1625-0066 S&F Final rule

Wednesday,
December 31, 2008

Part IV

Department of
Homeland Security

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Coast Guard
33 CFR Part 155
Salvage and Marine Firefighting
Requirements; Vessel Response Plans for
Oil; Final Rule

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Federal Register / Vol. 73, No. 251 / Wednesday, December 31, 2008 / Rules and Regulations
Manager, Docket Operations, telephone
202–366–9826.
SUPPLEMENTARY INFORMATION:

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
Coast Guard, DHS.
Final rule.

AGENCY:
ACTION:

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 § 155.1050, which is
effective February 12, 2009. The
incorporation by reference of certain
publications listed in the rule is
approved by the Director of the Federal
Register on January 30, 2009.
ADDRESSES: Comments and material
received from the public, as well as
documents mentioned in this preamble
as being available in the docket, are part
of docket USCG–1998–3417 and are
available for inspection or copying at
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet at http://
www.regulations.gov, selecting the
Advanced Docket Search option on the
right side of the screen, inserting USCG–
1998–3417 in the Docket ID box,
pressing Enter, and then clicking on the
item in the Docket ID column.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, or for
questions regarding the Vessel Response
Plan Program, contact Lieutenant
Commander Ryan Allain at 202–372–
1226 or [email protected]. If you
have questions on viewing the docket,
call Ms. Renee V. Wright, Program

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SUMMARY:

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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 ................
ANSI ...............

Area Contingency Plan.
American National Standards Institute.
American Society for Testing
and Materials.
Basic Ordering Agreement.
Continental United States.
Captain of the Port.
Environmental Assessment.
Finding of No Significant Impact.

ASTM .............
BOA ...............
CONUS ..........
COTP .............
EA ..................
FONSI ............

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Abbreviations

Explanation

FOSC .............

Federal On-Scene Coordinator.
Federal Water Pollution Control Act.
Incident Command System.
International Maritime Organization.
Letter of Intent.
Maritime Administration.
Maritime Fire and Safety Association.
National Archives and
Records Administration.
National Environmental Policy Act.
National Fire Protection Association.
National Incident Management System.
Notice of Proposed Rulemaking.
Net Present Value.
National Technology Transfer and Advancement Act.
Navigation and Vessel Inspection Circular.
Oil Companies International
Marine Forum.
Outside the Continental
United States.
Oil Pollution Act of 1990.
Occupational Safety and
Health Administration.
Oil Spill Removal Organization.
Protection and Indemnity.
Programmatic Regulatory
Assessment.
Qualified Individual.
Salvage Engineering Response Team.
International Convention for
the Safety of Life at Sea,
1974.
International Convention on
Standards of Training,
Certification and
Watchkeeping, 1978.
Unified Command System.
Vessel Response Plan.
Vessel Traffic Service.

FWPCA ..........
ICS .................
IMO ................
LOI .................
MARAD ..........
MFSA .............
NARA .............
NEPA .............
NFPA .............
NIMS ..............
NPRM ............
NPV ................
NTTAA ...........
NVIC ..............
OCIMF ...........
OCONUS .......
OPA 90 ..........
OSHA .............
OSRO ............
P&I .................
PRA ................
QI ...................
SERT .............
SOLAS ...........
STCW ............

UCS ...............
VRP ................
VTS ................

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 24hour 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:

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(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 24hour 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 24hour 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

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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 24hour 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

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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 (§ 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 (§ 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 (§ 155.4015) to
read ‘‘You must follow this subpart if
your vessel carries group I–IV oils, and

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is required by § 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
(§ 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
(§ 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 preincident information and arrangements
for the salvage and marine firefighting
resource providers listed in response
plans section (§ 155.4035) by deleting
the referenced cite § 155.1045(c) from
the text in § 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
(§ 155.4010 to § 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
§ 155.4030(b) will apply to these
services.
• We corrected the Integration into
the response organization paragraph
(§ 155.4030(c)) by listing the appropriate
cross reference cites §§ 155.1035(d),
155.1040(d) and 155.1045(d).
• We revised the Coordination with
other response resource providers,
response organizations and OSROs
paragraph (§ 155.4030(d)) by adding text
requiring that the information contained
in the response plan must be consistent
with applicable Area Contingency Plans

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(ACPs) and the National Oil and
Hazardous Substances Pollution
Contingency Plan as found in
§ 155.1030(h).
• We revised the Ensuring firefighting
equipment is compatible with your
vessel paragraph (§ 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
(§ 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 § 155.4030(i)) to
§ 155.4032(b) and added reference cites.
• We revised the Required preincident information and arrangements
for the salvage and marine firefighting
resource providers listed in response
plans section (§ 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 (§ 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 (§ 155.4052) to highlight that
Salvage and Marine firefighting
components are part of the existing
exercise requirements for vessels
holding VRPs, as found in §§ 155.1060
and 155.1065.

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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

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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 commonsence 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,

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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

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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 recapitalization 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 riskbased 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.

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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 24hour 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,

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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 § 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,

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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
§ 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.

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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:

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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
§ 4202(a) of OPA 90 and amended
§ 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.

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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 § 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 § 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
§ 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

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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 selfpropelled 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
§ 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
§ 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

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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 § 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 § 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 §§ 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

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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
§§ 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
§ 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 § 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.

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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
§ 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
§ 155.4025 does not substantially differ
from § 155.1020.
Two commenters stated that the
proposed § 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 § 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 § 155.4025 does not
substantially differ from § 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 § 155.4025.

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One commenter stated that the
definition of ‘‘emergency lightering’’
should be included in § 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.

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However, we have removed the word
‘‘danger’’ from the definition for clarity
and to match the wording in
§ 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
§ 155.4035(b) and agrees. We have
added the definition of a marine
firefighting pre-fire plan into § 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, § 155.4025, because it is
already included in subpart D,
§ 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 § 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

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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
§ 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 § 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
§ 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
§ 155.4045(d).
Seven commenters asked that the
definition for ‘‘resource provider’’ be
rewritten to include reference to the
training and qualification criteria in
§ 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,

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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
§ 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

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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
§ 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

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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 § 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 onehour 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

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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-

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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, § 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 marinefirefighting 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.

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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
(§ 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.

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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 12hour timeframe, depending on whether
the incident occurs within 12 miles or
50 miles offshore. Due to the companyspecific 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

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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:

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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.

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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 § 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

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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 preapproved 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 § 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’’

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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 § 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, § 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

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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
§ 155.1035(c):
Shipboard spill mitigation procedures for
manned vessels carrying oil as a primary
cargo,

or § 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 §§ 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
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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 nonprescriptive 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

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

This final rule, while including
dedicated salvors in the area of resource
providers, does not limit the ability of
anyone to enter into contractual
agreements with the planholder. In fact,
we recognize in § 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
§ 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’’

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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

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specific, FOSC request for a Jones Act
waiver is a separate and different issue
than the waiver discussed in
§ 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., refloating 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. Heavylift 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,
§ 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

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Federal Register / Vol. 73, No. 251 / Wednesday, December 31, 2008 / Rules and Regulations
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
§§ 155.1035(i)(9) and 155.1040(j)(9),
which state:

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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,
§§ 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 geographicalspecific appendix as found in
§§ 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

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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 § 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
§ 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

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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 § 155.4030(a). To
clarify this, we have added a definition
for ‘‘primary resource provider’’ to
§ 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

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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 §§ 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
§ 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 (5meter) 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 § 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)

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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

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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
§ 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
§ 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 § 155.4030(g).
The Coast Guard agrees and has added
text to § 155.4030(g) to clarify that the
‘‘resources’’ that must be identified in

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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

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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
§ 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.

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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 § 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

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the emergency incident in the first
place. Therefore, the requirement of
§ 155.4030(f) that the salvage resource
provider be able to deliver the required
on-scene pumping capability remains
unchanged.
One commenter stated that
§ 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 deepwater 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 § 155.4055(g)(7).
This request for a specialized salvage
operations waiver is a separate and
different issue than found in
§ 155.4055(c), which states the
emergency lightering requirement is not

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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 (§ 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, costeffective way of conducting emergencyresponse business, and therefore should
be utilized to establish appropriate
salvage and firefighting standards. The
Coast Guard disagrees. This rulemaking
has been designed to mirror the success
that the OSROs and planholders have
had with pre-arranged contracts as
required in 33 CFR part 155. This will
ensure that both industry and resource
providers are clearly aware of who will
respond on scene, and in what
timeframe they are capable of arriving
based on the vessel’s location, prior to
any incident. An example of the need
for pre-arranged contracts can be found
in casualty case histories. For example,
a casualty involving an explosion and
grounding occurred on a 20,000 barrel
inland petroleum tank barge operating
in the Chicago Canal system. The vessel
lost its deck, but maintained some
buoyancy in its intact bow tanks. The
owner was the named salvor in the
existing VRP. The owner had no
legitimate, actual salvage operations
experience. Because the vessel posed a
minor pollution concern, the primary
concern of the FOSC was that the
vessel’s location prohibited delivery/
pick up of fuel from a number of
facilities up river from the wreck. While
trucking of fuel was an option, the cost
to do this was reported to be significant.
In short, the owner made multiple

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

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each individual emergency and thereby
improve the response beyond that
available via individual entities heavily
reliant on dedicated resources. The
Coast Guard agrees that there are very
capable resource providers who may
prefer to provide independent,
nonexclusive services. However, we feel
that there is a need to ensure that an
incident be responded to quickly and
without the need for contract
negotiations during an actual
emergency. In order to ensure this
happens, contracts must be in place as
part of the vessel’s response plan. In
regards to the ability of the unified
command to select other than
contracted resource providers, and as
noted earlier in this discussion, the U.S.
Coast Guard agrees that there may be a
need for flexibility to use other than
contracted resources, under exceptional
circumstances, during an incident if it is
in the best interest of the response. We
have added this authorization into
§ 155.4032(a) of the final rule.
One commenter wants the
requirement for a funding agreement
between the resource provider and the
planholder, specifically with reference
as to who will have access to that
agreement, be deleted. The Coast Guard
disagrees. We require access to that
agreement only to verify that it is in
place, agreed to by both parties, and
ensures the adequacy of the response
plan itself. This agreement must be part
of the contract or other approved means
that ensures response resources will
support the vessel’s plan. While the
funding agreement might not be part of
your VRP, all agreements that support a
particular VRP must be reviewed by the
USCG prior to approval.
Two commenters stated that a letter of
intent (LOI) should meet the ‘‘other
approved means’’ definition as long as
there is a provision for a funding
agreement. The Coast Guard disagrees.
An LOI is a letter from one company to
another acknowledging a willingness
and ability to do business and cannot be
enforced, as it is just a document stating
serious intent to carry out certain
business activities. This rulemaking
requires a contract, which is an
enforceable written agreement between
a vessel owner or operator and resource
provider. This agreement must
expressly provide that the resource
provider is capable of, and committed
to, meeting the VRP requirements.
One commenter recommended using
named consultants, instead of
companies, to reduce owner cost and
create flexibility to bring in any
firefighting assets rather than using a
company named in the contract. The
Coast Guard disagrees. The intent of the

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regulation is to have personnel and
resources under contract that are
capable and contractually obligated to
respond, not simply consultants.
Section 155.4050(b)(3) asks planholders
to consider whether the resource
provider owns or has contracts for
equipment needed to perform the
response services as a criterion for
selection of a resource provider.
One commenter asked how practical
it is to expect planholders and resource
providers to develop pre-negotiated
pricing for services for all of the myriad
circumstances and geographic locations
of casualties. While the Coast Guard
agrees that there will be many different
variables in the level and detail of
responses to an incident, it is possible
for the planholders and resources
providers to work out funding
agreements during the contractual
negotiations. One such method has been
for contracting parties to use a Basic
Ordering Agreement (BOA) prior to any
actual response. Regardless, the Coast
Guard feels that contracts between the
planholder and the resource provider
are best left to their discretion, and will
not be specifically addressed in this
regulation.
One commenter stated that it is
unrealistic to include a written funding
agreement as part of the ‘‘contract or
other approved means.’’ The commenter
noted that the assumptions that the
absence of a funding agreement will
delay a response because of negotiations
or that the presence of one will not
delay a response may be equally
specious. The Coast Guard disagrees. A
funding agreement is of primary
importance in ensuring there are no
delays in a response due to contract
negotiations.
M. Considerations for Choosing
Resource Providers
1. General
One commenter asked what it means
to be ‘‘capable to respond’’ or ‘‘capable
of providing service,’’ and if that means
capable subject to availability. The
definition of ‘‘capable’’ is ‘‘having
attributes required for performance or
accomplishment’’ (Webster’s Ninth New
Collegiate Dictionary, 1991). As used in
the regulation this means that the
planholders will only list in their VRP
resource providers who have provided
written consent to be included. This
written consent would include a
statement from the resource provider
that they are capable of providing the
salvage and/or marine firefighting
services they contracted to provide
within the response times in Table
155.4030(b), Salvage and Marine

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80635

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

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providing coverage. The existing
firefighting vessels in question may not
be appropriate for the largest tankship,
but they could be used for smaller
tankships and tank barges. If the
referenced vessels meet the
requirements of § 155.4030(g), the
existing vessels may be listed as
resource providers.
One commenter stated that the
proposed rule does not recognize a ship
owner’s ability to assess structural
stability using in-house or classification
society resources. Section 155.4050
states that the planholder is responsible
for determining the adequacy of the
resource providers they intend to
include in their VRPs, and sets forth 13
criteria, which must be considered in
that selection. Nothing in this
rulemaking precludes a planholder from
listing either in-house resources or
classification societies as long as they
have addressed the criteria listed in
§ 155.4050, have certified in the VRP
that the criteria was considered, and the
potential resource providers agree to be
listed in the VRPs.
One commenter stated that the rule as
written would encourage the
development of private and public
firefighting capabilities at each port
where the transfer of oil takes place, and
that tank vessel owners and operators
would be forced to enter into multiple
contracts for firefighting services in the
geographical areas served. The Coast
Guard agrees in part and understands
multiple contracts in a geographical area
may occur. Planholders must submit
their VRPs in accordance with the
geographic-specific appendices as found
in § 155.1035(i)(9) and § 155.1040(j)(9).
In doing so, planholders must list each
required resource provider that is under
a contract or other approved means to
respond within that specific area. This
rule does not require planholders to
enter into multiple firefighting contracts
within a specific area. Based on
industry information, national
firefighting companies are currently
available and offer a variety of response
solutions for firefighting packages of
equipment, materials, and personnel in
various geographical areas. Industry also
indicated that they would respond to
large fires involving cargo by contacting
one of these major national firefighting
companies rather than rely on local
resources.
One commenter asked how the Coast
Guard will determine if contracted
towing vessels have the adequate
horsepower and/or bollard pull required
by § 155.4030(e). The commenter
requested that we bear in mind the
requirements of 33 CFR part 168 ‘‘Escort
requirements for certain tankers,’’ which

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governs operations in many ports.
Section 155.4030(e) states that the
planholder must ensure the proper
towing vessels are listed in the VRP. It
is the planholder’s responsibility, when
determining adequacy of the contracted
resource providers, to hire resource
providers that have towing vessels
which meet the listed criteria, and to list
those vessels in the VRP. Part 168
‘‘Escort requirements for certain
tankers,’’ applies only to laden, singlehull tankers of 5,000 gross tons or more,
transiting Prince William Sound and
Puget Sound. In addition, the
performance and operational
requirements required by § 168.50 are
more stringent that what is required in
§ 155.4030(e). However, if a towing
vessel meets the requirements of 33 CFR
168 it would also suffice for this
rulemaking. Therefore, the NPRM and
the final rule contain these minimum
requirements to meet the stated purpose
of this regulation.
One commenter stated that involving
firefighters in vessel response plan
development is not a reasonable
requirement because it only makes the
VRP development and approval process
longer and more costly. The Coast
Guard disagrees. Section 155.4045(b)
requires the resource provider to certify
in writing that they find the VRP
acceptable. It does not require them to
be involved in drafting the VRP;
however, if they find it unacceptable,
we anticipate the planholder and
resource provider will work together to
formulate a VRP that all parties agree to
and that meets the requirements of this
regulation.
One commenter stated that
§ 155.4035(b)(2) requires the planholder
to present a copy of the marine
firefighting pre-fire plan to the resource
provider. The resource provider must
then certify, in writing, that they find
the VRP acceptable and agree to
implement the VRP. The commenter
recommended that, as an alternative,
this certification be included as part of
the ‘‘written consent’’ document
provided to the planholder certifying
that they can meet the services listed
under §§ 155.4030(a) through (g). The
Coast Guard disagrees. The marine
firefighting pre-fire plan is vessel
specific; therefore, it is imperative that
the resource provider have in their
possession an exact copy, for each
vessel that they have been contracted for
responding to a casualty for pre-fire
incident planning and training
purposes.
One commenter stated that for ships
traveling to multiple ports, the
requirement to have marine-firefighting
resources providers certify, in writing,

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that they accept and agree to implement
the VRP is a very difficult issue. The
only alternative may be to create
multiple individual ‘‘marine-firefighting
pre-fire plans’’ for each vessel, which
adds possible confusion to the response.
The Coast Guard disagrees. Firefighting
resource providers will need to certify
in writing that they agree to be listed in
the VRP as part of a contractual
agreement. They can choose whether or
not to do so. The Coast Guard
determined that the commenter might
have misunderstood the requirement for
a pre-fire plan as stated in
§ 155.4035(b)(2). There will not have to
be multiple pre-fire plans for each
vessel. There is a distinct difference
between the VRP and the pre-fire plan.
The VRP will have a listing of multiple
resource providers. However, there
needs to be only one pre-fire plan per
vessel as it deals with the character,
construction, cargo, and safety systems
of the vessel itself.
One commenter stated that the rule
has no requirements related directly to
the adequacy of the resource provider.
The commenter asked what process is in
place to assure the public that the
resource providers are not committed
beyond their capabilities, suggesting
that there be limitations on how many
times a resource provider may be listed
in vessel VRPs. The commenter asked
what mitigating factors will be in place
should the resource provider be unable
to respond within the time allotted by
the proposed regulations. While there
are no direct requirements stating
adequacy of resource providers, there is
an extensive section, § 155.4050,
detailing the importance of the selection
criteria for planholders to consider in
selecting a resource provider. It is in the
planholder’s best interest to approach
the selection process in a vigorous and
exacting manner. Limiting the number
of VRPs in which a resource provider
can be listed will not be addressed as
any limit on the number of a resource
provider’s clients would necessarily be
arbitrary because of the wide variation
in resource provider size and capability.
The availability of services to meet a
planholder’s needs is a planholder’s
responsibility and is a factor a
planholder should consider when
contracting with the resource provider.
In the event of a spill, the Coast Guard
will expect the planholder to respond in
accordance with its VRPs (unless
specific circumstances warrant
deviations, as already discussed),
regardless of other spill events that may
be occurring at the time of the response.
Therefore, in its planning process, the
planholder should discuss with its

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

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selection of a resource provider, and
insurance is one of them, it is only
required to be considered by the
planholder for selection. In other words,
in certain situations where state or local
laws permit, it may be completely
acceptable for a planholder to select an
uninsured resource provider.
One commenter stated that
qualifications through experience are
not an adequate measure to judge a
person’s or organization’s ability to
respond in a marine firefighting
incident. The Coast Guard agrees;
§ 155.4050 lists 13 separate selection
criteria, of which qualifications through
experience is only one part.
Five commenters stated that a
‘‘successful record of participation in
drills and exercises’’ (§ 155.4050(b)(7))
and ‘‘membership in organizations’’
(§ 155.4050(b)(9)) are not valid criteria
for selection, and that they should be
deleted. The Coast Guard disagrees.
This section states that:
When determining adequacy of the
resource provider, you must consider as a
minimum the following selection criteria.

Both of these issues are marks of
professionalism and lend credibility for
a planholder’s selection process. The
definition of ‘‘successful’’ in this
context will have to be determined by
the contracting planholder to satisfy its
standards for hire.
One commenter stated that formal
approval of a salvage plan
(§ 155.4050(b)(8)), such as a stamp or
letter, is not a verifiable practice. The
experience of the resource provider or
other planholder is most important. The
Coast Guard agrees in part. We agree
that experience is vitally important, but
we consider being able to produce
salvage plans that were approved and
used by incident commands helps
address the resource providers’
experience level.
2. Coast Guard or Third-party Vetting
One commenter agreed that the
regulations for salvage and lightering
should require analytical systems and a
contractual relationship with a salvage
company. Such arrangements are the
industry standard and represent a
reasonable and achievable requirement.
However, the commenter also stated
that a process similar to the OSRO
classification system should assess the
capability of these service providers.
The Coast Guard disagrees that a
classification system for salvors is
needed at this time. This rule addresses
the capabilities of the resource
providers with the 13 point selection
criteria, found in § 155.4050, that
planholders will consider in the

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selection of a resource provider prior to
entering into a contractual arrangement.
Classification of resource providers is an
issue that the Coast Guard can take
under advisement, should the need arise
in the future.
Three commenters recommended that
the Coast Guard develop responsecapability testing and proofing
methodology for service providers and a
marine-firefighting certification program
including training standards. They
suggested adding requirements to
ensure that the resource provider is
familiar with the local area plan
pertaining to marine firefighting and
salvage operations. The Coast Guard
disagrees in part. We determined that
the standards and guides incorporated
by reference in this regulation
sufficiently provide, as a basis, an
adequacy determination for planholders
to use in their selection process. As to
the suggestion that resource providers
be familiar with the local area plans,
this is beneficial and has been included
in § 155.4050(b)(15) as a consideration
when determining the adequacy of
resource providers.
One comment stated that the Coast
Guard should require professional
standards for marine firefighters to
ensure all responders have similar
training and backgrounds. The Coast
Guard disagrees. We have addressed
standardized training for marine
firefighters by stating they be trained in
accordance with § 155.4050(b)(6). While
professional standards for firefighters
would be beneficial for all parties
concerned, it is beyond the scope of this
rulemaking.
Four commenters stated that having
each individual planholder attempt to
interpret these criteria and apply them
will be inefficient, cause confusion, and
reduce consistency. They recommended
that this salvage and marine firefighting
vetting be administered by classification
societies, through the ISO 9000/14000
programs, American Waterway
Operators, or some other approved third
party, based on the criteria in the table
provided by the Coast Guard. The Coast
Guard agrees that this is a reasonable
goal. Initially the Coast Guard will rely
on the established VRP review process
augmented by surveys and reports by
Coast Guard COTP field personnel done,
if necessary, in conjunction with
discussions with local port partners.
After reviewing the effectiveness of this
final rule, the Coast Guard will retain
the option of having it administered by
a third-party organization. However,
this final rule relies on due diligence
from both the planholders and the
resource providers to ensure an

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acceptable level of quality in meeting
the criteria is achieved.

protection. (‘‘USCG Marine Safety Manual’’,
Vol. VI, chapter 8, section B.)

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

This principle is also embodied in this
rulemaking and it ensures the
planholder has contracted for adequate
response services, regardless of whether
the resource provider is a public or
private entity. We agree that all parties
involved will rely on ACPs to plan for
emergencies, and all port partners
involved in developing ACPs should
take this rulemaking into account. To
this end we have revised § 155.4030(d)
by adding text requiring that the
information contained in the response
plan must be consistent with applicable
ACPs and the National Oil and
Hazardous Substances Pollution
Contingency Plan as found in
§ 155.1030(h).
One commenter said that the
regulations should encourage and
permit utilization of local resources
where practical, jurisdictional, and
cooperative issues are worked out, as
this will provide the lowest cost to the
maritime community and encourage
their participation in local cooperatives.
The Coast Guard agrees and this final
rule allows for such cooperatives.
Two commenters stated that the
requirements for external firefighting
capability require further discussion as
to the appropriate role of public and
private resources and the correct
approach to ensuring their operation.
The Coast Guard disagrees. The entities
involved, both public and private, will
work with the planholders to ensure a
timely and effective emergency
response. All parties are encouraged to
use the ACP process to create workable
processes and VRPs for responding to a
marine-firefighting incident. Examples
of ACPs are on the Internet at the Coast
Guard’s Homeport Web site: http://
homeport.uscg.mil. The ACP
information is under the ‘‘missions’’ tab
in the ‘‘environmental’’ section. The
Coast Guard plans to issue policy to
Area Committees, who produce and
maintain Area Contingency Plans
(ACPs), on how the Salvage and MarineFirefighting sections of the ACP can
ensure planholders are supported in
their planning efforts. ACPs describe the
strategy for a coordinated Federal, state,
and local response to a discharge of oil
or a release of a hazardous substance
within a Captain of the Port Zone.
Two commenters stated that it is
unacceptable that some commercial
marine-firefighting providers can rely
on the Coast Guard or local responders
to provide critical support personnel
and equipment once they arrive with
limited, specialized equipment and
personnel. The Coast Guard disagrees.

[A] vessel/facility’s owner and/or operator
is ultimately responsible for the overall safety
of vessels/facilities under their control,
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When consenting to be a listed resource
provider, that provider agrees to have all
the personnel and equipment needed to
provide the services for which they have
contracted. If local public responders
are depended upon to provide
resources, they must agree in advance to
be listed in the VRP. The planholder
must ensure any resource provider is
capable of providing the services
needed, as found in § 155.4045(a).
One commenter stated that it is the
legal responsibility for fire departments
to respond to fires in vessels within
their jurisdiction. The Coast Guard
agrees in part. However, since OPA 90
emphasizes the use of private over
public resources, public marinefirefighting resource providers should
only be listed when the planholder has
determined that no private resources
(which can meet the response times) are
available, and that the public resource
has responsibility to respond to
incidents in the area specified in the
VRP. In other words, this regulation
requires that planholders have under
contract or other approved means,
private resource providers capable of,
and intending to commit to, meeting the
VRP requirements whenever possible.
Nothing in this regulation precludes
public emergency responders from
executing their duties. Consistent with
the requirements of § 155.1010, we
reiterate that these are planning and not
performance requirements.
Three commenters stated that public
marine-firefighting resources are often
prohibited from responding outside
their own jurisdiction, with the
exception of mutual-aid agreements,
and that this would preclude the direct
use of these resources by commercial
contract where port areas often
encompass numerous jurisdictions
between a vessel’s initial entry into a
COTP zone and its arrival at a terminal
or facility unless they are part of a local
marine-firefighting cooperative. The
Coast Guard agrees and addresses this
issue in § 155.4045(d) by stating that:
Public Firefighters may only be listed out
to the maximum extent of the public
resource’s jurisdiction, unless other
agreements are in place.

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

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considers it unreasonable to expect
marine-firefighting resources to respond
outside their jurisdictional boundaries.
The commenters added that the
regulation should recognize that public
resources may be listed for response if
it has agreed to do so where a mutual
aid system has been implemented that
will permit response regardless of
individual agency boundaries.
Accordingly, the second clause in the
last sentence of § 155.4045(d), ‘‘but the
Coast Guard considers it unreasonable
to expect marine-firefighting resources
to do this’’ should be deleted. The Coast
Guard disagrees. Section 155.4050(d)
clearly states that public marinefirefighters may be listed as resource
providers. However, public resources
must agree in writing to be included in
the VRP. We have added a restriction
that they may only be listed to respond
out to the limits of their jurisdiction,
unless other agreements are in place.
Other agreements could reflect the
public firefighter’s commitment to
respond beyond their jurisdictional
limits. We also do not agree that Federal
law, or this rulemaking, should support
or encourage public firefighting agencies
to respond outside of their jurisdictions,
as that would be an attempt to preempt
local laws and authorities. There are
cases where a local agency will be a
member of a mutual-aid association, in
which an agency has agreed, as a
member of the association, to respond
outside their jurisdictional boundaries.
In this case, the public agency can agree
in writing to do so as a planholder’s
resource provider, as allowed in
§ 155.4045(d).
One commenter stated that it is vital
that any contract provider be required to
integrate qualified public agencies into
their VRPs. The Coast Guard disagrees.
If the public marine-firefighting agency
agrees to be listed in the planholder’s
VRP, then that is acceptable. However,
it is beyond the scope of this rulemaking
to require that public agencies be listed
under contract or other approved means
in the planholder’s VRP.
Five commenters stated that a local
firefighting entity in command of an
incident would not necessarily
recognize the contents, strategies, and
service providers included in the VRP.
This scenario would place the vessel
owner in the unenviable position of
diverting from the VRP since local
regulations give command authority to
the local firefighting entity. The Coast
Guard agrees in part. Each planholder
and resource provider will have to
ensure these problems are addressed,
and should be actively involved in the
port partners program. In doing so, they
would have input into their location’s

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ACP, which in turn would enable
communications between the resource
provider and the local public
firefighters. That type of communication
and mutual cooperation is not required
by regulation; however, it is part of a
professional involvement in the
emergency response operations
community and will be fostered by
participation of all parties in the
required drills and exercises.
Two commenters stated that public
firefighting resources represent a
significant portion of available
firefighting equipment and personnel
around the country, and as such, there
is a need to integrate these resources
into the overall response picture, and
cooperation between public and private
entities should be encouraged by the
regulations. The Coast Guard agrees,
and envisions the formation of mutualaid agreements and coordination
between marine-firefighting entities as a
result of this regulation. We urge all
interested parties to pursue this. In
addition, we anticipate local ACPs will
reflect these changes as well.
One commenter is not opposed to the
use of public firefighters, but added that
if they are part of a response plan there
must be requirements to provide
guidelines for interaction between the
resource provider and the public
firefighters to ensure cohesion when
working together. These requirements
should include, but not be limited to,
drill planning and participation,
training, and a clear understanding of
each participant’s role prior to
responding to an incident. The Coast
Guard agrees that there should be strong
coordination and communication
between the private and public
firefighting resource providers. The
intent of this rulemaking is to issue
broad requirements regarding
contractual arrangements that must be
in place and listed in a planholder’s
VRP. We do not intend to dictate how
the parties involved conduct their
business after those arrangements are in
place. Participation in the required
drills, exercises and training, and a clear
understanding of each participant’s role
are all vital aspects of proper planning
and preparedness for emergency
response, and we expect that the
interests of all concerned will lead to
the planholders and resource providers
participating in proactive roles.
One commenter stated that, based on
the proposed response times, it appears
that local public fire agencies will have
to be a part of any response plan. With
that in mind, they added that it is vital
that any contract provider be required to
integrate into the ICS systems that have
already been established. The Coast

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Guard agrees in part. It is not mandated
that public agencies will have to be a
part of a response plan; however we
envision that they will be included for
most in-port pier locations in a VRP.
Regarding the comment that any
contract provider (resource provider)
must integrate his or her organization
into the ICS systems, this is already
addressed by § 155.4030(c) and (d).
N. Integration of the VRP Into the
Unified Command System/ICS
One commenter recommended that
the Coast Guard mandate the use of the
Unified Command System (UCS)/ICS to
facilitate public and private cooperation
in a structured system. The Coast Guard
disagrees in part. Homeland Security
Presidential Directive 5, ‘‘Management
of Domestic Incidents’’, found online at
http://www.nimsonline.com/
presidential_directives/hspd_5.htm,
creates a single, comprehensive
National Incident Management System
(NIMS) using the national NIMS/ICS for
all emergency incidents. The National
Response Plan, Regional Response Plans
and ACPs all do the same. We anticipate
that any incident, which would be
managed by a unified command, would
fall under this family of plans and
therefore we do not consider it
necessary to mandate the use of NIMS/
ICS.
One commenter stated that
§ 155.4030(c), the ‘‘Integration into
response organization’’ summation,
should read:
The response organization must be
consistent with the requirements set forth in
§§ 155.1035(d) and 155.1040(d) and
155.1045(d).

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

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often the most knowledgeable person in
the response organization. They stated
that the proposed language does not
adequately address coordination and
response organization dynamics, adding
that if the Coast Guard’s intent is to
utilize unified command with salvage
and firefighting efforts appropriately
incorporated along with existing FOSC
authority then the intent and
implementation specifics should be
clearly articulated. The Coast Guard
agrees that Salvage Masters are very
knowledgeable, and that there is a need
to be clear where they fit into the
response organization. Historically, the
salvors and marine firefighters have
been placed in the Operations Branch.
However, it is the prerogative of the
Incident Commander/Unified Command
to structure the ICS organization to best
fit the incident’s needs. Thus, this final
rule requires only that the response plan
includes provisions on how the salvage
and marine firefighting resource
providers will coordinate with other
response resources, response
organizations, and OSROs, not the
specific roles the providers will fill in
the ICS structure.
Four commenters stated that it is
critical that marine-firefighting resource
providers are integrated into any local
UCS/ICS and not operating
independently. The Coast Guard agrees
and included this provision in both the
NPRM and this final rule as found in
§ 155.4030(c).
Two commenters recommend deleting
§ 155.4030(d), ‘‘Coordination with other
response resource providers, response
organizations and OSROs,’’ because it
shows a lack of understanding of the
ICS structure and the command
structure that is required. They stated
that salvage and marine firefighting
resources will not normally coordinate
with other response resources, response
organizations, and OSROs, as it is the
responsibility of the ICS structure to
coordinate their activities. The Coast
Guard disagrees. This section is
intended to address the coordination
between the differing response
organizations before an incident occurs.
It will entail inter-organizational
outreach, participation in the ACP
process, and communication between
the planholders, resource providers, and
other affected port partners. We
consider it important to ensure that all
the pre-incident coordination is in place
prior to an emergency situation, and
therefore have not changed the language
of this section. We acknowledge,
however, that the Incident Commander/
Unified Command will be responsible
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incident occurs and during all phases of
the incident response.
One commenter asked if the Coast
Guard was planning a revision to the
‘‘ICS Field Operations Guide’’ or the
‘‘Incident Management Handbook.’’ In
August of 2006, we revised the ‘‘U.S.
Coast Guard Incident Management
Handbook,’’ COMDTPUB P3120.17A,
and it is for sale from the Government
Printing Office. The document is also
available on the Internet at the Coast
Guard’s Web site: http://
homeport.uscg.mil. It can be found by
selecting the ‘library’ tab on the top of
the page, then by selecting the ‘Incident
Command System (ICS)’ tab on the left
side, then selecting the ‘Incident
Management Handbook (IMH)’ tab
under the Job Aids section.
One commenter stated that it is
critical that these regulations leverage
public agencies specializing in marine
firefighting and encourage
specialization by those that do not. The
commenter added that the regulations
should support the development and
enhancement of existing marinefirefighting units within an agency or
region, thereby providing the
opportunity for a cost-effective public/
private partnership, which would make
the public fire agency a first responder
and lay the foundation for the private
firefighting resource providers. The
Coast Guard agrees that strengthening
existing public firefighting agencies
benefits everyone, and we anticipate
that this will happen through strong
port partnerships and involvement in
the ACP planning and exercises.
However, we consider it more important
to ensure that the contracted resource
provider is able to adequately provide
the services that they have agreed in
writing to provide at the time the VRP
is submitted. If a public agency can
meet this requirement and agrees to do
so, then they are welcome to be listed
as a resource provider in a VRP.
However, it is beyond the scope of this
regulation to require that it be done, or
to require that the public agency meet
the criteria for contracting. If they can
not be listed based on their current
capabilities, we require contracting with
a private resource provider instead.
One commenter suggested that
response plans should integrate with,
and make specific reference to, salvage
and marine-firefighting sections detailed
in each ACP associated with vessel
transits. The Coast Guard agrees.
According to 33 CFR 155.1030(h), a
planholder is already required to align
the vessel response plan with
appropriate ACPs.
One commenter stated that there is an
assumption that the salvage/firefighting

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resource provider will be the Incident
Commander required by § 155.4035, but
noted that this may not be the case in
many incidents. The Coast Guard
disagrees and can find no reference in
§ 155.4035 to the resource provider
being an Incident Commander. Section
155.4030 requires integrating the
resource provider into the response
organization, but includes no specific
requirement that they have to be the
Incident Commander.
O. Worker Health and Safety
One commenter stated that
§ 155.4030(i), ‘‘Worker health and
safety,’’ is listed in the wrong section.
The Coast Guard agrees in part. This
issue is as vital to emergency response
as the other services listed in this
section, and must be addressed in the
contractual arrangement between the
planholders and resource providers
prior to an incident occurring. However,
we acknowledge that the exact location
of this section may create confusion and
have redesignated § 155.4030(i) in the
NPRM to § 155.4032(b) in the final rule.
One commenter stated that worker
health and safety is imposed on salvors,
but not on the OSROs, even though
consistency between the two
requirements is important. The Coast
Guard agrees that consistency is
important among regulations and will
take this comment under advisement
should we revise the OSRO regulation
in 33 CFR 155.1010. However, it is
beyond the scope of this regulation.
One commenter stated that they do
not feel that the Coast Guard can
mandate that planholders bear any
responsibility for the health and safety
of independent contractors subject to
Occupational Safety and Health
Administration (OSHA) requirements.
The commenter recommended deleting
this provision. The Coast Guard
disagrees as the existing § 155.1055(e)
states:
Nothing in this section relieves the vessel
owner or operator from the responsibility to
ensure that all private shore-based response
personnel are trained to meet the OSHA
standards for emergency response operations
in 29 CFR 1910.120.

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

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standard. The Coast Guard agrees and
has revised the text of § 155.4032(b) to
reflect this.
P. Waiver Provisions
Six commenters dealt with the need
for a process and mechanism for the
Coast Guard COTP to address concerns
that a VRP does not meet the
requirements of this section for a
specific COTP zone. Capabilities
nationwide vary greatly, making it
critical the COTP have the ability to
rapidly address deficiencies that could
place a vessel and port at risk. The Coast
Guard agrees and, using § 155.4020(c) as
authority, a COTP can stop a vessel from
conducting oil transport or transfer
operations unless the requirements of
this regulation are met. If proper
resource providers may not be available
to meet the required response times by
the date this regulation is in effect.
Therefore, § 155.4055 allows for a
temporary waiver request. The local
COTP must review and comment on this
waiver request before forwarding it to
the Coast Guard Commandant, Director
of Prevention Policy (CG–54) for final
approval. The Coast Guard intends to
publish guidance to field units
regarding consideration of waiver
requests. In addition, the COTP and
local port partners will be active in
reviewing the Salvage Annex of the
ACP, which will describe in detail local
salvage and marine-firefighting
resources.
One commenter did not agree with
the proposed waiver periods, which it
states seem to be selective yet
unsupported by logic. The Coast Guard
disagrees. The waiver periods were
developed after analyzing information
gathered during the 1997 public
workshop, and from information
gathered from the salvage and marine
firefighting industry for the 2002
Regulatory Assessment. We are not
mandating additional equipment
requirements under the final rule.
Two commenters stated that the
salvage and firefighting capability
should be built up over time, much like
the buildup of OSRO inventories has
been accomplished in five-year cap
increments. We agree in part. Our
analysis indicates that no new
planholder capital expenditures will be
necessary. Before the promulgation of
this rule, industry began its capital
buildup of equipment as part of its
business model for the salvage and
firefighting services it provides on a
daily basis, not as a result of the
requirements of this rule.
One commenter suggested limiting
temporary waivers to a one-year
maximum for planholders who are

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unable to obtain a salvage and marine
firefighting resource provider, because
all affected entities have had ample time
to prepare for this requirement. The
Coast Guard disagrees. We recognize
that this regulation is a major change in
planholders’ VRPs and that the ability to
acquire these services is dependent on
whether or not such required services
are available. We understand that there
may be a period of time where
personnel, equipment, and service
contracts are being acquired and/or
relocated to areas to meet the
planholders’ needs. For this reason we
feel that the proposed waiver times are
reasonable, and have left them
unchanged in this final rule.
Five commenters stated that any
temporary waiver of these requirements
by a COTP should be coordinated with
state officials and harbor safety
committees, and asked if the local COTP
has the resources and/or expertise to
evaluate and approve the waiver. The
Coast Guard disagrees; this is a Federal
regulation, and for that reason the
waiver authority lies solely in the Coast
Guard’s discretion. Any waiver request
is first evaluated and commented on by
the local COTP, who may consider
input from other entities including state
agencies, the local area committee, and
the harbor safety committees prior to
forwarding the request to the Coast
Guard Commandant, Director of
Prevention Policy (CG–54), who will
make the final determination. The
COTPs have the resources to evaluate
and recommend approval or
disapproval of waiver requests in an
appropriate manner.
One commenter stated that the Coast
Guard should track waiver requests
made pursuant to § 155.4055, and
consider funding resources if many
requests are from the same area. The
Coast Guard disagrees with this
comment, in part. While we do intend
to track waiver requests to identify those
areas of the country where resource
providers are lacking, we do not have
funds to provide to those areas.
Q. Economic Comments
One commenter stated that an
appropriate retainer to cover costs can
be sustained by the industry if the
savings from a prompt, successful
response complements them. The Coast
Guard does not agree or disagree.
Because this commenter suggested no
changes to the NPRM, the Coast Guard
did not consider any changes as a result
of this comment.
One commenter stated that the money
spent for this rule would be better spent
through prevention, such as crew
training and modernization of

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

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

The regulatory assessment goes on to
note that the:
Discussion of salvage planning by non-oil
carriers has only recently started, since the
M/V NEW CARISSA accident and salvage in
1999 and other general cargo salvage
incidents.

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However, the Coast Guard did not cite
the M/V NEW CARISSA incident
specifically as an example for the need
for this rulemaking.
R. Environment Comments
In Section VII, entitled Rulemaking
Analysis and Notices, Subsection M
there is a discussion of the
environmental comments.

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S. Tribal Consultation
In regards to protecting the rights of
the Puget Sound tribes, the Coast Guard
has entered into the required
consultation and coordination with
affected Indian tribal governments, and
all State, local, and tribal governments
have had an opportunity to comment on
the NPRM during the public comment
period, and have those comments
addressed prior to issuance of a final
rule. We have summarized our
consultation with Indian tribal
governments in Section VII, entitled
Rulemaking Analysis and Notices,
Subsection J of this final rule.
T. Miscellaneous
Two commenters stated that
firefighting and salvage do not work on
the same operational principles, and
that they should be addressed
differently in the rulemaking. The Coast
Guard understands this position, but
does not feel it is necessary to change
the regulation. While there are
differences in these two types of
emergency responses, we recognize that
in some instances both firefighting and
salvage services will be provided by one
resource provider. Also, marine
firefighting and salvage are closely
linked as a response progression,
therefore we feel that a single regulation
serves best to inform the industry and
resource providers of the planning
requirements. However, as there are
different aspects of each response,
separate response timetables are
provided for salvage versus firefighting
planning purposes.
One commenter stated that the NPRM
was not very well written, adding that
it essentially proposed amending
existing VRP regulations, yet included
them in a separate section. The Coast
Guard disagrees and has determined
that these regulations are necessary and
fit appropriately into the current VRP
regulations provided in 33 CFR part
155.
One commenter stated that the State
of California should not dictate U.S.
salvage and marine-firefighting response
planning requirements. The commenter
noted that the Coast Guard has no
business imposing the same
unreasonable requirements on those
who elected to avoid them by not
conducting business in California. The
Coast Guard disagrees that these
regulations, which implement
requirements contained in OPA 90, are
unreasonable. Further, the Coast Guard
has not, at any time during this
rulemaking project, set out to impose
unreasonable requirements, either on
our own or at the behest of one of the

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States. As found in the public docket,
document number USCG–1998–3417–
0008, the Coast Guard had requested an
extension of the implementation date of
California’s Salvage Equipment and
Service requirements (found in section
8 18.02(m) of California’s Oil Spill
Contingency Plan regulations (Title 14,
Division 1, Subdivision 4, Chapter 3,
Subchapter 3, Sections 81 5–819))
beyond September 30, 2000. We felt that
such an extension would give us time to
share and discuss our own proposed
requirements with them. The Coast
Guard is not approving California’s
requirements; however we are required
under Executive Order 13132 to consult
with the States prior to proposing
regulations that might affect them. We
consulted with California on an
agreement on the best approach for
ensuring a salvage and firefighting
capability that both serves the interests
of that State and the United States, and
also to lessen the burden of meeting two
separate regulatory requirements on
industry. States have an inherent right
to set vessel response planning
requirements for their own waters, as
long as they do not preclude compliance
with Federal requirements. Since this
comment came into the docket,
California issued Salvage Equipment
and Service requirements as part of their
Oil Spill Contingency Plan regulations
on October 12, 2007. For a detailed
discussion of this topic, see the
‘‘Federalism’’ section below.
One comment recommended that the
Coast Guard should establish Basic
Ordering Agreement (BOA) or contracts
with salvors and marine firefighters, and
other resource providers in the same
fashion it has done with spill cleanup
contractors. They suggested that the
Coast Guard apply the same criteria
when evaluating contract services that
are being required of the tank vessel
industry, and that the Coast Guard
perform the evaluation and contracting
within the same time periods given the
tank vessel industry in the proposed
revision. The Coast Guard disagrees. In
1982 Congress directed the Coast Guard
Commandant to:
Review Coast Guard policies and
procedures for towing and salvage of
disabled vessels in order to further minimize
the possibility of Coast Guard competition or
interference with commercial enterprise.
(Pub. L. 97–322, title I, Sec. 113, Oct. 15,
1982, 96 Stat. 1585, as amended by Pub. L.
100–448, Sec. 30(b), Sept. 28, 1988, 102 Stat.
1850)

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

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adequately performed by the private
sector. In addition, a key aspect of OPA
90 emphasizes the use of private over
public emergency response resources.
Therefore, this regulation was written to
ensure that private industry have the
first chance at the available contracts if
possible.
One commenter stated that since
Congress removed Federal agencies as
firefighting resources with the Federal
Fire Prevention and Control Act of 1974,
the burden has fallen squarely on the
shoulders of local fire departments. The
Coast Guard agrees in part and hopes
this regulation will relieve that burden
by helping to bolster firefighting
resources with private resource
providers that establish new
partnerships between the public and
private sectors.
One commenter stated that these
regulations will impose upon the
industry the same burdens that were
imposed for oil-spill response in regards
to cost, multiple contracts, and
enhanced port capabilities, and that the
Coast Guard should ensure that these
issues are clearly addressed in these
regulations and that the Coast Guard has
the tools and capability to adequately
ensure that resources listed in a VRP are
adequate for local ports. VRP approval
is done according to certain criteria
used by the Coast Guard in reviewing
the submitted VRPs. Should the review
process uncover deficiencies, or if a
historical pattern of deficiencies are
found in the resources listed in VRPs,
the Coast Guard will take administrative
action in accordance with
§§ 155.1025(d)(1) and 155.1070(e).
However, the responsibility of ensuring
the adequacy of the response provider is
on the planholder, based on the
selection criteria found in § 155.4050.
One commenter stated that the
comments found in the FOSC’s report
on the M/V NEW CARISSA, ‘‘Crisis on
the Coast,’’ proves that a response must
be centrally coordinated to be effective.
The commenter added that such
coordination could not be achieved
within the context of the proposals
contained in the NPRM. The Coast
Guard disagrees. Section 155.4030(c)
addresses integration into the response
organization prior to an incident
happening. It is the responsibility of the
planholder and resource provider to
ensure this is done by working with
local port partners and contributing to,
and exercising under, the ACP. Table
155.4040(c) references VRP submittal to
the Incident Commander/Unified
Command. Both of these items show
there is a clear intent for central
coordination and pre-planning of the
response.

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Six commenters stated the rule
presents an incomplete and minimal
approach to providing effective salvage
and firefighting capability for ships in
U.S. waters, that the U.S. needs a port
system of maritime-firefighting capacity
for the general good, and that such a
national system should be developed
under Federal oversight using general
treasury funding. One commenter stated
that the Coast Guard continues to reject
a dedicated salvage fleet as a viable
option to address this pressing need.
The creation of a dedicated salvage fleet
using Federal resources would have to
come from Congress and be funded in
the Federal budget. The Coast Guard has
not actively rejected or endorsed a
dedicated salvage fleet.
One commenter stated that the
absence in the NPRM of a proposal to
create a nationally coordinated system
fails to recognize the jurisdictional
issues inherent in a casualty on a major
waterway of the United States. The
Coast Guard disagrees, and points to the
importance of pre-planning using
cooperation of the local and
surrounding port partners and creating
adequate ACPs to anticipate situations
where an incident might cross
jurisdictional lines.
One commenter recommended that
the Coast Guard eliminate the last
sentence in § 155.4010, which reads:
Salvage and marine firefighting actions can
save lives, property and prevent the
escalation of potential oil spills to worst case
events,

as it is propaganda, and because the first
sentence accurately describes the
purpose of the new subpart. The Coast
Guard disagrees. We consider the
sentence in question to be factually
correct and an accurate statement of the
basis and intent of this regulation.
Three commenters stated there is a
definite need for regulations giving the
COTP direct oversight of VRPs. The
Coast Guard disagrees. The volume of
review and oversight for the VRPs will
be time and labor intensive, and would
create too much of an administrative
burden on local COTP offices. The
review and oversight will be maintained
at the Commandant level in Coast Guard
Headquarters, as is the existing VRP
program. This will allow for a more
consistent review process and
application of the regulation.
One commenter suggested not listing
the requirements contained in the rules
separately, but rather integrating them
with the existing VRP rules found
elsewhere in 33 CFR part 155. In cases
where this is not possible, then both the
existing rules and the new rules should
cross reference each other. The Coast

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Guard disagrees and will keep the new
salvage and marine firefighting
requirements in separate regulations.
We cross referenced the existing
regulations in Part 155 where necessary.
One commenter stated that the
technical expertise to effectively deploy
assets in the earliest stages of a
shipboard fire is missing from the
rulemaking, and that the best
improvements in OPA 90 response
effectiveness can be made by ensuring
that capable and trusted marinefirefighting experts merge into the joint
command as quickly as possible. The
Coast Guard agrees in part. There may
well be instances where the resource
providers contracted for assessment and
planning are also the resource providers
for the firefighting teams and
equipment, and the Coast Guard
encourages both planholders and
resource providers to ensure this is done
when possible. Regarding the
integration into the joint commands,
prudence dictates that both planholders
and resource providers participate in
the Federal, state, and local area
contingency planning prior to an
incident.
One commenter stated that the new
fire-detection systems, rules, and
training are paying off and should be
given a chance to work before the
proposed firefighting rules are enacted.
The Coast Guard disagrees in part. It is
true that there have been some positive
developments in the past regarding on
board marine firefighting regulations
and standards, most notably the 1995
amendments to the International
Convention on Standards of Training,
Certification and Watchkeeping for
Seafarers (STCW). However, this
rulemaking addresses a worst case
discharge scenario situation, which
could easily overwhelm the vessel
crew’s firefighting capabilities and
require external response resources. For
these reasons, the firefighting rules are
necessary.
One commenter was unsure regarding
compliance with the requirement in
§ 155.4040(d)(2) to ‘‘list the pier location
by facility name and city.’’ They asked
if that meant listing all potential
locations that their entire fleet might
someday visit, over the 13 COTP zones
that the company operates in, in order
to determine if the resource provider
can reach the location in the designated
timeframe. They stated that this
provision would be extremely difficult
to accomplish. The Coast Guard agrees
reporting this level of detail will be
difficult, but necessary nevertheless to
verify that resources will be available.
VRPs and the accompanying
geographic-specific annexes are already

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

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also asked how the Coast Guard will
gain the confidence of resource
providers, and if there will be any
directive to the COTPs to insure that
those who invest will get the work and
those who do not will fall outside the
definition of resource provider. The
Coast Guard agrees and is developing
guidance to the field units detailing the
application and enforcement of this
regulation.
U. Beyond the Scope
Two commenters addressed the fact
that the NPRM failed to discuss the
issue of liability for salvors, and
suggested including immunity language,
which states salvage and marine
firefighting resources will, for the
purpose of 33 U.S.C. 1321(c)(4)(a), be
considered as rendering such service
consistent with the National
Contingency Plan. While we appreciate
the points raised concerning potential
liability, the issue of liability is beyond
the scope of this final rule. No provision
of this final rule addresses liability,
either to expressly limit liability or to
address immunity from liability. Among
other things, determinations of liability
require a fact-laden inquiry on a caseby-case basis. If an incident response is
covered by the National Contingency
Plan, then any liability coverages
previously authorized by 33 U.S.C.
1312, and subsequent exemptions,
would remain in effect.
We received many other comments
concerning issues that are outside the
scope of the NPRM, and as such require
little or no response.
One commenter stated that much of
the existing dedicated pollution
response equipment is suited only for
spill response and is not used except for
drills and actual spills. One commenter
asserted that a national system with
regional/local planning requirements
would resolve jurisdictional issues
through the use of the existing incident
command structure, where one Federal
authority (presumably the Coast Guard
COTP) could coordinate the local and
regional response organizations under
one unified command system. One
commenter stated that the Coast Guard
should treat identified resource
shortfalls as local issues and resolve
them with local resources, as the state
of Washington has done. They
referenced the Strait of Juan de Fuca
rescue tug, which is in operation at
Neah Bay, with funding for its
operations provided by the Washington
State legislature. One commenter stated
that if a direct funding mechanism, such
as user fees, were established by local
and state authorities to meet the intent
of these regulations, the cost and impact

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would be significantly greater than that
proposed in these regulations, as has
been documented in some of the
maritime regulations of some western
States. One commenter stated that
§§ 155.1035(e)(6)(ii), ‘‘Response plan
requirements for manned vessels
carrying oil as a primary cargo’’, and
§ 155.1040(e)(5)(ii), ‘‘Response plan
requirements for unmanned tank barges
carrying oil as a primary cargo’’, need to
be updated. While this comment is
outside the scope of this regulatory
project, we have passed it on to the
appropriate office within the Coast
Guard to consider as part of a separate
regulatory project. One commenter
stated that the conditions in 33 CFR 155
are often not met and the local, public
fire departments are unaware of their
role in the facility response plan.
One commenter stated that the Coast
Guard should focus on ensuring
adequate participation in the casualty
response by the financial stakeholders,
which are often the insurers of the
responsible parties. The FOSC should
require that all marine insurers,
including hull, protection and
indemnity (P&I), and pollution insurers,
have an individual available to discuss
coverage with the FOSC on an as
needed basis. Another commenter stated
that the FOSC should require that some
representative of the resource provider’s
various marine insurers, such as a
surveyor, be on scene to participate in
the financial decisions made in the
context of the ICS. These comments are
beyond the scope of this rulemaking, as
they would introduce a new aspect to
the overarching incident command
structure.
One commenter recommended that
the Coast Guard take the lead to ensure
that the firefighting sections of each
ACP have been developed and tested so
that initial at-pier response by public
resources is assured. We will take this
comment into consideration as we
conduct regular reviews of ACPs.
One commenter stated that the U.S.
Coast Guard’s Crisis Management
School should increase the time spent
training the attendees in the distinctions
among a resource provider’s various
insurance carriers because casualties
usually involve multiple insurer
interests. One commenter stated that
they support the concept of improving
and enhancing indigenous resources in
each port, where possible, rather than
creating a new industry. The commenter
added that enhancing local firefighting
capabilities will create a reasonable lowcost alternative to developing a new
industry. One commenter wrote that for
a number of years, tank vessels and tank
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America have been voluntarily
participating in a traffic separation
scheme whereby tank vessels transit at
least 50 miles offshore, while tank
barges transit 25 miles offshore. The
commenter noted that if tank barges
could avoid the regulatory reach of
these proposed standards by transiting
beyond the 50-mile limit of a certain
COTP zone, they would place
themselves directly in the path of the
faster moving tank vessels, negating the
benefits and safety features of the traffic
separation scheme. One commenter
stated it is essential that the Coast Guard
address the status of efforts to obtain
reciprocity with Canada, particularly for
areas where we jointly share waterways.
One commenter submitted a comment
designed to correct language in a report
that was neither referenced in nor relied
upon for the NPRM. One commenter
stated that the Coast Guard should
address and develop a process to resolve
possible jurisdictional conflicts between
firefighters and Federal, State, and
planholder responders. At the public
meeting in Seattle on the NPRM, it was
suggested firefighting and salvage
contractors should be certified by an
International Association of
Classification Societies member.
These comments were found to be
beyond the scope of the proposed
rulemaking; therefore, we have not
responded to them.
VI. Incorporation by Reference
The Director of the Federal Register
has approved the material in
§§ 155.4035 and 155.4050 for
incorporation by reference under 5
U.S.C. 552 and 1 CFR 51. Copies of the
material are available from the sources
listed in those sections.

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VII. Regulatory Analyses
We developed this final rule after
considering numerous statutes and
executive orders related to rulemaking.
Below, we summarize our analysis
based on 13 of these statutes or
executive orders.
A. Regulatory Planning and Review
(E.O. 12866)
This final rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review. The Office of
Management and Budget (OMB) has not
reviewed it under that Order.
A regulatory analysis is available in
the docket where indicated under the
ADDRESSES. A summary of the analysis
follows:
The Coast Guard is amending the
vessel response plan salvage and marine
firefighting requirements for tank

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vessels carrying oil or groups I through
IV petroleum oil as cargo. These
revisions add clarifying language to the
salvage and marine firefighting services
that must be identified in vessel
response plans. These revisions also set
new response time planning
requirements for each of the required
salvage and marine firefighting services.
The final rule also removes the time
requirement for ‘‘heavy lift’’ services
and the 24-hour requirement. The
changes above ensure that the
appropriate salvage and marine
firefighting resources are identified and
available for responding to incidents up
to and including the worst-case
discharge scenario. Readers should refer
to the ‘‘Summary of Changes from
NPRM’’ section of this preamble for
more information.
Since 2002, several factors have led us
to reconsider the cost impacts of the
rule. First, the rule requirements
themselves have changed, eliminating
the need for the costly staging of heavy
lift equipment. In addition, the marine
salvage and firefighting business
practices have changed in response to
market forces external to the rule. Even
in the absence of the Coast Guard
regulatory requirements, industry has
made considerable capital investments
in the equipment needed to fulfill other
business opportunities and provide
services through the normal course of
daily business operations. As a result,
salvage companies have already
acquired the equipment that we had
projected would need to be required to
meet the revised plan requirements.
As a combined result of these
changes, we now estimate that the rule
will not trigger an intensive investment
in capital equipment by industry.
Therefore, we do not anticipate salvage
and firefighting companies will incur
the capital costs and associated annual
costs that we previously envisioned in
the proposed rule based on comments
received from industry and on the state
of the business environment during the
past six years. Companies purchased
equipment as a part of their business
model in order to carry out the services
they provide clients in addition to the
contract work that we estimated for the
proposed rule. As a result, compliance
with the final rule will not require
additional capital or resources to
increase salvage and marine firefighting
capability.
For the final rule, we added clarifying
language to existing requirements of the
NPRM. The most significant change in
the final rule is the removal of the
‘‘heavy lift’’ response time requirement
(Heavy lift means the use of a salvage
crane, A-frames, hydraulic jacks,

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winches, or other equipment for lifting,
righting, or stabilizing a vessel). This
should greatly reduce the burden on
industry by allowing industry to list
‘‘estimated’’ response times of heavy lift
equipment rather then having to prestage the equipment in geographical
locations to meet firm planning
response times. Only an additional
paperwork burden exists in the form of
annual plan updates, renewals, and
deficiency letters.
Initially, we believed that capital
costs and other costs such as employee
training and drills, employee
compensation, acquisition of
equipment, record creation and
recordkeeping, and contract
negotiations with planholders (initial
and annual) incurred by the salvage and
firefighting companies would be passed
onto vessel planholders in the form of
retainer fees or increased costs for
services provided. However, based on
information from industry
representatives, the levying of retainer
fees is not a common industry practice
and is virtually nonexistent within the
marine salvage and firefighting industry.
Marine salvage and firefighting
companies recover most, if not all, of
their costs for equipment and other
capital expenditures through marine
related contracted work and services.
For about 797 planholders that this
rule will impact, there are additional
paperwork burden and costs, which
require an adjustment to an existing
collection of information. We estimate
the total annual burden hours to
increase by 19,925 hours with an
associated cost of approximately $1.2
million (non-discounted). For more
detail, see the ‘‘Collection of
Information’’ section of this rule.
This rule provides an efficiency
benefit that will result in reduced
response times. Current planholders
will be able to make arrangements and
contract with resource providers before
future events occur, therefore, reducing
future response times. The rule ensures
that the appropriate salvage and marine
firefighting resources are identified and
available for responding to incidents up
to and including worst case discharges.
This rule will assist in restoring
maritime transportation related
commerce after a navigation or security
event. The rule also provides
clarification to the existing requirements
found at 33 CFR 155.1050 which are
general and only require that a
planholder identify salvage and marine
firefighting resources.
Ultimately, reduced response time
may result in barrels of oil not spilled
after an event occurs. The Coast Guard
examined spill incidents from casualty

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

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B. Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
The Coast Guard has reviewed this
final rule for its potential economic
impact on small entities. Out of the
estimated 797 planholders, we
identified 191 entities as being small
businesses. From our analysis, we
believe that small businesses will not
incur additional capital costs to comply
with the final rule. They will incur
small paperwork costs of about $1,500
annually per small business. For this
reason, the Coast Guard certifies under
5 U.S.C. 605(b) that the final rule will
not have a significant economic impact
on a substantial number of small
entities.
C. Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we offered to assist small entities in
understanding the rule so that they
could better evaluate its effects on them
and participate in the rulemaking. If you
think that this rule will affect your small
business, organization, or governmental
jurisdiction and you have questions
concerning these provisions or options

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for compliance, please consult with the
Coast Guard personnel listed in the FOR
FURTHER INFORMATION CONTACT section of
this rule.
Small businesses may send comments
on the actions of Federal employees
who enforce, or otherwise determine
compliance with, Federal regulations to
the Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call 1–
888–REG–FAIR (1–888–734–3247). The
Coast Guard will not retaliate against
small entities that question or complain
about this rule or any policy or action
of the Coast Guard.
D. Collection of Information
This rule calls for a collection of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520). As defined in 5 CFR 1320.3(c),
‘‘collection of information’’ comprises
reporting, recordkeeping, monitoring,
posting, labeling, and other similar
actions. The title and description of the
information collections, and a
description of those who must collect
the information follow. The estimate
covers the time for reviewing
instructions, searching existing sources
of data, gathering and maintaining the
data needed, and completing and
reviewing the collection.
This final rule modifies one existing
OMB-approved collection 1625–0066
(formerly 2115–0595). A summary of the
revised collection follows.
Title: Vessel and Facility Response
Plans (Domestic and International), and
Additional Response Requirements for
Prince William Sound Alaska.
OMB Control Number: 1625–0066.
Summary of the Collection of
Information: Vessel response
planholders will need to collect
additional information to comply with
the rule for the salvage and marine
firefighting requirements. This
information includes:
• Name and contact information for
resource providers for each vessel with
appropriate equipment and resources
located in each zone of operation;
• Marine firefighting pre-fire plans;
and
• Certification that the responders are
qualified and have given permission to
be included in the VRP.
Need for Information: The
information is necessary to show
evidence that planholders have properly
planned to mitigate oil outflow and to

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provide that information to the Coast
Guard for its use in emergency response.
Use of Information: The Coast Guard
will use this information to determine
whether a vessel meets the salvage and
marine firefighting requirements.
Description of the Respondents: The
respondents are vessel response
planholders.
Number of Respondents: The number
of respondents is 797 VRP planholders.
Frequency of Response: Each
respondent will update and amend their
respective plan accordingly and
typically on an annual basis.
Burden of Response: For this final
rule, the VRP planholder hour burden is
25 hours each year. For this rule, the
total hour burden is 19,925 hours each
year. We also estimate that planholders
will incur ongoing paperwork costs of
about $1.2 million annually.
Estimate of Total Annual Burden: The
existing OMB-approved total annual
burden is 220,559 hours. This rule will
increase that number by 19,925 hours.
The estimated total annual burden is
240,484 hours.
In addition to this rulemaking, COI
1625–0066 is being revised by 2 other
Coast Guard rules. These rules are—(1)
Vessel and Facility Response Plans for
Oil: 2003 Removal Equipment
Requirements and Alternative
Technology Revisions [Docket No.
USCG–2001–8661; RIN 1625–AA26];
and (2) Nontank Vessel Response Plans
and Other Vessel Response Plan
Requirements [Docket No. USCG–2008–
1070; RIN 1625–AB27]. Once these rules
are finalized, the hour burden for 1625–
0066 will differ from the figures noted
above. See the COI preamble section of
each rule for details on how the hour
burden will differ.
As required by the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of
this rule to OMB for its review of the
collection of information.
You need not respond to a collection
of information unless it displays a
currently valid control number from
OMB. Before the requirements for this
collection of information become
effective, we will publish notice in the
Federal Register of OMB’s decision to
approve, modify, or disapprove the
collection.
E. Federalism (E.O. 13132)
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on State or local governments and
would either preempt State law or
impose a substantial direct cost of
compliance on them. It is well settled
that States may not regulate in

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categories reserved for regulation by the
Coast Guard. It is also well settled, now,
that all of the categories covered in 46
U.S.C. 3306, 3703, 7101, or 8101
(design, construction, alteration, repair,
maintenance, operation, equipping,
personnel qualification, and manning of
vessels), as well as the reporting of
casualties and any other category in
which Congress intended the Coast
Guard to be the sole source of a vessel’s
obligations, are within the field
foreclosed from regulation by the States.
(See the decision of the Supreme Court
in the consolidated cases of United
States v. Locke and Intertanko v. Locke,
529 U.S. 89, 120 S.Ct. 1135 (March 6,
2000).)
This regulation covers vessel response
plans for salvage and marine firefighting
resources, aimed at reducing cargo loss
should a marine casualty occur. As
discussed in the Background and
Purpose section of the NPRM published
on May 10, 2002 (67 FR 31868), the
Coast Guard consulted with State
agencies such as the California Office of
Spill Prevention and Response to ensure
these regulations will not interfere with
or preempt State regulations on the
same subject. While several State
agencies submitted comments on the
NPRM, we have not consulted with
these States since the publication of the
NPRM. After reviewing these comments,
we have determined that these
regulations will not interfere with or
preempt existing State regulations on
the same subject.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 or more in any one year.
Though this rule will not result in such
an expenditure, we do discuss the
effects of this rule elsewhere in this
preamble.
The legal authority for this
rulemaking is provided by the Oil
Pollution Act of 1990 (OPA 90).
Response plans are required by the
Federal Water Pollution Control Act (33
U.S.C. 1321(j)(5), as amended by Section
4202(a) of OPA 90).
This rule will not result in
expenditures by State, local, or tribal
governments because public vessels are
exempt from the requirements of this
rulemaking. The Assessment section
above provides an overview of this
rulemaking and its costs and benefits. A
more detailed discussion of costs and

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benefits can be found in the Regulatory
Assessment for this rule, which is
available in the docket where indicated
under ADDRESSES. The Regulatory
Assessment also describes alternatives
to this rule, which are contained in the
Final Regulatory Flexibility Act
Analysis.
G. Taking of Private Property
This rule would not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference With Constitutionally
Protected Property Rights.
H. Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
J. Indian Tribal Governments
We have reviewed this rule under
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments. Rulemakings that are
determined to have ‘‘tribal
implications’’ under that Order (i.e.,
have a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes)
require the preparation of a tribal
summary impact statement. As
discussed below, the Coast Guard finds
that this rule would not have
implications of the kind envisioned
under the Order, because it would not
impose substantial direct compliance
costs on tribal governments, preempt
tribal law, or substantially affect lands
or rights held exclusively by, or on
behalf of, those governments.
Following the publication of the
NPRM in May of 2002 and a subsequent
notice of availability of the draft
Programmatic Environmental
Assessment in January 2006, we
received two comment letters from the
Makah Tribal Council of Neah Bay, WA.
To address their concerns, we met with
representatives of the Tribal Council in
June and November of 2006. The
meetings were intended to more fully

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explain the purpose of the rulemaking
and to discuss what implications it
would have on their Tribal concerns.
Meeting summaries can be found in the
public docket as indicated under
ADDRESSES. The Coast Guard does not
foresee that this rule would compel the
tribes to significantly alter their current
fishery. Furthermore, it would provide
some benefits by increasing the amount
of salvage and marine firefighting
resources in the vicinity of their
traditional tribal grounds. We do not
anticipate any additional economic cost
to the tribe. For these reasons, we have
determined that this rule would not
have ‘‘tribal implications’’ under the
Executive Order, and does not require a
tribal summary impact statement.
K. Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and it is
not likely to have a significant adverse
effect on the supply, distribution, or use
of energy. The Administrator of the
Office of Information and Regulatory
Affairs has not designated it as a
significant energy action. Therefore, it
does not require a Statement of Energy
Effects under Executive Order 13211.
L. Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule uses the following National
Fire Protection Association (NFPA)
voluntary consensus standards:
• NFPA 1001, Standard for Fire
Fighter Professional Qualifications,
2008 Edition
• NFPA 1005, Standard for
Professional Qualifications for Marine
Fire Fighting for Land-Based Fire
Fighters, 2007 Edition

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• NFPA 1021, Standard for Fire
Officer Professional Qualifications, 2003
Edition
• NFPA 1405, Guide for Land-Based
Fire Fighters Who Respond to Marine
Vessel Fires, 2006 Edition
• NFPA 1561, Standard on
Emergency Services Incident
Management System, 2008 Edition
The sections that reference these
standards and the locations where these
standards are available are listed in 33
CFR 155.140.
M. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 0023.1 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded under the Instruction
that preparation of an Environmental
Impact Statement is not necessary. A
final Programmatic Environmental
Assessment (PEA) and a final ‘‘Finding
of No Significant Impact’’ (FONSI) are
available in the docket where indicated
under ADDRESSES. An overview of the
NEPA steps taken for this rule follows.
The Coast Guard considered the
environmental impact of vessel
response plans as a whole during an
April 1992 Environmental Assessment
(EA), and a November 1992
Supplemental Statement, resulting in a
FONSI [see Vessel Response Plans
rulemaking; CGD 91–034; 58 FR 7376;
February 3, 1993]. For this rulemaking,
we initially relied on that 1992 EA as
the salvage and marine firefighting
requirements are two of many required
vessel response plan elements.
Following publication of the NPRM we
received comments on the age of the
original analysis, as well as the need to
address the use of different types of fire
fighting foam. A PEA was drafted, solely
for these salvage and marine firefighting
revisions, to address these comments. A
Notice of Availability for the draft PEA
was published in the Federal Register
on January 3, 2006 [71 FR 125] and the
public comments received in response
to it are addressed in the final PEA. The
PEA only updates a small portion of the
scope of the 1992 EA; specifically, the
salvage and marine firefighting
identification and response time
requirements in VRPs for commercial
tank vessels carrying groups I through
IV petroleum oil as a primary cargo. The
1992 EA and FONSI, the updated draft
PEA and the final 2008 PEA and FONSI
are available in the docket for
inspection or copying where indicated
under ADDRESSES.

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List of Subjects for 33 CFR Part 155
Alaska, Hazardous substances,
Incorporation by reference, Oil
pollution, Reporting and recordkeeping
requirements.
■ For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 155 as follows:
PART 155—OIL OR HAZARDOUS
MATERIAL POLLUTION PREVENTION
REGULATIONS FOR VESSELS
1. The authority citation for part 155
continues to read as follows:

■

Authority: 33 U.S.C. 1231, 1321(j); E.O.
11735, 3 CFR, 1971–1975 Comp., p. 793.
Sections 155.100 through 155.130, 150.350
through 155.400, 155.430, 155.440, 155.470,
155.1030(j) and (k), and 155.1065(g) are also
issued under 33 U.S.C. 1903(b). Sections
155.480, 155.490, 155.750(e), and 155.775 are
also issued under 46 U.S.C. 3703. Section
155.490 also issued under section 4110(b) of
Pub. L. 101–380.
Note: Additional requirements for vessels
carrying oil or hazardous materials are
contained in 46 CFR parts 30 through 40,
150, 151, and 153.

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

■

§ 155.130

*

*

Exemptions.

*

*

*

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

3. Revise § 155.140 to read as follows:

§ 155.140

Incorporation by reference.

(a) Certain material is incorporated by
reference into this part with the
approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1
CFR part 51. To enforce any edition
other than that specified in this section,
the Coast Guard must publish notice of
change in the Federal Register and the
material must be available to the public.
All approved material is available for
inspection at the National Archives and
Records Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030 or
go to http://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html. Also, it is available
for inspection at the Coast Guard, Office
of Vessel Activities, 2100 Second Street,
SW., Washington, DC 20593–0001.
Approved material is available from the
sources indicated in this section.
(b) American National Standards
Institute, Inc. (ANSI), 25 West 43rd
Street, New York, NY 10036, 212–642–
4980, http://www.ansi.org/:

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(1) ANSI A10.14, Requirements for
Safety Belts, Harnesses, Lanyards and
Lifelines for Construction and
Demolition Use, 1991 (‘‘ANSI A10.14’’),
incorporation by reference approved for
§ 155.230.
(2) [Reserved]
(c) American Society for Testing and
Materials (ASTM), 100 Barr Harbor
Drive, West Conshohocken, PA 19428–
2959, 610–832–9585, http://
www.astm.org/:
(1) ASTM F 631–93, Standard Guide
for Collecting Skimmer Performance
Data in Controlled Environments
(‘‘ASTM F 631–93’’), incorporation by
reference approved for Appendix B.
(2) ASTM F 715–95, Standard Test
Methods for Coated Fabrics Used for Oil
Spill Control and Storage (‘‘ASTM F
715–95’’), incorporation by reference
approved for in Appendix B.
(3) ASTM F 722–82 (1993), Standard
Specification for Welded Joints for
Shipboard Piping Systems (‘‘ASTM F
722–82’’), incorporation by reference
approved for Appendix A and
Appendix B.
(d) International Maritime
Organization (IMO), 4 Albert
Embankment, London SE1 7SR, United
Kingdom, http://www.imo.org/:
(1) Resolution A.535(13),
Recommendations on Emergency
Towing Requirements for Tankers,
November 17, 1983 (‘‘Resolution
A.535(13)’’), incorporation by reference
approved for § 155.235.
(2) Resolution MSC.35(63), Adoption
of Guidelines for Emergency Towing
Arrangement on Tankers, May 20, 1994
(‘‘Resolution MSC.35(63)’’),
incorporation by reference approved for
§ 155.235.
(e) National Fire Protection
Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02269–7471, 617–
770–3000, http://www.nfpa.org/:
(1) NFPA 1001, Standard for Fire
Fighter Professional Qualifications,
2008 Edition (‘‘NFPA 1001’’),
incorporation by reference approved for
§ 155.4050.
(2) NFPA 1005, Standard for
Professional Qualifications for Marine
Fire Fighting for Land-Based Fire
Fighters, 2007 Edition (‘‘NFPA 1005’’),
incorporation by reference approved for
§ 155.4050.
(3) NFPA 1021, Standard for Fire
Officer Professional Qualifications, 2003
Edition (‘‘NFPA 1021’’), incorporation
by reference approved for § 155.4050.
(4) NFPA 1405, Guide for Land-Based
Fire Fighters Who Respond to Marine
Vessel Fires, 2006 Edition (‘‘NFPA
1405’’), incorporation by reference
approved for §§ 155.4035 and 155.4050.

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(5) NFPA 1561, Standard on
Emergency Services Incident
Management System, 2008 Edition
(‘‘NFPA 1561’’), incorporation by
reference approved for § 155.4050.
(f) Oil Companies International
Marine Forum (OCIMF), 29 Queen
Anne’s Gate, London, SW1H 9BU
England, http://www.ocimf.com/:
(1) Ship to Ship Transfer Guide
(Petroleum), Second Edition, 1988,
incorporation by reference approved for
§ 155.1035.
(2) Reserved.
■ 4. In § 155.1020, revise the definition
of ‘‘Oil Spill Removal Organization’’ to
read as follows:
§ 155.1020

Definitions.

*

*
*
*
*
Oil spill removal organization (OSRO)
means an entity that provides oil spill
response resources.
*
*
*
*
*
■ 5. Amend § 155.1050 by:
■ (a) Revising paragraph (k); and
■ (b) Removing and reserving existing
paragraph (l):
§ 155.1050 Response plan development
and evaluation criteria for vessels carrying
groups I through IV petroleum oil as a
primary cargo.

*
*
*
*
(k) Salvage (including lightering) and
marine firefighting requirements are
found in subpart I of this part.
(l) [Reserved]
*
*
*
*
*
■ 6. Reserve subpart H and add subpart
I, consisting of § 155.4010 through
§ 155.4055, to read as follows:

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*

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

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Subpart I—Salvage and Marine
Firefighting
§ 155.4010

Purpose of this subpart.

(a) The purpose of this subpart is to
establish vessel response plan salvage
and marine firefighting requirements for
vessels, that are carrying group I–IV oils,
and that are required by § 155.1015 to
have a vessel response plan. Salvage
and marine firefighting actions can save
lives, property, and prevent the
escalation of potential oil spills to worst
case discharge scenarios.
(b) A planholder must ensure by
contract or other approved means that
response resources are available to
respond. However, the response criteria
specified in the regulations (e.g.,
quantities of response resources and
their arrival times) are planning criteria,
not performance standards, and are
based on assumptions that may not exist
during an actual incident, as stated in
33 CFR 155.1010. Compliance with the
regulations is based upon whether a
covered response plan ensures that
adequate response resources are
available, not on whether the actual
performance of those response resources
after an incident meets specified arrival
times or other planning criteria. Failure
to meet specified criteria during an
actual spill response does not
necessarily mean that the planning
requirements of the Federal Water
Pollution Control Act (FWPCA) (33
U.S.C. 1251–1376) and regulations were
not met. The Coast Guard will exercise
its enforcement discretion in light of all
facts and circumstances.
§ 155.4015 Vessel owners and operators
who must follow this subpart.

You must follow this subpart if your
vessel carries group I–IV oils, and is
required by § 155.1015 to have a vessel
response plan.
§ 155.4020

Complying with this subpart.

(a) If you have an existing approved
vessel response plan, you must have
your vessel response plan updated and
submitted to the Coast Guard by June 1,
2010.
(b) All new or existing vessels
operating on the navigable waters of the
United States or transferring oil in a port
or place subject to the jurisdiction of the
United States, that meet the
applicability requirements of
§ 155.1015, that do not have an
approved vessel response plan, must
comply with § 155.1065.
(c) Your vessel may not conduct oil
transport or transfer operations if—
(1) You have not submitted a plan to
the Coast Guard in accordance with
§ 155.1065 prior to June 1, 2010;

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(2) The Coast Guard determines that
the response resources referenced in
your plan do not meet the requirements
of this subpart;
(3) The contracts or agreements cited
in your plan have lapsed or are
otherwise no longer valid;
(4) You are not operating in
accordance with your plan; or
(5) The plan’s approval has expired.
§ 155.4025

Definitions.

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

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funding agreement is to ensure that
salvage and marine firefighting
responses are not delayed due to
funding negotiations. The funding
agreement must include a statement of
how long the agreement remains in
effect, and must be provided to the
Coast Guard for VRP approval. In
addition any written agreement with a
public resource provider must be
included in the planholder’s Vessel
Response Plan (VRP).
Diving services support means divers
and their equipment to support salvage
operations. This support may include,
but not be limited to, underwater
repairs, welding, placing lifting slings,
or performing damage assessments.
Emergency lightering is the process of
transferring oil between two ships or
other floating or land-based receptacles
in an emergency situation and may
require pumping equipment, transfer
hoses, fenders, portable barges, shore
based portable tanks, or other
equipment that circumstances may
dictate.
Emergency towing, also referred to as
rescue towing, means the use of towing
vessels that can pull, push or make-up
alongside a vessel. This is to ensure that
a vessel can be stabilized, controlled or
removed from a grounded position.
Towing vessels must have the proper
horsepower or bollard pull compatible
with the size and tonnage of the vessel
to be assisted.
External emergency transfer
operations means the use of external
pumping equipment placed on board a
vessel to move oil from one tank to
another, when the vessel’s own transfer
equipment is not working.
External firefighting teams means
trained firefighting personnel, aside
from the crew, with the capability of
boarding and combating a fire on a
vessel.
External vessel firefighting systems
mean firefighting resources (personnel
and equipment) that are capable of
combating a fire from other than on
board the vessel. These resources
include, but are not limited to, fire tugs,
portable fire pumps, airplanes,
helicopters, or shore side fire trucks.
Funding agreement is a written
agreement between a resource provider
and a planholder that identifies agreed
upon rates for specific equipment and
services to be made available by the
resource provider under the agreement.
The funding agreement is to ensure that
salvage and marine firefighting
responses are not delayed due to
funding negotiations. This agreement
must be part of the contract or other
approved means and must be submitted
for review along with the VRP.

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Great Lakes means Lakes Superior,
Michigan, Huron, Erie, and Ontario,
their connecting and tributary waters,
the Saint Lawrence River as far as Saint
Regis, and adjacent port areas.
Heavy lift means the use of a salvage
crane, A-frames, hydraulic jacks,
winches, or other equipment for lifting,
righting, or stabilizing a vessel.
Inland area means the area shoreward
of the boundary lines defined in 46 CFR
part 7, except that in the Gulf of Mexico,
it means the area shoreward of the lines
of demarcation (COLREG lines) as
defined in §§ 80.740 through 80.850 of
this chapter. The inland area does not
include the Great Lakes.
Making temporary repairs means
action to temporarily repair a vessel to
enable it to safely move to a shipyard or
other location for permanent repairs.
These services include, but are not
limited to, shoring, patching, drill
stopping, or structural reinforcement.
Marine firefighting means any
firefighting related act undertaken to
assist a vessel with a potential or actual
fire, to prevent loss of life, damage or
destruction of the vessel, or damage to
the marine environment.
Marine firefighting pre-fire plan
means a plan that outlines the
responsibilities and actions during a
marine fire incident. The principle
purpose is to explain the resource
provider’s role, and the support which
can be provided, during marine
firefighting incidents. Policies,
responsibilities and procedures for
coordination of on-scene forces are
provided in the plan. It should be
designed for use in conjunction with
other state, regional and local
contingency and resource mobilization
plans.
Nearshore area means the area
extending seaward 12 miles from the
boundary lines defined in 46 CFR part
7, except in the Gulf of Mexico. In the
Gulf of Mexico, a nearshore area is one
extending seaward 12 miles from the
line of demarcation (COLREG lines) as
defined in §§ 80.740 through 80.850 of
this chapter.
Offshore area means the area up to 38
nautical miles seaward of the outer
boundary of the nearshore area.
On-site fire assessment means that a
marine firefighting professional is on
scene, at a safe distance from the vessel
or on the vessel, who can determine the
steps needed to control and extinguish
a marine fire in accordance with a
vessel’s stability and structural integrity
assessment if necessary.
On-site salvage assessment means
that a salvage professional is on scene,
at a safe distance from the vessel or on
the vessel, who has the ability to assess

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the vessel’s stability and structural
integrity. The data collected during this
assessment will be used in the salvage
software calculations and to determine
necessary steps to salve the vessel.
Other refloating methods means those
techniques for refloating a vessel aside
from using pumps. These services
include, but are not limited to, the use
of pontoons, air bags or compressed air.
Outside continental United States
(OCONUS) means Alaska, Hawaii, the
Commonwealth of Puerto Rico, Guam,
American Samoa, the United States
Virgin Islands, the Commonwealth of
the Northern Marianas, and any other
territory or possession of the United
States.
Primary resource provider means a
resource provider listed in the vessel
response plan as the principal entity
contracted for providing specific salvage
and/or marine firefighting services and
resources, when multiple resource
providers are listed for that service, for
each of the COTP zones in which a
vessel operates. The primary resource
provider will be the point of contact for
the planholder, the Federal On Scene
Coordinator (FOSC) and the Unified
Command, in matters related to specific
resources and services, as required in
§ 155.4030(a).
Remote assessment and consultation
means contacting the salvage and/or
marine firefighting resource providers,
by phone or other means of
communications to discuss and assess
the situation. The person contacted
must be competent to consult on a
determination of the appropriate course
of action and initiation of a response
plan.
Resource provider means an entity
that provides personnel, equipment,
supplies, and other capabilities
necessary to perform salvage and/or
marine firefighting services identified in
the response plan, and has been
arranged by contract or other approved
means. The resource provider must be
selected in accordance with § 155.4050.
For marine firefighting services,
resource providers can include public
firefighting resources as long as they are
able, in accordance with the
requirements of § 155.4045(d), and
willing to provide the services needed.
Salvage means any act undertaken to
assist a vessel in potential or actual
danger, to prevent loss of life, damage
or destruction of the vessel and release
of its contents into the marine
environment.
Salvage plan means a plan developed
to guide salvage operations except those
identified as specialized salvage
operations.

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Special salvage operations plan
means a salvage plan developed to carry
out a specialized salvage operation,
including heavy lift and/or subsurface
product removal.
Subsurface product removal means
the safe removal of oil from a vessel that
has sunk or is partially submerged
underwater. These actions can include
pumping or other means to transfer the
oil to a storage device.
Underwater vessel and bottom survey
means having salvage resources on
scene that can perform examination and
analysis of the vessel’s hull and
equipment below the water surface.
These resources also include the ability
to determine the bottom configuration

and type for the body of water. This
service can be accomplished through
the use of equipment such as sonar,
magnetometers, remotely operated
vehicles or divers. When divers are used
to perform these services, the time
requirements for this service apply and
not those of diving services support.
§ 155.4030 Required salvage and marine
firefighting services to list in response
plans.

(a) You must identify, in the
geographical-specific appendices of
your VRP, the salvage and marine
firefighting services listed in Table
155.4030(b)—Salvage and Marine
Firefighting Services and Response

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

TABLE 155.4030(b)—SALVAGE AND MARINE FIREFIGHTING SERVICES AND RESPONSE TIMEFRAMES
Service

Location of incident response activity
timeframe

(1) Salvage ......................................................................................................................................

CONUS: nearshore
area; inland waters;
Great Lakes; and
OCONUS: < or = 12
miles from COTP city
(hours)

CONUS: offshore
area; and OCONUS:
< or = 50 miles from
COTP city (hours)

1
3
6
12
12

1
3
12
18
18

12
16
18
18
18
18
18

18
22
24
24
24
24
24

18
72
Estimated

24
84
Estimated

At pier (hours)

CONUS: Nearshore
area; inland waters;
Great Lakes; and
OCONUS: < or = 12
miles from COTP city
(hours)

*COM041*CONUS:
Offshore area; and
OCONUS: < or = 50
miles from COTP city
(hours)

1
2

1
6

1
12

4
4

8
12

12
18

(i) Assessment & Survey:
(A) Remote assessment and consultation ...............................................................................
(B) Begin assessment of structural stability .............................................................................
(C) On-site salvage assessment ..............................................................................................
(D) Assessment of structural stability .......................................................................................
(E) Hull and bottom survey ......................................................................................................
(ii) Stabilization:
(A) Emergency towing ..............................................................................................................
(B) Salvage plan .......................................................................................................................
(C) External emergency transfer operations ............................................................................
(D) Emergency lightering ..........................................................................................................
(E) Other refloating methods ....................................................................................................
(F) Making temporary repairs ...................................................................................................
(G) Diving services support ......................................................................................................
(iii) Specialized Salvage Operations:
(A) Special salvage operations plan ........................................................................................
(B) Subsurface product removal ..............................................................................................
(C) Heavy lift 1 ..........................................................................................................................
(2) Marine firefighting ...............................................................................

(i) Assessment & Planning:
(A) Remote assessment and consultation .......................................
(B) On-site fire assessment ..............................................................
(ii) Fire Suppression:
(A) External firefighting teams ..........................................................
(B) External vessel firefighting systems ...........................................

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1 Heavy lift services are not required to have definite hours for a response time. The planholder must still contract for heavy lift services, provide a description of the heavy lift response and an estimated response time when these services are required, however, none of the timeframes
listed in the table in § 155.4030(b) will apply to these services.

(c) Integration into the response
organization. You must ensure that all
salvage and marine firefighting resource
providers are integrated into the
response organizations listed in your
plans. The response organization must

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be consistent with the requirements set
forth in §§ 155.1035(d), 155.1040(d) and
155.1045(d).
(d) Coordination with other response
resource providers, response
organizations and OSROs. Your plan

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must include provisions on how the
salvage and marine firefighting resource
providers will coordinate with other
response resources, response
organizations, and OSROs. For example,
you will need to identify how salvage

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

cargo and fuel from your sunken vessel
to a depth equal to the maximum your
vessel operates in up to 150 feet.
§ 155.4032 Other resource provider
considerations.

(a) Use of resource providers not listed
in the VRP. If another resource provider,
not listed in the approved plan for the
specific service required, is to be
contracted for a specific response,
justification for the selection of that
resource provider needs to be provided
to, and approved by, the FOSC. Only
under exceptional circumstances will
the FOSC authorize deviation from the
resource provider listed in the approved
vessel response plan in instances where
that would best affect a more successful
response.
(b) Worker health and safety. Your
resource providers must have the
capability to implement the necessary
engineering, administrative, and
personal protective equipment controls
to safeguard their workers when
providing salvage and marine
firefighting services, as found in 33 CFR
155.1055(e) and 29 CFR 1910.120(q).
§ 155.4035 Required pre-incident
information and arrangements for the
salvage and marine firefighting resource
providers listed in response plans.

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

acceptable and agree to implement it to
mitigate a potential or actual fire.
(3) If a marine firefighting resource
provider subcontracts to other
organizations, each subcontracted
organization must also receive a copy of
the vessel pre-fire plan.
§ 155.4040 Response times for each
salvage and marine firefighting service.

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

TABLE 155.4040(c)—RESPONSE TIMEFRAME END POINTS

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Service

Response timeframe ends when

(1) Salvage:
(i) Remote assessment and consultation ....
(ii) Begin assessment of structural stability
(iii) On-site salvage assessment .................
(iv) Assessment of structural stability ..........
(v) Hull and bottom survey ..........................
(vi) Emergency towing .................................
vii) Salvage plan ..........................................

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Salvor is in voice contact with Qualified Individual (QI)/Master/Operator.
A structural assessment of the vessel has been initiated.
Salvor on board vessel.
Initial analysis is completed. This is a continual process, but at the time specified an analysis
needs to be completed.
Survey completed.
Towing vessel on scene.
Plan completed and submitted to Incident Commander/Unified Command.

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80653

TABLE 155.4040(c)—RESPONSE TIMEFRAME END POINTS—Continued
Service

Response timeframe ends when

(viii) External emergency transfer operations.
(ix) Emergency lightering .............................
(x) Other refloating methods .......................
(xi) Making temporary repairs .....................
(xii) Diving services support ........................
(xiii) Special salvage operations plan ..........
(xiv) Subsurface product removal ...............
(xv) Heavy lift 1 .............................................
(2) Marine Firefighting:
(i) Remote assessment and consultation ....
(ii) On-site fire assessment .........................
(iii) External firefighting teams .....................
(iv) External vessel firefighting systems ......

External pumps on board vessel.
Lightering equipment on scene and alongside.
Salvage plan approved & resources on vessel.
Repair equipment on board vessel.
Required support equipment & personnel on scene.
Plan completed and submitted to Incident Commander/Unified Command.
Resources on scene.
Estimated.
Firefighter in voice contact with QI/Master/Operator.
Firefighter representative on site.
Team and equipment on scene.
Personnel and equipment on scene.

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1 Heavy lift services are not required to have definite hours for a response time. The planholder must still contract for heavy lift services, provide a description of the heavy lift response and an estimated response time when these services are required, however, none of the timeframes
listed in the table in § 155.4030(b) will apply to these services.

(d) How to apply the timeframes to
your particular situation. To apply the
timeframes to your vessel’s situation,
follow these procedures:
(1) Identify if your vessel operates
CONUS or OCONUS.
(2) If your vessel is calling at any
CONUS pier or an OCONUS pier within
50 miles of a COTP city, you must list
the pier location by facility name or city
and ensure that the marine firefighting
resource provider can reach the
locations within the specified response
times in Table 155.4030(b).
(3) If your vessel is transiting within
CONUS inland waters, nearshore or
offshore areas or the Great Lakes, you
must ensure the listed salvage and
marine firefighting services are capable
of reaching your vessel within the
appropriate response times listed in
Table 155.4030(b).
(4) If your vessel is transiting within
12 miles or less from an OCONUS COTP
city, you must ensure the listed salvage
and marine firefighting services are
capable of reaching a point 12 miles
from the harbor of the COTP city within
the nearshore area response times listed
in Table 155.4030(b).
(5) If your vessel is transiting between
12 and 50 miles from an OCONUS
COTP city, you must ensure the listed
salvage and marine firefighting services
are capable of reaching a point 50 miles
from the harbor of the COTP city within
the offshore area response times listed
in Table 155.4030(b).
(6) If your vessel transits inland
waters or the nearshore or offshore areas
OCONUS, but is more than 50 miles
from a COTP city, you must still
contract for salvage and marine
firefighting services and provide a
description of how you intend to
respond and an estimated response time
when these services are required,

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however, none of the time limits listed
in Table 155.4030(b) will apply to these
services.
§ 155.4045 Required agreements or
contracts with the salvage and marine
firefighting resource providers.

(a) You may only list resource
providers in your plan that have been
arranged by contract or other approved
means.
(b) You must obtain written consent
from the resource provider stating that
they agree to be listed in your plan. This
consent must state that the resource
provider agrees to provide the services
that are listed in §§ 155.4030(a) through
155.4030(h), and that these services are
capable of arriving within the response
times listed in Table 155.4030(b). This
consent may be included in the contract
with the resource provider or in a
separate document.
(c) This written consent must be
available to the Coast Guard for
inspection. The response plan must
identify the location of this written
consent, which must be:
(1) On board the vessel; or
(2) With a qualified individual located
in the United States.
(d) Public marine firefighters may
only be listed out to the maximum
extent of the public resource’s
jurisdiction, unless other agreements are
in place. A public marine firefighting
resource may agree to respond beyond
their jurisdictional limits, but the Coast
Guard considers it unreasonable to
expect public marine firefighting
resources to do this.
§ 155.4050 Ensuring that the salvors and
marine firefighters are adequate.

(a) You are responsible for
determining the adequacy of the
resource providers you intend to
include in your plan.

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

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(12) Resource provider has equipment
and experience to work in the specific
regional geographic environment(s) that
the vessel operates in (e.g., bottom type,
water turbidity, water depth, sea state
and temperature extremes).
(13) Resource provider has the
logistical and transportation support
capability required to sustain operations
for extended periods of time in arduous
sea states and conditions.
(14) Resource provider has the
capability to implement the necessary
engineering, administrative, and
personal protective equipment controls
to safeguard the health and safety of
their workers when providing salvage
and marine firefighting services.
(15) Resource provider has familiarity
with the salvage and marine firefighting
protocol contained in the local ACPs for
each COTP area for which they are
contracted.
(c) A resource provider need not meet
all of the selection criteria in order for
you to choose them as a provider. They
must, however, be selected on the basis
of meeting the criteria to the maximum
extent possible.
(d) You must certify in your plan that
these factors were considered when you
chose your resource provider.
§ 155.4052

Drills and exercises.

pwalker on PROD1PC71 with RULES3

(a) A vessel owner or operator
required by §§ 155.1035 and 155.1040 to
have a response plan shall conduct
exercises as necessary to ensure that the
plan will function in an emergency.
Both announced and unannounced
exercises must be included.
(b) The following are the minimum
exercise requirements for vessels
covered by this subpart:
(1) Remote assessment and
consultation exercises, which must be
conducted quarterly;
(2) Emergency procedures exercises,
which must be conducted quarterly;
(3) Shore-based salvage and shorebased marine firefighting management
team tabletop exercises, which must be
conducted annually;
(4) Response provider equipment
deployment exercises, which must be
conducted annually;
(5) An exercise of the entire response
plan, which must be conducted every

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three years. The vessel owner or
operator shall design the exercise
program so that all components of the
response plan are exercised at least once
every three years. All of the components
do not have to be exercised at one time;
they may be exercised over the 3-year
period through the required exercises or
through an area exercise; and
(6) Annually, at least one of the
exercises listed in § 155.4052(b)(2) and
(4) must be unannounced. An
unannounced exercise is one in which
the personnel participating in the
exercise have not been advised in
advance of the exact date, time, or
scenario of the exercise.
(7) Compliance with the National
Preparedness for Response Exercise
Program (PREP) Guidelines will satisfy
the vessel response plan exercise
requirements. These guidelines are
available on the Internet at https://
Homeport.uscg.mil/exercises. Once on
that Web site, select the link for
‘‘Preparedness for Response Exercise
Program (PREP)’’ and then select
‘‘Preparedness for Response Exercise
Program (PREP) Guidelines’’.
Compliance with an alternate program
that meets the requirements of 33 CFR
155.1060(a), and has been approved
under 33 CFR 155.1065 will also satisfy
the vessel response plan exercise
requirements.
§ 155.4055 Temporary waivers from
meeting one or more of the specified
response times.

(a) You may submit a request for a
temporary waiver of a specific response
time requirement, if you are unable to
identify a resource provider who can
meet the response time.
(b) Your request must be specific as to
the COTP zone, operating environment,
salvage or marine firefighting service,
and response time.
(c) Emergency lightering requirements
set forth in § 155.4030(b) will not be
subject to the waiver provisions of this
subpart.
(d) You must submit your request to
the Commandant, Director of Prevention
Policy (CG–54), via the local COTP for
final approval. The local COTP will
evaluate and comment on the waiver

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before forwarding the waiver request,
via the District to the Commandant (CG–
54) for final approval.
(e) Your request must include the
reason why you are unable to meet the
time requirements. It must also include
how you intend to correct the shortfall,
the time it will take to do so, and what
arrangements have been made to
provide the required response resources
and their estimated response times.
(f) Commandant, Director of
Prevention Policy (CG–54), will only
approve waiver requests up to a
specified time period, depending on the
service addressed in the waiver request,
the operating environment, and other
relevant factors. These time periods are
listed in Table 155.4055(g).
(g) Table 155.4055(g) lists the service
waiver time periods.

TABLE 155.4055(g)—SERVICE WAIVER
TIME PERIODS

Service

(1) Remote salvage assessment
& consultation ...........................
(2) Remote firefighting assessment & consultation ..................
(3) On-site salvage & firefighting
assessment ...............................
(4) Hull and bottom survey ...........
(5) Salvage stabilization services
(6) Fire suppression services .......
(7) Specialized salvage operations .........................................

Maximum
waiver
time
period
(years)
0
0
1
2
3
4
5

(h) You must submit your waiver
request 30 days prior to any plan
submission deadlines identified in this
or any other subpart of part 155 in order
for your vessel to continue oil transport
or transfer operations.
Dated: December 17, 2008.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant
Commandant for Marine Safety, Security and
Stewardship.
[FR Doc. E8–30604 Filed 12–30–08; 8:45 am]
BILLING CODE 4910–15–P

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