1125, and

tables 1 and 6 of Appendix B to subpart 155. For the convenience of the

public, subparts D and E have been reprinted in their entirety.

Section 155.140 Incorporation by Reference

One comment concerning the possible American Society of Testing and

Materials (ASTM) revision of incorporated equipment standards was

received in response to this section of the IFR. This comment expressed

concern that the Coast Guard might at some time incorporate revised

ASTM equipment standards that could result in more stringent standards.

Standards that are incorporated by reference into regulations do

not change automatically when new standards are issued by ASTM or other

third party standards-setting organizations. Extensive review of

revisions to an incorporated reference, such as those from the ASTM, is

done prior to considering changing the incorporated reference in a

regulation.

If the Coast Guard determines that a change is warranted, a notice

of the change will be published in the Federal Register. While the

possibility does exist that a requirement increase would occur from the

future incorporation of revised standards, careful consideration of the

overall effectiveness of the initial requirement is the primary

benchmark. Incorporation of revised or new standards is not proposed

unless such change is warranted. If a change is considered necessary, a

notice will be published in the Federal Register, and material made

available to the public for public comment.

Section 155.1010 Purpose

Three comments were received responding to this section. One

comment supported the clarification of purpose in the preamble.

One comment asserted that the purpose of OPA 90 is to establish a

National Contingency Plan to devise mechanisms for oil spill cleanup.

The National Contingency Plan was established under section 311(d) of

the FWPCA (33 U.S.C. 1321) and is the responsibility of the

Environmental Protection Agency (EPA). This rulemaking does not affect

the National Contingency Plan, but is complementary to it. As stated in

the preamble to the IFR, a major objective of section 311(j)(5) of the

FWPCA (33 U.S.C. 1321) is to create a system in which private parties

supply the bulk of equipment and personnel needed for an oil spill

response. It also requires the vessel owner or operator to be

responsible for promptly and properly removing oil and minimizing

environmental damage from a discharge without the active participation

of any Federal personnel or equipment. The Coast Guard made no

revisions to this section of the rule.

Section 155.1015 Applicability

Six comments addressed the issue of applicability of the

regulations to animal fats and vegetable oils. One comment stated that

tank vessels transporting edible oils should be exempt from these

regulations because their inclusion would be contrary to the

legislative intent of OPA 90. Five comments suggested that response and

removal methodologies for non-petroleum oils be the subject of a

separate rulemaking.

Section 311 of the FWPCA defines ``oil'' to be oil of any kind or

in any form, which includes non-petroleum oils. The Coast Guard does

not have the authority to define ``oil'' differently and must address

non-petroleum oils in any response plan requirements. The Coast Guard

agrees, however, that separate subparts for animal fats and vegetable

oils and for other non-petroleum oils is appropriate and has created

new supbarts F and G in this rule. Changes to response plan

requirements for these oils are contained in the discussion of those

subparts.

Three comments contended that fishing vessels should be exempt from

the definition of tank vessel for the purposes of applicability of

these regulations. As stated previously, section 321 of the Coast Guard

Authorization Act of 1993 (Pub. L. 103-206, 107 Stat. 2419) has

essentially resulted in the exemption of fishing vessels or fish tender

vessels engaged only in the fishing industry and of less than 750 gross

tons from the definition of tank vessel and, consequently, from these

requirements. Another comment stated that it was not the intent of OPA

90 to regulate fishing tender vessels carrying light fuel products. The

applicability of these requirements to fishing vessels was revised by

section 321 of the Coast Guard Authorization Act of 1993 (Pub. L. 103-

206, 107 Stat. 2419). When fishing vessels or fish tender vessels are

engaged only in the fishing industry and are less than 750 gross tons,

they are not deemed to be tank vessels. Accordingly, these vessels are

now excluded from vessel response plan requirements.

One comment argued for the exemption from these regulations of

inland river towboats operated by the same person conducting fuel

transfers. This comment further contended that these vessels should be

exempted as a secondary cargo carrier for the same reason Congress

exempted certain foreign vessels. The Coast Guard disagrees. Because

certain towboats meet the definition of tank vessel in 46 U.S.C. 2101,

owners and operators of these vessels must meet these

[[Page 1054]]

requirements. Accordingly, the Coast Guard does not have authority to

allow towboats to conduct fuel transfers without a vessel response

plan.

One comment urged negotiations between the United States and Canada

to minimize the burdens of meeting both nations' requirements for

vessel response planning. This comment stated that a vessel may transit

the water of one country only incidentally enroute to the other

country. This comment further stated that inadvertent rerouting might

entail additional collision and pollution risks. The Coast Guard agrees

with this comment; however, there is no authority for the Coast Guard

to waive the vessel response requirements for vessels transiting the

internal waters of the United States enroute to or from Canadian ports.

The Coast Guard is currently working with the Canadian government to

develop a bilateral agreement on vessel response plan requirements.

Section 155.1020 Definitions

In order to accommodate new provisions regarding non-petroleum

oils, the Coast Guard has added several definitions to this section of

this final rule. These definitions are for the terms ``animal fat'',

``other non-petroleum oil'', ``petroleum oil'', and ``vegetable oil''.

Average most probable discharge. This definition was modified in

the final rule to include a discharge of the lesser of 50 barrels of

oil or 1 percent of the cargo to be consistent with the facility

response plan requirements. One comment was received responding to this

definition in the IFR. It stated that the threshold for this definition

should be lowered to 25 barrels for the Great Lakes. The Coast Guard

disagrees with this comment. The 50-barrel response planning

requirement was based on national operational spill data over a 5-year

period and an evaluation of historical trends in smaller size spills.

Substantial data supporting a reduction to this requirement for the

Great Lakes area was not provided by the comment.

The Coast Guard further clarified the definition of average most

probable discharge in this final rule by limiting it to 50-barrel

discharges occurring during transfer operations to or from the vessels

rather than making the definition applicable to vessel offloading

operations alone.

Cargo. Although no comments were received addressing this

definition, the Coast Guard modified this definition in this final rule

to exclude oil transferred from a towing vessel to a vessel in its tow

to operate installed machinery other than the propulsion plant. The IFR

contained a similar provision, but this final rule version further

clarifies the type of transfer which is excluded and clarifies that the

propulsion plant does not qualify as installed machinery for the

purposes of this definition.

Contract or other approved means. Nine comments responded to this

definition in the IFR. Four comments generally agreed with the

definition, especially concerning the addition of the alternatives to a

formal contract.

One comment contended that legal contracts would be too restrictive

and burdensome. The Coast Guard recognizes the burden of legal

contracting, and the IFR provides an alternate means to ensure the

availability of response resources. As discussed in the IFR, a document

that provides the following information will be considered to provide

acceptable assurance that the response resource provider has the

capability to respond: (1) Clear identification of the goods and

services to be provided; (2) provision of the parties' acknowledgment

that the resource provider intends to commit its resources in the event

of a response; and (3) permission for the Coast Guard to verify the

response resources identified through tests, inspection, and exercise.

One comment argued that the Coast Guard would have difficulty

monitoring the identification of resources in a vessel response plan by

merely relying on a contractor's written consent. The Coast Guard

recognizes the problem of identifying resources that have not been

contracted. The Coast Guard has an ongoing effort to ensure that all

response plans are valid. Measures are taken whenever the Coast Guard

finds false statements in response plans. The Coast Guard encourages

continued classification of OSROs in accordance with Navigation and

Vessel Inspection Circular 12-92 (NVIC 12-92; December 4, 1992) to

ensure organizations identified by the response plan have the equipment

necessary to deliver the services in accordance with what they have

promised to vessel owners or operators.

Three comment writers believed that the definition of ``contract or

other approved means'' should be expanded: one comment writer believed

it should include a document designating each party's responsibilities;

one comment writer believed that the definition should include a

presumption in favor of demonstrating capability; and one comment

writer suggested that ``active membership'' be clarified or that

language that confirms commitment of response resources to the member

of a local or regional oil spill removal organization within this

definition be included.

The Coast Guard disagrees. A concerted effort has been made to keep

this definition from creating an onerous burden to vessel owners and

operators. The legal aspects of the response arrangements must meet the

described specific criteria for response resources and their arrival

time contained in this rule, but a dictation of specific

``responsibilities'' should be left to the discretion of the owners or

operators. Finally, while the term ``active membership'' is general, it

can be easily assessed and verified by the Coast Guard during tests,

inspections, exercises, or a combination of these three methods of

evaluation.

Although nine comments responded to this IFR definition, the Coast

Guard has determined that no substantive revisions to this definition

in the final rule are necessary. However, technical revisions were made

to reference correct section numbers in the final rule.

Dedicated response vessel. There were no comments received

responding to this definition. However, the Coast Guard revised this

definition to be consistent with escort vessel regulations that are

being developed under a separate rulemaking project [Escort Vessels for

Certain Tankers; CGD 91-202].

Fish and Wildlife and Sensitive Environments. This final rule adds

the definition of the term ``Fish and Wildlife and Sensitive

Environments.'' Although not specifically used in this regulation, it

is added for the vessel owners and operators information when dealing

with facilities. This term is used by the marine transportation-related

facility response plan final rule and by the EPA in its final rule. For

more information on these areas and how they affect response planning

requirements, see the Coast Guard marine transportation-related

facility response plan final rule (CDG 91-036), the EPA final rule (59

FR 34070; July 1, 1994), or the ``Notice'' published by the National

Oceanic and Atmospheric Administration (NOAA) entitled ``Guidance for

Facility and Vessel Response Plans Fish and Wildlife and Sensitive

Environments'' published in the Federal Register on March 29, 1994. (59

FR 14714).

Great Lakes. One comment was received in response to this IFR

definition. This comment was concerned that the definition did not

clearly address the rivers tributary to the Great Lakes. The Coast

Guard disagrees. The definition for the Great Lakes specifically

includes tributary waters and is consistent with definitions found in

Coast Guard regulations governing navigation and navigable waters. This

definition treats the Great Lakes as an entire ecosystem, including

their connecting and tributary waters which

[[Page 1055]]

would be adversely affected by an oil spill. Accordingly, the Coast

Guard has not modified this definition in this final rule.

Higher volume port area. One comment was received in response to

this definition. The comment contended that the material in

Sec. 155.1050(h) of the IFR should be relocated to the definitional

section rather than cross-referenced. The Coast Guard agrees and has

relocated the material to the definition for higher volume port area.

Inland areas. Although not specifically requested by any IFR

comments, the Coast Guard has revised this definition in this final

rule. A sentence has been added to this definition in the final rule to

clarify that the Great Lakes are not included under this definition.

Maximum extent practicable. One comment expressed concern over the

meaning of the word ``practicable'' as used in the statute, and the

meaning of the word ``possible'' as used in this IFR definition at 33

CFR 153.305. The definition used in this rule pertains to the planned

capability to respond to an oil spill within the time frame and

equipment guidelines for the worst case discharge in adverse weather,

whereas 33 CFR 153.305 reflects methods for oil spill cleanup to be

applied after a spill has occurred. Because this final rule provides

for contingencies prior to a spill, the difference in wording between

the two regulations is necessary and appropriate.

Maximum most probable discharge. Two comments were received in

response to this definition. One comment disagreed with this

definition, indicating that the 2,500-barrel assignment is excessive

for Great Lake operators. This comment argued that, in the past 10

years, the largest spill in the Great Lakes was only 500 barrels of

oil. The other comment suggested that the maximum most probable

discharge be set at 500 barrels. The maximum most probable spill has

been defined as 2,500 barrels based on a statistical analysis of Coast

Guard tank vessel spill data for the years 1985 through 1989. The

figure of 2,500 barrels encompasses approximately 99% of the number of

spills which occurred during that period. It would not be feasible to

change the definition of maximum most probable discharge on a per-

location basis.

Nearshore areas. The Coast Guard revised the wording of this

definition slightly. Although the language was not substantively

changed, the definition as it appears in the final rule is now

consistent with that which appeared in the IFR for marine

transportation-related facilities (58 FR 7352; February 5, 1993).

Non-petroleum oil. One comment was received in response to this

definition. The comment argued that non-petroleum oils should be

addressed separately. The Coast Guard agrees and has added new subparts

F and G to this rule addressing animal fats and vegetable oils in

subpart F and other non-petroleum oils in subpart G. These new subparts

are discussed subsequently in this section of the preamble.

Oil field waste. The Coast Guard added this definition in the final

rule, which means non-pumpable drilling fluids with possible trace

amounts of metal and oil. Reference to response plans for barges

carrying nonhazardous oil field wastes is made at Sec. 155.1030(f) of

this final rule, which permits owners or operators of such barges to

submit response plans under Sec. 155.1045 rather than submitting plans

under Sec. 155.1035 or Sec. 155.1040. This definition was added to

distinguish this type of material from other types of material, as

owners or operators of these vessels need only plan as secondary

carriers in accordance with Sec. 155.1045 of this final rule.

On-scene coordinator or OSC. One comment was received in response

to this definition. The comment requested clarification that the on-

scene coordinator (OSC) will coordinate Federal actions with the vessel

owner's actions while the vessel owner remains in charge of the spill

response. The duties of the OSC are set forth in the National

Contingency Plan (40 CFR part 300.120) and may include directing of all

response operations.

Operator. Two comments were received, both of which stated that the

definition should be the same as it appears in 33 CFR 130.2(q). The

wording for this definition has been modified to parallel or more

closely follow the wording in 33 CFR 130.2(q). The only difference from

the 33 CFR 130.2(q) definition is the deletion of the words

``including, but not limited to.'' This text was not included because

the Coast Guard has determined that the present definition properly

limits the parties affected by this rule.

Persistent oil. Three comments were received in response to this

definition as it appeared in the IFR. All contended that petroleum oils

with specific gravity of less than 1.0 should be divided into two, not

four, categories. The Coast Guard disagrees. The four categories

developed for this regulation are consistent with the protocol

developed by the International Tanker Owners Pollution Federation

(ITOPF) which reflects differences in persistence. The use of the four

categories, rather than two, makes the rule more flexible and

facilitates compliance with the requirements. The definition of

persistent oil was not changed from its definition in the IFR.

Qualified individual and alternate qualified individual. Three

comments were received which addressed this definition. One comment

suggested that qualified individuals who are also owners and operators

should have the same protection from liability that contracted

qualified individuals have. As stated in the preamble to the IFR, the

Coast Guard has no authority to provide a blanket exemption from

liability to any persons, including qualified individuals designated

for response plan purposes.

One comment suggested that this definition be expanded to allow the

qualified individual to reside in Canada. Although this definition was

not revised in the final rule, the Coast Guard modified Sec. 155.1026

of the interim final rule to allow Canadian vessels to identify

Canadian-based qualified individuals if these individuals meet the same

requirements under Sec. 155.1026(b) for individuals based in the Untied

States. This provision only applies to Canadian flag vessels while they

are operating on the Great Lakes, the Strait of Juan de Fuca, and Puget

Sound, WA. In any other environment, the qualified individual must be

based in the United States. The close proximity, reliable

communication, and the common water boundary shared by the United

States and Canada create a unique situation, which allows a Canadian-

based qualified individual to be as effective as a qualified individual

based in the United States. In addition, the Coast Guard is presently

working with the Canadian government to reach a bilateral agreement on

response plans. When this agreement is finalized, an amendment to this

definition may be more appropriate.

One comment stated that the requirement that the qualified

individual have oil or hazardous materials experience be clarified in

this definition. The Coast Guard disagrees. The Coast Guard has left

the definition broad so that the owner or operator has the flexibility

to designate the qualified individual they feel is most suitable for

this responsibility. The Coast Guard has only required that the

qualified individual be trained in the responsibilities of the

particular response plan he or she will be coordinating.

Response area. One comment was received regarding this definition.

It stated that this definition should include predetermined areas. The

Coast Guard's experience has proven that the ``response area'' is very

difficult to

[[Page 1056]]

define accurately and fairly. Therefore, this definition has been

deleted, and replaced with the term ``response activity.'' This change

will allow the Captain of the Port more flexibility in describing the

area, vessels, and equipment involved in a spill cleanup.

Rivers and canals. Two comments suggested changes to this

definition. One comment suggested that the definition include rivers

and tributary waters of the Great Lakes. The Coast Guard disagrees. The

definition for the Great Lakes, including its connecting river and

tributary waters, is consistent with definitions found in rules

governing navigation and navigable waters. This definition treats the

Great Lakes as an entire ecosystem, including their connecting and

tributary waters which would be adversely affected by an oil spill.

The other comment suggested that the project depth of 12 feet or

less be changed to 18 feet to allow for use of offshore response

vessels described in the plans. As discussed in the IFR, the Coast

Guard disagrees with increasing the project depth from the 12 feet or

less mark. The Coast Guard intended the definition to only cover

narrow, inland bodies of water that are reasonably protected and

typically have wave heights of 1 foot or less on which only shallow

draft vessels operate.

Further, the Coast Guard simplified this definition in the final

rule by removing the words, ``the outer boundaries of.'' Because this

definition covers bodies of water confined within the inland area,

which would, by implication, include its outer boundaries, these

additional words were removed as redundant.

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 Product by Hydrometer Method.''

Tier. Because this concept is referenced throughout these

regulations and because a number of comments asked for clarification on

this term, the Coast Guard has developed a detailed definition to

facilitate a clearer understanding of these regulations.

Vessels carrying oil as a secondary cargo. The applicability

section of the final rule (33 CFR 155.1015) now excludes oil spill

response vessels involved in response activities from the requirement

for response plans. This revision reflects a reduction of the previous

requirements which provided for these vessels to have approved response

plans in accordance with Sec. 155.1045 (vessels carrying oil as a

secondary cargo) when not involved in response operations. Under this

final rule, these vessels are no longer required to have response plans

unless they are carrying oil as cargo outside a response operation. The

Coast Guard has therefore removed oil spill response vessel from this

definition.

Vessel of opportunity. One comment suggested that this definition

include any vessel, used in an emergency situation, that carries oil as

a primary cargo. The comment further suggested that if the vessel is

responding to a spill of an oil from a different group from that which

it carries, that vessel be temporarily relieved from the requirement of

revising its vessel response plan. This subpart does not apply to

vessels of opportunity. The clause in this definition that excludes

vessels that carry oil as a primary cargo was intended to ensure

vessels are not used for grades of oil they are not classed to carry.

For overall safety, even in an emergency situation, a tank vessel

should not load higher grade fuels than it is designed to carry. A

vessel that carries oil as a primary cargo must already have a vessel

response plan. A vessel of opportunity that is also a primary oil

carrier could assist in an oil spill response activity of an oil other

than the one for which it holds an approved response plan without

approval of a new response plan, as long as this exemption has been

granted by the Captain of the Port (COTP). Section 155.1070(c)(4) has

been changed to address this situation.

Section 155.1025 Operating Restrictions and Interim Operating

Authorization

The Coast Guard modified paragraphs (a) and (b) in Sec. 155.1025 of

the final rule to remove the statutory date of compliance which has now

passed.

The IFR stated that the Coast Guard was still studying the issue of

whether the provision in section 311(j)(5) of the FWPCA (33 U.S.C.

1321(j)(5)), which allows the Coast Guard to authorize vessels to

continue operating for up to two years while the response plan is

undergoing detailed review, is applicable to both initial submission of

response plans and future plan revisions and required resubmissions.

After an in-depth evaluation, the Coast Guard has determined that this

provision is applicable to all submittals. Therefore, there is no need

to revise the regulatory text.

Three comments were received addressing this section. One comment

focused on the provision allowing vessel operation for 2 years after

submission of the response plan, pending approval, for those vessels

granted written authorization for continued operations. The comment

suggested that this provision be limited in application to vessels with

standards approved by the Secretary of Transportation. One comment

urged that the Coast Guard be reasonable and realistic in granting the

2-year interim operation authorization. The Coast Guard evaluates each

submittal on a case-by-case basis. This evaluation method ensures that

the time frame given for operating in accordance with a response plan

that does not have full Coast Guard approval is appropriate for the

given vessel and operating conditions.

One comment stated that requiring certification letters before the

6-month allowance provided in OPA 90 nullifies legislative intent and

suggested that the Coast Guard rewrite Sec. 155.1025(d) of the IFR.

Section 155.1025(d) has been rewritten to eliminate this provision as

the 6-month grace period has already ended, and all vessels must be

operating in accordance with an approved response plan. Additionally,

Sec. 155.1025(e) of the IFR has been reworded to potentially allow a

vessel owner or operator to have a vessel make one voyage to transport

or handle oil in a ``geographic area'' rather than a ``port.'' This

change was made to make this provision more flexible in that such

authorization could be granted for voyages other than those to ports.

Section 155.1026 Qualified Individual and Alternate Qualified

Individual

The Coast Guard has modified Sec. 155.1026(a) and Sec. 155.1026(b)

to clarify that a qualified individual must be available on a 24-hour

basis, but it is not necessary to have both the qualified individual

and the alternate qualified individual available coincidentally.

In response to requests for clarification, the Coast Guard has

modified Sec. 155.1026(d)(1) in this final rule to make explicit the

previously implied concept that the qualified individual must have the

authority to activate or contract for all appropriate response

resources, in addition to activating or contracting with oil spill

removal organizations. Fifteen comments were received addressing this

section of the IFR. Five of these comments addressed the general

requirements of this section. One comment urged the exemption from this

provision of vessels carrying light fuel as secondary cargo. The Coast

Guard does not have the authority to exempt any type of oil from these

regulations.

[[Page 1057]]

One comment urged the exemption from this provision of fishing

tender vessels. As discussed previously, the applicability of response

plan requirements to fishing vessels was revised by legislation

subsequent to the IFR which essentially excludes most fishing vessels

from these response plan requirements (Pub. L. 103-206, 107 Stat.

2419). However, it is appropriate to require identification of a

qualified individual for fish tender vessels over 750 gross tons as the

same legislative change did not affect these vessels.

Three of the comments supported the Coast Guard's revision of

paragraph (d) of this section of the IFR so that the qualified

individual's authority would be ``full'' rather than ``unconditional,''

and argued against the requirement that a qualified individual be an

individual rather than an organization. With regard to the latter

argument, these comments argued that this provision should be revised

because the employees of an organization change frequently. The Coast

Guard included in Sec. 155.1026(e) of the IFR a provision which allows

the vessel's owner or operator to designate an organization to carry

out the responsibilities of the qualified individual. However, the

designated organization must have identified specific individuals to

act as the qualified individual and the alternate. The individual that

assumes this responsibility must be familiar with the implementation of

the vessel response plan and be trained in the responsibilities of the

qualified individual under the response plan.

In regard to this section, the Coast Guard would like to clarify

that it does not intend to limit the discretion of the vessel owner or

operator to designate a substitute to assume the full range of

responsibilities of the qualified individual named in the response

plan. The requirement to designate a qualified individual and at least

one alternate is to ensure prompt implementation of the response plan.

The owner or operator of a vessel may designate any person to assume

the duties of the qualified individual at any time provided the

requirements of this section are met. If the substitution takes place

during the response to a discharge, there must be no break in

availability of the person acting as the qualified individual. The

substituted qualified individual must have a document designating them

as the qualified individual.

Nine comments suggested new language for this section which would

limit the liability of qualified individuals and alternative qualified

individuals. Six of these nine comments suggested that the Coast Guard

add language to this section stating that the qualified individual or

alternate qualified individual would not, per se, be considered the

vessel's owner, operator, or demise charterer when acting in the

capacity of a qualified individual. As stated in the IFR, a person does

not become a responsible party under the FWPCA by being designated a

qualified individual for response plan purposes. Under 33 U.S.C.

1321(c)(4), a person other than a responsible party is not liable for

removal costs or damages which result from actions taken or omitted in

the course of rendering care, assistance, or advice consistent with the

National Oil and Hazardous Substance Pollution Contingency Plan (NCP)

or otherwise directed by the President. Notwithstanding, such a person

whose acts or omissions are grossly negligent, or who engages in

willful misconduct may, as a result, become liable for the resulting

removal costs or damages. The qualified individual is not, however,

responsible for the adequacy of response plans prepared by the owner or

operator nor is the qualified individual responsible for contacting

response resources beyond the authority delegated from the owner or

operator.

Four of the comments suggesting revisions in this section supported

the addition of language distinguishing the role of qualified

individual from the role of the responsible party. One comment

suggested that the rules clarify that the qualified individual would

generally not be responsible for the adequacy or the sufficiency of the

response and suggested that this section limit the liability of the

person acting in the capacity of qualified individual. As stated in the

IFR, the Coast Guard has no authority to provide a blanket exemption

from liability to any persons, including qualified individuals

designated for response plan purposes. For vessels, the term

``responsible party'' is defined in section 1001(32)(A) of OPA 90 as

any person owning, operating, or demise chartering the vessel (33

U.S.C. 2701(32)(A)). Section 1001(26)(A) of OPA 90 defines owner or

operator of a vessel as any person owning, operating, or chartering by

demise the vessel (33 U.S.C. 2701(26)(A)). The IFR states that a person

does not become a responsible party under FWPCA by being designated a

qualified individual for response plan purposes. This rule preserves

Sec. 155.1026(g) which states that the liability of a qualified

individual is considered to be in accordance with the provisions of 33

U.S.C. 1321(c)(4). Under this section, a person other than a

responsible party is not liable for removal costs or damages which

result from actions taken or omitted in the course of rendering care,

assistance, or advice consistent with the NCP or as otherwise directed

by the President. However, as noted in the IFR, even a qualified

individual may be liable for the resulting removal costs or damages if

it is established that there was gross negligence or willful misconduct

while acting in this capacity.

Two comments addressed this section as it relates to dealings with

Canada. One comment suggested that residents of Canada be permitted to

be qualified individuals. The other comment stated that the Canadian

government recently introduced legislation similar to OPA 90 and

suggested that the United States and Canada work closely in

promulgating their respective regulations regarding oil pollution

prevention. The Coast Guard is currently working with the Canadian

government to develop a bilateral agreement on vessel response plan

requirements. In addition, the Coast Guard modified the IFR to allow

Canadian vessels to identify Canadian-based qualified individuals if

these individuals meet the same requirements of Sec. 155.1026(b) for

individuals based in the United States. This provision only applies to

Canadian flag vessels while they are operating on the Great Lakes, the

Strait of Juan de Fuca, and Puget Sound, WA. In any other environment,

the qualified individual must be based in the United States. The close

proximity, reliable communication, and the common water boundary shared

by the United States and Canada create a unique situation, which allows

a Canadian-based qualified individual to be as effective as a qualified

individual based in the United States.

Section 155.1030 General Response Plan Requirements

Required format. One comment supporting the required response plan

format was received. The Coast Guard, however, amended the language of

this section to further clarify response plan requirements. The Coast

Guard has determined that references to Secs. 155.1035, 155.1040, and

155.1045 were redundant in that the requirements were repeated in each

specific section. Therefore, these references have been deleted.

Paragraph (c)(11) of this section was reworded to delete specific

references to vessels carrying oil as a primary cargo and unmanned tank

barges. Because this section is supposed to address general

requirements of response plans, this subparagraph now addresses the

general requirements for inclusion of a vessel-specific appendix for

the vessel or vessels covered by the plan.

[[Page 1058]]

The requirements of paragraph (d) have been clarified to indicate

that vessel owners or operators with multiple vessels may now submit

one plan for each class of vessel (i.e., manned vessels carrying oil as

primary cargo, unmanned vessels carrying oil as primary cargo, and

vessels carrying oil as secondary cargo).

The Coast Guard has added a new paragraph (f) to this section in

this final rule in response to questions in comments concerning barges

carrying non-hazardous oil field wastes. Further, this paragraph has

been reworded to make following the format requirements of

Sec. 155.1045 optional in lieu of following the requirements of

Sec. 155.1035 or Sec. 155.1040. In the IFR, paragraph (f) of this

section required oil spill response vessels to have response plans in

accordance with Sec. 155.1045 when operating outside a response area.

The applicability section of the final rule (33 CFR 155.1015) now

excludes oil spill response vessels involved in response activities

from the requirement for response plans. This revision reflects a

reduction of the previous requirements which provided for these vessels

to have approved response plans in accordance with Sec. 155.1045

(vessels carrying oil as a secondary cargo) when not involved in

response operations. Under this final rule, these vessels are no longer

required to have response plans unless they are carrying oil as cargo

outside a response operation.

The references to ``February 18, 1993'' in paragraph (g) of this

section have been deleted. That date has passed and, consequently, is

no longer relevant to these regulations.

The Coast Guard has added language to subparagraphs (i)(1) and (2)

of this section to allow notarized copies of Coast Guard approval

letters to substitute for the actual approval letters which are to be

on board vessels under this provision. This provision satisfies the

Coast Guard's need for authentication of the document through the

notarization requirement while allowing a vessel owner or operator to

keep the original approval letter in a place where it would less likely

lost or misplaced.

Plan consistency. Nine comments were received which addressed the

issue of consistency between the National Oil and Hazardous Substance

Pollution Contingency Plan (NCP), Area Contingency Plan (ACP), and

vessel response plan (VRP) requirements.

One comment asserted that State and Federal authorities would

probably not agree upon a uniform format for response plans. This

comment argued that because the authority of States with regard to

response plans is not preempted, they will be unwilling to relinquish

their authority merely to standardize the format. The Coast Guard has

provided for as much flexibility as reasonably possible. The owner or

operator is permitted to insert sections as necessary to satisfy any

additional State or International Maritime Organization (IMO)

requirements. However, the required sections and specific information

described in those sections must remain distinct, and the appendix or

table of contents must provide sufficient detail on the location of

these distinct sections. This standard format eases the administrative

burden in reviewing the plans and creates uniformity for responders who

may not be familiar with a particular plan. Further, negotiations with

various States having response plan requirements have been generally

successful in minimizing differences.

Five comments addressed the Coast Guard's development and

implementation of the ACPs. One of these comments argued that the

existing NCP and LCPs are not adequate nor are they consistent with the

legislative intent of OPA 90. This comment writer also expressed

concern regarding the IFR's silence on Coast Guard response duties.

Another two of these comments also urged consistency between the ACPs

and the NCP. Still another comment additionally argued that ACPs should

be subject to public comment. One comment concerned the development of

ACPs and their impact on planning for shoreline protection,

firefighting, and lightering resources. All of the comments discussed

in this paragraph are beyond the scope of this rulemaking.

One comment recommended the revision of all VRPs 6 months after the

ACPs and the NCP are completed. The Coast Guard disagrees. To provide

time for owners or operators to prepare their response plans, the Coast

Guard requires consistency with the applicable plans (ACP/NCP) in

effect 6 months prior to the submittal date. If the ACP or NCP changes

after submittal of the response plan, the plan must be adjusted

accordingly when submitted for reapproval.

One comment urged vessel response plan consistency with ACPs so

that the Coast Guard could easily identify the inconsistencies between

what is stated in the response plan and what is required by the ACP.

Another comment stated that vessel response plans may need to be

revised in order to remain consistent should ACPs identify equipment or

personnel deficiencies in the future. The Coast Guard disagrees. All of

these plans will be subject to continuous updating. Periodic

resubmittal of vessel response plans will ensure that inconsistencies

with ACPs are minimized.

Provisions concerning Regulation 26 of MARPOL. In order to

facilitate response plan review, the Coast Guard has modified

Sec. 155.1030(j) to require that, when submitting response plans that

include provisions of Regulation 26 of Annex I to the International

Convention for the Prevention of Pollution from Ships, 1973 as modified

by the Protocol of 1978 (MARPOL 73/78), a cross reference section must

be included to identify the location of the general response plan

requirements. Six comments were received addressing the portion of this

section permitting an owner or operator of a U.S. flag vessel to

address the requirements of Regulation 26 of Annex I to MARPOL 73/78 if

certain conditions are met.

Three comments supported the change in the rule to make compliance

with Regulation 26 optional, two of them arguing that the vessel

response plan regulation required planning for responses to discharges

of oil carried in bulk as cargo whereas MARPOL applies to all oil

discharges, including the ship's fuel oil. One of these three comments

continued by contending that the requirement for the master to notify

the coastal state and secure its authorization before undertaking

mitigating actions is misleading, confusing, and not within the spirit

of MARPOL 73/78 or OPA 90. This comment writer stated that such

notification is an obvious step.

The Coast Guard agrees that this may have caused some confusion.

Therefore, this paragraph has been modified to clearly state that the

plan should address the notification of the coastal state to determine

whether authorization is required. With reference to all three

comments, this section of the regulation blends the requirements for

Regulation 26 and the U.S. response requirements. This option will ease

the burden on the industry in that a single plan can be used for both

requirements. The notification procedures are a requirement of MARPOL

73/78; therefore, the Coast Guard does not have the authority to change

them.

The Coast Guard has, however, amended the provision regarding

submission of modified Regulation 26 response plans in lieu of response

plans under this rulemaking. This provision has been further clarified

to indicate the procedure by which a vessel owner or operator may

address Regulation 26 provisions in his or her response plan. This

paragraph, as revised, also references Sec. 155.1065 which provides

procedures for plan submission. These changes make the procedures for

[[Page 1059]]

exercising this option clearer for vessel owners or operators who want

to take advantage of this provision.

Also, the Coast Guard has added a new paragraph (k) to this

section. This new paragraph will allow secondary carriers having

response plans approved under Regulation 26 of MARPOL 73/78 to comply

with Sec. 155.1045 if identification of the qualified individual and

alternate, identification of an oil spill removal organization,

identification of an oil spill management team, and a geographic

specific appendix are added to the Regulation 26 response plan. This

revision would elicit the information needed by the Coast Guard while

eliminating the need for owners and operators of secondary carriers to

duplicate their efforts.

One comment argued that the Coast Guard should reinstate the

requirement for planning for fuel oil discharges, contending that the

Coast Guard has the authority to issue such regulations under section

311(j)(1)(C) of the Federal Water Pollution Control Act (FWPCA) (33

U.S.C. 1321(j)(1)(C)). The Coast Guard disagrees. The intent of OPA 90

was to have vessel owners and operators plan to respond to a spill of

oil carried in bulk as cargo. Fuel oil is not considered a cargo. The

issuance of regulations that address fuel oil discharges is outside the

scope of this rulemaking. Planning for response to such discharges is

covered by Regulation 26 of Annex I to MARPOL 73/78.

One comment urged the Coast Guard to withdraw Coast Guard

Navigation and Vessel Inspection Circular No. 2-93 (NVIC 2-93; March 5,

1993), arguing that it hampers industry by further regulations. The

Coast Guard disagrees. This NVIC only provides guidance on how to

address the requirements of Regulation 26 of MARPOL 73/78. It pertains

only to vessels which are subject to Annex I of MARPOL (e.g., U.S.

flagged seagoing vessels wherever located, and foreign flagged vessels

located within the navigable waters of the United States) and are

already required to meet the provisions of MARPOL 73/78. Regulation 26

is the subject of a separate but coordinated rulemaking (CGD 93-030)

entitled ``Shipboard, Oil Pollution Emergency Plans'' which was

published in the Federal Register on October 7, 1994 (59 FR 51332).

Plans submitted prior to effective date of final rule. The Coast

Guard has written a provision into the final rule that requires vessel

owners or operators making initial response plan submissions after

April 11, 1996, the effective date of this final rule, to comply with

the requirements of the final rule. As indicated in the IFR, the Coast

Guard is not requiring vessel 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 vessel 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. 155.1070. 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. 155.1065.

Section 155.1035 Response Plan Requirements for Manned Vessels

Carrying Oil as a Primary Cargo

General information and introduction. The Coast Guard has revised

this section to require an indication of a vessel's IMO international

number in the response plan, if applicable. This international number

will provide the Coast Guard with a means of accessing Marine Safety

Information System (MSIS) data on the vessel. This information already

is required in both 33 CFR 151.26 and 33 CFR 160.207.

Notification procedures. Two comments were received which addressed

the requirement that a response plan include certain information on

notification procedures. One comment called the requirement cumbersome

and unrealistic, arguing that all notifications should be the

responsibility of the qualified individual. This comment continued by

arguing that this paragraph required unnecessary information such as

information on ship and crew size, and the date and time of the next

report. It contended that this type of information is already known by

the owner or operator and that the response plan should only list the

procedures needed for the qualified individual to activate the plan.

Another comment contended that requiring notification of State

authorities is not within the purview of the Coast Guard unless the

State specifically required the Coast Guard to do so.

As stated in the IFR, and repeated in the final rule, only the

qualified individual must be notified. However, other statutes and

regulations establish oil spill reporting requirements, and the Coast

Guard has determined that the owners or operators should address

procedures for these notifications in their response plans.

The Coast Guard amended Sec. 155.1035(b)(4), the provision in this

section which required that descriptions of primary and secondary

communications methods be included in response plans. This provision

was clarified by now stating that such descriptions should be

consistent with Sec. 155.1035(b)(1), the provision requiring a

checklist of the notifications to be made in the event of an oil spill.

This change was effectuated to clarify the instructions regarding

descriptions of communications methods in vessel response plans.

To minimize the burden on vessel owners and operators and

facilitate rapid notification of a spill, most of this information can

be provided in a checklist, which is consistent with Regulation 26 of

MARPOL 73/78. To ensure consistency with IMO Resolution A648(16), the

Coast Guard revised the rule to require that response plans include

various additional items that must be identified in the initial

notification and to establish guidelines for follow-up reports.

Shipboard spill mitigation procedures. Five comments were received

in response to this provision. Three comments supported the

subparagraph requiring the inclusion in the response plan of the

location, crew responsibilities, and procedures for use of shipboard

equipment which may be carried to mitigate an oil discharge. Two

comments opposed this provision, arguing that vessels lacked storage

room for the equipment, that having the equipment on board would reduce

crew size, that there would be a lack of trained personnel to use the

equipment, that maintenance and inspection of equipment in a special

store room would be difficult, and that the crew would have other

overriding priorities. The carriage of spill removal equipment is the

subject of a separate rulemaking (CDG 91-068). This final rule only

requires that procedures be spelled out in the response plan so that

the crew knows what its responsibilities are to mitigate an oil

discharge.

An IFR entitled ``Discharge Removal Equipment for Vessels Carrying

Oil'' was published (58 FR 67995; December 22, 1993). This IFR contains

requirements to include in response plan procedures for deployment of

discharge removal equipment carried onboard the vessel and for internal

transfers of cargo as provided in the discharge removal IFR.

Additionally, a provision was added requiring identification in the

response plan of the shore location and 24-hour access procedures for

the computerized shore-

[[Page 1060]]

based damage stability and residual structural strength calculation

programs. These computer programs are required by 33 CFR 155.240, which

was added to 33 CFR part 155, subpart B by the discharge removal

equipment IFR.

Shore-based response activities. The Coast Guard made slight

revisions to the provision regarding inclusion in the responses plans

of information concerning the organizational structure that will be

used to manage response actions. In the IFR, this provision merely

required the listing of enumerated functional areas in that part of the

response plan. The provision, as revised, requires the inclusion of

information regarding key components within each of these enumerated

functional areas. This information is currently required for approval

of response plans.

This paragraph regarding shore-based response activities have also

been reworded so as to require the inclusion in the response plan of

the functional job descriptions for each oil spill management team

position within the organizational structure. These added requirements

will better clarify the responsibilities of those involved in oil spill

cleanup, thereby promoting more efficient implementation of response

plans.

List of contacts. Two comments were received in response to this

paragraph requiring inclusion of 24-hour contact information in

response plans. One comment addressed the provision requiring inclusion

of applicable insurance representative contacts in vessel response

plans and wanted the Coast Guard to clarify that U.S. correspondents

identified by P and I (Protection and Indemnity) clubs are independent

firms and not representatives of the particular clubs. The Coast Guard

confirms this comment writer's interpretation; however the list of

contracts is appropriate, and no modification to the regulation is

necessary.

The other comment recommended that vessel owners and operators be

required to demonstrate that they have a contractual agreement with

wildlife response contractors or that the owners and operators

demonstrate that they have the equipment, training, and permits to

conduct wildlife response efforts themselves. The Coast Guard

disagrees. The vessel owner or operator is responsible for treatment or

care of damaged natural resources, but the Coast Guard is not requiring

a contract for these resources as this is beyond the scope of this

rulemaking. However, in order to facilitate wildlife response efforts

in the event of oil spills, owners and operators are encouraged to

assist in financing qualified volunteer wildlife rescue organizations

which would be responding to such spills.

The Coast Guard has added a subparagraph to this provision

requiring the list of contacts to include persons to notify for

activation of the spill management team for average most probable,

maximum most probable, and worst case discharges. This requirement will

elicit the necessary information regarding the oil spill management

team so that the appropriate person could be contacted promptly in the

event of certain oil discharges.

Plan review, update, revision, amendment, and appeal procedure. The

title of this section was changed from ``Plan review and update

procedures'' to more clearly define the contents of this section.

Geographic-specific appendices for each COTP zone in which a vessel

operates. Two comments were received addressing this paragraph which

requires the inclusion of geographic-specific appendices in vessel

response plans and provides for the contents of such appendices.

Both comments called for more stringent requirements on the OSROs

required to be identified in these geographic-specific appendices. One

comment argued that the Coast Guard should set nationwide standards for

OSRO inspection, approval, and certification. This comment continued by

contending that under current regulations OSROs may avoid the voluntary

evaluation process. The comment also expressed concern that vessel

owners or operators may be left legally responsible for ensuring the

adequacy and regulatory compliance of the OSROs identified in their

geographic-specific appendices. The other comment urged the Coast Guard

to ensure through the certification process that OSROs identified in

these appendices have adequate resources to respond on behalf of each

of their members. This comment also expressed concern about over-

commitment of resources by OSROs. The Coast Guard understands these

concerns, but, as previously stated, it is the ultimate responsibility

of the owner or operator to ensure that the private resource for which

it contracts and upon which it relies in the event of a spill, is

qualified and prepared to meet the response capability needed by the

vessel. The Coast Guard does have a program for classifying contractors

(NVIC 12-92; December 4, 1992) which takes into account the quantity of

equipment, its designed purpose, the planning capacity of the

resources, and the number of trained personnel the contractor has. A

listing of these classified oil spill removal organizations is

available from Commanding Officer, National Strike Force Coordination

Center; (Attn: OSRO Classification Review); 1461 U.S. 17 North;

Elizabeth City, NC 27909; telephone number: (919) 331-6000.

The Coast Guard has amended the provision under this paragraph

regarding certain information which is repeated for each geographic

area in which the vessel operates. As revised in the final rule, the

vessel owner or operator has the option of specifying the location of

such information in the plan or providing the information in the

particular geographic-specific appendix. This revised measure should

save time in the development of vessel response plans in that

information would not have to be duplicated.

The Coast Guard also added a subparagraph to this paragraph

elaborating upon the requirement to include dispersant capabilities in

the geographic-specific appendix if the owner or operator elects to

include use of dispersants in the response plan. This subparagraph

provides that the appendix, if applicable, must identify dispersant

capability, areas of preapproval, and procedures for employing the

dispersant. Although, in the IFR, this paragraph previously required

the appendix to include information on dispersant capabilities, this

new subparagraph reiterates the requirements that were previously only

specified in section 8 of Appendix B of this part. It requires the plan

to further elaborate upon dispersant capabilities by providing

information concerning preapproval areas and dispersant employment

procedures. This date will inform the Coast Guard not only about the

availability of dispersants but also about where and how such

dispersants may be used in an oil spill situation.

Section 155.1040 Response Plan Requirements for Unmanned Tank Barges

Carrying Oil as a Primary Cargo

General information and introduction. One comment was received

regarding the general requirements of this section. This comment urged

the Coast Guard to establish requirements for towboat operators,

tankermen, and fleeting and facility operators in addition to those

requirements for owners or operators of tank barges. This comment

argued that towboat operators, tankermen, and fleeting and facility

operators often fail to notify authorities, cause damage to the barges,

and fail to implement cleanup activities. This comment contended that

these shortcomings leave a barge owner responsible despite his or her

lack of knowledge. It is the onus of a barge owner to ensure that the

[[Page 1061]]

towboat's operators are familiar with the response plan and can handle

a spill situation.

The Coast Guard has also amended this paragraph to clarify that the

list of tank barges in the response plan must include each tank barge's

country of registry, call sign, and IMO international number, if

applicable, as well as its official number. These added requirements

will further assist the Coast Guard in identifying a vessel in the

event of an oil spill.

Notification procedures. One comment was received addressing this

paragraph. It contended that a requirement to notify State authorities

is not within the purview of the Coast Guard unless the State has

specifically required the Coast Guard to do so. The Coast Guard

disagrees. As stated previously, other statutes and regulations

establish oil spill reporting requirements, and the Coast Guard has

determined that owners or operators should set procedures for these

notifications in their response plans. To minimize the burden on vessel

owners and operators and facilitate rapid notification of a spill, most

of this information can be provided in a checklist, which is consistent

with Regulation 26 of MARPOL 73/78. To ensure consistency with IMO

Resolution A648(16), the Coast Guard revised the rule to require that

response plans include various additional items that must be identified

in the initial notification and to establish guidelines for follow-up

reports.

Shipboard mitigation procedures. No comments specifically

addressing this paragraph were received. However, as the procedures in

Sec. 155.1035 regarding shipboard spill mitigation were affected by the

subsequent rulemaking on discharge removal equipment (58 FR 67995;

December 22, 1993), the procedures regarding shipboard spill mitigation

have been affected for unmanned vessels under this section.

Consequently, the Coast Guard has amended this paragraph to require the

inclusion of procedures for deployment of discharge removal equipment

in response plans, and the inclusion of procedures for internal

transfer of cargo in response plans as provided in the discharge

removal equipment IFR. Additionally, a provision was added requiring

identification in the response plan of the shore location and 24-hour

access procedures for the computerized shore-based damage stability and

residual structural strength calculation programs. These programs are

required by 33 CFR 155.240, which was added to 33 CFR part 155 by the

discharge removal equipment IFR.

Shore-based response activities. The Coast Guard amended this

paragraph by adding a subparagraph requiring the inclusion in the

response plan of any applicable procedures for transferring

responsibility for direction of response activities from towing vessel

personnel or tankermen to the shore-based spill management team.

Additionally, the Coast Guard amended the paragraph to require

inclusion of more detailed information concerning the organizational

structure of response actions. In the IFR, this provision merely

required the listing of enumerated functional areas in this part of the

response plan. The provision as revised requires the inclusion of

information regarding key components within each of these enumerated

functional areas. This information is currently required for approval

of response plans. This paragraph has also been reworded so as to

require the inclusion in the response plan of the functional job

descriptions for each oil spill management team position within the

organizational structure. These added requirements will better clarify

the responsibilities of those involved in oil spill cleanup, thereby

promoting more efficient implementation of response plans.

List of contacts. No comments specifically addressing this

paragraph were received. However, the Coast Guard has added a

subparagraph to this provision requiring the list of contacts to

include persons to notify for activation of the spill management team

for average most probable, maximum most probable, and worst case

discharges. This requirement would elicit the needed information

regarding the oil spill management teams so that the appropriate person

could be contacted promptly in the event of certain oil discharges.

This information is currently required for approval of response plans.

Plan review, update, revision, amendment, and appeal procedure. The

title of this section was changed from ``Plan review and update

procedures'' to more clearly define the contents of this section.

Geographic-specific appendices for each COTP zone in which a tank

barge operates. The Coast Guard has amended the provision under this

paragraph regarding certain information which is repeated for each

geographic area in which the vessel operates. As revised in the final

rule, the vessel owner or operator has the option of merely specifying

the location of such information in the plan, rather than duplicating

the information in the appendix. This revised measure should save time

in the development of vessel response plans in that efforts would not

have to be duplicated.

One comment was received addressing this paragraph which requires

the inclusion of certain geographic-specific appendices with vessel

response plans. This comment objected to the provision requiring that

these appendices certain information on the volume and type of oil on

which the required response resources are calculated. It argued that

the requirement is burdensome and redundant in that this information is

readily available on the Certificates of Inspection for barges which

already list the cargo that the barges carry and have set allowances

for the volumes. The Coast Guard disagrees. This information needs to

be included in the response plan to have a consolidated, easy, quick

reference to use in a spill situation. However, as stated above, the

Coast Guard has eliminated the previously required duplication within

the plan by changing the language of paragraph (j) to allow the barge

owner or operator to specify the location of volume and type of oil

information in the vessel response plan itself rather than including it

in the geographic-specific appendix.

If the owner or operator has proposed in the response plan the use

of dispersants, the dispersant capabilities must be listed in the

geographic-specific appendices. This discussion should identify the

following: Dispersant capability; areas of preapproval; and procedures

for employing dispersants. This data will inform the Coast Guard not

only about the availability of dispersants but also about where and how

such dispersants will be used in an oil spill situation.

Appendices for barge-specific information. Two comments were

received in response to this section. One comment argued that the

requirement to amend the vessel response plan to include required

drawings for barge-specific appendices each time an inland barge is

chartered or released is an administrative burden. This comment

suggested that, as an alternative, the Coast Guard could allow a cross-

reference to the drawing submitted in the barge owner's vessel response

plan, or the barge owner could submit a letter to the Coast Guard

citing changes in lieu of amending the vessel response plan. The Coast

Guard agrees. Separate response plans do not need to be submitted for

sister vessels and this exclusion holds true for barges.

One comment objected to the provision requiring that these

appendices contain information on the volume and type of oil on which

the required response resources are calculated. It argued that the

[[Page 1062]]

requirement is unclear, burdensome, and redundant in that this

information is readily available on the Certificates of Inspection for

barges which already list the cargo that the barges carry and have set

allowances for the volumes. The Coast Guard disagrees. Although this

information is provided in the certificate of inspection, for ease of

use during a cleanup, this information should also be listed in the

response plan.

In this final rule, the Coast Guard has added the requirement for a

list of principal characteristics (i.e., length, beam, gross tonnage,

etc.) of the vessel to be included in appendices for barge-specific

information. This information will assist the responder in gaining a

better understanding of the design of a vessel and will assist in the

efficient implementation of a response plan should the need arise. This

information is readily available and, therefore, places no extra burden

on the plan submitter. It simply presents a clarification of the

information required to be submitted in the interim final rule.

Section 155.1045 Response Plan Requirements for Vessels Carrying Oil

as a Secondary Cargo

General information and introduction. No comments specifically

addressing this paragraph were received. However, the Coast Guard has

made various amendments to this paragraph.

Paragraph (a) of the IFR has been revised and placed in new

paragraph (a)(6), and the remaining paragraphs redesignated

accordingly. In addition to other basic vessel information required to

be included in the response plan, paragraph (a)(6), as revised,

requires the inclusion of the vessel's IMO international number. This

additional requirement will better assist the Coast Guard in

identification of vessels which might be involved in an oil spill.

The provision in paragraph (a)(3) requiring inclusion of

identification of geographic areas covered by the plan has also been

reworded in this final rule. The provision has simplified the

requirements so that, with regard to identification of geographic areas

under this section, the submitter of the plan need only include a list

of COTP zones in which the vessel intends to handle, store, or

transport oil. Because the COTP zones would encompass any geographic

area covered by the plan, the Coast Guard determined that the

additional wording in this provision was redundant.

The provision requiring a vessel owner or operator to develop his

or her plan based on the total volume of oil carried in bulk as cargo,

which appeared as a separate paragraph (a) in the IFR, has been changed

to require that the vessel owner or operator specify in his or her

response plan the total volume of oil carried in bulk as cargo [See

paragraph (a)(6)]. This revision will result in the Coast Guard

receiving specific information about how much oil a vessel has on

board. This information enables the Coast Guard to better analyze the

appropriateness of response measures.

Notification procedures. One comment was received addressing this

paragraph which requires the inclusion of certain notification

information in the response plan for a secondary cargo vessel. This

comment contended that requiring vessel owners and operators to notify

State authorities is outside of the purview of the Coast Guard unless

the State has specifically required the Coast Guard to do so. The Coast

Guard disagrees. As stated previously, other statutes and regulations

establish oil spill reporting requirements, and the Coast Guard has

determined that the owners or operators should set procedures for these

notifications in their response plans. To minimize the burden on vessel

owners and operators and facilitate rapid notification of a spill, most

of this information can be provided in a checklist, which is consistent

with Regulation 26 of MARPOL. To ensure consistency with IMO Resolution

A648(16), the Coast Guard revised the rule to require response plans to

include the IMO international number, when applicable.

Shipboard spill mitigation procedures. No comments specifically

addressing these paragraphs were received. However, the Coast Guard

revised this paragraph by condensing the classifications regarding

required information about shipboard spill mitigation procedures to be

included in response plans. These vessels which would fall into the

IFR's classification covering vessels carrying more than 100 but less

than 1000 barrels of oil would be covered by the classification for

vessels carrying over 100 barrels but less than 5000 barrels of oil.

Because even a discharge of over 100 barrels could potentially cause

significant environmental damage, more detailed information than that

which was previously required will assist the Coast Guard in

ascertaining the response capabilities of vessels falling within this

category.

Shore-based response activities. Two comments were received in

response to this paragraph requiring certain information on shore-based

response activities. One comment recommended that vessel owners be

required to demonstrate either that they have a contractual agreement

with wildlife response contractors or that they have the equipment,

training, and permits to conduct wildlife response efforts themselves.

The Coast Guard disagrees. However, as stated before, owners and

operators are encouraged to financially assist volunteer wildlife

rescue organizations who would generally respond to the needs of

wildlife in the event of and oil spill.

The other comment objected to the requirement to specify a

qualified individual and a spill management team in the response plan

as these requirements apply to fishing industry tender vessels. The

comment contended that the typical spill from a fishing tender vessel

is 10 to 20 gallons, and this spill would be too small to warrant use

of such resources. Additionally, this comment argued, this provision

would be costly to the fishing industry in that OSROs usually want a

retainer of $20,000 annually. The applicability of these requirements

to fishing vessels was revised by section 321 of the Coast Guard

Authorization Act of 1993 (Pub. L. 103-206, 107 Stat. 2419). When

fishing vessels or fish tender vessels are engaged only in the fishing

industry and are less than 750 gross tons, they are deemed not be tank

vessels. Accordingly, such vessels are now excluded from vessel

response plan requirements.

The Coast Guard amended this paragraph by adding a subparagraph

requiring the inclusion in the response plan of any applicable

procedures for transferring responsibility for direction of response

activities from vessel personnel to the shore-based spill management

team. Additionally, the Coast Guard amended this paragraph to require

inclusion of detailed information concerning the organizational

structure that will be used to manage response actions. The provision

requires the inclusion of information regarding key components within

each of these enumerated functional areas of the organizational

structure. This paragraph has also been reworded so as to require the

inclusion in the response plan of the functional job descriptions for

each oil spill management team position within the organizational

structure. These added requirements will better clarify the

responsibilities of those involved in oil spill cleanup, thereby

promoting more efficient implementation of response plans. All of these

provisions are currently required for approval of response plans.

List of contacts. The Coast Guard has added a subparagraph to this

provision requiring the list of contacts to include persons to notify

for activation of the

[[Page 1063]]

spill management team. This requirement would elicit the needed

information regarding the oil spill management teams so that the

appropriate person could be contacted promptly in the event of an oil

spill.

Training procedures. One comment was received which addressed this

paragraph regarding the listing of training procedures in response

plans for secondary cargo vessels. This comment recommended that the

Coast Guard allow a reasonable amount of time of acquire refresher

training for each individual with response duties under the vessel's

response plan. The Coast Guard agrees. These time frames are addressed

by other regulatory requirements.

The Coast Guard added a subparagraph to this paragraph clarifying

that nothing in Sec. 155.1040 is meant to relieve the vessel owner or

operator from meeting the Occupational Safety and Health Administration

(OSHA) standards for emergency response operations in 29 CFR 1910.1200.

Plan review, update, revision, amendment, and appeal procedure. The

title of this section was changed from ``Plan review, update, and

appeal procedures'' to more clearly define the contents of this

section. Although no comments were received addressing this paragraph

of Sec. 155.1045, the Coast Guard has greatly simplified this paragraph

by cross-referencing Sec. 155.1070 which contains similar requirements.

This change should facilitate interpretation and implementation of

these regulations.

Geographic-specific appendices for each COTP zone in which a vessel

operates. The Coast Guard amended this provision by requiring inclusion

in the geographic-specific appendix of a list of the spill management

team(s) available to respond to the vessel's worst case oil discharge

in each COTP zone in which a vessel operates. This requirement will

elicit information needed by the Coast Guard to determine the vessel's

response capabilities.

If the owner or operator has proposed in the response plan the use

of dispersants, the dispersant capabilities must be listed in the

geographic-specific appendices. This discussion should identify the

following: Dispersant capability; areas of preapproval; and procedures

for employing dispersants. This data will inform the Coast Guard not

only about the availability of dispersants but also about where and how

such dispersants will be used in an oil spill situation.

Appendices for vessel-specific information. The Coast Guard added

this paragraph to this section in the final rule. It requires certain

information concerning a vessel and its cargo be provided in an

appendix to the vessel response plan. This additional information will

assist the Coast Guard in determining a vessel's response capabilities.

This information is currently required for approval of response plans.

Section 155.1050 Response Plan Development and Evaluation Criteria for

Vessels Carrying Groups I Through IV Petroleum Oil as Primary Cargo

Equipment operation criteria. Eight comments were received in

response to equipment operation criteria. Five comments addressed the

issue of inspection and operation of oil spill response vessels (OSRVs)

while responding to spills of different grades of oil.

One comment suggested that the Coast Guard modify Table 1 of

Appendix B, to which this section refers, to require that 80% recovery

devices operating in wave heights up to 4 feet in the Great Lakes be

capable of accommodating the required 20% shallow water (6 feet or

less) response capability. Another comment suggested that the Coast

Guard amend the nearshore response equipment requirement to exempt

shallow water equipment from the operating requirements of Table 1 of

Appendix B to which this section refers.

The Coast Guard is aware that it may be difficult to have equipment

that meets both the wave height requirement and the shallow water

requirement at the same time. The Coast Guard has modified Table 1 to

specifically state that the equipment provided for operation in the

shallow water depths are exempt from the significant wave height

requirements. In other words, the Table 6 response requirement

capabilities could be met by separate pieces of equipment: the

specified amount of shallow waters equipment must be available, and the

complement of equipment necessary to recover the Table 6 volumes must

be capable of operating in the specified wave heights.

One comment requested clarification of the requirement to match

response equipment with the grade of oil carried. As discussed in the

NPRM, the Negotiated Rulemaking Committee originally recommended using

two oil categories: persistent and nonpersistent. They also recommended

that the Coast Guard consider the relative persistence of oils and

emulsification.

The Coast Guard has divided persistent oil into four groups based

on a protocol developed by the International Tanker Owners Pollution

Federation (ITOPF) to account for the differences in persistence. The

Coast Guard has defined oil in five groups: nonpersistent and four

other groups based on their specific gravity. While inspection of the

response vessel is more appropriately based on specific grades of oil

related to volatility; recovery capabilities are more dependent on the

specific gravity.

Use of 35% as standard for reclassifying. Three comments were

received which addressed this issue. One comment urged that

reclassification of the operating environment by a COTP be subject to a

national level review and approval in order not to compromise the one

nationwide standard which was cited in the ``Discussion of Comments and

Changes'' section of the IFR. Another comment suggested lowering the

reclassification threshold from 35% to 10% to ensure that the equipment

identified in the response plan would be available to operate during

all seasonal variations. Another comment suggested that the criteria

for reducing the classification of a body of water should be set at 85%

rather than 35%. The COTP is authorized to change the classification of

a body of water based on 35% of the existing conditions. As discussed

in the IFR, the Coast Guard has based the criteria on 35% as this

figure is considered to be the most appropriate.

Requirements for response resources. One comment was received which

addressed this issue. It requested clarification on how grades of oil

correspond to groups of oil and argued that the grade of oil spilled

may not be the same as the grade of oil recovered. The Coast Guard

recognizes that oil characteristics may change with time and

weathering. Basing the response on the grade of oil carried is a

starting point. A well-formulated response plan will recognize these

possible changes and provide for the recovery of weathered oil.

Average most probable discharge requirements. Eleven comments were

received responding to the provision in this paragraph for a waiver for

vessels moored at facilities. Four comments supported the provision.

One comment supported the provision with reservations: This comment

suggested that the requirement that the response resources include a

containment boom in a quantity equal to twice the length of the largest

vessel involved in the transfer be amended to include an alternative to

this requirement. This comment also suggested that, in the alternative,

the quantity of the containment boom be in the quantity needed to

contain a 50-barrel discharge. The Coast Guard disagrees. Recognizing

that oil will react differently depending

[[Page 1064]]

on the environmental conditions, the Coast Guard has elected to base

the average most probable discharge boom requirements on the length of

the vessel.

Two comments objected to this waiver provision for vessels moored

at facilities, on contending that a vessel response plan should require

that vessels plan for an average most probable discharge and other

contending that this provision exposes terminal operators to additional

legal and financial liability for acts of third-party vessel operators.

The Coast Guard agrees that a vessel owner or operator should plan for

responding to such discharges, and has amended the rule to reflect this

change. This change will not require the contracting of resources. A

vessel's response planning requirements are independent of the legal

and financial liability of the terminal operator.

The Coast Guard has determined that it is not necessary to require

both the facility and vessel owners or operators to ensure, by contract

or other approved means, that resources are available to respond to an

average most probable discharge. Requiring the facility to plan for and

ensure the availability of these resources is consistent with 33 CFR

154.545, which already requires facilities to have access to discharge

containment equipment to control an oil discharge from operations from

that facility. If the facility has identified these response resources,

the Coast Guard has determined that they will be readily available to

respond to an average most probable discharge from the vessel occurring

during transfer operations. The wording of the regulation has been

modified to clarify the responsibilities.

One comment questioned the provision allowing vessels to name

terminals as resources available for vessel discharge response, arguing

that the OSRO is placed in a position of initiating work for a party

(vessel owner or operator) with whom financial assurance mechanisms

have not been established. Likewise, another comment disagreed with

this provision, contending that the IFR seems to amend the statute by

imposing on terminal owners and operators the duty to respond to any

spill during a transfer, even if the spill is from a vessel. This

comment argues that the Coast Guard cannot alter respective duties

imposed by OPA 90. The Coast Guard agrees. The response plan

regulations have not relieved the responsibility of either party from

responding to a spill. The responsible party is always required to

promptly respond to a spill. Paragraph 1050(d)(3) applies only to

average most probable discharges and simply provides that the vessel

owner or operator need not ensure the availability of resources to

respond to an average most probable discharge through a contract or

other approved means.

One comment suggested that the delivering lightering vessel be

treated as a vessel delivering at a facility and be granted a waiver

from the requirement of identifying resources necessary to respond to

an average most probable discharge. This comment further suggested that

the receiving vessels be assigned the responsibility of identifying the

response resources. The Coast Guard disagrees. Both vessels engaged in

cargo transfer operations must plan and ensure resources for an average

most probable discharge. These resources may be the same; however, they

must be identified and ensured available by contract or other approved

means by each vessel.

One comment requested that the Coast Guard clarify that a vessel

transferring oil at a facility with a plan in accordance with NVIC 8-92

does not have to secure the resources to respond to an average most

probable discharge. This comment further stated that NVIC 8-92 makes

this clear, but it is not clear in the IFR. The Coast Guard agrees, and

the wording has been changed to clarify this situation.

One comment was received in response to the applicability of the

average most probable discharge requirements to bunkering. This comment

sought clarification as to whether barges would have to plan for twice

the length of the longest vessel in the transfer and whether a waiver

could be obtained from the boom deployment requirement when barges are

supplying fuel to vessels in the Mississippi River. This comment stated

that it would appear more logical to focus efforts on collecting oil

where it would be instead of where it was and argued that the

containment boom fails in currents greater than 1 knot. It is most

effective to contain and remove the oil at the source, not to wait

until the oil has flowed down stream and dispersed throughout a wider

area. Measure can be taken in currents greater than 1 knot to ensure

that response equipment is deployed in an effective manner so that

current has as little impact on the equipment as possible.

Ten comments were received in response to the applicability of the

average most probable discharge requirements to lightering. One comment

urged that tank vessels less than 100 feet long be exempt from the

requirements of Sec. 155.1050(d)(1)(i) of the IFR. This comment also

suggested that the language of the paragraph regarding the containment

boom requirement be amended to require deployment of the containment

boom within 2 hours of oil spill detection. The Coast Guard does not

consider it appropriate to exempt vessels under 100 feet long from this

requirement. Cargo transfer operations involving any vessel pose a risk

to the environment; therefore, it is necessary to require equipment to

mitigate the effects of that spill. Rapid containment is an essential

element of minimizing impact and providing for efficient removal.

Therefore, the 1-hour maximum arrival time is appropriate.

Several comments were received regarding lightering operations.

They argued that most lightering operations occur at distances in

excess of 12 miles offshore. At these distances, they argued that the

practical result of requiring an owner or operator to plan for the

deployment of boom and skimmers within 1 and 2 hours, respectively, of

an operational spill is that the equipment must be maintained on-scene.

They further argued that this provision will either require the

carriage of the equipment on board one of the vessels engaged in the

lightering operation or on board a support vessel which stands by and

assists the operation.

These comments stated that the costs of modifying a support vessel

with the necessary equipment would be between $400,000 and $600,000,

and the costs of having the support vessel stand by on-scene would be

in excess of $3,000 per day. They maintained that these costs are not

justified by the relatively minimal benefits of having response

equipment immediately available on-scene to recover a 50-barrel spill

in the open ocean environment. The comments also argued, that for a

small operational spill there would be ample time to mobilize the

necessary response equipment prior to the spill reaching any sensitive

areas. These resources would be the same ones already identified in the

response plan, and ensured by contract or other approved means, to

respond to a maximum most probable discharge and worst case discharge.

For a maximum most probable discharge or for Tier 1 of the worst

case discharge, resources must be capable of arriving on-scene in the

open ocean area within 24 hours plus travel time from shore. A further

argument presented is that, in a lightering situation, the two vessels

are lashed together with large fenders between them, creating positive

containment for any oil that may spill. A 50-barrel spill will be

captured between the two vessels until voluntary action is taken to

separate the vessels and allow response activity to begin. Many

comments argued that the

[[Page 1065]]

containment created in this manner is more effective than the use of

ocean boom.

A number of comments to the docket also recommended that the

quantity and size of the required boom be reduced. No specific changes

were recommended. The Coast Guard agrees that the time limits for

responding to spills beyond 12 miles are inappropriate. However, as

stated above, the use of boom is a major factor in the effective

cleanup of a spill. The amount of boom required is based on an estimate

of how much boom would be needed for initial containment of a 50-barrel

oil discharge either alongside or between two vessels involved in an

oil transfer operation.

During the course of plan review, the Coast Guard received several

requests for waivers from the response time planning requirements for

the average most probable discharge for vessels engaged in lightering

operations, noting that, for lightering operations well offshore,

response equipment would either have to be prestaged or a support

vessels would have to be on scene. The costs of a support vessel with

the necessary equipment are estimated to be between $400,000 and

$600,000. Having the support vessel stand by on-scene would be in

excess of $3,000 per day. The regulatory text in the final rule has

been modified to make the response time a function of the distance from

the nearest shoreline for lightering operations that occur 12 or more

miles offshore. For discharges occurring between 0 and 12 miles

offshore, no additional travel time is permitted, as these operational

transfers occur in the typically more environmentally sensitive areas

close to shore. Even in this zone, this may mean that equipment will

have to be prestaged and/or on-scene in order to meet these short time

requirements. From 12 to 200 miles, the allowed response time is 1 hour

plus travel time, using an assumed transit speed of 5 knots. For

example, the required response time for boom and skimmers for a vessel

lightering anywhere from 0 to 12 miles from shore is 1 and 2 hours,

respectively. For a vessel lightering at 12.5 miles, the required

response time for both boom and skimmers is 3.5 hours (1 hour plus 12.5

miles/5 knots). The available data on lightering operations and spills

incident to these operations did not indicate an obvious break point

which could be used to determine which operations should be subject to

the stricter response times. The 12 mile distance was selected, in

part, because it would have limited impact on industry and, in part,

because it is a recognized international boundary for pollution

purposes. Since virtually all lightering takes place greater than 12

miles from the shoreline, this change should facilitate response

planning for most vessel operators by allowing them to factor in travel

time. Vessel operators who contemplate lightering within 12 miles of

shore will have to balance the convenience and cost savings of close-in

operations against the cost of meeting the short response times

specified. The provisions of this change have already been allowed for

owners and operators who have submitted written requests for response

time alternatives.

One comment questions the advisability of requiring vessels engaged

in lightering to plan for a 50-barrel spill by requiring a containment

boom of twice the length of the largest vessel and suggested that the

average most probable discharge requirements for lightering be combined

with the maximum most probable discharge requirements for lightering.

The Coast Guard disagrees. The response times required for maximum most

probable spills are inappropriate for smaller average most probable

discharges. Response to smaller spills may require less equipment;

therefore, it is reasonable to expect that the deployments in response

to these more frequent spills be extremely timely.

Several comments have encouraged that the Coast Guard address

contracting of specific resources for transfer operations. The Coast

Guard has amended Sec. 155.1070(c)(5) to permit owners or operators to

change the OSRO who has been contracted to provide AMPD response

coverage for a transfer operation without having to change the response

plan. The vessel response plan must identify a contracted resource for

this coverage, however, the owner or operator may substitute another

OSRO who is capable of responding in the appropriate operating

environment, within the required response time.

Maximum most probable discharge requirements. Three comments

suggested the elimination of the language in the preamble stating that

response resources should be in an adjacent COTP zone. One of these

comments argued that there should be no provision dictating where

resources should be located as long as response times are met. The two

other comments merely suggested deletion of the word ``adjacent'' from

the COTP zone reference in the preamble, citing that the rule itself

does not require that resources be located in an adjacent COTP zone.

The Coast Guard agrees with these comments that the rule does not

include any reference to ``adjacent COTP zone'' in the text. No

limitation on the location of these resources was intended.

Worst Case Discharge Requirements

General requirements. Four comments were received in response to

worst case discharge requirements in general. One comment requested

clarification as to whether the amount of boom identified by the owner

or operator of a vessel as sufficient to respond to a worse case

discharge would also be considered sufficient to respond to a discharge

of lesser size. The Coast Guard has changed the wording of the

regulations to clarify that the boom should be sufficient to respond to

a discharge up to and including a worst case discharge.

One comment objected to the omission of credit in the form of

reduced planning standards or response times for taking preventive

measures such as having vessels with double hulls, double bottoms,

protective cargo, and ballast pumping. The Coast Guard disagrees with

this suggestion. While these preventive measures would probably reduce

the likelihood of oil spills and mitigate the damage therefrom,

preparation for response to oil spills is still a necessary factor in

oil pollution prevention. Accordingly, requirements should not be

waived merely because an owner or operator has taken additional

precautions against oil pollution.

This comment further asserted that a statement in the ``Summary of

Benefits'' section of the IFR that the principle benefit of the vessel

response plan requirement is the potential reduction in oil spilled is

false and argued that the IFR dealt exclusively with response rather

than prevention. The Coast Guard disagrees with this assertion: the

goal of preparing for response to oil spills would be to mitigate the

amount of pollution resulting from an actual oil spill. Mitigation of

oil pollution is prevention; therefore, the IFR is dealing with

prevention in that it is providing regulations for preparing for

response with the goal of preventing extensive oil spill damage to the

marine environment.

One comment recommended that the Coast Guard require owners and

operators to ensure availability of response resources for potential

spills which would be smaller than a worst case discharge. They argued

that such a requirement would minimize the majority of impact on the

environment which occur before the 12-24 hour Tier 1 response time is

met.

The Coast Guard agrees. The intent of the regulation has always

been to have response resources for the full range of spill volumes up

to and including a worst case discharge. The Coast Guard has modified

the language in the

[[Page 1066]]

regulation to clarify that the responsibility of an OSRO for a specific

condition (i.e., maximum most probable discharge) is also responsible

for response to spills of lesser amounts of oil.

With reference to prepositioned equipment in the State of

Washington, one comment recommended that offshore response equipment be

staged in Port Angeles until Neah Bay can support offshore response

vessels. This comment is beyond the scope of this rulemaking project.

Shallow water response equipment. Seven comments responded to the

worst case discharge requirements as they apply to shallow water

activities. One comment stated that it was reasonable for the Coast

Guard to require 20% of the response equipment to operate in 6 feet or

less water depth; however, the comment continued by arguing that the

requirements in Table 1 of Appendix B should be reduced to require that

only 80% recovery devices operate in wave heights up to 4 feet. As

stated previously, the Coast Guard has modified Table 1 of Appendix B

to clarify that equipment designed to operate in water of less than 6

feet does not necessarily have to meet the significant wave height

planning requirements. The regulatory text of this provision has also

been changed to reflect this exemption from the significant wave height

planning requirements of Table 1 of Appendix B of part 155.

One comment argued that the requirement may be counterproductive in

that it may result in the reduction of the amount of available response

equipment capable of operating up to 12 miles offshore. The comment

further states that this reduction might be especially likely on the

West Coast where deep water and rough conditions are typical. The Coast

Guard disagrees with this statement. The response plan must account for

the total volume of the response capability caps in Table 6 of Appendix

B. The fact that some equipment will be capable of operating offshore

and some in shallow water does not detract from this accountability

requirement. However, it remains the responsibility of the owner or

operator to ensure that the proper equipment necessary for a spill is

available. This assurance may include contracting for additional

equipment if it is anticipated that it will be needed.

One comment recommended the addition of a provision requiring a

minimum level of sorbent material as part of the recovery capacity to

support mechanical equipment used in shallow-water operations. The

comment argued that because sorbents are the best means of recovery in

some areas such as marshes and cattails, failure to include such a

requirement would make it difficult or impossible to comply with the

20% standard of this section. The Coast Guard does not dispute the

value of sorbent material. The availability of this material and the

ease of getting it to the shallow water areas make it unnecessary for

the Coast Guard to include it in the regulated planning requirements. A

well-developed response plan will recognize the potential benefits of

this material and provide for its procurement and use.

One comment agreed that the shallow water requirements were

reasonable for the Great Lakes but not for shallow water with waves

measuring 4 feet breaking on the shoreline. This comment stated that no

recovery equipment capable of operating in these shallow water bodies

exists and recommended that the Coast Guard amend the nearshore

response equipment requirement so that shallow water equipment would

not have to meet the operational requirements of Table 1 of Appendix B.

The Coast Guard agrees. As discussed previously, the Coast Guard is

aware that it may be difficult to have equipment that meets both the

wave height requirement and the shallow water requirement at the same

time. Therefore, the Coast Guard is allowing response requirement

capabilities of Table 6 of Appendix B to be met by separate pieces of

equipment.

One comment generally supported these requirements but not as they

apply to operation in waters of 6 feet or less. This comment stated

that such application was overly restrictive in that if the vessel

owner or operator was responsible for identifying a large number of

shallow water skimming systems and shallow water shuttle barges to meet

the 20% requirement, the result might be a potentially complex and

unsafe operation. The comment suggested that the Coast Guard specify a

more practical operating range, such as 6-12 feet of water depth, to

allow for the use of crafts with deeper drafts and all the benefits of

larger displacement. The Coast Guard disagrees. The requirement for

being able to operate in water of 6 feet or less is necessary to allow

for cleanup in the area between the 6-foot point and the shoreline. It

is not appropriate to ignore this portion of the cleanup area.

One comment questioned the basis for establishing the percentages

of response equipment mandated to operate in certain water depths

because the majority of equipment available today is capable of being

deployed in waters of less than 6 feet. Therefore, this comment states,

by necessity, the response equipment will be part of most vessel

response plans. The Coast Guard agrees. Because use of this equipment

is already a consideration in a properly prepared planning document,

inclusion of information on this equipment should not be a burden on

industry.

One comment supported the requirement as it applied to shoreline

and nearshore operations.

Response times for tiers. Three comments were received regarding

response times for the three response tiers established by the IFR. One

comment stated that the response times in the IFR were more realistic

than in the NPRM, but believed that more time may be required for

cascading in larger items (i.e., boats) to remote locations. Prior to

the enactment of OPA 90, this belief may have been warranted. However,

a basic goal of this rulemaking project is to enhance response

resources availability, and for the most part, the project has been

successful in this regard. The response tiers in the IFR are reasonable

and set realistic goals.

One comment stated that the Great Lakes response times as required

in this section of the IFR are a significant improvement over those in

the NPRM, but further argued that neither volumes transported, vessel

traffic, nor spill history justify more rapid response times than for

other inland areas. Due to the confined nature of the Great Lakes

system and the imminent impact of spills on the surrounding shoreline,

the response times for the Great Lakes are justified and reasonable.

The maximum allowable response times provided in the tiers for the

other inland areas are based on the remote nature of some of these

areas and the difficulty of deploying equipment to those areas.

One comment suggested that the Coast Guard clearly state that the

planned-for response times do not include time for deployment of the

response equipment. The Coast Guard feels this point is clearly stated

in Sec. 155.1050(g). Where it is intended that equipment be deployed in

a specific time, as with average most probable discharge requirements

in Sec. 155.1050(d), it is specifically stated.

Higher volume port area. In this final rule, this paragraph was

moved to Sec. 155.1020. However, six comments were received in response

to this paragraph in the IFR. Two comments agreed with these

designations.

Two comments suggested designating Cape Flattery as the reference

point for the 50-mile seaward arc for the high volume port of Puget

Sound. One of these comments suggested that this area be designated in

lieu of Port Angeles, WA. The other comment also suggested that the

tugs necessary for use with the

[[Page 1067]]

response vessels in these areas should have the dual capability to

rescue disabled ships within a 6-hour response time. One comment urged

the inclusion of Cook Inlet as a higher volume port area. One comment

argued that the definition of a higher volume port area avoids the

concept of environmental sensitivity.

The higher volume port areas were determined by the Coast Guard

based on a study of persistent and non-persistent oil movement by

vessels, tank ship and tank barge transits, and overall vessel transits

in a port area. Methods for determining the higher volume port areas

were addressed in the notice of proposed rulemaking for these

regulations (57 FR 27514; June 19, 1992). For a uniform national

standard, the Coast Guard has determined that the overall volume of

shipped oil, and not environmental sensitivity, is the best indicator

of those areas requiring an enhanced standard for response equipment.

The area contingency plans may contain additional strategies based on

unique local consideration, including environmental sensitivity.

Notification and mobilization times. Two comments were received in

response to these provisions. One comment requested clarification as to

whether the IFR required that all Tier 1 resources be capable of the

initial mobilization within 2 hours after notice as required in this

section. All Tier 1 resources must be mobilized within a maximum of 2

hours. Because of the nature of oil spill cleanup, all equipment should

be mobilized and deployed on scene as quickly as possible.

The other comment recommended that the Coast Guard require Tier 1

resources to be located within the COTP zone for which the resources

are required. The Coast Guard disagrees. The Tier 1 equipment does not

have to be located within the COTP zone; however, it must be on the

scene within the specified Tier 1 times. The tiered time frames are

provided as maximum time frames for the minimum amount of equipment.

The equipment should be on-scene and deployed as soon as possible to

allow for the most efficient cleanup.

Dispersants. Eight comments were received in response to this

paragraph of the IFR. Four comments supported the inclusion of a

provision allowing credit for using dispersants. One of these comments

also supported making use of dispersants optional. Another of these

four comments also recommended allowing a credit as high as 100%. The

Coast Guard disagrees. Mechanical recovery is the preferred method as

it provides for the removal of the oil from the environment, and the

25% credit value in preapproved areas was a recommendation of the

Negotiated Rulemaking Committee. The final rule also retains the

language indicating that identification of dispersant capability in a

response plan provides no assurance that their use will be authorized

during a spill response.

One comment strongly opposed permitting credit, claiming that

allowing this credit will not lessen the amount of oil released into

the environment. This comment further contended that caps already

severely limit on-water mechanical recovery and that mechanical

recovery should not be further reduced through dispersant credits. This

comment also argued that if dispersants are allowed, the Coast Guard

should shorten the required response time to 8 hours to ensure

application during the optimal window of opportunity for dispersant

use. Two comments recommended that the 12-hour response time be

increased to 24 hours. One comment claimed that this increase is

supported by current research. The writer of the comment, however, did

not reference such research. The other comment argued that the 12-hour

response time would only be feasible if a fleet of dedicated aircraft

were chartered to respond to the spill. Another comment also

recommended shortening the response time to 6 hours, arguing that

responding to an oil discharge within 12 hours would be too late. One

comment recommended that the final rule provide that during the first

day of response activity, dispersants must arrive on scene within 12

hours, and, during the remainder of the response activity, dispersants

should be available as needed to sustain the assumed rate of dispersant

application.

The Coast Guard disagrees with the comments discussed in the

previous paragraph regarding dispersants and response times. The

specified caps do not limit mechanical recovery, they only provide a

minimum requirement for ensuring equipment by contract or other

approved means. Increases in the caps are scheduled for 1998 and

possibly in 2003 if further increases are justified. The Coast Guard

also disagrees with changing the minimum on-scene arrival time for

dispersants. Comments to the NPRM indicated that the recommended

arrival times on-scene are between 6 hours to an unspecified time less

than 24 hours. The Coast Guard required that dispersants arrive on

scene within 12 hours of discovery of the discharge. As with many

aspects of oil spill response, early action facilitates efficient

cleanup and, if use of dispersants is appropriate, dispersants should

normally be applied as soon as possible. However, there is no

justification for mandating the shorter time period for planning

purposes.

One comment does not support the use of dispersants but argued

that, if their usage is permitted, it is not sufficient to merely

require identification of dispersants. This comment continued by

contending that the Coast Guard should require that sources of

dispersants be purchased or contracted for and that the owner or

operator of a vessel should be required to contract for equipment, such

as planes, that are necessary for the dispersant application. The Coast

Guard partially agrees. Although the rule does not require that a

supply of dispersants actually be purchased, it does require the owner

or operator to make firm arrangements to have dispersants available

when needed and authorized. This provision [now Sec. 155.1050(j)]

clarifies that the dispersants and the necessary resource to apply them

must be ensured by contract or other approved means in order to receive

the 25% credit.

Salvage and firefighting. Twelve comments were received responding

to this paragraph. One comment supported the Coast Guard's intent of

ensuring adequate marine salvage and firefighting capability in the

United States.

Four respondents to the IFR commented on the 24-hour required

response time for firefighting and salvage resources. Three of these

comments stated that they were uncertain whether this 24-hour response

time would be realistic in 1998. One comment suggested reducing the

time to a maximum of 1 hour for high volume ports and 12 hours in the

open ocean. The Coast Guard recognizes that private salvage and marine

firefighting capability is currently limited in the United States.

Complying with this requirement has been delayed until 1998 to provide

sufficient time for the industry to assess the existing capability

fully and to take steps to address any shortfalls. As stated many times

previously, early action is imperative to efficient cleanup. The Coast

Guard, however, does not find justification for shortening the response

time planning requirement for firefighting and salvage equipment.

Three comments urged that the Coast Guard provide adequate time for

public comment when issuing regulations upgrading salvage requirements

in 1998. The Coast Guard agrees that, in the event it intends to

increase salvage requirements in excess of the already stated 1998

levels, it will allow for adequate time for public comment.

[[Page 1068]]

Two comments expressed concern that implementation of the

regulation regarding salvors would result in more owners and operators

contracting with non-capitalized salvors rather than legitimate salvors

with adequate equipment to conduct salvage operations. Two comments

argued that the imposition of minimum standards on salvage and

firefighting contractors named in the vessel response plans is

consistent with the clear intent of OPA 90. These comments suggested

more stringent requirements with regard to salvage contractors,

especially in the areas of salvage assets, performance, and response.

The Coast Guard did not specify requirements for salvage and

firefighting contractors as each situation will require different types

of equipment. The salvage or firefighting contractor will need to have

sufficient expertise and equipment available to respond to various

situations. A prudent owner or operator will ensure that the identified

contractor has the ability to respond to his or her anticipated needs.

One comment supported the identification of salvage and

firefighting resources as opposed to contracting for these resources.

One comment stated that ship incidents requiring salvage and

firefighting response occur too infrequently to support the resources

that would be necessary to meet proposed response times. The Coast

Guard disagrees. Although these incidents may be rare as this comment

argued, the damage resulting to the environment from the absence of

salvage and firefighting equipment where such equipment is needed could

be quite significant.

One comment argued that firefighting and salvage resources should

be guaranteed by contract and recommended that resources be on scene

within 24 hours. The Coast Guard would like to first point out that the

writer of this comment misunderstood the IFR to be requiring contracts

after 1998. The IFR requires that owners and operators currently have

these resources available through contract or other means. Secondly,

the Coast Guard disagrees with this comment's assertion that the

salvage and firefighting resources should be on scene within 24 hours

of a discharge. While this will essentially be the requirement in 1998,

time is needed to establish available firefighting and salvage

resources in geographically remote areas.

Emergency lightering. Seven comments were received in response to

this provision. One comment agreed that these requirements appear to

offer a practical means of controlling a spill at its source. Three

comments argued that this requirement to ensure the availability of

response resources for lightering operations through contract or other

approved means should require assurance through identification of

lightering resources rather than contracting for lightering resources.

One of these comments asserted that the contracting requirement would

require owners and operators to contract with thousands of barge owners

to provide adequate response on all coasts.

OPA 90 specified that response resources should be ensured.

Identification of resources for offshore areas is not adequate

assurance because this capability is not as readily available as in

river and canal areas of operation. The Coast Guard is aware that

ensuring adequate emergency lightering capability may require

contracting with more than one vessel broker for storage capacity.

Three comments argued that the requirement for availability of

portable pumps and ancillary equipment necessary to offload the

vessel's largest cargo tank in 24 hours of continuous operation should

be altered to require that there be adequate equipment to offload the

vessel's largest cargo tank in 36 hours of continuous operation for

vessels displacing 80,000 deadweight tons or more. The Coast Guard

disagrees. It is equally, if not more, important to expeditiously

offload cargo from the larger tank vessels as it is from the smaller

tank vessels. This equipment is readily available in areas where these

vessels operate.

One comment disagreed with the provision that resources reach open

ocean locations within 36 hours of notification. This comment argued

that meeting this requirement would not be possible, particularly for

fendering equipment, larger pumps, and power packs which may be beyond

the capability of air delivery. The Coast Guard disagrees. The

effective mitigation and prevention of further discharge of rapidly

escaping oil is dependent on quick response to the incident: 36 hours

is deemed to be a reasonable maximum time for arrival of this equipment

in the offshore operating area.

Shoreline protection. Three comments were received in response to

this paragraph regarding the assurance of availability of response

resources for shoreline protection operations. One comment recommended

that requirements for vessel response plans and facility response plans

be the same. The Coast Guard disagrees. Because vessels operate in a

variety of environments including offshore, the equipment necessary to

provide shoreline protection as identified in Table 2 of Appendix B is

appropriate for vessels but would not necessarily be appropriate for

facilities.

One comment supported the recognition of a national standard rather

than resources identified in the area contingency plans; however, this

comment takes exception to the preamble text in the IFR which stated

that the Coast Guard may adjust requirements if the area contingency

plans indicate such a need. This comment asserted the Coast Guard

should decide either to have a national standard or to allow the area

contingency plans to create area specific standards. The Coast Guard

appreciates the concerns expressed in this comment; however, it would

not be prudent to adhere to stringent national requirements without

being flexible enough to make exceptions where they are warranted.

One comment generally supported the shore protection requirements

of this paragraph, particularly the Louisiana Offshore Oil Port (LOOP)

exemption. However, this comment also recommended that the area

contingency plans adopt a uniform national standard for shoreline

protection measures. The Coast Guard does not consider it appropriate

to restrict the strategies in the area contingency plans. They are the

appropriate forum for addressing local needs.

Shoreline cleanup. Four comments were received in response to this

paragraph dealing with assurance of the availability of response

resources for shoreline cleanup operation. One comment pointed out that

this paragraph fails to address the Great Lakes. The Coast Guard has

noted this omission and has included the Great Lakes in the

corresponding paragraph in the final rule.

One comment supported the recognition of a national standard rather

than resources identified in the area contingency plans; however, this

comment takes exception with the preamble text in the IFR which stated

that the Coast Guard may adjust requirements if the area contingency

plans indicate such a need. This comment asserted the Coast Guard

should decide either to have a national standard or to allow the area

contingency plans to create area specific standards. Another comment

generally supported these requirements with particular support for the

LOOP exemption. However, this comment recommended that area contingency

plans adopt a uniform national standard for shoreline cleanup. The

Coast Guard appreciates the concerns expressed in these comments;

however, it would not be prudent to adhere to stringent national

requirements without being

[[Page 1069]]

flexible enough to make exceptions where warranted.

One comment asserted that national standards for shoreline cleanup

might be inadequate because of the unique circumstances of a particular

area. This comment further argued that the national standard may be too

rigid for one area and leave gaps in another area. The Coast Guard

agrees that this may pose a potential problem and, therefore, may

adjust these requirements, by the rulemaking process, for specific

areas if found to be necessary.

Oil spill removal organizations. Although no comments were received

which specifically addressed this provision, the Coast Guard has added

the Great Lakes to the enumerated bodies of water in Sec. 155.1050(n)

where owners or operators of vessels transiting with primary cargoes of

groups I through IV petroleum oil must identify and ensure the

availability of oil spill removal organizations. The Great Lakes was

inadvertently excluded from this provision in the IFR.

Caps. Nine comments were received in response to this paragraph

that references Appendix B of part 155, which establishes the caps

recognizing the practical and technical limits of response capabilities

for which an individual vessel owner or operator can contract in

advance.

One comment supported the 1993 caps. Two comments argued against

the 1998 caps as established in the IFR, contending that the caps

established were arbitrary. The Coast Guard disagrees. The caps were

established to provide a clear upper target for which the vessel owners

or operators and the oil equipment response industry must plan. The

proposed increase of 25% has already resulted in encouraging industry

to increase their response capability. The Coast Guard will evaluate

the proposed cap increases before they become effective to determine if

they remain practicable. These evaluations will be conducted through

public notice and comment before the cap increases become effective.

Two comments recommended that the Coast Guard drop the time

requirement of this provision. One of these comments contended that

this time requirement overstates the intent of the Negotiated

Rulemaking Committee agreement. The Coast Guard disagrees. The concept

of response tiers was defined during the regulatory negotiation

process. The Coast Guard added the time requirements as they are a

critical component of the intended response capability. To eliminate

this portion of the requirement would result in greatly reducing the

effectiveness of the planning requirements.

One comment asserted that the reduction of the Great Lakes caps in

the IFR compared to those in the NPRM are an improvement; however, the

comment continued by arguing that the levels of 2,000, 4,000, and 8,000

feet should be considered. The Coast Guard disagrees. The existing caps

were developed through public discussions and comment, and it was

determined that they are reasonable.

One comment expressed concern over the additional costs which would

be incurred by owners and operators by having to comply with this

requirement. The Coast Guard is aware of the possible costs of this

requirement; however, the Coast Guard did a cost and benefit study

prior to developing this regulation, and determined that the benefits

justify the costs.

One comment argued that it is impractical for every tank vessel to

list all needed equipment above the caps and suggested that the Coast

Guard use the data collected by the Coast Guard National Response

Center at Elizabeth City, NC in lieu of requiring this listing. Another

comment suggested that the availability of any additional resources

should be determined in the area contingency plans, and the results

should be available to all planholders within a given area. The Coast

Guard does not want owners and operators to identify each piece of

equipment available above the caps. It only wants the identification of

organizations, their locations, and their capabilities

(classification), not specific detailed lists of equipment. The source

of this additional equipment may be the same provider as that which is

providing the contracted capability. The Coast Guard has clarified that

the additional resources above the caps must be provided by a

commercial source.

One comment asserted that the caps should be at least doubled,

arguing that the current level will not be able to respond to a worst

case discharge. This comment also suggested that caps for 2003 be set

now and be under contract by 1993, 1998, and 2003. The Coast Guard

disagrees with increasing the caps at this time. The caps have been set

considering the amount of equipment that can reasonably be expected to

be available and contracted for as of these effective dates. The Coast

Guard has modified the regulations in Sec. 155.1050(o) to require the

identification of additional resources, for all three tiers, equal to

two times that which has already been ensured available by contract.

One comment argued that identifying equipment in excess of only the

Tier 3 cap is inadequate and contrary to the Negotiated Rulemaking

Committee agreement. This comment continued by contending that

equipment to respond to the entire worst case discharge planning volume

must be identified. The Coast Guard has clarified the language of the

regulation to reflect that certain vessel owners and operators shall

identify sources of additional equipment equal to twice the cap listed

for each tier or the amount necessary to reach the calculated planning

volume, whichever is lower. This policy was published in NVIC 8-92 and

has been followed in reviewing plans submitted under the IFR.

One comment asserted that the requirement to identify sources of

additional equipment is not practicable. This comment continued by

arguing that there will not be sufficient resources in a given area to

both satisfy the contracting cap requirement and any additional

equipment above the cap which might be required to be identified by the

regulations. The response resources above the caps need only be

identified to the extent that the equipment is available. The final

rule has been changed to clarify this requirement. However, the Coast

Guard contends that a prudent owner or operator will research the

equipment outside their specific geographic area so that in the event

of a spill, the equipment can be located easily to ensure the entire

spill is cleaned up.

One comment asserted that the caps may not reflect what is

practicable to accomplish in the United States. This comment continued

by arguing that there is no information in the IFR to justify that the

caps represent the ``maximum extent practicable.'' This comment urged

the Coast Guard to reject caps and reevaluate the objective of this

provision using rational analysis to determine what is practicable.

This comment did not specify to what other methods they were referring.

The Coast Guard disagrees with eliminating the concept of caps. The

caps were developed through two rulemaking documents and various public

meetings, including the Negotiated Rulemaking Committee meetings, to

determine what is practicable. There have been no compelling arguments

to change these requirements at this time.

Cap review process. Five comments were received in response to this

paragraph regarding the review of cap increases and other requirements

contained within subpart D that are scheduled to be phased-in over

time. One comment supported the Coast Guard's initiating review of the

practicality of future cap increases. Three comments supported using

factors such as improvement of technology and research and

[[Page 1070]]

development efforts in reviewing the caps for determination of possibly

new caps in 1998. Four comments urged the Coast Guard to clarify in the

final rule that the scheduled increases for equipment in 1998 will not

exceed 25% of the current requirement.

There will be a review process prior to the 1998 increase. The

possibility exists that the caps could increase above the specified 25%

if it is found to be appropriate.

Two comments supported the changes from the NPRM in the language of

this review process requirement.

Section 155.1052 Reponse Plan Development and Evaluation Criteria for

Vessels Carrying Group V Petroleum Oil as a Primary Cargo

Four comments were received addressing this section. One comment

expressed concern that the IFR was requiring equipment and technology

which may not be available, proven, or practicable. One comment

questioned the need to address this issue with regard to offshore and

open ocean operations. One comment supported the different plan

requirements applicable to various situations; however, this comment

disagreed with the stringent response times required by this section.

This comment argued that a 24-hour response time is unnecessary in that

once oil sinks it does not migrate. This comment continued by arguing

that the longer oil sits, the harder it becomes, and the easier it is

to recover by means such as cutting the oil and raising it by nets

suspended from a crane. One comment requested that the Coast Guard

consider not imposing minimum response standards on salvors.

Group V oils encompass a wide variety of oils which behave

differently in the marine environment. The response plan regulations

require procedures, strategies, and identification of equipment to

locate, recover, and mitigate discharges of these substances. This

equipment does exist and has been cited in numerous response plans

received to date. The response time for this equipment is considered to

be reasonable. The 24-hour deployment requirement applies to the

equipment arriving at the port nearest the area where the vessel is

operating, not the actual spill location. Minor editorial changes have

been made to this section, but no substantive requirements are

affected.

Section 155.1054 Response Plan Development and Evaluation Criteria for

Vessels Carrying Non-Petroleum Oil as a Primary Cargo

This section covered the specific response plan development and

evaluation criteria for vessels carrying non-petroleum oil as a primary

cargo. The Coast Guard received nine comments on this section.

One comment argued that Congress did not intend edible oils to be

regulated under OPA 90 and that these oils are already adequately

regulated by the FWPCA. One comment stated that owners or operators of

vessels carrying Group V and non-petroleum oils should be subject to

the same planning requirements as vessels carrying other types of oils.

The comment suggested that the Coast Guard change Tables 3 and 4 of

Appendix B to include these oils or allow the owner or operator to

submit a formula for determining the worst case discharge planning

volume. One comment recommended that the Coast Guard should delay

response requirements for non-petroleum oils until more information

about these oils is available.

Five comments stated that response and removal methods for non-

petroleum oils should be addressed in a separate rulemaking. In

response to the comments received, the Coast Guard has removed this

section and replaced it with new Subparts F and G to specifically

address non-petroleum oils. These new subparts are discussed

subsequently in this section of the preamble.

Section 155.1055 Training

The Coast Guard received several comments on this section. One

comment recommended that the Coast Guard provide in the final rule

enough time for individuals to receive refresher training. The Coast

Guard agrees that refresher training is needed; however, these time

frames have already been set in 29 CFR 1910.120.

One comment stated that owners or operators should not be liable

for the training of shore-based personnel. That comment and one other

stated the requirement that owners ensure that oil spill removal

organizations (OSROs) maintain training records is sufficient. However,

five comments stated that the 3-year training record maintenance

requirement would be an unreasonable burden on the owner or operator,

and that this requirement should be the OSRO's or Coast Guard's

responsibility. Two of those comments also stated if the Coast Guard

certified the OSROs, then recordkeeping would not be necessary. The

Coast Guard disagrees. It is the responsibility of the owner or

operator to ensure that the organizations upon which they rely for

spill response are adequately prepared.

One comment stated that the final rule should clarify that training

and drill requirements apply solely to employees and contractors hired

by unmanned tank barge owners or operators and not to auxiliary

personnel. The Coast Guard disagrees. The training requirements apply

to anyone contracted to have involvement in a spill cleanup.

One comment recommended that the word ``or'' be added after

Sec. 155.1055(b)(1). Addition of the word ``or'' after

Sec. 155.1055(b)(1) is not necessary as the listing of possible

locations of training records is in the disjunctive, meaning that the

records must be located in one of the three places listed.

One comment suggested that the Coast Guard maintain a list of

approved contractors which includes information on equipment and

personnel. The Coast Guard does have a program for classifying

contractors (NVIC 12-92; December 4, 1992) which takes into account the

quantity of equipment, its designed purpose, the planning capacity of

the resources, and the number of trained personnel the contractor has.

A listing of these classified oil spill removal organizations is

available from Commanding Officer, National Strike Force Coordination

Center; (Attn: OSRO Classification Review); 1461 U.S. 17 North;

Elizabeth City, NC 27909; telephone number: (919) 331-6000.

One comment recommended that the final rule state that the

Occupational Safety and Health Administration (OSHA) has the authority

to enforce shore-based response personnel working conditions. Although

the Coast Guard acknowledges that OSHA does have this authority, there

is nothing in these regulations which discredits this authority.

Additionally, the language of this section clearly states that nothing

in the response plan requirements relieves the shore-based

organizations from complying with the OSHA requirements regarding

training for emergency response operations. It is the responsibility of

the vessel owners and operators contracting with the individual OSROs

to ensure that the OSHA requirements are being met.

The Coast Guard has amended this section of the final rule. This

section has been reworded to provide for identification of training for

persons having responsibilities under the plan, regardless of whether

or not such persons are members of the vessel crew. This change was

made to ensure that all persons involved in oil spill cleanup

operations are adequately trained. Also, the Coast Guard added a

subparagraph to this final rule which provides that a training plan may

be prepared in accordance with ``Training Elements for Oil Spill

Response'' to satisfy the requirements of this section. This

[[Page 1071]]

publication along with the added Appendix C to this rulemaking will

provide guidance and clarification of the training requirements to

owners and operators in the development of the training portions of

response plans, no additional requirements have been added.

Section 155.1060 Exercises

The Coast Guard has extensively revised Sec. 155.1060 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 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.

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 oil spill removal organizations. These efforts

resulted in the creation of unified guidelines 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. The changes to the final rule were based on the PREP;

therefore, participation in the PREP will result in compliance with

this final rule. However, participation in the PREP itself remains

voluntary. If owners or operators do not choose to participate in the

PREP, they may develop their own program for compliance with the

exercise requirements in the regulation. The changes to the wording of

the regulatory text provide consistency with the PREP and have resulted

in reduced requirements.

Three comments stated that the owner or operator should determine

the extent to which the OSROs and spill management teams participate in

drills rather than the COTP, while another comment recommended that the

qualified individual should decide. One comment suggested that the

phrase ``Need not participate'' in Sec. 155.1060(d) be changed to read

``Shall not be required to participate.'' The Coast Guard has

determined that in a ``government initiated unannounced exercise,'' the

parameters of which are set by the COTP, it is appropriate for the COTP

to determine who will participate in the exercise and to what extent

they will participate, as this determination will facilitate accurate

tests of the preparedness of the responders.

Several comments were received regarding drill credit. Six comments

requested that credit for participation in unannounced drills be

extended from 24 to 36 months. Credit for participation in a

``government initiated unannounced exercise'' has been extended to 36

months. Three comments stated that the provisions for drill credit need

to be clarified. Two comments proposed that credit be given for

announced drills with unannounced scenarios. Two comments suggested

credit should also be given for responses to actual spills, while

another comment recommended credit for table top drills and further

suggested combining drills for both vessels and facilities annually.

One comment recommended that the Coast Guard should conduct an

unannounced drill in higher volume ports once a year and that a vessel

should receive credit only if a drill were completed satisfactorily.

Equipment deployment exercises are vital for maintaining readiness

and for testing the effectiveness of a response plan. The variety 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. Both announced

and unannounced drills are required by the PREP. This promotes full

familiarization with the response plans. Under PREP, vessels which have

an actual response situation may get exercise credit. The standards in

the rule are in accordance with the requirements of the PREP program.

For more detailed information, the PREP guidelines should be consulted.

Three comments were concerned with the scope and resulting costs of

unannounced drills. These comments suggested that a vessel owner or

operator be required to ensure that each element of a plan is exercised

at least once every 3 years rather than to ensure a drill which

exercises the entire plan. One of the comments also stated that many

drill exercises are redundant because most companies employ the same

OSROs. This comment also requested 24-48 hour advance notice for

unannounced drills. There is usually no advance notice of a spill.

Unannounced exercises serve an important purpose in maintaining

response resource readiness. The revised exercises section of the final

rule includes requirements for unannounced exercises. Section

155.1060(a)(5) states that annually, one of the required exercises

(emergency procedures, spill management team tabletop, equipment

deployment) must be conducted unannounced. Additionally, the owner or

operator may be required by the Coast Guard to conduct an unannounced

exercise, which would involve equipment deployment to respond to an

average most probable discharge spill scenario. If a vessel

participates in an unannounced exercise initiated by the Coast Guard,

they will be exempt from participating in another Coast Guard initiated

unannounced exercise for at least 3 years.

One comment stated that drill planning requirements should be

delayed pending further guidance from the Coast Guard. Two comments

suggested that drills should be closely coordinated and coincide with

local and State activities. As discussed previously, the PREP was

developed, in part, to coordinate all the various drill requirements.

This coordination should alleviate some of the burden of the drill

requirements.

In response to the need to provide owners or operators with

additional direction on conducting exercises and to ease the burden of

meeting the OPA 90 requirements, the PREP was developed through a joint

effort of the Federal agencies implementing OPA 90 response plan

regulations with involvement from other Federal representatives (e.g.,

natural resource trustees), State agencies, members of the regulated

community, and OSROs. These efforts resulted in the creation of unified

guidelines that reduce the possibility of owners and operators having

to participate in numerous drills. Following the PREP guidelines has

been determined to be an acceptable means to satisfy the OPA 90

requirements. The changes to the final rule were based on the PREP;

therefore, participation in the PREP will result in compliance with

this final rule. 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 the regulation. The changes to the wording of

the regulatory text provide consistency with the PREP, and have

resulted in reduced requirements.

One comment agreed with the requirement that vessel owners and

operators ensure that the OSROs' records for drills be maintained. Two

comment writers felt that this places an excessive burden on owners and

operators. The Coast Guard disagrees

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that this burden is excessive. Although the owners and operators are

still responsible for ensuring that the exercise records are maintained

under the final rule, the final rule also maintains the provision

allowing records of exercises conducted off the vessel to be maintained

at the United States location of either the qualified individual, the

spill management team, the vessel owner or operator, or the response

organization. The response plan must specify the location of the drill

records.

Section 155.1062 Inspection and Maintenance of Equipment

Six comments were received on this section. Four comments stated

that the owners or operators, especially overseas shippers, should not

be responsible for the inspection and maintenance of shore-based

response equipment. One of these comments recommended that the Coast

Guard should inspect and certify OSRO response equipment and personnel,

while the other three comments did not specify who should be

responsible in these areas. One comment stated that the Coast Guard

should notify and require the contractor's permission before the OSRO

is named in a response plan. Another comment stated that if the Coast

Guard classified OSROs, then the owners and operators would not have to

keep records of equipment maintenance and inspection.

The Coast Guard disagrees with the comments suggesting that

responsibility for inspection and maintenance of equipment be shifted

to someone other than the owner or operator. It is the ultimate

responsibility of the vessel owner or operator to ensure that the OSRO

which he or she has listed is capable of providing the oil spill

cleanup services it claims it can provide. The Coast Guard does have a

voluntary program to classify OSROs, and the Coast Guard encourages

OSROs to participate in this program; however listing an OSRO does not

guarantee the capabilities of the OSRO's future performance. The

guidelines for classification and inspection of OSROs are contained in

the Coast Guard's Navigation and Vessel Inspection Circular No. 12-92

(NVIC 12-92; December 4, 1992) and may be used by vessel owners and

operators to evaluate the OSROs they have under contract.

Alternatively, the vessel owner or operator may ensure the OSRO's

equipment is being maintained properly by having third party inspection

of the OSRO by a classification society.

Section 155.1065 Plan Submission, Approval and Appeal Procedures

Several comments were received on this section, and although not

discussed in the regulation, the topic of plan review by regional

citizens advisory councils (RCACs) has been a topic of previous

preamble discussions. One comment argued that the RCACs should not

review response plans because of their lack of technical knowledge and

objectivity. The Coast Guard disagrees. The RCACs have a particular

interest in the adequacy of oil spill prevention and response plans for

tankers operating in Prince William Sound or Cook Inlet. The mode of

review is to have vessel owners and operators submit plans directly to

the RCACs, not via the Coast Guard, and the RCACs provide any comments

they may have regarding a specific plan directly to the applicable

vessel owner or operator. This method of review provides an opportunity

for valuable interaction between the RCACs and the vessel operators or

owners.

One comment suggested that the 60-day waiting period for vessels

which have submitted response plans be reduced to 30 days for newly-

built vessels and for vessels with interim assignments in U.S. waters.

One comment requested that response plan submission and approval

procedures be shortened for vessels carrying oil as a primary cargo so

that the 60-day waiting period could be reduced. One comment requested

that the item to correct response plan deficiencies be extended from 45

to 60 days.

The Coast Guard performs a two stage review of vessel response

plans in order to expedite authorization of vessel operation in U.S.

waters. The initial review provides the vessel owner or operator the

list of deficiencies. The Coast Guard has removed the specific time

frame of 45 days to respond to deficiencies and has changed this

response time to that which is specified in the written deficiency

notice provided by the Coast Guard. This revision will allow the Coast

Guard to determine the appropriate time frame on a case-by-case basis

according to the specific circumstances. The time frame allowed is

intended to provide the owner or operator sufficient time to address

any deficiencies. Nothing in the regulations prohibits operation in

U.S. waters during that time frame permitted for rectifying

deficiencies if the Coast Guard has issued a letter authorizing the

vessel to operate under the provisions of Sec. 155.1025(c).

One comment expressed concern that contractors reviewing response

plans were unfamiliar with fishing vessel tender operations and that,

because of work schedules, crewmen would not have the opportunity for

redress prior to the implementation of response plans. The

applicability of these requirements to fishing vessels was revised by

section 321 of the Coast Guard Authorization Act of 1993 (Pub. L. 103-

206, 107 Stat. 2419). When fishing vessels or fish tender vessels are

engaged only in the fishing industry and are less than 750 gross tons,

they are not deemed to be tank vessels. Accordingly, such vessels are

now excluded from vessel response plan requirements.

The Coast Guard has modified the IFR provisions to reduce the

number of copies of the plan to be submitted to one and to indicate in

the certifying statement accompanying the response plan whether the

vessel or vessels covered by the plan are primary manned, primary

unmanned, or secondary carriers. This added information will facilitate

an efficient plan review process.

The Coast Guard has also added two paragraphs to this section in

this final rule. One paragraph allows the submission of a request for

acceptance of alternative planning criteria for owners or operators of

a vessel who believe that national planning criteria contained

elsewhere in 33 CFR part 155 are inappropriate. The provision should

lessen the burden of owners or operators by providing the possible

option of using alternative planning criteria.

The other added paragraph allows an owner or operator to meet the

response plan requirements of Regulation 26 of MARPOL and subparts D,

E, F, and G by stating this intention in writing when submitting the

response plan. This provision should also alleviate the burden of

owners and operators in that they would not have to duplicate their

efforts.

OPA 90 requires a vessel 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

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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.

Section 155.1070 Procedures for Plan Review, Revision, Amendment, and

Appeal

A number of comments were received on this section. One comment

requested clarification as to whether the Coast Guard could complete

review of response plans within 60 days after a new certification has

been submitted due to a change in the owner or operator of a vessel.

With reference to this section, neither the IFR nor this final rule

imposes any definite time frame within which the Coast Guard must

complete review of a response plan. Additionally, such a time

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