[Federal Register: August 31, 2009 (Volume 74, Number 167)]
[Proposed Rules]
[Page 44969-45001]
[DOCID:fr31au09-46]

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Part III

Department of Homeland Security

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Coast Guard

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33 CFR Parts 151, 155, and 160

Nontank Vessel Response Plans and Other Vessel Response Plan
Requirements; Proposed Rule

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 151, 155, and 160

[Docket No. USCG-2008-1070]
(RIN 1625-AB27)

Nontank Vessel Response Plans and Other Vessel Response Plan
Requirements

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security, United States Coast
Guard, proposes this nontank vessel response plan rulemaking to further
protect the Nation from the threat of oil spills in the maritime
domain. The rule proposes regulations requiring owners or operators of
nontank vessels to prepare and submit oil spill response plans. The
Federal Water Pollution Control Act defines nontank vessels as self-
propelled vessels of 400 gross tons or greater that operate on the
navigable waters of the United States, carry oil of any kind as fuel
for main propulsion, and are not tank vessels. The proposed rule would
specify the content of a response plan, and among other issues, address
the requirement to plan for responding to a worst case discharge and a
substantial threat of such a discharge. Additionally, this proposed
rule would update the international Shipboard Oil Pollution Emergency
Plan (SOPEP) requirements that apply to certain nontank vessels and
tank vessels. Finally, this proposed rule would require vessel owners
and operators to submit their vessel response plan control number as
part of already required notice of arrival information. This rulemaking
supports the Coast Guard's strategic goals of protection of natural
resources and maritime mobility.

DATES: Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before November 30,
2009 or reach the Docket Management Facility by that date. Comments
sent to the Office of Management and Budget (OMB) on collection of
information must reach OMB on or before November 30, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-1070 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these methods. For
instructions on submitting comments, see the ``Public Participation and
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section
below.
    Collection of Information Comments: If you have comments on the
collection of information, you must also send comments to the Office of
Information and Regulatory Affairs (OIRA), Office of Management and
Budget. To ensure that your comments to OIRA are received on time, the
preferred methods are by e-mail to<EMAIL_ADDRESS>(include the docket number and ``Attention: Desk Officer for Coast
Guard, DHS'' in the subject line of the e-mail) or fax at<PHONE_NUMBER>.
An alternate, though slower, method is by U.S. mail to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attn: Desk Officer, U.S.
Coast Guard.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call Lieutenant Jarrod DeWitz, U.S. Coast Guard, Office of Vessel
Activities, Vessel Response Plan Review Team, telephone<PHONE_NUMBER>.
You may also e-mail questions to Jarrod.M.DeWitz@ uscg.mil.

    Note: The technical expertise for the development of this
proposed rule is credited to Commander Rob Smith. If you have
questions on viewing or submitting material to the docket, call Ms.
Renee V. Wright, Program Manager, Docket Operations, telephone 202-
366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Background and Purpose
    A. Tank and Nontank Vessels--Oil and Hazardous Substance
Discharge Response Plan Legislation
    B. Tank Vessels
    C. Nontank Vessels
    D. Access to the NVICs
    E. Shipboard Oil Pollution Emergency Plan (SOPEP)
    F. Notice of Arrival Requirements and Vessel Response Plans
    G. Customary International Law: Innocent Passage and Transit
Passage
    H. Definition of ``United States'' for Purposes of Vessel
Response Plan Requirements
IV. Discussion of Proposed Rule
V. Incorporation by Reference
VI. Regulatory Analyses
    A. Executive Order 12866
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    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

I. Public Participation and Request for Comments

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

A. Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2008-1070), indicate the specific section of this
document to which each comment applies, and give your reason for each
comment. We recommend that you include your name and a mailing address,
an e-mail address, or a phone number in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means, mail,
fax, or delivery to the Docket Management Facility at the address under
ADDRESSES; but please submit your comments and material by only one
means.
    To submit your comment online, go to http://www.regulations.gov and
click on the ``submit a comment'' box, which will then become
highlighted in blue. Insert ``USCG-2008-1070'' in the Keyword box,
click ``Search'', and then click on the balloon shape in the Actions
column. If you submit your comments by mail or hand delivery, submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider

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

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov at
any time. Enter the docket number for this rulemaking (USCG-2008-1070)
in the Keyword box, and click ``Search''. If you do not have access to
the internet, you may view the docket online by visiting the Docket
Management Facility in Room W12-140 on the ground floor of the
Department of Transportation West Building, 1200 New Jersey Avenue,
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. We have an agreement with the
Department of Transportation to use the Docket Management Facility.

C. Privacy Act

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

D. Public Meeting

    We plan to hold one or more public meetings. The time and place of
each public meeting will be announced by a later notice in the Federal
Register.

II. Abbreviations

2004 Act Coast Guard and Maritime Transportation Act of 2004 (Pub.
L. 108-293, 118 Stat. 102)
2006 Act Coast Guard and Maritime Transportation Act of 2006 (Pub.
L. 109-241, 120 Stat. 516)
AMPD Average most probable discharge
BLS Bureau of Labor Statistics
CAP Capability
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
DOT Department of Transportation
EDAC Effective daily application capability
EEZ Exclusive economic zone
eNOAD Electronic Notice of Arrival/Departure
FOSC Federal On-Scene Coordinator
FWPCA Federal Water Pollution Control Act (33 U.S.C. 1251 through
1387)
GSA Geographic-specific appendix
IAP Incident Action Plan
IMO International Maritime Organization
IOPP International Oil Pollution Prevention
ISM International Ship Management
ITB Integrated tug barge
MARPOL International Convention for the Prevention of Pollution from
Ships
MEPC Marine Environment Protection Committee
MISLE Marine Information for Safety and Law Enforcement
MMPD Maximum most probable discharge
MOA Memorandum of Agreement
MOU Memorandum of Understanding
MTR Marine transportation-related
NCP National Oil and Hazardous Substances Pollution Contingency Plan
(also known as National Contingency Plan)
NLS Noxious Liquid Substance
NM Nautical mile
NOA Notice of arrival
NTVRP Nontank vessel response plan
NVIC Navigation and Vessel Inspection Circular
NVMC National Vessel Movement Center
OCIMF Oil Companies International Marine Forum
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990 (Pub. L. 101-380, 104 Stat 484)
OSRO Oil spill removal organization
PV Present value
P&I Protection and Indemnity
PREP National Preparedness for Response Exercise Program
PWSA Ports and Waterways Safety Act (Pub. L. 92-340, 86 Stat. 424)
QI Qualified individual
SBA Small Business Administration
SLS Saint Lawrence Seaway
SLSDC Saint Lawrence Seaway Development Corporation
SOPEP Shipboard oil pollution emergency plans
SMT Spill management team
TVRP Tank vessel response plan
VRP Vessel response plan
UNCLOS United Nations Convention on the Law of the Sea, 1982
U.S.C. United States Code
WCD Worst case discharge

III. Background and Purpose

    This proposed rule is intended to improve our nation's pollution
response planning and preparedness posture and help limit the
environmental damage resulting from nontank vessel marine casualties.
    In recent years, several catastrophic nontank vessel oil spills
have threatened the marine environment along the coastal areas of the
United States. Among these spills were--
     The grounding of the M/V NEW CARISSA on the Oregon coast
on February 4, 1999, during a storm, which resulted in the loss of the
vessel and a spill of approximately 70,000 gallons of the 400,000
gallons of ``Bunker C'' fuel oil on board;
     The grounding of the M/V SELENDANG AYU in the Aleutian
Islands of Alaska on December 8, 2004, during a storm, which resulted
in the loss of the vessel and a spill of approximately 336,000 gallons
of fuel oil and diesel fuel; and
     The allision of the M/V COSCO BUSAN with the San
Francisco-Oakland Bay Bridge in San Francisco Bay on November 7, 2007,
in foggy conditions, which resulted in severe damage to the vessel and
a spill of approximately 53,000 gallons of fuel oil.
    Each of these spills resulted in damage to the marine environment,
including the loss of fish and wildlife. The spills have also affected
key maritime industry stakeholders by disrupting maritime commerce and
normal operations in the affected ports and waterways.
    Groundings, allisions, and collisions are among the many types of
casualties that may befall any vessel while at sea or in port. Congress
enacted the Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101-380, 104
Stat 484) following a series of tank vessel casualties, including most
notably the grounding of the M/V EXXON VALDEZ on March 24, 1989, on
Bligh Reef in Prince William Sound near Valdez, Alaska. OPA 90, which
applies primarily to tank vessels, focuses on preventing and mitigating
oil spills via actions in several broad areas, including Liability and
Compensation, Prevention, Preparedness, Response, and Research and
Development. Simultaneously at the international level, the
International Maritime Organization (IMO) enhanced world-wide pollution
prevention and response standards with a series of amendments to the
International Convention for the Prevention of Pollution from Ships,
1973 (MARPOL 73/78). Finally, in 2004 and 2006, Congress amended the
Federal Water Pollution Control Act (FWPCA), section 311(j)(5), to
require tank and nontank vessel owners and operators to prepare and
submit oil and hazardous substance discharge response plans to the
Coast Guard. The following sections will summarize these domestic and
international pollution preparedness and planning actions.

A. Tank and Nontank Vessels--Oil and Hazardous Substance Discharge
Response Plan Legislation

    Section 311(j)(5) of the Federal Water Pollution Control Act, 33
U.S.C. 1321(j)(5), as established by section 4202 of the Oil Pollution
Act of 1990; and as amended by the Coast Guard and Maritime
Transportation Act of 2004 (the 2004 Act), Pub. L. 108-293, 118 Stat.
102, and the Coast Guard and Maritime Transportation Act of 2006 (the
2006 Act), Pub. L. 109-241, 120 Stat. 516, sets out a statutory mandate
requiring tank and nontank vessel owners or operators to prepare and
submit oil or hazardous substance discharge response plans for certain

vessels operating on the navigable waters of the United States. A
response plan under this legislation must:
     Be consistent with the requirements of the National
Contingency Plan and Area Contingency Plans \1\;
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    \1\ FWPCA elements require consistency with 40 CFR 300.210
(Federal contingency plans section of the National Contingency Plan
(NCP)).
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     Identify the qualified individual having full authority to
implement removal actions, and require immediate communications between
that individual and the appropriate Federal official and the persons
providing personnel and equipment;
     Identify, and ensure by contract or other approved means
the availability of, private personnel and equipment necessary to
remove to the maximum extent practicable a worst case discharge
(including a discharge resulting from fire or explosion), and to
mitigate or prevent a substantial threat of such a discharge;
     Describe the training, equipment testing, periodic
unannounced drills, and response actions of persons on the vessel or at
the facility, to be carried out under the plan to ensure the safety of
the vessel or facility and to mitigate or prevent the discharge, or the
substantial threat of a discharge;
     Be updated periodically; and
     Be resubmitted for approval of each significant change.

B. Tank Vessels

    The response plan regulations for tank vessels were established
during a previous rulemaking (61 FR 1052, January 12, 1996) and are
located at 33 CFR part 155, subpart D. It is important to briefly
discuss those regulations, because the proposed rule for nontank
vessels is similar to the tank vessel regulations.
    Congress enacted OPA 90 in response to several marine pollution
incidents. Section 4202 of OPA 90 amended section 311(j) of the FWPCA
(33 U.S.C. 1321(j) by, among other requirements, requiring tank vessel
owners or operators to prepare and submit 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.
With the exceptions listed in paragraph (c) of 33 CFR 155.1015, these
tank vessel response plan requirements apply to each vessel that
carries oil in bulk as cargo or oil cargo residue, and that:
     Is a vessel of the United States;
     Operates on the navigable waters of the United States; or
     Transfers oil in a port or place subject to the
jurisdiction of the United States.
    These requirements also apply to each vessel that engages in oil
lightering operations in the marine environment beyond the baseline
from which the territorial sea is measured, when the cargo lightered is
destined for a port or place subject to the jurisdiction of the United
States.

C. Nontank Vessels

    On August 9, 2004, the President signed the Coast Guard and
Maritime Transportation Act of 2004. Section 701 of the 2004 Act
amended subsections 311(a) and (j) of the FWPCA by requiring nontank
vessel owners or operators to prepare and submit oil discharge response
plans no later than August 8, 2005. The 2004 Act defines a ``nontank
vessel'' as a self-propelled vessel of 400 gross tons or greater, other
than a tank vessel, that carries oil of any kind as fuel for main
propulsion, and that is a vessel of the United States or operates on
the navigable waters of the United States.
    In addition to the preparation and submission of response plans by
nontank vessel owners or operators, the 2004 Act also requires the
issuance of response plan regulations detailing the requisite
components of a response plan. In consideration of the time required to
publish the regulations, and in an effort to assist industry in meeting
the August 2005 statutory deadline, the Coast Guard announced the
availability of the Navigation and Vessel Inspection Circular 01-05
(NVIC 01-05) in the Federal Register on February 16, 2005 (70 FR 7955).
NVIC 01-05 provides the public with guidance on the preparation and
submission of oil spill response plans until regulations are in effect.
    Later, on June 24, 2005, the Coast Guard published further response
plan guidance in a Notice and Request for Comments (70 FR 36649). That
notice addressed concerns on the size of the vessel population to be
affected by the 2004 Act; Coast Guard's enforcement of the 2004 Act;
and the Coast Guard's actions to assist the public in conforming to the
mandates of the 2004 Act.
    In February 2006, as a result of questions received from the marine
industry, the Coast Guard announced the availability of Change 1 to
NVIC 01-05 (71 FR 9367, February 23, 2006). Change 1 to NVIC 01-05
provided guidance to the public on how to draft a nontank vessel
response plan, suggested plan content, and addressed issues of concern
regarding the development of these plans. Additionally, NVIC 01-05
Change 1 discusses the Coast Guard process for issuing Interim
Operating Authorization letters to nontank vessel owners or operators
to document interim compliance with 33 U.S.C. 1321(j)(5).
    Finally, in July 2006, Congress amended the definition of nontank
vessel in the Coast Guard and Maritime Transportation Act of 2006 (2006
Act). Section 608 of the 2006 Act clarified the tonnage applicability
of this statutory requirement, and therefore this proposed rule, by
setting the tonnage threshold as 400 gross tons or greater, as measured
under the convention measurement system in 46 U.S.C. 14302 or the
regulatory measurement system of 46 U.S.C. 14502 for vessels not
measured under 46 U.S.C. 14302. The 2006 Act further established that
it applies to vessels that operate on the navigable waters of the
United States, and it referenced a 12 nm territorial seas for those
navigable waters, as defined in 46 U.S.C. 2101.

D. Access to the NVICs

    A copy of the nontank vessel response plan NVICs can be found in
the docket at http://www.regulations.gov and at http://www.uscg.mil/hq/
g-m/nvic/. For those individuals without internet access, a copy of the
NVIC may be obtained by contacting the Vessel Response Plan (VRP)
Program staff at<PHONE_NUMBER> or your local U.S. Coast Guard Sector
Office.

E. Shipboard Oil Pollution Emergency Plan (SOPEP)

    In addition to establishing a regulation for the preparation and
submission of oil spill response plans for nontank vessels, this
proposed rule would align our domestic shipboard oil pollution
emergency plan (SOPEP) requirements in 33 CFR 151.26 with the current
international SOPEP requirements reflected in Annex I of the
International Convention for the Prevention of Pollution from Ships,
1973, as modified by the Protocol of 1978, as amended (MARPOL Annex I).
    MARPOL Annex I contains international regulations for the
prevention of pollution by oil. The Act to Prevent Pollution from Ships
(33 U.S.C. 1901 et seq.) authorizes the Coast Guard to administer and
enforce MARPOL Annex I and certain other MARPOL Annexes.
    In 1991, in response to Article 3(1)(a) of the International
Convention on Oil Pollution Preparedness, Response and Co-operation,
1990, the Marine Environment Protection Committee (MEPC) of the
International Maritime Organization (IMO) adopted MARPOL

Annex I, Regulation 26. This regulation established an international
requirement for SOPEPs and set out:
     Procedures to be followed to report an oil spill;
     Requirements to provide a list of authorities or persons
to be contacted in the event of an oil pollution incident;
     Requirements to provide a detailed description of the
immediate actions to mitigate the impact of a spill; and
     Procedures and point of contact information for
coordinating shipboard action with national and local authorities in
combating a pollution incident.
    In 1994, the Coast Guard issued regulations requiring all U.S. flag
oil tankers of 150 gross tons and above and all other U.S. flag ships
of 400 gross tons and above to carry approved SOPEPs (59 FR 51332,
October 7, 1994). These regulations in 33 CFR part 151 implemented the
requirements of Regulation 26 of MARPOL Annex I and required foreign
oil tankers of 150 gross tons and above and other foreign ships of 400
gross tons and above to carry on board a SOPEP approved by its flag
State as evidence of compliance with Regulation 26 when in the
navigable waters of the United States.
    Since 1994, the Coast Guard has updated our SOPEP regulations
twice. Once, in 1997, to implement the provisions of Article 15 of the
Protocol on Environmental Protection to the Antarctic Treaty and
address response to pollution from vessels (62 FR 18045, April 14,
1997) and once in 2001, when we inserted a reference to IMO Resolution
A.851(20) that had superseded an earlier IMO resolution (66 FR 55571,
November 2, 2001).
    In 2004, the IMO MEPC adopted Resolution MEPC.117(52) that revised
MARPOL Annex I and redesignated Regulation 26 as Regulation 37. This
revision incorporated new SOPEP guidelines from IMO Resolution
MEPC.86(44), which are intended to assist parties to MARPOL Annex I in
developing regulations for domestic implementation of Regulation 37.
These changes to Regulation 37 pertain to required SOPEP text,
additional categories addressing steps to control discharges, crew
personnel assignments, and required notifications. Also, Regulation 37
requires all oil tankers of 5,000 tons deadweight or more to have
prompt access to computerized, shore-based damage stability and
residual structural strength calculation programs. While the oil tanker
amendment is already reflected elsewhere in our domestic regulation, 33
CFR 155.240, this proposed rule would align our domestic SOPEP
requirements in 33 CFR 151.26 with the current international SOPEP
requirements reflected in MARPOL Annex I, Regulation 37.

F. Notice of Arrival Requirements and Vessel Response Plans

    Under authority of the Ports and Waterways Safety Act (PWSA) (Pub.
L. 92-340, 86 Stat. 424), as amended, the Coast Guard has established
notice of arrival (NOA) requirements in 33 CFR part 160. These NOA
regulations require certain vessels bound for a U.S. port or place to
submit information to the Coast Guard, including information about the
vessel and its voyage.
    These NOA regulations do not currently require submission of the
vessel response plan control number assigned by the Coast Guard to
VRPs. For purposes of protecting navigation and the marine environment,
this VRP-related addition to NOA reporting requirements is being
proposed under authority of section 4 of the PWSA, 33 U.S.C. 1223. This
additional information would better enable the Coast Guard to determine
if a vessel has an approved VRP geographic-specific appendix (GSA) for
the Captain of the Port (COTP) zone in which the vessel intends to
call.

G. Customary International Law: Innocent Passage and Transit Passage

Innocent Passage
    The Supreme Court has long held that, unless no other construction
is possible, statutes of Congress must be construed consistent with
those principles of international law recognized by the United States.
Lauritzen v. Larsen, 345 U.S. 571, 578 (1953); Murray v. The Charming
Betsey, 6 U.S. (2 Cranch.) 64, 118 (1804). The Coast Guard interprets
``innocent passage'' in territorial seas consistent with customary
international law as reflected in the 1982 United Nations Convention on
the Law of the Sea (UNCLOS), principally articles 17 through 21. In
1983, President Reagan issued policy guidance for the Federal
government, requiring compliance with the navigational provisions of
the UNCLOS. All subsequent Administrations have confirmed that approach
to the law of the sea, and have sought to promote the inclusive rights
of innocent passage and transit passage in coastal waters worldwide.
    Existing vessel response plan regulations for tank vessels in 33
CFR part 155, subpart D, apply to vessels that operate on the navigable
waters of the United States or transfer oil in a port or place subject
to the jurisdiction of the United States, but specifically exclude
foreign flag vessels merely engaged in innocent passage. See 33 CFR
155.1015(c)(7). In this proposed rule, we are expanding the
jurisdictional scope of the regulations. However, we have included an
exception for foreign nontank vessels engaged in innocent passage. See
proposed 33 CFR 155.1015(c)(7) and 155.5015(c)(2).
    The requirement that a vessel response plan include geographic-
specific appendices for each COTP zone a vessel transits has caused
some confusion with respect to innocent passage through our territorial
seas, perhaps because some COTP zones extend beyond the territorial
seas and to the outer boundary of the exclusive economic zone (EEZ).
See definition of COTP zone found in 33 CFR 155.1020. For purposes of
nontank vessel response plan (NTVRP) regulations, our territorial seas
extend out 12 nautical miles (nm) from the baseline from which the
territorial sea is measured, 33 CFR 2.22(a)(1), while the EEZ normally
extends out 200 nm seaward of the baseline. 33 CFR 2.30.
    If a foreign flag vessel is subject to Coast Guard regulations
requiring it to have a USCG-approved vessel response plan, it would
also be required to have a Coast Guard approved geographic-specific
appendix for each COTP Zone where it intends to operate or transit
through. See existing 33 CFR 155.1035(i), 155.1040(j) and 155.1045(i),
and proposed 33 CFR 155.5035(i). However, a vessel merely engaged in
innocent passage (see proposed 33 CFR 155.1015(c)(7) and
155.5015(c)(2)) transiting through a COTP zone is not required to
submit a vessel response plan.
    If a vessel is departing a foreign port and is bound for a U.S.
port and must cross through one or several COTP zones in order to get
there, the vessel would have to have a USCG-approved vessel response
plan and an approved geographic-specific appendix for each of the COTP
zones that it crosses, regardless if it intends to call upon the
respective ports within these COTP zones to transfer cargo, take on
bunkers, or engage in other activities. Geographic-specific appendices
would need to be submitted and approved for each COTP zone that a
vessel intends to transit through while calling upon the United States.
Transit Passage
    Transit passage through straits used for international navigation
is a more inclusive right than innocent passage, extending to aircraft
overflights, submerged transits, and transits of other

vessels in their normal mode of operations. UNCLOS, Arts. 37-39.
International law provides that vessels passing through U.S. waters in
transit passage may not pollute, conduct any other activity not having
a direct bearing on transit, or engage in activities otherwise
proscribed by international law. UNCLOS, Arts. 37-39. In most respects,
however, coastal States may not suspend or even hamper the right of
vessels to engage in transit passage. UNCLOS, Art. 44.
    The term `coastal State' in this proposed rule refers to a nation
off whose coast a ship is transiting without calling at its internal
waters, ports, or roadsteads. The explanation of this term is provided
to assist the reader in understanding the provisions of this proposed
rule, and is not intended as a comprehensive definition of this term.
Nor is it to be understood to express a view as to the jurisdictional
competence or authority of the nation in its capacity as a coastal
State.
    One area of the United States where transit passage is of special
concern is Unimak Pass in the Aleutian Islands. Unimak Pass is a strait
used for international navigation located on the Great Circle Route
from Asia to the West Coast of North America. Several thousand vessels
a year use the Pass. Because the Pass narrows to as little as 10 nm,
the 12-nm territorial sea of the United States overlaps the waters of
Unimak Pass. Although the United States is not yet Party to UNCLOS, the
United States has long accepted the navigational provisions of the
Convention, including Art. 34 through 44 relevant to transit passage,
as reflecting the applicable rules of customary international law.
Vessels transiting Unimak Pass, other straits used for international
navigation, and their approaches enjoy the right of transit passage.
    The United States may only exercise jurisdiction over foreign-
flagged vessels engaged in transit passage through Unimak Pass if the
vessel is either bound to or from a port or place in the United States,
or has engaged in activities that international law proscribes, such as
intentional acts of serious pollution. Acknowledging the applicable
rules of customary international law, we propose to exclude foreign
vessels in transit passage from VRP requirements when not bound for, or
departing from, the United States. See proposed 33 CFR 155.1015(c)(7)
and 155.5015(c)(2).
    Although transit passage applies with respect to passage through
straits, long-standing agreements between nations bordering a strait
used for international navigation may limit transit rights. For
example, the Saint Lawrence Seaway (SLS) is part of the Saint Lawrence
River and is an international river governed by long-standing
agreements between the United States and Great Britain/Canada.
Although, based solely on its geographic location and its extensive use
for international navigation, it could potentially be considered an
international strait under which the right of transit or non-
suspendable innocent passage applies, Part III of UNCLOS (Straits Used
for International Navigation) simply does not apply to the Saint
Lawrence. The Danube River and the Turkish Straits offer examples of
international waterways ``in which passage is regulated in whole or in
part by long-standing international conventions in force specifically
relating to such straits.'' UNCLOS, Art. 35(c). Nothing in Part III of
UNCLOS affects the long-standing legal regime in the Saint Lawrence
River.
    The international negotiations dealing with the Saint Lawrence
River go back as far as 1854, with serious additional discussions or
agreements in 1871, 1896, 1902, 1909, 1940, 1952, 1959, and 1963. The
Boundary Water Treaty concluded between the United States and the
United Kingdom (for Canada) of January 11, 1909, was a particularly
important watershed in the development of the Saint Lawrence River
regime. The focus of these various bilateral agreements was on three
key subjects: (1) The use of the river for navigation; (2) development
of its potential to produce hydro-electric power; and (3) combating
pollution.
    The U.S. Congress has enacted several statutes to carry out its
international responsibilities with respect to the Saint Lawrence
River. Particularly relevant is the establishment of the Saint Lawrence
Seaway Development Corporation, 33 U.S.C. 981-984, and the
International Joint Commission, 22 U.S.C. 267b-268. These responsible
agencies have issued implementing regulations. See, e.g., 33 CFR part
401 and 22 CFR part 401.
    The U.S. Secretary of Transportation has delegated authority under
Section 1223, 1224, 1225, 1227, 1231, and 1232 of Title 33 U.S.C. to
the Administrator of the Saint Lawrence Seaway Development Corporation
(SLSDC) with respect to the Saint Lawrence Seaway (SLS). The United
States Coast Guard has jurisdiction over all remaining navigable waters
of the United States.
    The U.S. Coast Guard and the SLSDC have established a Memorandum of
Understanding (MOU) and a Memorandum of Agreement (MOA) to address
areas of mutual interest and joint agency coordination. The current MOA
was signed in May of 1992 and was last updated in March of 1997. The
MOA addresses topics of concern such as policy, communications, ports
and waterways safety, vessel traffic control, pilotage, pollution,
vessel casualties, aids to navigation, search and rescue, vessel
boardings, and ice breaking. The recent MOA was signed in February of
2008 and addresses the collection of pre-arrival information from
vessels entering the SLS system.
    Although the SLSDC has exclusive jurisdiction upon the SLS, the
U.S. Coast Guard will, upon request and within its resources, assist
the SLSDC in the execution of those responsibilities. The U.S. Coast
Guard is the pre-designated Federal On-Scene Coordinator (FOSC) for oil
or hazardous materials spilled into the U.S. waters of the SLS. The
USCG and the SLSDC have agreed that, among other goals, the basic goals
of their joint oversight of vessels navigating upon the SLS is to
ensure that 100 percent of vessels are cleared in advance of Montreal
and to ensure that the international shipping on the Great Lakes and
the SLS continues to meet high standards of safety and environmental
protection.
    One of the points agreed upon by both the USCG and the SLSDC are
protocols for both screenings and inspections of vessels. The SLSDC is
authorized to ask the USCG to receive pre-arrival information for the
SLSDC electronically using the USCG's electronic Notice of Arrival/
Departure (eNOAD) system. In July of 2007, the SLSDC requested that the
USCG National Vessel Movement Center (NVMC) be the direct clearinghouse
for arrival information for vessels bound for the SLS.
    Passage through the Saint Lawrence River and into the Great Lakes
is completely regulated by the existing bilateral agreements and the
implementing regulations. Although there is a general presumption both
in international law and in the agreements that the Saint Lawrence
River is freely open to international navigation, any vessel operator
who wishes to take advantage of this presumption must comply with both
the applicable U.S. and Canadian statutory and regulatory provisions.
Therefore, this proposed rule would apply to vessels transiting through
the Saint Lawrence River.
    Jurisdiction of vessels on the navigable waters of the United
States is clearly conveyed by the FWPCA (33 U.S.C. 1321(j)(5)). Since
enforcement of the PWSA has been delegated to the SLSDC for the SLS,
the Coast Guard works closely with the SLSDC regarding how vessels
would be prohibited from

entering the SLS due to noncompliance with U.S. law.

H. Definition of ``United States'' for Purposes of Vessel Response Plan
Requirements

    While the FWPCA contains a definition of ``United States'', that
definition does not control in this context. For purposes of vessel oil
spill response plans, for tank and nontank vessels, the ``United
States'' as defined in Presidential Proclamation 5928 and 46 U.S.C. 114
establishes the geographic parameters for determining applicability of
vessel oil spill response plan requirements as set forth in 33 U.S.C.
132l(j)(5) (as amended). Because both OPA 90 and the 2006 Act
incorporate by reference definitions of tank vessel and nontank vessel,
respectively, from title 46 of the United States Code, neither the
definition of ``United States'' as set forth in OPA 90 (which created
Sec.  1321(j)(5)), nor as set forth in the FWPCA, applies to vessel oil
spill response plan requirements.
    The pertinent portion of the controlling definition of ``United
States'', unlike the FWPCA definition, does not include reference to
the ``Trust Territories of the Pacific Islands'', but instead refers to
``the Northern Mariana Islands, and any other territory or possession
of the United States.'' 46 U.S.C. 114. Of the former Trust Territories
of the Pacific Islands, only the Northern Mariana Islands is considered
part of the geographic definition of the United States for purposes of
this proposed rule.

IV. Discussion of Proposed Rule

    This discussion provides a broad overview of our proposed changes
to our SOPEP regulations, tank vessel oil spill response plan
regulations, nontank vessel oil spill response plan regulations, and
notice of arrival regulations. Immediately following the overview, we
discuss specific sections of the regulatory text.

Proposed Changes to SOPEP Regulations

    We propose alignment of our existing SOPEP regulations with current
IMO MARPOL 73/78 Shipboard Oil Pollution Emergency Plan regulations.
Compliance with our domestic SOPEP regulations serve as, among other
things, evidence of compliance with IMO MARPOL 73/78 Annex I
Regulations.
    The Coast Guard implemented MARPOL Annex I SOPEP standards in 33
CFR part 151. However, since our implementation, IMO has made
substantive changes to the international SOPEP standards. These changes
resulted in the promulgation of new IMO SOPEP requirements found at
MARPOL Annex I, Regulation 37 (previously these requirements were
located at Annex I, Regulation 26). Some of the changes found in
Regulation 37 include: changes to required SOPEP text; changes to the
categories for addressing steps to control discharges; changes for crew
personnel assignment requirements; and updates to the required
notifications in the event of an oil spill. (See generally, IMO
Resolution MEPC.86(44).) Further, the IMO implemented a new section to
Annex I requiring that all oil tankers of 5,000 tons deadweight or more
have prompt access to computerized, shore-based damage stability and
residual structural strength calculation programs. (See generally,
MEPC.117(52).) Amending our SOPEP regulations to reflect changes to the
international standard will, among other things, negate the need for
more than one oil spill response plan aboard a vessel.

Proposed Changes to Existing Tank Vessel Response Plan Regulations

    We propose amendment to existing tank vessel response plan
regulations found in 33 CFR part 155, subpart D, and the associated
appendices (B and C) to ensure the relevant portions of that part are
made applicable to nontank vessels and those nontank vessels carrying
oil as a cargo.

Proposed Nontank Vessel Response Plan Regulations

    The Coast Guard proposes new oil spill response plan regulations
for nontank vessels within 33 CFR part 155, subpart J. This rulemaking
will deliver field-tested and proven regulations to the nontank vessel
community, facilitating one national planning standard for applicable
vessels. Most of the criteria that would apply to nontank vessels
(e.g., general plan provisions, qualified individual (QI) & alternate
QI provisions, training, and exercise requirements) would remain
relatively consistent with subpart D. However, there are areas where
tank vessel planning standards would not be applicable due to the
differences in potential risk posed by nontank vessels. The proposed
resource requirements for a nontank vessel will be tiered, based on the
vessel's fuel and cargo oil capacity.
    This proposed rule would establish regulations under 33 U.S.C.
1321(j)(5) requiring response plans from owners or operators of nontank
vessels, which are defined by statute as self-propelled vessels of 400
gross tons or greater that operate on the navigable waters of the
United States as defined in 46 U.S.C. 2101(17a), carry oil of any kind
as fuel for main propulsion, and are not tank vessels. The proposed
rule would specify the content of a response plan, including the
requirement to plan for responding to a worst case discharge and a
substantial threat of such a discharge.

Proposed Changes to Notice of Arrival Regulations in 33 CFR Part 160

    We propose to amend 33 CFR part 160 by requiring vessel owners and
operators to submit their vessel response plan control number as part
of the notice of arrival information.

Section-specific Discussion of Proposed Rule Part 151 Discussion of
Proposed Changes

Section 151.09 Applicability (SOPEP)

    We propose to amend this section to relieve vessel owners and
operators who satisfy nontank vessel oil spill response plan
requirements under subpart J from the burden of preparing and
maintaining a separate oil spill response plan for the purposes of
meeting IMO MARPOL 73/78 Annex I, Regulation 37 Shipboard Oil Pollution
Emergency Plan requirements.

Section 151.26 Shipboard Oil Pollution Emergency Plans (SOPEP)

    We propose to amend this section to align our SOPEP regulations
with IMO Resolution MEPC.86(44) in the areas of oil spill reporting,
contact information, mitigation procedures, and response coordination.
Certain language, including use of the term ``lightening,'' is taken
directly from the SOPEP development guidelines. Lightening is the
process of making a vessel less heavy by removing certain items, such
as oil, cargo (liquid or dry), and any other items that are not
permanently affixed to the vessel. Further, we propose amending this
section so as to harmonize the data set reporting requirements for
SOPEP and VRP standards and to clarify the requirements for identifying
the party responsible for reporting the data. Also, for the purpose of
assisting with the interpretation of worst case discharge and the
harmonization of our regulation with MEPC.86(44), we propose amending
this section to clearly articulate requirements for the submission of
plans, requirements for drawings and ship-specific details, and
requirements for tank capacity descriptions. Next, we propose to amend
mitigation activity requirements so as to align our regulation with
Resolution MEPC.86(44) and harmonize existing tank vessel response plan

regulations with the proposed nontank vessel response plan mitigation
activities. Lastly, we propose to amend Sec.  151.26 to align our
regulation with Resolution MEPC.117(52), which requires oil tankers of
5,000 tons deadweight or more to have prompt access to computerized,
shore-based damage stability and residual structural strength
calculation programs.

Sections 151.27 and 151.28 Plan Submission, Approval, Review, and
Revision

    In Sec.  151.27, we propose the removal of the Coast Guard's
practice of returning a copy of the approved plan, however we will
continue to issue approval letters.
    In Sec. Sec.  151.27 and 151.28, we propose the use of a Coast
Guard form entitled ``Application for Approval/Revision of Vessel
Pollution Response Plans'' (CG-6083) as an optional alternative to a
cover letter for a plan submission and approval application. When
submitted properly, this application form would satisfy the two
certification statement requirements for submission. Submissions would
be sent to the Coast Guard's Office of Vessel Activities (CG-543) and
directed to the attention of that Office's Vessel Response Plan Review
Team.

Part 155 Subpart D Discussion of Proposed Changes

Section 155.1020 Tank Vessel Response Plan (TVRP) Definitions

    The vessels carrying oil as a secondary cargo definition was
revised to direct vessels over the 400 gross tons limit to subpart J.
In revising that definition, we introduced the term nontank vessel and
have provided a definition for that term in this section.

Sections 155.1065 and 155.1070 TVRP Plan Submission and Review
Procedures

    In these sections we proposed amendments that would reference
subpart J, where applicable, so as to provide vessel owners and
operators with flexibility in adding nontank vessels to their existing
tank vessel response plans in an effort to comply with both subparts D
and J.
    We propose the use of Coast Guard form CG-6083. When submitted
properly, this application form would satisfy the two certification
statement requirements for submission.

Part 155 Subpart J Discussion of Proposed Regulations

Section 155.5010 Nontank Vessel Response Plan (NTVRP) Purpose

    In this section, we propose a description of the purpose of subpart
J. We specifically note that the requirements set forth in the proposed
rule are for improving oil spill response preparedness. The specific
criteria for response resources and their arrival times are not
performance standards. These proposed criteria are to be used by a
vessel owner or operator in developing a plan to respond to a vessel's
worst case discharge or threat of such a discharge. The text in this
section varies slightly from 33 CFR part 155, subpart D, to
specifically address nontank vessel response plans.

Section 155.5012 Deviation From Response Plan

    This section of the proposed rule describes when an owner or
operator of a nontank vessel may be permitted to deviate from an
approved nontank vessel oil spill response plan. The ``Chaffee
Amendment,'' section 1144 of the Coast Guard Authorization Act of 1996
[see Pub. L. 104-324, October 19, 1996, 110 Stat 3901], amended the
FWPCA regarding the use of spill response plans by stating that an
``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.'' See 33 U.S.C. 1321(c)(3)(B). The Coast Guard interprets
section 1144 as applicable to the use of contracted resources,
qualified individuals, and other significant deviations from the plan.
In the event of a marine casualty, the Coast Guard intends to give
precedence to the Incident Action Plan (IAP) as developed by a Unified
Command. The IAP may also include, as a sub plan, a salvage response
plan, an emergency lightering plan, a shoreline clean up plan, etc.

Section 155.5015 Applicability

    Paragraph (a). In this paragraph, we propose the applicability of
subpart J to be those vessels that are not tank vessels carrying oil of
any kind as fuel for main propulsion, that operate on the navigable
waters of the United States, and are 400 gross tons or greater, as
measured under the convention measurement system in 46 U.S.C. 14302 or
the regulatory measurement system of 46 U.S.C. 14502 for vessels not
measured under 46 U.S.C. 14302.
    Paragraph (b). In this paragraph, we propose the applicability
requirements for integrated tug barge (ITB) units that do not carry oil
in bulk on the barge.
    Paragraph (c). In this paragraph, we provide a list of vessels the
Coast Guard proposes to exempt from complying with subpart J. The
proposed exemptions include public vessels, foreign flag vessels
engaged in innocent passage, certain foreign flag vessels engaged in
transit passage, vessels carrying oil as a primary cargo, vessels that
are not constructed to carry oil as fuel or cargo, permanently moored
craft, and inactive vessels.
    Public vessels. We exempted public vessels from subpart J
requirements, because 33 U.S.C. 1321(a) defined ``vessel'' to exclude
public vessels.
    Foreign flag vessels engaged in innocent passage. We proposed
exemption of these vessels because of our recognition of the customary
international law of the sea, as reflected in the UNCLOS. Our exemption
of these vessels in this subpart is consistent with subpart D. For
further information regarding foreign flag vessels engaged in innocent
passage, please see Background and Purpose, section III.G.
    However, the public should take note that the Coast Guard intends
to apply this proposed rule to foreign flag nontank vessels engaging in
voyages to or from a port or place subject to the jurisdiction of the
United States. Further, if a foreign flag vessel is subject to nontank
vessel response plan requirements of this subpart, that foreign flag
nontank vessel will also be required to have a Coast Guard-approved
geographic-specific appendix for each COTP zone where it intends to
operate or transit through bound for or departing from a port or place
subject to the jurisdiction of the United States; this will be the
standard regardless of whether the foreign flag vessel intends to call
upon the respective ports within these COTP zones to transfer cargo,
take on bunkers, etc. In contrast, when a nontank vessel is in innocent
passage (see 33 CFR 155.5015(c)(2)) to a foreign port and must cross
through a COTP zone (see definition in proposed 33 CFR 155.1020) to get
there, the submission and approval of a USCG vessel response plan is
not required.
    Foreign flag vessels engaged in transit passage. We propose
exemption of foreign flag vessels engaged in transit passage through a
straight used for international navigation, unless bound for or
departing from a port or place of the United States. For an in depth
discussion on the Coast Guard's interpretation of our proposed rule in

this area, please see Background and Purpose, section III.G.
    Vessels carrying oil as a primary cargo. All vessels carrying oil
as a primary cargo that are required to submit a response plan under
subpart D are exempt from subpart J. If you own or operate a vessel
carrying oil as a secondary cargo, and that vessel is less than 400
gross tons, then your vessel would not be a nontank vessel by
definition, and would be covered by subpart D (see proposed 33 CFR
155.1020 ``Vessels carrying oil as a secondary cargo'').
    Vessels not constructed or operated in such a manner allowing it to
carry oil of any kind. These vessels are proposed to be exempted,
because they pose no oil spill risk.
    Permanently moored craft. We propose exemptions for those
watercraft that are permanently moored or rendered incapable of
movement because they do not fit the definition of ``vessel'' under 1
U.S.C. 3 as interpreted by Stewart v. Dutra Construction Co., 543 U.S.
481 (2005). Further, these watercraft represent minimal risk due to
their immobile status.
    Inactive vessels. We propose exemptions for inactive vessels, as
defined in Sec.  155.5020, which is described immediately below.

Section 155.5020 Definitions

    The definitions in 33 CFR 155.110 and 155.1020 are applicable to
nontank vessel response plans, unless otherwise defined in Sec.
155.5020.
    In Sec.  155.5020, we propose the following definitions: cargo,
contract or other approved means, fuel, inactive vessel, integrated tug
barge or ITB, maximum most probable discharge or MMPD, navigable waters
of the United States, nontank vessel, oil spill removal organization or
OSRO, permanently moored craft, qualified individual or QI and
alternative qualified individual, substantial threat of such a
discharge, tier, and worst case discharge or WCD.
    A proposed definition of cargo is introduced in subpart J to
clarify that oil carried in addition to fuel used for propulsion of the
vessel is considered to be cargo and is subject to the provisions of
subpart J where applicable.
    A proposed definition of contract or other approved means describes
the options for fulfilling the requirement for contracting or providing
response resources. Paragraph (1) describes a written contract between
a vessel owner or operator and the particular response resource
provider. Paragraph (2) proposes requirements for self certification by
the vessel owner or operator that it can provide the response resources
required. Paragraph (3) describes requirements when a vessel owner or
operator chooses an active membership with a local or regional response
resource provider. Paragraph (4) is an agreement between the vessel
owner or operator and a resource provider that the resource provider
intends to commit the agreed upon resources in the event of a response.
Finally, paragraph (5) specifically describes when the use of ``other
approved means'' may be permissible as a method of ensuring the
availability of response resources in lieu of a contract. It also
describes six proposed categories of vessels that may be eligible to
use ``other approved means'' as a method of compliance.
    The Coast Guard interprets 33 U.S.C. 1321(j)(5)(D)(iii) as imposing
an obligation for nontank vessel owners and operators to ensure the
availability of response resources by contract or other approved means.
Thus, agreements including contracts between nontank vessel owners or
operators and entities that do not physically control response
equipment or entities that merely serve as conduits to the owners of
the response equipment will not satisfy the statutory mandate of 33
U.S.C. 1321(j)(5) nor will such contracts meet the requirements of
proposed subpart J.
    A proposed definition of fuel is introduced to include oils of any
kind, which may be used to supply power or lubrication for primary or
auxiliary purposes aboard the vessel in which it is carried. This
definition was drafted to convey that, when planning for a worst case
discharge, the vessel owner or operator must include in their analysis
all oils carried aboard as fuel or cargo. While only vessels that use
oil for primary fuel and not auxiliary fuel are required to submit
nontank vessel response plans, those nontank vessels that do carry
auxiliary fuel must include auxiliary fuel in the total fuel capacity
for nontank vessel response planning volume calculations.
    A proposed definition of inactive vessel is introduced to include
those vessels taken out of service or placed in a laid up status,
maintaining only the minimum amount of fuel necessary for the
maintenance of the material condition of the vessel. Such vessels are
not considered to be in operation on the navigable waters of the United
States by virtue of the minimal threat they pose to the marine
environment in that status. This section further proposes that the
local Coast Guard Captain of the Port will determine whether an
inactive vessel poses a threat to the marine environment, thereby
requiring the submission of a vessel response plan.
    A proposed definition of an integrated tug barge or ITB is
introduced to describe when these vessels, operating as a single unit
(for example, nontank barge with machinery and tug) pose the same level
of oil spill threat as a large freight vessel of the same aggregate
tonnage. Beyond the definition introduced in Sec.  155.5020, and
consistent with Coast Guard Inspection Guidance Regarding Integrated
Tug Barge Combinations (NVIC 2-81, Change 1), an integrated tug barge
combination will be considered an ITB, when the tug:
     Cannot operate with barges other than those barges
specifically designed for joint operation with the tug; or
     Cannot engage in hawser towing (does not meet the towline
pull stability criteria or does not have necessary towing equipment
installed); or
     Requires significant reinforcement of internal structure
to accommodate shelves, wedges or other interlocking mechanisms; or
     Is restrained in the notch of a barge to the extent that
the speed and weather operating capabilities of the combined unit
approach those of a single vessel.
    A proposed definition of maximum most probable discharge or MMPD is
introduced to provide that 2,500 barrels of discharged oil will be
considered the maximum most probable discharge for those vessels with a
fuel and cargo capacity equal or greater than 25,000 barrels; for those
vessels with fuel and cargo capacity of less than 25,000 barrels, the
maximum most probable discharge will be 10 percent of the vessel's fuel
and cargo capacity. Maximum most probable discharge is a required level
of oil spill removal organization coverage necessary to address spill
scenarios less than a vessel's worst case discharge where the
substantial threat of such a discharge may occur. Maximum most probable
discharge planning standards are commonly applied to spills resulting
from collisions, allisions, groundings, or other scenarios where a
portion of a vessel's oil capacity is discharged or could be discharged
and an appropriate response is mounted to mitigate the impact of the
resulting spill or to prevent a discharge from occurring.
    A proposed definition of navigable waters of the United States is
introduced to clarify that for nontank vessels regulations the
territorial seas is considered to be 12 nm seaward of the baseline. The
authority to require nontank vessel response plans comes from sec. 311
of the FWPCA, 33 U.S.C. 1321. Generally, for 33 U.S.C. chapter 26,
``navigable waters'' means ``the

waters of the United States, including the territorial seas,'' 33
U.S.C. 1362(7). In 1972, when this ``navigable waters'' definition
first appeared, our territorial seas were limited to 3 nm in breadth.
(See sec. 502 (8) of FWPCA, Oct. 18, 1972, Pub. L. 92-500, Sec.  2, 86
Stat. 886, specifically limiting territorial seas to 3 nm.) The
Presidential Proclamation No. 5928 of December 27, 1988, which extended
the territorial seas of the United States to 12 nm, is not construed to
have changed that 3 nm limit. However, in 2006, Congress revised the
FWPCA and defined nontank vessels to include self-propelled vessels
``on the navigable waters of the United States, as defined in section
2101(17a) of [46 U.S.C.].'' 33 U.S.C. 1321(a)(26). That Title 46
navigable waters definition ``includes all waters of the territorial
sea of the United States as described in Presidential Proclamation No.
5928 of December 27, 1988,'' which states 12 nm. 33 CFR 2.22(a)(1).
Therefore, while we generally construe seaward extent of FWPCA
provisions to be limited to 3 nm out from our territorial sea
baseline--see 33 CFR 2.22(a)(2) (limiting territorial seas to 3 nm) and
2.28(a) (pointing to 3 nm limit of territorial seas when defining FWPCA
contiguous zone)--our NTVRP regulations would extend out to 12 nm.
    A proposed definition of nontank vessel is introduced that is
consistent with, and derived from, the 2004 and 2006 Acts. Section 701
of the 2004 Act specified that an owner or operator of a self-propelled
vessel of 400 gross tons or greater, which is a vessel of the United
States or operates on the navigable waters of the United States and
carries oil as fuel and is not a tank vessel, must prepare and submit
an oil spill response plan. Section 608 of the 2006 Act clarified the
tonnage applicability of this statutory requirement by setting the
tonnage threshold as 400 gross tons or greater, as measured under the
convention measurement system in 46 U.S.C. 14302 or the regulatory
measurement system of 46 U.S.C. 14502 for vessels not measured under 46
U.S.C. 14302. The 2006 Act further established that it applies to
vessels that operate on the navigable waters of the United States, as
described in Presidential Proclamation No. 5928, December 27, 1988.
    A proposed definition of oil spill removal organization or OSRO is
introduced to describe who or what may be identified as an OSRO and the
function(s) of an OSRO. This proposed definition is consistent with the
Coast Guard's OSRO Classification guidelines. For more information on
the OSRO classification system, see http://www.uscg.mil/hq/nsfweb/
nsfcc/ops/ResponseSupport/RRAB/informationonclassifiedosros.html.
    A proposed definition of permanently moored craft is introduced to
provide that permanently moored, or otherwise rendered practically
incapable of transportation or movement, watercraft would not be
considered to be vessels under subpart J, because they do not meet the
statutory definition in 1 U.S.C. 3, as interpreted by the Supreme Court
in Stewart v. Dutra Construction Co., 543 U.S. 481 (2005). Stewart v.
Dutra addressed the concept of permanently moored vessels, and the
language used by the court regarding a description of such vessels was
used to develop the definition of ``permanently moored craft'' and
exempt such craft from the proposed rule. For tank and nontank vessels,
the controlling definition of vessel is in 46 U.S.C. 115, which cites 1
U.S.C. 3. We propose that permanently moored craft be excluded from the
nontank vessel response plan regulations under Sec.  155.5015.
    A proposed definition of qualified individual or QI and alternative
qualified individual is introduced, and provides that these individuals
are shore-based representatives of a vessel owner or operator meeting
specific requirements. This proposed definition is similar to subpart
D.
    A proposed definition of substantial threat of such a discharge is
introduced to include a threat of a discharge from fuel as well as
cargo oil, as applicable to nontank vessels.
    A proposed definition of tier is introduced to describe the
combination of required response resources and response times within
which the response must arrive on scene.
    A proposed definition of worst case discharge or (WCD) is
introduced to describe the discharge of a vessel's entire fuel and
cargo oil during adverse weather conditions.

Section 155.5021 Operating Restrictions

    In this proposed section, we identify scenarios when a nontank
vessel may not be permitted to operate on the navigable waters of the
United States. These proposed operating restrictions are similar to
those found in Sec.  155.1025(a).

Section 155.5023 Interim Operating Authorization

    In this section, we propose interim operating authorization for
nontank vessels up to 2 years after the date of submission of the oil
spill response plan if the owner or operator has received written
authorization from the Coast Guard to continue such operations. We also
describe the proposed steps the vessel owner or operator should
complete to obtain the interim authorization. These proposed
requirements are aligned with Sec.  155.1025(c) and (d).

Section 155.5025 One-Time Port Waiver

    In this section, we propose that an owner or an operator may seek
one-time authorization to enter a geographic-specific area not covered
by the nontank vessel response plan upon approval by a cognizant
Captain of the Port. This provision could also be used in an emergency
situation, such as an impending hurricane, where a vessel owner or
operator may need to enter a geographic-specific area not covered by
the nontank vessel response plan for a specified temporary period of
time. The proposed requirements are aligned with Sec.  155.1025(e) to
ensure consistency of this proposed procedure with the tank vessel
response plan regulations.

Section 155.5026 Qualified Individual and Alternate Qualified
Individual

    In this proposed section, we introduce the requirement to identify
a qualified individual and an alternate qualified individual that must
be available to the vessel owner or operator 24 hours a day.
Identification of a qualified individual and alternate qualified
individual is a statutory requirement from 33 U.S.C. 1321(j)(5) and is
consistent with the existing qualified individual and alternate
qualified individual requirements of 33 CFR 155.1026.

Section 155.5030 Nontank Vessel Response Plan Requirements: General
Content

    In this proposed section, we describe the general content of a
nontank vessel response plan. The requirements were taken directly from
the existing tank vessel requirements of 33 CFR 155.1030, and modified
to fit the requirements of a nontank vessel. Section 155.5030(h)
proposes that compliance with subpart J will constitute compliance with
33 CFR 151.26 and Regulation 37 of Annex I of MARPOL 73/78, eliminating
the need to prepare two separate oil spill response plans. Lastly, in
order to meet statutory mandates, the general content of nontank vessel
response plan requirements are proposed to be consistent with the
national contingency plan (40 CFR part 300.210).

Section 155.5035 Nontank Vessel Response Plan Requirements: Specific
Content

    In this section, we propose additional specific content
requirements for nontank vessel response plans. Except where noted
below, the requirements were taken directly from the existing tank
vessel requirements of Sec.  155.1035 and were modified to fit nontank
vessel requirements and ensure consistency with Sec.  151.26
requirements for SOPEPs. Section 155.5035(a)(2) proposes the submission
of the nontank vessel owner or operator's mailing address, current e-
mail addresses, and telephone number to facilitate communications that
are a central part of this plan. Section 155.5035(b)(5)(i)(O) adds to
the list of initial notification requirements, details of the vessel
owner or operator's pollution insurer, and/or Protection and Indemnity
(P&I) Club and Local Correspondent, as applicable. Section 155.5035(c)
proposes regulations that align Sec.  151.26 and Regulation 37 of Annex
I of MARPOL 73/78 shipboard spill mitigation procedures with the
existing requirements for shipboard mitigation procedures as listed in
Sec.  155.1035(c). Section 155.5035(e) proposes an enhanced list of
contact requirements to reflect the full spectrum of required response
resources per proposed Sec.  155.5050. This proposed section contains
fewer requirements for nontank vessels with fuel and cargo capacities
less than 2,500 barrels. Section 155.5035(k) proposes the additional
requirements that U.S. nontank vessels, certificated for coastwise or
oceans operating routes must meet for compliance with Regulation 37 of
Annex I of MARPOL 73/78.

Section 155.5050 Response Plan Development and Evaluation Criteria for
Nontank Vessels Carrying Groups I Through IV Petroleum Oil

    The proposed requirements for the response plan development and
evaluation criteria for nontank vessels carrying groups I through IV
petroleum oil as fuel or cargo are contained in this section. Except
where noted below, the requirements were taken directly from the
existing tank vessel requirements of Sec.  155.1050, however modified
to address specific nontank vessel requirements. To the maximum extent
practicable, a tiered approach is proposed to classify three separate
categories of NTVRP response resource requirements based upon a
vessel's fuel and cargo oil capacity. See the proposed Table
155.5050(p), Nontank Vessel Response Plan Required Response Resources
Matrix, to better understand the intended tiered strategy.

Paragraph (a) of Section 155.5050 Criteria for Evaluating Operability
of Response Resources

    This paragraph of the proposed rule, which adopts tank vessel
criteria from Sec.  155.1050(a), identifies criteria that would need to
be used to evaluate the operability of response resources identified in
a nontank vessel response plan for specified operating environments. It
directs that the criteria in 33 CFR part 155's Appendix B, Table 1 are
to be used solely for identification of appropriate equipment in a
response plan, and it notes these criteria do not reflect conditions
that would limit response actions or affect normal vessel operations.
Conditions identified in the Area Contingency Plans for the COTP zones
in which the vessel operates, such as ice conditions, debris,
temperature ranges, and weather-related visibility, would also need to
be factored in.

Paragraph (b) of Section 155.5050 Operating Environment
Reclassification of Specific Bodies of Water

    This paragraph of the proposed rule, which adopts tank vessel
requirements from Sec.  155.1050(b), notes that a COTP may reclassify a
specific body of water or location within the COTP zone to a more
stringent operating environment or a less stringent operating
environment based on the prevailing wave conditions. Any
reclassifications would be identified in the applicable Area
Contingency Plan.

Paragraph (c) of Section 155.5050 Criteria for Response Equipment

    This paragraph, which adopts tank vessel requirements from Sec.
155.1050(c), would require that response equipment meet or exceed the
response resource operating criteria listed in 33 CFR part 155's
Appendix B, Table 1, be capable of functioning in the applicable
operating environment, and be appropriate for the petroleum oil
carried.

Paragraph (d) of Section 155.5050 Average Most Probable Discharge

    This paragraph of the proposed rule, like its tank vessel
counterpart in subpart D, Sec.  155.1050(d), would require nontank
vessels that carry groups I through IV petroleum oil as cargo to ensure
the availability of average most probable discharge (AMPD) resources by
contract or other approved means. Nontank vessels that only carry
groups I through IV oil as fuel would not have to ensure the
availability of AMPD resources by contract or other approved means
because the facility providing the bunker to the nontank vessel is
already required to have planned for the AMPD resources covering the
transfer. However, the owner or operator of a nontank vessel carrying
groups I through IV oil as fuel would be required to plan for and
identify the response resources required in Sec.  155.1050(d)(1) for
bunkering or fueling operations.
    Identification of a marine transportation-related (MTR) facility
required to maintain a response plan under 33 CFR part 154 or a tank
vessel's oil spill response resources does not relieve a nontank vessel
owner or operator from the responsibility to independently identify
appropriate response resources within a COTP zone to respond to an
AMPD. Permission from the AMPD response provider is not required for
the purpose of listing this resource in a nontank vessel response plan
for this planning and identification purpose.

Paragraph (e) of Section 155.5050 Maximum Most Probable Discharge

    This paragraph of the proposed rule adopts tank vessel standards
from Sec.  155.1050(e), but would impose one less requirement for
nontank vessels with lower oil capacity. The owner or operator of a
nontank vessel with a capacity of 250 barrels or greater carrying
groups I through IV petroleum oil as fuel or cargo would need to comply
with requirements in Sec.  155.1050(e) and identify in the response
plan and ensure the availability of, through contract or other approved
means, the response resources necessary to respond to a discharge up to
the vessel's maximum most probable discharge volume.
    Under this paragraph of the proposed rule, nontank vessels with an
oil capacity of less than 250 barrels would only be required to
identify response resources planned for in the nontank vessel response
plan to be within the stipulated response times in the specified
geographic areas, but these nontank vessels would not be required to
ensure by contract that these resources be made available.
    Submission of a written consent from the response resource provider
to be listed in the response plan would need to accompany the plan for
approval. Compliance with these requirements would be considered to be
consistent with the ``other approved means,'' paragraph (5) portion of
the definition of ``Contract or other approved means'' in 33 CFR
155.5020.

Paragraph (f) of Section 155.5050 Worst Case Discharge

    This paragraph would adopt requirements from Sec.  155.1050(f), but
contains some provisions specific to nontank vessels carrying oil as
fuel or cargo. The owner or operator of a nontank vessel with a
capacity of 2,500 barrels or greater carrying groups I through IV
petroleum oil as fuel or cargo would need to comply with the
requirements in Sec.  155.1050(f) and identify in the response plan and
ensure the availability of, through contract or other approved means,
the response resources necessary to respond to discharges up to the
worst case discharge volume of oil to the maximum extent practicable.
    Nontank vessels need only plan for Tier 1 response resources. In
proposed Sec.  155.5020, tier is defined as the combination of required
response resources and the times within which the resources must arrive
on the scene, with the times being prescribed in Sec.  155.5050(g) and
Tables 5 and 6 of Appendix B offering guidance on calculating the
response resources required by a tier for given categories of area:
higher volume port areas, the Great Lakes, and all other operating
environments.
    Nontank vessels with a capacity of less than 2,500 barrels would
not be required to contract with an OSRO that has a USCG classification
to respond to a WCD level of response resources in order to comply with
the statute's requirement to plan for the vessels' worst case
discharge, because their total oil capacity can be completely covered
by an OSRO with a USCG maximum most probable discharge (MMPD)
classification rating. For additional information on USCG Classified
OSROs, use the following link to download USCG OSRO Classification
matrices: http://www.uscg.mil/hq/nsfweb/nsfcc/ops/ResponseSupport/RRAB/
informationonclassifiedosros.html.

Paragraph (g) of Section 155.5050 Tier 1 Response Times

    This paragraph of the proposed rule is similar to tank vessel
requirements in Sec.  155.1050(g), but would require nontank vessels to
only plan for Tier 1 response resources and response times: 12 hours
for higher volume port areas, 18 hours for the Great Lakes, and 24
hours for all other operating environments.

Paragraph (h) of Section 155.5050 Planning Standards for the
Mobilization and Response Times for Required MMPD and WCD Response
Resources

    This paragraph of the proposed rule contains requirements similar
to those in Sec.  155.1050(h) for tank vessels. Section 155.5050(h)
proposes the planning standards for the mobilization and response times
for maximum most probable discharge (MMPD) and worst case discharge
(WCD) response resources.
    Consistent with what are currently required for tank vessel
response coverage, nontank vessels will be required to ensure that Tier
1 response resources are capable of being mobilized and enroute to the
scene of a discharge within 2 hours of notification. The notification
and mobilization of all required Tier 1 resources must be accomplished
within 30 minutes or through notification of the qualified individual.
    To use an example, on November 7, 2007, an oil spill response was
initiated in San Francisco Bay in response to oil spilled from the M/V
COSCO BUSAN. In that incident, the notification of the required MMPD
resources was accomplished well within 30 minutes, and initial response
resources were on scene well within the required timelines.
    Initial MMPD response resources began to arrive on scene within 45
minutes of notification. San Francisco Bay is considered to be a higher
volume port area (see proposed Sec.  155.5020's reference to
definitions in Sec.  155.1020), and 33 CFR part 155's Appendix B,
paragraph 4.3 stipulates that oil recovery devices necessary to meet
the applicable maximum most probable discharge volume planning criteria
must be located such that they can arrive on scene within 12 hours of
the discovery of a discharge in higher volume port areas. Therefore,
the initial response of resources to the M/V COSCO BUSAN incident was
well within the planning standards for such oil spills.

Paragraph (i) of Section 155.5050 Salvage, Emergency Lightering, and
Marine Firefighting Requirements

    This proposed paragraph is designed to be consistent with Sec.
155.1050(j), and vessels with a capacity of 2,500 barrels or greater
would have to meet salvage, emergency lightering, and marine
firefighting requirements in subpart I of 33 CFR part 155. Nontank
vessels with a capacity less than 2,500 barrels, but greater than or
equal to 250 barrels, need only plan for and identify these response
resources in the response plan but do not have to ensure these
resources by contract or a previous funding agreement. Nontank vessels
with a capacity less than 250 barrels need only plan for and identify
salvage response resources in the response plan, but do not have to
ensure by contract or a previous funding agreement. See 33 CFR
155.5020, ``Contract or other approved means,'' paragraph (5).

Paragraph (j) of Section 155.5050 Dispersants

    This proposed paragraph is designed to be consistent with Sec.
155.1050(k) and it is proposed that vessels with a capacity of 2,500
barrels or greater would be required to ensure the availability of
these response resources by contract or other approved means. Only Tier
1 for dispersant effective daily application capability (EDAC) would
need to be met for nontank vessels. Nontank vessels with a capacity of
less than 2,500 barrels, but greater than or equal to 250 barrels,
would need to plan for and identify dispersant response resources per
the other approved means standard described previously.

Paragraph (k) of Section 155.5050 Aerial Oil Spill Tracking and
Observation Response Resources

    This proposed paragraph adopts tank vessel requirements from Sec.
155.1050(m). It is proposed that nontank vessels with a capacity of
2,500 barrels or greater would be required to ensure the availability
of these response resources by contract or other approved means.
    Nontank vessels with a capacity of less than 2,500 barrels, but
greater than or equal to 250 barrels, would need to plan for and
identify aerial oil spill tracking and observation response resources
under the other approved means standard described previously. The
nontank vessel owner or operator would also be required to submit a
written consent to be listed in the plan from the recognized response
resource provider when submitting a plan for approval or revision.
Compliance with these requirements would be considered to be consistent
with the ``other approved means,'' paragraph (5) portion of the
definition of ``Contract or other approved means'' in 33 CFR 155.5020.

Paragraph (l) of Section 155.5050 Response Resources Necessary To
Perform Shoreline Protection Operations

    This proposed paragraph adopts requirements from Sec.  155.1050(n).
It would require the owners and operators of nontank vessels carrying
groups I through IV petroleum oil as fuel or cargo with a capacity of
250 barrels or greater

to identify in the response plan, and ensure the availability of,
through contract or other approved means, response resources necessary
to perform shoreline protection operations. The response resources must
include the quantities of boom listed in 33 CFR part 155's Appendix B,
Table 2, based upon the specific COTP zones in which the vessel
operates.

Paragraph (m) of Section 155.5050 Shoreline Cleanup Operations

    This paragraph of the proposed rule adopts tank vessel requirements
from Sec.  155.1050(o). It would require the owner or operator of a
nontank vessel carrying groups I through IV petroleum oil as fuel or
cargo with a capacity of 250 barrels or greater to identify in the
response plan, and ensure the availability of, through contract or
other approved means, an oil spill removal organization capable of
effecting a shoreline cleanup operation commensurate with the quantity
of emulsified petroleum oil to be planned for in shoreline cleanup
operations. These shoreline cleanup resources required would need to be
determined as described in 33 CFR part 155's Appendix B.

Paragraph (n) of Section 155.5050 Practical and Technical Limits of
Response Capabilities

    This paragraph of the proposed rule, which adopts tank vessel
criteria from Sec.  155.1050(p), notes that Appendix B of 33 CFR part
155 sets out response capability capacities (caps) that recognize the
practical and technical limits of response capabilities for which an
individual vessel owner or operator can contract in advance. Table 6 in
Appendix B lists the contracting caps that are applicable.
    The owner or operator of a nontank vessel carrying groups I through
IV petroleum oil as fuel or cargo, with a capacity of 2,500 barrels or
greater, whose required daily recovery capacity exceeds the applicable
contracting caps in Table 6, would need to identify commercial sources
of additional equipment equal to twice the cap listed for Tier 1 or the
amount necessary to reach the calculated planning volume, whichever is
lower, to the extent that this equipment is available. The equipment so
identified would need to be capable of arriving on scene no later than
the applicable tier response times contained in proposed Sec.
155.5050(g) or as quickly as the nearest available resource permits. A
response plan would need to identify the specific sources, locations,
and quantities of this additional equipment. No contract, however,
would be required.

Paragraph (o) of Section 155.5050 Review of Response Capability Limits

    This paragraph of the proposed rule, which adopts tank vessel
criteria from Sec.  155.1050(q), notes that the Coast Guard will
continue to evaluate the environmental benefits, cost efficiency, and
practicality of increasing mechanical recovery capability requirements.
This continuing evaluation is part of the Coast Guard's long-term
commitment to achieving and maintaining an optimum mix of oil spill
response capability across the full spectrum of response modes. As best
available technology demonstrates a need to evaluate or change
mechanical recovery capacities, a review of cap increases and other
requirements contained within this subpart may be performed.

Paragraph (p) of Section 155.5050 Nontank Vessel Response Plan Required
Response Resources Matrix

    The table in this paragraph of the proposed rule summarizes nontank
vessel response resources that would be required under the proposed
rule. It shows the tiered regulatory approach toward how the
requirements of Sec.  155.5050 apply to various nontank vessels with a
fuel and cargo capacity of less than 250 barrels, between 250 barrels
and 2,500 barrels, and 2,500 barrels or greater.

Section 155.5052 Response Plan Development and Evaluation Criteria for
Nontank Vessels Carrying Group V Petroleum Oil

    This section of the proposed rule, which adopts the tank vessel
requirements of Sec.  155.1052, would require owners and operators of
nontank vessels that carry group V petroleum oil as fuel or cargo to
provide information in their plan that identifies procedures and
strategies for responding to discharges up to a worst case discharge of
group V petroleum oils to the maximum extent practicable, and that
identifies sources of the equipment and supplies necessary to locate,
recover, and mitigate such discharges.
    The owner or operator would need to ensure that:
     Any equipment identified in a response plan is capable of
operating in the conditions expected in the geographic area(s) in which
the nontank vessel operates, and consider the limitations identified in
the Area Contingency Plans for the COTP zones in which the vessel
operates;
     Through contract or other approved means, equipment
identified in this section, including sonar, sampling equipment for
locating the oil on the bottom or suspended in the water column,
sorbent boom, silt curtains, dredges, pumps, or other equipment
necessary to recover oil from the bottom and shoreline is made
available and capable of being deployed within 24 hours of discovery of
a discharge to the port nearest the area where the vessel is operating.
    The owner or operator of a nontank vessel carrying group V
petroleum oil as fuel or cargo would also need to identify in the
response plan and ensure the availability, through contract or other
approved means, a salvage company with appropriate expertise and
equipment, a company with vessel firefighting capability that will
respond to casualties in the area(s) in which the vessel is operating,
and that the intended sources of these resources are capable of being
deployed to the areas in which the vessel will operate.
    In addition, the owner or operator would be required to identify in
the response plan and ensure the availability of certain equipment
facilitating ship-to-ship transfers of fuel or cargo in an emergency,
including fendering equipment, transfer hoses, portable pumps and
ancillary equipment, and lightering vessels. And these identified
resources would need to be capable of reaching the locations in which
the vessel operates within 12-to-36 hours depending on the type of
water (e.g., inland, offshore, or open ocean).

Section 155.5055 Training

    This section of the proposed rule, which adopts the requirements of
Sec.  155.1055 for tank vessels, describes the training requirements
that an owner or operator of a nontank vessel must identify in his or
her plan. The proposed rule does not require training in specific
subjects or minimum training periods, but instead it requires a vessel
owner or operator to identify the training programs they will establish
or adopt to train any person with responsibilities in the response
plan.
    The training may vary widely based on those responsibilities. For
example, a vessel's master would need different training than the
engineer responsible for internal cargo transfers, just as the
qualified individual would need different training than the cleanup
manager in the vessel owner or operator's shore-based spill management
team. This proposed section would require that the training program
identified in the plan differentiate between training provided

to vessel personnel and shore-based personnel. This section points to
33 CFR 155's Appendix C, described below, as providing additional
training guidance.
    Under this proposed section, the owner or operator of a nontank
vessel would need to maintain records sufficient to document training
and make them available for inspection upon request by the Coast Guard,
and ensure that any oil spill removal organization identified in its
response plan also maintains records sufficient to document training
for the organization's personnel. The owner or operator of the nontank
vessel would need to maintain its training records for 3 years.

Section 155.5060 Exercises

    This section of the proposed rule would require a nontank vessel
owner or operator to conduct, as necessary, announced and unannounced
exercises to ensure that the plan will function in an emergency. This
proposed section adopts the minimum exercise requirements from Sec.
155.1060 for tank vessels, as well as its requirements to:
     Participate in unannounced exercises, as directed by the
COTP,
     Participate in Area exercises as directed by the
applicable on-scene coordinator, and
     Maintain adequate records for 3 years following completion
of the exercises.
    This proposed section also adopts Sec.  155.1060's provision that
compliance with the National Preparedness for Response Exercise Program
(PREP) Guidelines will satisfy nontank vessel response plan exercise
requirements, as will an alternative program that meets the minimum
exercise requirements and has been approved under alternative planning
criteria in proposed Sec.  155.5067.

Section 155.5062 Inspection and Maintenance of Response Resources

    This proposed section, which adopts the corresponding tank vessel
requirements in Sec.  155.1062, would require nontank vessel owners or
operators to ensure that containment boom, skimmers, vessels, and other
major equipment listed or referenced in a vessel response plan are
periodically inspected and maintained in good operating condition, in
accordance with manufacturer's recommendations and best commercial
practices. This proposed section notes that the Coast Guard may visit
equipment locations listed in response plans to:
     Verify that the equipment inventories exist as
represented;
     Verify that the records of inspection and maintenance
reflect the actual condition of the equipment; and
     Inspect and require operational tests of equipment to
verify readiness.

Section 155.5065 Procedures for Plan Submission and Approval

    This section of the proposed rule identifies the procedures for
submission and approval of response plans. The owner or operator of a
nontank vessel would need to submit a complete vessel response plan,
written in English, along with a statement certifying that the plan
meets the requirements of subpart J as well as any applicable
requirements in subparts D, E, F, or G.
    In addition, the submission would need to include a statement
specifically certifying that the ``owner or operator has ensured the
availability of, through contract or other approved means, the
necessary private resources to respond, to the maximum extent
practicable, to a worst case discharge or substantial threat of such a
discharge from their vessel.''
    We propose the use of a Coast Guard form entitled ``Application for
Approval/Revision of Vessel Pollution Response Plans'' (CG-6083) as an
optional alternative to a cover letter for a plan submission and
approval application. When submitted properly, this application form
would satisfy the two certification statement requirements for
submission. Submissions would be sent in paper format to the Coast
Guard's Office of Vessel Activities (CG-543), and directed to the
attention of that Office's Vessel Response Plan Review Team.
    The proposed requirements of Sec.  155.5065 are derived from tank
vessel requirements in Sec.  155.1065 to ensure consistency with the
procedures for vessel response plan submission and approval, but have
been modified to be consistent with subpart J applicability.
Additionally, appeal and alternative planning criteria procedures have
been removed and put in their own respective sections.

Section 155.5067 Alternative Planning Criteria

    This section of the proposed rule would allow the submission of a
request for acceptance of alternative planning criteria from the owner
or operator of a vessel who believes that national planning criteria
contained elsewhere in 33 CFR part 155 are inappropriate, and explains
who in the Coast Guard will grant or deny the request. The proposed
requirements for alternative planning criteria have been derived from
Sec.  155.1065(f) and expanded to identify essential elements of the
request, and to require the endorsement (either favorable or
unfavorable) of the COTP with jurisdiction over the geographic areas at
issue before the request may be considered by the Coast Guard's Office
of Vessel Activities (CG-543).
    There are numerous remote areas in Alaska, as well as Guam and
American Samoa, where it is noted that the level of required response
resources do not meet the national planning requirements even for tank
vessels under subpart D. It is anticipated that nontank vessels that
transit or plan to transit these remote areas may have initial
difficulty in meeting the proposed requirements of subpart J. Once the
final regulations are implemented for subpart J, it is expected that
any vessel owner or operator required, but unable, to meet the
requirements due to this reason will meet with the cognizant Coast
Guard Captain of the Port to discuss what resources are available and
what alternative planning and mitigation strategies can be put in place
to receive authorization for operations in these areas. We encourage
Area [Planning] Committees, established under the National Contingency
Plan (40 CFR 300), to address this issue and facilitate solutions to
include recommending acceptable alternative planning criteria for
nontank vessel response plan approval and building up required response
resources in applicable areas.

Section 155.5070 Procedures for Plan Review, Revision, and Amendment

    This section of the proposed rule would require nontank vessel
owners or operators to review their response plans annually to ensure
that the plan information is current. This review must occur within one
month of the anniversary date of Coast Guard approval of the plan.
Also, a vessel owner or operator would be required to submit a letter
to Coast Guard certifying that they have conducted this review.
    These proposed requirements in Sec.  155.5070 are derived from
Sec.  155.1070 to ensure consistency with the procedures for tank
vessel response plan review, revision, and amendment procedures, except
for the following. To be consistent with plan review and revision
requirements in 33 CFR 151.28(a), the owner or operator of a nontank
vessel must submit a letter to the Coast Guard certifying that the
annual review has been completed. This certification is necessary even
if no changes have occurred.
    We propose the use of a Coast Guard form entitled ``Application for
Approval/Revision of Vessel Pollution

Response Plans'' (CG-6083) as an optional alternative to a cover letter
for a plan annual review. When submitted properly, this application
form would satisfy the annual review requirements found in proposed
Sec.  155.5070. Submissions would be sent to the Coast Guard's Office
of Vessel Activities, and directed to the attention of that Office's
Vessel Response Plan Review Team.

Section 155.5075 Appeal Procedures

    Consistent with tank vessel procedures in Sec. Sec.  155.1065(h)
and 155.1070(f), we propose allowing a nontank vessel owner or operator
who disagrees with a deficiency determination to submit a petition for
reconsideration to the Coast Guard and to appeal a Coast Guard decision
not to approve the owner or operator's NTVRP.
    A petition for reconsideration of a deficiency determination would
need to be filed within the period required for compliance or within 5
days from receipt of the notice of deficiency determination to the
owner or operator, whichever date occurs first. For 21 days following
notification that a NTVRP is not approved, the vessel owner or operator
would be allowed to appeal that determination to the Assistant
Commandant for Marine Safety, Security, and Stewardship.

Appendix B of 33 CFR 155

    Appendix B of 33 CFR part 155 describes the procedures for
identifying response resources to meet VRP requirements of subparts D,
E, F, and G. We propose revising Appendix B so that it also addresses
our proposed addition of NTVRP regulations in subpart J.
    In Appendix B paragraphs 1.1, 2.6, and 2.7, which describe the
purpose of the Appendix and describe equipment operability and
readiness, we simply propose adding a reference to subpart J. In
paragraph 4.2.2 of Appendix B, we propose changing the 10 percent
measure from ``total cargo oil capacity'' to ``total oil capacity'' in
reference to maximum most probable discharge.
    Section 3 of Appendix B deals with determining response resources
required for the AMPD. In paragraph 3.1, after the words ``vessel owner
or operator,'' we propose adding the words ``as applicable under the
regulations prescribed in this part.'' Also, after the reference to a
vessel carrying oil as a primary cargo, we propose adding ``or a
nontank vessel carrying oil as cargo as required by subpart J.''
    Section 5 of Appendix B deals with determining response resources
required for the WCD to the maximum extent practicable. In paragraphs
5.1, and 5.3 through 5.7, after the words ``vessel owner or operator,''
we propose adding the words ``as applicable under the regulations
prescribed in this part.'' In paragraph 5.2, we propose to insert a
reference to Sec.  155.5050(g) when identifying the applicable tier for
response time.
    Section 7 of Appendix B describes determining the WCD planning
volumes. In paragraphs 7.1, 7.2, and 7.2.4, after the words ``vessel
owner or operator,'' we propose inserting the words ``as applicable
under the regulations prescribed in this part.'' In paragraph 7.2.3, we
propose inserting a clarifying statement that for nontank vessels, only
Tier 1 is to be used with the oil recovery resource mobilization factor
in determining the total on-water oil recovery capacity that must be
identified or contracted for to arrive on scene within the applicable
time for each response tier. In paragraph 7.2.4, we propose deleting a
sentence on exceeding the 1993 planning volume cap that is no longer
needed. In paragraph 7.3.1, we propose changing ``total volume of oil
cargo carried'' to ``total volume of oil carried.''
    Section 8 of Appendix B provides guidance on determining the
availability of high-rate response methods. In paragraph 8.1.1, after
the words ``vessel owner or operator,'' we propose adding the words
``as applicable under the regulations prescribed in this part.''

Appendix C of 33 CFR 155

    Appendix C of 33 CFR part 155 provides guidance to owners and
operators of vessels on the development of the training portions of
their response plans. We propose revising Appendix C so that it also
addresses our proposed addition of NTVRP regulations in subpart J.
    In Appendix C, section 2, the elements-to-be-addressed section, we
propose:
     Expanding organizational activities in paragraph <IP_ADDRESS>
from ``cargo transfers'' to ``fuel and cargo transfers'' in reference
to procedures to mitigate or prevent any discharge or a substantial
threat of a discharge of oil;
     Adding a suspected fuel tank leak in paragraph 2.2.14 to
the list of items for which action must be taken; and
     Changing information on ``cargoes handled'' to information
on ``oil handled'' in paragraph 2.2.15.
    For paragraphs within 2.2.15, we propose adding ``(including oil
carried as fuel)'' to paragraph <IP_ADDRESS> in reference to cargo material
safety data sheets; and in reference to chemical properties, special
handling procedures, health and safety hazards, and spill and
firefighting procedures, we propose revising ``cargo'' in paragraphs
<IP_ADDRESS> through <IP_ADDRESS> to ``all oils carried as fuel or cargo.''

33 CFR 160.206 Information Required in an NOA

    The proposed rule would amend 33 CFR part 160 by adding a
requirement for vessel owners or operators to include the USCG vessel
response plan control number in the notice of arrival submission. As
noted in Section III.F, the VRP control number would better enable the
Coast Guard to determine if the vessel has an authorized GSA for each
of the USCG Captain of the Port Zones through which the vessel intends
to transit. VRP GSA requirements are contained in proposed 33 CFR
155.5035(i) for nontank vessels, and in 33 CFR 155.1035(i),
155.1040(j), and 155.1045(i) for vessels subject to subpart D. For
those vessels that are covered by more than one response plan,
submission of the VRP control number will notify the Coast Guard as to
which plan they are operating under.

V. Incorporation by Reference

    Material proposed for incorporation by reference appears in Sec.
155.5035. You may inspect this material at U.S. Coast Guard
Headquarters where indicated under ADDRESSES. Copies of the material
are available from the sources listed in Sec.  155.140.
    Before publishing a binding rule, we will submit this material to
the Director of the Federal Register for approval of the incorporation
by reference.

VI. Regulatory Analyses

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

A. Executive Order 12866

    This proposed rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. OMB has not reviewed it under that
Order.
    A combined Regulatory Analysis and an Initial Regulatory
Flexibility Analysis is available in the docket where indicated under
the ``Public Participation and Request for Comments'' section of this
preamble. A summary of the analysis follows:
    The proposed rule would implement the statutory requirements in 33
U.S.C. 1321(j)(5) for a U.S. and foreign flag vessel owner or operator
to prepare and

submit an oil spill response plan to the Coast Guard. The type of
vessels affected would be self-propelled, nontank vessels of 400 tons
or greater as measured under the convention measurement system or
regulatory measurement system, which operate on the navigable waters of
the U.S., and carries oil of any kind as fuel for main propulsion.
    The proposed rule would specify the content of a response plan,
including the requirement to plan for a response to a worst-case
discharge and a substantial threat of such a discharge. The proposed
rule would also specify the procedures for submitting a plan to the
Coast Guard.
    There are four cost elements associated with this proposed rule:
(1) The cost for nontank vessel plan development, maintenance, and
submission (2) the cost for a nontank vessel owner or planholder to
obtain the service of an Oil Spill Response Organization (OSRO), (3)
the cost for a nontank vessel owner or planholder to contract with a
Qualified Individual (QI) along with a Spill Management Team (SMT), and
(4) the cost for training and exercises.
    We base the cost estimates for plan development on information
contained in an OMB-approved collection of information (OMB 1625-0066).
We base the cost estimates associated with exercises on a combination
of information from the Bureau of Labor Statistics (BLS), the General
Services Administration, the OMB-approved collection of information,
publicly available information from OSRO contractors, and other
industry information. The OSRO and QI/SMT costs are based upon
information that we received from contacting plan preparers.
    We estimate this proposed rule would affect about 2,951 U.S. flag
vessels and 1,228 associated planholders. We estimate the proposed rule
would also affect about 9,264 foreign flag vessels and about 1,544
associated planholders.
    We present the costs of this proposed rule in 2008 dollars and
discount these costs to their present value (PV) over a 10-year period
of analysis, 2009-2018, using 7 and 3 percent discount rates. We also
estimate annualized costs of this proposed rule over the same 10-year
period of analysis. We estimate the total 10-year PV cost of this
proposed rule to U.S. flag nontank vessel owners and operators to be
about $111.4 million at a 7 percent discount rate and $134.8 million at
a 3 percent discount rate. We found the training and exercise
requirements to be the most costly element, or over 90 percent of the
total discounted cost of the proposed rule for vessel owners. We
estimate the total U.S. annualized cost of this proposed rule over the
10-year period of analysis to be about $15.8 million at both discount
rates.
    We estimate the total 10-year PV cost of this proposed rule to
foreign flag nontank vessels owners and operators to be about $151.6
million at a 7 percent discount rate and $183.6 million at a 3 percent
discount rate. We estimate annualized costs of this proposed rule to
foreign flag nontank vessel owners and operators over the 10-year
period of analysis to be about $21.6 million at both discount rates.
See Table 1 below.

 Table 1--Summary of Total 10-Year Discounted Costs of the Proposed Rule
         [2009-2018, 7 and 3 Percent discount rates, $Millions]
------------------------------------------------------------------------
                             Discount rates
-------------------------------------------------------------------------
                Cost item                    7 Percent       3 Percent
------------------------------------------------------------------------
U.S. vessel costs:
    Plan Development....................           $5.3            $6.0
    Contracted OSRO Service.............            0.46            0.56
    QI/SMT..............................            5.7             6.9
    Training, Drilling, and Exercises...           99.9           121.4
        Total U.S. Vessel Cost..........          111.4           134.8
        Total U.S. Annualized Cost......           15.8            15.8
Foreign vessel costs:
    Plan Development....................            6.7             7.5
    Contracted OSRO Service.............            1.5             1.8
    QI/SMT..............................           17.8            21.7
    Training, Drilling, and Exercises...          125.7           152.6
        Total Foreign Vessel Cost.......          151.6           183.6
        Total Foreign Annualized Cost...           21.6            21.6
        Total Cost of Proposed Rule.....          263.0           318.4
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.

    We estimate the total cost of the proposed rule to both the U.S.
and foreign fleets over the 10-year period of analysis to be $263.0 or
$318.4 million at 7 and 3 percent discount rates, respectively, with an
annualized cost of about $37.4 million at both discount rates. We
expect this proposed rule to provide quantifiable benefits in the form
of barrels of oil not spilled into the water in addition to qualitative
benefits, which include improved preparedness and reaction to an
incident, including a worst-case discharge, and improved effectiveness
of onboard and shore-side response activities.
    We based quantifiable benefits on a review of marine casualty cases
from our Marine Information for Safety and Law Enforcement (MISLE)
database for the period 2002-2006 in order to obtain casualty reports
involving self-propelled, nontank vessels of 400 gross tons or greater
that operated on the navigable waters of the U.S. and that carried oil
of any kind as fuel for main propulsion.
    We estimate the proposed rule would prevent between 2,014 and 2,446
barrels of oil from being spilled into the water during the 10-year
period of analysis, 2009-2018. See the regulatory analysis in the
docket for further detail.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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.
    We estimate that this proposed rule would affect about 1,228 U.S.
companies that own approximately 2,951 nontank vessels identified for
this proposed rule. We researched all 1,228 companies and found
company-specific information on 640 of them (about 52 percent). From
our analysis, we determined that 376 (about 59 percent) entities are
small entities based on the Small Business Administration (SBA) size
criteria of annual revenues and employment data. These 376 small
entities own 769 vessels or about two vessels per owner.
    Additionally, we found the remaining 588 of the 1,228 companies
that we researched lacked company data such as revenues and employee
size, which precluded us from using those companies in our analysis. We
assume that a majority of these 588 companies may be small entities.
    Using publicly available and proprietary data on owner revenue, we
estimated the initial and annual impact to small entities as a
percentage of annual revenue. We then determined the initial and annual
cost impact of this proposed rule on small entities.
    We found that the first year cost of the proposed rule would have a
one percent or less impact on 50 percent of the small entities that we
analyzed. We found that the first year cost of the proposed rule would
have a 3 percent or less impact on 68 percent of the small entities
that we analyzed.
    We found that the annual cost of the proposed rule would have a 1
percent or less impact on 55 percent of the small entities that we
analyzed. We found that the annual cost of the proposed rule would have
a 3 percent or less impact on 73 percent of the small entities that we
analyzed.
    We are interested in the potential direct impacts of this proposed
rule on small entities and we request public comment on these potential
direct impacts. If you think that your business, organization, or
governmental jurisdiction qualifies as a small entity and that this
rule would have a significant economic impact on it, please submit a
comment to the Docket Management Facility at the address under
ADDRESSES. In your comment, explain why you think it qualifies and how
and to what degree this rule would economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult Lieutenant Jarrod
DeWitz at<PHONE_NUMBER> or<EMAIL_ADDRESS>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.
    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).

D. Collection of Information

    This proposed rule would call 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, a
description of those who must collect the information, and an estimate
of the total annual burden 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 rulemaking modifies two existing OMB-approved collections of
information, 1625-0066 and 1625-0100. Details are provided below.
    OMB Control Number: 1625-0066.
    Title: Vessel and Facility Response Plans (Domestic and Int'l), and
Additional Response Requirements for Prince William Sound, Alaska.
    Summary of the Collection of Information: A nontank vessel owner or
operator would need to prepare and submit to the Coast Guard a nontank
vessel response plan in accordance with proposed 33 CFR part 155,
subpart J. The content of the response plan would include the
requirement to plan for responding to a worst case discharge and a
substantial threat of such a discharge. Additionally, submissions of
international SOPEPs for certain U.S. flag nontank and tank vessels
will require alignment with updated SOPEP rules.
    Need for Information: The information is necessary to show evidence
that planholders have properly planned to prevent or mitigate oil
outflow and to provide information to the Coast Guard for its use in
emergency response.
    Proposed Use of Information: The Coast Guard will use the
information to determine whether a nontank vessel response plan meets
the requirements.
    Description of the Respondents: The respondents are nontank vessel
response planholders and SOPEP planholders.
    Number of Respondents: The existing OMB-approved number of
respondents is 9,834. This proposed rule would increase that number by
772 respondents. The total number of respondents would be 10,606.
    Frequency of Response: The existing OMB-approved number of
responses is 32,675. This proposed rule would increase that number by
1,453 responses.
    Burden of Response: The existing OMB-approved burden of response is
a range of 3 to 40 hours per NTVRP activity (i.e., initial plan
development, plan revision, annual recordkeeping, 5-year resubmission).
    Estimate of Total Annual Burden: The existing OMB-approved total
annual burden is 220,559 hours. This proposed rule would increase that
number by 14,415 hours.
    OMB Control Number: 1625-0100.
    Title: Advance Notice of Vessel Arrival.
    Summary of the Collection of Information: The Coast Guard requires
pre-arrival notices from certain vessels entering a port or place of
the United States. This proposed rule would add one new data element
(the VRP control number) to the 40 data elements that are currently
required by 33 CFR part 160.
    Need for Information: In general, the Coast Guard uses notice of
arrival information to ensure port safety and security, and to ensure
the uninterrupted flow of commerce. In particular, the addition of the
VRP control number would enable the Coast Guard to determine if the
vessel has an authorized GSA for each COTP zone through which the
vessel intends to transit.
    Proposed Use of Information: This information is required to
control vessel traffic, develop contingency plans, and enforce
regulations.
    Description of the Respondents: Respondents are the owner, agent,

master, operator, or person in charge of a vessel that arrives at a
port or place of the United States.
    Number of Respondents: The existing OMB-approved number of
respondents is 9,206. This proposed rule would not change that number.
The total number of respondents would remain 9,206.
    Frequency of Response: The existing OMB-approved number of
responses is 78,538. This proposed rule would not change that number.
The total number of responses would remain 78,538.
    Burden of Response: The existing OMB-approved burden of response is
approximately 2.5 hours (150 minutes) per response. The additional
burden imposed by this proposed rule is estimated to be so minimal that
it does not merit changing the approved collection. For this
collection, we propose to add one data element, the VRP control number,
to the currently required 40 data elements for the notice of arrival.
The VRP control number is a ``static'' data element issued once every 5
years or longer, while some of the 40 other data elements change with
each voyage (such as last port of call, cargo, or crew list).
Therefore, we believe the 150-minute burden currently approved for this
collection more than adequately covers the post rulemaking 41 data
elements and the burden of response should remain unchanged.
    Estimate of Total Annual Burden: The existing OMB-approved total
annual burden is 200,039 hours. Because the additional burden imposed
by this proposed rule is estimated to be so minimal, it does not merit
changing the approved annual burden. The estimated total annual burden
would remain 200,039 hours.
    In addition to this rulemaking, COI 1625-0066 is being revised by
two other Coast Guard rulemakings. These rulemakings are: (1) Salvage
and Marine Firefighting Requirements; Vessel Response Plans for Oil
[Docket No. USCG-1998-3417; RIN 1625-AA19]; and (2) Vessel and Facility
Response Plans for Oil: 2003 Removal Equipment Requirements and
Alternative Technology Revisions [Docket No. USCG-2001-8661; RIN 1625-
AA26]. Once these rulemakings are finalized, the hour burden for 1625-
0066 will differ from the figures noted above. See the COI preamble
section of each rulemaking for details on how the hour burden will
differ.
    In addition to this rulemaking, COI 1625-0100 is being revised by
two other Coast Guard rulemakings. These rulemakings are: (1) Vessel
Requirements for Notices of Arrival and Departure, and Automatic
Identification System [Docket No. USCG-2005-21869; RIN 1625-AA99]; and
(2) Notification of Arrival in U.S. Ports; Certain Dangerous Cargoes;
Electronic Submission [Docket No. USCG-2004-19963; RIN 1625-AA93]. Once
these rulemakings are finalized, the hour burden for 1625-0100 will
differ from the figures noted above. See the COI preamble section of
each rulemaking 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 proposed rule to the Office
of Management and Budget (OMB) for its review of the collection of
information.
    We ask for public comment on the proposed collection of information
to help us determine how useful the information is; whether it can help
us perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
    If you submit comments on the collection of information, submit
them both to OMB and to the Docket Management Facility where indicated
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Before the Coast
Guard could enforce the collection of information requirements in this
proposed rule, OMB would need to approve the Coast Guard's request to
collect this information.

E. Federalism

    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 categories reserved for regulation by the Coast Guard.
It is also well settled, 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 casualty reporting and any other
category in which Congress intended the Coast Guard to be the sole
source of government-imposed vessel 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 (2000)).
    This NPRM describes the proposed standards to which nontank vessel
owners and operators would adhere when preparing and submitting plans
for responding to a discharge of oil from their vessels. We have
drafted this proposed rule to ensure that, to the extent practicable,
it is consistent with any applicable State-mandated response plan in
effect on August 9, 2004. To that end, we have conducted a search of
State laws addressing NTVRPs and conclude that no State law would be
preempted when this rule is made final. That said, we have found that a
few State laws authorize nontank vessel owners and operators to, among
other options, contract with intermediaries as a method of complying
with State laws that require nontank vessel owners or operators to
ensure the availability of oil spill removal organization by contract
or other approved means. Those intermediaries, generally, do not own
the oil spill removal resources and usually contract with third-party
companies to fulfill the State requirement. Our proposed rule does not
allow for the third-party intermediary option, because we interpret the
OPA 90 to require a direct contractual relationship between vessel
owners or operators and the organization owning the oil spill removal
organization. Because the vessel owner or operator may comply with both
State law and Federal law on this topic so long as, among other things,
there is a direct contractual relationship between the vessel owner or
operator and the oil spill removal organization, we believe this
proposed rule will not preempt the various State laws on this topic.
However, to ensure that those States that may have an interest in this
rulemaking are provided with adequate opportunity to comment upon
potential federalism issues, we will provide separate notice of this
NPRM to the States.

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 proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.

G. Taking of Private Property

    This proposed 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.

J. Indian Tribal Governments

    We do not expect this proposed rule to have tribal implications
under Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, because we do not expect it to 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. We invite your comments on this assessment and if tribal
implications are identified during the comment period we will undertake
appropriate consultations with the affected Indian tribal officials.

K. Energy Effects

    We have analyzed this proposed 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 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 proposed rule uses the following voluntary consensus
standards:
     IMO Resolution A.741(18), International Management Code
for the Safe Operation of Ships and for Pollution Prevention
(International Safety Management (ISM) Code), November 4, 1993.
     IMO Resolution A.851(20), General Principles for Ship
Reporting Systems and Ship Reporting Requirements, Including Guidelines
for Reporting Incidents Involving Dangerous Goods, Harmful Substances
and/or Marine Pollutants, November 27, 1997.
     IMO Resolution MSC.104(73), Adoption of Amendments to the
International Safety Management (ISM) Code, December 5, 2000.
     Oil Companies International Marine Forum's Ship to Ship
Transfer Guide (Petroleum), Fourth Edition 2005. The proposed sections
that reference these standards and the locations where these standards
are available are listed in Sec.  155.140.

M. Environment

    We have analyzed this proposed rule under Commandant Instruction
M16475.lD and Department of Homeland Security Management Directive 023-
01, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have made a preliminary determination that, under the Commandant
Instruction, this action is not likely to have a significant effect on
the human environment. A preliminary environmental analysis checklist
supporting this preliminary determination is available in the docket
where indicated under the ``Public Participation and Request for
Comments'' section of this preamble. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this proposed rule.

List of Subjects

33 CFR Part 151

    Administrative practice and procedure, Oil pollution, Penalties,