
[Federal Register: December 31, 2008 (Volume 73, Number 251)]
[Rules and Regulations]               
[Page 80617-80654]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de08-15]                         


[[Page 80617]]

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Part IV





Department of Homeland Security





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Coast Guard



33 CFR Part 155



Salvage and Marine Firefighting Requirements; Vessel Response Plans for 
Oil; Final Rule


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 155

[Docket No. USCG-1998-3417]
RIN 1625-AA19 (Formerly RIN 2115-AF60)

 
Salvage and Marine Firefighting Requirements; Vessel Response 
Plans for Oil

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending the vessel response plan salvage 
and marine firefighting requirements for tank vessels carrying oil. 
These revisions clarify the salvage and marine firefighting services 
that must be identified in vessel response plans and set new response 
time requirements for each of the required salvage and marine 
firefighting services. The changes ensure that the appropriate salvage 
and marine firefighting resources are identified and available for 
responding to incidents up to and including the worst case discharge 
scenario.

DATES: This final rule is effective January 30, 2009, except for the 
amendment to Sec.  155.1050, which is effective February 12, 2009. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register on January 30, 
2009.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-1998-3417 and are available for inspection or 
copying at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet at http://www.regulations.gov, selecting the 
Advanced Docket Search option on the right side of the screen, 
inserting USCG-1998-3417 in the Docket ID box, pressing Enter, and then 
clicking on the item in the Docket ID column.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, or 
for questions regarding the Vessel Response Plan Program, contact 
Lieutenant Commander Ryan Allain at 202-372-1226 or 
Ryan.D.Allain@uscg.mil. If you have questions on viewing the docket, 
call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Abbreviations
II. Regulatory History
III. Background and Purpose
IV. Summary of Changes from NPRM
V. Discussion of Comments and Changes
    A. Introduction
    B. General
    C. Twenty-four-hour response time
    D. Need for the regulation
    E. Applicability
    F. Incorporation by reference
    G. Compliance dates
    H. Definitions
    I. Response times
    1. General
    2. Timeframe too short
    3. Timeframe too long
    4. Planning or performance standards
    J. Use of resource providers during actual incident
    K. Required services
    1. Salvage
    2. Firefighting
    3. Other
    L. Funding agreements
    M. Considerations for choosing resource providers
    1. General
    2. Coast Guard or third-party vetting
    3. Use of public resources
    N. Integration of the VRP into the Unified Command System/ICS
    O. Worker health and safety
    P. Waiver provisions
    Q. Economic comments
    R. Environment comments
    S. Tribal Consultation
    T. Miscellaneous
    U. Beyond the scope
VI. Incorporation by Reference
VII. Regulatory Analyses
    A. Regulatory Planning and Review (E.O. 12866)
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism (E.O. 13132)
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

------------------------------------------------------------------------
             Abbreviations                         Explanation
------------------------------------------------------------------------
ACP....................................  Area Contingency Plan.
ANSI...................................  American National Standards
                                          Institute.
ASTM...................................  American Society for Testing
                                          and Materials.
BOA....................................  Basic Ordering Agreement.
CONUS..................................  Continental United States.
COTP...................................  Captain of the Port.
EA.....................................  Environmental Assessment.
FONSI..................................  Finding of No Significant
                                          Impact.
FOSC...................................  Federal On-Scene Coordinator.
FWPCA..................................  Federal Water Pollution Control
                                          Act.
ICS....................................  Incident Command System.
IMO....................................  International Maritime
                                          Organization.
LOI....................................  Letter of Intent.
MARAD..................................  Maritime Administration.
MFSA...................................  Maritime Fire and Safety
                                          Association.
NARA...................................  National Archives and Records
                                          Administration.
NEPA...................................  National Environmental Policy
                                          Act.
NFPA...................................  National Fire Protection
                                          Association.
NIMS...................................  National Incident Management
                                          System.
NPRM...................................  Notice of Proposed Rulemaking.
NPV....................................  Net Present Value.
NTTAA..................................  National Technology Transfer
                                          and Advancement Act.
NVIC...................................  Navigation and Vessel
                                          Inspection Circular.
OCIMF..................................  Oil Companies International
                                          Marine Forum.
OCONUS.................................  Outside the Continental United
                                          States.
OPA 90.................................  Oil Pollution Act of 1990.
OSHA...................................  Occupational Safety and Health
                                          Administration.
OSRO...................................  Oil Spill Removal Organization.
P&I....................................  Protection and Indemnity.
PRA....................................  Programmatic Regulatory
                                          Assessment.
QI.....................................  Qualified Individual.
SERT...................................  Salvage Engineering Response
                                          Team.
SOLAS..................................  International Convention for
                                          the Safety of Life at Sea,
                                          1974.
STCW...................................  International Convention on
                                          Standards of Training,
                                          Certification and
                                          Watchkeeping, 1978.
UCS....................................  Unified Command System.
VRP....................................  Vessel Response Plan.
VTS....................................  Vessel Traffic Service.
------------------------------------------------------------------------

II. Regulatory History

    On June 24, 1997, a notice of meeting was published in the Federal 
Register (62 FR 34105) announcing a workshop to solicit comments from 
the public on potential changes to the salvage and marine firefighting 
requirements found in 33 CFR part 155.
    The public workshop was held on August 5, 1997, to address issues 
related to salvage and marine firefighting response capabilities, 
including the 24-hour response time requirement, found at 33 CFR 
155.1050(k), which was then scheduled to become effective on February 
18, 1998. The participants uniformly identified the following three 
issues that they felt the Coast Guard needed to address:

[[Page 80619]]

    (1) Defining the salvage and marine firefighting capability that is 
necessary for the plans;
    (2) Establishing how quickly these resources must be on scene; and
    (3) Determining what constitutes adequate salvage and marine 
firefighting resources.
    A copy of the summary report generated from this meeting is 
included in the project docket where indicated under ADDRESSES.
    Based on comments received during the workshop, the Coast Guard 
determined that it should better define the key elements within the 
requirements. Regulatory language such as ``a salvage company with 
expertise and equipment'' or ``firefighting capability'' needed to be 
further specified before the Coast Guard could expect vessel owners or 
operators to comply with any related time requirements. Therefore, the 
Coast Guard determined that it should suspend the 24-hour response time 
requirement that stated: ``identified salvage and firefighting 
resources must be capable of being deployed to the port nearest to the 
area in which the vessel operates within 24 hours of notification'' for 
plans that are submitted (or resubmitted) for approval after that time. 
(33 CFR 155.1050(k))
    On February 12, 1998, a notice of suspension was published in the 
Federal Register suspending the 24-hour requirement scheduled to become 
effective on February 18, 1998, until February 12, 2001 (63 FR 7069) so 
that the Coast Guard could address issues identified at the public 
workshop through a rulemaking that would revise the existing salvage 
and marine firefighting requirements.
    On January 17, 2001, a second notice of suspension was published in 
the Federal Register suspending the 24-hour requirement scheduled to 
become effective on February 12, 2001, until February 12, 2004 (63 FR 
7069) because the potential impact on small businesses from this new 
rulemaking required the preparation of an initial regulatory 
flexibility analysis under the Small Business Regulatory Enforcement 
Fairness Act of 1996. This was not determined until a draft regulatory 
assessment was completed in November 2000.
    On May 10, 2002, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled Salvage and Marine Firefighting 
Requirements; Vessel Response Plans for Oil [USCG-1998-3417] in the 
Federal Register (67 FR 31868). The 90-day comment period was to close 
on August 8, 2002. We received 104 letters commenting on the proposed 
rule. The majority of these letters contained multiple comments.
    During the comment period, we held four public meetings. On June 
12, 2002, a notice of public meetings was published in the Federal 
Register (67 FR 40254) announcing the dates and location for the first 
three public meetings:
     Texas City, TX, on July 9, 2002;
     Philadelphia, PA, on July 17, 2002;
     Seattle, WA, on July 25, 2002.
On August 7, 2002, a notice was published in the Federal Register (67 
FR 51159) announcing the extension of the comment period until October 
18, 2002, and the date and location for a 4th public meeting:
     Louisville, KY, on September 26, 2002.
    On January 23, 2004, a third notice of suspension was published in 
the Federal Register, continuing the 24-hour requirement suspension 
until February 12, 2007 (69 FR 3236) because during the preceding three 
years, the Coast Guard had to redirect the majority of its regulatory 
resources to issue security-related regulations as required by the 
Maritime Transportation Security Act of 2002. As a result, we were 
unable to complete our review of the comments we received in response 
to the May 10, 2002 NPRM. Once NPRM comment review was done, we found 
that numerous public comments addressed environmental issues and we 
agreed that these comments had merit. As a result, a new Programmatic 
Environmental Assessment (PEA) was drafted, solely for these salvage 
and marine firefighting revisions, to address these comments.
    On January 3, 2006, a notice was published in the Federal Register 
(71 FR 125) requesting comment on a draft PEA.
    On February 9, 2007, a fourth notice of suspension was published in 
the Federal Register (72 FR 6168) continuing the 24-hour requirement 
suspension until February 12, 2009, to permit the Coast Guard to 
complete its work on the regulatory and environmental assessments.

III. Background and Purpose

    Requirements for salvage and marine firefighting resources in 
vessel response plans (VRPs) for vessels carrying group I-IV oils have 
been in place since February 5, 1993 (58 FR 7376). The existing 
requirements found at 33 CFR 155.1050 are general and only require that 
a planholder identify salvage and marine firefighting resources. 
Additionally, they require that these resources are capable of being 
deployed to the port nearest the area in which the vessel operates 
within 24 hours of notification by the planholder of an oil spill. The 
Coast Guard did not originally develop specific requirements because 
salvage and marine firefighting response resource requirements were 
considered unique for each vessel. The Coast Guard's intent was to rely 
on the planholders to prudently identify contractor resources to meet 
their needs. The Coast Guard expected that the significant benefits of 
a quick and effective salvage and marine firefighting response would be 
sufficient incentive for industry to develop salvage and marine 
firefighting capabilities, similar to the development of oil spill 
removal organizations that was seen in the early 1990s.
    Early in 1997, it became apparent that the expected salvage and 
marine firefighting capability development was not occurring. There was 
disagreement among planholders, salvage and marine firefighting 
contractors, maritime associations, public agencies, and other 
stakeholders as to what constituted adequate salvage and marine 
firefighting resources. There was also concern over whether these 
resources could be deployed to the port nearest the vessel's operating 
area within 24 hours, even though the maritime industry had several 
years to develop these resources. Thus, this salvage and marine 
firefighting rulemaking was initiated.

IV. Summary of Changes From NPRM

    Each change made between the NPRM and the final rule is summarized 
and described below. The vast majority of changes were made in response 
to public comment and are discussed in more detail in the ``Discussion 
of Comments and Changes'' section of this preamble.
     We revised the incorporation by reference section (Sec.  
155.140) by referencing the most recently available NFPA Standard or 
Guide for each of the four NFPA documents listed in the NPRM. 
Additionally, based on public comment, we added a fifth NFPA Standard 
(1005) to the list of documents incorporated by reference.
     We revised the Purpose of this subpart section (Sec.  
155.4010) to address public comment by adding a new paragraph (b) to 
clarify that the response criteria specified in the regulations are 
planning criteria, not performance standards, and are based on 
assumptions that may not exist during an actual incident, as stated in 
33 CFR 155.1010.
     We revised the Who must follow this subpart? section 
(Sec.  155.4015) to read ``You must follow this subpart if your vessel 
carries group I-IV oils, and

[[Page 80620]]

is required by Sec.  155.1015 to have a vessel response plan.'' to 
address public comment requests for clarity.
     We revised the When must my plan comply with this subpart? 
section (Sec.  155.4020) to address public comment requests to change 
the compliance date from 6 months to 18 months after publication of the 
final rule.
     We revised the definitions section (Sec.  155.4025) to 
address public comment by adding additional language to eight 
definitions: ``Assessment of structural stability''; ``Contract or 
other approved means''; ``Funding agreements''; ``Marine 
firefighting''; ``On-site fire assessment''; ``On-site salvage 
assessment''; ``Remote assessment and consultation''; and ``Resource 
provider''. Additionally, we added four new definitions for ``Boundary 
lines''; ``Captain of the Port (COTP) city''; ``Marine firefighting 
pre-fire plan''; and ``Primary resource provider''.
     We revised the required pre-incident information and 
arrangements for the salvage and marine firefighting resource providers 
listed in response plans section (Sec.  155.4035) by deleting the 
referenced cite Sec.  155.1045(c) from the text in Sec.  155.4035(a). 
Section 155.1045 applies to ``Response plan requirements for vessels 
carrying oil as a secondary cargo'' and does not require a salvage and 
marine firefighting component.
     We changed the section titles (Sec.  155.4010 to Sec.  
155.4055) from the question format to a declarative statement format.
     We revised the Specialized Salvage Operations response 
timeframe requirement (Table 155.4030(b)(1)(iii)(C)) for ``heavy lift'' 
service from 72/84 hours to a response time of ``estimated.'' Based on 
public comment, we determined that heavy lift services are not required 
to have definite hours for a response time. The planholder must still 
contract for heavy lift services, provide a description of the heavy 
lift response and an estimated response time when these services are 
required; however, none of the timeframes listed in the table in Sec.  
155.4030(b) will apply to these services.
     We corrected the Integration into the response 
organization paragraph (Sec.  155.4030(c)) by listing the appropriate 
cross reference cites Sec. Sec.  155.1035(d), 155.1040(d) and 
155.1045(d).
     We revised the Coordination with other response resource 
providers, response organizations and OSROs paragraph (Sec.  
155.4030(d)) by adding text requiring that the information contained in 
the response plan must be consistent with applicable Area Contingency 
Plans (ACPs) and the National Oil and Hazardous Substances Pollution 
Contingency Plan as found in Sec.  155.1030(h).
     We revised the Ensuring firefighting equipment is 
compatible with your vessel paragraph (Sec.  155.4030(g)) to address 
public comment by adding text requiring a 20-minute minimum time 
criteria for the extinguishing agent.
     We added a new Other resource provider considerations 
section (Sec.  155.4032) to address public comment that includes 
language in paragraph (a) regarding the use of service providers not 
listed in the plan.
     We moved the Worker health and safety section (old Sec.  
155.4030(i)) to Sec.  155.4032(b) and added reference cites.
     We revised the Required pre-incident information and 
arrangements for the salvage and marine firefighting resource providers 
listed in response plans section (Sec.  155.4035) to address public 
comment by adding text to paragraph (b)(1) indicating that if the 
planholder's vessel pre-fire plan is one that meets international 
standards, a copy of that specific fire plan must also be given to the 
resource provider. Additionally, we added a new paragraph (b)(3) 
regarding who must receive copies of the planholder's vessel pre-fire 
plan.
     We revised the Response Time End Points requirements 
(Table 155.4040(c)) to address public comment for ``heavy lift'' 
service from ``resources on scene'' to ``estimated,'' to align with the 
response timeframe requirement in Table 155.4030(b)(1)(iii)(C).
     We revised the Ensuring that the salvage and marine 
firefighters are adequate section (Sec.  155.4050) to address public 
comment by revising introductory language in paragraph (b) to emphasize 
the importance of the selection criteria, amending paragraph (b)(6) 
with updated NFPA Guide/Standards, revised paragraph (b)(13) to include 
``in arduous sea states and conditions'' to ensure that all expected 
weather conditions are addressed when selecting a resource provider for 
contract, adding paragraph (b)(14) on worker health and safety, and 
adding paragraph (b)(15) regarding a resource provider having 
familiarity with the marine firefighting and salvage operations 
contained in the local Area Contingency Plans for each COTP area for 
which they are being contracted.
     We added a Drills and exercises section (Sec.  155.4052) 
to highlight that Salvage and Marine firefighting components are part 
of the existing exercise requirements for vessels holding VRPs, as 
found in Sec. Sec.  155.1060 and 155.1065.

V. Discussion of Comments and Changes

A. Introduction

    We received 104 letters commenting on the proposed rule. The 
majority of these letters contained multiple comments. During the 
comment period, we held four public meetings--
     Texas City, TX, on July 9, 2002;
     Philadelphia, PA, on July 17, 2002;
     Seattle, WA, on July 25, 2002; and
     Louisville, KY, on September 26, 2002.
    The following is a summary of the comments received, both by letter 
and at the public meetings, and the changes made to the regulatory text 
since the NPRM was published. The items that address a general issue 
are grouped first, then by those that relate to a specific topic or 
provision in the regulatory text.

B. General

    In support of the proposed rule, seven comments were received that 
generally supported the rulemaking. One commenter stated that both 
salvage and firefighting responses are significantly improved by timely 
reaction at the very early stages of an emergency. Three commenters 
pointed out that some ports have limited capability to conduct marine 
firefighting, and that the increase in capability these regulations 
would bring is especially important in the current port security 
climate due to possible acts of terrorism. One commenter stated that 
the current U.S. salvage structure, if not given the support of a 
regulatory framework, such as these regulations, will fail in the long 
term. One commenter stated the rule will reduce confusion by helping 
ship owners understand what salvage services are truly required to be 
listed in their vessel response plans (VRPs).
    In opposition to the proposed rule, we also received several 
comments that disagreed generally. Twelve commenters stated that this 
rulemaking amounted to bad public policy. The Coast Guard disagrees and 
maintains that the regulation provides an appropriate level of needed 
salvage and marine firefighting capability to mitigate or reduce 
pollution in the marine environment.
    One commenter asked the Coast Guard to make substantial revisions 
to any proposed salvage and firefighting requirements it may impose. 
The Coast Guard acknowledges this request, but as the comment included 
no specific changes the commenter would find acceptable, the Coast 
Guard did not make changes in response to this comment. Where changes 
have been

[[Page 80621]]

made based on other comments, they are explained throughout this 
preamble.
    One commenter stated that there is no reason to tie vessel salvage 
to pollution response. The Coast Guard disagrees in part. This 
rulemaking is based on steps that are necessary to mitigate the release 
of oil into the marine environment, thus avoiding the need for 
pollution response. One way to reduce the need for pollution response 
is to ensure proper salvage procedures can be followed by ensuring 
(through contract) that service providers will be place in the wake of 
a marine casualty. In other words, this is a proactive rulemaking.
    One commenter expressed the deep concern of the tank vessel 
industry over the direction the Coast Guard took in the NPRM, and urged 
the Coast Guard to give this issue special attention and ensure that 
the final result meets the tests of value-added, cost-effective, and 
common-sense rulemaking. The Coast Guard developed the NPRM and this 
final rule after considering numerous statutes and executive orders 
related to rulemaking. At the time of the NPRM, the Coast Guard did 
consider common-sence rulemaking practice and assessed the cost-
effectiveness of the requirements using reasonable interpretation of 
available industry and spill data. We have also provided a similar 
assessment for the final rule. Assessments for the NPRM and this final 
rule are available in the docket as indicated under ADDRESSES.
    Ten commenters suggest that the Coast Guard and the tank vessel 
industry get together and discuss the proposed rule in order to come up 
with livable alternatives. The Coast Guard agrees with the intent of 
this comment. After publication of the NPRM, the Coast Guard held four 
public meetings, and accepted public comments to ensure that all 
parties had the opportunity to comment on the NPRM. We considered all 
comments received, and this final rule is a result of that effort.
    One commenter stated that while the Coast Guard can meet with 
whomever it wants, the very carefully worded description of the meeting 
in the proposed rule sounded very much like the meetings should have 
been open to the public. The commenter added that the ``Purpose'' 
section lacks any indication that the Coast Guard actively sought out 
the views of owners and operators, noting that additional consultation 
with the affected planholders prior to publication of the NPRM would 
have produced a sounder proposal and, most likely, a shorter regulatory 
process. The Coast Guard disagrees, and points to the August 5, 1997, 
public workshop that was held to formulate the basis for the NPRM. That 
workshop was structured to identify major issues concerning salvage and 
marine firefighting in the VRP context. To accomplish this, the 35 
workshop attendees, invited from a cross section of the affected 
industries, were asked to list their top three issues concerning marine 
salvage and firefighting on an informal workshop survey form. A Coast 
Guard officer and a maritime law attorney, representing the Maritime 
Association of the Ports of New York and New Jersey, facilitated the 
workshop. The Coast Guard announced this workshop in the Federal 
Register on June 24, 1997, and invited all interested parties, 
including planholders, to participate. In addition, four public 
meetings were held after issuance of the NPRM, and a lengthy public 
comment period was used to ensure all interested parties had a chance 
to contribute to the process of issuing a final rule.
    One commenter considered it inaccurate for the Coast Guard to 
describe the workshop (referenced above) as reflecting a ``uniform'' 
industry request to the Coast Guard to promulgate detailed performance, 
instead of planning, standards governing salvage operations. The Coast 
Guard disagrees that the workshop addressed performance standards; it 
did not. We were unable to locate the point in the NPRM where the Coast 
Guard made a statement such as that suggested by the comment. The 
response criteria specified in the regulations (e.g., quantities of 
response resources and their arrival times) are planning criteria, not 
performance standards, and are based on assumptions that may not exist 
during an actual incident, as stated in 33 CFR 155.1010. Failure to 
meet specified criteria during an actual spill response does not 
necessarily mean that the planning requirements of the Federal Water 
Pollution Control Act (FWPCA), OPA 90 and regulations were not met. The 
Coast Guard will exercise its enforcement discretion in light of all 
facts and circumstances. Nothing in this rulemaking introduces 
performance standards.
    One commenter stated that any discussion of government action 
designed to create additional salvage and marine firefighting capacity 
in the United States must include some analysis of the factors that 
affect the current capabilities of salvors. The Coast Guard agrees in 
part. In addition to including salvage representatives in the public 
workshop and asking salvage industry leaders to complete workshop 
surveys regarding their capabilities, we had in-depth discussions with 
salvage and marine firefighting industry leaders over various periods 
regarding the current salvage and marine firefighting capabilities and 
what would be the anticipated increase in salvage re-capitalization 
once the final rule was issued. This rule is intended to increase 
resource providers' capabilities to the level necessary to handle 
emergency incidents prior to deterioration into worst case discharge 
scenarios; it will also increase the response capabilities necessary to 
keep ports and waterways open in a worst case discharge scenario, which 
might include a national security incident. The current capabilities, 
and factors that have or have not produced those capabilities, were 
sufficiently studied.
    One commenter strongly urged the Coast Guard to use the tools that 
it has created and employ its superior understanding of the maritime 
system to make informed, well-reasoned, and risk-based decisions in the 
context of this rule. We thank the commenter, and have determined that 
the extensive groundwork done in conceiving and drafting this 
regulation has led to a fair, beneficial, and effective regulation.
    Two commenters suggested a ``placing the right people in the right 
place at the right time'' approach instead of a new regulation. They 
noted this will allow plans to develop quickly and allow ship owners to 
take advantage of the best available assets as quickly as possible. The 
Coast Guard disagrees. This type of approach has had the opportunity to 
develop without new regulations ever since the Oil Pollution Act of 
1990 (OPA 90) (Pub. L. 101-380, 33 U.S.C. 2701 et seq.; 104 Stat. 484) 
was enacted. However, based upon resource providers' past performance 
from 1990 to 2002, it is unlikely that such an approach has been, or 
would be successful. Therefore, this regulation is necessary to ensure 
resources are available when needed. However, this regulation allows 
for deviations from the VRP if required and approved by the Federal On-
Scene Coordinator (FOSC).

C. Twenty-Four-Hour Response Time

    One commenter stated that the Coast Guard should permanently revoke 
the 24-hour response time currently provided for in 33 CFR 
155.1050(k)(3), which has been suspended since February 12, 1998. Five 
commenters stated that the 24-hour response times are wholly 
unacceptable and inadequate for marine firefighting. The Coast Guard 
agrees with the commenters and we removed the 24-hour response time 
requirement in this final rule.

[[Page 80622]]

    One commenter asked the Coast Guard to withdraw this proposed rule 
and permanently revoke the 24-hour response time currently provided for 
in 33 CFR 155.1050(k)(3), which is under temporary suspension. The 
Coast Guard disagrees; such an action would remove all planning 
standards for salvage and firefighting from the regulation. The 
planning standard timeframes included in this final rule were 
determined to be realistic standards for planholders and resource 
providers to use in developing their contractual arrangements, and the 
timeframes will ensure a proper response will be available to avoid a 
worst case discharge scenario.
    One commenter stated that they understood the Coast Guard was 
concerned about a lack of specificity in the suspended 33 CFR 
155.1050(k)(3), which requires 24-hour response times for an emergency 
incident. However, the commenter argued that the NPRM's identification 
of the expertise a planholder should be prepared to have on scene 
largely resolves that issue. The commenter added that, with the 
exception of heavy lift and sub-surface product removal, the salvage 
capabilities could fall within the 24-hour requirement. The Coast Guard 
disagrees. The required timeframes for salvage are reasonable and 
necessary to ensure any incident emergency resource provider is 
contracted for and able to arrive on scene at the earliest possible 
opportunity. These timeframe requirements will improve the chances that 
the vessel crew, planholders, and resource providers will keep an 
incident from deteriorating into a worst case discharge over the 
initial 24 hours.

D. Need for the Regulation

    Six commenters stated that the existing regulations satisfy the 
need for salvage and firefighting resources. They stated there is no 
casualty evidence to indicate that the present regulations fail to 
satisfy the need for timely salvage and/or firefighting resources, and 
that these regulations are unjustified and demonstrably unfair to the 
entire tanker industry serving the United States. One commenter stated 
that they felt that the Coast Guard's regulatory assessment, as written 
in the NPRM, will only have a five-percent impact over current 
performance measures. The Coast Guard disagrees. The requirements 
within this regulation are reasonable and valid for ensuring the 
identification and availability of response capabilities for responding 
to incidents up to and including a worst case scenario as required by 
OPA 90. The amount of oil spilled in past years, while an important 
factor in developing these regulations, was not the overriding reason 
for this rulemaking. Rather, consistent with OPA 90, the overriding 
reason for this rulemaking is to define the salvage and marine 
firefighting capability that is necessary in the VRP (Table 
155.4030(b)), establish how quickly these resources must be on-scene, 
and determine what constitutes adequate salvage and marine firefighting 
resources as found in Sec.  155.4050.
    Two commenters stated that there were no obvious instances where 
the timeliness or lack of salvage or firefighting capabilities reduced 
the effectiveness or the outcome of an oil spill response, and they 
recommended delaying action on the rule until they have had an 
opportunity to assess whether tank vessel casualty history warrants a 
change in the current tank vessel salvage and marine firefighting 
requirements. The Coast Guard understands the issues raised by these 
commenters, but this regulation is written to ensure response 
capabilities are identified and available for responding to incidents 
up to and including a worst case discharge scenario as specifically 
required in OPA 90:

    Section 4202 * * * (5) TANK VESSEL AND FACILITY RESPONSE PLANS., 
(A) The President shall issue regulations which require an owner or 
operator of a tank vessel or facility described in subparagraph (B) 
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. [See 33 U.S.C. 1321(j)(5)]

In essence, while the number of incidents and amount of oil spilled 
into the water has decreased over the years since OPA 90 was enacted, 
the law still requires identifying and employing prevention methods for 
a worst case discharge scenario.
    One commenter stated that if one takes the National Research 
Council's 1994 Marine Board Report, ``A Reassessment of the Marine 
Salvage Posture of the United States'' in its entirety, it provides 
ample evidence for not implementing this rule. The Coast Guard 
disagrees. The information presented in the report could be used to 
both support and counter arguments for this regulation. The Coast Guard 
considers the requirements in this regulation reasonable and valid for 
ensuring response capabilities are identified and available to respond 
to incidents up to and including a worst case discharge scenario, as 
required by OPA 90. While this report was taken into consideration, 
numerous other sources including workshops, research, public meetings, 
and consultations with various representatives of industry were used to 
formulate this rulemaking.
    One commenter stated that the Marine Board's Committee on Marine 
Salvage Issues (cited above), particularly its assessment of the 
salvage industry, appears to have been a principal motivating factor 
behind the NPRM. Two commenters stated that the Marine Board Report was 
heavily relied on by the drafters of this rule. The Coast Guard 
disagrees. As stated above, this report was taken into consideration, 
as were numerous other sources, including workshops, research, public 
meetings, and consultations with various representatives of industry 
were used to formulate this rulemaking.
    Three commenters expressed concern that the Coast Guard is forging 
ahead without having gathered and thoroughly assessed all available 
relevant data. They also stated that either we missed some very crucial 
data, or our assumptions are seriously flawed. The Coast Guard 
disagrees. The data used to develop this regulation has come from 
extensive research, studies, a public workshop, review of published 
works, and numerous reference materials including National Fire 
Protection Association (NFPA) documents and salvage and marine 
firefighting case histories. In total, the Coast Guard has been 
studying this salvage and marine firefighting issue since 1992, long 
before the issuance of the NPRM. Since the NPRM was published, we have 
held four additional public meetings that were very well attended by 
members representing all sides of the issues under discussion. After 
the public comment period closed, we received and reviewed over 1,000 
comments on the NPRM. This regulation meets the needs of the public and 
maritime industry.
    One commenter stated that the present salvage capacities accurately 
reflect the need and scope of those services and a rule intended to 
sustain salvage capacity at a level above or different than that 
justified by casualty data and economics is costly and ill conceived. 
The Coast Guard disagrees. Section 4202(a) of OPA 90 and amended Sec.  
311(j) of the FWPCA (33 U.S.C. 1251-1376) outline the requirement to 
prepare and submit a written response plan for a worst case discharge 
scenario of oil, and this regulation was designed to satisfy those 
requirements. While this regulation might have the effect of sustaining 
or raising the level of salvage and marine firefighting resources in 
place, it was not written for, or intended to, have that effect beyond 
the statutory requirements.

[[Page 80623]]

    One commenter noted that the Coast Guard has acknowledged that crew 
actions and salvage response efforts have resulted in substantial 
prevention of oil spillage, even in the most severe accidents. Another 
commenter stated that the highly prescriptive approach in the NPRM 
contradicts the tank vessel industry's improved incident record. The 
Coast Guard agrees that oil-spill volume has decreased significantly 
since the implementation of oil-spill regulations and innovative 
measures taken by the tank vessel industry to reduce spills. However, 
this regulation was written to fulfill OPA 90 requirements of adequate 
salvage and marine firefighting response capabilities for up to and 
including worst case discharge scenario incidents, including a 
discharge resulting from fire or explosion; it was not written in 
response to the amount of oil spilled in U.S. waters since 1990.
    Two commenters stated that OPA 90 did not grant the Coast Guard 
authority in this area, and requested that the Coast Guard carefully 
review the Act and specify where the authority to promulgate the 
proposed revision is located. The commenters stated that the Coast 
Guard should not promulgate these regulations if it is lacking 
authority to take such action. The Coast Guard strongly disagrees that 
we have no authority to promulgate these regulations. The Coast Guard 
was delegated authority pursuant to Executive Order 11735, as outlined 
in the authorities section of the regulation. Executive Order 11735 
states:

    The Secretary of the Department in which the Coast Guard is 
operating is hereby designated and empowered to exercise, without 
the approval, ratification, or other action of the President, the 
following: * * *
    (2) the authority of the President under subsection (j)(1)(C) of 
section 311 of the act, relating to the establishment of procedures, 
methods, and equipment and other requirements for equipment to 
prevent discharges of oil and hazardous substances from vessels and 
transportation-related onshore and offshore facilities, and to 
contain such discharges.

    In addition, the requirements of Sec.  4202(a) of OPA 90 and 
amended Sec.  311(j) of FWPCA, outline the requirement to prepare and 
submit a written response plan for a worst case discharge of oil. See 
33 U.S.C. 1321(j)(5). Part of such a worst case discharge scenario 
would include firefighting and salvage operations; therefore it is 
necessary, under the law, that the VRPs include these elements.

E. Applicability

    One commenter stated that careful consideration should be given to 
bareboat-charter operators, because such owners should not have to pay 
for the negligence of individuals renting vessels under those types of 
agreements. The Coast Guard disagrees. Part 155 of 33 CFR requires that 
the ``owner or operator'' prepare and submit a VRP to the Coast Guard. 
The matter of who submits the VRP is a contractual agreement to be 
determined by the owner or operator--he or she is free to include 
preparation of this VRP as part of the terms of the bareboat charter. 
Additionally, in Sec.  155.1020, the definition for ``contract or other 
approved means'' states, in part, that it is: ``a written contractual 
agreement between a vessel owner or operator and an oil spill removal 
organization'' and also defines ``operator'' as a:

    Person who is an owner, a demise charterer, or other contractor, 
who conducts the operation of, or who is responsible for the 
operation of a vessel.

It is not the Coast Guard's intent to dictate the exact contractual 
arrangement to meet the intent of this regulation, only to ensure the 
requirement is met to enhance safety.
    One commenter stated that the applicability of 33 CFR 155.1015 
should remain exactly as written, because the exemptions written into 
the subpart were done as part of a lengthy and open period of public 
discussion, and that any changes would circumvent the normal public 
discussion process. The Coast Guard agrees and has not revised the tank 
vessel response plan applicability section of Sec.  155.1015.
    One commenter stated that vessels, such as shale barges and liquid-
mud barges, should not be part of the current proposed rulemaking. The 
Coast Guard agrees as these vessels, while required to have VRPs under 
the applicability regulations found in 33 CFR 155.1015 and 155.1045 as 
vessels carrying oil as a secondary cargo, are exempted by Sec.  
155.1045 to list a salvage and marine firefighting resource provider in 
the VRP.
    Two commenters urged the Coast Guard to coordinate with the 
Canadian Coast Guard on this rulemaking. The Coast Guard agrees. There 
are, and will be, continuing efforts of coordination and cooperation 
between the U.S. and Canada on maritime issues of interest to both 
countries, and the vessel traffic service (VTS) agreement in the Juan 
de Fuca region will remain in place. Any vessels, regardless of their 
country of origin, are subject to this rulemaking when they fall under 
the applicability as found in 33 CFR 155.1015(a).
    We received 65 comments criticizing the fact that this regulation 
was written to apply only to oil-carrying vessels. At the time this 
NPRM was issued, the Coast Guard did not have legislative authority to 
require VRPs for nontank vessels. In the Coast Guard and Maritime 
Transportation Act of 2004 (Pub. L. 108-293), Congress gave us the 
authority to do so by stating:

    The President shall also issue regulations which require an 
owner or operator of a nontank vessel 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. (Section 701 of Pub. L. 108-293).

Since then, we have issued NVIC 01-05, Change One, ``Interim 
Guidance for the Development and Review of Response Plans for Nontank 
Vessels.'' This circular provides guidance to owners and operators of 
nontank vessels for preparing and submitting VRPs for responding to a 
discharge or threat of a discharge of oil from their vessels. A nontank 
vessel is defined as a self-propelled vessel of 400 gross tons or 
greater, other than a tank vessel, which carries oil of any kind as 
fuel for main propulsion and is a vessel of the United States or 
operates on the navigable waters of the United States. For more 
information, the applicable Coast Guard Navigation and Inspection 
Circular (NVIC) 01-05, Change One, ``Interim Guidance for the 
Development and Review of Response Plans for Nontank Vessels'' is 
available on the World Wide Web at http://www.uscg.mil/hq/g-m/nvic/.

F. Incorporation by Reference

    One commenter stated that the standard found in the International 
Convention for the Safety of Life at Sea treaty (SOLAS), 1974, Chapter 
II-2, Regulation 16, should be required for Sec.  155.4030(g). The 
Coast Guard disagrees. SOLAS chapter II-2, regulation 16 (2000 
Amendments) addresses ``Fire Safety Operational Booklets'' and 
procedures for cargo tank purging. In the ``Fire Safety Booklet,'' 
section 16.2, there is no mention of types and amounts of extinguishing 
agents needed on board the vessel. The SOLAS regulation doesn't include 
extinguishing agent requirements essential to adequate planning for 
marine firefighting, therefore Sec.  155.4030(g) remains unchanged in 
this final rule.
    Three commenters stated that application rates for foam should at 
least be consistent with NFPA 11 and

[[Page 80624]]

11A or other recognized standards. The Coast Guard disagrees. Section 
155.4030(g) was written to meet the quantity of foam requirements in 
the existing 46 CFR 34.20-5 and Coast Guard NVIC 6-72, ``Guide 
to Fixed Fire-Fighting Equipment Aboard Merchant Vessels''. These 
requirements are for the vessel's internal firefighting systems and 
external resource requirements should be compatible with the existing 
system capacities required on the vessels.
    One commenter stated that the requirement to develop the fire plan 
in accordance with the NFPA standard is not practical and offers little 
benefit. They suggested that all vessels (SOLAS as well as non-SOLAS) 
be required to carry a SOLAS fire plan. The Coast Guard disagrees. 
Another commenter stated that if a vessel meets the guidelines of NFPA 
1405 for a pre-fire plan by means of another document, such as a SOLAS 
fire plan, a requirement to attach it to the VRP is needed. The Coast 
Guard agrees that the NFPA pre-fire plan standards align with the SOLAS 
fire plan requirements to a degree that meets the intent of these 
regulations. We added wording to allow SOLAS vessels to use their SOLAS 
fire plans in lieu of a fire plan developed under NFPA 1405 to Sec.  
155.4035(b)(1).
    Three commenters stated that NFPA is currently working on a 
Professional Qualification Standard for Marine Firefighters that should 
be noted as incorporated by reference when published, as it would 
eliminate the need to rewrite the regulation when it is promulgated. 
The Coast Guard agrees that the new qualification standard, issued in 
July of 2007, will be beneficial under Sec.  155.4050, and it has been 
incorporated by reference into this regulation.
    Five commenters stated that NFPA 1405 is a guide for marine 
firefighting training and not a standard. The Coast Guard agrees and 
has amended the wording in Sec. Sec.  155.4035(b)(1) and 155.4050(b)(6) 
to reflect this. However, incorporating NFPA 1405 into the regulation 
is still considered essential by the Coast Guard.
    One commenter asked that the following NFPA documents be adopted in 
the proposed rulemaking: NFPA 1001 (Fire Fighter Professional 
Qualifications), NFPA 1021 (Fire Officer Professional Qualifications), 
NFPA 1405 (Land-Based Fire Fighters Who Respond to Marine Vessel 
Fires), and NFPA 1561 (Emergency Services Incident Management System). 
The Coast Guard agrees. Those materials, which were proposed for 
incorporation by reference in the NPRM, are retained in the final rule, 
and the newly issued NFPA 1005 (Standard on Professional Qualifications 
for Marine Fire Fighting for Land-Based Fire Fighters) has also been 
incorporated by reference in Sec. Sec.  155.4035 or 155.4050.
    In addition, more information on the Incident Management System may 
be found by going to the Coast Guard's ``Homeport'' Web page, http://
homeport.uscg.mil/mycg/portal/ep/home.do, and search for ``NIMS/ICS''.
    Three commenters stated that firefighting personnel protective 
equipment should meet NFPA 1971, 1972, 1973, 1974, 1976, 1981, or a 
recognized equivalent. While standards for protective equipment are 
important, it is beyond the scope of this regulation to require using 
specific equipment in response operations. Therefore, the suggested 
standards were not incorporated.
    In addition to the changes stated above, the Coast Guard is 
amending Sec.  155.140 by incorporating by reference the most recent 
edition of each relevant NFPA document. Since marine firefighting is a 
dangerous and complex activity, this revision will help ensure that the 
most current methods and practices are employed for planning and 
responding to a marine fire.

G. Compliance Dates

    Three commenters stated that if the regulations are enacted, 
planholders will be hard-pressed to identify and qualify resource 
providers, negotiate with resource providers, get contracts in place, 
prepare the various plans, and submit the VRP to the Coast Guard. The 
commenters added that the Coast Guard does not have the resources to 
review the VRPs in a timely manner. They suggested that, if the NPRM is 
not withdrawn, the Coast Guard should modify the regulation so that VRP 
elements are submitted in stages. They further suggested that 
planholders be permitted to submit completed VRPs with named resource 
providers with a letter of commitment only, no contract, and without 
regard to response times. The Coast Guard agrees in part and has 
amended Sec.  155.4020 to extend the deadline for submitting the VRP to 
18 months after publication of this final rule. The Coast Guard does 
not agree with having the planholders submit VRPs in stages or without 
contracts with resource providers in place. We determined that 18 
months is adequate to have these required contractual arrangements in 
place. Additionally, the Coast Guard has already begun to take the 
influx of VRPs into consideration for internal staffing needs.
    Three commenters did not feel that requiring some plan holders to 
list multiple providers for their entire area of operations is 
unreasonable and a reason to delay these regulations. The Coast Guard 
agrees because planholders will have 18 months from the date of 
issuance of this final rule to comply, which is an adequate time period 
for planholders to list all of their resource providers.

H. Definitions

    One commenter stated that the proposed definition of ``contract or 
other approved means'' is unnecessary, inappropriate, and extremely 
confusing to planholders, and that the salvage and firefighting 
requirements are a part of the tank VRP regulations. They feel the 
existing definition of ``contract or other approved means'' (found in 
33 CFR 155.1020) has worked well and should be applied throughout the 
regulations. The Coast Guard disagrees. The definition found in 33 CFR 
155.1020 is written specifically, and has numerous references to, oil 
spill removal organizations. The definition in Sec.  155.4025, written 
specifically for the salvage and marine firefighting portion of part 
155, is sufficient and we have not made any changes to it. As noted 
below, however, the definition in Sec.  155.4025 does not substantially 
differ from Sec.  155.1020.
    Two commenters stated that the proposed Sec.  155.4025 creates a 
definition of ``contract or other approved means'', which is 
substantially different from the existing definition of this term in 33 
CFR 155.1020. They noted that the creation of dual definitions and dual 
regulatory standards is bad rulemaking, particularly when the 
conflicting definitions are in the same set of regulations. They 
expressed a preference for the definition appearing in Sec.  155.1020, 
stating that it has proven to be appropriate and effective. The Coast 
Guard agrees in part. While there are two separate definitions, the 
definition in Sec.  155.4025 does not substantially differ from Sec.  
155.1020. Therefore, this definition suffices as written. We have, 
however, added text into the written definition to clarify that if the 
vessel owner or operator has personnel, equipment, and capabilities 
under their direct control, they need not contract for those items with 
a resource provider.
    Ten commenters requested that we clearly define ``COTP city'', as 
the current use in the regulation is confusing and may not be effective 
for determining requirements. The Coast Guard agrees and has added a 
definition of ``COTP city'' in Sec.  155.4025.

[[Page 80625]]

    One commenter stated that the definition of ``emergency 
lightering'' should be included in Sec.  155.1020. The commenter also 
suggested greater use of cross-referencing. The commenter references a 
subpart that is not covered by this rulemaking. However, the Coast 
Guard will keep this suggestion under advisement should rewriting the 
applicable subparts in a future rulemaking become necessary.
    One commenter stated that the definition of ``emergency 
lightering'' should not include portable barges or shore-based portable 
tanks. The Coast Guard disagrees. These methods of emergency lightering 
are two of many different techniques that may be used in an emergency 
lightering response. The definition includes the phrase ``or other 
equipment that circumstances may dictate'' to allow the planholder and 
resource provider to use the best methods for each particular incident.
    Three commenters recommended rewording the definition for 
``external vessel firefighting systems,'' while giving no suggestions 
on how it should be defined. The definition as written is sufficient; 
therefore, no revision has been made.
    One commenter stated that in the definition of ``external vessel 
firefighting system,'' airplanes and helicopters should be deleted 
because they are not applicable to shipboard firefighting. The Coast 
Guard disagrees. We feel air assets can be integral to shipboard-
firefighting operations in delivery of needed firefighting supplies and 
equipment. However, these regulations do not require them to be 
provided. That is a decision left to the planholder and resource 
provider to address. Therefore, we did not revise the definition.
    One commenter stated that the definition of ``funding agreement'' 
is not necessary. The Coast Guard disagrees; the definition is 
necessary to ensure resources are available and dispatched in a timely 
manner. This agreement must be part of the contract or other approved 
means that ensures response resources will support the vessel's VRP. 
While the funding agreement might not be part of the VRP, all such 
agreements that support a particular VRP must be reviewed by the USCG 
prior to approval.
    One commenter suggested that the definition of ``marine 
firefighting'' be reworded to eliminate ``actual'' and ``potential'' 
from the text. The Coast Guard disagrees in part, recognizing that 
there might be scenarios where response to a potential fire (volatile 
oil spilled on deck but not yet ignited, for example) might differ from 
an actual fire event. However, we have removed the word ``danger'' from 
the definition for clarity and to match the wording in Sec.  
155.4035(b)(2).
    Two commenters stated that there needs to be a definition for 
``marine firefighting plan.'' They recommended that the VRP be 
consistent with the National Incident Management System (NIMS)/Incident 
Command System (ICS) incident plan content and formats. The Coast Guard 
believes the commenters meant the marine firefighting pre-fire plan as 
required by Sec.  155.4035(b) and agrees. We have added the definition 
of a marine firefighting pre-fire plan into Sec.  155.4025. The Coast 
Guard does not agree, however, that the VRP needs to be consistent with 
the NIMS/ICS incident plan. We determined that the Unified Command has 
the responsibility of drafting the incident plan during the actual 
incident dependent on actual circumstances, not on pre-incident 
planning.
    One commenter asked that the terms ``marine firefighting team'', 
``marine firefighting provider'', and ``marine firefighting training'' 
be better defined. However, the commenter did not explain why or how or 
provide any suggestions. As a result, the Coast Guard has determined 
that the definitions and references in the text, as written, suffice 
for this rulemaking.
    One commenter recommends deleting the ``offshore area'' definition 
from subpart I, Sec.  155.4025, because it is already included in 
subpart D, Sec.  155.1020. The Coast Guard disagrees because readers of 
subpart I will find this definition more conveniently in that subpart 
than in a preceding one.
    One commenter stated that the definition for ``on-site fire 
assessment'' requires a marine firefighting professional to also 
consider the vessel stability and structural integrity, and since 
vessel stability and, in particular, structural integrity is a separate 
profession from firefighting, it is unreasonable to expect a 
professional firefighter to have much knowledge of these subjects. The 
Coast Guard agrees and has amended the text in Sec.  155.4025 to:

    Control and extinguish a marine fire in accordance with a 
vessel's stability and structural integrity assessment if necessary.

    One commenter stated that the definition for ``other refloating 
methods'' should be deleted or redefined, because most refloating 
efforts will be assisted by the tide and the specific time requirements 
listed in Table 155.4030(b) are not really applicable. The Coast Guard 
disagrees and will retain the definition as written. The timeframe 
required in Table 155.4030(b) is for the salvage plan to be approved 
and for having the resources required for refloating on board, not a 
timeframe for the vessel to be refloated.
    One commenter stated that Sec.  155.4030(a) requires the 
identification of a ``primary resource provider'' for each Captain of 
the Port (COTP) zone in which the vessel operates, but that the term is 
not defined. The commenter recommended adding the word ``primary'' to 
the definition for ``resource providers'' or clearly defining the 
distinction between the ``primary resource provider'' and the 
``resource provider''. The Coast Guard agrees and has clarified this 
issue by adding a definition for ``primary resource provider'' to Sec.  
155.4025.
    Three commenters stated that the definition for ``remote assessment 
and consultation'' needs to be more specific on who can be contacted, 
as the current definition could be construed to include administrative 
or support personnel that would be unable to make effective 
determinations on the appropriate course of action and initiation of a 
response plan. The Coast Guard agrees and has amended the definition in 
Sec.  155.4025 to read:

    The person contacted must be competent to consult on a 
determination of the appropriate course of action and initiation of 
a response plan.

    One commenter pointed out that the definition of ``resource 
providers'' includes the phrase ``as long as they are able and willing 
to provide the service needed'' in the second sentence, and that it 
should be removed. The Coast Guard agrees in part and has amended the 
definition to refer to the limitations for public marine firefighters 
as listed in Sec.  155.4045(d).
    Seven commenters asked that the definition for ``resource 
provider'' be rewritten to include reference to the training and 
qualification criteria in Sec.  155.4050. The Coast Guard agrees and 
has amended the definition.
    One commenter considers the definition of ``salvage'' incorrect, 
because the National Academy of Science/Marine Board ``Reassessment of 
the Marine Salvage Posture of the United States'' (1994) defines 
salvage as:

a commercial effort [that] traditionally has focused on the saving 
of property ships and cargo.

The commenter suggested that perhaps the definition should be for 
``salvage services'' instead of ``salvage.'' The Coast Guard disagrees. 
In the book ``Modern Marine Salvage'' by William I. Milwee (1996, 
Cornell Maritime Press,

[[Page 80626]]

Inc.), which is authoritative and widely accepted in the industry, 
salvage is defined as:

    Saving property at risk at sea and reducing environmental 
damage, and that salvage is all the actions taken aboard and ashore 
to resolve a marine casualty and to save property at risk.

The definition as written reflects this and therefore no change has 
been made.
    One commenter requested changing the existing definition of 
``salvage'' in Sec.  155.4025 to read:

    To assist a vessel who has suffered damage or is in danger of 
suffering damage to prevent or reduce loss.

For the reasons described above, the Coast Guard disagrees and will 
leave the definition as written.

I. Response Times

1. General
    There were four comments asking what triggers the activation of the 
response plan. The response plan is activated once the master of the 
vessel has determined that the resources and personnel available on 
board cannot meet the needs of an actual or potential incident. The 
response timeframes listed in Table 155.4030(b) start when anyone in 
the response organization receives notification as stated in Sec.  
155.4040(b).
    One commenter stated that the generic response times in the ``Table 
of salvage and marine firefighting services'' are not always 
appropriate to local situations, such as those on the west coast, 
Alaska, and Hawaii. They recommended the Coast Guard evaluate the 
entire U.S. coastline, including Alaska and Hawaii, to determine 
whether the offshore areas, as required by this rulemaking, provide 
adequate coverage. The Coast Guard agrees in part. Table 155.4030(b) 
was developed to target COTP cities that cover the major high-traffic 
ports outside the continental U.S. (OCONUS). Our analysis for the 
proposed rule showed that it would be cost prohibitive to cover all 
offshore areas for the OCONUS locations. All continental U.S. (CONUS) 
coastlines are covered by this final rule and this rule does not impose 
any additional capital requirements on industry. Table 155.4030(b) 
shows the timeframe requirements for CONUS and OCONUS response activity 
both within 12 miles of a COTP city, and from 12 to 50 miles of a COTP 
city.
    One commenter recommended different planning response times for 
high-volume ports and non-high-volume ports similar to the spill 
response planning standards. The Coast Guard disagrees. This rulemaking 
was written to provide uniform response timeframes for all the 
shorelines and port cities of the U.S., emphasizing protection of 
vessels during underway transits where most salvage and/or marine 
firefighting incident response efforts would be needed. It differs from 
the abovementioned standards that were written to address the recovery 
of oil already released, which most often happens in or around port 
facilities during transfer operations at dockside in high-volume ports.
    Two commenters questioned the justification for specifying whether 
particular equipment and expertise must be on scene in say, 12 hours, 
as opposed to 18 hours, given that every salvage operation is different 
depending on the circumstances of the casualty. The Coast Guard 
disagrees in part. We acknowledge that each incident will differ in 
circumstances, and that is why this rulemaking incorporates planning 
standards in lieu of performance standards. The timeframes were 
determined to be realistic standards for planholders and resource 
providers to meet when developing their contractual arrangements.
    One commenter stated that the proposed regulations generally do a 
good job of identifying the services necessary, but there are 
significant sequencing and timing issues that compromise the proposed 
regulations to the point that compliance will be impossible. The Coast 
Guard disagrees because compliance with the planning standards as 
listed will be achievable, if not within the compliance date of this 
rulemaking, certainly within the waiver periods as outlined in Sec.  
155.4055(g).
    One commenter stated that imposing strict response times will force 
a significant expansion of the resource base of dedicated professional 
salvors, and that as this resource base expands, it will not sit idle 
in warehouses or at dockside, but will enter the marketplace to compete 
for all available business to which it is suited. The Coast Guard 
neither agrees nor disagrees with this comment. We note, however, that 
what resource providers do with their resources when not responding to 
an incident is beyond the scope of this rulemaking.
2. Timeframe Too Short
    Three commenters stated that the one-hour timeframe for remote 
assessment and consultation should be four hours. The Coast Guard 
disagrees. The criteria for remote assessment and consultation are that 
the salvor is in voice contact with the qualified individual, operator, 
or the master of the vessel. This qualified individual should plan to 
make voice contact via cell phone or radio within the one-hour response 
timeframe.
    One commenter stated that placing the proposed time constraint of 
16 hours on the salvage team to produce a written salvage plan is not 
necessary and may be counterproductive. The commenter feels that this 
time constraint, combined with factors such as the time of day the 
incident occurs and travel time, could unnecessarily result in poor 
decisions made as a result of being rushed or having insufficient time 
to gather information. The Coast Guard disagrees, but also reiterates 
that the timeframes listed in Table 155.4030(b) are planning standards 
and not performance standards. We understand that the first submittal 
of a salvage plan to the Incident Commander might not be the final plan 
after all factors are considered and that, as in any incident response, 
circumstances will dictate the development and execution of daily 
incident action plans. It is entirely feasible that with proper pre-
planning and consultation between all parties involved, a suitable 
salvage plan can be developed in the published times.
    Two commenters stated that the attempt to control the on-site 
salvage assessment, as found in Table 155.4030(b), and succeeding 
portions of the salvage effort by placing set time limits on the 
initiation of the various stages may be counterproductive to the 
overall effort. The commenters also asserted that the accuracy and 
timeliness of the ongoing assessments of structural integrity and 
stability will not be aided by having a set time limit imposed. The 
Coast Guard disagrees. It is imperative that the planholder have 
contractual arrangements in place to ensure a minimum level of salvage 
expertise, above that of the master and crew, will be on board the 
stricken vessel in a minimum amount of time. We understand that after 
this first response by the contracted salvor, a more specialized area 
of expertise may be needed and, if so, the planholder can arrange for 
such specialized expertise. The burden of providing capable salvor 
expertise in the required timeframe is on both the planholder and the 
resource provider. It is both parties' responsibility to jointly plan 
for and anticipate likely scenarios in which the salvor's services 
would be needed.
    Two commenters stated that the proposed six-hour response timeframe 
(for incidents up to 12 miles from the COTP city) and the 12-hour 
response timeframe (for incidents up to 50 miles from the COTP city) 
for on-site firefighting assessment and fire-

[[Page 80627]]

suppression services presumably would apply in situations where local 
fire personnel are not available and the firefighting representatives 
must travel from the service provider's headquarters to the vessel. 
Under these circumstances, the commenters believe the proposed 
timeframes for this to take place are not reasonable or likely 
achievable. The Coast Guard disagrees. The timeframes listed for on-
site fire assessment are achievable either by using local fire 
personnel or by contracting with resource providers that can meet the 
planning criteria. Should there not be a resource provider that can 
meet the criteria in that specific geographical area, Sec.  155.4055 
provides for a temporary waiver request to allow time to address those 
shortfalls.
    One commenter stated that in operating areas where firefighting 
tugs may not be available, the ability to meet the proposed timeframe 
for ``External firefighting systems'', as found in Table 155.4030(b), 
will be limited by the amount of foam that can be stockpiled and the 
availability of nearby air cargo facilities. The Coast Guard disagrees 
in part. We understand that meeting the requirements will take a 
concerted effort by planholders and resource providers to ensure an 
adequate supply of foam is on hand, but it can be achieved within the 
timeframes listed. Resource providers and planholders will have to take 
a proactive stance in regards to ensuring adequate amounts of marine-
firefighting extinguishing agents are available and should consult with 
port partners to ensure that appropriate firefighting responses will 
occur.
    Two commenters stated that the timeframes for remote assessment and 
consultation, assessment of structural stability, external emergency 
transfer operations, and completing a salvage plan ignore numerous 
other demands, and that applying arbitrary time limits to inherently 
variable situations does not achieve the goal of the rulemaking. The 
Coast Guard disagrees. We have written Table 155.4040(c) specifically 
to allow flexibility for these services. For example, Table 155.4040(c) 
lists the ending for response time assessment of structural stability 
when the ``Initial analysis is complete.'' We understand and have taken 
into consideration that these services will be progressive. The 
specific response times are planning standards based on a set of 
assumptions made during the development of this regulation. We 
understand that these assumptions may not exist during an actual 
incident, but the use of these timeframes as planning standards is 
valid and will remain unchanged.
    Two commenters stated that emergency lightering differs from an 
external transfer operation in that the cargo or bunkers are 
transferred to another vessel or to a land-based receiver (rather than 
to another location on the damaged vessel). The major component of 
offshore lightering, assuming that the portable pumps have arrived on 
scene, is the receiving vessel, and the use of that equipment must be 
guided by the approved salvage or lightering plan. The Coast Guard 
agrees in part, but as this comment was not specific in its opposition 
to the timeframe requirement the Coast Guard cannot respond further. 
However, we note that the requirement for emergency lightering, having 
the equipment on scene and alongside the stricken vessel (Sec.  
155.4030(f)), is written such that it follows the requirement for a 
salvage plan by six hours specifically so that the emergency lightering 
can be accomplished in accordance with the salvage plan's direction.
    Two commenters asserted that the assumption that re-floating 
methods such as pontoons or airbags could be assembled and delivered to 
the casualty in the proposed timeframe as found in Table 155.4030(b) is 
not reasonable as such an assumption makes no allowance for the 
planning and engineering effort that must accompany any prudent attempt 
to apply external buoyancy to a damaged vessel. The commenters argued 
that the capability to provide these types of services should be 
included in an assessment of a salvage service provider, but that 
having it mandated within a certain timeframe takes it out of the 
context of the salvage plan. The Coast Guard disagrees in part. The 
response time ends when the salvage plan is approved by the FOSC and 
the needed resources are on the vessel, not when an attempt is made to 
refloat the vessel. This allows for the discretion the commenter calls 
for when actually attempting to refloat the vessel.
    Two commenters stated that there is no way of knowing prior to the 
incident what materials might be required to meet ``Making temporary 
repairs'' as found in Table 155.4030(b) and, therefore, it is not 
reasonable to impose a set timeframe for having the materials 
available. The capability to provide this service should be included in 
an assessment of a salvage service provider, but having it mandated 
within a certain timeframe takes it out of the context of the salvage 
plan. The Coast Guard disagrees in part. We determined that having 
repair equipment ready and deployed on board a vessel in an emergency 
incident is important enough to merit its own timeframe for response. 
We recognize that it is not possible to foresee every single material 
or tool that might be needed to make a temporary repair. However, we 
determined that a reasonableness standard can be applied to this 
provision, and it is absolutely possible to determine the materials and 
tools that are most likely to be needed for planning purposes.
    Two commenters stated the response for ``Diving services support'' 
as found in Table 155.4030(b) may be a progressive operation with the 
initial dive team arriving with necessary initial gear augmented by 
truckloads of additional equipment such as underwater welding, larger 
compressors, and decompression chambers; therefore, some unique 
constraints are placed on the travel methods for the dive team. The 
Coast Guard agrees that dive operations can be a lengthy process. 
However, the response time ends when required support equipment and 
personnel are on scene in accordance with Table 155.4040(c)(1)(xii), 
and not when the diving support services operations start, so we have 
not amended the response time.
    One commenter stated that getting the Salvage Master on-site is the 
key to the commencement and/or completion of many of the other 
services. The commenter stated it is possible to begin the on-site 
assessment, at the furthest extent of their operating area, if there 
were eight hours instead of six. The commenter recommends the 
requirement for this service be extended to at least eight hours. The 
Coast Guard agrees that getting the person conducting the salvage 
assessment on board is critical, hence our six- or 12-hour timeframe, 
depending on whether the incident occurs within 12 miles or 50 miles 
offshore. Due to the company-specific nature of this comment we are not 
expanding the planning standard in this rulemaking. We acknowledge that 
some geographic areas will have a harder time meeting certain 
timeframes than others, and that in cases where it is actually or 
nearly impossible to meet the timeframes, we will consider waivers as 
allowed in Table 155.4055(g).
3. Timeframe Too Long
    Two commenters stated that it is unacceptable to leave large 
sections of coastline along the western coast of Washington State and 
the Strait of Juan de Fuca exposed, asserting that they are not covered 
by requirements for timed responses, and that the Federal Government 
has a responsibility to protect the treaty rights of Puget Sound tribes 
in their usual and accustomed fishing areas. The Coast Guard

[[Page 80628]]

disagrees. Sections 155.4030(b) and 155.4040 describe the geographical 
limits of vessel transits that the response activity timeframes apply 
to using the same geographical area descriptions as the original VRP 
regulation, found in 33 CFR 155.1050(k). Additionally, 46 CFR 7.5(c) 
reads:

    Except as otherwise described in this part, Boundary Lines are 
lines drawn following the general trend of the seaward, highwater 
shorelines and lines continuing the general trend of the seaward, 
highwater shorelines across entrances to small bays, inlets and 
rivers.

    Therefore, all the coastal waters of the U.S. are covered under 
this rulemaking. Regarding specific response activity timeframes for 
the Strait of Juan De Fuca, it is unnecessary to change the timeframes 
for one area. Again, these timeframes are maximum planning standards 
and as such there will be resource providers that can bring resources 
to bear well within the published timeframes in the Strait of Juan de 
Fuca.
    One commenter stated that the response times allotted for the 
emergency lightering resources in the NPRM are very generous and 
believes that more stringent response times for lightering resources 
would definitely be achievable. The Coast Guard disagrees; we feel the 
timeframe is appropriate for the need because these times must include 
the movement of both specialized equipment and the appropriate 
technical personnel. Therefore, the 18- and 24-hour timeframes for the 
resources to arrive on scene and alongside the vessel are suitable for 
this service.
    One commenter stated that the time requirements in Table 
155.4030(b)(1)(i)(E), specifically the line item calling for 12 hours 
for hull and bottom survey, are discouraging for two reasons: (1) A 
vessel on fire will need this analysis faster than 12 hours for 
effective firefighting response; and (2) the commenter has been 
providing the damage stability analysis within two hours for 
groundings, allisions, collisions, explosions, fires, and other 
structural failures. The Coast Guard agrees in part and understands the 
need for critical information to be available as soon as possible. The 
response activity timeframes are provided as a maximum planning limit. 
It is in the interest of the planholder to minimize response times for 
the salvage and firefighting requirements, and we anticipate the 
prudent planholder will work to ensure that they are minimized.
4. Planning or Performance Standards
    One commenter stated that the description of services that the 
planholder must contract for in advance is excellent, but because each 
incident is different the planholder should be able to respond as 
appropriate instead of taking a ``by-the-numbers'' approach. The 
commenter was concerned that the Coast Guard will ``grade'' the 
response not on whether it was timely and appropriate, but by whether 
the planholder met the arbitrary timeframes proposed. The Coast Guard 
agrees that the response activity timeframes required by this 
subchapter should be used in developing the required VRPs. The specific 
response times are planning standards based on a set of assumptions 
made during the development of this regulation. These assumptions may 
not exist during an incident up to and including a worst case discharge 
scenario as required by OPA 90. Therefore, Table 155.4030(b) will be 
used as a planning standard and not a performance standard to ensure 
that the resources are capable of arriving at the vessel in the 
required response times when formulating the contract between the 
planholder and the resource providers.
    Twenty-seven commenters asked the Coast Guard to continue 
emphasizing that the response-time criteria in the rule are a planning 
standard, not a performance standard. The Coast Guard agrees and has 
used Sec.  155.1010 as a guideline in developing specific planning 
criteria. The response activity timeframes required by Table 
155.4030(b) are intended for use in developing the required VRPs. The 
specific response times are planning standards based on a set of 
assumptions made during the development of this regulation. These 
assumptions may not exist during an incident up to and including a 
worst case discharge scenario as stated in OPA 90. Therefore, Table 
155.4030(b) should be used as a planning standard and not a performance 
standard, to ensure that the resources are capable of reaching the 
vessel in the required response times, when formulating the contract 
between the planholder and the resource providers.
    One commenter stated that the salvage and marine firefighting 
service response times are planning times in the same manner as oil 
spill removal organization (OSRO) equipment response times are planning 
times. The Coast Guard agrees. The planning criteria in this subpart 
are intended for use in response plan development and the 
identification of resources necessary to respond to the worst case 
discharge scenarios. The development of a response plan prepares the 
vessel owner or operator and the vessel's crew to respond to an 
emergency incident. The specific criteria for response resources and 
their arrival times are not performance standards. They are planning 
criteria based on a set of assumptions that may not exist during an 
actual incident.

J. Use of Resource Providers During Actual Incident

    Twelve commenters expressed concern that the emphasis on contracts 
may set a precedent that would prohibit a company from using the best 
service available at the time instead of the contracted service. The 
Coast Guard disagrees in part. The purpose of requiring contracts is to 
ensure a timely response for an incident. Planholders may list 
multiple-contracted resource providers and choose which resource 
provider is best in a particular situation. While this regulation 
cannot eliminate the possibility that there may be closer, non-
contracted resources, it ensures that prompt action can be taken 
immediately to dispatch needed resources to respond. While the 
preferred means of obtaining response resources is by pre-approved 
contracts, the Coast Guard recognizes that the planholder/FOSC/Unified 
Command must have flexibility under exceptional circumstances to 
deviate from the service provider(s) listed in the approved VRP. This 
deviation from the response plan must be conducted in accordance with 
the Jones Act (Title 46, United States Code Appendix 316(d)) unless a 
waiver is requested.
    One commenter stated that the Coast Guard's interpretation of Sec.  
1144 of the Coast Guard Authorization Act of 1996, Public Law 104-324, 
is inappropriate, because the NPRM's version of FOSC authority to 
deviate from the VRP does not track the language of the FWPCA. The 
Coast Guard disagrees. Section 1144 of the Coast Guard Authorization 
Act of 1996 (Pub. L. 104-324), otherwise known as the ``Chaffee 
Amendment'' amended the FWPCA regarding the use of spill response 
plans. Specifically, it states:

    That the owner or operator may deviate from the applicable 
response plan if the President or the Federal On-Scene Coordinator 
determines that deviation from the response plan would provide for a 
more expeditious or effective response to the spill or mitigation of 
its environmental effects.

The Coast Guard interprets this amendment as applicable to the use of 
contracted resources, qualified individuals, and other ``significant''

[[Page 80629]]

deviations from the VRP. This deviation from the response plan must be 
conducted in accordance with the Jones Act (Title 46, United States 
Code Appendix 316(d)) unless a waiver is requested. The Coast Guard 
will give precedence to the Incident Action Plan as developed by a 
unified command during an actual response. Wording has been added in 
section Sec.  155.4032(a) to cover this possibility.
    One commenter urged the Coast Guard to encourage conformity with 
international practices and standards wherever possible and also 
encourage planholders to move quickly to engage the nearest best 
available assets. The Coast Guard agrees in part. Nothing in this 
regulation discourages planholders from conforming to international 
standards, and it has been a policy of the Coast Guard to encourage 
conformity with any international standards that are above the level of 
required federal regulations. As far as encouraging a planholder to 
engage the ``nearest best'' available assets, Sec.  1144 of the Coast 
Guard Authorization Act of 1996 (Pub. L. 104-324; October 19, 1996; 110 
STAT. 3901), otherwise known as the ``Chaffee Amendment'', provides the 
Incident Commander/COTP authorization to deviate from the VRP in 
instances where that would best effect a more successful response. This 
deviation from the response plan must be conducted in accordance with 
the Jones Act (Title 46, United States Code Appendix 316(d)) unless a 
waiver is requested.
    One commenter stated that firefighting technology and resources are 
not in place. The Coast Guard agrees in part. We acknowledge that there 
are areas of the U.S. where adequate firefighting resources may not be 
available. This is part of the reason we are issuing this rule. In 
order to allow time for these resources to develop, we have included 
the ability to request a waiver for fire-suppression services for those 
planholders who are unable to contract for this service in the 18-month 
compliance period. However, we determined that remote firefighting 
assessment and consultation is easily achieved by external 
communications and, therefore, no waiver period is allowed for that 
service. We expect that this regulation will help the industry develop 
new firefighting resources and technologies.
    One commenter stated that the Coast Guard should be realistic when 
they say a resource provider is capable of providing a service. A 
service provider is capable subject to the availability of its 
resources, and the Coast Guard ought to say so. The Coast Guard 
disagrees in part. The resource provider, by entering into a 
contractual agreement to provide the services necessary to meet the 
requirements of this regulation, has agreed to respond under the 
obligations identified in that contract. Due to extenuating 
circumstances, where local resources might be engaged in separate 
emergency response activities, the FOSC may determine that a deviation 
from the response plan would provide for a more expeditious or 
effective response.

K. Required Services

1. Salvage
    One commenter stated that there is no need to provide the 
information in Sec.  155.1035(c):

    Shipboard spill mitigation procedures for manned vessels 
carrying oil as a primary cargo,

or Sec.  155.1040(c):

    Shipboard spill mitigation procedures for unmanned tank barges 
carrying oil as a primary cargo,

in advance of an incident, because the information can always be sent 
via fax or e-mail and arrive well before the salvage professional 
arrives on scene, adding that even if it was sent in advance, the odds 
are the salvage professional would ask for it again to ensure they have 
the latest copy. The Coast Guard disagrees. This information is a 
valuable asset for resource providers and must be available to them at 
all times. We don't consider this an additional burden as this 
information must already be included in a VRP. Maintaining current 
information as required by Sec. Sec.  155.1035(c) and 155.1040(c) is an 
issue to be resolved between the vessel owner/operator and the resource 
provider.
    One commenter stated that the NPRM does not adequately consider the 
diversity of situations lumped into the term ``salvage.'' The expertise 
and equipment that could be involved in a particular incident are as 
variable as the events themselves, therefore they feel that the rule is 
too prescriptive, and the placement of strict time requirements is 
counterproductive. The Coast Guard agrees in part. This regulation was 
written specifically to allow planholders and resource providers to 
determine those equipment and services for which they need to enter 
into a contract. We considered more prescriptive contractual 
requirements for specific salvage and marine-firefighting equipment and 
instead decided to allow the contractual partners flexibility to 
determine what was necessary to ensure effective incident response 
services are available to cover up to a worst case discharge scenario.
    One commenter stated that the rule attempts to address components 
such as equipment and capability, training of experienced personnel, 
contracting options, effective communication and fair compensation but 
it does not, however, fully address any of them. The commenter 
elaborated that the elements remain largely untouched, and stated the 
rule does not go far enough in any area. The Coast Guard disagrees. The 
regulation was written in a non-prescriptive manner to allow both the 
planholders and resource providers to work together to provide the 
equipment and services necessary to meet the intent of the regulation 
under a contractual arrangement. A great deal of flexibility was 
allowed specifically to address the varying availability of response 
equipment and expertise in different geographical locations, and the 
types of transport services and operating environments.
    One commenter stated that the response resources, which are created 
by this rulemaking, are unlike pollution response resources that have 
little or no practical uses outside of their design parameters. These 
new salvage resources, acquired and subsidized with lucrative retainer 
fees from the tanker industry, almost certainly will be used to compete 
for any and all additional maritime business for which they might be 
suited, and that this will be to the financial detriment of the many 
general marine contractors who currently provide many of the services 
and resources utilized for salvage operation. The Coast Guard disagrees 
in part. We recognize that response resources will be created by this 
regulation that will most probably be put to other uses when not in use 
per these regulations. However, the owner of these resources will be 
under contractual arrangement to ensure these services and equipment 
are available to respond in the required timeframes. It is also 
probable that local general marine contractors will be contracted for 
use of their services and equipment by the primary resource provider.
    One commenter asked what constitutes a salvor today, particularly 
if it can no longer be viewed as a specialist in many key salvage-
related activities. This question was asked in the context of the 1994 
Marine Board report, which states:

    Even the professional salvor, once almost self contained, relies 
more and more on outside specialists for salvage engineering, 
firefighting, lightering, naval architecture and the provision of 
the salvage working platform itself. (Reassessment of the Marine 
Salvage

[[Page 80630]]

Posture of the United States, p. 36; Copyright 1994, available 
through the National Academy Press, 800-624-6242)

This final rule, while including dedicated salvors in the area of 
resource providers, does not limit the ability of anyone to enter into 
contractual agreements with the planholder. In fact, we recognize in 
Sec.  155.4030(a) that multiple resource providers may be needed to 
meet the intent of these requirements. We recognize that it is unlikely 
any single salvage contractor would be able to perform all of the 
elements (services) of salvage and marine firefighting in every region 
of the United States. Thus, more than one contractor may be necessary 
to perform all the services needed. The planholder would be required to 
list each service and the resource provider to perform it, in their 
VRP's geographic-specific appendix for each COTP zone the vessel 
transits. The primary resource provider will act as the primary point 
of contact when multiple resource providers are listed for the same 
service.
    One commenter disagreed with the definition of ``on-site salvage.'' 
They stated that the on-scene person does not need to be someone who 
has the ability to assess the vessel's stability and structural 
integrity. He or she needs to be someone who can assess the visual 
condition of the vessel and report the required information (phone or 
radio) to the person who will determine the vessel stability and 
structural integrity. The Coast Guard disagrees. To accurately assess 
the vessel's stability and structural integrity, and even to accurately 
report significant facts back to the resource provider conducting the 
stability calculation, the person on scene must have the training and 
experience to meet the requirements of Sec.  155.4050. Determining how 
quickly resources must arrive and the expertise needed on-scene were 
discussed in detail during the 1997 public workshop (referenced earlier 
in this discussion) and in subsequent meetings with interested parties, 
therefore we feel that the six- and 12-hour timeframes are adequate for 
the resource provider's representative to arrive on-scene.
    One commenter noted that many vessels have on board internal 
emergency transfer equipment and therefore should not have to contract 
for portable emergency-transfer equipment for lightering. The Coast 
Guard disagrees. While some ships have this equipment on board, it may 
not be capable of working in an emergency. Therefore, it is prudent to 
also have this equipment available by contract.
    One commenter stated that the definition of ``diving services 
support'' and its position in Table 155.4030(b) is in error. They feel 
that it should be part of the ``Assessment & Survey'' section of Table 
155.4030(b), and that divers should not enter the water without the 
support on scene. The Coast Guard disagrees regarding moving the diving 
services support into the ``Assessment & Survey'' section. We consider 
it unreasonable to expect diving services providers to meet the shorter 
timeframes as listed in the ``Assessment & Survey'' section of the 
table. We agree that divers should not enter the water without proper 
support, but point out that the diving services support listed in Table 
155.4030(b) refers to diving services supporting the salvage operation, 
not support for the divers themselves. Section 155.4032(b) addresses 
implementing the safety support systems necessary when providing 
salvage and marine firefighting services.
    One commenter stated that for emergency lightering of special 
cargoes, specialized lightering equipment may be needed and may take 
longer to arrive on scene than is required by this rulemaking. The 
Coast Guard understands that special circumstances could arise in any 
situation and has crafted the response timeframes as planning 
standards. Should circumstances arise that would delay emergency 
lightering equipment from arriving as planned for in the VRP, there are 
a number of alternatives. There is a provision in the Chaffee Amendment 
that allows the FOSC to deviate from the VRP if it would provide for a 
more expeditious or effective response to the incident or mitigation of 
its environmental effects. In addition, the requirements of the Jones 
Act:

    Prohibits the engagement of a foreign vessel in salvaging 
operations on the Atlantic or Pacific coast of the United States, or 
in territorial waters of the United States on the Gulf of Mexico, 
except when authorized by treaty or when the Commissioner of 
Customs, after investigation, authorizes the use of a foreign vessel 
or vessels in the salvaging operations. [Title 46, United States 
Code Appendix 316(d)],

Therefore, the FOSC may act to obtain a waiver when suitable U.S.-flag 
vessels or barges cannot be located or obligated to assist and support 
the removal and salvage operations to mitigate pollution or the threat 
of pollution. Every waiver request has to go to the Commissioner of 
Customs for authorization. The waiver may be granted, after the U.S. 
Maritime Administration (MARAD) has been consulted on the availability 
of U.S. vessels, on a case-by-case basis, to support removal/salvage 
operations to mitigate pollution or the threat of pollution. This on-
scene, incident specific, FOSC request for a Jones Act waiver is a 
separate and different issue than the waiver discussed in Sec.  
155.4055(c). There, we explain that the emergency lightering 
requirements for the vessel response plan may not be waived due to a 
planholder being unable to contract a resource provider to be listed in 
the VRP.
    One comment stated that the term ``special salvage operations'' may 
be misleading because every case is different, and there is currently 
no such entity as a ``special salvage operations plan,'' only the 
``salvage plan.'' The Coast Guard disagrees. Salvage efforts may be 
divided into three areas: assessment and survey, stabilization, and 
special salvage operations (e.g., re-floating and post-refloating). For 
the purposes of this regulation, special salvage operations include 
heavy lift and/or subsurface product removal as detailed in Table 
155.4030(b)(1)(iii).
    One commenter suggested revising the ``heavy lift'' definition to 
identify a minimum-rated lift capacity, i.e., 100 short tons. The Coast 
Guard disagrees. Requirements for salvage capabilities let the 
planholder and resource providers decide, for each particular vessel, 
what sufficient ``heavy lift'' capabilities are. Again, the Coast Guard 
is writing these regulations to be planning based rather than 
prescriptive.
    The same commenter also stated that heavy lift equipment is only 
useful for vessels of limited size, and that heavy lift is not useful 
for ship salvage, but could be used in the salvage of barges. The Coast 
Guard agrees in part. Heavy-lift capabilities are still required as 
stated in Table 155.4030(b). Heavy lift equipment is only useful for 
vessels of limited size, and not for the majority of tankers carrying 
oil. Because of this limited applicability and the major costs of 
capital construction associated with building heavy lift capabilities, 
it is economically and/or physically impractical to require these 
resources to be on scene in a given time period. Therefore, the Coast 
Guard revised the regulation in Table 155.4030(b) to allow the 
planholders to contract with existing resource providers where they are 
currently located, and provide an estimated time of arrival on scene 
for planning purposes.
    Should a planholder not be able to contract a resource provider 
that can provide heavy lift capability for the area in which the vessel 
is operating, Sec.  155.4055(g) offers a five-year waiver period for 
specialized salvage operations, of which heavy lift is part. In 
addition, should a planholder feel that contracting for heavy-lift 
capabilities is not feasible based on

[[Page 80631]]

special circumstances of their vessel(s), 33 CFR 155.130(a)(2)(i) 
allows for a planholder to request the Coast Guard to grant an 
exemption from the regulation when compliance with a specific 
requirement is economically or physically impractical.
    One commenter recommended listing the resources and requirements 
for emergency lightering and/or external emergency-transfer operations 
under a separate heading in the NPRM. The Coast Guard disagrees and has 
written Table 155.4030(b) to reflect a logical progression during an 
emerging salvage operation.
    One commenter asked if the required salvage and marine firefighting 
services will be listed in a geographic-specific appendix for each COTP 
zone. If so, the commenter stated that the existing regulations should 
be updated to reflect this change, and be listed as set forth in 
Sec. Sec.  155.1035(i)(9) and 155.1040(j)(9), which state:

    The appendix must also separately list the companies identified 
to provide the salvage, vessel firefighting, lightering, and, if 
applicable, dispersant capabilities required in this subpart.

As these sections already require these specific services to be listed, 
Sec. Sec.  155.1035(i)(9) and 155.1040(j)(9) will not be updated. 
Resource providers that will be contracted for services in an area must 
be listed in the VRP geographical-specific appendix as found in 
Sec. Sec.  155.1035(i)(9) and 155.1040(j)(9). Additional resources may 
be listed, but if they are not under a contract or other approved means 
for response they must be clearly listed as an additional resource and 
not as a primary or secondary responder.
    Two commenters stated that if additional equipment is needed to 
support operations or to transport firefighting resources to a vessel 
away from a pier, then these resources should be identified in the VRP. 
The Coast Guard agrees in part. This regulation outlines what services 
are required to be planned for in accordance with the response activity 
timeframes listed in Table 155.4030(b). If additional equipment or 
delivery platforms are necessary for a planholder's specific 
situations, then that should be a matter of contractual arrangement 
between the planholder and the resource provider. It is important that 
this regulation not be so specific as to restrict viable operational 
decision-making during an actual incident.
    One commenter stated that the proposal to require VRPs to identify 
towing vessels with the proper characteristics, horsepower, and bollard 
pull to tow the vessel(s), as well as vessels that are capable of 
operating in environments where the winds are up to 40 knots will 
essentially require large, stand-by towing and salvage vessels in every 
COTP zone in the United States. In addition, the commenter wrote that 
the proposal provides explicit equipment requirements for firefighting 
and subsurface product removal capability, and that no legitimate, 
verifiable rationale for these requirements is provided. The Coast 
Guard acknowledges that this final rule may result in the existence of 
sufficient towing vessels in areas where there are none now, and we 
feel it is beneficial to the planholders, the environment, and to the 
local communities that this happen. With regards to the equipment 
requirements found in Sec.  155.4030(f) through (h), these are minimum 
requirements, written to ensure that a basic level of response 
capabilities is available. Determining what constitutes adequate 
salvage and marine firefighting resources supports the requirement in 
OPA 90 to ensure capabilities exist to respond to a worst case 
discharge scenario.
    Two commenters stated that the term ``structural stability,'' as 
defined in Sec.  155.4025, includes two distinct activities. As 
defined, it includes assessment of both ``vessel stability'' and 
``structural integrity.'' In actuality, these are two distinct types of 
assessments that will be going on at the same time. The salvage 
engineer and naval architect will be looking at the remaining strength 
of the damaged hull (``structural integrity''); simultaneously they 
will be assessing the stability of the vessel as the various spaces are 
emptied or flooded and how the contents of various spaces will affect 
the remaining hull strength. The engineers will be working closely 
together, both on board and ashore, to provide updated information to 
the Salvage Master and others in the team. The assessment process will 
begin with the initial call to the salvage resource provider and will 
be continuous and on-going from that point and may not be final until 
the salvage is completed. The commenters stated the accuracy and 
timeliness of the assessments of hull strength and vessel stability 
will not benefit by having a set time limit imposed by regulation. The 
Coast Guard agrees in part and understands that the assessment and 
salvage survey components of the response are ongoing evolutions, being 
continually updated as time and environmental factors work on the 
vessel. Planning standard timeframes are beneficial for these actions. 
The person on scene needs to be able to assess the vessel's stability 
and structural integrity to accurately report significant facts back to 
the person conducting the stability calculation. We determined that the 
timeframes are necessary for this action to ensure an accurate, 
professional evaluation of the vessel's actual state.
    Another commenter stated that requiring a planholder to list a 
primary service provider serves no useful purpose and that the logic 
for doing this is not included in the rule. The commenter asked for 
clarification on the status of the primary service provider compared to 
other service providers, referencing the 19 different elements in Table 
155.4030(b), and stated that the combinations when more than one 
service provider exists are overwhelming and impractical. The Coast 
Guard disagrees in part. We recognize that it is unlikely any single 
salvage and marine firefighting contractor would be able to perform all 
of the elements (services) of salvage and marine firefighting in every 
region of the United States. Thus, more than one contractor may be 
necessary to perform all the services needed. The planholder would need 
to list each service and the resource provider who will perform it for 
each COTP zone the vessel transits. The primary resource provider will 
act as the primary point of contact when multiple resource providers 
are listed for the same service. For example, if a planholder lists 
three separate towing companies for emergency towing services, one must 
be listed as the primary resource provider, but all must be under a 
contract or other approved means as stated in Sec.  155.4030(a). To 
clarify this, we have added a definition for ``primary resource 
provider'' to Sec.  155.4025.
    One commenter wrote that the execution of a valid salvage strategy, 
including other, more appropriate actions, could be hindered by a 
requirement to perform a hull and/or bottom survey within a set 
timeframe, and that this is best left to the judgment of the 
experienced salvor. The Coast Guard agrees in part. This rulemaking 
requires planholders to have, under contract, resource providers that 
have the capability to provide a hull and bottom survey within the 
response activity timeframes. It does not require that a hull and 
bottom survey actually be completed, as there might be instances when a 
survey would be unnecessary or inappropriate.
    One commenter stated that computer models using industry standard 
software should be required and in the possession of contracted naval

[[Page 80632]]

architects/salvage engineers in the event of casualties (33 CFR 
155.4030(d)). The Coast Guard agrees in part that advancements in 
technology should be leveraged to provide optimal execution of incident 
management, but this rulemaking does not require the use of any 
specific technologies.
    One commenter stated that the Coast Guard should reduce or remove 
the equipment requirements concerning towing vessels and firefighting 
equipment listed in Sec. Sec.  155.4030(e) and 155.4030(g) and move to 
a people-based approach similar to the firefighting approach. The Coast 
Guard disagrees. While recognizing the prime importance of people-based 
operations, we consider the equipment requirements found in Sec.  
155.4030 minimal requirements, listed to ensure an adequate level of 
necessary response equipment. Section 155.4030(e) requires a towing 
vessel capable of operating in 40-knot winds. The Marine Board's ``A 
Reassessment of the Marine Salvage Posture of the United States'' 
(National Academy Press, 1004; Appendix I, page 123) references the Det 
Norske Veritas publication Towing Operations Guidelines and 
Recommendations for Barge Transportation. This document is intended to 
provide guidance to the offshore industry on how large a tug would be 
required to be in order to transport major equipment offshore. These 
guidelines recommended using a tug capable of towing in 16.5-foot (5-
meter) seas with 39-knot winds and up to a 2-knot current. This 
correlates with the conditions in which we would expect a 7,000-
horsepower tug to be able to hold a large tanker. The commenter's 
reference to Sec.  155.4030(g) is specific to the section requiring the 
identified resource providers to have the ability to pump 0.16 gallons 
per minute per square foot of deck area of the vessel. This is in line 
with, and based on, existing regulations, specifically 46 CFR 34-20.5, 
and NVIC 6-72, ``Guide to Fixed Fire-Fighting Equipment Aboard 
Merchant Vessels.'' The volume of water required to extinguish a fire 
like the one on the T/V MEGA BORG (roughly 30,000 square feet of deck 
area) requires a pumping capability of roughly 4,500 GPM. For this 
rate, portable pumps of 2,000 GPM are effective. A sufficient supply of 
such pumps is available around the country, and they are efficient to 
transport from storage to casualty sites. (The Marine Board's ``A 
Reassessment of the Marine Salvage Posture of the United States.'' 
National Academy Press, 1004; Chapter 3, page 41)
2. Firefighting
    One commenter stated that locking particular pieces of equipment 
into one location is very expensive and places the greatest financial 
burden on owners. The Coast Guard agrees in part. While pre-staging 
response equipment may require additional gear, it is necessary to have 
this equipment available for meeting the required planning standard 
timeframes. This final rule has purposely avoided mandating specific 
equipment requirements (with a couple of exceptions for cargo pumping 
capacity and firefighting foam). The reason we wrote the rule in this 
manner was to allow planholders and resource providers an opportunity 
to assess response equipment needs for each geographical area and type 
of vessels calling in specific ports. This will be more cost effective 
than Federal requirements for specific equipment supplies staged in 
every port and waterway covered by this rule.
    One commenter stated that the firefighting requirements contained 
in the NPRM are burdensome, and recommended folding the firefighting 
requirements into the salvage requirements and renaming them ``Marine 
Casualty Responders.'' The commenter further suggested that the 
firefighting requirements be broader and left to the salvor's 
discretion. The Coast Guard disagrees. It is entirely feasible that the 
planholder could contract with resource providers for salvage response 
that are different than the providers for firefighting response. We 
consider it important to make a distinction between the two services 
even though a marine firefighting response could well turn into a 
salvage response, or one resource provider could provide all the 
equipment and services required for both aspects of an emergency 
incident.
    One commenter stated that the damage and stability models of the 
vessel must be available to the firefighter for use during operations, 
in real time and, in many instances, on site. The Coast Guard agrees 
that the information from the damage and stability models is useful for 
firefighters on scene. However, we find it impractical to require this 
information to always be available on scene, prior to any firefighting 
operations being started. We do not want to restrict the vessel's crew 
and resource provider while they are awaiting the assessment and 
structural stability, understanding that structural stability and 
firefighting evolutions will be addressed mutually by the parties on 
scene.
    Two commenters stated that there needs to be a requirement in the 
table for a marine-firefighting plan that can be approved by the 
Incident Commander/Unified Command. The Coast Guard disagrees. While 
the regulation calls for the salvage plans to be submitted to the 
Incident Commander/Unified Command, marine firefighting is too time 
critical to wait for an approved plan before conducting firefighting 
operations.
    One commenter noted the standard only contains the application rate 
for firefighting foam, and does not include a time limit for 
application. The commenter added that 46 CFR 34.20-5 includes a foam 
application time limit of 20 minutes in conjunction with a foam 
application rate of 0.16 gallons per minute per square foot but, 
without reference to this time limit in proposed Sec.  155.4030, it is 
impossible to determine a recommended quantity of foam for marine-
firefighting vessels to carry or shore-side resource providers to plan 
for. In addition, three commenters stated that the Coast Guard and 
SOLAS rates and duration for foam are not adequate since they are based 
upon an incipient-stage fire with a less than 15 minute pre-burn. One 
commenter asked that the Coast Guard provide guidelines for determining 
the amount of an agent so that all planholders are calculating the same 
baseline. The Coast Guard agrees with these comments and has added a 
20-minute time limit to Sec.  155.4030(g).
    Three commenters stated that in addition to minimum agent 
application rates for extinguishment, adequate water flow for 
protection of exposures must be provided for. The Coast Guard agrees. 
The relevant text of the section reads:

    If your primary extinguishing agent is foam or water, you must 
identify resources in your plan that are able to pump, at a minimum, 
0.16 gallons per minute per square foot of the deck area of your 
vessel, or an appropriate rate for spaces that this rate is not 
suitable for and if needed, an adequate source of foam.

We determined that the requirement as written already addresses this 
issue and, therefore, the requirement remains unchanged. Water flow for 
protection of exposures is an issue that should be addressed by the 
vessel's and resource provider's firefighting teams. Requiring a 
specific amount of water flow deviates from our intent to have this 
regulation require services to be provided vice prescriptive details of 
how those services must be conducted on-scene.
    One commenter stated that foam on board the vessel should not be 
included in the resources listed in Sec.  155.4030(g). The Coast Guard 
agrees and has added text to Sec.  155.4030(g) to clarify that the 
``resources'' that must be identified in

[[Page 80633]]

the VRPs are defined as resources provided by the resource provider, 
and not part of the vessel's own firefighting system.
    One commenter stated that certain firefighting agents, in existing 
inventory, contain components that are no longer made. The Coast Guard 
neither agrees nor disagrees with this comment. While some resource 
providers will use existing inventories to fulfill their contractual 
obligations, we anticipate an increase in the required inventories of 
extinguishing agents to meet the needs of this regulation.
    One commenter recommended that the formula to determine the 
required fire-suppression resources be reduced from the proposed 
regulations, explaining that the fire-suppression requirement, along 
with the response timelines contained elsewhere in the proposed 
regulation, has a very real potential of impeding commerce, and 
significantly changing the way industry does business. The Coast Guard 
disagrees. Title 46 CFR 34.20-5 already includes a foam application 
time limit of 20 minutes in conjunction with a foam application rate of 
0.16 gallons per minute per square foot. Thus, the standards we used in 
this requirement are in line with existing regulations.
    One commenter stated that pre-fire plans are unnecessary for barges 
or small tankers and should not be required. The Coast Guard disagrees. 
Pre-fire plans are an integral part of contingency planning regardless 
of the size or type of vessel. Therefore, the Coast Guard feels there 
is great benefit in these pre-fire plans.
3. Other
    One commenter stated that the Coast Guard does not include a 
verified accounting or assessment of general marine contractor 
resources currently available for vessel emergency response. This is 
true, but the public workshop held in 1997 and feedback from existing 
salvage and marine firefighting resource providers showed a lack of 
resource providers needed to fulfill the OPA 90 requirement that there 
be VRPs in place, and resource providers able to meet the needs of 
those planholders to avoid a worst case discharge scenario. This 
rulemaking does not require specific types and amounts of equipment. It 
was deemed to be more practical for the planholder that this rule 
require services and service providers, since the amount and type of 
equipment will vary depending on the vessel's characteristics and 
operating environment.
    One commenter pointed out that structural assessments, surveys and 
stabilizations are constant operations, and that they will be 
continually updated as the operation proceeds. The Coast Guard agrees. 
The commenter also recommended that all hull and bottom surveys be done 
in the presence of the applicable classification society surveyors. The 
Coast Guard disagrees, as the initial hull and bottom survey should not 
be delayed for any reason unless there are extreme circumstances.
    Two commenters recommended that specific emergency-response 
operation details, such as tonnage to horsepower bollard pull capacity, 
type of firefighting foam, chemical, or inert gas usage, and a 
responder-provided emergency cargo pump capacity to vessel cargo tank 
capacity matrix be developed and included in the regulation. We 
disagree with this prescriptive approach and have written this 
rulemaking to leave the responsibility for determining the adequacy of 
the specific plan details to the planholder and contracted resource 
provider. This was done to ensure specific services are readily 
available while still maintaining flexibility for the amounts and type 
of equipment each individual vessel might need.
    Twelve commenters stated that the requirements of 33 CFR 155.240 
must be integrated into, and specifically referenced in, the rule. 
There is significant value in developing a computer model to calculate 
the damaged vessel's structural and stability analysis for very little 
expense. They also stated that 33 CFR 155.240 should be extended to 
inland and nontank vessels. The Coast Guard agrees in part and has 
amended the definition of ``assessment of structural stability'' in 
Sec.  155.4025. The comment that 33 CFR 155.240 should be extended to 
inland and nontank vessels is beyond the scope of this regulation, 
however the Coast Guard intends to consider it in future rulemaking 
endeavors.
    One commenter suggested that the owners and the public make use of 
the large number of tugs that are generally available on short notice, 
but not make any commitments, which result in large expenditures that 
do not provide any real assurances that tugs will be on scene quickly, 
and be in a position where they can significantly reduce the outcome of 
a marine emergency. The Coast Guard disagrees. Section 155.4030(e) 
requires towing vessels that are contractually obligated and able to 
meet the minimum requirements in terms of characteristics, horsepower, 
bollard pull, and operating in 40-knot winds. It is necessary to have 
specific vessels listed in the VRPs because these towing vessels are 
essential to any incident response.
    Three commenters stated that it is not necessary to identify 
``towing vessels'' in the VRP, and that only the contracting parties, 
which will provide the resources (i.e., the towing companies) should be 
identified. The commenters stated that the ability to maintain accurate 
lists of towing vessels is simply not possible, and would take 
extraordinary costs and efforts in keeping the numerous copies of the 
VRPs updated. They added that ensuring the proper emergency towing 
vessels are listed in VRPs is meaningless. The Coast Guard disagrees. 
It is imperative that the VRPs include an accurate listing of 
compatible towing vessels in a specific geographic area that the 
resource provider can bring to bear in an emergency situation. We 
understand the writers' concerns about predicting whether a compatible 
vessel will be in the area to respond, but we also determined that this 
contingency should be worked out between the contracting parties prior 
to having that resource provider contracted and listed in the VRP.
    One commenter noted that there are not enough towing assets to meet 
the suggested requirements of Sec.  155.4030(e) and that the 
requirements should be modified to be realistic. The Coast Guard agrees 
that currently there may be insufficient towing vessel capacity to meet 
the regulations; however, we feel that the towing capabilities required 
by this rule are prudent to ensure the safety of U.S. ports and 
waterways and to prevent or minimize environmental damage. As stated 
earlier, the final rule was not specifically written to increase towing 
capacities in the U.S., but we recognize any increase as an added 
benefit to the marine industry.
    One commenter stated that ensuring the proper type and amount of 
transfer equipment is listed in VRPs is impossible or impracticable. 
The Coast Guard disagrees. The Coast Guard encourages the development 
and submission of ``Fleet Plans'' which allows a planholder to develop 
one VRP for all the vessels in an owner/operator's fleet.
    One commenter stated that oil transfer equipment fulfilling the 
requirements may already be on board the ship, and in such cases it may 
not have to be provided by a salvage resource provider. The Coast Guard 
disagrees. The intent of this rulemaking is to ensure that the stricken 
vessel's largest cargo tank can be offloaded in 24 hours, independent 
of any damage that might be done to the vessel's internal systems. In 
light of that requirement, it is imperative that equipment can be 
brought on board that is totally unaffected by whatever caused

[[Page 80634]]

the emergency incident in the first place. Therefore, the requirement 
of Sec.  155.4030(f) that the salvage resource provider be able to 
deliver the required on-scene pumping capability remains unchanged.
    One commenter stated that Sec.  155.4030(h) is confusing to a 
Western River barge operator, where navigation control depths are 
advertised as nine feet and very few waterway depths exceed 40 feet in 
isolated locations. The Coast Guard disagrees. Where a vessel does not 
operate in waters of 40 feet or more, the cited provision would not 
apply. However, should a planholder's vessel operate in any waters of 
40 feet or more, they are required to ensure subsurface product 
capabilities are contracted for and included in the VRP for those 
waters.
    Two commenters stated that in addition to suitable pumps and hot 
tap equipment, the following equipment must also be on site and ready 
to work: A stable, independently moored, working platform; storage 
tanks or lightering vessel; and the means to displace the product 
removed with water to avoid implosion or other damage to the hull. They 
elaborated that these needs, when added to the deep-water diving 
support or sophisticated, remotely operated vehicle needed to make the 
necessary connections and the extensive engineering that would be 
required before this type of effort could be initiated, make it highly 
unlikely that this type of operation could be assembled in 72 hours. 
They concluded that the capability to provide this service should be 
included in an assessment of a salvage service provider as described in 
the general comments. The Coast Guard disagrees. We determined that 
having subsurface product removal equipment ready and available for 
deployment on board a vessel in an emergency incident is important 
enough to merit its own timeframe for response. However, the specific 
response times are planning standards based on a set of assumptions 
made during the development of this regulation. We understand that 
these assumptions may not exist during an incident. We also realize 
that, at this time, the specialized equipment necessary to conduct 
these operations might not be located in geographical areas that would 
facilitate a response within 72 hours. Therefore, we have allowed a 
five-year maximum waiver provision as found in Sec.  155.4055(g)(7). 
This request for a specialized salvage operations waiver is a separate 
and different issue than found in Sec.  155.4055(c), which states the 
emergency lightering requirement is not subject to a waiver due to a 
planholder being unable to contract a resource provider to be listed in 
the VRP. We also strongly recommend that these capabilities be 
considered in a planholder's assessment of adequacy of prospective, 
contracted resource providers.

L. Funding Agreements

    Four commenters said that the concept of a pre-agreement, in regard 
to funding agreements, makes sense in order to eliminate time lost to 
contract negotiations. The Coast Guard agrees. In order to mount a 
timely response, contractual agreements must be in place prior to an 
incident. Hesitation in awarding a salvage contract can have extremely 
negative effects on the outcome of response operations. By ensuring 
that a funding agreement is in place, this regulation will eliminate 
the need for any on-scene decision making regarding which resource 
provider to hire for the incident response. We have added text to the 
definition of Funding agreement (Sec.  155.4025) to ensure the funding 
agreement is included in the VRP prior to the plan's approval by the 
Coast Guard.
    One commenter suggested that the use of non-dedicated resources is 
a viable and commercially acceptable, cost-effective way of conducting 
emergency-response business, and therefore should be utilized to 
establish appropriate salvage and firefighting standards. The Coast 
Guard disagrees. This rulemaking has been designed to mirror the 
success that the OSROs and planholders have had with pre-arranged 
contracts as required in 33 CFR part 155. This will ensure that both 
industry and resource providers are clearly aware of who will respond 
on scene, and in what timeframe they are capable of arriving based on 
the vessel's location, prior to any incident. An example of the need 
for pre-arranged contracts can be found in casualty case histories. For 
example, a casualty involving an explosion and grounding occurred on a 
20,000 barrel inland petroleum tank barge operating in the Chicago 
Canal system. The vessel lost its deck, but maintained some buoyancy in 
its intact bow tanks. The owner was the named salvor in the existing 
VRP. The owner had no legitimate, actual salvage operations experience. 
Because the vessel posed a minor pollution concern, the primary concern 
of the FOSC was that the vessel's location prohibited delivery/pick up 
of fuel from a number of facilities up river from the wreck. While 
trucking of fuel was an option, the cost to do this was reported to be 
significant. In short, the owner made multiple attempts to re-float the 
barge over a three-month period before it was ultimately re-floated. If 
a reputable salvor had been pre-contracted as required by this 
rulemaking, the vessel could have been removed within a two-to-three 
week period.
    Conversely, an example of the benefit of the VRP planholder having 
a pre-arranged contract with a reputable salvor can also be found in 
the salvage response to the T/V WHITE SEA, a 243-meter motor tanker, 
which ran aground near Ambrose Light, off Coney Island, New York on 
July 12, 2007. The tanker was outbound fully loaded with 548,000 
barrels of Low Sulfur Fuel Oil (LSFO) when she had a steering 
malfunction and ran aground. Immediately upon notification, the COTP 
asked owners to follow their VRP and activate their salvor. The 
vessel's response providers mobilized a team of salvage experts, which 
arrived on site within hours of the casualty.
    The response providers' salvage engineers, along with the Salvage 
Engineering Response Team from the U.S. Coast Guard, worked through the 
day to develop an incident salvage plan and lightering plan. Once 
approval was obtained from the Coast Guard, the salvage team worked 
through the night to remove 120,000 barrels of product from the 
grounded tanker. Although there was no penetration of the cargo tanks, 
the vessel did suffer two breaches to the ballast tanks. Upon 
completion of the lightering and deballasting operations, the vessel 
was safely refloated during the high tide on Friday, July 13th, 
utilizing four local tugs.
    The response provider immediately commenced an underwater 
inspection of the ship's hull in conjunction with local authorities and 
the vessel's classification society, American Bureau of Shipping (ABS). 
Further planning was undertaken to prepare and obtain approval from the 
Coast Guard for the full discharge of cargo from the casualty. Under 
the direct supervision of company personnel, all 548,000 barrels of 
cargo were transferred on to another vessel to enable the WHITE SEA to 
safely transit light ship to a repair facility.
    One commenter stated that there are very capable salvors, marine 
salvage and survey engineers, and certified marine firefighters, etc. 
who prefer to provide independent, nonexclusive, remote, and on-site 
assessment and consultation services, which should minimize the 
increase in cost to the industry. The commenter added that this will 
allow the owners, as part of the unified command, to select the most 
suitable salvage and firefighting resources for

[[Page 80635]]

each individual emergency and thereby improve the response beyond that 
available via individual entities heavily reliant on dedicated 
resources. The Coast Guard agrees that there are very capable resource 
providers who may prefer to provide independent, nonexclusive services. 
However, we feel that there is a need to ensure that an incident be 
responded to quickly and without the need for contract negotiations 
during an actual emergency. In order to ensure this happens, contracts 
must be in place as part of the vessel's response plan. In regards to 
the ability of the unified command to select other than contracted 
resource providers, and as noted earlier in this discussion, the U.S. 
Coast Guard agrees that there may be a need for flexibility to use 
other than contracted resources, under exceptional circumstances, 
during an incident if it is in the best interest of the response. We 
have added this authorization into Sec.  155.4032(a) of the final rule.
    One commenter wants the requirement for a funding agreement between 
the resource provider and the planholder, specifically with reference 
as to who will have access to that agreement, be deleted. The Coast 
Guard disagrees. We require access to that agreement only to verify 
that it is in place, agreed to by both parties, and ensures the 
adequacy of the response plan itself. This agreement must be part of 
the contract or other approved means that ensures response resources 
will support the vessel's plan. While the funding agreement might not 
be part of your VRP, all agreements that support a particular VRP must 
be reviewed by the USCG prior to approval.
    Two commenters stated that a letter of intent (LOI) should meet the 
``other approved means'' definition as long as there is a provision for 
a funding agreement. The Coast Guard disagrees. An LOI is a letter from 
one company to another acknowledging a willingness and ability to do 
business and cannot be enforced, as it is just a document stating 
serious intent to carry out certain business activities. This 
rulemaking requires a contract, which is an enforceable written 
agreement between a vessel owner or operator and resource provider. 
This agreement must expressly provide that the resource provider is 
capable of, and committed to, meeting the VRP requirements.
    One commenter recommended using named consultants, instead of 
companies, to reduce owner cost and create flexibility to bring in any 
firefighting assets rather than using a company named in the contract. 
The Coast Guard disagrees. The intent of the regulation is to have 
personnel and resources under contract that are capable and 
contractually obligated to respond, not simply consultants. Section 
155.4050(b)(3) asks planholders to consider whether the resource 
provider owns or has contracts for equipment needed to perform the 
response services as a criterion for selection of a resource provider.
    One commenter asked how practical it is to expect planholders and 
resource providers to develop pre-negotiated pricing for services for 
all of the myriad circumstances and geographic locations of casualties. 
While the Coast Guard agrees that there will be many different 
variables in the level and detail of responses to an incident, it is 
possible for the planholders and resources providers to work out 
funding agreements during the contractual negotiations. One such method 
has been for contracting parties to use a Basic Ordering Agreement 
(BOA) prior to any actual response. Regardless, the Coast Guard feels 
that contracts between the planholder and the resource provider are 
best left to their discretion, and will not be specifically addressed 
in this regulation.
    One commenter stated that it is unrealistic to include a written 
funding agreement as part of the ``contract or other approved means.'' 
The commenter noted that the assumptions that the absence of a funding 
agreement will delay a response because of negotiations or that the 
presence of one will not delay a response may be equally specious. The 
Coast Guard disagrees. A funding agreement is of primary importance in 
ensuring there are no delays in a response due to contract 
negotiations.

M. Considerations for Choosing Resource Providers

1. General
    One commenter asked what it means to be ``capable to respond'' or 
``capable of providing service,'' and if that means capable subject to 
availability. The definition of ``capable'' is ``having attributes 
required for performance or accomplishment'' (Webster's Ninth New 
Collegiate Dictionary, 1991). As used in the regulation this means that 
the planholders will only list in their VRP resource providers who have 
provided written consent to be included. This written consent would 
include a statement from the resource provider that they are capable of 
providing the salvage and/or marine firefighting services they 
contracted to provide within the response times in Table 155.4030(b), 
Salvage and Marine Firefighting Services. The specific response times 
are planning standards based on a set of assumptions made during the 
development of this regulation. These assumptions may not exist during 
an actual incident. Therefore, Table 155.4030(b) will be used as a 
planning standard instead of a performance standard to ensure that 
under ordinary circumstances the resources are capable of arriving at 
the vessel in the required response times. For example: If resource 
provider A agrees to and/or contracts to perform a specific service, 
they must have the required equipment and/or personnel to complete the 
service in the times listed in Sec.  155.4030(b) under ordinary 
circumstances. If the resource provider needs to have its resources on 
scene in four hours, the equipment and/or personnel should not be 
located 10 hours away.
    One commenter would like drill and exercise requirements added as a 
requirement for resource providers. The Coast Guard agrees. The 
selection criteria under Sec.  155.4050 lists a successful record of 
participation in drills and exercises as a consideration criterion. The 
requirement for a resource provider to participate in drills and 
exercises after a contract has been agreed upon is already included in 
33 CFR 155.1060. This requirement covers all vessels that are required 
to carry VRPs. However, we have added Sec.  155.4052 to address 
specific exercise requirements.
    One commenter stated that all resource providers should own or have 
contracts for the equipment needed to perform response services. The 
Coast Guard disagrees. While direct ownership or contracts for resource 
providers are beneficial and addressed as a minimum for consideration 
by the planholder in choosing a resource provider in Sec.  
155.4050(b)(3), the Coast Guard does not intend to place ownership 
requirements upon resource providers as the resource provider may 
choose to subcontract certain aspects of their VRP responsibilities. As 
stated earlier, the intent of this regulation is to ensure proper 
response services are available and not to dictate the details of those 
services.
    One commenter stated that this regulation would render obsolete the 
firefighting vessels supplied by the oil transport industry in some 
west coast ports. The Coast Guard understands the concern that this 
could happen. Section 155.4030(g) addresses firefighting equipment and 
VRP compatibility. The pumping capabilities of these private sector 
vessels need to be scaled to the size of the vessels for which they are

[[Page 80636]]

providing coverage. The existing firefighting vessels in question may 
not be appropriate for the largest tankship, but they could be used for 
smaller tankships and tank barges. If the referenced vessels meet the 
requirements of Sec.  155.4030(g), the existing vessels may be listed 
as resource providers.
    One commenter stated that the proposed rule does not recognize a 
ship owner's ability to assess structural stability using in-house or 
classification society resources. Section 155.4050 states that the 
planholder is responsible for determining the adequacy of the resource 
providers they intend to include in their VRPs, and sets forth 13 
criteria, which must be considered in that selection. Nothing in this 
rulemaking precludes a planholder from listing either in-house 
resources or classification societies as long as they have addressed 
the criteria listed in Sec.  155.4050, have certified in the VRP that 
the criteria was considered, and the potential resource providers agree 
to be listed in the VRPs.
    One commenter stated that the rule as written would encourage the 
development of private and public firefighting capabilities at each 
port where the transfer of oil takes place, and that tank vessel owners 
and operators would be forced to enter into multiple contracts for 
firefighting services in the geographical areas served. The Coast Guard 
agrees in part and understands multiple contracts in a geographical 
area may occur. Planholders must submit their VRPs in accordance with 
the geographic-specific appendices as found in Sec.  155.1035(i)(9) and 
Sec.  155.1040(j)(9). In doing so, planholders must list each required 
resource provider that is under a contract or other approved means to 
respond within that specific area. This rule does not require 
planholders to enter into multiple firefighting contracts within a 
specific area. Based on industry information, national firefighting 
companies are currently available and offer a variety of response 
solutions for firefighting packages of equipment, materials, and 
personnel in various geographical areas. Industry also indicated that 
they would respond to large fires involving cargo by contacting one of 
these major national firefighting companies rather than rely on local 
resources.
    One commenter asked how the Coast Guard will determine if 
contracted towing vessels have the adequate horsepower and/or bollard 
pull required by Sec.  155.4030(e). The commenter requested that we 
bear in mind the requirements of 33 CFR part 168 ``Escort requirements 
for certain tankers,'' which governs operations in many ports. Section 
155.4030(e) states that the planholder must ensure the proper towing 
vessels are listed in the VRP. It is the planholder's responsibility, 
when determining adequacy of the contracted resource providers, to hire 
resource providers that have towing vessels which meet the listed 
criteria, and to list those vessels in the VRP. Part 168 ``Escort 
requirements for certain tankers,'' applies only to laden, single-hull 
tankers of 5,000 gross tons or more, transiting Prince William Sound 
and Puget Sound. In addition, the performance and operational 
requirements required by Sec.  168.50 are more stringent that what is 
required in Sec.  155.4030(e). However, if a towing vessel meets the 
requirements of 33 CFR 168 it would also suffice for this rulemaking. 
Therefore, the NPRM and the final rule contain these minimum 
requirements to meet the stated purpose of this regulation.
    One commenter stated that involving firefighters in vessel response 
plan development is not a reasonable requirement because it only makes 
the VRP development and approval process longer and more costly. The 
Coast Guard disagrees. Section 155.4045(b) requires the resource 
provider to certify in writing that they find the VRP acceptable. It 
does not require them to be involved in drafting the VRP; however, if 
they find it unacceptable, we anticipate the planholder and resource 
provider will work together to formulate a VRP that all parties agree 
to and that meets the requirements of this regulation.
    One commenter stated that Sec.  155.4035(b)(2) requires the 
planholder to present a copy of the marine firefighting pre-fire plan 
to the resource provider. The resource provider must then certify, in 
writing, that they find the VRP acceptable and agree to implement the 
VRP. The commenter recommended that, as an alternative, this 
certification be included as part of the ``written consent'' document 
provided to the planholder certifying that they can meet the services 
listed under Sec. Sec.  155.4030(a) through (g). The Coast Guard 
disagrees. The marine firefighting pre-fire plan is vessel specific; 
therefore, it is imperative that the resource provider have in their 
possession an exact copy, for each vessel that they have been 
contracted for responding to a casualty for pre-fire incident planning 
and training purposes.
    One commenter stated that for ships traveling to multiple ports, 
the requirement to have marine-firefighting resources providers 
certify, in writing, that they accept and agree to implement the VRP is 
a very difficult issue. The only alternative may be to create multiple 
individual ``marine-firefighting pre-fire plans'' for each vessel, 
which adds possible confusion to the response. The Coast Guard 
disagrees. Firefighting resource providers will need to certify in 
writing that they agree to be listed in the VRP as part of a 
contractual agreement. They can choose whether or not to do so. The 
Coast Guard determined that the commenter might have misunderstood the 
requirement for a pre-fire plan as stated in Sec.  155.4035(b)(2). 
There will not have to be multiple pre-fire plans for each vessel. 
There is a distinct difference between the VRP and the pre-fire plan. 
The VRP will have a listing of multiple resource providers. However, 
there needs to be only one pre-fire plan per vessel as it deals with 
the character, construction, cargo, and safety systems of the vessel 
itself.
    One commenter stated that the rule has no requirements related 
directly to the adequacy of the resource provider. The commenter asked 
what process is in place to assure the public that the resource 
providers are not committed beyond their capabilities, suggesting that 
there be limitations on how many times a resource provider may be 
listed in vessel VRPs. The commenter asked what mitigating factors will 
be in place should the resource provider be unable to respond within 
the time allotted by the proposed regulations. While there are no 
direct requirements stating adequacy of resource providers, there is an 
extensive section, Sec.  155.4050, detailing the importance of the 
selection criteria for planholders to consider in selecting a resource 
provider. It is in the planholder's best interest to approach the 
selection process in a vigorous and exacting manner. Limiting the 
number of VRPs in which a resource provider can be listed will not be 
addressed as any limit on the number of a resource provider's clients 
would necessarily be arbitrary because of the wide variation in 
resource provider size and capability. The availability of services to 
meet a planholder's needs is a planholder's responsibility and is a 
factor a planholder should consider when contracting with the resource 
provider. In the event of a spill, the Coast Guard will expect the 
planholder to respond in accordance with its VRPs (unless specific 
circumstances warrant deviations, as already discussed), regardless of 
other spill events that may be occurring at the time of the response. 
Therefore, in its planning process, the planholder should discuss with 
its

[[Page 80637]]

service providers their capabilities to handle multiple incidents and 
the number of other planholders the service provider is already 
committed to.
    Also, if a planholder's capabilities are diminished because 
service-provider resources are committed elsewhere for a response, that 
planholder is obligated to notify the COTP for the zone in which the 
planholder operates of: (1) The planholder's reduced capability; and, 
(2) the planholder's plans for overcoming the shortfall. This will 
enable the COTP to determine whether any operating restrictions should 
be imposed on the planholder until such shortfalls are overcome. The 
Coast Guard recently published guidance to the public addressing this 
issue. See Navigation, Vessel and Inspection Circular (NVIC) 01-07, 
``Guidance On Vessel And Facility Response Plans In Relation To Oil 
Spill Removal Organization (OSRO) Resource Movements During Significant 
Pollution Events.'' If the planned response resources are not 
available, or have traveled beyond the required response times, 
secondary or cascading resources may be relied upon if approved by the 
Coast Guard. This may mean compliance with any one of the alternatives 
provided within the definition of contract or other approved means (33 
CFR 155.4025). The planning requirement may be met through a number of 
means as referenced above, and the Coast Guard will exercise discretion 
in implementation and enforcement of the requirements commensurate with 
the circumstances (as it did following Hurricanes Katrina and Rita). In 
addition, the FOSC has the authority to allow a deviation from the VRP 
if it would provide for a more expeditious or effective response to the 
incident in the case of a resource provider's inability to perform 
their required services. If a resource provider is found to be non-
responsive or deficient through field verifications or the results of 
Preparation for Response Exercise Program (PREP) drills or Spill of 
National Significance (SONS) exercises, then the Coast Guard would not 
approve response plans that list them as a provider. Therefore, if a 
resource provider is found deficient on a continuing basis, the 
planholder would be required to change resource providers or risk not 
being able to operate their vessel in U.S. waters until their VRP is in 
compliance with the regulations.
    One commenter stated that insurance may be very difficult, or cost 
prohibitive, for salvage and marine firefighters to obtain for the type 
of work proposed. Although Sec.  155.4050(b) requires consideration of 
13 items for selection of a resource provider, and insurance is one of 
them, it is only required to be considered by the planholder for 
selection. In other words, in certain situations where state or local 
laws permit, it may be completely acceptable for a planholder to select 
an uninsured resource provider.
    One commenter stated that qualifications through experience are not 
an adequate measure to judge a person's or organization's ability to 
respond in a marine firefighting incident. The Coast Guard agrees; 
Sec.  155.4050 lists 13 separate selection criteria, of which 
qualifications through experience is only one part.
    Five commenters stated that a ``successful record of participation 
in drills and exercises'' (Sec.  155.4050(b)(7)) and ``membership in 
organizations'' (Sec.  155.4050(b)(9)) are not valid criteria for 
selection, and that they should be deleted. The Coast Guard disagrees. 
This section states that:

    When determining adequacy of the resource provider, you must 
consider as a minimum the following selection criteria.

Both of these issues are marks of professionalism and lend credibility 
for a planholder's selection process. The definition of ``successful'' 
in this context will have to be determined by the contracting 
planholder to satisfy its standards for hire.
    One commenter stated that formal approval of a salvage plan (Sec.  
155.4050(b)(8)), such as a stamp or letter, is not a verifiable 
practice. The experience of the resource provider or other planholder 
is most important. The Coast Guard agrees in part. We agree that 
experience is vitally important, but we consider being able to produce 
salvage plans that were approved and used by incident commands helps 
address the resource providers' experience level.
2. Coast Guard or Third-party Vetting
    One commenter agreed that the regulations for salvage and 
lightering should require analytical systems and a contractual 
relationship with a salvage company. Such arrangements are the industry 
standard and represent a reasonable and achievable requirement. 
However, the commenter also stated that a process similar to the OSRO 
classification system should assess the capability of these service 
providers. The Coast Guard disagrees that a classification system for 
salvors is needed at this time. This rule addresses the capabilities of 
the resource providers with the 13 point selection criteria, found in 
Sec.  155.4050, that planholders will consider in the selection of a 
resource provider prior to entering into a contractual arrangement. 
Classification of resource providers is an issue that the Coast Guard 
can take under advisement, should the need arise in the future.
    Three commenters recommended that the Coast Guard develop response-
capability testing and proofing methodology for service providers and a 
marine-firefighting certification program including training standards. 
They suggested adding requirements to ensure that the resource provider 
is familiar with the local area plan pertaining to marine firefighting 
and salvage operations. The Coast Guard disagrees in part. We 
determined that the standards and guides incorporated by reference in 
this regulation sufficiently provide, as a basis, an adequacy 
determination for planholders to use in their selection process. As to 
the suggestion that resource providers be familiar with the local area 
plans, this is beneficial and has been included in Sec.  
155.4050(b)(15) as a consideration when determining the adequacy of 
resource providers.
    One comment stated that the Coast Guard should require professional 
standards for marine firefighters to ensure all responders have similar 
training and backgrounds. The Coast Guard disagrees. We have addressed 
standardized training for marine firefighters by stating they be 
trained in accordance with Sec.  155.4050(b)(6). While professional 
standards for firefighters would be beneficial for all parties 
concerned, it is beyond the scope of this rulemaking.
    Four commenters stated that having each individual planholder 
attempt to interpret these criteria and apply them will be inefficient, 
cause confusion, and reduce consistency. They recommended that this 
salvage and marine firefighting vetting be administered by 
classification societies, through the ISO 9000/14000 programs, American 
Waterway Operators, or some other approved third party, based on the 
criteria in the table provided by the Coast Guard. The Coast Guard 
agrees that this is a reasonable goal. Initially the Coast Guard will 
rely on the established VRP review process augmented by surveys and 
reports by Coast Guard COTP field personnel done, if necessary, in 
conjunction with discussions with local port partners. After reviewing 
the effectiveness of this final rule, the Coast Guard will retain the 
option of having it administered by a third-party organization. 
However, this final rule relies on due diligence from both the 
planholders and the resource providers to ensure an

[[Page 80638]]

acceptable level of quality in meeting the criteria is achieved.
3. Use of Public Resources
    One commenter asked if private responders can ever really be the 
primary responders, if public responders can be contracted, and if 
planholders will have the ability to evaluate public resources. Private 
responders can be primary responders and may need additional equipment 
to meet a planholder's needs in all required geographical areas. 
However, this final rule does not mandate additional equipment for 
private responders. Public responders can be contracted up to the 
restraints listed in Sec.  155.4045(d). It must be understood that 
because public marine-firefighting services have jurisdictional 
boundaries, it may not be appropriate to select one public marine-
firefighting service to cover a whole COTP zone. Since OPA 90 
emphasizes the use of private over public resources, public marine-
firefighting resource providers should only be listed when the 
planholder has determined no private resources are available that can 
meet the response times and the public resource has a responsibility to 
respond to incidents in the area specified in the VRP. Also, the public 
resource must agree, in writing, to be included in the VRP. Planholders 
will be able to evaluate public resources in much the same way as is 
required for private resource providers, as stated in Sec.  155.4050. 
In addition, the COTP and the FOSC will have a critical review and 
oversight role in agreements that local municipalities may consent to 
for marine-firefighting support. The Coast Guard will separately 
publish additional guidance in this area.
    One commenter stated that volume VI, chapter 8 of the ``USCG Marine 
Safety Manual'' anticipates that local fire departments will be the 
lead agency in case of a vessel fire. The commenter added that guidance 
in this chapter requires the Coast Guard to develop area contingency 
plans (ACPs) and include local resources for firefighting, but does not 
address private firefighting resources. The commenter concluded that 
first response to a vessel should rely on the ACPs; therefore, times in 
Table 155.4030(b) for at-pier firefighting response should be deleted. 
The Coast Guard disagrees in part. The commenter is correct in quoting 
the Coast Guard's stance as found in the ``USCG Marine Safety Manual''; 
however it also states that:

    [A] vessel/facility's owner and/or operator is ultimately 
responsible for the overall safety of vessels/facilities under their 
control, including ensuring adequate fire fighting protection. 
(``USCG Marine Safety Manual'', Vol. VI, chapter 8, section B.)

This principle is also embodied in this rulemaking and it ensures the 
planholder has contracted for adequate response services, regardless of 
whether the resource provider is a public or private entity. We agree 
that all parties involved will rely on ACPs to plan for emergencies, 
and all port partners involved in developing ACPs should take this 
rulemaking into account. To this end we have revised Sec.  155.4030(d) 
by adding text requiring that the information contained in the response 
plan must be consistent with applicable ACPs and the National Oil and 
Hazardous Substances Pollution Contingency Plan as found in Sec.  
155.1030(h).
    One commenter said that the regulations should encourage and permit 
utilization of local resources where practical, jurisdictional, and 
cooperative issues are worked out, as this will provide the lowest cost 
to the maritime community and encourage their participation in local 
cooperatives. The Coast Guard agrees and this final rule allows for 
such cooperatives.
    Two commenters stated that the requirements for external 
firefighting capability require further discussion as to the 
appropriate role of public and private resources and the correct 
approach to ensuring their operation. The Coast Guard disagrees. The 
entities involved, both public and private, will work with the 
planholders to ensure a timely and effective emergency response. All 
parties are encouraged to use the ACP process to create workable 
processes and VRPs for responding to a marine-firefighting incident. 
Examples of ACPs are on the Internet at the Coast Guard's Homeport Web 
site: http://homeport.uscg.mil. The ACP information is under the 
``missions'' tab in the ``environmental'' section. The Coast Guard 
plans to issue policy to Area Committees, who produce and maintain Area 
Contingency Plans (ACPs), on how the Salvage and Marine-Firefighting 
sections of the ACP can ensure planholders are supported in their 
planning efforts. ACPs describe the strategy for a coordinated Federal, 
state, and local response to a discharge of oil or a release of a 
hazardous substance within a Captain of the Port Zone.
    Two commenters stated that it is unacceptable that some commercial 
marine-firefighting providers can rely on the Coast Guard or local 
responders to provide critical support personnel and equipment once 
they arrive with limited, specialized equipment and personnel. The 
Coast Guard disagrees. When consenting to be a listed resource 
provider, that provider agrees to have all the personnel and equipment 
needed to provide the services for which they have contracted. If local 
public responders are depended upon to provide resources, they must 
agree in advance to be listed in the VRP. The planholder must ensure 
any resource provider is capable of providing the services needed, as 
found in Sec.  155.4045(a).
    One commenter stated that it is the legal responsibility for fire 
departments to respond to fires in vessels within their jurisdiction. 
The Coast Guard agrees in part. However, since OPA 90 emphasizes the 
use of private over public resources, public marine-firefighting 
resource providers should only be listed when the planholder has 
determined that no private resources (which can meet the response 
times) are available, and that the public resource has responsibility 
to respond to incidents in the area specified in the VRP. In other 
words, this regulation requires that planholders have under contract or 
other approved means, private resource providers capable of, and 
intending to commit to, meeting the VRP requirements whenever possible. 
Nothing in this regulation precludes public emergency responders from 
executing their duties. Consistent with the requirements of Sec.  
155.1010, we reiterate that these are planning and not performance 
requirements.
    Three commenters stated that public marine-firefighting resources 
are often prohibited from responding outside their own jurisdiction, 
with the exception of mutual-aid agreements, and that this would 
preclude the direct use of these resources by commercial contract where 
port areas often encompass numerous jurisdictions between a vessel's 
initial entry into a COTP zone and its arrival at a terminal or 
facility unless they are part of a local marine-firefighting 
cooperative. The Coast Guard agrees and addresses this issue in Sec.  
155.4045(d) by stating that:

    Public Firefighters may only be listed out to the maximum extent 
of the public resource's jurisdiction, unless other agreements are 
in place.

Should the public marine firefighters and the planholder come to an 
acceptable agreement regarding when and where the public resource can 
be used, then that agreement must be included in the VRP.
    Three commenters stated that the regulation ignores public 
firefighters as responders, because the rule implies that public 
firefighters only be used as a last resort, and that the regulation 
should not state that the Coast Guard

[[Page 80639]]

considers it unreasonable to expect marine-firefighting resources to 
respond outside their jurisdictional boundaries. The commenters added 
that the regulation should recognize that public resources may be 
listed for response if it has agreed to do so where a mutual aid system 
has been implemented that will permit response regardless of individual 
agency boundaries. Accordingly, the second clause in the last sentence 
of Sec.  155.4045(d), ``but the Coast Guard considers it unreasonable 
to expect marine-firefighting resources to do this'' should be deleted. 
The Coast Guard disagrees. Section 155.4050(d) clearly states that 
public marine-firefighters may be listed as resource providers. 
However, public resources must agree in writing to be included in the 
VRP. We have added a restriction that they may only be listed to 
respond out to the limits of their jurisdiction, unless other 
agreements are in place. Other agreements could reflect the public 
firefighter's commitment to respond beyond their jurisdictional limits. 
We also do not agree that Federal law, or this rulemaking, should 
support or encourage public firefighting agencies to respond outside of 
their jurisdictions, as that would be an attempt to preempt local laws 
and authorities. There are cases where a local agency will be a member 
of a mutual-aid association, in which an agency has agreed, as a member 
of the association, to respond outside their jurisdictional boundaries. 
In this case, the public agency can agree in writing to do so as a 
planholder's resource provider, as allowed in Sec.  155.4045(d).
    One commenter stated that it is vital that any contract provider be 
required to integrate qualified public agencies into their VRPs. The 
Coast Guard disagrees. If the public marine-firefighting agency agrees 
to be listed in the planholder's VRP, then that is acceptable. However, 
it is beyond the scope of this rulemaking to require that public 
agencies be listed under contract or other approved means in the 
planholder's VRP.
    Five commenters stated that a local firefighting entity in command 
of an incident would not necessarily recognize the contents, 
strategies, and service providers included in the VRP. This scenario 
would place the vessel owner in the unenviable position of diverting 
from the VRP since local regulations give command authority to the 
local firefighting entity. The Coast Guard agrees in part. Each 
planholder and resource provider will have to ensure these problems are 
addressed, and should be actively involved in the port partners 
program. In doing so, they would have input into their location's ACP, 
which in turn would enable communications between the resource provider 
and the local public firefighters. That type of communication and 
mutual cooperation is not required by regulation; however, it is part 
of a professional involvement in the emergency response operations 
community and will be fostered by participation of all parties in the 
required drills and exercises.
    Two commenters stated that public firefighting resources represent 
a significant portion of available firefighting equipment and personnel 
around the country, and as such, there is a need to integrate these 
resources into the overall response picture, and cooperation between 
public and private entities should be encouraged by the regulations. 
The Coast Guard agrees, and envisions the formation of mutual-aid 
agreements and coordination between marine-firefighting entities as a 
result of this regulation. We urge all interested parties to pursue 
this. In addition, we anticipate local ACPs will reflect these changes 
as well.
    One commenter is not opposed to the use of public firefighters, but 
added that if they are part of a response plan there must be 
requirements to provide guidelines for interaction between the resource 
provider and the public firefighters to ensure cohesion when working 
together. These requirements should include, but not be limited to, 
drill planning and participation, training, and a clear understanding 
of each participant's role prior to responding to an incident. The 
Coast Guard agrees that there should be strong coordination and 
communication between the private and public firefighting resource 
providers. The intent of this rulemaking is to issue broad requirements 
regarding contractual arrangements that must be in place and listed in 
a planholder's VRP. We do not intend to dictate how the parties 
involved conduct their business after those arrangements are in place. 
Participation in the required drills, exercises and training, and a 
clear understanding of each participant's role are all vital aspects of 
proper planning and preparedness for emergency response, and we expect 
that the interests of all concerned will lead to the planholders and 
resource providers participating in proactive roles.
    One commenter stated that, based on the proposed response times, it 
appears that local public fire agencies will have to be a part of any 
response plan. With that in mind, they added that it is vital that any 
contract provider be required to integrate into the ICS systems that 
have already been established. The Coast Guard agrees in part. It is 
not mandated that public agencies will have to be a part of a response 
plan; however we envision that they will be included for most in-port 
pier locations in a VRP. Regarding the comment that any contract 
provider (resource provider) must integrate his or her organization 
into the ICS systems, this is already addressed by Sec.  155.4030(c) 
and (d).

N. Integration of the VRP Into the Unified Command System/ICS

    One commenter recommended that the Coast Guard mandate the use of 
the Unified Command System (UCS)/ICS to facilitate public and private 
cooperation in a structured system. The Coast Guard disagrees in part. 
Homeland Security Presidential Directive 5, ``Management of Domestic 
Incidents'', found online at http://www.nimsonline.com/presidential_
directives/hspd_5.htm, creates a single, comprehensive National 
Incident Management System (NIMS) using the national NIMS/ICS for all 
emergency incidents. The National Response Plan, Regional Response 
Plans and ACPs all do the same. We anticipate that any incident, which 
would be managed by a unified command, would fall under this family of 
plans and therefore we do not consider it necessary to mandate the use 
of NIMS/ICS.
    One commenter stated that Sec.  155.4030(c), the ``Integration into 
response organization'' summation, should read:

    The response organization must be consistent with the 
requirements set forth in Sec. Sec.  155.1035(d) and 155.1040(d) and 
155.1045(d).

The Coast Guard agrees in part. Section 155.1030(d) does not address 
integration into response organizations and was listed in the NPRM in 
error. Section 155.1035(d) addresses Shore Based Response Activities 
and is the correct cite. The text in Sec.  155.4030(c) has been amended 
to reflect the correct reference. ``Integrated into the response 
organization'' means that the resource providers operate as part of the 
incident command or the unified command as organized by the FOSC. The 
Coast Guard disagrees with the commenter's stating Sec.  155.1045(d) 
should be listed, because that particular cite is not applicable to the 
requirements of this regulation. Vessels that are covered by Sec.  
155.1045 are not required to list salvage and marine firefighting 
resource providers.
    Nine commenters stated that the Coast Guard needs to provide clear 
guidance regarding where salvage and firefighting fit in the ICS, as 
the Salvage Master is

[[Page 80640]]

often the most knowledgeable person in the response organization. They 
stated that the proposed language does not adequately address 
coordination and response organization dynamics, adding that if the 
Coast Guard's intent is to utilize unified command with salvage and 
firefighting efforts appropriately incorporated along with existing 
FOSC authority then the intent and implementation specifics should be 
clearly articulated. The Coast Guard agrees that Salvage Masters are 
very knowledgeable, and that there is a need to be clear where they fit 
into the response organization. Historically, the salvors and marine 
firefighters have been placed in the Operations Branch. However, it is 
the prerogative of the Incident Commander/Unified Command to structure 
the ICS organization to best fit the incident's needs. Thus, this final 
rule requires only that the response plan includes provisions on how 
the salvage and marine firefighting resource providers will coordinate 
with other response resources, response organizations, and OSROs, not 
the specific roles the providers will fill in the ICS structure.
    Four commenters stated that it is critical that marine-firefighting 
resource providers are integrated into any local UCS/ICS and not 
operating independently. The Coast Guard agrees and included this 
provision in both the NPRM and this final rule as found in Sec.  
155.4030(c).
    Two commenters recommend deleting Sec.  155.4030(d), ``Coordination 
with other response resource providers, response organizations and 
OSROs,'' because it shows a lack of understanding of the ICS structure 
and the command structure that is required. They stated that salvage 
and marine firefighting resources will not normally coordinate with 
other response resources, response organizations, and OSROs, as it is 
the responsibility of the ICS structure to coordinate their activities. 
The Coast Guard disagrees. This section is intended to address the 
coordination between the differing response organizations before an 
incident occurs. It will entail inter-organizational outreach, 
participation in the ACP process, and communication between the 
planholders, resource providers, and other affected port partners. We 
consider it important to ensure that all the pre-incident coordination 
is in place prior to an emergency situation, and therefore have not 
changed the language of this section. We acknowledge, however, that the 
Incident Commander/Unified Command will be responsible for coordination 
activities after an incident occurs and during all phases of the 
incident response.
    One commenter asked if the Coast Guard was planning a revision to 
the ``ICS Field Operations Guide'' or the ``Incident Management 
Handbook.'' In August of 2006, we revised the ``U.S. Coast Guard 
Incident Management Handbook,'' COMDTPUB P3120.17A, and it is for sale 
from the Government Printing Office. The document is also available on 
the Internet at the Coast Guard's Web site: http://homeport.uscg.mil. 
It can be found by selecting the `library' tab on the top of the page, 
then by selecting the `Incident Command System (ICS)' tab on the left 
side, then selecting the `Incident Management Handbook (IMH)' tab under 
the Job Aids section.
    One commenter stated that it is critical that these regulations 
leverage public agencies specializing in marine firefighting and 
encourage specialization by those that do not. The commenter added that 
the regulations should support the development and enhancement of 
existing marine-firefighting units within an agency or region, thereby 
providing the opportunity for a cost-effective public/private 
partnership, which would make the public fire agency a first responder 
and lay the foundation for the private firefighting resource providers. 
The Coast Guard agrees that strengthening existing public firefighting 
agencies benefits everyone, and we anticipate that this will happen 
through strong port partnerships and involvement in the ACP planning 
and exercises. However, we consider it more important to ensure that 
the contracted resource provider is able to adequately provide the 
services that they have agreed in writing to provide at the time the 
VRP is submitted. If a public agency can meet this requirement and 
agrees to do so, then they are welcome to be listed as a resource 
provider in a VRP. However, it is beyond the scope of this regulation 
to require that it be done, or to require that the public agency meet 
the criteria for contracting. If they can not be listed based on their 
current capabilities, we require contracting with a private resource 
provider instead.
    One commenter suggested that response plans should integrate with, 
and make specific reference to, salvage and marine-firefighting 
sections detailed in each ACP associated with vessel transits. The 
Coast Guard agrees. According to 33 CFR 155.1030(h), a planholder is 
already required to align the vessel response plan with appropriate 
ACPs.
    One commenter stated that there is an assumption that the salvage/
firefighting resource provider will be the Incident Commander required 
by Sec.  155.4035, but noted that this may not be the case in many 
incidents. The Coast Guard disagrees and can find no reference in Sec.  
155.4035 to the resource provider being an Incident Commander. Section 
155.4030 requires integrating the resource provider into the response 
organization, but includes no specific requirement that they have to be 
the Incident Commander.

O. Worker Health and Safety

    One commenter stated that Sec.  155.4030(i), ``Worker health and 
safety,'' is listed in the wrong section. The Coast Guard agrees in 
part. This issue is as vital to emergency response as the other 
services listed in this section, and must be addressed in the 
contractual arrangement between the planholders and resource providers 
prior to an incident occurring. However, we acknowledge that the exact 
location of this section may create confusion and have redesignated 
Sec.  155.4030(i) in the NPRM to Sec.  155.4032(b) in the final rule.
    One commenter stated that worker health and safety is imposed on 
salvors, but not on the OSROs, even though consistency between the two 
requirements is important. The Coast Guard agrees that consistency is 
important among regulations and will take this comment under advisement 
should we revise the OSRO regulation in 33 CFR 155.1010. However, it is 
beyond the scope of this regulation.
    One commenter stated that they do not feel that the Coast Guard can 
mandate that planholders bear any responsibility for the health and 
safety of independent contractors subject to Occupational Safety and 
Health Administration (OSHA) requirements. The commenter recommended 
deleting this provision. The Coast Guard disagrees as the existing 
Sec.  155.1055(e) states:

    Nothing in this section relieves the vessel owner or operator 
from the responsibility to ensure that all private shore-based 
response personnel are trained to meet the OSHA standards for 
emergency response operations in 29 CFR 1910.120.

As this is already mandatory for applicable planholders, we consider 
Sec.  155.4032(b) valid and necessary. We have, however, revised the 
text of Sec.  155.4032(b) to refer to the existing requirements.
    One commenter stated that the health and safety requirement is 
already addressed by 29 CFR 1910.120, as noted in the National 
Contingency Plan (40 CFR 300.150). The commenter recommends this be 
changed to reference 29 CFR 1910.120 as the

[[Page 80641]]

standard. The Coast Guard agrees and has revised the text of Sec.  
155.4032(b) to reflect this.

P. Waiver Provisions

    Six commenters dealt with the need for a process and mechanism for 
the Coast Guard COTP to address concerns that a VRP does not meet the 
requirements of this section for a specific COTP zone. Capabilities 
nationwide vary greatly, making it critical the COTP have the ability 
to rapidly address deficiencies that could place a vessel and port at 
risk. The Coast Guard agrees and, using Sec.  155.4020(c) as authority, 
a COTP can stop a vessel from conducting oil transport or transfer 
operations unless the requirements of this regulation are met. If 
proper resource providers may not be available to meet the required 
response times by the date this regulation is in effect. Therefore, 
Sec.  155.4055 allows for a temporary waiver request. The local COTP 
must review and comment on this waiver request before forwarding it to 
the Coast Guard Commandant, Director of Prevention Policy (CG-54) for 
final approval. The Coast Guard intends to publish guidance to field 
units regarding consideration of waiver requests. In addition, the COTP 
and local port partners will be active in reviewing the Salvage Annex 
of the ACP, which will describe in detail local salvage and marine-
firefighting resources.
    One commenter did not agree with the proposed waiver periods, which 
it states seem to be selective yet unsupported by logic. The Coast 
Guard disagrees. The waiver periods were developed after analyzing 
information gathered during the 1997 public workshop, and from 
information gathered from the salvage and marine firefighting industry 
for the 2002 Regulatory Assessment. We are not mandating additional 
equipment requirements under the final rule.
    Two commenters stated that the salvage and firefighting capability 
should be built up over time, much like the buildup of OSRO inventories 
has been accomplished in five-year cap increments. We agree in part. 
Our analysis indicates that no new planholder capital expenditures will 
be necessary. Before the promulgation of this rule, industry began its 
capital buildup of equipment as part of its business model for the 
salvage and firefighting services it provides on a daily basis, not as 
a result of the requirements of this rule.
    One commenter suggested limiting temporary waivers to a one-year 
maximum for planholders who are unable to obtain a salvage and marine 
firefighting resource provider, because all affected entities have had 
ample time to prepare for this requirement. The Coast Guard disagrees. 
We recognize that this regulation is a major change in planholders' 
VRPs and that the ability to acquire these services is dependent on 
whether or not such required services are available. We understand that 
there may be a period of time where personnel, equipment, and service 
contracts are being acquired and/or relocated to areas to meet the 
planholders' needs. For this reason we feel that the proposed waiver 
times are reasonable, and have left them unchanged in this final rule.
    Five commenters stated that any temporary waiver of these 
requirements by a COTP should be coordinated with state officials and 
harbor safety committees, and asked if the local COTP has the resources 
and/or expertise to evaluate and approve the waiver. The Coast Guard 
disagrees; this is a Federal regulation, and for that reason the waiver 
authority lies solely in the Coast Guard's discretion. Any waiver 
request is first evaluated and commented on by the local COTP, who may 
consider input from other entities including state agencies, the local 
area committee, and the harbor safety committees prior to forwarding 
the request to the Coast Guard Commandant, Director of Prevention 
Policy (CG-54), who will make the final determination. The COTPs have 
the resources to evaluate and recommend approval or disapproval of 
waiver requests in an appropriate manner.
    One commenter stated that the Coast Guard should track waiver 
requests made pursuant to Sec.  155.4055, and consider funding 
resources if many requests are from the same area. The Coast Guard 
disagrees with this comment, in part. While we do intend to track 
waiver requests to identify those areas of the country where resource 
providers are lacking, we do not have funds to provide to those areas.

Q. Economic Comments

    One commenter stated that an appropriate retainer to cover costs 
can be sustained by the industry if the savings from a prompt, 
successful response complements them. The Coast Guard does not agree or 
disagree. Because this commenter suggested no changes to the NPRM, the 
Coast Guard did not consider any changes as a result of this comment.
    One commenter stated that the money spent for this rule would be 
better spent through prevention, such as crew training and 
modernization of equipment. The Coast Guard agrees that any money spent 
on training and modernization is money well spent; however that would 
not address the need to have planned for, and already contractually 
obligated, appropriate salvage and marine-firefighting equipment for 
responding to a worst-case-scenario incident.
    One commenter stated that there are upcoming opportunities offered 
by pending port security legislation, which would allow the cost of 
these services to be spread among the entire port community. The writer 
is referring to the Coast Guard and Maritime Transportation Act of 2004 
(Pub. L. 108-293), which was signed into law after the comment period 
on the NPRM closed. The Coast Guard recognizes that that law authorizes 
the Coast Guard to reach beyond tank vessels with its VRP regulations. 
We considered withdrawing this regulation until regulations pulling 
nontank vessels into the VRP regime were promulgated. We decided that 
such a delay would not be acceptable because it would postpone the time 
savings and efficiency benefit of listing resource providers for 
current planholders.
    One commenter stated that marine firefighting is one of the poorer 
or least publicly funded services, thus amounting to an unfunded 
mandate. Section 155.4045(a) states that planholders may only list 
resource providers that have been arranged by contract or other 
approved means. This means that a public marine-firefighting department 
would have to agree, in advance, to be listed in the VRP. This 
regulation imposes no new requirements on public marine firefighters, 
and therefore is not an unfunded mandate.
    One commenter wanted to make it known that the tank barge industry 
is different than the tank vessel industry, and responders and service 
providers will take into consideration all aspects of costs, adequacy 
and fairness of the proposed rules. The Coast Guard anticipates that 
differences in circumstances will be discussed prior to any contractual 
arrangement.
    One commenter explicitly stated that shippers (particularly those 
who operate in smaller or remote ports) will be forced to consider 
other, more cost-effective modes of transportation, and that the net 
effect will be a loss of liquid tonnage traveling on the inland 
waterway system as this traffic moves to other transportation modes. 
The Coast Guard disagrees. Our economic analysis for the final rule 
shows that VRP holders would not incur additional capital costs as a 
result of the final rule,

[[Page 80642]]

but would still incur paperwork costs of about $1.2 million annually. 
As to the net loss of liquid tonnage traveling on the inland waterways, 
the absence of significant additional costs should result in little or 
no net loss due to this regulation.
    One commenter questioned why five percent of the planholder's 
revenue will be applied to fund this proposition instead of using that 
money to eliminate single-hulled barges. The Coast Guard assumes this 
comment stems from the analysis found on page 55 of the 2002 Regulatory 
Assessment, which discusses the 5% impact on only a few small 
businesses.
    The intent of this final rule is certainly not to divert monies 
needed to fund the change over to double-hulled barges; rather, it is 
to ensure that adequate resources are in place to avoid a costly 
response to an oil spill if possible. From our final small business 
analysis, we found that the final rule will not impose additional 
capital or infrastructure costs on small businesses. We estimate 
businesses will still incur paperwork costs of about $1.2 million 
annually or about $1,500 per business.
    Eight commenters stated that the NPRM cited the M/V NEW CARISSA as 
an example of the need for the enhanced salvage capacity it proposes, 
even though the M/V NEW CARISSA was a freighter that would not be 
covered by the rulemaking. The commenters are referring to the mention 
of the M/V NEW CARISSA in the May 2002 regulatory assessment, ``Salvage 
and Marine-Firefighting Requirements for Vessel Response Plans'' (USCG-
1998-3417). In this regulatory assessment, the Coast Guard referenced 
the M/V NEW CARISSA as background information in the context of a 
recommendation the Marine Board made in its 1992 report that:

All commercial vessels, not just tank vessels, demonstrate planning 
for salvage response.

The regulatory assessment goes on to note that the:

Discussion of salvage planning by non-oil carriers has only recently 
started, since the M/V NEW CARISSA accident and salvage in 1999 and 
other general cargo salvage incidents.

However, the Coast Guard did not cite the M/V NEW CARISSA incident 
specifically as an example for the need for this rulemaking.

R. Environment Comments

    In Section VII, entitled Rulemaking Analysis and Notices, 
Subsection M there is a discussion of the environmental comments.

S. Tribal Consultation

    In regards to protecting the rights of the Puget Sound tribes, the 
Coast Guard has entered into the required consultation and coordination 
with affected Indian tribal governments, and all State, local, and 
tribal governments have had an opportunity to comment on the NPRM 
during the public comment period, and have those comments addressed 
prior to issuance of a final rule. We have summarized our consultation 
with Indian tribal governments in Section VII, entitled Rulemaking 
Analysis and Notices, Subsection J of this final rule.

T. Miscellaneous

    Two commenters stated that firefighting and salvage do not work on 
the same operational principles, and that they should be addressed 
differently in the rulemaking. The Coast Guard understands this 
position, but does not feel it is necessary to change the regulation. 
While there are differences in these two types of emergency responses, 
we recognize that in some instances both firefighting and salvage 
services will be provided by one resource provider. Also, marine 
firefighting and salvage are closely linked as a response progression, 
therefore we feel that a single regulation serves best to inform the 
industry and resource providers of the planning requirements. However, 
as there are different aspects of each response, separate response 
timetables are provided for salvage versus firefighting planning 
purposes.
    One commenter stated that the NPRM was not very well written, 
adding that it essentially proposed amending existing VRP regulations, 
yet included them in a separate section. The Coast Guard disagrees and 
has determined that these regulations are necessary and fit 
appropriately into the current VRP regulations provided in 33 CFR part 
155.
    One commenter stated that the State of California should not 
dictate U.S. salvage and marine-firefighting response planning 
requirements. The commenter noted that the Coast Guard has no business 
imposing the same unreasonable requirements on those who elected to 
avoid them by not conducting business in California. The Coast Guard 
disagrees that these regulations, which implement requirements 
contained in OPA 90, are unreasonable. Further, the Coast Guard has 
not, at any time during this rulemaking project, set out to impose 
unreasonable requirements, either on our own or at the behest of one of 
the States. As found in the public docket, document number USCG-1998-
3417-0008, the Coast Guard had requested an extension of the 
implementation date of California's Salvage Equipment and Service 
requirements (found in section 8 18.02(m) of California's Oil Spill 
Contingency Plan regulations (Title 14, Division 1, Subdivision 4, 
Chapter 3, Subchapter 3, Sections 81 5-819)) beyond September 30, 2000. 
We felt that such an extension would give us time to share and discuss 
our own proposed requirements with them. The Coast Guard is not 
approving California's requirements; however we are required under 
Executive Order 13132 to consult with the States prior to proposing 
regulations that might affect them. We consulted with California on an 
agreement on the best approach for ensuring a salvage and firefighting 
capability that both serves the interests of that State and the United 
States, and also to lessen the burden of meeting two separate 
regulatory requirements on industry. States have an inherent right to 
set vessel response planning requirements for their own waters, as long 
as they do not preclude compliance with Federal requirements. Since 
this comment came into the docket, California issued Salvage Equipment 
and Service requirements as part of their Oil Spill Contingency Plan 
regulations on October 12, 2007. For a detailed discussion of this 
topic, see the ``Federalism'' section below.
    One comment recommended that the Coast Guard should establish Basic 
Ordering Agreement (BOA) or contracts with salvors and marine 
firefighters, and other resource providers in the same fashion it has 
done with spill cleanup contractors. They suggested that the Coast 
Guard apply the same criteria when evaluating contract services that 
are being required of the tank vessel industry, and that the Coast 
Guard perform the evaluation and contracting within the same time 
periods given the tank vessel industry in the proposed revision. The 
Coast Guard disagrees. In 1982 Congress directed the Coast Guard 
Commandant to:

    Review Coast Guard policies and procedures for towing and 
salvage of disabled vessels in order to further minimize the 
possibility of Coast Guard competition or interference with 
commercial enterprise. (Pub. L. 97-322, title I, Sec. 113, Oct. 15, 
1982, 96 Stat. 1585, as amended by Pub. L. 100-448, Sec. 30(b), 
Sept. 28, 1988, 102 Stat. 1850)

Congress mandated the review because of concern that the Coast Guard 
was unnecessarily using its resources to provide non-emergency 
assistance for disabled vessels, which could be

[[Page 80643]]

adequately performed by the private sector. In addition, a key aspect 
of OPA 90 emphasizes the use of private over public emergency response 
resources. Therefore, this regulation was written to ensure that 
private industry have the first chance at the available contracts if 
possible.
    One commenter stated that since Congress removed Federal agencies 
as firefighting resources with the Federal Fire Prevention and Control 
Act of 1974, the burden has fallen squarely on the shoulders of local 
fire departments. The Coast Guard agrees in part and hopes this 
regulation will relieve that burden by helping to bolster firefighting 
resources with private resource providers that establish new 
partnerships between the public and private sectors.
    One commenter stated that these regulations will impose upon the 
industry the same burdens that were imposed for oil-spill response in 
regards to cost, multiple contracts, and enhanced port capabilities, 
and that the Coast Guard should ensure that these issues are clearly 
addressed in these regulations and that the Coast Guard has the tools 
and capability to adequately ensure that resources listed in a VRP are 
adequate for local ports. VRP approval is done according to certain 
criteria used by the Coast Guard in reviewing the submitted VRPs. 
Should the review process uncover deficiencies, or if a historical 
pattern of deficiencies are found in the resources listed in VRPs, the 
Coast Guard will take administrative action in accordance with 
Sec. Sec.  155.1025(d)(1) and 155.1070(e). However, the responsibility 
of ensuring the adequacy of the response provider is on the planholder, 
based on the selection criteria found in Sec.  155.4050.
    One commenter stated that the comments found in the FOSC's report 
on the M/V NEW CARISSA, ``Crisis on the Coast,'' proves that a response 
must be centrally coordinated to be effective. The commenter added that 
such coordination could not be achieved within the context of the 
proposals contained in the NPRM. The Coast Guard disagrees. Section 
155.4030(c) addresses integration into the response organization prior 
to an incident happening. It is the responsibility of the planholder 
and resource provider to ensure this is done by working with local port 
partners and contributing to, and exercising under, the ACP. Table 
155.4040(c) references VRP submittal to the Incident Commander/Unified 
Command. Both of these items show there is a clear intent for central 
coordination and pre-planning of the response.
    Six commenters stated the rule presents an incomplete and minimal 
approach to providing effective salvage and firefighting capability for 
ships in U.S. waters, that the U.S. needs a port system of maritime-
firefighting capacity for the general good, and that such a national 
system should be developed under Federal oversight using general 
treasury funding. One commenter stated that the Coast Guard continues 
to reject a dedicated salvage fleet as a viable option to address this 
pressing need. The creation of a dedicated salvage fleet using Federal 
resources would have to come from Congress and be funded in the Federal 
budget. The Coast Guard has not actively rejected or endorsed a 
dedicated salvage fleet.
    One commenter stated that the absence in the NPRM of a proposal to 
create a nationally coordinated system fails to recognize the 
jurisdictional issues inherent in a casualty on a major waterway of the 
United States. The Coast Guard disagrees, and points to the importance 
of pre-planning using cooperation of the local and surrounding port 
partners and creating adequate ACPs to anticipate situations where an 
incident might cross jurisdictional lines.
    One commenter recommended that the Coast Guard eliminate the last 
sentence in Sec.  155.4010, which reads:

Salvage and marine firefighting actions can save lives, property and 
prevent the escalation of potential oil spills to worst case events,

as it is propaganda, and because the first sentence accurately 
describes the purpose of the new subpart. The Coast Guard disagrees. We 
consider the sentence in question to be factually correct and an 
accurate statement of the basis and intent of this regulation.
    Three commenters stated there is a definite need for regulations 
giving the COTP direct oversight of VRPs. The Coast Guard disagrees. 
The volume of review and oversight for the VRPs will be time and labor 
intensive, and would create too much of an administrative burden on 
local COTP offices. The review and oversight will be maintained at the 
Commandant level in Coast Guard Headquarters, as is the existing VRP 
program. This will allow for a more consistent review process and 
application of the regulation.
    One commenter suggested not listing the requirements contained in 
the rules separately, but rather integrating them with the existing VRP 
rules found elsewhere in 33 CFR part 155. In cases where this is not 
possible, then both the existing rules and the new rules should cross 
reference each other. The Coast Guard disagrees and will keep the new 
salvage and marine firefighting requirements in separate regulations. 
We cross referenced the existing regulations in Part 155 where 
necessary.
    One commenter stated that the technical expertise to effectively 
deploy assets in the earliest stages of a shipboard fire is missing 
from the rulemaking, and that the best improvements in OPA 90 response 
effectiveness can be made by ensuring that capable and trusted marine-
firefighting experts merge into the joint command as quickly as 
possible. The Coast Guard agrees in part. There may well be instances 
where the resource providers contracted for assessment and planning are 
also the resource providers for the firefighting teams and equipment, 
and the Coast Guard encourages both planholders and resource providers 
to ensure this is done when possible. Regarding the integration into 
the joint commands, prudence dictates that both planholders and 
resource providers participate in the Federal, state, and local area 
contingency planning prior to an incident.
    One commenter stated that the new fire-detection systems, rules, 
and training are paying off and should be given a chance to work before 
the proposed firefighting rules are enacted. The Coast Guard disagrees 
in part. It is true that there have been some positive developments in 
the past regarding on board marine firefighting regulations and 
standards, most notably the 1995 amendments to the International 
Convention on Standards of Training, Certification and Watchkeeping for 
Seafarers (STCW). However, this rulemaking addresses a worst case 
discharge scenario situation, which could easily overwhelm the vessel 
crew's firefighting capabilities and require external response 
resources. For these reasons, the firefighting rules are necessary.
    One commenter was unsure regarding compliance with the requirement 
in Sec.  155.4040(d)(2) to ``list the pier location by facility name 
and city.'' They asked if that meant listing all potential locations 
that their entire fleet might someday visit, over the 13 COTP zones 
that the company operates in, in order to determine if the resource 
provider can reach the location in the designated timeframe. They 
stated that this provision would be extremely difficult to accomplish. 
The Coast Guard agrees reporting this level of detail will be 
difficult, but necessary nevertheless to verify that resources will be 
available. VRPs and the accompanying geographic-specific annexes are 
already

[[Page 80644]]

required to list specific information as found in Sec.  155.1035(i). We 
are requiring that these annexes be updated to show the pier or city 
locations, and which firefighting resource providers will be contracted 
for responding to incidents at those locations. Section 155.1070(c)(5) 
has provisions for updating VRPs when necessary.
    One commenter stated that unlike most areas of our nation, the 
lower Columbia River, which is approximately 110 miles, is protected by 
Mutual Aid Agreements in which all 10 of the Maritime Fire and Safety 
Association (MFSA) public fire agencies participate. The commenter 
stated that there are a number of organizations similar to MFSA 
throughout the country, and that the hard work and dedication these 
organizations have put forth must not be overlooked in the finalizing 
stage of these regulations. The Coast Guard agrees, and is very 
appreciative of the various mutual aid organizations that exist 
throughout the United States. We anticipate that many of these 
organizations will enter contractual agreements with planholders, and 
that more of them will be formed in additional locations to address the 
requirements of this regulation.
    One commenter stated that there must be a mechanism in place to 
ensure that the VRP, and all copies of the VRP, are kept up-to-date as 
changes are made. The Coast Guard agrees and directs the commenter's 
attention to the existing requirements for any revisions to be 
submitted to the Coast Guard 30 days in advance of a vessel's operation 
in 33 CFR 155.1070(d). More information regarding this issue can be 
found on the Internet at the following Web site: http://www.uscg.mil/
vrp/news/submission_reminder.shtml.
    One commenter stated that if a marine-firefighting resource 
provider subcontracts to other qualified organizations, each 
subcontracted organization should also receive a copy of the VRP. The 
Coast Guard agrees and has added text in Sec.  155.4035(b)(3) to 
reflect this change.
    One commenter stated that the rules require drill participation by 
all of the salvage and firefighting contractors in the vessel oil 
contingency plans. The Coast Guard agrees, and the existing exercise 
requirements are found in Sec.  155.1060. This requirement covers all 
vessels that are required to carry VRPs. We have also added Sec.  
155.4052 to address specific exercise requirements.
    Three commenters stated that the Coast Guard will have to enforce 
the regulations vigorously if resource providers are to believe their 
investments will produce a return. They also asked how the Coast Guard 
will gain the confidence of resource providers, and if there will be 
any directive to the COTPs to insure that those who invest will get the 
work and those who do not will fall outside the definition of resource 
provider. The Coast Guard agrees and is developing guidance to the 
field units detailing the application and enforcement of this 
regulation.

U. Beyond the Scope

    Two commenters addressed the fact that the NPRM failed to discuss 
the issue of liability for salvors, and suggested including immunity 
language, which states salvage and marine firefighting resources will, 
for the purpose of 33 U.S.C. 1321(c)(4)(a), be considered as rendering 
such service consistent with the National Contingency Plan. While we 
appreciate the points raised concerning potential liability, the issue 
of liability is beyond the scope of this final rule. No provision of 
this final rule addresses liability, either to expressly limit 
liability or to address immunity from liability. Among other things, 
determinations of liability require a fact-laden inquiry on a case-by-
case basis. If an incident response is covered by the National 
Contingency Plan, then any liability coverages previously authorized by 
33 U.S.C. 1312, and subsequent exemptions, would remain in effect.
    We received many other comments concerning issues that are outside 
the scope of the NPRM, and as such require little or no response.
    One commenter stated that much of the existing dedicated pollution 
response equipment is suited only for spill response and is not used 
except for drills and actual spills. One commenter asserted that a 
national system with regional/local planning requirements would resolve 
jurisdictional issues through the use of the existing incident command 
structure, where one Federal authority (presumably the Coast Guard 
COTP) could coordinate the local and regional response organizations 
under one unified command system. One commenter stated that the Coast 
Guard should treat identified resource shortfalls as local issues and 
resolve them with local resources, as the state of Washington has done. 
They referenced the Strait of Juan de Fuca rescue tug, which is in 
operation at Neah Bay, with funding for its operations provided by the 
Washington State legislature. One commenter stated that if a direct 
funding mechanism, such as user fees, were established by local and 
state authorities to meet the intent of these regulations, the cost and 
impact would be significantly greater than that proposed in these 
regulations, as has been documented in some of the maritime regulations 
of some western States. One commenter stated that Sec. Sec.  
155.1035(e)(6)(ii), ``Response plan requirements for manned vessels 
carrying oil as a primary cargo'', and Sec.  155.1040(e)(5)(ii), 
``Response plan requirements for unmanned tank barges carrying oil as a 
primary cargo'', need to be updated. While this comment is outside the 
scope of this regulatory project, we have passed it on to the 
appropriate office within the Coast Guard to consider as part of a 
separate regulatory project. One commenter stated that the conditions 
in 33 CFR 155 are often not met and the local, public fire departments 
are unaware of their role in the facility response plan.
    One commenter stated that the Coast Guard should focus on ensuring 
adequate participation in the casualty response by the financial 
stakeholders, which are often the insurers of the responsible parties. 
The FOSC should require that all marine insurers, including hull, 
protection and indemnity (P&I), and pollution insurers, have an 
individual available to discuss coverage with the FOSC on an as needed 
basis. Another commenter stated that the FOSC should require that some 
representative of the resource provider's various marine insurers, such 
as a surveyor, be on scene to participate in the financial decisions 
made in the context of the ICS. These comments are beyond the scope of 
this rulemaking, as they would introduce a new aspect to the 
overarching incident command structure.
    One commenter recommended that the Coast Guard take the lead to 
ensure that the firefighting sections of each ACP have been developed 
and tested so that initial at-pier response by public resources is 
assured. We will take this comment into consideration as we conduct 
regular reviews of ACPs.
    One commenter stated that the U.S. Coast Guard's Crisis Management 
School should increase the time spent training the attendees in the 
distinctions among a resource provider's various insurance carriers 
because casualties usually involve multiple insurer interests. One 
commenter stated that they support the concept of improving and 
enhancing indigenous resources in each port, where possible, rather 
than creating a new industry. The commenter added that enhancing local 
firefighting capabilities will create a reasonable low-cost alternative 
to developing a new industry. One commenter wrote that for a number of 
years, tank vessels and tank barges transiting the west coast of North

[[Page 80645]]

America have been voluntarily participating in a traffic separation 
scheme whereby tank vessels transit at least 50 miles offshore, while 
tank barges transit 25 miles offshore. The commenter noted that if tank 
barges could avoid the regulatory reach of these proposed standards by 
transiting beyond the 50-mile limit of a certain COTP zone, they would 
place themselves directly in the path of the faster moving tank 
vessels, negating the benefits and safety features of the traffic 
separation scheme. One commenter stated it is essential that the Coast 
Guard address the status of efforts to obtain reciprocity with Canada, 
particularly for areas where we jointly share waterways. One commenter 
submitted a comment designed to correct language in a report that was 
neither referenced in nor relied upon for the NPRM. One commenter 
stated that the Coast Guard should address and develop a process to 
resolve possible jurisdictional conflicts between firefighters and 
Federal, State, and planholder responders. At the public meeting in 
Seattle on the NPRM, it was suggested firefighting and salvage 
contractors should be certified by an International Association of 
Classification Societies member.
    These comments were found to be beyond the scope of the proposed 
rulemaking; therefore, we have not responded to them.

VI. Incorporation by Reference

    The Director of the Federal Register has approved the material in 
Sec. Sec.  155.4035 and 155.4050 for incorporation by reference under 5 
U.S.C. 552 and 1 CFR 51. Copies of the material are available from the 
sources listed in those sections.

VII. Regulatory Analyses

    We developed this final rule after considering numerous statutes 
and executive orders related to rulemaking. Below, we summarize our 
analysis based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review (E.O. 12866)

    This final rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review. 
The Office of Management and Budget (OMB) has not reviewed it under 
that Order.
    A regulatory analysis is available in the docket where indicated 
under the ADDRESSES. A summary of the analysis follows:
    The Coast Guard is amending the vessel response plan salvage and 
marine firefighting requirements for tank vessels carrying oil or 
groups I through IV petroleum oil as cargo. These revisions add 
clarifying language to the salvage and marine firefighting services 
that must be identified in vessel response plans. These revisions also 
set new response time planning requirements for each of the required 
salvage and marine firefighting services. The final rule also removes 
the time requirement for ``heavy lift'' services and the 24-hour 
requirement. The changes above ensure that the appropriate salvage and 
marine firefighting resources are identified and available for 
responding to incidents up to and including the worst-case discharge 
scenario. Readers should refer to the ``Summary of Changes from NPRM'' 
section of this preamble for more information.
    Since 2002, several factors have led us to reconsider the cost 
impacts of the rule. First, the rule requirements themselves have 
changed, eliminating the need for the costly staging of heavy lift 
equipment. In addition, the marine salvage and firefighting business 
practices have changed in response to market forces external to the 
rule. Even in the absence of the Coast Guard regulatory requirements, 
industry has made considerable capital investments in the equipment 
needed to fulfill other business opportunities and provide services 
through the normal course of daily business operations. As a result, 
salvage companies have already acquired the equipment that we had 
projected would need to be required to meet the revised plan 
requirements.
    As a combined result of these changes, we now estimate that the 
rule will not trigger an intensive investment in capital equipment by 
industry. Therefore, we do not anticipate salvage and firefighting 
companies will incur the capital costs and associated annual costs that 
we previously envisioned in the proposed rule based on comments 
received from industry and on the state of the business environment 
during the past six years. Companies purchased equipment as a part of 
their business model in order to carry out the services they provide 
clients in addition to the contract work that we estimated for the 
proposed rule. As a result, compliance with the final rule will not 
require additional capital or resources to increase salvage and marine 
firefighting capability.
    For the final rule, we added clarifying language to existing 
requirements of the NPRM. The most significant change in the final rule 
is the removal of the ``heavy lift'' response time requirement (Heavy 
lift means the use of a salvage crane, A-frames, hydraulic jacks, 
winches, or other equipment for lifting, righting, or stabilizing a 
vessel). This should greatly reduce the burden on industry by allowing 
industry to list ``estimated'' response times of heavy lift equipment 
rather then having to pre-stage the equipment in geographical locations 
to meet firm planning response times. Only an additional paperwork 
burden exists in the form of annual plan updates, renewals, and 
deficiency letters.
    Initially, we believed that capital costs and other costs such as 
employee training and drills, employee compensation, acquisition of 
equipment, record creation and recordkeeping, and contract negotiations 
with planholders (initial and annual) incurred by the salvage and 
firefighting companies would be passed onto vessel planholders in the 
form of retainer fees or increased costs for services provided. 
However, based on information from industry representatives, the 
levying of retainer fees is not a common industry practice and is 
virtually nonexistent within the marine salvage and firefighting 
industry. Marine salvage and firefighting companies recover most, if 
not all, of their costs for equipment and other capital expenditures 
through marine related contracted work and services.
    For about 797 planholders that this rule will impact, there are 
additional paperwork burden and costs, which require an adjustment to 
an existing collection of information. We estimate the total annual 
burden hours to increase by 19,925 hours with an associated cost of 
approximately $1.2 million (non-discounted). For more detail, see the 
``Collection of Information'' section of this rule.
    This rule provides an efficiency benefit that will result in 
reduced response times. Current planholders will be able to make 
arrangements and contract with resource providers before future events 
occur, therefore, reducing future response times. The rule ensures that 
the appropriate salvage and marine firefighting resources are 
identified and available for responding to incidents up to and 
including worst case discharges. This rule will assist in restoring 
maritime transportation related commerce after a navigation or security 
event. The rule also provides clarification to the existing 
requirements found at 33 CFR 155.1050 which are general and only 
require that a planholder identify salvage and marine firefighting 
resources.
    Ultimately, reduced response time may result in barrels of oil not 
spilled after an event occurs. The Coast Guard examined spill incidents 
from casualty

[[Page 80646]]

cases for tank ships and tank barges for the period 2002-2006. This 
period appeared relevant for evaluation since the Coast Guard published 
the original VRP rule in January 1996 and since several years had 
elapsed since OPA 90, thus allowing time for OPA 90 related rules to 
have an effect on the amount of oil that was being spilled into the 
water from tanker incidents. We found that spill volume had decreased 
during this period in contrast to the years just following OPA 90. 
However, the Coast Guard considers this rule will assist in mitigating 
the impacts of future low-risk, high-consequence worst case discharges.
    We consider the efficiency gains discussed above to be the primary 
benefit of the rule. We also present additional analysis of potential 
scenario-based benefits in the regulatory analysis available in the 
docket. We considered large spill scenarios and effectiveness factors 
to forecast a range of quantified benefits.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard has reviewed this final rule for its potential 
economic impact on small entities. Out of the estimated 797 
planholders, we identified 191 entities as being small businesses. From 
our analysis, we believe that small businesses will not incur 
additional capital costs to comply with the final rule. They will incur 
small paperwork costs of about $1,500 annually per small business. For 
this reason, the Coast Guard certifies under 5 U.S.C. 605(b) that the 
final rule will not have a significant economic impact on a substantial 
number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. If you think 
that this rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning these 
provisions or options for compliance, please consult with the Coast 
Guard personnel listed in the FOR FURTHER INFORMATION CONTACT section 
of this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

D. Collection of Information

    This rule calls for a collection of information under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 
1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other similar 
actions. The title and description of the information collections, and 
a description of those who must collect the information follow. The 
estimate covers the time for reviewing instructions, searching existing 
sources of data, gathering and maintaining the data needed, and 
completing and reviewing the collection.
    This final rule modifies one existing OMB-approved collection 1625-
0066 (formerly 2115-0595). A summary of the revised collection follows.
    Title: Vessel and Facility Response Plans (Domestic and 
International), and Additional Response Requirements for Prince William 
Sound Alaska.
    OMB Control Number: 1625-0066.
    Summary of the Collection of Information: Vessel response 
planholders will need to collect additional information to comply with 
the rule for the salvage and marine firefighting requirements. This 
information includes:
     Name and contact information for resource providers for 
each vessel with appropriate equipment and resources located in each 
zone of operation;
     Marine firefighting pre-fire plans; and
     Certification that the responders are qualified and have 
given permission to be included in the VRP.
    Need for Information: The information is necessary to show evidence 
that planholders have properly planned to mitigate oil outflow and to 
provide that information to the Coast Guard for its use in emergency 
response.
    Use of Information: The Coast Guard will use this information to 
determine whether a vessel meets the salvage and marine firefighting 
requirements.
    Description of the Respondents: The respondents are vessel response 
planholders.
    Number of Respondents: The number of respondents is 797 VRP 
planholders.
    Frequency of Response: Each respondent will update and amend their 
respective plan accordingly and typically on an annual basis.
    Burden of Response: For this final rule, the VRP planholder hour 
burden is 25 hours each year. For this rule, the total hour burden is 
19,925 hours each year. We also estimate that planholders will incur 
ongoing paperwork costs of about $1.2 million annually.
    Estimate of Total Annual Burden: The existing OMB-approved total 
annual burden is 220,559 hours. This rule will increase that number by 
19,925 hours. The estimated total annual burden is 240,484 hours.
    In addition to this rulemaking, COI 1625-0066 is being revised by 2 
other Coast Guard rules. These rules are--(1) Vessel and Facility 
Response Plans for Oil: 2003 Removal Equipment Requirements and 
Alternative Technology Revisions [Docket No. USCG-2001-8661; RIN 1625-
AA26]; and (2) Nontank Vessel Response Plans and Other Vessel Response 
Plan Requirements [Docket No. USCG-2008-1070; RIN 1625-AB27]. Once 
these rules are finalized, the hour burden for 1625-0066 will differ 
from the figures noted above. See the COI preamble section of each rule 
for details on how the hour burden will differ.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this rule to OMB for its review 
of the collection of information.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the collection.

E. Federalism (E.O. 13132)

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. It is well settled that States may 
not regulate in

[[Page 80647]]

categories reserved for regulation by the Coast Guard. It is also well 
settled, now, that all of the categories covered in 46 U.S.C. 3306, 
3703, 7101, or 8101 (design, construction, alteration, repair, 
maintenance, operation, equipping, personnel qualification, and manning 
of vessels), as well as the reporting of casualties and any other 
category in which Congress intended the Coast Guard to be the sole 
source of a vessel's obligations, are within the field foreclosed from 
regulation by the States. (See the decision of the Supreme Court in the 
consolidated cases of United States v. Locke and Intertanko v. Locke, 
529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)
    This regulation covers vessel response plans for salvage and marine 
firefighting resources, aimed at reducing cargo loss should a marine 
casualty occur. As discussed in the Background and Purpose section of 
the NPRM published on May 10, 2002 (67 FR 31868), the Coast Guard 
consulted with State agencies such as the California Office of Spill 
Prevention and Response to ensure these regulations will not interfere 
with or preempt State regulations on the same subject. While several 
State agencies submitted comments on the NPRM, we have not consulted 
with these States since the publication of the NPRM. After reviewing 
these comments, we have determined that these regulations will not 
interfere with or preempt existing State regulations on the same 
subject.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.
    The legal authority for this rulemaking is provided by the Oil 
Pollution Act of 1990 (OPA 90). Response plans are required by the 
Federal Water Pollution Control Act (33 U.S.C. 1321(j)(5), as amended 
by Section 4202(a) of OPA 90).
    This rule will not result in expenditures by State, local, or 
tribal governments because public vessels are exempt from the 
requirements of this rulemaking. The Assessment section above provides 
an overview of this rulemaking and its costs and benefits. A more 
detailed discussion of costs and benefits can be found in the 
Regulatory Assessment for this rule, which is available in the docket 
where indicated under ADDRESSES. The Regulatory Assessment also 
describes alternatives to this rule, which are contained in the Final 
Regulatory Flexibility Act Analysis.

G. Taking of Private Property

    This rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference With Constitutionally Protected 
Property Rights.

H. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. Indian Tribal Governments

    We have reviewed this rule under Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments. 
Rulemakings that are determined to have ``tribal implications'' under 
that Order (i.e., have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes) require the 
preparation of a tribal summary impact statement. As discussed below, 
the Coast Guard finds that this rule would not have implications of the 
kind envisioned under the Order, because it would not impose 
substantial direct compliance costs on tribal governments, preempt 
tribal law, or substantially affect lands or rights held exclusively 
by, or on behalf of, those governments.
    Following the publication of the NPRM in May of 2002 and a 
subsequent notice of availability of the draft Programmatic 
Environmental Assessment in January 2006, we received two comment 
letters from the Makah Tribal Council of Neah Bay, WA. To address their 
concerns, we met with representatives of the Tribal Council in June and 
November of 2006. The meetings were intended to more fully explain the 
purpose of the rulemaking and to discuss what implications it would 
have on their Tribal concerns. Meeting summaries can be found in the 
public docket as indicated under ADDRESSES. The Coast Guard does not 
foresee that this rule would compel the tribes to significantly alter 
their current fishery. Furthermore, it would provide some benefits by 
increasing the amount of salvage and marine firefighting resources in 
the vicinity of their traditional tribal grounds. We do not anticipate 
any additional economic cost to the tribe. For these reasons, we have 
determined that this rule would not have ``tribal implications'' under 
the Executive Order, and does not require a tribal summary impact 
statement.

K. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule uses the following National Fire Protection Association 
(NFPA) voluntary consensus standards:
     NFPA 1001, Standard for Fire Fighter Professional 
Qualifications, 2008 Edition
     NFPA 1005, Standard for Professional Qualifications for 
Marine Fire Fighting for Land-Based Fire Fighters, 2007 Edition

[[Page 80648]]

     NFPA 1021, Standard for Fire Officer Professional 
Qualifications, 2003 Edition
     NFPA 1405, Guide for Land-Based Fire Fighters Who Respond 
to Marine Vessel Fires, 2006 Edition
     NFPA 1561, Standard on Emergency Services Incident 
Management System, 2008 Edition

The sections that reference these standards and the locations where 
these standards are available are listed in 33 CFR 155.140.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 0023.1 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
under the Instruction that preparation of an Environmental Impact 
Statement is not necessary. A final Programmatic Environmental 
Assessment (PEA) and a final ``Finding of No Significant Impact'' 
(FONSI) are available in the docket where indicated under ADDRESSES. An 
overview of the NEPA steps taken for this rule follows.
    The Coast Guard considered the environmental impact of vessel 
response plans as a whole during an April 1992 Environmental Assessment 
(EA), and a November 1992 Supplemental Statement, resulting in a FONSI 
[see Vessel Response Plans rulemaking; CGD 91-034; 58 FR 7376; February 
3, 1993]. For this rulemaking, we initially relied on that 1992 EA as 
the salvage and marine firefighting requirements are two of many 
required vessel response plan elements. Following publication of the 
NPRM we received comments on the age of the original analysis, as well 
as the need to address the use of different types of fire fighting 
foam. A PEA was drafted, solely for these salvage and marine 
firefighting revisions, to address these comments. A Notice of 
Availability for the draft PEA was published in the Federal Register on 
January 3, 2006 [71 FR 125] and the public comments received in 
response to it are addressed in the final PEA. The PEA only updates a 
small portion of the scope of the 1992 EA; specifically, the salvage 
and marine firefighting identification and response time requirements 
in VRPs for commercial tank vessels carrying groups I through IV 
petroleum oil as a primary cargo. The 1992 EA and FONSI, the updated 
draft PEA and the final 2008 PEA and FONSI are available in the docket 
for inspection or copying where indicated under ADDRESSES.

List of Subjects for 33 CFR Part 155

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

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 155 as follows:

PART 155--OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION 
REGULATIONS FOR VESSELS

0
1. The authority citation for part 155 continues to read as follows:

    Authority: 33 U.S.C. 1231, 1321(j); E.O. 11735, 3 CFR, 1971-1975 
Comp., p. 793. Sections 155.100 through 155.130, 150.350 through 
155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and 
155.1065(g) are also issued under 33 U.S.C. 1903(b). Sections 
155.480, 155.490, 155.750(e), and 155.775 are also issued under 46 
U.S.C. 3703. Section 155.490 also issued under section 4110(b) of 
Pub. L. 101-380.


    Note: Additional requirements for vessels carrying oil or 
hazardous materials are contained in 46 CFR parts 30 through 40, 
150, 151, and 153.


0
2. Add a note following Sec.  155.130 to read as follows:


Sec.  155.130  Exemptions.

* * * * *

    Note to Sec.  155.130: Additional exemptions/temporary waivers 
related to salvage and marine firefighting requirements can be found 
in Sec.  155.4055.


0
3. Revise Sec.  155.140 to read as follows:


Sec.  155.140  Incorporation by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, the Coast Guard must publish notice of 
change in the Federal Register and the material must be available to 
the public. All approved material is available for inspection at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030 or go to 
http://www.archives.gov/federal_register/code_of_federal_
regulations/ibr_locations.html. Also, it is available for inspection 
at the Coast Guard, Office of Vessel Activities, 2100 Second Street, 
SW., Washington, DC 20593-0001. Approved material is available from the 
sources indicated in this section.
    (b) American National Standards Institute, Inc. (ANSI), 25 West 
43rd Street, New York, NY 10036, 212-642-4980, http://www.ansi.org/:
    (1) ANSI A10.14, Requirements for Safety Belts, Harnesses, Lanyards 
and Lifelines for Construction and Demolition Use, 1991 (``ANSI 
A10.14''), incorporation by reference approved for Sec.  155.230.
    (2) [Reserved]
    (c) American Society for Testing and Materials (ASTM), 100 Barr 
Harbor Drive, West Conshohocken, PA 19428-2959, 610-832-9585, http://
www.astm.org/:
    (1) ASTM F 631-93, Standard Guide for Collecting Skimmer 
Performance Data in Controlled Environments (``ASTM F 631-93''), 
incorporation by reference approved for Appendix B.
    (2) ASTM F 715-95, Standard Test Methods for Coated Fabrics Used 
for Oil Spill Control and Storage (``ASTM F 715-95''), incorporation by 
reference approved for in Appendix B.
    (3) ASTM F 722-82 (1993), Standard Specification for Welded Joints 
for Shipboard Piping Systems (``ASTM F 722-82''), incorporation by 
reference approved for Appendix A and Appendix B.
    (d) International Maritime Organization (IMO), 4 Albert Embankment, 
London SE1 7SR, United Kingdom, http://www.imo.org/:
    (1) Resolution A.535(13), Recommendations on Emergency Towing 
Requirements for Tankers, November 17, 1983 (``Resolution A.535(13)''), 
incorporation by reference approved for Sec.  155.235.
    (2) Resolution MSC.35(63), Adoption of Guidelines for Emergency 
Towing Arrangement on Tankers, May 20, 1994 (``Resolution 
MSC.35(63)''), incorporation by reference approved for Sec.  155.235.
    (e) National Fire Protection Association (NFPA), 1 Batterymarch 
Park, Quincy, MA 02269-7471, 617-770-3000, http://www.nfpa.org/:
    (1) NFPA 1001, Standard for Fire Fighter Professional 
Qualifications, 2008 Edition (``NFPA 1001''), incorporation by 
reference approved for Sec.  155.4050.
    (2) NFPA 1005, Standard for Professional Qualifications for Marine 
Fire Fighting for Land-Based Fire Fighters, 2007 Edition (``NFPA 
1005''), incorporation by reference approved for Sec.  155.4050.
    (3) NFPA 1021, Standard for Fire Officer Professional 
Qualifications, 2003 Edition (``NFPA 1021''), incorporation by 
reference approved for Sec.  155.4050.
    (4) NFPA 1405, Guide for Land-Based Fire Fighters Who Respond to 
Marine Vessel Fires, 2006 Edition (``NFPA 1405''), incorporation by 
reference approved for Sec. Sec.  155.4035 and 155.4050.

[[Page 80649]]

    (5) NFPA 1561, Standard on Emergency Services Incident Management 
System, 2008 Edition (``NFPA 1561''), incorporation by reference 
approved for Sec.  155.4050.
    (f) Oil Companies International Marine Forum (OCIMF), 29 Queen 
Anne's Gate, London, SW1H 9BU England, http://www.ocimf.com/:
    (1) Ship to Ship Transfer Guide (Petroleum), Second Edition, 1988, 
incorporation by reference approved for Sec.  155.1035.
    (2) Reserved.

0
4. In Sec.  155.1020, revise the definition of ``Oil Spill Removal 
Organization'' to read as follows:


Sec.  155.1020  Definitions.

* * * * *
    Oil spill removal organization (OSRO) means an entity that provides 
oil spill response resources.
* * * * *

0
5. Amend Sec.  155.1050 by:
0
(a) Revising paragraph (k); and
0
(b) Removing and reserving existing paragraph (l):


Sec.  155.1050  Response plan development and evaluation criteria for 
vessels carrying groups I through IV petroleum oil as a primary cargo.

* * * * *
    (k) Salvage (including lightering) and marine firefighting 
requirements are found in subpart I of this part.
    (l) [Reserved]
* * * * *

0
6. Reserve subpart H and add subpart I, consisting of Sec.  155.4010 
through Sec.  155.4055, to read as follows:
Subpart I--Salvage and Marine Firefighting
Sec.
155.4010 Purpose of this subpart.
155.4015 Vessel owners and operators covered by this subpart.
155.4020 Complying with this subpart.
155.4025 Definitions.
155.4030 Required salvage and marine firefighting services to list 
in response plans.
155.4032 Other resource provider considerations.
155.4035 Required pre-incident information and arrangements for the 
salvage and marine firefighting resource providers listed in 
response plans.
155.4040 Response times for each salvage and marine firefighting 
service.
155.4045 Required agreements or contracts with the salvage and 
marine firefighting resource providers.
155.4050 Ensuring that the salvors and marine firefighters are 
adequate.
155.4052 Drills and exercises.
155.4055 Temporary waivers from meeting one or more of the specified 
response times.

Subpart I--Salvage and Marine Firefighting


Sec.  155.4010  Purpose of this subpart.

    (a) The purpose of this subpart is to establish vessel response 
plan salvage and marine firefighting requirements for vessels, that are 
carrying group I-IV oils, and that are required by Sec.  155.1015 to 
have a vessel response plan. Salvage and marine firefighting actions 
can save lives, property, and prevent the escalation of potential oil 
spills to worst case discharge scenarios.
    (b) A planholder must ensure by contract or other approved means 
that response resources are available to respond. However, the response 
criteria specified in the regulations (e.g., quantities of response 
resources and their arrival times) are planning criteria, not 
performance standards, and are based on assumptions that may not exist 
during an actual incident, as stated in 33 CFR 155.1010. Compliance 
with the regulations is based upon whether a covered response plan 
ensures that adequate response resources are available, not on whether 
the actual performance of those response resources after an incident 
meets specified arrival times or other planning criteria. Failure to 
meet specified criteria during an actual spill response does not 
necessarily mean that the planning requirements of the Federal Water 
Pollution Control Act (FWPCA) (33 U.S.C. 1251-1376) and regulations 
were not met. The Coast Guard will exercise its enforcement discretion 
in light of all facts and circumstances.


Sec.  155.4015  Vessel owners and operators who must follow this 
subpart.

    You must follow this subpart if your vessel carries group I-IV 
oils, and is required by Sec.  155.1015 to have a vessel response plan.


Sec.  155.4020  Complying with this subpart.

    (a) If you have an existing approved vessel response plan, you must 
have your vessel response plan updated and submitted to the Coast Guard 
by June 1, 2010.
    (b) All new or existing vessels operating on the navigable waters 
of the United States or transferring oil in a port or place subject to 
the jurisdiction of the United States, that meet the applicability 
requirements of Sec.  155.1015, that do not have an approved vessel 
response plan, must comply with Sec.  155.1065.
    (c) Your vessel may not conduct oil transport or transfer 
operations if--
    (1) You have not submitted a plan to the Coast Guard in accordance 
with Sec.  155.1065 prior to June 1, 2010;
    (2) The Coast Guard determines that the response resources 
referenced in your plan do not meet the requirements of this subpart;
    (3) The contracts or agreements cited in your plan have lapsed or 
are otherwise no longer valid;
    (4) You are not operating in accordance with your plan; or
    (5) The plan's approval has expired.


Sec.  155.4025  Definitions.

    For the purposes of this subpart, the following definitions apply:
    Assessment of structural stability means completion of a vessel's 
stability and structural integrity assessment through the use of a 
salvage software program. The data used for the calculations would 
include information collected by the on-scene salvage professional. The 
assessment is intended to allow sound decisions to be made for 
subsequent salvage efforts. In addition, the assessment must be 
consistent with the conditions set forth in 33 CFR 155.240 and 155.245, 
as applicable.
    Boundary lines are lines drawn following the general trend of the 
seaward, highwater shorelines and lines continuing the general trend of 
the seaward, highwater shorelines across entrances to small bays, 
inlets and rivers as defined in 46 CFR 7.5(c).
    Captain of the Port (COTP) city means the city which is the 
geographical location of the COTP office. COTP city locations are 
listed in 33 CFR part 3.
    Continental United States (CONUS) means the contiguous 48 States 
and the District of Columbia.
    Contract or other approved means is any one of the following:
    (1)(i) A written contractual agreement between a vessel owner or 
operator and resource provider. This agreement must expressly provide 
that the resource provider is capable of, and intends to commit to, 
meeting the plan requirements.
    (ii) A written certification that the personnel, equipment, and 
capabilities required by this subpart are available and under the 
vessel owner or operator's direct control. If the planholder has 
personnel, equipment and capabilities under their direct control, they 
need not contract those items with a resource provider.
    (iii) An alternative approved by the Coast Guard (Commandant, 
Director of Prevention Policy (CG-54)) and submitted in accordance with 
33 CFR 155.1065(f).
    (2) As part of the contract or other approved means you must 
develop and sign, with your resource provider, a written funding 
agreement. This

[[Page 80650]]

funding agreement is to ensure that salvage and marine firefighting 
responses are not delayed due to funding negotiations. The funding 
agreement must include a statement of how long the agreement remains in 
effect, and must be provided to the Coast Guard for VRP approval. In 
addition any written agreement with a public resource provider must be 
included in the planholder's Vessel Response Plan (VRP).
    Diving services support means divers and their equipment to support 
salvage operations. This support may include, but not be limited to, 
underwater repairs, welding, placing lifting slings, or performing 
damage assessments.
    Emergency lightering is the process of transferring oil between two 
ships or other floating or land-based receptacles in an emergency 
situation and may require pumping equipment, transfer hoses, fenders, 
portable barges, shore based portable tanks, or other equipment that 
circumstances may dictate.
    Emergency towing, also referred to as rescue towing, means the use 
of towing vessels that can pull, push or make-up alongside a vessel. 
This is to ensure that a vessel can be stabilized, controlled or 
removed from a grounded position. Towing vessels must have the proper 
horsepower or bollard pull compatible with the size and tonnage of the 
vessel to be assisted.
    External emergency transfer operations means the use of external 
pumping equipment placed on board a vessel to move oil from one tank to 
another, when the vessel's own transfer equipment is not working.
    External firefighting teams means trained firefighting personnel, 
aside from the crew, with the capability of boarding and combating a 
fire on a vessel.
    External vessel firefighting systems mean firefighting resources 
(personnel and equipment) that are capable of combating a fire from 
other than on board the vessel. These resources include, but are not 
limited to, fire tugs, portable fire pumps, airplanes, helicopters, or 
shore side fire trucks.
    Funding agreement is a written agreement between a resource 
provider and a planholder that identifies agreed upon rates for 
specific equipment and services to be made available by the resource 
provider under the agreement. The funding agreement is to ensure that 
salvage and marine firefighting responses are not delayed due to 
funding negotiations. This agreement must be part of the contract or 
other approved means and must be submitted for review along with the 
VRP.
    Great Lakes means Lakes Superior, Michigan, Huron, Erie, and 
Ontario, their connecting and tributary waters, the Saint Lawrence 
River as far as Saint Regis, and adjacent port areas.
    Heavy lift means the use of a salvage crane, A-frames, hydraulic 
jacks, winches, or other equipment for lifting, righting, or 
stabilizing a vessel.
    Inland area means the area shoreward of the boundary lines defined 
in 46 CFR part 7, except that in the Gulf of Mexico, it means the area 
shoreward of the lines of demarcation (COLREG lines) as defined in 
Sec. Sec.  80.740 through 80.850 of this chapter. The inland area does 
not include the Great Lakes.
    Making temporary repairs means action to temporarily repair a 
vessel to enable it to safely move to a shipyard or other location for 
permanent repairs. These services include, but are not limited to, 
shoring, patching, drill stopping, or structural reinforcement.
    Marine firefighting means any firefighting related act undertaken 
to assist a vessel with a potential or actual fire, to prevent loss of 
life, damage or destruction of the vessel, or damage to the marine 
environment.
    Marine firefighting pre-fire plan means a plan that outlines the 
responsibilities and actions during a marine fire incident. The 
principle purpose is to explain the resource provider's role, and the 
support which can be provided, during marine firefighting incidents. 
Policies, responsibilities and procedures for coordination of on-scene 
forces are provided in the plan. It should be designed for use in 
conjunction with other state, regional and local contingency and 
resource mobilization plans.
    Nearshore area means the area extending seaward 12 miles from the 
boundary lines defined in 46 CFR part 7, except in the Gulf of Mexico. 
In the Gulf of Mexico, a nearshore area is one extending seaward 12 
miles from the line of demarcation (COLREG lines) as defined in 
Sec. Sec.  80.740 through 80.850 of this chapter.
    Offshore area means the area up to 38 nautical miles seaward of the 
outer boundary of the nearshore area.
    On-site fire assessment means that a marine firefighting 
professional is on scene, at a safe distance from the vessel or on the 
vessel, who can determine the steps needed to control and extinguish a 
marine fire in accordance with a vessel's stability and structural 
integrity assessment if necessary.
    On-site salvage assessment means that a salvage professional is on 
scene, at a safe distance from the vessel or on the vessel, who has the 
ability to assess the vessel's stability and structural integrity. The 
data collected during this assessment will be used in the salvage 
software calculations and to determine necessary steps to salve the 
vessel.
    Other refloating methods means those techniques for refloating a 
vessel aside from using pumps. These services include, but are not 
limited to, the use of pontoons, air bags or compressed air.
    Outside continental United States (OCONUS) means Alaska, Hawaii, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the United 
States Virgin Islands, the Commonwealth of the Northern Marianas, and 
any other territory or possession of the United States.
    Primary resource provider means a resource provider listed in the 
vessel response plan as the principal entity contracted for providing 
specific salvage and/or marine firefighting services and resources, 
when multiple resource providers are listed for that service, for each 
of the COTP zones in which a vessel operates. The primary resource 
provider will be the point of contact for the planholder, the Federal 
On Scene Coordinator (FOSC) and the Unified Command, in matters related 
to specific resources and services, as required in Sec.  155.4030(a).
    Remote assessment and consultation means contacting the salvage 
and/or marine firefighting resource providers, by phone or other means 
of communications to discuss and assess the situation. The person 
contacted must be competent to consult on a determination of the 
appropriate course of action and initiation of a response plan.
    Resource provider means an entity that provides personnel, 
equipment, supplies, and other capabilities necessary to perform 
salvage and/or marine firefighting services identified in the response 
plan, and has been arranged by contract or other approved means. The 
resource provider must be selected in accordance with Sec.  155.4050. 
For marine firefighting services, resource providers can include public 
firefighting resources as long as they are able, in accordance with the 
requirements of Sec.  155.4045(d), and willing to provide the services 
needed.
    Salvage means any act undertaken to assist a vessel in potential or 
actual danger, to prevent loss of life, damage or destruction of the 
vessel and release of its contents into the marine environment.
    Salvage plan means a plan developed to guide salvage operations 
except those identified as specialized salvage operations.

[[Page 80651]]

    Special salvage operations plan means a salvage plan developed to 
carry out a specialized salvage operation, including heavy lift and/or 
subsurface product removal.
    Subsurface product removal means the safe removal of oil from a 
vessel that has sunk or is partially submerged underwater. These 
actions can include pumping or other means to transfer the oil to a 
storage device.
    Underwater vessel and bottom survey means having salvage resources 
on scene that can perform examination and analysis of the vessel's hull 
and equipment below the water surface. These resources also include the 
ability to determine the bottom configuration and type for the body of 
water. This service can be accomplished through the use of equipment 
such as sonar, magnetometers, remotely operated vehicles or divers. 
When divers are used to perform these services, the time requirements 
for this service apply and not those of diving services support.


Sec.  155.4030  Required salvage and marine firefighting services to 
list in response plans.

    (a) You must identify, in the geographical-specific appendices of 
your VRP, the salvage and marine firefighting services listed in Table 
155.4030(b)--Salvage and Marine Firefighting Services and Response 
Timeframes. Additionally, you must list those resource providers that 
you have contracted to provide these services. You may list multiple 
resource providers for each service, but you must identify which one is 
your primary resource provider for each Captain of the Port (COTP) zone 
in which you operate. A method of contact, consistent with the 
requirements in Sec. Sec.  155.1035(e)(6)(ii) and 155.1040(e)(5)(ii), 
must also be listed, in the geographical-specific appendices of your 
VRP, adjacent to the name of the resource provider.
    (b) Table 155.4030(b) lists the required salvage and marine 
firefighting services and response timeframes.

               Table 155.4030(b)--Salvage and Marine Firefighting Services and Response Timeframes
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                              Service           Location of incident response activity
                                                               timeframe
----------------------------------------------------------------------------------------------------------------
(1) Salvage.......................................................                      CONUS: nearshore       CONUS: offshore area;
                                                                    area; inland waters;                  and OCONUS: < or = 50
                                                                        Great Lakes; and            miles from COTP city
                                                                                       OCONUS: < or = 12(hours)
                                                                             miles from COTP city
                                                                                 (hours)
(i) Assessment & Survey:
    (A) Remote assessment and consultation........................                     1                      1
    (B) Begin assessment of structural stability..................                     3                      3
    (C) On-site salvage assessment................................                     6                     12
    (D) Assessment of structural stability........................                    12                     18
    (E) Hull and bottom survey....................................                    12                     18
(ii) Stabilization:
    (A) Emergency towing..........................................                    12                     18
    (B) Salvage plan..............................................                    16                     22
    (C) External emergency transfer operations....................                    18                     24
    (D) Emergency lightering......................................                    18                     24
    (E) Other refloating methods..................................                    18                     24
    (F) Making temporary repairs..................................                    18                     24
    (G) Diving services support...................................                    18                     24
(iii) Specialized Salvage Operations:
    (A) Special salvage operations plan...........................                    18                     24
    (B) Subsurface product removal................................                    72                     84
    (C) Heavy lift \1\............................................             Estimated              Estimated
----------------------------------------------------------------------------------------------------------------
(2) Marine firefighting....................       At pier (hours)                       CONUS: Nearshore      *COM041*CONUS:
                                                                    area; inland waters;     Offshore area; and
                                                                        Great Lakes; and                      OCONUS: < or = 50
                                                                                       OCONUS: < or miles from COTP city
                                                                             miles from COTP city       (hours)
                                                                                 (hours)
(i) Assessment & Planning:
    (A) Remote assessment and consultation.                     1                      1                      1
    (B) On-site fire assessment............                     2                      6                     12
(ii) Fire Suppression:
    (A) External firefighting teams........                     4                      8                     12
    (B) External vessel firefighting                            4                     12                     18
     systems...............................
----------------------------------------------------------------------------------------------------------------
\1\ Heavy lift services are not required to have definite hours for a response time. The planholder must still
  contract for heavy lift services, provide a description of the heavy lift response and an estimated response
  time when these services are required, however, none of the timeframes listed in the table in Sec.
  155.4030(b) will apply to these services.

    (c) Integration into the response organization. You must ensure 
that all salvage and marine firefighting resource providers are 
integrated into the response organizations listed in your plans. The 
response organization must be consistent with the requirements set 
forth in Sec. Sec.  155.1035(d), 155.1040(d) and 155.1045(d).
    (d) Coordination with other response resource providers, response 
organizations and OSROs. Your plan must include provisions on how the 
salvage and marine firefighting resource providers will coordinate with 
other response resources, response organizations, and OSROs. For 
example, you will need to identify how salvage

[[Page 80652]]

and marine firefighting assessment personnel will coordinate response 
activity with oil spill removal organizations. For services that, by 
law, require public assistance, there must be clear guidelines on how 
service providers will interact with those organizations. The 
information contained in the response plan must be consistent with 
applicable Area Contingency Plans (ACPs) and the National Oil and 
Hazardous Substances Pollution Contingency Plan as found in Sec.  
155.1030(h).
    (e) Ensuring the proper emergency towing vessels are listed in your 
VRP. Your VRP must identify towing vessels with the proper 
characteristics, horsepower, and bollard pull to tow your vessel(s). 
These towing vessels must be capable of operating in environments where 
the winds are up to 40 knots.
    (f) Ensuring the proper type and amount of transfer equipment is 
listed in your VRP. Your salvage resource provider must be able to 
bring on scene a pumping capability that can offload the vessel's 
largest cargo tank in 24 hours of continuous operation. This is 
required for both emergency transfer and lightering operations.
    (g) Ensuring firefighting equipment is compatible with your vessel. 
Your plan must list the proper type and amount of extinguishing agent 
needed to combat a fire involving your vessel's cargo, other contents, 
and superstructure. If your primary extinguishing agent is foam or 
water, you must identify resources in your plan that are able to pump, 
for a minimum of 20 minutes, at least 0.16 gallons per minute per 
square foot of the deck area of your vessel, or an appropriate rate for 
spaces that this rate is not suitable for and if needed, an adequate 
source of foam. These resources described are to be supplied by the 
resource provider, external to the vessel's own firefighting system.
    (h) Ensuring the proper subsurface product removal. You must have 
subsurface product removal capability if your vessel(s) operates in 
waters of 40 feet or more. Your resource provider must have the 
capability of removing cargo and fuel from your sunken vessel to a 
depth equal to the maximum your vessel operates in up to 150 feet.


Sec.  155.4032  Other resource provider considerations.

    (a) Use of resource providers not listed in the VRP. If another 
resource provider, not listed in the approved plan for the specific 
service required, is to be contracted for a specific response, 
justification for the selection of that resource provider needs to be 
provided to, and approved by, the FOSC. Only under exceptional 
circumstances will the FOSC authorize deviation from the resource 
provider listed in the approved vessel response plan in instances where 
that would best affect a more successful response.
    (b) Worker health and safety. Your resource providers must have the 
capability to implement the necessary engineering, administrative, and 
personal protective equipment controls to safeguard their workers when 
providing salvage and marine firefighting services, as found in 33 CFR 
155.1055(e) and 29 CFR 1910.120(q).


Sec.  155.4035  Required pre-incident information and arrangements for 
the salvage and marine firefighting resource providers listed in 
response plans.

    (a) You must provide the information listed in Sec. Sec.  
155.1035(c) and 155.1040(c) to your salvage and marine firefighting 
resource providers.
    (b) Marine firefighting pre-fire plan.
    (1) You must prepare a vessel pre-fire plan in accordance with NFPA 
1405, Guide for Land-Based Firefighters Who Respond to Marine Vessel 
Fires, Chapter 9 (Incorporation by reference, see Sec.  155.140). If 
the planholder's vessel pre-fire plan is one that meets another 
regulation or international standard such as International Convention 
for the Safety of Life At Sea (SOLAS), a copy of that specific fire 
plan must also be given to the resource provider(s) and be attached to 
the VRP.
    (2) The marine firefighting resource provider(s) you are required 
to identify in your plan must be given a copy of the plan. 
Additionally, they must certify in writing to you that they find the 
plan acceptable and agree to implement it to mitigate a potential or 
actual fire.
    (3) If a marine firefighting resource provider subcontracts to 
other organizations, each subcontracted organization must also receive 
a copy of the vessel pre-fire plan.


Sec.  155.4040  Response times for each salvage and marine firefighting 
service.

    (a) You must ensure, by contract or other approved means, that your 
resource provider(s) is capable of providing the services within the 
required timeframes.
    (1) If your vessel is at the pier or transiting a COTP zone within 
the continental United States (CONUS), the timeframes in Table 
155.4030(b) apply as listed.
    (2) If your vessel is at the pier or transiting a COTP zone outside 
the continental United States (OCONUS), the timeframes in Table 
155.4030(b) apply as follows:
    (i) Inland waters and nearshore area timeframes apply from the COTP 
city out to and including the 12 mile point.
    (ii) Offshore area timeframes apply from 12 to 50 miles outside the 
COTP city.
    (3) If your vessel transits within an OCONUS COTP zone that is 
outside the areas described in paragraph (a)(2) of this section, but 
within the inland waters or the nearshore or offshore area, you must 
submit in writing, in your plan, the steps you will take to address 
salvage and marine firefighting needs in the event these services are 
required.
    (b) The timeframe starts when anyone in your response organization 
receives notification of a potential or actual incident. It ends when 
the service reaches the ship, the outer limit of the nearshore area, 
the outer limit of the offshore area, the 12 or 50-mile point from the 
COTP city, or a point identified in your response plan for areas 
OCONUS.
    (c) Table 155.4040(c) provides additional amplifying information 
for vessels transiting within the nearshore and offshore areas of CONUS 
or within 50 miles of an OCONUS COTP city.

            Table 155.4040(c)--Response Timeframe End Points
------------------------------------------------------------------------
           Service                    Response timeframe ends when
------------------------------------------------------------------------
(1) Salvage:                   .........................................
    (i) Remote assessment and  Salvor is in voice contact with Qualified
     consultation.              Individual (QI)/Master/Operator.
    (ii) Begin assessment of   A structural assessment of the vessel has
     structural stability.      been initiated.
    (iii) On-site salvage      Salvor on board vessel.
     assessment.
    (iv) Assessment of         Initial analysis is completed. This is a
     structural stability.      continual process, but at the time
                                specified an analysis needs to be
                                completed.
    (v) Hull and bottom        Survey completed.
     survey.
    (vi) Emergency towing....  Towing vessel on scene.
    vii) Salvage plan........  Plan completed and submitted to Incident
                                Commander/Unified Command.

[[Page 80653]]


    (viii) External emergency  External pumps on board vessel.
     transfer operations.
    (ix) Emergency lightering  Lightering equipment on scene and
                                alongside.
    (x) Other refloating       Salvage plan approved & resources on
     methods.                   vessel.
    (xi) Making temporary      Repair equipment on board vessel.
     repairs.
    (xii) Diving services      Required support equipment & personnel on
     support.                   scene.
    (xiii) Special salvage     Plan completed and submitted to Incident
     operations plan.           Commander/Unified Command.
    (xiv) Subsurface product   Resources on scene.
     removal.
    (xv) Heavy lift \1\......  Estimated.
(2) Marine Firefighting:       .........................................
    (i) Remote assessment and  Firefighter in voice contact with QI/
     consultation.              Master/Operator.
    (ii) On-site fire          Firefighter representative on site.
     assessment.
    (iii) External             Team and equipment on scene.
     firefighting teams.
    (iv) External vessel       Personnel and equipment on scene.
     firefighting systems.
------------------------------------------------------------------------
\1\ Heavy lift services are not required to have definite hours for a
  response time. The planholder must still contract for heavy lift
  services, provide a description of the heavy lift response and an
  estimated response time when these services are required, however,
  none of the timeframes listed in the table in Sec.   155.4030(b) will
  apply to these services.

    (d) How to apply the timeframes to your particular situation. To 
apply the timeframes to your vessel's situation, follow these 
procedures:
    (1) Identify if your vessel operates CONUS or OCONUS.
    (2) If your vessel is calling at any CONUS pier or an OCONUS pier 
within 50 miles of a COTP city, you must list the pier location by 
facility name or city and ensure that the marine firefighting resource 
provider can reach the locations within the specified response times in 
Table 155.4030(b).
    (3) If your vessel is transiting within CONUS inland waters, 
nearshore or offshore areas or the Great Lakes, you must ensure the 
listed salvage and marine firefighting services are capable of reaching 
your vessel within the appropriate response times listed in Table 
155.4030(b).
    (4) If your vessel is transiting within 12 miles or less from an 
OCONUS COTP city, you must ensure the listed salvage and marine 
firefighting services are capable of reaching a point 12 miles from the 
harbor of the COTP city within the nearshore area response times listed 
in Table 155.4030(b).
    (5) If your vessel is transiting between 12 and 50 miles from an 
OCONUS COTP city, you must ensure the listed salvage and marine 
firefighting services are capable of reaching a point 50 miles from the 
harbor of the COTP city within the offshore area response times listed 
in Table 155.4030(b).
    (6) If your vessel transits inland waters or the nearshore or 
offshore areas OCONUS, but is more than 50 miles from a COTP city, you 
must still contract for salvage and marine firefighting services and 
provide a description of how you intend to respond and an estimated 
response time when these services are required, however, none of the 
time limits listed in Table 155.4030(b) will apply to these services.


Sec.  155.4045  Required agreements or contracts with the salvage and 
marine firefighting resource providers.

    (a) You may only list resource providers in your plan that have 
been arranged by contract or other approved means.
    (b) You must obtain written consent from the resource provider 
stating that they agree to be listed in your plan. This consent must 
state that the resource provider agrees to provide the services that 
are listed in Sec. Sec.  155.4030(a) through 155.4030(h), and that 
these services are capable of arriving within the response times listed 
in Table 155.4030(b). This consent may be included in the contract with 
the resource provider or in a separate document.
    (c) This written consent must be available to the Coast Guard for 
inspection. The response plan must identify the location of this 
written consent, which must be:
    (1) On board the vessel; or
    (2) With a qualified individual located in the United States.
    (d) Public marine firefighters may only be listed out to the 
maximum extent of the public resource's jurisdiction, unless other 
agreements are in place. A public marine firefighting resource may 
agree to respond beyond their jurisdictional limits, but the Coast 
Guard considers it unreasonable to expect public marine firefighting 
resources to do this.


Sec.  155.4050  Ensuring that the salvors and marine firefighters are 
adequate.

    (a) You are responsible for determining the adequacy of the 
resource providers you intend to include in your plan.
    (b) When determining adequacy of the resource provider, you must 
select a resource provider that meets the following selection criteria 
to the maximum extent possible:
    (1) Resource provider is currently working in response service 
needed.
    (2) Resource provider has documented history of participation in 
successful salvage and/or marine firefighting operations, including 
equipment deployment.
    (3) Resource provider owns or has contracts for equipment needed to 
perform response services.
    (4) Resource provider has personnel with documented training 
certification and degree experience (Naval Architecture, Fire Science, 
etc.).
    (5) Resource provider has 24-hour availability of personnel and 
equipment, and history of response times compatible with the time 
requirements in the regulation.
    (6) Resource provider has on-going continuous training program. For 
marine firefighting providers, they meet the training guidelines in 
NFPA 1001, 1005, 1021, 1405, and 1561 (Incorporation by reference, see 
Sec.  155.140), show equivalent training, or demonstrate qualification 
through experience.
    (7) Resource provider has successful record of participation in 
drills and exercises.
    (8) Resource provider has salvage or marine firefighting plans used 
and approved during real incidents.
    (9) Resource provider has membership in relevant national and/or 
international organizations.
    (10) Resource provider has insurance that covers the salvage and/or 
marine firefighting services which they intend to provide.
    (11) Resource provider has sufficient up front capital to support 
an operation.

[[Page 80654]]

    (12) Resource provider has equipment and experience to work in the 
specific regional geographic environment(s) that the vessel operates in 
(e.g., bottom type, water turbidity, water depth, sea state and 
temperature extremes).
    (13) Resource provider has the logistical and transportation 
support capability required to sustain operations for extended periods 
of time in arduous sea states and conditions.
    (14) Resource provider has the capability to implement the 
necessary engineering, administrative, and personal protective 
equipment controls to safeguard the health and safety of their workers 
when providing salvage and marine firefighting services.
    (15) Resource provider has familiarity with the salvage and marine 
firefighting protocol contained in the local ACPs for each COTP area 
for which they are contracted.
    (c) A resource provider need not meet all of the selection criteria 
in order for you to choose them as a provider. They must, however, be 
selected on the basis of meeting the criteria to the maximum extent 
possible.
    (d) You must certify in your plan that these factors were 
considered when you chose your resource provider.


Sec.  155.4052  Drills and exercises.

    (a) A vessel owner or operator required by Sec. Sec.  155.1035 and 
155.1040 to have a response plan shall conduct exercises as necessary 
to ensure that the plan will function in an emergency. Both announced 
and unannounced exercises must be included.
    (b) The following are the minimum exercise requirements for vessels 
covered by this subpart:
    (1) Remote assessment and consultation exercises, which must be 
conducted quarterly;
    (2) Emergency procedures exercises, which must be conducted 
quarterly;
    (3) Shore-based salvage and shore-based marine firefighting 
management team tabletop exercises, which must be conducted annually;
    (4) Response provider equipment deployment exercises, which must be 
conducted annually;
    (5) An exercise of the entire response plan, which must be 
conducted every three years. The vessel owner or operator shall design 
the exercise program so that all components of the response plan are 
exercised at least once every three years. All of the components do not 
have to be exercised at one time; they may be exercised over the 3-year 
period through the required exercises or through an area exercise; and
    (6) Annually, at least one of the exercises listed in Sec.  
155.4052(b)(2) and (4) must be unannounced. An unannounced exercise is 
one in which the personnel participating in the exercise have not been 
advised in advance of the exact date, time, or scenario of the 
exercise.
    (7) Compliance with the National Preparedness for Response Exercise 
Program (PREP) Guidelines will satisfy the vessel response plan 
exercise requirements. These guidelines are available on the Internet 
at https://Homeport.uscg.mil/exercises. Once on that Web site, select 
the link for ``Preparedness for Response Exercise Program (PREP)'' and 
then select ``Preparedness for Response Exercise Program (PREP) 
Guidelines''. Compliance with an alternate program that meets the 
requirements of 33 CFR 155.1060(a), and has been approved under 33 CFR 
155.1065 will also satisfy the vessel response plan exercise 
requirements.


Sec.  155.4055  Temporary waivers from meeting one or more of the 
specified response times.

    (a) You may submit a request for a temporary waiver of a specific 
response time requirement, if you are unable to identify a resource 
provider who can meet the response time.
    (b) Your request must be specific as to the COTP zone, operating 
environment, salvage or marine firefighting service, and response time.
    (c) Emergency lightering requirements set forth in Sec.  
155.4030(b) will not be subject to the waiver provisions of this 
subpart.
    (d) You must submit your request to the Commandant, Director of 
Prevention Policy (CG-54), via the local COTP for final approval. The 
local COTP will evaluate and comment on the waiver before forwarding 
the waiver request, via the District to the Commandant (CG-54) for 
final approval.
    (e) Your request must include the reason why you are unable to meet 
the time requirements. It must also include how you intend to correct 
the shortfall, the time it will take to do so, and what arrangements 
have been made to provide the required response resources and their 
estimated response times.
    (f) Commandant, Director of Prevention Policy (CG-54), will only 
approve waiver requests up to a specified time period, depending on the 
service addressed in the waiver request, the operating environment, and 
other relevant factors. These time periods are listed in Table 
155.4055(g).
    (g) Table 155.4055(g) lists the service waiver time periods.

             Table 155.4055(g)--Service Waiver Time Periods
------------------------------------------------------------------------
                                                                Maximum
                                                                 waiver
                           Service                                time
                                                                 period
                                                                (years)
------------------------------------------------------------------------
(1) Remote salvage assessment & consultation.................          0
(2) Remote firefighting assessment & consultation............          0
(3) On-site salvage & firefighting assessment................          1
(4) Hull and bottom survey...................................          2
(5) Salvage stabilization services...........................          3
(6) Fire suppression services................................          4
(7) Specialized salvage operations...........................          5
------------------------------------------------------------------------

    (h) You must submit your waiver request 30 days prior to any plan 
submission deadlines identified in this or any other subpart of part 
155 in order for your vessel to continue oil transport or transfer 
operations.

    Dated: December 17, 2008.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security and Stewardship.
[FR Doc. E8-30604 Filed 12-30-08; 8:45 am]

BILLING CODE 4910-15-P
