of fuel from a number of facilities up river from the wreck. While
trucking of fuel was an option, the cost to do this was reported to be
significant. In short, the owner made multiple attempts to re-float the
barge over a three-month period before it was ultimately re-floated. If
a reputable salvor had been pre-contracted as required by this
rulemaking, the vessel could have been removed within a two-to-three
week period.
    Conversely, an example of the benefit of the VRP planholder having
a pre-arranged contract with a reputable salvor can also be found in
the salvage response to the T/V WHITE SEA, a 243-meter motor tanker,
which ran aground near Ambrose Light, off Coney Island, New York on
July 12, 2007. The tanker was outbound fully loaded with 548,000
barrels of Low Sulfur Fuel Oil (LSFO) when she had a steering
malfunction and ran aground. Immediately upon notification, the COTP
asked owners to follow their VRP and activate their salvor. The
vessel's response providers mobilized a team of salvage experts, which
arrived on site within hours of the casualty.
    The response providers' salvage engineers, along with the Salvage
Engineering Response Team from the U.S. Coast Guard, worked through the
day to develop an incident salvage plan and lightering plan. Once
approval was obtained from the Coast Guard, the salvage team worked
through the night to remove 120,000 barrels of product from the
grounded tanker. Although there was no penetration of the cargo tanks,
the vessel did suffer two breaches to the ballast tanks. Upon
completion of the lightering and deballasting operations, the vessel
was safely refloated during the high tide on Friday, July 13th,
utilizing four local tugs.
    The response provider immediately commenced an underwater
inspection of the ship's hull in conjunction with local authorities and
the vessel's classification society, American Bureau of Shipping (ABS).
Further planning was undertaken to prepare and obtain approval from the
Coast Guard for the full discharge of cargo from the casualty. Under
the direct supervision of company personnel, all 548,000 barrels of
cargo were transferred on to another vessel to enable the WHITE SEA to
safely transit light ship to a repair facility.
    One commenter stated that there are very capable salvors, marine
salvage and survey engineers, and certified marine firefighters, etc.
who prefer to provide independent, nonexclusive, remote, and on-site
assessment and consultation services, which should minimize the
increase in cost to the industry. The commenter added that this will
allow the owners, as part of the unified command, to select the most
suitable salvage and firefighting resources for

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

M. Considerations for Choosing Resource Providers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

O. Worker Health and Safety

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

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

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

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

P. Waiver Provisions

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

Q. Economic Comments

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

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

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

The regulatory assessment goes on to note that the:

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

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

R. Environment Comments

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

S. Tribal Consultation

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

T. Miscellaneous

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

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

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

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

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

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

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

U. Beyond the Scope

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

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

VI. Incorporation by Reference

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

VII. Regulatory Analyses

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

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

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

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

B. Small Entities

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

C. Assistance for Small Entities

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

D. Collection of Information

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

E. Federalism (E.O. 13132)

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

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

F. Unfunded Mandates Reform Act

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

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

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

L. Technical Standards

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

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

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

M. Environment

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

List of Subjects for 33 CFR Part 155

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

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

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

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

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

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

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

Sec.  155.130  Exemptions.

* * * * *

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

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

Sec.  155.140  Incorporation by reference.

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

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

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

Sec.  155.1020  Definitions.

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

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

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

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

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

Subpart I--Salvage and Marine Firefighting

Sec.  155.4010  Purpose of this subpart.

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

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

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

Sec.  155.4020  Complying with this subpart.

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

Sec.  155.4025  Definitions.

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

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

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

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

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

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

----------------------------------------------------------------------------------------------------------------
                              Service           Location of incident response activity
                                                               timeframe
----------------------------------------------------------------------------------------------------------------
(1) Salvage.......................................................                      CONUS: nearshore       CONUS: offshore area;
                                                                    area; inland waters;                  and OCONUS: < or = 50
                                                                        Great Lakes; and            miles from COTP city
                                                                                OCONUS: < or = 12(hours)
                                                                             miles from COTP city
                                                                                (hours)
(i) Assessment & Survey:
    (A) Remote assessment and consultation........................                     1                      1
    (B) Begin assessment of structural stability..................                     3                      3
    (C) On-site salvage assessment................................                     6                     12
    (D) Assessment of structural stability........................                    12                     18
    (E) Hull and bottom survey....................................                    12                     18
(ii) Stabilization:
    (A) Emergency towing..........................................                    12                     18
    (B) Salvage plan..............................................                    16                     22
    (C) External emergency transfer operations....................                    18                     24
    (D) Emergency lightering......................................                    18                     24
    (E) Other refloating methods..................................                    18                     24
    (F) Making temporary repairs..................................                    18                     24
    (G) Diving services support...................................                    18                     24
(iii) Specialized Salvage Operations:
    (A) Special salvage operations plan...........................                    18                     24
    (B) Subsurface product removal................................                    72                     84
    (C) Heavy lift \1\............................................             Estimated              Estimated
----------------------------------------------------------------------------------------------------------------
(2) Marine firefighting....................       At pier (hours)                       CONUS: Nearshore      *COM041*CONUS:
                                                                    area; inland waters;     Offshore area; and
                                                                        Great Lakes; and                      OCONUS: < or = 50
                                                                                OCONUS: < or miles from COTP city