[Federal Register: December 31, 2008 (Volume 73, Number 251)]
[Rules and Regulations]
[Page 80617-80654]
[DOCID:fr31de08-15]

-----------------------------------------------------------------------

Part IV

Department of Homeland Security

-----------------------------------------------------------------------

Coast Guard

33 CFR Part 155

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

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 155

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

Salvage and Marine Firefighting Requirements; Vessel Response
Plans for Oil

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

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

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

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

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

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Abbreviations

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

II. Regulatory History

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

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

III. Background and Purpose

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

IV. Summary of Changes From NPRM

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

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

V. Discussion of Comments and Changes

A. Introduction

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

B. General

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

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

C. Twenty-Four-Hour Response Time

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

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

D. Need for the Regulation

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

    Section 4202 * * * (5) TANK VESSEL AND FACILITY RESPONSE PLANS.,
(A) The President shall issue regulations which require an owner or
operator of a tank vessel or facility described in subparagraph (B)
to prepare and submit to the President a plan for responding, to the
maximum extent practicable, to a worst case discharge, and to a
substantial threat of such a discharge, of oil or a hazardous
substance. [See 33 U.S.C. 1321(j)(5)]

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

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

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

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

E. Applicability

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

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

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

    The President shall also issue regulations which require an
owner or operator of a nontank vessel to prepare and submit to the
President a plan for responding, to the maximum extent practicable,
to a worst case discharge, and to a substantial threat of such a
discharge, of oil. (Section 701 of Pub. L. 108-293).

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

F. Incorporation by Reference

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

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

G. Compliance Dates

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

H. Definitions

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

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

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

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

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

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

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

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

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

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

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

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

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

I. Response Times

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

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

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

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

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

J. Use of Resource Providers During Actual Incident

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

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

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

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

K. Required Services

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

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

or Sec.  155.1040(c):

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

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

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

Posture of the United States, p. 36; Copyright 1994, available
through the National Academy Press,<PHONE_NUMBER>)

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

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

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

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

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

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

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

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

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

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

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

L. Funding Agreements

    Four commenters said that the concept of a pre-agreement, in regard
to funding agreements, makes sense in order to eliminate time lost to
contract negotiations. The Coast Guard agrees. In order to mount a
timely response, contractual agreements must be in place prior to an
incident. Hesitation in awarding a salvage contract can have extremely
negative effects on the outcome of response operations. By ensuring
that a funding agreement is in place, this regulation will eliminate
the need for any on-scene decision making regarding which resource
provider to hire for the incident response. We have added text to the
definition of Funding agreement (Sec.  155.4025) to ensure the funding
agreement is included in the VRP prior to the plan's approval by the
Coast Guard.
    One commenter suggested that the use of non-dedicated resources is
a viable and commercially acceptable, cost-effective way of conducting
emergency-response business, and therefore should be utilized to
establish appropriate salvage and firefighting standards. The Coast
Guard disagrees. This rulemaking has been designed to mirror the
success that the OSROs and planholders have had with pre-arranged
contracts as required in 33 CFR part 155. This will ensure that both
industry and resource providers are clearly aware of who will respond
on scene, and in what timeframe they are capable of arriving based on
the vessel's location, prior to any incident. An example of the need
for pre-arranged contracts can be found in casualty case histories. For
example, a casualty involving an explosion and grounding occurred on a
20,000 barrel inland petroleum tank barge operating in the Chicago
Canal system. The vessel lost its deck, but maintained some buoyancy in
its intact bow tanks. The owner was the named salvor in the existing
VRP. The owner had no legitimate, actual salvage operations experience.
Because the vessel posed a minor pollution concern, the primary concern
of the FOSC was that the vessel's location prohibited delivery/pick up