# Vessel Response Plans

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-118

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 12, 1996
- **Citation:** 61 FR 1052

## Text

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 eq

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-118. Public record. Not legal advice.