Nontank Vessel Response Plans and Other Vessel Response Plan Requirements, 44970-45001 [E9-20310]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Proposed Rules]
[Pages 44970-45001]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20310]



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Part III





Department of Homeland Security





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Coast Guard



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33 CFR Parts 151, 155, and 160



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

Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / 
Proposed Rules

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 151, 155, and 160

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


Nontank Vessel Response Plans and Other Vessel Response Plan 
Requirements

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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

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

ADDRESSES: You may submit comments identified by docket number USCG-
2008-1070 using any one of the following methods:
    (1) Federal eRulemaking Portal: https://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. For 
instructions on submitting comments, see the ``Public Participation and 
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section 
below.
    Collection of Information Comments: If you have comments on the 
collection of information, you must also send comments to the Office of 
Information and Regulatory Affairs (OIRA), Office of Management and 
Budget. To ensure that your comments to OIRA are received on time, the 
preferred methods are by e-mail to oira_submission@omb.eop.gov 
(include the docket number and ``Attention: Desk Officer for Coast 
Guard, DHS'' in the subject line of the e-mail) or fax at 202-395-6566. 
An alternate, though slower, method is by U.S. mail to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attn: Desk Officer, U.S. 
Coast Guard.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call Lieutenant Jarrod DeWitz, U.S. Coast Guard, Office of Vessel 
Activities, Vessel Response Plan Review Team, telephone (202) 372-1219. 
You may also e-mail questions to uscg.mil">Jarrod.M.DeWitz@uscg.mil.

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


SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

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

I. Public Participation and Request for Comments

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

A. Submitting Comments

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

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

B. Viewing Comments and Documents

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

C. Privacy Act

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

D. Public Meeting

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

II. Abbreviations

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

III. Background and Purpose

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

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

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

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

B. Tank Vessels

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

C. Nontank Vessels

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

D. Access to the NVICs

    A copy of the nontank vessel response plan NVICs can be found in 
the docket at https://www.regulations.gov and at https://www.uscg.mil/hq/g-m/nvic/. For those individuals without internet access, a copy of the 
NVIC may be obtained by contacting the Vessel Response Plan (VRP) 
Program staff at 202-372-1209 or your local U.S. Coast Guard Sector 
Office.

E. Shipboard Oil Pollution Emergency Plan (SOPEP)

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

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

F. Notice of Arrival Requirements and Vessel Response Plans

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

G. Customary International Law: Innocent Passage and Transit Passage

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

[[Page 44974]]

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

[[Page 44975]]

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

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

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

IV. Discussion of Proposed Rule

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

Proposed Changes to SOPEP Regulations

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

Proposed Changes to Existing Tank Vessel Response Plan Regulations

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

Proposed Nontank Vessel Response Plan Regulations

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

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

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

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

Section 151.09 Applicability (SOPEP)

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

Section 151.26 Shipboard Oil Pollution Emergency Plans (SOPEP)

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

[[Page 44976]]

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

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

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

Part 155 Subpart D Discussion of Proposed Changes

Section 155.1020 Tank Vessel Response Plan (TVRP) Definitions

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

Sections 155.1065 and 155.1070 TVRP Plan Submission and Review 
Procedures

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

Part 155 Subpart J Discussion of Proposed Regulations

Section 155.5010 Nontank Vessel Response Plan (NTVRP) Purpose

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

Section 155.5012 Deviation From Response Plan

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

Section 155.5015 Applicability

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

[[Page 44977]]

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

Section 155.5020 Definitions

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

[[Page 44978]]

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

Section 155.5021 Operating Restrictions

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

Section 155.5023 Interim Operating Authorization

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

Section 155.5025 One-Time Port Waiver

    In this section, we propose that an owner or an operator may seek 
one-time authorization to enter a geographic-specific area not covered 
by the nontank vessel response plan upon approval by a cognizant 
Captain of the Port. This provision could also be used in an emergency 
situation, such as