1625-0068 33CFR133 State Access

U.S. Department
of Transportation

Commandant
U.S. Coast Guard

United States
Coast Guard

2100 Second St., SW
Washington, DC 20593-0001
Staff Symbol: G-MEP
Phone: (202) 267-0518

NOV 6 1992
5711/11

From:
To:

Commandant
Distribution

Subj.:

FORWARDING OF INTERIM RULE ON STATE ACCESS TO THE OIL
SPILL LIABILITY TRUST FUND FOR REMOVAL COSTS UNDER THE
OIL POLLUTION ACT OF 1990 (PURSUANT TO SECTION 1012(D) (1))
AND TECHNICAL OPERATING PROCEDURES (TOPs)

1.

The interim rule, 33 CFR 133, implementing Section 1012 (d) (1) of the Oil Pollution
Act of 1990 (OP 90) (PL 101380) which accord States access to Oil Spill Liability
Trust Funds for the immediate removal of a discharge, or the mitigation or prevention
of a substantial threat of a discharge of oil was signed by the Commandant 5 November
1992 and is effective the day of publication in the Federal Register. The Director,
National Pollution Funds Center (NPFC) has distributed a copy of this rule and
Technical Operating Procedures (TOPs) to facilitate administration of the Fund. I am
forwarding a copy of both the interim rule and the TOPs for further distribution to
Coast Guard OSCs in your district.

2.

A natural working group of NPFC staff, an Environmental Protection Agency
representative, and members of my staff developed these TOPs. To the extent we were
able, these procedures were drafted for use by all parties: the NPFC, the States, OSCs,
the District and Commandant (G-MEP). These procedures were also written to allow
for maximum flexibility to allow the OSC to work with State officials in a mutually
comfortable manner.

3.

We also did not want to burden the OSC with unnecessary paperwork. So, for example
the OSC is not required to review state cost accounting paperwork: however we
directed that the NPFC case officer consult with the OSC on questions of an operational
nature. We also assumed that the State/OSC relationship with respect to State access
under this rule would be addressed in the Coast Guard/State Memoranda of Agreement.

I understand that we are breaking new ground, procedural as well as programmatic. We have
already heard talk of the states using the Fund for abandoned oil well clean up. This will
likely increase unit workload. And because the OSC has final authority

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5711/11
Subj.:

FORWARDING OF INTERIM RULE ON STATE ACCESS TO THE OIL SPILL
LIABILITY TRUST FUND FOR REMOVAL COSTS UNDER THE OIL
POLLUTION ACT OF 1990 (PURSUANT TO SECTION 1012 (D) (1)) AND
TECHNICAL OPERATING PROCEDURES (TOPs)

on granting State access, we recognize that the OSC will be placed in awkward position at
times. I therefore encourage constructive comments on the rule and the TOPs, not only on
their content, but also to better define the Coast Guard/State relationship and our response to
oil spills. Comments should be dual addressed to the Director, NPFC and Commandant (GME). Commandant (G-ME) will address those concerns related to operational matters and
impact on work load. NPFC will address those concerns related to Fund administration. My
point of contact is Commander Bruce Russell, Commandant (G-ME-3) at (202) 267-0421.

Encl: (1)
(2)

Interim Rule
Technical Operating Procedures for State Access under Section 1012 (d) (1)
of the Oil Pollution Act of 1990 (PL 101-380)

Dist: All District (m)
RTC Yorktown
NSFCC

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Friday

November 13, 1992

Part II

Department of
Transportation
Coast Guard

33 CFR Part 133

State Access to the Oil Spill Liability

Trust Fund for Removal costs Under the

Oil Pollution Act of 1990; Interim rule

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539504 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Coast Guard
33 CFR Part 133
[CGD 92-014]
RIN 2115-AE19
State Access to the Oil Spill Liability
Trust Fund for Removal Costs Under
the Oil Pollution Act of 1990
AGENCY: Coast Guard. DOT.
ACTION: Interim rule with request
for comments.
SUMMARY: This rulemaking
implements the provisions of the Oil
Pollution Act of 1990 (OPA 90)
concerning the procedures by which
the Governor of a State can request
payments of up to $250,000 from the
Oil Spill Liability Trust Fund (the
Fund) for removal costs required for
the immediate removal of a discharge,
or the mitigation or prevention of a
substantial threat of a discharge of oil.
This action is a temporary measure
needed primarily to provide a
procedure
by which the Governor of a State can
make a request for payments from the
Fund. This interim rule will be
replaced by a more comprehensive rule
that addresses, in addition to requests
by Governors, formal agreements
between the States and the Coast
Guard providing specific procedures
for fund use.
DATES: This rule is effective on
November 13, 1992. Comments must
be received on or before February 11,
1993.
ADDRESSES: Comments may be
mailed to the Executive Secretary,
Marine Safety Council (G-LRA/3406)
(CGD 92-014), U.S. Coast Guard
Headquarters, 2100 Second Street,
SW, Washington, DC 20593-0001, or
may be delivered to room 3406 at the
above address between 8 a.m. and 3
p.m., Monday through Friday, except
Federal holidays. The telephone
number is (202) 287-1477. Comments
on collection of information
requirements also must be mailed to
the Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725 17th
Street, NW, Washington, DC 20503,
ATTN: Desk Officer, U.S. Coast
Guard.
The Executive Secretary maintains
the public docket for this rulemaking.
Comments will become part of this
docket and will be available for
inspection of copying at room 3406,
U.S. Coast Guard Headquarters.
FOR FURTHER INFORMATION
CONTACT: Mr. Donald Taylor

Chapter 5

(Project Manager), National Pollution
Funds Center, (703) 235-4805.
SUPPLEMENTARY
INFORMATION:
Request for Comments
The Coast Guard encourages
interested persons to participate in this
rulemaking by submitting written data,
views, or arguments. Comments are
specifically requested on the effect the
U.S. Department of Transportation
regulations regarding cooperative
agreements may have on State access
to the Fund. These regulations are
contained in 49 CFR parts 18, 20, 29,
and 90. Persons submitting comments
should include their names and
addresses, identify this rulemaking
(CGD 92-014) and the specific section
of the rule to which each comment
applies, and give the reason for each
comment. Each person wanting
acknowledgment of receipt of
comments should enclose a stamped,
self-addressed postcard or envelope.
The Coast Guard will consider all
comments received during the
comment period. It may change this
rule in view of the comments.
The Coast Guard plans no public
hearing. Persons may request a public
hearing by writing to the Marine
Safety Council at the address under
“ADDRESSES”. If it determines that
the opportunity for oral presentations
will aid this rulemaking, the Coast
Guard will hold a public hearing at a
time and place announced by a later
notice of the Federal Register.
Drafting Information
The principal person involved in
drafting this document is Donald
Taylor, Project Manager, National
Pollution funds Center.
Regulatory Information
This rule is being published as an
interim rule and is being made
effective on the date of publication to
provide a procedure whereby funds for
the immediate removal of an oil
discharge, or the mitigation or
prevention of a substantial threat of an
oil discharge, may be made available
as soon as possible. A delay in
providing a procedure may delay the
payment of the necessary funds. Such
a delay would be contrary to the intent
of Congress under the Oil Pollution
Act of 1990 (OPA 90) and to the
interests of the public. For these
reasons, the Coast Guard for good
cause finds, under 5 U.S.C.553
(b)(3)(B) and (d)(3), that notice and
public procedure thereon before the
effective date of the interim rule are
unnecessary and that the interim rule

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should be made effective in less than
30 days after publication.
In addition to this rulemaking, the
Coast Guard is developing a second,
separate rule which will replace this
rule. A notice of proposed rulemaking
and opportunity for public comment
will be provided. The second
rulemaking address not only requests
by State Governors for payments
between the States and the Coast
Guard that may provide for advance
payments to facilitate immediate
removal of oil discharges, or the
mitigation or prevention of substantial
threats of oil discharges.
The Coast Guard consulted with
representatives from the States at
regional meetings held in December
1991 and January 1992. There was
general support for the content of this
rulemaking. A synopsis of the
discussions that took place at those
meetings is in the public docket for
this rulemaking.
This rulemaking (CGD 92-014) is
separate from the Coast Guard’s
ongoing claims regulations project
(CGD 91-035). The state access
regulations concern payment to the
States outside the normal claims
process.
Discussion of the Regulations
This interim rule implements the
provision under section 1012(d)(1) of
the Oil Pollution Act of 1990 (Pub.
L.101-380; August 18, 1990) (OPA
90) which states that in accordance
with regulations promulgated under
section 1012(d)(1), the President, upon
the request of the Governor of a State,
may obligate the Fund for payment in
an amount not to exceed $250,000 for
removal costs consistent with the
National Contingency Plan required
for the immediate removal of a
discharge, or the mitigation or
prevention of a substantial threat of a
discharge, of oil.
The objective of this rulemaking is
to develop the basic request
procedures. Elaboration of this
procedure, if deemed necessary after
further consultation with the States and
consideration of the comments on this
rule, will be handled in the second
rulemaking discussed under
“Regulatory Information” in this
preamble.
The interim rule addresses only
requests by Governors or their
representatives. Requests are made
directly to the On-Scene Coordinator
(OSC). The OSC reviews the request
for eligibility both under section
1012(d) and under the interim rule and
approves or denies the Governor’s
request. To guide the OSC in making
eligibility recommendations, the

539505 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations

interim rule provides minimum
standards. This provides consistency
in applying the interim rule. The
States are required to coordinate their
removal actions with the OSC and
retain records of expenditures of the
funds. The provisions of the Federal
Grant and Cooperative Agreement Act
and the regulations of the U.S.
Department of Transportation
regarding Federal assistance programs
apply to payments from the Fund.
In developing this rule, the Coast
Guard consulted with the
Environmental Protection Agency.
Regulatory Evaluation
This rule is not major under
Executive Order 12291. It is
significant under the Department of
Transportation Regulatory Policies and
Procedures (44 FR 11040; February
26, 1979). This rulemaking is
considered significant because of the
substantial interest by the States. The
Coast Guard expects the economic
impact of this rule to be so minimal
that a separate Regulatory Evaluation
is unnecessary. Though the Coast
Guard expects the economic impact of
this rule to be minimal, it specifically
requests comments and data on this
subject.
The impacts of this rule arise from
the procedures the Governor of a State
must follow requesting payments for
immediate removal costs from the
Fund and from the recordkeeping by
the State necessary to account for their
expenditures. The cost of making a
request is expected to be as little as the
cost of making a telephone call or
sending a facsimile. The cost of
conforming with Federal cooperative
agreement administrative requirements
is expected to be minimal. This cost is
intrinsic to all of the cooperative
agreements a State may have with the
Federal government. The costs of
transferring and expending funds and
keeping records of the expenditures of
the payments obligated from the Fund
would vary with the nature of the
removal activity. Recordkeeping of
removal activities and costs, however,
is required already for actions
consistent with the National
Contingency Plan.
Small Entities
The entities affected by this
rulemaking are State governments.
This rulemaking does not affect “small
entities”, as the term is defined in the
Regulatory Flexibility Act (5 U.S.C.
601 et seq.). Therefore, the Coast
Guard certifies under 5 U.S.C. 605(b)
that this rule will not have a significant
economic impact on a substantial
number of small entities.

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Federalism
The Coast Guard has analyzed this
rule in accordance with the principles
and criteria contained in Executive
Order 12612 and has determined that
this rule does not have sufficient
implications to warrant the preparation
of a Federalism Assessment. Though
this rulemaking affects the States by
providing a procedure whereby they
may request money from the Fund, the
implications of that procedure are not
sufficient enough, under the
Department of Transportation’s
federalism guide, to warrant the
preparation of a Federalism
Assessment. In addition, States are not
preempted from utilizing their own
funds in a removal activity.
Collection of Information
Under the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.), the
Office of Management and Budget
(OMB) reviews each rule that contains
a “collection of information
requirement” to determine whether the
practical value of the information is
worth the burden imposed by its
collection. Collection of information
requirements include reporting,
recordkeeping, notification, and other
similar requirements.
This rule prescribes requirements
for requesting access to the Fund, for
following up those requests with a
confirmation, and for keeping records
of expenditures. These requirements
are discussed in the “Regulatory
Evaluation” section of this preamble.
The Coast Guard has submitted
the collection of information
requirements to OMB for review under
section 3504(h) of the Paperwork
Reduction Act. Persons submitting
comments on the requirements should
submit their comments both to OMB
and to the Coast Guard where
indicated under “ADDRESSES”.
For further information, contact
the Information Requirements
Division, M-34, Office of the
Secretary of Transportation, 4400
Seventh Street, SW, Washington, DC
20590, (202) 366-4735; the Desk
Officer, U.S. Coast, at the Office of
Management and Budget, 725 17th
Street, NW, Washington, DC 20503,
(202) 395-7340; or the person under
“FOR FURTHER INFORMATION
CONTACT” in this preamble.
Environment
The Coast Guard considered the
environmental impact of this rule and
concluded that, under section 2.B.2 of
Commandant Instruction M16475.1B,
this rule is categorically excluded from
further environmental documentation.
This rule concerns procedures relating
to a request for payments to expedite

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the removal of an oil discharge or the
mitigation or prevention of a
substantial threat of an oil discharge
This action concerns internal
administrative procedure. A
Categorical Exclusion Determination
is available in the docket for inspecting
or coping where indicated under
“ADDRESSES”.
List of Subject in 33 CFR Part 133
Administrative practice and
procedure, intergovernmental
relations, Oil pollution, Reporting and
recordkeeping requirements.
For the reasons set out in the
preamble, the Coast Guard amends 33
CFR chapter I as follows:
1. Part 133 is added to read as
follows:
PART 133�OIL SPILL LIABILITY

TRUST FUND; STATE ACCESS

Sec.

133.1 Purpose.

133.3 Definitions.

133.5 Requests: General.

133.7 Requests: Amount.

133.9 Requests: Where made.

133.11 Requests: Contents.

133.13 Removal actions eligible for

funding.

133.15 Determination of eligibility

for

funding.
133.17 Conduct of removal actions.
133.19 Recordkeeping.
133.21 Records retention.
133.23 Investigation to determine the
source and responsible party.
133.25 Notification of Governor’s
designee.
Authority: 33 U.S.C. 2712(e):
E.O. 12777 (3 CFR, 1991 Comp., p.
351); 49 CFR 1.48.
§ 133.1 Purpose.
This part prescribes procedures for
the Governor of a State to request
payments from he Oil Spill Liability
Trust Fund (the Fund) for oil pollution
removal costs under section 1012(d)(1)
of the Oil Pollution Act of 1990 (the
Act) (33 U.S.C. 2712(d)(1)).
§ 133.3 Definitions.
(a) As used in this case the
following terms have the same
meaning as set forth in section 100 of
the Act (33 U.S.C. 2701): “discharge”,
“inclusive economic zone”, “Fund”,
“incident”, “National Contingency
Plan”, “navigable waters”, “oil”,
“remove”, “removal”, “removal costs”,
“responsible party”, “State”, and
“United States”.
(b) As used in this part—
Act means Title I of the Oil
Pollution Act of 1990 (33 U.S.C. 2701
through 2719).

539506 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations

Director, NPFC, means the person in
charge of the U.S. Coast Guard
National Pollution Funds Center or
that person’s authorized representative.
NPFC means the U.S. Coast
Guard National Pollution Funds
Center, 4200 Wilson Boulevard, Suite
1000, Arlington, Virginia 22203-1804.
On-Scene Coordinator or OSC
means the Federal-official
predesignated by the Environmental
Protection Agency or the U.S. Coast
Guard to direct and coordinate all
efforts for removal of a discharge, or
the mitigation or the prevention of a
substantial threat of a discharge, of oil.
Removal action means an incidentspecific activity taken under this part
to contain or remove a discharge, or to
mitigate or prevent a substantial threat
of a discharge, of oil.
§ 133.5 Requests: General.
(a) Upon a request submitted in
accordance with this part by the
Governor of a State or his or her
designated State official, the OSC may
obtain a Federal Project Number
(FPN) and a ceiling not to exceed
$250,000 per incident for removal
costs. The removal costs must be for
the immediate removal of a discharge,
or the mitigation or prevention of a
substantial threat of a discharge, of oil.
(b) Before a request under this part
is made, the State official shall ensure
that the procedures in the National
Contingency Plan (40 CFR part 300)
for notifying Federal authorities of the
discharge or threat of discharge have
been met.
(c) The Federal Grant and
Cooperative Agreement Act of 1977
(31 U.S.C. 8301-8308) and 49 CFR
parts 18, 20, 29, and 90 apply to fund
monies obligated for payment under
this part.
§

133.7 Requests: Amount.
(a) The amount of funds that may
be requested under this part�
(1) Is limited to the amount
anticipated for immediate removal
action for a single oil pollution
incident, but, in any event, may not
exceed $250,000 per incident;
(2) Must be for removal costs
consistent with the National
Contingency Plan; and
(3) Must be reasonable for the
removal actions proposed, considering
such factors as quantity and
composition of the oil, weather
conditions and customary costs of
similar services in the locale.
(b) The funds requested are
obligated only to the extent they are
determined to be for immediate
removal actions which are reasonable
and otherwise eligible for payment
under this part.

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§

133.9 Requests: Where made.
Requests for access to the Fund
under § 133.5 must be made by
telephone or other rapid means to the
OSC.
§

133.11 Request: contents.
In making a request for access to
the Fund, the person making the
request shall�
(a) Indicate that the request is a
State access request under 33 CFR part
133;
(b) Give his or her name, title,
department, and State;
(c) Describe the incident in
sufficient detail to allow a
determination of jurisdiction, including
at a minimum the date of the
occurrence, type of product
discharged, estimated quantity of the
discharge, body of water involved, and
proposed removal actions for which
funds are being requested under the
part; and
(d) indicate the amount of funds
being requested.
§ 133.13 Removal actions eligible
for funding.
To be eligible for funding under
this part, each removal action must
meet the following:
(a) Must be for an incident,
occurring after August 18, 1990, which
resulted in a discharge, or the
substantial threat of a discharge, of oil
into or upon the navigable waters or
adjoining shorelines.
(b) Must comply with the National
Contingency Plan.
(c) must be an immediate removal
action.
§ 133.15 Determination of
eligibility for funding.
Upon receipt of the information
under § 133.11 and, if necessary, from
other sources determined to be
appropriate at his or her discretion, the
OSC will determine whether the
proposed removal actions meet the
requirements of § 133.13. If
necessary, the OSC may seek further
clarification of the proposed actions
from the State official. The OSC shall
expeditiously notify the State official
and the Director, NPFC, of his or her
decision.
§ 133.17 Conduct of removal
actions.
Removal actions funded under this
part must be coordinated with the OSC
and conducted in accordance with the
National Contingency Plan.
§

133.19 Recordkeeping.
(a) The State official shall
maintain detailed records of
expenditures made from the funds

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provided under this part, including
records of�
(1) Daily expenditures for each
individual worker, giving the
individual’s name, title or position,
activity performed, time on task, salary
or hourly rate, travel costs, per diem,
out-of-pocket or extraordinary
expenses, and whether the individual is
normally available for oil spill
removal;
(2) equipment purchased or rented
each day, with the daily or hourly rate;
(3) Miscellaneous materials and
expendables purchased each day; and
(4) Daily contractor or consultant
fees, including costs for their
personnel and contractor-owned or
rented equipment, as well as that of
any subcontractor.
(b) The State official shall submit
a copy of these records and a summary
document stating the total of all
expenditures made to the NPFC
official specified in § 133.25(c) within
thirty days after completion of the
removal actions. A copy of these
documents shall also be submitted to
the cognizant OSC.
(c) Upon request of the OSC or the
NPFC, the State official shall make the
original records available for
inspection.
(d) If, after inspecting the records,
the Director, NPFC, determines that
expenditures by a State official from
funds obligated under this part were
not eligible for funding under this part
and the expenditures were not made
with the good faith understanding that
they were eligible under this part, the
Director, NPFC, may seek
reimbursement to the Fund from the
State.
§

133.21 Records retention.
(a) The State official shall
maintain all records for ten years
following completion of the removal
actions.
(b) If any litigation, claim,
negotiation, audit, cost recovery, or
other action involving the records has
been started before the expiration of
the two-year period, he records must
be retained until completion of the
action and resolution of all issues
which arise from it, or until the end of
the regular ten-year period, whichever
is later.
§ 133.23 Investigation to
determine the source and
responsible party.
(a) The State official shall
promptly make a thorough
investigation to determine the source
of the incident and the responsible
party.

539507 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations

(b) Upon completion of the
investigation, the State official shall
forward the results of the investigation
and copies of the supporting evidence
identifying the source and the
responsible party to both the cognizant
OSC and the NPFC official specified
in § 133.25(c).
§ 133.25 Notification of
Governor’s designee.
(a) If the Governor of a State
anticipates the need to access the Fund
under this part, he or she must advise
the NPFC in writing of a specific
individual who is designated to make
requests under this part.
(b) This designation must include
the individual’s name, address,
telephone number, and title or capacity
in which employed.
(c) The information required by
paragraph (b) of this section must be
forwarded to the Chief, Case
Management Division, National
Pollution Funds Center, Suite 1000,
4200 Wilson Boulevard, Arlington,
Virginia 22203-1804.
Dated: November 5, 1992.
J.W. Kime,
Admiral, U.S. Coast Guard
Commandant.
[FR Doc. 92-27392 Filed 11-12-92;
8:45 am]

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