[Senate Report 104-292]
[From the U.S. Government Publishing Office]
Calendar No. 466
104th Congress Report
SENATE
2d Session 104-292
_______________________________________________________________________
OIL SPILL PREVENTION AND RESPONSE IMPROVEMENT ACT
_______
June 26, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Chafee, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1730]
The Committee on Environment and Public Works, to which was
referred the bill (S. 1730), to amend the Oil Pollution Act of
1990 to make the Act more effective in preventing oil pollution
in the Nation's waters through enhanced prevention of, and
improved response to, oil spills, and to ensure that citizens
and communities injured by oil spills are promptly and fully
compensated, and for other purposes, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill do pass.
General Statement
background
The Oil Pollution Act of 1990
The Oil Pollution Act of 1990 (OPA) was signed into law by
President Bush on August 18, 1990. The Act established for the
first time a comprehensive Federal oil spill response and
liability legislative framework and ushered in several landmark
reforms. First of all, it strengthened measures for oil spill
prevention by requiring all oil-carrying tank vessels over
5,000 gross tons constructed after 1990 to have double-hulls,
phasing out operation of all oil-carrying single hull tank
vessels, and requiring the Coast Guard to issue interim spill
prevention rules for single-hull vessels.
Second, OPA increased the financial consequences of oil
spills. It expanded the scope of polluter liability by imposing
strict liability for the clean-up costs and damages that result
from an oil spill. OPA also raised the liability limit for
vessels. It provided that the higher limit could be superseded,
however, if the responsible party engaged in gross negligence,
willful misconduct, or violated any applicable Federal safety,
construction, or operating regulation.
Third, OPA strengthened oil spill response capabilities and
advanced planning. It expanded the items for which compensation
could be obtained from the Oil Spill Liability Trust Fund
(Fund). It established a new planning and response system,
which included the National Response Unit, U.S. Coast Guard
Strike Teams, 10 Coast Guard District Response Groups, and Area
Committees. OPA also mandated preparation of Area Contingency
Plans as well as an approved vessel response plan for each oil-
carrying vessel.
Finally, OPA facilitated access to funds to ensure prompt
and complete recovery for damages arising from an oil spill. It
established the following categories of claimants and damages
for which compensation is available from a responsible party:
(1) any claimant, for loss of profits or impairment of earning
capacity; (2) the government, acting as a public trustee for
injured natural resources; (3) owners of real or personal
property, for economic losses arising from destruction of their
property; (4) a person who relies on injured natural resources
for subsistence, for injury to such resources; (5) the
government, for losses in tax revenue arising from a spill; and
(6) the government, for net costs of providing additional
public services as the result of cleaning up a spill. It also
expanded the items for which compensation could be obtained
from the $1 billion Fund.
The North Cape spill
On January 19, 1996, a barge, the North Cape, ran aground
off the southern coast of Rhode Island. Despite strong efforts
by the U.S. Coast Guard and others, the grounding resulted in
the largest oil spill in Rhode Island's history. The damage to
the marine environment was extensive. Much of the spilled oil
washed up onto nearby beaches, along with the carcasses of many
fish, birds, and thousands of lobsters.
In response to the North Cape spill, the committee held two
oversight hearings to assess the implementation of Federal oil
pollution laws. The first hearing was held on February 14, 1996
in Narragansett, RI, and the second hearing was held on March
27, 1996 in Washington, D.C. The committee learned from the
hearings that although OPA has brought about faster and more
effective spill response since its enactment, there is room for
improvement.
The general consensus of the testimony was that equipping
oil-carrying tank vessels with double hulls is the single most
effective means of reducing the risk of a spill by such
vessels. Witnesses recommended other prevention measures, such
as operable anchors, manned barges, and emergency barge
retrieval systems. The Coast Guard was admonished for still not
having issued final rules establishing interim measures to
reduce the risk of oil spills by single-hull vessels until
their mandatory phase-out under OPA (hereafter, final interim
single-hull vessel spill prevention rules). These rules were
required to be issued under OPA nearly five years ago.
The other set of issues that emerged during the hearings
related to oil spill response. Many of the witnesses criticized
the lack of coordination and expedition with which agencies
acted in determining the scope and timing of closing and re-
opening of fishing grounds after the North Cape spill.
Fishermen and lobstermen injured by the spill found it
difficult to secure short-term financial assistance under
current law. Other witnesses questioned the availability of the
$1 billion Fund for assessment and restoration of ecological
resources injured as a result of the North Cape spill. Finally,
concern was expressed about the need for better coordination in
response activities among officials representing different
geographic regions potentially affected by the spill.
Congressional Legislation
On May 7, 1996, Senator Chafee, chairman of the committee,
introduced S. 1730, the Oil Spill Prevention and Response
Improvement Act. On June 4, the committee held a hearing on the
bill.
On June 18, the committee began consideration of the bill.
Two days later, on June 20, S. 1730 as amended was ordered
reported by a vote of 17 to 0.
Summary of S. 1730
As amended and approved by the Committee on Environment and
Public Works, the bill includes four titles. Title I includes
measures to enhance oil spill prevention measures. Title II
improves the response to the environmental and economic
injuries from oil spills that will, inevitably, still occur.
Title III clarifies the financial responsibility requirements
for offshore facilities. Title IV makes several technical
changes to OPA.
title i--enhancing spill prevention
Title I enhances oil spill prevention measures in several
ways. It guarantees that measures establishing structural and
operational spill prevention requirements for single-hull
vessels, as well as a final towing safety rule, will be in
effect by the end of calendar year 1996. It also provides an
incentive for shippers to convert their fleets to double-hull
vessels before the deadline established in OPA. Specifically,
the bill includes the following changes to current law:
Coast Guard rules--If the Coast Guard fails to issue final
interim single-hull vessel spill prevention rules by dates its
witnesses testified it could meet (July 18, 1996, for
operational measures and December 18, 1996, for structural
measures), the bill triggers into effect automatically
previously issued proposed rules containing such measures. The
final interim rules the Coast Guard ultimately does issue are
to include a requirement that applicable vessels have at least
one of the following: (1) a crew member and operable anchor on
board; (2) an emergency barge retrieval system on board; or (3)
comparable safeguards to prevent grounding. The rules also must
establish minimum under-keel clearance requirements for single-
hull vessels for each port and certain waters in which such
vessels operate.
Incentive to convert to double-hull vessels--Operators of
tank vessels equipped with double-hulls at the time of
enactment of this Act or double-hull vessels converted from or
replacing a single-hull vessel at least 5 years before the
statutory deadline in OPA will be entitled to a lesser
liability limit than provided by current law. Operators of such
vessels will be liable for damages in excess of OPA's statutory
liability cap only if they engage in gross negligence or
willful misconduct.
Towing safety rule--The Coast Guard is required to issue a
final towing safety rule by September 30, 1996. The final rule
is to require: (1) an emergency fire suppression system or
other fire protection equipment on board, (2) an on-board
electronic position-fixing device, and (3) operator-conducted
inspections of navigational and operational equipment at
regular intervals.
Other prevention measures--The bill directs the following
agencies to perform oil spill prevention studies: (1) the
Secretary of Transportation, in coordination with the Marine
Board, to study how the designation of waters and shipping
lanes affects spill risks; and (2) the U.S. Army Corps of
Engineers, to review the forthcoming report by the Governor of
Rhode Island's task force on dredging. The bill also interposes
a standard for lightering regulations required under current
law that ensures the rules will provide for substantial
environmental protection.
Title II--Improving Response to Oil Spills
Title II contains amendments that build upon the response
measures provided in OPA. The principal purpose of the
amendments is to reduce or redress the economic hardship and
environmental damage caused by an oil spill. Title II includes
the following specific changes to current law:
Short-term financial assistance--The bill clarifies current
law to ensure that injured parties can pursue partial claims
immediately following an oil spill without waiving their right
to full compensation for future losses.
Fishing grounds--The National Oceanic and Atmospheric
Administration (NOAA), in consultation with other affected
state and Federal agencies, is required to develop a framework,
including model protocols and standards, for the closing and
re-opening of fishing grounds affected by an oil spill.
Natural resource damages--The recent Comptroller General's
opinion that OPA does not provide for the Fund to pay costs of
natural resource damage trustees arising from a damage
assessment without a separate appropriation of Congress is
overturned. The amount that may be disbursed from the Fund not
subject to annual appropriation is raised from $50 million to
$60 million.
Mitigation of ecological injury--The bill strengthens the
environmental response provisions in current law. It ensures
access to the Fund for the costs of mitigating ecological
damage immediately following an oil spill and for the costs of
plugging idle oil wells. It also directs the agencies to
establish a national scientific support team and information
clearinghouse to enhance responses to the environmental effects
of oil spills.
Response plans--The bill strengthens the current law's
requirements for compliance with applicable response plans in
the event of a spill. It does so by providing that such plans
be followed unless deviation would provide for a more
expeditious or effective response to an oil spill or mitigation
of its effects.
Title III--Financial Responsibility
Title III amends the financial responsibility requirements
of OPA for offshore facilities. First, it establishes $35
million as the amount of financial responsibility required for
offshore facilities. The President may raise this amount (up to
$150 million) if the President determines that any of the
various risks posed by the facility justify doing so. Second,
Title III clarifies that land-based fuel-receiving terminals
and marinas are not offshore facilities for the purpose of the
financial responsibility requirements in OPA.
Title IV--Technical Amendments
Title IV clarifies that OPA applies to the Trust Territory
of the Pacific Islands and corrects other minor non-substantive
errors inadvertently contained in OPA as passed.
Section-by-Section Analysis
title i--enhancing spill prevention
Section 101. Interim oil spill prevention measures for single-hull
vessels
The Coast Guard is almost five years behind OPA's deadline
for issuing final interim single-hull vessel spill prevention
rules. This delay has undermined the purposes of subsection
4115(b) of OPA, which are to enhance safe operation of single-
hull vessels and to better protect the marine environment
pending their replacement with double-hull vessels as required
by OPA.
Section 101 will ensure that such purposes are met by
providing for the expeditious adoption of a series of rules to
reduce the risk of an oil spill by single-hull tank vessels
until such vessels are phased out under OPA. The section will
ensure that certain of these rules, which OPA required to be
issued by August 1991, are in effect by mid-July 1996 and the
full complement no later than the end of the year.
The bill accomplishes this result by amending subsection
4115(b) of OPA to provide that, if the Secretary fails to issue
final rules for single-hull vessels over 5,000 gross tons by
certain dates, previously published proposed rules will go into
effect automatically and apply until issuance of new final
interim rules. In particular, if the Secretary does not issue
and have in effect operational measures for single-hull vessels
by July 18, 1996, a proposed rule for such measures published
in 1995 will go into effect. Similarly, if the Secretary fails
to promulgate a final structural rule for such single-hull
vessels by December 18, 1996, the section provides that the
proposed 1993 structural rule would go into effect.
A concern raised with respect to the proposed 1993
structural rule is that certain of its requirements actually
might increase oil outflow in the event of a spill. Section 101
therefore gives the Secretary the flexibility to forestall the
effectiveness of any of the provisions of the 1993 proposed
rule upon a finding that the provision would likely increase
the risks of oil pollution. Any such finding(s) must be
published in the Federal Register by the date the proposed rule
otherwise would be triggered into effect.
Section 101 also requires the Secretary to include certain
measures in the final interim single-hull vessel spill
prevention rules. First, single-hull vessels must have at least
one of the following: (1) a crew member and operable anchor on
board; (2) an emergency barge retrieval system on board; or (3)
comparable structural or operational measures to protect
against grounding. Second, the Coast Guard is directed to
establish an under-keel clearance with which single-hull
vessels must comply for each local port or place of destination
or the inland or coastal waterway through which the vessels
pass. To ensure timely issuance of the rules, the provision
gives the Coast Guard the discretion to include these
requirements in the final structural rule to be issued in
December 1996 if necessary.
Finally, Section 101 clarifies the standards under which
the Coast Guard is to issue interim rules for single-hull
vessels. This section clarifies that OPA requires adoption of
not only those measures determined to be the most cost-
effective, but of any that meet the relevant statutory
criteria. Moreover, the Coast Guard is to give due
consideration to human safety and measures that prevent
collisions and groundings in addition to those which reduce oil
outflow after a spill has commenced.
Section 102. Incentives for shippers to convert single-hull vessels to
double-hull cessels
OPA contains limits on liability for dischargers of oil
that vary depending upon the kind and size of the entity
responsible for the spill. For example, the cap for a tank
vessel of 3,000 gross tons or more is the greater of $10
million or $1,200 per gross ton. These limits do not apply if
the discharge was was the result of either: (1) gross
negligence or willful misconduct; or (2) violation of an
applicable Federal safety, construction, or operating
regulation.
Section 102 amends subsection 1004(c) of OPA as it applies
to the liability of double-hull vessel operators. It does so by
specifically limiting the circumstances under which OPA's
liability cap can be exceeded. Under this bill, violation of a
regulation will no longer be a basis for exceeding the
statutory liability limits for any vessel that is equipped with
a double hull at the time of enactment of this Act or that
converts to a double hull at least five years before the
conversion deadline in OPA.
Even as amended by this section, however, oil shippers that
operate double-hull vessels will still be Federally liable
under OPA for damages in excess of the statutory liability cap
if their spill was caused by gross negligence or willful
misconduct.
Double hulls play a key role in spill prevention. While
requiring shippers to convert immediately to double hulls would
decrease the risks of oil spills by tank vessels, it also would
place an enormous financial burden on the oil transportation
industry. This section avoids such a result by providing
shippers with an inducement, rather than simply accelerating
OPA's double-hull mandate.
Section 103. Prevention of oil spills by improvement of safety of
towing vessels
Section 103 requires the Secretary to issue a final safety
rule for towing vessels by September 30, 1996. If no final rule
is issued by the deadline, the proposed rule the Coast Guard
issued in 1995 will go into effect automatically unless and
until a final rule is published. The final rule must require
towing vessels to have on board: (1) a fire-suppression system
or other fire protection equipment; and (2) an electronic
position fixing device. The final rule also is to include a
requirement ensuring that operators conduct tests and
inspections of a vessel's navigation and operational equipment
at regular intervals with the results to be entered into a log
or similar record.
Section 104. Other oil prevention enhancement measures
Section 104 includes a series of prevention-related
measures to address specific concerns raised after the North
Cape spill. This section requires the Secretary, in cooperation
with the Marine Board of the National Research Council, to
study how the designation of waters and shipping lanes through
which vessels transport oil affect the risks of an oil spill.
Section 104 directs the U.S. Army Corps of Engineers
(Corps) to review a forthcoming report of the Rhode Island
Governor's task force on the dredging of the State's waterways.
It further directs the Corps to submit to Congress within 120
days of this review recommendations regarding the feasibility
and environmental effects of dredging.
Section 104 also provides a standard for regulations on
lightering operations that are required under title 46 of the
U.S. Code, as amended by subsection 4115(d) of OPA. Lightering
involves the transfer of oil from one vessel to another.
Current law requires that lightering regulations be issued
that address various factors, including prevention and response
to oil spills, but does not expressly provide a standard such
rules are to meet. The standard prescribed in Section 104 for
such rules is the same one OPA established for the interim
single-hull vessel spill prevention rules, which is to provide
as substantial protection to the environment as is economically
and technologically feasible. Use of this standard for
lightering rules is appropriate not only because it has a
precedent in OPA, but because lightering operations are
expected to continue to increase, especially as more and more
single-hull vessels are precluded from operating in U.S. waters
over the next 20 years. The regulations also should clarify
that the Captain of the local port has authority to oversee
lightering activities, in particular as they may affect
sensitive ecological resources.
title ii--improving response to oil spills
Section 201. Access to timely short-term financial assistance for
persons injured by oil spills
Section 201 helps to ensure that immediate financial
assistance is available and will be provided for those whose
livelihoods are affected by an oil spill. In the context of the
North Cape spill, some impacted fishermen and lobstermen were
reluctant to pursue partial claims for fear of waiving their
right to full compensation. This reluctance led to significant
hardship in certain situations because many of these self-
employed claimants did not qualify for unemployment benefits.
Section 201 clarifies that subparagraph 1002(b)(2)(E) of
OPA entitles a claimant injured by an oil spill to receive
interim, partial damages without prejudicing the right to
pursue a claim for other damages in the future. Subsection
1014(b) of OPA also is amended to require that a responsible
party's advertisement setting forth claims procedures inform
injured parties that they may present claims for interim,
partial damages. The responsible party still may establish
reasonable parameters within which claims for partial, interim
damages may be presented to avoid undue transactions costs,
consistent with avoiding financial hardship to injured parties.
Section 201 also clarifies that a claimant under OPA may
present an unpaid claim for interim, partial damages to the
Fund. Finally, this section amends subsection 1015(a) of OPA to
make clear that subrogation applies only with respect to the
portion of a claim reflected in a payment of interim, partial
damages.
Section 202. Advance procedures for the closing and reopening of
fishing grounds
Section 202 requires that the Under Secretary of Commerce
for Oceans and Atmosphere, in consultation with the
Administrator of the Environmental Protection Agency, the
Commissioner of the Food and Drug Administration, the Director
of the U.S. Fish and Wildlife Service and other affected state
and Federal agencies, issue regulatory guidance, including
model protocols and standards, for the closing and re-opening
of fishing grounds. This section further requires that area
contingency plans include area-specific protocols and
standards.
Section 203. Access to oil spill liability trust fund for natural
resource damages
Section 203 amends section 6002 of OPA to ensure that
natural resource damage trustees have direct access to the Fund
for the costs of the complete scope of their activities in
assessing natural resource damages arising from an oil spill.
An October 1995 Comptroller General opinion interpreted OPA
as precluding reimbursement from the Fund for costs associated
with regular natural resource damage assessment activities as
well as the development and implementation of restoration
plans. The opinion determined that such costs are reimbursable
only if provided for by congressional appropriation. The result
of the opinion is that natural resource damage trustees have
not had direct access to the Fund for their assessment work or
for developing or implementing restoration plans without
separate congressional appropriation.
The purpose of Section 203 is to overrule the Comptroller
General's opinion to allow trustees to have direct access to
the Fund for reimbursement of costs arising from natural
resource damage assessment. To ensure that such payments do not
undermine oil spill response, the section also raises the
amount that may be disbursed from the Fund without separate
congressional appropriation from $50 million to $60 million.
The committee will continue to examine the level of this
increase to ensure that it reflects the approximate amount of
what trustees need to carry out natural resource damage
assessments.
Section 204. Access to necessary information, expertise, and funding to
mitigate near-term ecological injury resulting from oil spill
Section 204 amends subsection 1012(a) of OPA to ensure
access to the Fund for costs to mitigate or avoid ecological
injury immediately following an oil spill. Such costs include
those arising from management activities designed to ameliorate
environmental effects of oil already spilled or spread in
addition to those designed to protect resources from being
subjected to oil in the first instance. Whether costs meet the
standard of this section is within the discretion of the
Federal On-Scene Coordinator. Allowing the Fund to be used to
mitigate ecological damage during the critical time period
immediately following a spill will minimize the long-term
injury to the environment and correspondingly reduce natural
resource damages.
Section 204 also provides access to the Fund for up to half
of the costs of plugging an idle oil well under a cost-sharing
agreement with the State. It is estimated that the nation has
approximately 215,000 idle oil wells on non-Federal lands, some
of which pose substantial safety or environmental risks. This
section will allow these wells to be plugged to alleviate such
risks so long as the State in which the well is located
contributes at least 50 percent of the necessary costs.
Section 204 requires that area contingency plans include a
list of local scientists with expertise in the environmental
effects of oil spills. In addition, it amends subsection
4202(b) of OPA to require the Under Secretary of Commerce for
Oceans and Atmosphere to establish a national scientific
support team to assist oil spill response teams. Finally, this
section amends section 7001 of OPA to establish a national
clearinghouse of information on the environmental effects of
oil spills and on how best to mitigate the effects of various
kinds of spills.
Section 205. Compliance with response plans
Section 205 requires compliance with response plans unless
the President or the Federal On-Scene Coordinator determines
that deviation from the plans would result in a faster
response, a more effective response, or a response that would
better mitigate environmental effects than would strict
adherence to the plans.
title iii--tailoring of offshore facility financial responsibility
requirements to oil spill risks
Section 301. Tailoring of offshore facility financial responsibility
requirements to oil spill risks
OPA requires offshore oil-related facilities to demonstrate
evidence of access to resources sufficient to cover the likely
costs of clean-up and damages arising from an oil spill. This
requirement is satisfied by a facility's obtaining a
Certificate of Financial Responsibility under OPA. In this way,
OPA ensures that the discharger of oil--not United States
taxpayers --bears the primary financial burden resulting from a
spill.
Section 301 makes the financial responsibility requirements
for offshore facilities consistent with the original intent of
Congress. It will ensure that undue and unintended economic
burdens are avoided but will retain OPA's important
environmental purposes.
In particular, Section 301 of the reported bill modifies
the financial responsibility requirements of OPA in three ways.
First, it corrects an overly broad interpretation of OPA by
the Department of the Interior. That interpretation would apply
the financial responsibility requirements for offshore
facilities to traditional onshore facilities such as land-based
oil terminals and marinas. Such facilities never were intended
to be subject to OPA's offshore financial responsibility
requirements, even if they have certain appurtenances that
extend onto submerged land. This title makes clear OPA's
original intent.
Second, Section 301 exempts from financial responsibility
requirements small offshore operators who, even under a worst-
case scenario, lack the capacity to cause a major oil spill.
This de minimis exemption removes the potential for imposing an
unjustifiably heavy financial burden on small businesses that
pose only minimal environmental risk. The section does not
affect the liability of a facility that discharges oil. The
President also retains the discretion to require a small
offshore facility to demonstrate evidence of financial
responsibility if the risk justifies doing so.
Third, Section 301 allows an offshore facility's financial
responsibility requirements to be tailored to the actual oil
spill risks posed by the facility. OPA currently directs the
promulgation of regulations that would require all offshore
facilities to meet financial responsibility requirements at a
$150 million level. Section 301 instead applies the current $35
million requirement in the Outer Continental Shelf Lands Act
for facilities in Federal waters but give the President
discretion to increase the requirement on the basis of risk. A
similar approach is taken with respect to offshore facilities
in State waters, except that the minimum financial
responsibility requirement is $10 million in light of the fact
that many coastal States impose their own such requirements.
In sum, Title III removes the potential for unnecessary and
inefficient economic burdens yet preserves OPA's fundamental
purpose of ensuring that oil-spill polluters pay for the
effects of their pollution. It also retains OPA's important
safeguards and deterrents against oil pollution in the first
instance.
title iv--technical amendments
Section 401. Miscellaneous technical amendments
Section 401 amends the scope of OPA to include the Trust
Territory of the Pacific Islands and corrects other minor non-
substantive errors inadvertently contained in OPA as passed.
Hearings
The Committee on Environment and Public Works held two
oversight hearings on the effectiveness of Federal oil
pollution legislation. In addition to the oversight hearings,
the committee held a legislative hearing on S. 1730.
The first hearing was held on February 14, 1996 in
Narragansett, RI, near the site of the North Cape spill. The
purpose of the field hearing was to use the experience of the
North Cape spill to assess the adequacy of Federal oil
pollution laws to prevent and respond to spills. Testimony was
given by: Governor Lincoln Almond of Rhode Island; Vice Admiral
Arthur E. Henn, Vice Commandant, U.S. Coast Guard; John
Bullard, Director of Intergovernmental Affairs and Sustainable
Development, Department of Commerce/NOAA; Dr. Phillip A.
Singerman, Assistant Secretary of Commerce for Economic
Development; Captain P. (``Barney'') Turlo, Federal On-Scene
Coordinator, North Cape spill, East Providence, RI; Charles
Hebert, National Wildlife Refuge Manager, U.S. Fish and
Wildlife Service, Charlestown, RI; Douglas A. Eklof, Vice
President, Eklof Marine, Staten Island, NY; Anne Considine,
Director of Marketing and Tourism, South County Council on
Tourism, Wakefield, RI; Jim O'Malley, Executive Director, East
Coast Fisheries Foundation, Narragansett, RI; Brian Turnbaugh,
Inshore fisherman, Wakefield, RI; Robert Smith, President,
Rhode Island Lobstermen's Association, Charlestown, RI; Curt
Spalding, Executive Director, Save the Bay, Providence, RI;
Dennis Nixon, Professor, Department of Marine Affairs,
University of Rhode Island, Kingston, RI.
The second hearing was held on March 27, 1996 in
Washington, D.C. The purpose of the hearing was to consider
possible Federal legislative reforms to improve prevention of,
and response to, oil spills in light of the North Cape spill.
Testimony was given by: Rear Admiral James C. Card, Chief of
Marine Safety for the U.S. Coast Guard; Daniel Sheehan,
Director of the National Pollution Funds Center; Douglas K.
Hall, Assistant Secretary of Commerce for Oceans and
Atmosphere; Timothy R.E. Keeney, Director, Rhode Island
Department of Environmental Management, Providence, R.I.;
Thomas A. Allegretti, President, American Waterways Operators,
Arlington, VA; George Blake, Executive Vice President, Maritime
Overseas Corporation, New York, NY; Sally Ann Lentz, Co-
Director and General Counsel, Ocean Advocates, Columbia, MD;
Barry Hartman, Counsel, Rhode Island Lobstermen's Association;
Richard Hobbie, President, Water Quality Insurance Syndicate;
Mark Miller, President, National Response Corporation,
Calverton, NY; and Bill Gordon, Professor of Marine Affairs,
University of Rhode Island, Kingston, RI.
The third hearing was held on June 4, 1996, to consider S.
1730, the Oil Spill Response and Improvement Act. Testimony was
given by: Rear Admiral James C. Card, Chief of Marine Safety
for the U.S. Coast Guard; Douglas K. Hall, Assistant Secretary
of Commerce for Oceans and Atmosphere; Sidney Holbrook,
Commissioner, Connecticut Department of Environmental
Protection, Hartford, CT; John Torgan, Narragansett Baykeeper
for Save the Bay, Providence, RI; Richard Hobbie, President,
Water Quality Insurance Syndicate; Thomas A. Allegretti,
President, American Waterways Operators, Arlington, VA; Richard
DuMoulin, Chairman and CEO, Marine Transport Lines, for
Intertanko, Secaucus, NJ; George Savastano, Director of Public
Works, Ocean City, NJ; and Douglas C. Wolcott, Chair, Committee
on OPA Implementation Review for the Marine Board of the
National Research Council.
Regulatory Impact
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee makes the following
evaluation of the regulatory impact of the reported bill.
Using the extant Oil Pollution Act of 1990 (OPA) as a
baseline, which S. 1730 amends, the marginal regulatory impact
of the reported bill is expected to be minimal.
First, one of the most important provisions of the reported
bill is completely incentive-based and non-regulatory in
nature. This provision is Section 102, which narrows the
conditions under which an oil shipper who converts to a double-
hull vessel well in advance of the statutory deadline will face
liability above the statutory cap. As such, the provision is
voluntary in nature and imposes no new regulatory requirements.
The Coast Guard already has issued a rule establishing
standards for double hulls under OPA.
Second, the balance of the regulatory provisions in the
reported bill are structured to fit within the existing
statutory and regulatory framework established in OPA. They do
so by: (A) providing for the application of safety and
environmental regulatory measures to satisfy long-overdue
rulemaking requirements; (B) setting forth measures the Coast
Guard is to include in its issuance of final rules to the
greatest extent practicable consistent with relevant statutory
criteria; (C) clarifying standards originally prescribed in
OPA; (D) making minor substantive changes in implementation of
various provisions or operation of already existing regulatory
entities; or (E) making minor technical corrections to the
statute. A breakdown of the provisions by the foregoing
categories follows.
Encompassed within subcategory (A) are: (1) Subsection
101(a), which will ensure that final oil-spill prevention rules
for single-hull oil-carrying vessels, including both
operational and structural measures as appropriate, will be in
effect by the end of calendar year 1996; and (2) Subsection
103(a), which will ensure that a final rule on navigation
safety equipment for towing vessels will be in effect by the
end of fiscal year 1996.
Although these sections involve the issuance of new
regulatory requirements, their incremental regulatory impact
should be minimal. The Coast Guard already has issued each of
the various rules at issue in proposed form. In addition, with
respect to ensuring that final rules for single-hull tank
vessels are in effect by certain deadlines, OPA already
contains a requirement mandating their issuance. Therefore, S.
1730 adds no new regulatory burden with respect to such rules.
Encompassed within subcategory (B) are: (1) the first
portion of subsection 101(b), which directs the Coast Guard to
include certain measures in its final rules on interim measures
to reduce oil spills from single-hull vessels; and (2)
subsection 103(b), which directs the Coast Guard to include
certain other measures in its final rule on navigation safety
equipment for towing vessels.
The regulatory impact of these subsections should be
relatively minimal for the following reasons. First, most of
the measures required to be included are already part of the
applicable proposed rules in one form or another. Second, the
measure not in the proposed single-hull rules is crafted
flexibly to allow compliance by one of several means, while the
measure not in the proposed towing-vessel rule relates to
equipment (fire-suppression system) that most towing vessels
reasonably can be expected to have already. Finally, the
measures are to be incorporated into already ongoing rulemaking
processes.
Encompassed within subcategory (C) are: (1) the second
portion of subsection 101(b), which clarifies the standard
under which the Coast Guard is to issue single-hull spill
prevention rules in accordance with subsection 4115(b) of OPA;
and (2) Section 201, which clarifies that persons injured by an
oil spill are entitled to interim, short-term damages under
OPA. These provisions simply clarify existing provisions in
OPA, and thus, their regulatory impact is expected to be
negligible.
Encompassed within subcategory (D) are (1) subsection
104(c), which applies the standard for the single-hull spill
prevention rules to the rulemaking for lightering operations
already required of the Coast Guard; (2) Section 203, which
makes the Fund available for natural resource damage
assessments under OPA without the need for a separate
appropriation of Congress; (3) subsection 204(a), which expands
the purposes for which the Fund may be used to include costs
necessary to avoid imminent ecological injury and the plugging
of idle oil wells; (4) Section 205, which modifies the standard
under which deviation from response plans may occur; and (5)
Title III, which clarifies the financial responsibility
requirements for offshore facilities.
Each of these provisions reflects a change in operation of
instrumentalities already in existence under OPA. Thus, their
regulatory impact should be de minimis.
Encompassed in subcategory (E) is Section 401, which makes
minor technical corrections to OPA.
The bill will not have any effect on the personal privacy
of individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee makes the following
evaluation of the Federal mandates contained in the reported
bill.
S. 1730 imposes no Federal intergovernmental mandates on
State, local, or tribal governments. All of its governmental
directives are imposed on Federal agencies. The Coast Guard has
estimated that a very small percentage of costs associated with
the rules required to be issued under OPA, as amended by this
bill, may fall upon non-Federal governmental entities.
The bill does not directly impose any Federal Private
Sector mandates either, although some of its provisions may
ultimately result in duties or costs being imposed on the
private sector.
In particular, as described above in the Regulatory Impact
analysis, sections 101 or 102 could trigger into effect
proposed rules that would place enforceable duties on the
private sector. The Coast Guard has made estimates, summarized
below, of the economic impact of these proposed rules. Any
long-term effects of such a scenario are highly speculative
because the reported bill would make the proposed rules
effective only until the Coast Guard issues a final rule on the
requisite measures at hand.
With respect to the proposed operational rule for single-
hull vessels, the Coast Guard estimated that it would affect
approximately 1359 single-hull oil-carrying tank vessels that
were operating on U.S. navigable waters as of the date of the
rule's issuance (November 1995). It was estimated that first-
year compliance with the proposed rule would cost the affected
industry about $183.8 million in the aggregate, with annual
costs projected to trend dramatically downward after the first
year and eventually level off over time.
With respect to the proposed structural rule for single-
hull vessels, the Coast Guard estimated its annual cost in the
early years of application to peak at around $164 million. Per-
vessel cost was estimated to range from around $40,000 to
$380,000, a range which the Coast Guard found was within the
owner's capital investment in a majority of cases.
There are approximately 196 U.S. tankships and 86 U.S. tank
barges of over 5,000 gross tons that carry oil in bulk and,
thus, that would be affected by the proposed single-hull
interim rules. Of these, 16 tank vessels and 32 tank barges are
owned by small businesses. The Coast Guard has determined that
neither of the proposed rules would have a significant economic
impact on a substantial number of small entities.
With respect to the proposed navigation safety rule for
towing vessels, it would apply to towing vessels 8 meters
(26.25 feet) or more in length operating on navigable U.S.
waters subject to a few exceptions. The Coast Guard estimated
the maximum present-value costs the proposed rule would impose
on affected towing operators to be around $31.5 million in the
aggregate. The Coast Guard also determined that the proposed
towing-vessel rules would not result in a significant economic
impact on a substantial number of small entities.
S. 1730 also directs the Coast Guard to include certain
measures in the various ongoing rulemakings. The direct costs
of these measures on the private sector should not be
significant. First, many of the vessels that will be regulated
under such rules already satisfy such measures (for example,
the measure requiring towing vessels to have a fire-suppression
system). Second, the requisite measure that could impose the
greatest costs on the private sector, designed to prevent
groundings of tank barges, is crafted flexibly so that barge
operators may comply by one of several means. Finally, the bill
requires inclusion of particular measures only to the extent
they meet the statutory criteria of OPA. One such criterion, in
subsection 4115(b), is that such rules are to provide as
substantial protection to the environment as is economically
and technologically feasible. The feasibility ``sideboard''
will help to avoid excessive financial impacts on the regulated
industry.
Section 201, which clarifies that persons injured by an oil
spill are entitled to interim, short-term damages under OPA,
also could result in somewhat greater costs in the processing
of claims by a responsible party or its guarantor. The
incremental increase of such costs should be de minimis,
however, given that the section simply clarifies the intent of
OPA in this regard. This conclusion is supported by the
testimony of a principal guarantor that the current practice
generally is to allow injured parties to file claims for
partial, interim damages. Finally, the report makes clear that
reasonable parameters may be set within which claims for
partial, interim damages may be presented to avoid undue
transactions costs, consistent with avoiding financial hardship
to injured parties.
A word also is in order with respect to Section 301, which
modifies the financial responsibility requirements for offshore
facilities under OPA. Given that OPA already contains such a
requirement, section 301 contains no new mandate. The immediate
effect of this provision on the regulated industry will be to
lessen economic impacts because of the reduced amount of
financial responsibility required for most regulated
facilities.
Most of the costs discussed above will result from measures
that will help to prevent oil spills in the first instance or
reduce their impacts when they do occur. As such, the measures
obviously will better help to protect environmental resources.
But they also will result in long-term financial savings, both
to persons in areas that will be spared oil spills and to the
regulated industry as it will be able to avoid the sizable
liability that often results from a spill. Testimony received
by the committee demonstrated that an oil spill is especially
illustrative of the principle that a healthy environment is a
necessary prerequisite for a healthy economy. Fishermen,
lobstermen, those involved in the tourist industry, and scores
of others who rely on the marine environment experienced
substantial financial losses as a result of the North Cape
spill.
The other private-sector costs may arise from measures that
will ensure that parties and communities injured by a spill are
expeditiously and effectively compensated. As discussed above,
any such costs to the responsible party are expected to be
negligible and the benefits to injured parties in need of
financial assistance may well be significant.
Thus, the financial and environmental benefits of the
measures in S. 1730 far outweigh any costs they may impose.
The reported bill will have no discernable effect on the
competitive balance between the public and private sectors. The
public sector is not involved in the private-sector activities
addressed in the bill.
Rollcall Votes
On June 18, 1996 and on June 20, 1996, the committee met to
consider S. 1730, and on June 20, voted to report the bill, as
amended, by a rollcall vote of 17 in favor and 0 opposed, with
Senator Inhofe voting present. Voting in favor were Senators
Chafee, Warner, Smith, Faircloth, Kempthorne, Thomas,
McConnell, Bond, Bennett, Baucus, Moynihan, Lautenberg, Reid,
Graham, Lieberman, Boxer, and Wyden.
Cost of Legislation
Section 403 of the Congressional Budget and Impoundment Act
requires that a statement of the cost of a reported bill,
prepared by the Congressional Budget Office, be included in the
report. That statement follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 26, 1996.
Hon. John H. Chafee,
Chairman, Committee on Environment and Public Works, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1730, the Oil Spill
Prevention and Response Improvement Act.
Enactment of S. 1730 would affect direct spending.
Therefore, pay-as-you-go procedures would apply to the
legislation.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James Blum
(For June E. O'Neill).
------
congressional budget office cost estimate
1. Bill number: S. 1730.
2. Bill title: Oil Spill Prevention and Response
Improvement Act.
3. Bill status: As ordered reported by the Senate Committee
on Environment and Public Works on June 20, 1996.
4. Bill purpose: S. 1730 would amend the Oil Pollution Act
of 1990 (OPA) and other environmental statutes to:
Provide for interim rules and additional requirements
for single-hull oil tankers;
Clarify existing law regarding the ability of persons
harmed by oil spills to recover short-term as well as
long-term damages from those responsible for such
spills and from the Oil Spill Liability Trust Fund
(OSLTF);
Add new activities to the current list of authorized
uses of the OSLTF and make additional funds available
without appropriation for these and other uses; and
Require the U.S. Coast Guard, the National Oceanic
and Atmospheric Administration (NOAA), and other
Federal agencies to collect and disseminate information
on spills, their environmental impacts, and other
related issues, and to perform certain studies, prepare
reports, and carry out certain other activities.
5. Estimated cost to the Federal Government: CBO estimates
that enacting S. 1730 would increase Federal outlays from
direct spending authority by $40 million in fiscal year 1997
and $45 million a year thereafter. The effects of the bill are
summarized in the following table.
[By fiscal year, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1996 1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
DIRECT SPENDING
Spending Under Current Law:
Estimated Budget Authority................................... 50 50 50 50 50 50 50
Estimated Outlays............................................ 36 20 15 15 15 15 15
Proposed changes:
Estimated Budget Authority................................... ..... 10 10 10 10 10 10
Estimated Outlays............................................ ..... 40 45 45 45 45 45
Spending Under S. 1730:
Estimated Budget Authority................................... 50 60 60 60 60 60 60
Estimated Outlays............................................ 36 60 60 60 60 60 60
----------------------------------------------------------------------------------------------------------------
Enacting S. 1730 also could allow for slightly lower
appropriations because some of the increase in direct spending
might be used for damage assessments that would be ended with
appropriations under current law.
The costs of this bill fall within budget function 300.
6. Basis of estimate: Section 203 of S. 1730 would create
new budget authority and outlays by raising the annual cap on
spending from the OSLTF that is not subject to appropriation
and by expanding the types of activities for which these funds
may be used. Currently, OPA authorizes the President to make
available without appropriation up to $50 million from the
OSLTF for the costs of cleaning up oil spills and initiating
assessments of damages to natural resources. The $50 million in
budget authority and any associated outlays are recorded in a
separate account of the OSLTF known as the emergency fund. S.
1730 would raise the annual cap on amounts made available
without appropriation from the emergency fund to $60 million.
In addition, the bill would allow the $60 million to be used
for more types of activities than under current law, which
would increase the amount spent from the emergency fund from
its expected level of $15 million to $20 million a year (based
on current CBO projections).
Assessments of damage to natural resources.--Under current
law, only preliminary costs of initiating damage assessments
immediately following a spill can be paid from the emergency
fund. In any given year, such preassessment costs are a minor
part of spending from the OSLTF. The bulk of assessment costs
must be either financed by the party that caused an oil spill--
through negotiations with the trustee of the natural resources
(usually a Federal, State, or tribal agency)--or appropriated
from the general fund of the U.S. Treasury. In recent years,
such appropriations have ranged from $4 million (for 1996) to
$7 million (in 1994 and in 1995). While spending for damage
assessments varies each year depending on the number of spills
and the availability of private funding, it is likely that
freeing such spending from the appropriations process would
result in additional mandatory outlays from the OSLTF.
New uses of the OSLTF.--Under current law, the vast
majority of amounts spent each year from the emergency fund are
used for removal activities as defined by section 311 of the
Federal Water Pollution and Control Act. While such outlays
typically are far less than the authorized level of $50
million, they can vary widely from year to year, depending on
the number of spills and other factors. In recent years,
spending has been as low as $10 million (in 1993) and as high
as $82 million (in 1994). S. 1730 would add new activities to
the list of authorized uses of the OSLTF, two of which
apparently would be considered removal costs under the bill's
broader definitions and lower risk standards. As a result, more
of the amounts made available from the emergency fund would be
spent than is currently the case. The new removal costs that
would probably be eligible for emergency funds include: (1)
one-half of the cost of plugging idle oil wells under cost-
sharing agreements with the States in which they are located,
which is currently done only to prevent an imminent spill, and
(2) expenses associated with mitigating or avoiding ecological
injuries immediately after a spill (including the costs of
managing such activities), which are currently limited to
containment efforts.
In any given year, the mix of activities would be
determined by factors such as the number and severity of new
spills and the number of applications received from States for
well-capping projects. Other provisions. of S. 1730 would have
no significant impact on Federal spending.
For purposes of this estimate, CBO assumes that S. 1730
would be enacted by the beginning of fiscal year 1997.
Estimates of new direct spending are based on information
provided by the Office of Management and Budget and the Coast
Guard. In particular, we estimate that the bill would broaden
the authority for using the OSLTF emergency funds so that the
entire amount of $60 million would likely be spent each year.
7. Pay-as-you-go considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. CBO estimates that enacting
S. 1730 would increase direct spending; therefore, pay-as-you-
go procedures would apply to the bill. The increase in direct
spending is shown in the following table.
[By fiscal year in millions of dollars]
------------------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------------------
Changes in outlays........................... 0 40 45
Changes in receipts.......................... (\1\) (\1\) (\1\)
------------------------------------------------------------------------
\1\ Not applicable.
8. Estimated impact on State, local, and tribal
governments: CBO's estimate of the impact of S. 1730 on State,
local, and tribal governments will be provided separately.
9. Estimated impact on the private sector: CBO's estimate
of the impact of S. 1730 on the private sector will be provided
separately.
10. Previous CBO estimate: None.
11. Estimate prepared by: Deborah Reis.
12. Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.
ADDITIONAL VIEWS OF SENATOR INHOFE
I support the theory behind and the implementation of the
Oil Pollution Act of 1990. Not only is it important to have
spill prevention efforts in place, it is also imperative to
have workable, effective response guidelines in the unfortunate
event of a spill. As a member of the House Public Works and
Transportation Committee during OPA's inception, I attained a
strong understanding of its provisions and I support reasonable
measures that improve upon the prevention of, as well as the
timely response to, petroleum-related accidents.
S. 1730 was introduced as a result of the January 1996
barge oil spill off the southern coast of Rhode Island. It is
an honorable attempt to improve upon some of the perceived
difficulties with the current implementation of OPA '90 that
the North Cape spill shed light on. However, it is my belief
that two areas need further consideration: non-use values
assessment for natural resource damages as well as the
financial requirements for offshore facilities.
Natural resource damages
A final rule published in January 1996 by the National
Oceanic and Atmospheric Administration (``NOAA'') has been
challenged in the U.S. Court of Appeals by a broad section of
commercial and maritime interests. The rule threatens the
ability of responsible parties to pay for legitimate claims for
oil spill damage by inviting speculative, inflative claims as
assessed under what are called ``non-use'' values. The NOAA
rule on natural resource damage assessment (NRDA) allows
trustees to exercise unfettered discretion to select
scientifically suspect methodologies for calculating these
damages. By interjecting ``non-use'' values into the cleanup
assessment equation, we are feeding into an arbitrary process
that does not add to the cleanup of the site.
Financial responsibility for offshore facilities
Some of the provisions included in S. 1730 regarding
Certificated of Financial Responsibility for offshore
facilities improve upon the current implementation of OPA '90.
However, some areas need to be addressed further, and I would
like to make reference to a couple that need attention:
We need to review and establish firm geographic boundary
delineating those offshore facilities that must obtain oil
pollution insurance and apply only to facilities on the outer
continental shelf.
Direct action as required currently by OPA '90 may severely
limit the availability of oil pollution insurance for offshore
production facilities. We need to look at who should reasonably
be financially responsible in the event of a spill.
In addition to the lowering of the financial responsibility
requirement to $35 million, we need to require an assessment
based on clear and convincing evidence by the President or the
Secretary of the Interior of the risks posed by a particular
facility.
Conclusion
The Chairman of the Environment and Public Works Committee
has agreed to work on these issues as S. 1730 approaches the
floor and I look forward to working with Senator Chafee as we
move through the legislative process.
Senator James M. Inhofe.
ADDITIONAL VIEWS OF SENATOR LAUTENBERG
The Oil Spill Prevention and Improvement Act is a positive
step that will help prevent oil spills and improve our response
to spills when they occur.
It is important that we establish strong rules to ensure
that vessels are constructed and operated in a safe manner.
These rules should have been adopted a long time ago.
It is also important to create incentives for shippers to
shift their fleets to vessels with double-hulls, which
substantially reduce the risks of oil spills.
However, I am concerned about section 102 of the bill,
which would limit the liability of ship owners who convert
their ships to double hull vessels at least five years before
they are required to do so.
Under present law, ships over 5,000 gross tons can be held
liable for oil spill damages of up to $10 million. However,
this $10 million cap does not apply if a shipper violates
applicable safety, construction or operating requirements.
Shipowners and insurers have argued that this exception is very
broad, and effectively subjects shippers to unlimited liability
for oil spills based on a shipper's simple negligence.
As originally drafted for the hearings on oil spills, the
Oil Spill Prevention and Improvement Act did not modify this
liability scheme. However, section 102 of the committee-
reported bill would substantially limit the liability of
shippers who convert their ships to double hulls at least five
years earlier than required. Under this provision, the $10
million liability cap would be waived only in the case of gross
negligence or willful misconduct.
This provision has been criticized from two sides. Some
shippers argue that giving special preferences for only some
double hulled ships is unfair to those who purchased equally
safe identical vessels that were not conversions. These
shippers argue that all double hulled ships should benefit from
the bill's broader liability cap.
Others argue that the threat of unlimited liability creates
an important incentive for the safe handling of cargo, an
incentive that has worked in practice. Because of this threat,
many shippers have improved training of their crews, and have
adopted an aggressive, pro-safety attitude that is largely
responsible for a reduction in spills since 1990.
The value of strong liability laws in promoting safety was
highlighted in an article that appeared in the Washington Post
on June 23 of this year, a few days after markup of the
legislation. In that article, Gerhard Kurz, President of
Mobil's shipping subsidiary, emphasized the importance in
maintaining safe operations in light of the potentially huge
liability costs associated with a spill. As Mr. Kurz stated,
``With the liability exposure, an owner would be foolish to
send anything but his best ships here.''
Another major oil shipper cited in the article, Chevron,
also noted the importance of ensuring safe operations given the
unlimited liability of shippers under the state laws of Pacific
Coast states.
Clearly, liability exposure is not the only factor that
encourages safe operations. However, it is critically
important, and we need to be careful when making changes in
this area. As noted in the Washington Post article, the oil
shipping industry is increasingly dominated by independent
shippers, many with a questionable commitment to safety. The
article noted that Mobil rejects about 25 percent of the ships
that it considers for possible chartering, with some of them
``in pretty bad shape.''
Double hulls can prevent many accidents from leading to oil
spills, and I share the goals of the bill's sponsors to
encourage prompt conversion to double hulled ships. Mobil
estimates in 75 percent to 80 percent of groundings and
collisions, the most frequent causes of marine oils spills,
double hulls would prevent a spill. At the same time, many
accidents involving double hulled ships still can lead to major
oil spills, especially if crews do not respond expeditiously
and efficiently.
I therefore am hopeful that we can further explore the
merits of section 102 before this legislation reaches the
Senate floor. It is worth considering further whether we can
create additional incentives for conversion to double hulls in
a manner that does not create inequities between shippers, and
that does not weaken important safety incentives.
Senator Frank R. Lautenberg.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, existing law in which no change is proposed is shown in
roman:
Public Law 101-380, 101st Congress
AN ACT. To establish limitations on liability for damages resulting
from oil pollution, to establish a fund for the payment of compensation
for such damages, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Oil Pollution Act of 1990''.
* * * * * * *
SEC. 1001. DEFINITIONS.
For the purpose of this Act, the term--
(1) ``act of God'' means an unanticipated grave
natural disaster or other natural phenomenon of an
exceptional, inevitable, and irresistable character the
effects of which could not have been prevented or
avoided by the exercise of due care or foresight;
* * * * * * *
(36) ``United States'' and ``State'' mean the several
States of the United States, the District of Columbia,
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; and the Trust
Territory of the Pacific Islands,
* * * * * * *
SEC. 1002. ELEMENTS OF LIABILITY.
(a) In General.--* * *
* * * * * * *
(b) Covered Removal Costs and Damages.--
(1) Removal costs.--The removal costs referred to in
subsection (a) are--
(A) * * *
* * * * * * *
(E) Profits and earning capacity.--Damages
equal to the loss of profits or impairment of
earning capacity due to the injury,
destruction, or loss of real property, personal
property, or natural resources, which shall be
recoverable by any claimant[.], in part or in
full. Payment or settlement of a claim for
interim, short-term damages representing less
than the full amount of damages to which the
claimant ultimately may be entitled under this
subparagraph shall not preclude recovery by the
claimant for damages not reflected in the paid
or settled partial claim.
* * * * * * *
SEC. 1004. LIMITS ON LIABILITY.
(a) General Rule.-- * * *
* * * * * * *
(c) Exceptions.--
(1) Acts of responsible party.--[Subsection (a)]
Except as provided in paragraph (4), subsection (a)
does not apply if the incident was proximately caused
by--
(A) gross negligence or willful misconduct
of, or
(B) the violation of an applicable Federal
safety, construction, or operating regulation
by,
the responsible party, an agent or employee of the
responsible party, or a person acting pursuant to a
contractual relationship with the responsible party
(except where the sole contractual arrangement arises
in connection with carriage by a common carrier by
rail).
(2) Failure or refusal of responsible party.--
Subsection (a) does not apply if the responsible party
fails or refuses--
(A) to report the incident as required by law
and the responsible party knows or has reason
to know of the incident;
(B) to provide all reasonable cooperation and
assistance requested by a responsible official
in connection with removal activities; or
(C) without sufficient cause, to comply with
an order issued under subsection (c) or (e) of
section 311 of the Federal Water Pollution
Control Act (33 U.S.C. 1321), as amended by
this Act, or the Intervention on the High Seas
Act (33 U.S.C. 1471 et seq.).
(3) OCS facility or vessel.--Notwithstanding the
limitations established under subsection (a) and the
defenses of section 1003, all removal costs incurred by
the United States Government or any State or local
official or agency in connection with a discharge or
substantial threat of a discharge of oil from any Outer
Continental Shelf facility or a vessel carrying oil as
cargo from such a facility shall be borne by the owner
or operator of such facility or vessel.
(4) Double-hull vessels.--The exception in paragraph
(1)(B) shall not apply--
(A) to a tank vessel that, as of the date of
enactment of this paragraph, is equipped with a
double hull along the entire length of the
vessel, including fuel oil tanks; or
(B) to a vessel that is equipped with a
double hull along the entire length of the
vessel, including fuel oil tanks, and that is
replacing another tank vessel not equipped with
a double hull that is being retired at least 5
years prior to the applicable retirement date
under section 3703a(c) of title 46, United
States Code.
* * * * * * *
SEC. 1012. USES OF THE FUND.
(a) Uses Generally.--The Fund shall be available to the
President for--
(1) * * *
* * * * * * *
(5) the payment of Federal administrative,
operational, and personnel costs and expenses
reasonably necessary for and incidental to the
implementation, administration, and enforcement of this
Act (including, but not limited to, sections
1004(d)(2), 1006(e), 4107, 4110, 4111, 4112, 4117,
5006, 8103, and title VII) and subsections (b), (c),
(d), (j), and (l) of section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321), as amended by
this Act, with respect to prevention, removal, and
enforcement related to oil discharges, provided that--
(A) not more than $25,000,000 in each fiscal
year shall be available to the Secretary for
operating expenses incurred by the Coast Guard;
(B) not more than $30,000,000 each year
through the end of fiscal year 1992 shall be
available to establish the National Response
System under section 311(j) of the Federal
Water Pollution Control Act, as amended by this
Act, including the purchase and prepositioning
of oil spill removal equipment; and
(C) not more than $27,250,000 in each fiscal
year shall be available to carry out title VII
of this Act.
(6) the payment of costs to mitigate or avoid
ecological injury in the immediate aftermath of a spill
(including costs of management activities at a level
and of a type necessary for such a purpose, as
determined solely by the Federal On-Scene Coordinator);
and
(7) the plugging of idle oil wells that pose a
substantial safety or environmental risk under a cost-
sharing agreement with the State in which such a well
is located, under which agreement the State maintains
legal and operational responsibility for the plugging
and pays a minimum of 50 percent of the necessary
costs.
* * * * * * *
(e) Regulations.--The President shall--
(1) not later than 6 months after the date of the
enactment of this Act, publish proposed regulations
detailing the manner in which the authority to obligate
the Fund and to enter into agreements under [this
subsection] subsection (d) shall be exercised; and
* * * * * * *
SEC. 1013. CLAIMS PROCEDURE.
(a) Presentation.--* * *
* * * * * * *
(d) Uncompensated Damages.--If a claim is presented in
accordance with this section and full and adequate compensation
is unavailable, including a claim for interim, short-term
damages representing less than the full amount of damages to
which the claimant ultimately may be entitled, a claim for the
uncompensated damages and removal costs may be presented to the
Fund.
* * * * * * *
SEC. 1014. DESIGNATION OF SOURCE AND ADVERTISEMENT.
(a) Designation of Source and Notification.--* * *
(b) Advertisement by Responsible Party or Guarantor.--[If a
responsible party] (1) In General._If a responsible party or
guarantor fails to inform the President, within 5 days after
receiving notification of a designation under subsection (a),
of the party's or the guarantor's denial of the designation,
such party or guarantor shall advertise the designation and the
procedures by which claims may be presented, in accordance with
regulations promulgated by the President. Advertisement under
the preceding sentence shall begin no later than 15 days after
the date of the designation made under subsection (a). If
advertisement is not otherwise made in accordance with this
subsection, the President shall promptly and at the expense of
the responsible party or the guarantor involved, advertise the
designation and the procedures by which claims may be presented
to the responsible party or guarantor. Advertisement under this
subsection shall continue for a period of no less than 30 days.
(2) Claim for Interim Damages.--An advertisement under
paragraph (1) shall state that a claimant may present a claim
for interim, short-term damages representing less than the full
amount of damages to which the claimant ultimately may be
entitled and payment of such a claim shall not preclude
recovery for damages not reflected in the paid or settled
partial claim.
* * * * * * *
SEC. 1015. SUBROGATION.
(a) In General.--Any person, including the Fund, who pays
compensation pursuant to this Act to any claimant for removal
costs or damages shall be subrogated to all rights, claims, and
causes of action that the claimant has under any other law.
(b) Interim Damages.--
(1) In general.--If a responsible party, a guarantor,
or the Fund has made payment to a claimant for interim,
short-term damages representing less than the full
amount of damages to which the claimant ultimately may
be entitled, subrogation under subsection (a) shall
apply only with respect to the portion of the claim
reflected in the paid interim claim.
(2) Final damages.--Payment of such a claim shall not
foreclose claimant's right to recovery of all damages
to which a claimant otherwise is entitled under this
title or any other law.
[(b)] (c) Actions on Behalf of Fund.--At the request of the
Secretary, the Attorney General shall commerce an action on
behalf of the Fund to recover any compensation paid by the Fund
to any claimant pursuant to this Act, and all costs incurred by
the Fund by reason of the claim, including interest (including
prejudgment interest), administrative and adjudicative costs,
and attorney's fees. Such an action may be commenced against
any responsible party or (subject to section 1016) guarantor,
or against any other person who is liable, pursuant to any law,
to the compensated claimant or to the Fund, for the cost or
damages for which the compensation was paid. Such an action
shall be commenced against the responsible foreign government
or other responsible party to recover any removal costs or
damages paid from the Fund as the result of the discharge, or
substantial threat of discharge, of oil from a foreign offshore
unit.
SEC. 1016. FINANCIAL RESPONSIBILITY
(a) Requirement.-- * * *
* * * * * * *
(c) Offshore Facilities.--
[(1) In general.--Except as provided in paragraph
(2), each responsible party with respect to an offshore
facility shall establish and maintain evidence of
financial responsibility of $150,000,000 to meet the
amount of liability to which the responsible party
could be subjected under section 1004(a) in a case in
which the responsible party would be entitled to limit
liability under that section. In a case in which a
person is the responsible party for more than one
facility subject to this subsection, evidence of
financial responsibility need be established only to
meet the maximum liability applicable to the facility
having the greatest maximum liability.]
(1) In general.--
(A) Evidence of financial responsibility
required.--Except as provided in paragraph (2),
a responsible party with respect to an offshore
facility that--
(i)(I) is located seaward of the line
of ordinary low water along the portion
of the coast that is in direct contact
with the open sea and the line marking
the seaward limit of inland waters; or
(II) is located in inland waters,
such as coastal bays or estuaries,
seaward of the line of ordinary low
water along the portion of the coast
that is not in direct contact with the
open sea;
(ii) is used for exploring for,
drilling for, or producing oil, or for
transporting oil from facilities
engaged in oil exploration, drilling,
or production; and
(iii) has a worst-case oil spill
discharge potential of more than 1,000
barrels of oil (or a lesser amount if
the President determines that the risks
posed by the facility justify it),
shall establish and maintain evidence of
financial responsibility in the amount required
under subparagraph (B) or (C), as applicable.
(B) Amount required generally.--Except as
provided in subparagraph (C), the amount of
financial responsibility for an offshore
facility described in subparagraph (A) is--
(i) $35,000,000, in the case of an
off-shore facility located seaward of
the seaward boundary of a State; or
(ii)$10,000,000, in the case of an
off-shore facility located landward of
the seaward boundary of a State.
(C) Greater amount.--If the President
determines that an amount of financial
responsibility for a responsible party greater
than the amount required by subparagraphs (B)
and (D) is justified by the relative
operational, environmental, human health, and
other risks posed by the quantity or quality of
oil that is explored for, drilled for,
produced, stored, handled, transferred,
processed or transported by the responsible
party, the evidence of financial responsibility
required shall be for an amount determined by
the President not exceeding $150,000,000.
(D) Multiple facilities.--If a person is a
responsible party for more than 1 facility
subject to this subsection, evidence of
financial responsibility need be established
only to meet the amount applicable to the
facility having the greater financial
responsibility requirement under this
subsection.
(E) State jurisdiction.--The requirements of
this paragraph shall not apply if any offshore
facility located landward of the seaward
boundary of a State is required by the State to
establish and maintain evidence of financial
responsibility in a manner comparable to, and
in an amount equal to or greater than, the
requirements of this paragraph.
(F) Definition.--For the purpose of this
paragraph, the seaward boundary of a State
shall be determined in accordance with section
2(b) of the Submerged Lands Act (43 U.S.C.
1301(b)).
* * * * * * *
[(e)] (d) Methods of Financial Responsibility.--Financial
responsibility under this section may be established by any
one, or by any combination of the following methods which the
Secretary (in the case of a vessel) or the President (in the
case of a facility) determines to be acceptable: evidence of
insurance, surety bond, guarantee, letter of credit,
qualification as a self-insurer, or other evidence of financial
responsibility. Any bond filed shall be issued by a bonding
company authorized to do business in the United States. In
promulgating requirements under this section, the Secretary or
the President, as appropriate may specify policy or other
contractual terms, conditions, or defenses which are necessary,
or which are unacceptable, in establishing evidence of
financial responsibility to effectuate the purposes of this
Act.
[(f)] (e) Claims Against Guarantor.--Any claim for which
liability may be established under section 1002 maybe asserted
directly against any guarantor providing evidence of financial
responsibility for a responsible party liable under hat section
for removal costs and damages to which the claim pertains. In
defending against such a claim, the guarantor may invoke (1)
all rights and defenses which would be available to the
responsible party under this Act, (2) any defense authorized
under subsection (e), and (3) the defense that the incident was
caused by the willful misconduct of the responsible party. The
guarantor may not invoke any other defense that might be
available in proceedings brought by the responsible party
against the guarantor.
[(g)] (f) Limitation on Guarantor's Liability.--Nothing in
this Act shall impose liability with respect to an incident on
any guarantor for damages or removal costs which exceed, in the
aggregate, the amount of financial responsibility required
under this Act which that guarantor has provided for a
responsible party.
[(h)] (g) Continuation of Regulations.--Any regulation
relating to financial responsibility, which has been issued
pursuant to any provision of law repealed or superseded by this
Act, and which is in effect on the date immediately preceding
the effective date of this Act, is deemed and shall be
construed to be a regulation issued pursuant to this section.
Such a regulation shall remain in full force and effect unless
and until superseded by a new regulation issued under this
section.
[(i)] (h) Unified Certificate.--The Secretary may issue a
single unified certificate of financial responsibility for
purposes of this Act and any other law.
SEC. 4115. ESTABLISHMENT OF DOUBLE HULL REQUIREMENT FOR TANK VESSELS.
(a) Double Hull Requirement.--* * *
* * * * * * *
(b) Rulemaking.--[The Secretary]
(1) In general._The Secretary shall, within 12 months
after the date of the enactment of this Act, complete a
rulemaking proceeding and issue a final rule to require
that tank vessels over 5,000 gross tons affected by
section 3703a of title 46, United States Code, as added
by this section, comply until January 1, 2015, with
structural and operational requirements that the
Secretary determines will provide as substantial
protection to the environment as is economically and
technologically feasible.
(2) Operational elements.--If a final rule under this
subsection with respect to operational elements does
not become effective by the date that is 59 months
after the date specified in paragraph (1), the proposed
rule in the Supplemental Notice of Proposed Rulemaking
(60 Fed. Reg. 55,904 (1995)) shall be considered to be
in effect as a final rule as of that date and shall
remain in effect until a final rule becomes effective.
(3) Structural elements.--If a final rule under this
subsection with respect to structural elements does not
become effective by the date that is 64 months after
the date specified in paragraph (1), the proposed rule
in the Notice of Proposed Rulemaking (58 Fed. Reg.
54,870 (1993)) shall be considered to be in effect as a
final rule as of that date and shall remain in effect
until a final rule becomes effective, except provision
in the proposed rule with respect to which the
Secretary may issue a finding on the record that the
provision would be likely to increase the risks of oil
pollution.
(4) Provisions to be included.--
(A) In general.--In issuing rules under this
subsection, the secretary shall include the
following provisions to the greatest extent
practicable and consistent with relevant
statutory criteria:
(i) A requirement that a single hull
barge over 5,000 gross tons operating
in open ocean or coastal waters that is
affected by this section have at least
1 of the following:
(I) A crew member on board
and an operable anchor.
(II) An emergency system on
board the vessel towing the
barge to retrieve the barge if
the tow line ruptures.
(III) Adoption of any other
measure that provides
comparable protection against
grounding of the barge as that
provided by a measure described
in subclause (I) or (II).
(ii) For each port in which any tank
vessel not fitted with a double bottom
that covers the entire cargo tank
length operates, establishment of a
minimum under-keel clearance for the
vessel when entering the port or place
of destination, when departing port,
and when operating in an inland or
coastal waterway.
(B) Considerations.--In issuing rules under
this subsection, the Secretary shall--
(i) require the use of all measures
that the Secretary finds meet the
criteria of this section, not only
those determined to be the most cost-
effective or most cost-efficient;
(ii) take account of human safety,
including the safety of crew members on
affected tank vessels; and
(iii) consider measures that prevent
collision or grounding of a tank vessel
in addition to those that reduce oil
outflow after such a collision or
grounding has occurred.
(C) Inclusion in final rule.--If, in the
discretion of the Secretary, the Secretary
finds it necessary, the Secretary may include
the provisions of subparagraph (A) in
conjunction and simultaneously with the final
rule with respect to structural elements
referenced to paragraph (3).
SEC. 4202. NATIONAL PLANNING AND RESPONSE SYSTEM.
(a) In General.-- * * *
* * * * * * *
(b) Implementation.--
(1) Area committees and contingency plans.-- * * *
* * * * * * *
(4) Tank vessel and facility response plans;
transition provision; effective date of prohibition.--
(A) Not later than 24 months after the date of the
enactment of this Act, the President shall issue
regulations for tank vessel and facility response plans
under section 311(j)(5) of the Federal Water Pollution
Control Act, as amended by this Act.
(B) During the period beginning 30 months after the
date of the enactment of this paragraph and ending 36
months after that date of enactment, a tank vessel or
facility for which a response plan is required to be
prepared under section 311(j)(5) of the Federal Water
Pollution Control Act, as amended by this Act, may not
handle, store, or transport oil unless the owner or
operator thereof has submitted such a plan to the
President.
(C) Subparagraph (E) of section 311(j)(5) of the
Federal Water Pollution Control Act, as amended by this
Act, shall take effect 36 months after the date of the
enactment of this Act.
(5) Scientific support team.--
(A) Establishment.--Not later than 180 days
after the date of enactment of this paragraph,
the Under Secretary of Commerce for Oceans and
Atmosphere shall establish a process under
which a scientific support team shall be named,
all or part of which may be convened in
response to an oil spill covered by this Act.
(B) Purpose.--The purpose of the scientific
support team shall be to provide useful or
necessary scientific information and support to
the response team and to recommend any measures
that will serve to mitigate ecological injury
immediately following such a spill.
(C) Operations open to the public.--To the
extent it does not interfere with its
expeditious operation, the operations of a
scientific team shall be open to the public
* * * * * * *
SEC. 4303. FINANCIAL RESPONSIBILITY PENALTIES.
(a) Administrative.--Any person who, after notice and an
opportunity for a hearing, is found to have failed to comply
with the requirements of section 1016 or the regulations issued
under that section, or with a denial or detention order issued
under subsection [(c)(2)] (b)(2) of that section, shall be
liable to the United States for a civil penalty, not to exceed
$25,000 per day of violation.
* * * * * * *
SEC. 6002. ANNUAL APPROPRIATIONS.
(a) Required.--Except as provided in subsection (b),
amounts in the Fund shall be available only as provided in
annual appropriation Acts.
[(b) Exceptions.--Subsection(a) shall not apply to sections
1006(f), 1012(a)(4), or 5006(b), and shall not apply to an
amount not to exceed $50,000,000 in any fiscal year which the
President may make available from the Fund to carry out section
311(c) of the Federal Water Pollution Control Act, as amended
by this Act, and to initiate the assessment of natural
resources damages required under section 1006. Sums to which
this subsection applies shall remain available until expended.]
(b) Exceptions.--
(1) In General.--Subsection (a) shall not apply to--
(A) section 1006(f), 1012(a)(4), or 5006(b);
or
(B) an amount not exceeding $60,000,000 for
any fiscal year that the President may make
available from the Fund to--
(i) carry out section 311(c) of the
Federal Water Pollution Control Act (33
U.S.C. 1321(c)); and
(ii) conduct the assessment of
natural resource damages required under
section 1006;
(2) Availability.--Amounts to which this subsection
applies shall remain available until expended.
* * * * * * *
SEC. 7001. OIL POLLUTION RESEARCH AND DEVELOPMENT PROGRAM.
(a) Interagency Coordinating Committee on Oil Pollution
Research.--
(1) Establishment.--There is established an
Interagency Coordinating Committee on Oil Pollution
Research (hereinafter in this section referred to as
the ``Interagency Committee'').
(2) Purposes.--The Interagency Committee shall
coordinate a comprehensive program of oil pollution
research, technology development, and demonstration
among the Federal agencies, in cooperation and
coordination with industry, universities, research
institutions, State governments, and other nations, as
appropriate, and shall foster cost-effective research
mechanisms, including the joint funding of research.
(3) Membership.--The Interagency Committee shall
include representatives from the Department of Commerce
(including the National Oceanic and Atmospheric
Administration and the National Institute of Standards
and Technology), the Department of Energy, the
Department of the Interior (including the Minerals
Management Service and the United States Fish and
Wildlife Service), the Department of Transportation
(including the United States Coast Guard, the Maritime
Administration, and the Research and Special Projects
Administration), the Department of Defense (including
the Army Corps of Engineers and the Navy), the
Environmental Protection Agency, the National
Aeronautics and Space Administration, and the United
States Fire Administration in the Federal Emergency
Management Agency, as well as such other Federal
agencies as the President [may designate. A
representative] may designate. A representative of the
Department of Transportation shall serve as Chairman.
(4) Dissemination of Information.--The Interagency
Committee shall disseminate and compile information
regarding previous spills, including data from
universities, research institutions, State governments,
and other nations, as appropriate.
* * * * * * *
----------
UNITED STATES CODE
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
* * * * * * *
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
* * * * * * *
Sec. 1321. Oil and hazardous substance liability
(a) Definitions.--
* * * * * * *
(c) Federal Removal Authority.--
(1) General removal requirement.--
* * * * * * *
(3) Actions in accordance with national contingency
plan.--
(A) Each Federal agency, State, owner or
operator, or other person participating in
efforts under this subsection shall act in
accordance with the National Contingency Plan
or as directed by the President.
(B) An owner or operator participating in
efforts under this subsection shall act in
accordance with the National Contingency Plan
and the applicable response plan required under
subsection (j) of this section, [or as directed
by the President] unless the President or the
on-scene coordinator determines that deviation
from the plan would provide for a more
expeditious or effective response to the spill
or mitigation of its environmental effects.
* * * * * * *
(j) National Response System.--
(1) In general.--
* * * * * * *
(2) National response unit.--The Secretary of the
department in which the Coast Guard is operating shall
establish a National Response Unit at Elizabeth City,
North Carolina, The Secretary, acting through the
National Response Unit--
(A) shall compile and maintain a
comprehensive computer list of spill removal
resources, personnel, and equipment that is
available worldwide and within the areas
designated by the President pursuant to
paragraph (4), which shall be available to
Federal and State agencies and the public;
(B) shall provide technical assistance,
equipment, and other resources requested by a
Federal On-Scene Coordinator;
(C) shall coordinate use of private and
public personnel and equipment to remove a
worst case discharge, and to mitigate or
prevent a substantial threat of such a
discharge, from a vessel, offshore facility, or
onshore facility operating in or near an area
designated by the President pursuant to
paragraph (4);
(D) may provide technical assistance in the
preparation of Area Contingency Plans required
under paragraph (4);
(E) shall administer Coast Guard strike teams
established under the National Contingency
Plan;
(F) shall maintain and update a body of
information on the environmental effects of
various types of oil spills and how best to
mitigate those effects, which shall be kept in
a form that is readily transmittable to
response teams responding to a spill under this
Act;
(G) shall maintain on file all Area
Contingency Plans approved by the President
under this subsection; and
(H) shall review each of those plans that
affects its responsibilities under this
subsection.
* * * * * * *
(4) Area committees and area contingency plans.--
(A) * * *
* * * * * * *
(B) Each Area Committee, under the direction
of the Federal On-Scene Coordinator for its
area, shall--
(i) prepare for its area the Area
Contingency Plan required under
subparagraph (C);
(ii) work with State and local
officials to enhance the contingency
planning of those officials and to
assure preplanning of joint response
efforts, including appropriate
procedures for mechanical recovery,
dispersal, shoreline cleanup,
protection of sensitive environmental
areas, and protection, rescue, and
rehabilitation of fisheries and
wildlife, including advance planning
with respect to the closing and
reopening of fishing grounds following
an oil spill; and
(iii) work with State and local
officials to expedite decisions for the
use of dispersants and other mitigating
substances and devices.
* * * * * * *
(C) Each Area Committee shall prepare and
submit to the President for approval an Area
Contingency Plan for its area. The Area
Contingency Plan shall--
(i) when implemented in conjunction
with the National Contingency Plan, be
adequate to remove a worst case
discharge, and to mitigate or prevent a
substantial threat of such a discharge,
from a vessel, offshore facility, or
onshore facility operating in or near
the area;
(ii) describe the area covered by the
plan, including the areas of special
economic or environmental importance
that might be damaged by a discharge;
(iii) describe in detail the
responsibilities of an owner or
operator and of Federal, State, and
local agencies in removing a discharge,
and in mitigating or preventing a
substantial threat of a discharge;
(iv) list the equipment (including
firefighting equipment), dispersants or
other mitigating substances and
devices, and personnel available to an
owner or operator and Federal, State,
and local agencies, to ensure an
effective and immediate removal of a
discharge, and to ensure mitigation or
prevention of a substantial threat of a
discharge;
(v) describe the procedures to be
followed for obtaining an expedited
decision regarding the use of
dispersants;
(vi) describe in detail how the plan
is integrated into other Area
Contingency Plans and vessel, offshore
facility, and onshore facility response
plans approved under this subsection,
and into operating procedures of the
National Response Unit;
(vii) develop a framework for
advanced planning and decisionmaking
with respect to the closing and
reopening of fishing grounds following
an oil spill, including protocols and
standards for the closing and reopening
of fishing areas;
(viii) compile a list of local
scientists, both inside and outside
Federal Government service, with
expertise in the environmental effects
of spills of the types of oil typically
transported in the area, who may be
contacted to provide information or
where appropriate, participate in
meetings of the scientific support term
convened in response to a spill;
[(vii)] (ix) include any other
information the President requires; and
[(viii)] (x) be updated periodically
by the Area Committee.
(D) The President shall--
(i) review and approve Area
Contingency Plans under this paragraph;
[and]
(ii) periodically review Area
Contingency Plans so approved[.]; and
(iii) acting through the Under
Secretary of Commerce for Oceans and
Atmosphere and in consultation with the
Administration, the Commissioner of
Food and Drugs, the Director of the
United States Fish and Wildlife
Service, and other affected Federal and
State agencies, issue guidance for Area
Committees to use in developing for
Area Committees to use in developing a
framework for advanced planning and
decisionmaking with respect to the
closing and reopening of fishing
grounds following an oil spill, which
guidance shall include model protocols
and standards for the closing and
reopening of fishing areas.
* * * * * * *
----------
UNITED STATES CODE
TITLE 46--SHIPPING
* * * * * * *
CHAPTER 37--CARRIAGE OF LIQUID BULK DANGEROUS CARGOES
* * * * * * *
Sec. 3715. Lightering
(a) * * *
* * * * * * *
(b) The Secretary shall prescribe regulations to carry out
subsection (a) [of this section] that include requirements that
the Secretary determines will provide protection to the
environment that is as substantial as is economical and
technologically feasible. The regulations shall include
provisions on--
(1) minimum safe operating conditions, including sea
state, wave height, weather, proximity to channels or
shipping lanes, and other similarly factors;
(2) the prevention of spills;
(3) equipment for responding to spill;
(4) the prevention of any unreasonable interference
with navigation or to other reasonable uses of the high
seas, as those uses are defined by treaty, convention,
or customary international law;
(5) the establishment of lightering zones; and
(6) requirements for communication and prearrival
messages.