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77–422 PDF 2012

S. HRG. 110–1187 

OIL SPILLS FROM NON-TANK VESSELS: 

THREATS, RISKS, AND VULNERABILITIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, 

FISHERIES, AND COAST GUARD 

OF THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

DECEMBER 18, 2007 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

DANIEL K. INOUYE, Hawaii, Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

TED STEVENS, Alaska, Vice Chairman 

JOHN MCCAIN, Arizona 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN THUNE, South Dakota 

MARGARET L. CUMMISKY, Democratic Staff Director and Chief Counsel 

LILA HARPER HELMS, Democratic Deputy Staff Director and Policy Director 

CHRISTINE D. KURTH, Republican Staff Director, and General Counsel 

PAUL NAGLE, Republican Chief Counsel 

SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, AND COAST 

GUARD 

MARIA CANTWELL, Washington, Chairman 

JOHN F. KERRY, Massachusetts 

BARBARA BOXER, California 

BILL NELSON, Florida 

FRANK R. LAUTENBERG, New Jersey 

THOMAS R. CARPER, Delaware 

AMY KLOBUCHAR, Minnesota 

OLYMPIA J. SNOWE, Maine, Ranking 

TRENT LOTT, Mississippi 

GORDON H. SMITH, Oregon 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

(III) 

C O N T E N T S 

Page 

Hearing held on December 18, 2007 ...................................................................... 1 

Statement of Senator Boxer .................................................................................... 7 

Prepared statement .......................................................................................... 8 

Statement of Senator Cantwell .............................................................................. 10 

Statement of Senator Inouye .................................................................................. 3 

Statement of Senator Kerry .................................................................................... 3 

Prepared statement .......................................................................................... 5 

Statement of Senator Lautenberg .......................................................................... 1 

Statement of Senator Snowe ................................................................................... 6 

Statement of Senator Stevens ................................................................................ 2 

WITNESSES

Allen, Admiral Thad W., Commandant, U.S. Coast Guard, Department of 

Homeland Security ............................................................................................... 12 

Prepared statement .......................................................................................... 14 

Cooper, Hon. Mike, Chairman, Washington State Oil Spill Advisory Council ... 64 

Prepared statement .......................................................................................... 65 

Deaver, William G., President and COO, Totem Ocean Trailer Express, Inc. ... 72 

Prepared statement .......................................................................................... 74 

Etkin, Ph.D., Dagmar Schmidt, President, Environmental Research Consulting ................................................................................................................... 61 

Prepared statement .......................................................................................... 63 

Fleming, Susan A., Director, Physical Infrastructure Issues, U.S. Government 

Accountability Office ............................................................................................ 25 

Prepared statement .......................................................................................... 26 

Glackin, Mary M., Deputy Under Secretary of Commerce for Oceans and 

Atmosphere, National Oceanic and Atmospheric Administration, U.S. Department of Commerce ........................................................................................ 18 

Prepared statement .......................................................................................... 20 

Letter, dated January 14, 2008 to Hon. Maria Cantwell from Admiral 

Thad W. Allen, Commandant, U.S. Coast Guard ....................................... 43 

Report, entitled 2006 Report of the Secretary of Commerce to the Congress 

of the United States Concerning U.S. Actions Taken on Foreign LargeScale High Seas Driftnet Fishing Pursuant to Section 206(e) of the 

Magnuson-Stevens Fishery Conservation and Management Act, As 

Amended by Public Law 104–297, The Sustainable Fisheries Act of 

1996 ................................................................................................................ 56 

APPENDIX

Letter, dated January 24, 2008 to Hon. Maria Cantwell from Ronald J. 

Forest, Senior Vice President Operations, Matson Navigation Company ....... 87 

Johnson, Jr., Ben, Chairman, Makah Tribal Council, prepared statement ........ 83 

Response to written questions submitted by Hon. Maria Cantwell to: 

Admiral Thad W. Allen .................................................................................... 88 

Hon. Mike Cooper ............................................................................................. 104 

William G. Deaver ............................................................................................ 108 

Dagmar Schmidt Etkin, Ph.D. ......................................................................... 98 

Susan A. Fleming ............................................................................................. 97 

Response to written questions submitted by Hon. John F. Kerry to: 

Admiral Thad W. Allen .................................................................................... 95 

(1) 

OIL SPILLS FROM NON-TANK VESSELS: 

THREATS, RISKS, AND VULNERABILITIES 

TUESDAY, DECEMBER 18, 2007 

U.S. SENATE, SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES, AND COAST GUARD, COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in room 

SR–253, Russell Senate Office Building, Hon. Frank R. Lautenberg, 

Chairman of the Subcommittee, presiding. 

OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, 

U.S. SENATOR FROM NEW JERSEY 

Senator LAUTENBERG. We’re going to open the hearing, and we 

are to be addressing this question: we’ve seen too much of the damage that’s created when we have spills and we’re today going to be 

examining a fuller extent of what takes place, including the damage, the costs to repair. We want to prevent it where we can. And 

when EXXON VALDEZ has spoken, most Americans have an immediate reaction. We remember seeing birds, fish, and other wildlife covered in black, messy oil; 11 million gallons pouring into the 

sea. I was up there within 3 days of the grounding of the EXXON 

VALDEZ, and disaster was obvious. And, of course, there were incredible financial costs involved, as well as the damage to the birds 

and marine life, that existed there. 

The EXXON VALDEZ spill cost nearly $4 billion to clean up. And believe it or not, Exxon Mobil, which took in $40 million in 

profits in the year 2006, is still fighting the punitive damage that 

was awarded in that case. After the spill, we passed the Oil Pollution Act of 1990, which was a landmark rule on spill prevention 

and response. As a Senator from a coastal state, and a state whose 

waterways carry lots of oil shipments, I was proud to play a significant role in crafting that bill. 

Unfortunately, more spills followed. In 2004, a single hulled oil 

tanker, the ATHOS I, spilled more than 260,000 gallons of heavy 

crude into the Delaware River, which flows along our New Jersey 

boundary. And so last year, with this Committee’s leadership, we 

updated our shipping laws. The legislation that I authored nearly 

tripled the amounts that polluters must pay for spills caused by 

single-hull tankers, and nearly doubled the liability for nontankers. 

It also required the creation of Federal Advisory Commission on 

Spill Prevention for the Delaware River Region, and it required a 

study by the Government Accountability Office—which has been reVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\77422.TXT JACKIE
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cently completed—on the actual cost of spills. And yet, oil spills are 

still a tremendous risk to our environment and our economy. Just 

last month, we witnessed the accident that occurred with the 

COSCO BUSAN, where they spilled 58,000 gallons of oil in the San 

Francisco Bay. 

After that incident, and important findings by the GAO, it is 

clear that our government’s attitude toward oil spill prevention or 

response has been one of complacency, and there is more work that 

has to be done. But first, we need to reinforce that polluters should 

pay for the disasters they create. Over the past 16 years, the Oil 

Spill Liability Trust Fund has subsidized polluters to a tune of $39 

million. And these payouts happen because the Coast Guard failed 

to update Federal liability limits on a regular basis to keep up with 

inflation. 

Now, making sure that polluters pay isn’t the only challenge we 

face. For example, the Delaware River Oil Spill Advisory Commission has never had a meeting. There is too little funding in the Oil 

Spill Liability Trust Fund to support the cleanup of a catastrophic 

spill. And the oil spill prevention research seems to have fallen by 

the wayside. So I want to work with my subcommittee leaders— 

the Chairman of the Subcommittee has arrived, Ms. Senator Cantwell—on legislation to correct these problems. And I also plan in 

my subcommittee, the surface and marine maritime subcommittee, 

to focus on better ship designs and operations to prevent oil spills 

in the first place. And we’ve got to get beyond this complacency 

when it comes to the health of our shores and our economy. 

Madam Chairman? Do you want to go from there? 

Senator CANTWELL [presiding]. Thank you, Senator Lautenberg. 

Thank you for opening up this hearing this afternoon. I would like 

to call on Senator Stevens, if he would like to make an opening 

statement. 

STATEMENT OF HON. TED STEVENS, 

U.S. SENATOR FROM ALASKA 

Senator STEVENS. I did. I think my colleague, the Chairman. Can 

I comment also, because we’re going to have to go get involved in 

the—spill very quickly. I think, Admiral, one of the most vivid 

memories I have is flying with your predecessor Admiral the day 

after spill, as we went over the Prince William Sound and saw oil 

spreading over that vast, beautiful place. We were both sickened at 

the time. Many people forget that tanker was aground, and only 

one-fourth of its tanks had spilled. It was subsequent action that 

lead up to all of the oil coming out before it was through, in that 

Sound. I think that’s probably the most devastating impact we’ve 

ever had from oil spills. 

The other one that was in 2004, the SELENDANG AYU went 

down in Alaska with 300,000 gallons of bunker fuel. The San Francisco Bay had 50,000 gallons this last year. I think Senator Lautenberg mentioned another one here on the East Coast. I’m really concerned about the adequacy of the prevention and response. I think 

the Coast Guard has done a great job for the Nation in reducing 

the impact of oil spills, but they’re stretched very thin now with the 

responsibilities you have on the homeland security. I think we need 

to make sure the Coast Guard has the resources it needs to conVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\GPO\DOCS\77422.TXT JACKIE
3 

duct the training and drills that remain so necessary to prevent 

and take care of oil spills. 

I did go down to Valdez this past summer, there at Mile 800, and 

witnessed their deployment of the equipment that’s there. I don’t 

think many people believe we have it, but we have four different 

sets of recovery material in the Prince Williams Sound now. The 

initiatives you have, a Vessel Tracking System that is used in the 

convoying of tankers, double-bottom tankers now, since that Oil 

Pollution Act of 1990, go in and out of the Prince William Sound, 

I hope to God they will prevent another spill in our areas. I do 

think we have to improve our tracking systems, not only of the 

tankers, but of all cargo ships that carry substantial amounts of 

fuel. I hope we can get the Committee working together with your 

agencies all through it to make sure the laws we have are adequate 

to give you the authority you need, but I’m worried about the funding. 

Since we’re in the era of earmarks, I bow to no one in terms of 

the earmarks we make, because they’re necessary to assure you 

have the resources you need to continue the activities that are so 

important to prevent these catastrophes in the future. Thank you 

very much, Madam Chairman. 

Senator CANTWELL. Thank you. Senator Inouye? 

STATEMENT OF HON. DANIEL K. INOUYE, 

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. Thank you very much, Madam Chairman. During the past decade, significant progress has been made toward reducing the number of oil spills from tank vessels. Much of that success is the direct result of passage and implementation of the Oil 

Pollution Act of 1990. However, as we all know, in recent years, 

vessel traffic has rapidly increased, with our country’s growing dependency on imports of fuel. With that increase in vessel traffic, it 

is evident that nontank vessel spills are an emerging concern 

today. Non-tank vessels can carry millions of gallons of oil as fuel, 

and the standards for nontank vessels need to be strengthened. 

I am aware that the Coast Guard is in the process of finalizing 

long-awaited rulemakings in this area, and I wish to encourage 

them to take the steps necessary to hasten the completion of these 

regulations. I look forward to hearing the testimony to better address these issues from a policy perspective. Thank you very much. 

Senator CANTWELL. Senator Kerry? 

STATEMENT OF HON. JOHN F. KERRY, 

U.S. SENATOR FROM MASSACHUSETTS 

Senator KERRY. Thank you, Madam Chairman. As Senator Lautenberg has mentioned, a lot of us on this Committee, and as Senator Stevens has mentioned in his own comments, we know from 

firsthand experience what happens when we have an oil spill, the 

dramatic environmental and economic impact. I know Senator 

Boxer knows, and obviously Senator Stevens, as was mentioned. 

While the number of oil spills has thankfully been decreasing 

over the past few decades, they still do occur with a frightening 

regularity. And while improvement obviously needs to be made— 

and we’ve discussed this in this Committee over the many years, 

4 

in fact, leading up to the double hull sort of effort—is really how 

do you prevent them from happening in the first place, and the 

concept of the double hull is a way to do that. 

We have certainly learned that when the cameras go away and 

the attention shifts, the local communities are left dealing with the 

impacts for a long, long period of time. On Sunday, the 27th of 

2003, the tank barge, BOUCHARD No. 120, ran aground and 

spilled an estimated 98,000 gallons of No. 6 fuel in Buzzards Bay. 

Buzzards Bay, you know, Admiral, but for those who don’t, is a 

small area surrounded by the coastline of Massachusetts and the 

islands before you break out into Nantucket and Vineyard Sound. 

This was the eighth reported grounding in Buzzards Bay in the 

past 4 years, and the fourth since the EXXON VALDEZ. And the 

community is still dealing with the aftereffects of this spill. The 

total cost to clean up estimated to be around $40 to $45 million. 

Buzzards Bay has been the site of several catastrophic oil spills, 

and near-miss groundings, because it is the access and entrance to 

the Cape Cod Canal. The largest spill occurred in 1969, when approximately 189,000 gallons of No. 2 fuel oil spilled when the barge 

FLORIDA ran aground off West Falmouth. And then, in 1990, two 

groundings occurred within 8 days of each other—the grounding of 

a passenger ship, BERMUDA STAR, off Cleveland Ledge, and the 

grounding of another BOUCHARD oil barge, No. 145. Two years 

later, the QUEEN ELIZABETH II grounded off Sow and Pigs Reef, 

way out near Cuttyhunk, near the entrance coming in as you head 

in toward the Canal. 

So these are just a few examples. Now, I think a lot of us have 

adopted the notion on this Committee that the states really do 

have a pretty good sense, if not the best knowledge, of what safety 

measures are needed to try to protect their waters. And so, in response to what happened in Buzzards Bay, Massachusetts enacted 

the Oil Spill Prevention Act of 2004. And the law required an escort tug for large vessels, and required a state pilot for many of the 

waters, to help steer the barge. And these are pretty commonsense 

moves. 

The tugs can help with an equipment failure or with human 

error, and they can prevent a spill from occurring. The cost of an 

escort tug and a local pilot, as required by the Massachusetts Oil 

Spill Prevention Act, is approximately $6,000 per tug transit 

through the Bay and Cape Cod Canal—miniscule compared to the 

profits carried in those vessels, and nothing compared to the costs 

inflicted on the community in the event of an oil spill. Nevertheless, Admiral, the Coast Guard challenged this law in court, and 

is still fighting against the requirement for a double-hulled vessel 

to meet these requirements. 

The double-hulled ships are relatively new. We’ve already seen 

massive oil spills from double-hulled vessels. In 2005, a doublehulled vessel operated by K-Sea. Transportation hit a submerged 

oil platform, and through a 36-foot gash spilled 3 million gallons 

of oil into the Gulf of Mexico. And since double-hulled vessels sit 

deeply in the water, creating a greater risk of rupture in shallow 

areas such as Buzzards Bay, we are concerned. 

1.6 billion gallons of fuel travel through Buzzards Bay each year. 

And local entities, we believe, have the specialized knowledge to 

5 

prevent those spills. So the Coast Guard has accepted other states’ 

assertion that local waterways require specialized knowledge, and 

hence require the type of actions Massachusetts has taken. And we 

believe, obviously, that Buzzards Bay is proof the area needs a preventative action. So it is my hope, Admiral, I certainly want to explore with you why the Coast Guard opposes this, and would like 

to see if we can’t move forward. Thank you, Madam Chairman. 

[The prepared statement of Senator Kerry follows:] 

PREPARED STATEMENT OF HON. JOHN F. KERRY, 

U.S. SENATOR FROM MASSACHUSETTS

Too many of us on this Committee know first hand from our own states the tragic 

and dramatic environmental and economic impact of oil spills right off of our shores. 

Senator Boxer knows, Senator Stevens knows—and after our experience in Buzzards Bay, I know what it means to a local community that can find itself still reeling from an oil spill almost 5 years later. 

Yes, the number of oil spills has thankfully been decreasing over the past two decades, they still occur with frightening regularity. 

While improvement should be made in preparedness and response, the best way 

to deal with oil spills is to prevent them from happening in the first place. 

One lesson we’ve all learned is that after the cameras go away and the attention 

shifts, it is the local communities that have to deal with the long term consequences 

of an oil spill. But what we don’t seem to have understood fully is that it is also 

the local community that is in the best position to prevent an oil spill. 

On Sunday April 27, 2003 the tank barge BOUCHARD No. 120 ran aground and 

spilled an estimated 98,000 of gallons of Number 6 fuel oil in Buzzards Bay. This 

was the eighth recorded grounding in Buzzards Bay in the past forty years and 

fourth since EXXON VALDEZ, and the community is still dealing with the after effects of this latest spill. The total cost of the cleanup is estimated at $40–45 million. 

Buzzards Bay has been the site of several catastrophic oil spills and many, many 

more near-miss groundings. The largest spill occurred on 1969 when approximately 

189,000 gallons of #2 fuel oil spilled when the barge FLORIDA ran aground off West 

Falmouth. In 1990, two groundings occurred within 8 days of each other—the 

grounding of the passenger ship BERMUDA STAR off Cleveland Ledge and the 

grounding of another BOUCHARD oil barge #145. Two years later, the QUEEN 

ELIZABETH II grounded off Sow and Pigs Reef near Cuttyhunk. These are just a 

few examples. 

The states know their waterways best and the local governments know what safety measures are needed. That is why, in response to what happened in Buzzards 

Bay, Massachusetts enacted the Oil Spill Prevention Act of 2004. This law required 

an escort tug for large vessels and required a state pilot that knows the waterway 

to help steer a barge—common sense measures. 

These tugs can help with an equipment failure or human error and prevent a spill 

from occurring. The cost of an escort tug and a local pilot as required by the Massachusetts Oil Spill Prevention Act of 2004 is approximately $6,000 per tug transit 

through the Bay and Cape Cod Canal—nothing compared to the profits that are carried in that ship, and nothing compared to the costs inflicted on a community in 

the event of an oil spill. However, the Coast Guard challenged this law in court and 

is still fighting against the requirement for double hulled vessels meet these requirements. 

Though double hulled ships are relatively new, we have already seen massive oil 

spills from double hulled vessels. In 2005, a double hulled vessel operated by K-Sea 

Transportation hit a submerged oil platform and through a 36-foot gash spilled 3 

million gallons of oil into the Gulf of Mexico. Double hulled vessels sit deeper in 

the water, creating a greater risk for a rupture in a shallow area such as Buzzards 

Bay. 

1.6 billion gallons of fuel travel through Buzzards Bay each year, and local entities have the specialized knowledge to help prevent future oil spills. While the Coast 

Guard has been helpful in dealing with the response to the oil spill, preempting the 

State law which will help prevent future oil spills is perplexing to me. The Coast 

Guard has accepted other State’s assertion that local waterways require specialized 

knowledge and hence require the type of actions Massachusetts has taken. The 

number and severity of oil spills in Buzzards Bay serve as proof that this area needs 

the preventative actions the State Law includes, and it is my hope that today we 

6 

will at last get some answers about why these basic steps still face so much resistance. 

Senator CANTWELL. Thank you, Senator. Senator Snowe? 

STATEMENT OF HON. OLYMPIA J. SNOWE, 

U.S. SENATOR FROM MAINE 

Senator SNOWE. Thank you, Madam Chair, for holding this hearing today on an issue that’s vital to the future of our ocean and 

coastal resources. Just over a month ago, many of us met here in 

the immediate aftermath of the disastrous COSCO BUSAN oil spill 

looking for answers of how and why it occurred. As those investigations continue, in our discussions today, we’ll look beyond that single incident and broaden the inquiry to determine what more can 

be done to reduce the likelihood of future spills and improve our 

ability to respond, contain, and mitigate the impact in incidents 

that do occur. 

Also, I would like to thank Senator Boxer. She chaired that hearing last month, along with Senator Feinstein, a meeting that was 

very important to provide a clearer picture of the response in the 

environmental disaster that occurred on November 7th in the San 

Francisco Bay. I understand that approximately one-third of the oil 

spilled in that accident has been recovered; a percentage well above 

the average for oil recovery. But questions remain about the causes 

of the incident, as well as the adequacy of the response plan, including the flow of communications with state and local officials 

and the management of non-Federal assets in the immediate aftermath. 

I am troubled by the reports, as many have indicated, not only 

that it was about eight hours before the Coast Guard learned of the 

magnitude of this spill, and then another 4 hours that lagged between the time the Coast Guard notified local officials about the 

magnitude of this spill, including the Mayor of San Francisco. I 

was pleased to hear you say, Admiral, that an independent investigation of the Coast Guard’s effort is underway. I look forward to 

the results to help determine appropriate changes to a better response strategy and the lessons learned. 

I represent a state recognized for more than 5,000 miles of majestic coastline, the longest on the Eastern Seaboard. And many 

rely on the beauty and the bounty of our oceans from tourism, to 

fisheries, to maritime transportation—for our livelihoods. The Port 

of Portland plays a very significant role hosting ferries and commercial fishing boats, cruise ships, oil tankers, and tank barges. 

Portland is the second-highest volume oil importer on the Eastern 

Seaboard, and we have seen firsthand the devastation of oil spills 

and what it can do to our environment, to our shores, and also to 

the livelihood for the many people who depend on the ocean. 

In 1996, the tanker JULIE ANNE discharged nearly 180,000 gallons of fuel into the Portland Harbor, incurring upwards of $43 million in damages. 

We have also seen high volumes of nontanker cargo ships. Portland is visited at least by one container ship per week, and numbers are expected to grow in the coming years. And we are currently experiencing a boom in the cruise ship traffic. Large cruise 

ships, like other massive vessels, such as the container and cargo 

7 

ships, carry hundreds of thousands of gallons of fuel oil. Last summer, cruise ships made a record number of visits to Maine, including 90 port calls at Mount Desert Island, home to the scenic areas 

of Bar Harbor and Acadia National Park. The natural beauty of 

this region, of course, is the main attraction for cruise ships. It is 

also enhanced by its remoteness, something that also increases the 

degree of difficulty for responders should a spill occur. 

During our discussion here following the COSCO BUSAN incident, it became clear that large oil spills from cargo ships are relatively rare. Furthermore, the recent decline in large spills is attributable in no small measure to the passage of the Oil Pollution 

Act back in 1990. In fact, according to your agency’s statistics, Admiral Allen, in the 10 years prior to the passage of that Act, there 

were over 180 oil spills greater than 50,000 gallons, or an average 

of 18 large spills per year. From 1990 through 2004, that number 

has declined by nearly 75 percent. A lot of the Nation’s efforts to 

reduce the incidence and impact of oil spills has focused on tanker 

vessels, resulting in improvements such as double hulls and Vessel 

Response Plans. It is time to shift some of that attention to nontanker vessels. 

Fully one-fifth of the oil that has spilled into our waters since 

1990 has come from nontanker vessels, and today’s cargo ships are 

capable of holding up to 4 million gallons of oil. It is critical that 

this Committee exercises oversight authority to minimize the risk 

of future calamities like the COSCO BUSAN. I look forward to 

speaking to the witnesses here today, in particular Admiral Allen. 

We have spoken on numerous occasions about the Coast Guard’s 

many missions, and I know this is one of your multi missions. We 

have to ensure that you have, obviously, the strategy, the policy, 

and the resources necessary to carry out these future endeavors. 

What we need is to adjust the current Federal policy to make 

sure that we are prepared to address any of these oil spills and catastrophes in the future. Thank you. 

Senator CANTWELL. Thank you. Senator Boxer? 

STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM CALIFORNIA 

Senator BOXER. Madam Chair, Senator Snowe, thank you so 

much for your extraordinary leadership on this. And as I look at 

everyone here, we all come from states that know the value of the 

ocean, the value of the bay, the environmental value, the economic 

value, and frankly, the culture that we have around the ocean. And 

I just want to say on behalf of Californians, who have over 840 

miles of coastline, that when the COSCO BUSAN struck on the 

Bay Bridge on November 7th, and it ripped the visible 100-footlong gash in the ship’s side, and it spewed 58,000 gallons of bunker 

fuel in the San Francisco Bay. When that happened, everyone mobilized. But because of a lot of confusion, a lot of facts not getting 

out to the people, we saw this. 

And I’d like to just show you two photographs here of the—some 

of the wildlife—2,200 birds and marine mammals were injured or 

killed. And now, we think that 20,000 birds may have perished in 

the oil spill. Show them the other one. And these are some of the 

people who were just giving aid to these helpless creatures, and, 

8 

you know, if we had known immediately—immediately—I think 

things would’ve been different. There’s more that we need to do, 

and I just hope that we stay on this. And that’s why, Senator Cantwell and Senator Snowe, I was so grateful to you for following up 

on the briefing that Senator Feinstein and I did. 

But I also want to point out that, in addition to the harm done 

to the wildlife, others are suffering. And I think Senator Stevens 

might be interested in this point, and I’ll wait for him, because I 

do—Senator Stevens, I want to tell you something that I thought 

would interest you in particular, that there is are so many ramifications from something like this. The Dungeness crab season was 

suspended for several weeks, because of health concerns over the 

potential for tainted seafood, and our whole fishery has been impacted by this. So, you know, it’s one moment, one incident, one 

mistake, one problem, and it has all these effects for so long. 

I’m going to ask to put my whole statement in the record, and 

my remaining 3 minutes I’m going to highlight that, if I might. 

[The prepared statement of Senator Boxer follows:] 

PREPARED STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM CALIFORNIA

I want to thank the Commerce Committee and Senators Cantwell and Snowe for 

holding this hearing today to call attention to the threats posed by the large 

amounts of oil carried by cargo ships. 

I also want to thank Senator Cantwell and the Committee for including provisions 

in the Coast Guard Reauthorization bill to address oil spill pollution prevention. 

Unfortunately, Californians know all too well the damage and destruction that 

can occur to our waters, wildlife and communities due to toxic bunker fuel used by 

most shipping companies worldwide. 

The cargo ship the COSCO BUSAN struck the protective bumper of the Bay 

Bridge on November 7, ripping a visible 100 foot long gash in the ship’s side, spewing 58,000 gallons of bunker fuel into San Francisco Bay. 

This disaster has wreaked havoc on our environmentally sensitive Bay, killing or 

injuring at least 2,200 birds and marine mammals. Wildlife biologist experts now 

estimate that more than 20,000 birds may have perished due to the spill. 

The negative impacts of the disaster are not just limited to extensive environmental damage, Californians all along the coast are feeling the effects of this spill 

on their pocketbooks. The Dungeness crab season was suspended for several weeks 

because of health concerns over the potential for tainted seafood. 

At the Members briefing I held shortly after the disaster, I raised many questions 

about the Coast Guard’s and NOAA’s response to the spill. While I appreciate each 

agency’s efforts, there are many more questions that still need answers. 

I think we need to re-evaluate how Federal agencies respond to these types of environmental disasters and the resources that are allocated for oil spills prevention 

programs and response. 

That is why I recently introduced two bills along with Senator Feinstein to help 

address some of the main issues raised in the wake of the spill—the role of and 

funding for the Coast Guard’s Vessel Traffic Service (VTS), liability limits for cargo 

ships, and laptop computers for pilots. 

The Maritime Emergency Prevention Act of 2007, which was referred to this Committee, gives the local Coast Guard Vessel Traffic Service the authority to command 

a ship to modify its speed and direction in the event of an emergency or in hazardous conditions, it mandates pilots use laptop computers where appropriate and 

authorizes increased funding for the VTS. 

We need to give the VTS the resources and authority to do its job to intervene 

when circumstances warrant so when we have another incident similar to the 

COSCO BUSAN, the Coast Guard can alert the ship in a manner that may prevent 

an accident. 

Another issue raised recently by this spill is the increasing size of cargo ships and 

the ability of these ships to carry a tremendous amount of oil. The largest cargo 

ships today can carry 4.5 million gallons of fuel, and despite those totals, cargo 

ships are not required to have double hulls. 

9 

Mr. Chairman, I think the potential for a major disaster here is terrifying. Our 

communities are no longer in a position of wondering if they will have to respond 

to a major disaster but when. 

That is why I have also introduced legislation, which was referred to my EPW 

Committee, to equalize the liability limits under OPA for oil tankers and cargo 

ships, raising cargo ships from $950 per gross ton to $1,900 for double hulled and 

$3,000 for single hulled ships. 

The GAO report released today points out that the Coast Guard has not acted to 

raise the liability limits for vessels since OPA was enacted in 1990, and instead relied on the Oil Spill Liability Trust Fund to shoulder the remaining financial burden. 

In fact, the GAO found that of the 51 major spills between 1990 and 2006, the 

failure of the Coast Guard to raise the liability limits resulted in a $39 million shift 

in costs from the responsible parties to the Oil Spill Liability Trust Fund. 

As we have seen first hand with the disaster in San Francisco Bay, the liability 

limits often cap the liability for the responsible party far below what the actual total 

cost of clean up and recovery for a spill. 

I also am working on legislation mandating the development and implementation 

of national guidance for volunteer management during oil spills. 

With the San Francisco Bay oil spill we witnessed a tremendous and impressive 

volunteer response. However, we also witnessed confusion and inefficiencies with 

how to properly manage this valuable resource. 

We need national guidance and further local planning and training to address the 

complexities with engaging volunteers and to define how to best provide for their 

worthwhile and safe use. 

Mr. Chairman, as I stated before, many questions still remain about whether our 

Federal agencies have the resources necessary and are up to the task of responding 

to and cleaning up major oil spills. 

I have concerns about whether Coast Guard has the resources to adequately monitor the Vessel Response Plans for non-tanker ships and whether Coast Guard’s current training schedule is sufficient to respond to a major spill. 

Why is Coast Guard continuing to drag its feet on rulemaking? Is Coast Guard 

too focused on the security aspects of the Agency and not enough on marine environmental protection? 

Finally, should we in the United States step up at the international level, like 

private companies such as Intertanko have, and work to ban toxic bunker fuel? We 

know the benefits of a lower-sulfur fuel provides for respiratory health, and now we 

also need to think about the potential affects of toxic fuel on our waters and marine 

life. 

As international trade continues to grow, the threat of a catastrophic oil spill occurring off the coast of the United States continues to grow exponentially. 

I want to thank the Committee for holding this important hearing and look forward to working with the agencies and groups present to protect our waters and 

communities. 

Senator BOXER. I think we need to reevaluate how Federal agencies respond to these disasters, and I don’t certainly have all the 

answers, but Senator Feinstein and I, after our many briefings, 

and Admiral Allen was helpful to us in telling us, in his opinion, 

not that we necessary agreed with everything he said, but we came 

up with a couple of approaches. One bill has been referred to this 

Committee, Mr. Chairman, and I want to thank you for your interest. 

The Marine—the Maritime Emergency Prevention Act of 2007 

would take away the ambiguity as to who is in charge when we 

have conditions that are so hazardous that you can’t see one inch 

in front of your nose. It would say that the Coast Guard declares 

a hazardous circumstances—declares an emergency circumstance, 

and then it would be responsible to pilot that ship in. And right 

now, what we have is this one’s pointing here, it was his fault, it 

was his fault, it was his fault. I think, in case of emergency, I have 

so much faith in the Coast Guard. I say to you, Admiral, I think 

they need to declare that there is an emergency, and they take 

10 

charge, and I think we will—I believe, remove some of the problems that we face right now. We need to give the VTS, the Vessel 

Traffic Service, the resources they need to do the job, and I think 

we should be ready to do that. The second bill that we introduce— 

yes, I will. 

Senator STEVENS. Will you give them the authority to not to have 

to file Environmental Impact Statements and not have to clear it 

with all these other people in order to do that? If you will, I’ll go 

with you. 

Senator BOXER. Well, Senator, that question I don’t think is appropriate at this time. I think we need to sit down and look at 

what has to happen at the moment that they declare that there is 

an immediate emergency and they bring the ship in. I don’t think 

it would have anything to do with environmental reports. There’s 

no reporting here. It’s the when—who leads the ship in. So I don’t 

think that’s an issue that would come up. But if this is something 

you think we need to deal with, fine. I don’t get it. I don’t think 

it has anything to do with it. 

The second bill that we introduced, which has been referred to 

my Committee on Environment and Public Works, would do the following: it would raise the liability limit for the cargo ships to the 

level of the tankers, and it would lower the limit if you had a double hull. Because I think Senator Kerry is right; the double hull 

would help a lot. So if we give financial incentives, in terms of a 

liability cap if you have a double hull, I think that would help. 

We’re also working on legislation that will deal with getting the 

volunteers into the cleanup sooner, because at this point, there was 

confusion and we had volunteers testify who were just beside themselves because they couldn’t really help. 

So Madam Chair, those are the two pieces of legislation that I’d 

like to talk more with colleagues about. I also think it’s important 

that the Coast Guard look at some of the rulemaking they’re supposed to be doing. I don’t know how up to date they are on it, but 

I hear it’s going a little slower than we would like. So I want to— 

Oh, only one more point, very quickly. The kind of fuel that’s 

spilled is the worst type of fuel, this bunker fuel. And there ought 

to be an international treaty to ban this fuel, and our people in the 

Bush Administration say they agree, but they are dragging and 

dragging and dragging. 

So we have a bill, Senator Feinstein and I, that would simply say 

‘‘Bunker fuel is banned.’’ When you’re ready to come into an area 

in any of our ports, you’ve got to change to a cleaner fuel, and we 

have tremendous support from that, from all these port communities. So these are some approaches. Thank you for your interest 

and concern. 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Senator Boxer. And I want to 

thank Senators—Chairman Inouye and Vice Chairman Stevens for 

their long and hard work, and attention to this issue, and to many 

of my colleagues who were here when the EXXON VALDEZ situation happened in the passage of the 1990 Act. I really think it was 

11 

groundbreaking legislation that has done a lot to protect our environment and to reduce the risk of maritime oil pollution. 

The volume, though, of oil spilled nationwide is still far too large, 

and spills are still too frequent. We are here today because these 

events recently in California, I think, demand that we reexamine 

America’s oil pollution prevention and response. We know that a 

container ship, the COSCO BUSAN, collided with the San Francisco Bay Bridge as it was exiting the bay. That collision created 

a 100-foot gash in the side of the vessel, and fuel that was spilled 

was 58,000 gallons, as my colleague from California just said, of 

bunker fuel into the bay, and resulted in one of the largest oil spills 

in San Francisco Bay in the last decade. 

The fact that this ship was not an oil tanker transporting oil, like 

the EXXON VALDEZ, is an important one because the cargo ship 

was built to carry nearly 2 million gallons of oil as fuel. And the 

true scale of that fuel tank that was ruptured was 1 million gallons. The incident has brought to light how vulnerable our oceans 

are to the oil spills from nontank vessels that carry massive 

amounts of oil—not as cargo, but as fuel. I believe this event highlights a need to reexamine the protections of the Oil Pollution Act 

and whether they are sufficient given today’s reality. 

Is the current regulation of such nontank vessels sufficient in the 

light of the risks that they pose? When nontank vessels are growing, both in size and in number, and often carrying volumes of fuel 

oil in the millions of gallons, is it really responsible for us to slowwalk the rules that would regulate these vessels? In a world where 

the cost of cleanup for a single catastrophic spill would cost several 

billion dollars, should we really be toying with the solvency of the 

Oil Spill Liability Trust Fund, the very source of cleanup dollars 

in an emergency? 

And when we have better communication and navigation technology, safer ship designs, and more innovative ways to save ships 

when things go wrong, isn’t prevention a better investment than 

paying for the cleanup in the next catastrophe? As recent incidents 

in San Francisco, the Puget Sound, and along the Pacific coastline 

can attest, much more remains to be done to safeguard our waterways and our shorelines. Like many of my colleagues here, Washington State knows these issues and confronts them every day. Approximately 600 tankers and 3,000 barges move nearly 15 billion 

gallons of oil through Puget Sound’s very fragile ecosystem each 

year. 

But over 6,000 larger nontank vessels, such as cargo ships and 

freighters transit through the same waters each year, as well. And 

since 1964, vessels have spilled approximately 4.8 million gallons 

of oil in Washington waters. Of this, 184,000 gallons were spilled 

after the Oil Pollution Act of 1990. I, too, will submit the rest of 

my testimony for the record, because I do want to hear the testimony of those witnesses, but I think it’s safe to say that now we 

are 17 years after the Oil Pollution Act of 1990, and we’re nearly 

30 years since my predecessor Warren Magnuson, Senator Magnuson, banned supertankers in Puget Sound. I hope we can continue 

to make progress on this vital issue, and that’s why we’re here 

today, to hear from these panelists who will join us to bring inVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
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sight, to examine the risks and threats and the vulnerabilities that 

we still face, particularly from nontank vessels. 

So I want to thank the panelists on the first panel. Admiral 

Allen of the U.S. Coast Guard; Ms. Mary Glackin, Deputy Under 

Secretary of the National Oceanic and Atmospheric Administration; 

and Ms. Susan Fleming, Director of Physical Infrastructure for the 

GAO. Welcome, and thank you for being here, and for your patience in this hearing this afternoon. And Admiral Allen, if you 

could start with your testimony, we’re asking each of the witnesses 

to make a 5-minute statement. 

STATEMENT OF ADMIRAL THAD W. ALLEN, COMMANDANT, 

U.S. COAST GUARD, DEPARTMENT OF HOMELAND SECURITY 

Admiral ALLEN. Good afternoon, Madam Chair, Senator Snowe, 

and distinguished members of the Committee. Thank you for the 

opportunity to appear before the Committee today on this very important topic. I would ask that my full testimony be submitted for 

the record, and I have a brief opening statement. 

The risks presented by the fuel carried on nontank vessels have 

been recognized for some time, and the recent spill in San Francisco has underscored the need to understand the causes and to 

prevent spills from these vessels. I think we have all been very 

clear in our statements here today; there is no better approach to 

this problem than prevention. Once the oil has been discharged 

into the environment, there are no winners. And the best any response can do is to mitigate the impact. 

I’d like to provide the Committee with some data today that 

frames the size of the fleet and the threat that we are discussing 

here today. Based on data through December of 2007, the Coast 

Guard has received and reviewed response plans from more than 

13,000 nontank vessels that call on U.S. ports. Of that number, 

over 8,000 are classified as ocean-buoyant freight vessels, such as 

the COSCO BUSAN. The majority of these vessels have fuel capacity between 10,000 and 20,000 barrels. Each barrel contains 42 gallons, so the range is 420,000 to 840,000 gallons, on average. 

However, there are 360 vessels that carry more than 50,000 barrels, and there are 100 that carry more than 70,000 barrels. The 

highest capacity freight ship listed in our records is 173,000 barrels, or about 7.3 million gallons. And we all know the discharge 

from the EXXON VALDEZ was close to 10 million. The COSCO 

BUSAN had a capacity of 52,000 barrels, or 2.2 million gallons, as 

was stated previously. 

To address the threat posed by nontank vessels, there have been 

several international and domestic steps taken, and more are 

planned and more are needed, as you have stated. Under the provisions of MARPOL Annex I, single-hulled fuel tanks are being 

phased out. Double hulls for fuel tanks are required for ship contracts awarded after the 1st of August 2007, and for ships delivered 

after 1 August 2010. There are also provisions that require a shipboard oil emergency plan. Domestically, we’ve gone further than 

the international standards. Based on recent legislation by the 

Congress in 2004 and 2006, we have established a response plan 

requirement for nontank vessels greater than 400 gross tons. 

13 

The legislation created an August 2005 deadline for the implementation of these plans. The Coast Guard issued interim guidance 

in February of 2005 that provided interim authorization for 

nontank vessels to operate under Coast Guard-reviewed response 

plans, pending the development of new Committee regulations. I 

noted earlier plans for over 13,000 vessels have been received and 

reviewed by the Coast Guard. By comparison, we have reviewed response plans for 7,800 tank vessels in that same period of time. 

Clearly, the number and increasing fuel capacity of large freight 

ships justify a review of all aspects of spill prevention and response. 

Another significant area of interest is the limit of liability for a 

responsible party under the provisions of OPA 90. For a number 

of years, the limits of liability remained as established at the time 

of OPA 90. However, as you know, they were significantly increased after the Coast Guard and Maritime Transportation Act of 

2006 was passed. We believe increasing liability limits per incident 

for single-hulled tankers, barges, and nontank vessels greater than 

300 gross tons would result in a more balanced cost-share between 

responsible parties and the Oil Spill Liability Trust Fund. However, that legislation did not increase in a like manner the requirement for a Certificate of Financial Responsibility, and we are pursuing a rule to adjust that level, and expect to issue it in 2008. 

Madam Chair, I would like to close with the comment regarding 

Coast Guard rulemaking, as mentioned earlier. My comments here 

today reflect a previous conversation that you and I had with your 

staff, as well as other Members of Congress. The current backlog 

of rules to be developed by the Coast Guard exceeds 90. On 9/11/ 

2001, it was approximately 50. Despite tremendous effort by our 

Coast Guard personnel, we are not gaining ground, and many important rules have been queued awaiting required resources. The 

situation is unsatisfactory to me, I know it’s unsatisfactory to you, 

and it erodes confidence in our commitment to important work. I’ve 

tasked the Coast Guard and Marine Safety and Security Council to 

assess the current situation, and to provide any options to reduce 

this backlog. 

Given the multiple interests involved, I intend to convene a National Stakeholders Meeting to seek input and advice on this effort. 

I would ask for the involvement of the Committee staff in this effort, as well. Within this context, the Coast Guard will continue to 

aggressively partner with our stakeholders to prevent incidents 

and improve response to incidents as they occur. We provided interim guidance to our field commanders, based on feedback from 

the COSCO BUSAN response, and I have initiated an Incident 

Specific Review of the responses, which includes third parties. 

The results of that review will be made available before the 

spring hearings, and I will provide the Congress the results and 

make those results available to the public. Thank you for the opportunity to be here today. I will be glad to answer any questions. 

[The prepared statement of Admiral Allen follows:] 

14 

PREPARED STATEMENT OF ADMIRAL THAD W. ALLEN, COMMANDANT, 

U.S. COAST GUARD, DEPARTMENT OF HOMELAND SECURITY

Good afternoon Madam Chairman and distinguished members of the Committee. 

It is a pleasure to appear before you today to discuss the Coast Guard’s efforts to 

reduce and mitigate oil spills from nontank vessels. Today I will discuss requirements and implementation of nontank vessel response plans and the status of rulemaking pertaining to nontank vessels. The Coast Guard is absolutely committed to 

protection of the environment as a valuable public good. 

The Coast Guard plans and prepares for significant oil spill incidents, including 

worst case discharge scenarios, through Area Committees and Regional Response 

Teams. These entities represent a partnership of Federal, state, and local agencies 

and tribal, non-governmental and private organizations. Through committee process, 

Area Contingency Plans are reviewed, tested, and updated to best manage oil spill 

response operations. These plans identify environmentally sensitive areas within the 

local area of responsibility, establish appropriate protection strategies, and list all 

potential locations for staging response equipment. The plans describe command 

and control structures, the role of volunteers, establish conditions for using special 

response procedures such as the use of dispersants, and identify the National Response System and local assets that can be brought to bear in the event of an oil 

spill incident. 

The Area Committees and Regional Response Teams oversee other preparedness 

activities such as regular government and industry exercises, training evolutions, 

and risk assessments. Their activities are overseen by the National Response Team, 

and operate under the aegis of the National Contingency Plan and the National Response Framework. 

The creation of Coast Guard Sectors unified port and coastal operational commands, placing increased resources in the hands of Federal On-Scene Coordinator. 

The Coast Guard conducts regular, rigorous, oil spill exercises, inspects vessels and 

facilities for safety and environmental compliance, and participates in a host of prevention, planning and preparedness activities related to environmental protection 

and response. Incident Command System training is required for all Coast Guard 

personnel ensuring the skills necessary to manage all hazards incidents, including 

oil spill response operations. In addition, Coast Guard Strike Teams offer unique capabilities and expertise to assist local response operations and the National Strike 

Force Coordination Center conducts regular assessments of the capabilities and 

readiness of privately owned Oil Spill Removal Organizations. 

Nontank Vessel Response Plans 

The Coast Guard and Maritime Transportation Act of 2004 amended the Federal 

Water Pollution Control Act to require the preparation and submission of oil spill 

response plans for nontank vessels. The Act defined a ‘‘nontank vessel’’ as a selfpropelled vessel of 400 gross tons or greater, other than a tank vessel, that carries 

oil of any kind as fuel for main propulsion and that is a vessel of the United States 

or operates in the navigable waters of the United States. Under the Act, response 

plans for nontank vessels were required to be submitted to the Coast Guard by August 8, 2005. The Coast Guard and Maritime Transportation Act of 2006 was signed 

by the President on July 11, 2006 and further amended the Federal Water Pollution 

Control Act. Section 608 of the CGMTA 2006 contained provisions to further amend 

the FWPCA with regard to applicability standards for nontank vessels. All nontank 

vessels that are not assessed under the convention tonnage measurement system 

will use the regulatory tonnage admeasurements system for their applicability tonnage. Additionally, U.S. vessels that are not operating on the navigable waters of 

the United States are not required to comply with this law. 

The Act provided 1 year for the development and submission of nontank vessel 

response plans. The Coast Guard did not have adequate time to provide for public 

comments and then develop and publish regulations within the one-year timeframe. 

Under the authority provided by 33 U.S.C. 1321(j)(5)(G), until regulations are in effect, the Coast Guard has authorized nontank vessels to operate without an approved plan for up to 2 years if the owner or operator certifies availability of personnel and equipment necessary to respond to a worst case discharge. On February 

4, 2005, the Coast Guard published Navigation and Vessel Inspection Circular 01– 

05 (NVIC 01–05) entitled, ‘‘Interim Guidance for the Development and Review of Response Plans for Nontank Vessels.’’ This document provides guidance to help vessel 

owners and operators develop plans and receive interim operating authorization 

from the Coast Guard. The publishing of NVIC 01–05 was announced to the public 

and industry by Federal Register Notice. 

15 

On June 24, 2005, the Coast Guard published another Federal Register Notice and 

Request for Comments, concerning Nontank Vessel Response Plans (70 FR 36649) 

which informed the public of issues related to this legislation, posed questions on 

the size of the population of vessels affected, discussed Coast Guard efforts to engage the regulated community, and informed the owners and operators of nontank 

vessels of the Coast Guard’s enforcement policy. The Coast Guard is currently reviewing, researching, and answering the comments received in response to the Federal Register Notice and Request for Comments and is drafting a regulatory work 

plan. 

As of December 1, 2007, the Coast Guard has received and reviewed approximately 2,359 nontank vessel response plans covering 13,306 nontank vessels. As 

vessel owners submit their nontank plans, these plans are reviewed and 2 year interim operating authorization letters are issued. As these interim operating authorization letters expire, the Coast Guard reissues new interim operating authorizations based upon the vessel owner’s certification that the necessary private resources needed to respond to a worst case discharge are ensured by contract or other 

approved means, per 33 U.S.C. 1321(j)(5)(D). 

Oil Spill Threat 

Nontank vessels pose a threat to the marine environment due to the fuel oil capacities of these vessels. Ship fuel, also referred to as ‘‘bunker’’, generally presents 

a response challenge due to its density and inability to break down in the marine 

environment as fast as lighter oils. This is problematic when bunker comes in contact with shorelines, marine mammals, birds and environmentally sensitive areas. 

Of the 13,000 nontank vessels in vessel response plan files, 8,364 of these vessels 

are oceangoing freight vessels such as container, breakbulk, roll-on/roll-off or bulk 

cargo ships. The majority of these freight vessels have a fuel capacity between 

10,000 and 20,000 barrels. There are, however, over 360 freight ships with a fuel 

capacity of 50,000 barrels or more, and about 100 freight ships with a fuel capacity 

over 70,000 barrels. The highest fuel capacity we have listed for a freight ship is 

over 173,000 barrels. The M/V COSCO BUSAN, with a fuel capacity of approximately 52,000 barrels is on the larger side. Significant oil spills from nontank vessels over the years have clearly identified nontank vessels as an ongoing threat to 

the marine environment. Spills such as the Japanese freighter KUROSHIMA in 

Summer Bay, Alaska in 1997, NEW CARISSA off Coos Bay, Oregon in 1999, the 

SALENDANG AYU off Unalaska Island, Alaska in 2004 and the COSCO BUSAN 

in San Francisco Harbor in 2007 demonstrate the hazard posed by this type of vessel. 

New Requirements for Oceangoing Freight Ships 

Nontank vessels are vulnerable to spills caused by groundings, collisions and 

allisions due to the location and capacity of onboard fuel tanks. Fuel is generally 

carried in tanks located in the bottom or side of the vessels without double hull protection. International oil spill prevention and response requirements applicable to 

oceangoing freight ships are based on build date and fuel capacity. These requirements address issues such as double hull requirements, accidental outflow requirements, and emergency response plans. 

Oceangoing freight vessels are subject to the International Convention for the Prevention of Pollution from Ships otherwise referred to as MARPOL 73/78. New 

MARPOL Annex I regulation 12A—Oil Fuel Tank Protection has entered into force 

and applies to all ships (a ‘‘ship’’ means a vessel of any type whatsoever operating 

in the marine environment and includes hydrofoil boats, air-cushion vehicles, 

submersibles, floating craft and fixed or floating platforms) with an aggregate oil 

fuel capacity of 600 cubic meters (this equates to approximately 158,500 gallons or 

3,775 barrels) and above with a building contract on or after 1 August 2007, or 

which are delivered on or after 1 August 2010. The 600 cubic meters applicability 

threshold was established because it generally equates to the MARPOL 600 ton 

deadweight applicability threshold for oil tanker double hull requirements in regulation 19. The regulation provides two options for the protection of fuel tanks: (1) a 

prescriptive double hull requirement; or (2) a probabilistic accidental oil outflow performance requirement. There is an exclusion for small fuel tanks of 30 cubic meters 

or less. OPA 90 requires all new build tank vessels (tank ships and barges) that 

carry oil in bulk to be double hulled. There is no bottom limit of how much cargo 

oils are carried and OPA 90 standards are enforced on all tank vessels that operate 

in the U.S. waters. 

Regulation 37 of Annex I of MARPOL 73/78 requires that each ship maintain a 

Shipboard Oil Pollution Emergency Plan (SOPEP) that addresses and mitigates oil 

spills. There are significant differences between SOPEP and Federal Water PolluVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
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tion Control Act requirements. SOPEPs require information in the following areas: 

spill reporting provisions, casualty/spill mitigation procedures, and vital vessel information (vessel name, VIN, principal characteristics). FWPCA plans require the 

same information as a SOPEP, but also include more stringent requirements including: follow-up report; procedures for equipment failure, discharge equipment deployment, internal transfers; emergency towing; geographical specific appendices including information on Oil Spill Removal Organizations (OSROs); shore-based response 

activities, including use of an ICS or equivalent system; identification of spill management team; Salvage and Marine Firefighting; lightering provider; Qualified Individual; training; exercises; and vessel-specific appendix, including maximum most 

probable and worst case discharge amounts, oil groups carried, tank capacities, and 

specific vessel diagrams. 

Adequacy and Enforcement of Vessel Response Plans 

The Coast Guard currently maintains 837 tank vessel response plans covering 

7,841 vessels and 2,359 nontank vessel response plans covering 13,306 vessels, both 

U.S. and foreign flagged. The Coast Guard also reviewed and approved 2,594 individual Shipboard Oil Pollution Emergency Plans (SOPEPs) for U.S. flag vessels. Additionally, the Coast Guard reviewed and approved 570 Shipboard Marine Pollution 

Emergency Plans (SMPEPs) for U.S. flag vessels that carry some form of hazardous 

substance aboard to be in compliance with Regulation 17 of Annex II of MARPOL 

73/78. 

Challenges 

One area of vessel response plan enforcement that has been challenging is required transit coverage for vessels operating within our Exclusive Economic Zone, 

but beyond our territorial sea and navigable waters jurisdiction. As our maritime 

domain awareness improves with advances in technology, so does our cognizance 

that there are vessels transiting U.S. waters without the required coverage per vessel response plan regulations. We are currently examining this issue for possible 

changes in our enforcement practices to address areas in the Nation where vessel 

traffic poses environmental risks and ensure the necessary response resources are 

in place. 

Tank vessel response plans required by the Oil Pollution Act of 1990, required 

tank ship owners to ensure the availability of private personnel and response resources necessary to respond to a worst case discharge including fire and explosion. 

In the vast majority of U.S. ports, oil spill removal organizations, or ‘‘OSROs’’ are 

contracted by vessel owners to provide the required resource capacity and spill management expertise to respond to worst case discharge scenarios. However, in some 

ports there is far more freight ship traffic than tank ship transits. The introduction 

of nontank vessel response plan statutory and regulatory requirements provides for 

an opportunity to increase oil spill response equipment in support of the national 

response plan, especially in remote locations. 

Many states, including Alaska, Washington, Oregon, California and Texas passed 

legislation requiring nontank vessels to have vessel response plans. The state requirements are founded upon OPA 90 tank vessel response plan requirements, however, there are inconsistencies from state to state in applicability and scope and no 

two states have adopted precisely the same requirements. Thus vessels seeking to 

trade between states have to satisfy increasingly disparate requirements including 

maintaining multiple response plans. 

Vessel Response Plan Related Rulemaking Projects 

The response plan regime for vessels will change in the future. New domestic and 

international requirements will build on the existing response plan foundation to 

provide an enhanced pollution response regime. The Coast Guard has several vessel 

response plan improvement rulemaking projects in various stages of development 

pertaining to the use of dispersants, oil spill tracking, salvage and marine firefighting response equipment, implementation and incorporation of International 

Maritime Organization standards into our domestic regulations and the development of hazardous substance response plans for vessels and facilities. The following 

is a list of related rulemaking projects: 

Title: Vessel and Facility Response Plans for Oil: 2003 Removal Equipment 

Requirements and Alternative Technology Revisions. 

Docket Number: USCG–2001–8661. 

Summary: The Coast Guard proposes changes to its requirements for oil-spill 

removal equipment under vessel response plans and marine transportation-related facility response plans. These changes increase the minimum available 

spill removal equipment required for tank vessels and facilities, add requireVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
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ments for new response technologies, and clarify methods and procedures for responding to oil spills in coastal waters. 

Status: A Notice of Proposed Rulemaking (NPRM) was published on October 

11, 2002 (67 FR 63331). A Final Rule is expected in the near future. 

Title: Salvage and Marine Firefighting Requirements; Vessel Response Plans 

for Oil. 

Docket Number: USCG–1998–3417. 

Summary: The Coast Guard proposes to revise the vessel response plan salvage and marine firefighting requirements for tank vessels carrying oil. These 

revisions clarify the salvage and marine firefighting services that must be identified in vessel response plans. The proposed changes will assure the appropriate salvage and marine firefighting resources are identified and available for 

responding to incidents up to and including the worst-case scenario. The proposed rulemaking will also set new response time requirements for each of the 

required salvage and marine firefighting services. 

Status: An NPRM was published on May 10, 2002 (67 FR 31868). 

Title: Nontank Vessel Response Plans. 

Summary: The Coast Guard will implement a statutory requirement that an 

owner or operator of a self-propelled, nontank vessel of 400 gross tons or greater, which operates on the navigable waters of the United States, must prepare 

and submit an oil spill response plan to the Coast Guard. The rulemaking will 

specify the content of a response plan, including the requirement to plan for responding to a worst-case discharge and a substantial threat of such a discharge. 

The rulemaking will also specify the procedures for submitting a plan to the 

Coast Guard. 

Status: To provide guidance to industry, a Navigation and Vessel Inspection 

Circular (NVIC) was published on February 4, 2005. NVIC 01–05 is titled ‘‘Interim Guidance for the Development and Review of Response Plans for Nontank 

Vessels.’’ Change One to NVIC 01–05 was published on January 13, 2006. The 

work plan for this rulemaking is being finalized. 

Title: Tank Vessel Response Plans for Hazardous Substances. 

Docket Number: USCG–1998–4354. 

Summary: The Coast Guard proposes regulations requiring response plans for 

certain tank vessels operating on the navigable waters of the United States that 

could reasonably be expected to cause substantial or significant and substantial 

harm to the environment by discharging a hazardous substance. These regulations are mandated by the Oil Pollution Act of 1990 (OPA 90), which requires 

the President to issue regulations requiring the preparation of hazardous substance response plans. The primary purpose of requiring response plans is to 

minimize the impact of a discharge of hazardous substances into the navigable 

waters of the United States. 

Status: An NPRM was published on March 22, 1999 (64 FR 13734). 

Adequacy of Nontank Vessel OPA Liability Limits 

While OPA liability limits for vessels were increased significantly under the Coast 

Guard and Maritime Transportation Act of 2006, further increases should be considered including increases for nontank vessels. 

The Secretary addressed the adequacy of nontank vessel OPA liability limits in 

a January 5, 2007, report to Congress on vessel liability limits in general pursuant 

to section 603(c) of the CG&MT Act of 2006. The first annual update of the report 

was provided to Congress on October 10, 2007. 

As updated, the limited data available indicates that increasing liability limits per 

incident for single hull tank ships, tank barges and nontank vessels greater than 

300 gross tons in particular would result in a more balanced cost share between responsible parties and the Oil Spill Liability Trust Fund while positively impacting 

the Fund balance. 

OPA 90 provides for exceptions from limits when, for example, the incident is 

caused by gross negligence, willful misconduct or a violation of a Federal safety, operating or construction regulation by a responsible party, its agents, employees or 

contractors. 

Oil Spill Prevention, Preparedness, and Research and Development in a 

Post-9/11 World 

Oil spill prevention and response is a very important function of the Coast Guard. 

The model set forth by Area Committees and the Area Contingency Plan process 

provided a valuable framework for the creation of Area Maritime Security Committees and Area Maritime Security Plans. Coast Guard oil spill response continues to 

18 

serve as a model for all hazards response in the maritime domain. We strive to leverage our partnerships with the maritime industry, Federal, state, and local agencies, and Congress to ensure our nations ports waterways operate safely, securely, 

and in a manner that protects our environment. The shared goal in preventing or 

responding to major maritime incidents, regardless of the cause, is the same, to save 

lives, preserve property, protect the environment and minimize disruption to the 

marine transportation system. 

The Coast Guard continues to conduct regular, rigorous, oil spill exercises, inspect 

ships and facilities for safety and environmental compliance, and participate in a 

host of prevention, planning and preparedness activities related to environmental 

protection and response. We are absolutely committed to the environmental protection mission and recognize its importance to the public good. The environmental 

protection mission is part of the well-balance portfolio the Coast Guard maintains 

to ensure our nations ports and waterways remain safe, secure, and clean. 

Thank you for the opportunity to testify before you today. I will be happy to answer any questions you may have. 

Senator CANTWELL. Thank you, Admiral Allen. Thank you for 

your testimony. We will put the whole thing in the record. And let’s 

to turn Ms. Glackin. Thank you for being here. 

STATEMENT OF MARY M. GLACKIN, DEPUTY UNDER 

SECRETARY OF COMMERCE FOR OCEANS AND ATMOSPHERE, 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 

U.S. DEPARTMENT OF COMMERCE 

Ms. GLACKIN. Good afternoon, Chairman Cantwell, Ranking 

Member Snowe, and members of the Committee. I appreciate—— 

Senator CANTWELL. If you could just pull that microphone a little 

closer to you. Thank you. 

Ms. GLACKIN. OK, great. Is that better? OK. I appreciate the opportunity to join you this afternoon. As the Chairman said earlier, 

I’m Mary Glackin, the Deputy Under Secretary of Commerce for 

Oceans and Atmosphere at NOAA. And I wanted to take this opportunity to highlight some of the aspects of my written testimony 

about NOAA’s many roles in preventing and responding to oil 

spills, as well as the importance of research and development to 

both of those activities. 

Each year, our nation’s ports handle approximately 44 percent of 

the U.S. international merchandise trade by value. On any given 

day, a variety of vessels, including tankers and container ships, 

carry oil and other goods to their destinations. Whenever these vessels travel, they pose a threat of oil spills. And it’s been pointed out 

here today, prevention is key to this, and one of the key parts of 

prevention is promoting safe marine transportation. Once a spill 

does occur, we must act quickly and effectively to mitigate any 

harmful effects and restore injured resources. To do this, we must 

continue to be prepared for spills and have adequate response capabilities. 

I’ll speak first of NOAA’s role in prevention. The most effective 

way to protect the marine environment is to prevent a maritime accident from ever occurring. One role that NOAA plays that is key 

in spill prevention is to provide accurate and timely information to 

mariners through nautical charts. These charts are the roadmaps 

that provide the mariners with the lay of the land and delineate 

important information required for vessel safety. Toward that end, 

NOAA is building a suite of Electronic Navigational Charts, and 

these charts, along with global positioning and real-time water levVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
19 

els, current and weather data, provide a safe and profitable waterway system. 

To further improve tools for prevention, NOAA is also updating 

the hydrographic data on its charts, using surveys and the latest 

technologies. These updates can prevent accidents by exposing previously undetected hazards. The data collected also supports spill 

response trajectory models and coastal management efforts. 

And finally, under prevention, NOAA’s Physical Oceanographic 

Real Time System or PORTS® Program provides real-time oceanographic and meteorological data at key locations. This information 

provides mariners and port authorities with an awareness of the 

current water levels and weather, which is important to prevent 

groundings. It allows mariners the time they need to anticipate the 

need for difficult maneuvers. 

Shifting to NOAA’s role in response, when an oil spill occurs, 

Federal, state, and local agencies across the country call on NOAA 

to help in a response. NOAA’s suite of scientific products and services, and the expertise of our personnel, are critical in mitigating 

harm. They are also critical in providing response information, restoring natural resources, and making science-based decisions. 

During an oil spill, NOAA’s Office of Response and Restoration provides scientific support services, such as overflight observations, 

identification of sensitive environmental areas, and we also provide 

shoreline surveys, toxicity assessments, and the evaluation of 

cleanup alternatives. 

NOAA is also responsible for providing real-time ocean and 

coastal observations to determine the location and the trajectory of 

an oil spill. NOAA’s Integrated Ocean Observing System program 

is working to increase the availability and the compatibility of this 

data among all oil spill response partners. 

Response training and exercises are also essential to maintain 

capabilities. NOAA has aided in the response to the COSCO 

BUSAN spill by a major field exercise called NOAA Safe Seas that 

we conducted in the San Francisco Bay area in 2006. Safe Seas has 

allowed us to train hundreds of regional staff and Beach Watch volunteers in various aspects of response, and to test response protocols. Although there is a high level of interest in supporting a similar training exercise in the Northwest, we have been unable to support such an effort at current funding levels. 

After an initial response to an oil spill, NOAA develops a restoration plan through the Natural Resource Damage Assessment Process. Within this process, NOAA experts determine how to best restore injured resources. We’ll also ascertain the most appropriate 

restoration products that will compensate the public for lost services. 

As I mentioned earlier, research is critical to improving oil spill 

preparedness, response, and restoration. One focus of our oil spill 

research is our partnership with the Coastal Response and Research Center at the University of New Hampshire. This partnership stimulates innovation in spill preparedness response and damage assessment. In the past several years, oil spill research has focused on improving spill models and studying the effects of released oil on affected species. We’re also focusing on human dimensions. 

20 

So in conclusion, I’ll just mention that I think you’ll agree that 

NOAA’s expertise is a critical component in preventing further incidents, restoring the adverse effects on natural resources, and aid 

in planning and responding. I’d be happy to respond to any questions the Committee has. 

[The prepared statement of Ms. Glackin follows:] 

PREPARED STATEMENT OF MARY M. GLACKIN, DEPUTY UNDER SECRETARY OF

COMMERCE FOR OCEANS AND ATMOSPHERE, NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

Good afternoon, Chairman Cantwell, Ranking Member Snowe, and Members of 

the Committee. Thank you for the opportunity to join you today. I am Mary Glackin, 

Deputy Under Secretary of Commerce for Oceans and Atmosphere, within the National Oceanic and Atmospheric Administration (NOAA). I will be discussing 

NOAA’s role in preventing oil spills, our role in spill response, and the importance 

of research and development for both. I will also highlight three examples of nontanker vessel spills where NOAA assisted in the response efforts. 

Overview 

Our marine transportation system is an intrinsic part of the U.S. economy. According to a recent report from the Bureau of Transportation Statistics, our marine 

transportation system conveys as much as 78 percent of U.S. international merchandise trade by weight and 44 percent by value through our Nation’s ports each year, 

far more than the other transportation modes. On any given day, as part of this 

system, vessels that contain large quantities of fuel oil travel through our waterways to their destinations. These vessels include not only oil tankers but also container ships, fishing vessels, ferries, and other public and private vessels. Wherever 

these vessels travel, their daily transits pose a threat of oil spills. Over the past fifty 

years, ships have doubled in length, width, and draft, and seagoing commerce has 

tripled. The Department of Transportation projects that by 2020 the volume of marine trade will more than double, particularly in international container traffic.. 

Despite this increase in vessel traffic and size, the number of oil spills in U.S. 

coastal waters has declined in the two decades since the EXXON VALDEZ oil spill. 

However, the SELENDANG AYU, KUROSHIMA, and SS CAPE MOHICAN vessel 

spills, along with the recent COSCO BUSAN incident, serve as reminders that oil 

spills still happen. 

When oil spills into our coastal waters, it can harm people and the environment 

and cause widespread economic effects. The best remedy is to prevent oil spills by 

promoting safe marine transportation. Once a spill occurs, we must act quickly and 

effectively to mitigate any harmful effects and restore injured resources. To ensure 

a quick and effective response, we must continue to be prepared for spills by having 

adequate response capacity and capabilities on hand. 

Response training and exercises are essential to maintaining capabilities. Together with the U.S. Coast Guard, the State of California, and the Department of 

the Interior, NOAA conducted a major field exercise called NOAA Safe Seas 2006 

in the San Francisco Bay area in the summer of 2006. Safe Seas allowed us to train 

hundreds of regional staff and Beach Watch volunteers in various aspects of oil spill 

response, and to test the response protocols that would be used for a real spill. This 

exercise reinforces the value of our efforts to develop improved capabilities, maintain our capacity, and continue response-related research and development efforts 

for a timely and effective response. Due to this exercise, NOAA was able to integrate 

high frequency radar and other data from the Central and Northern California Integrated Ocean Observing System into pollution trajectory models. Local NOAA personnel and other responders received specific capability training that allowed them 

to function more efficiently within the Command Post and in the field during the 

response to the recent COSCO BUSAN oil spill. 

NOAA’s Role in Prevention 

It is critical to both the Nation’s economy and the coastal environment that the 

marine transportation system continues to function safely and efficiently as its use 

grows. The most effective way to protect the marine environment is to prevent the 

maritime accident from ever occurring. NOAA plays a vital role in spill prevention 

by providing accurate and timely information to mariners. 

Nautical charts, the mariner’s most basic tool, are the ‘road maps’ that provide 

the mariner with the overall ‘lay of the land’ and delineate the fundamental information required for the vessel to safely navigate the coastline. NOAA is building 

21 

and maintaining a suite of Electronic Navigational Charts (ENCs) to fuel electronic 

navigation systems that can also integrate a variety of environmental data. Funding 

to complete this suite, for full coverage of U.S. waters, is included in the FY 2008 

President’s Budget Request. NOAA is also updating the hydrographic data on its 

nautical charts by surveying with the latest full bottom coverage technologies. Much 

of the 3.4 million square nautical miles (nmi2) depicted on these charts were collected prior to 1940 with obsolete methods. NOAA has prioritized 500,000 nmi2 of 

this area as navigationally significant, and is able to survey approximately 3,000 

nmi2 a year using state-of-the-art technology. Not only do these updates show 

changes in coastal bathymetry, but more importantly, they can prevent maritime accidents by exposing previously undetected hazards to navigation. The data collected 

also support scientific uses, spill response trajectory models, and other coastal and 

emergency management efforts. 

Even the most accurate nautical chart cannot help the mariner if the vessel’s location is not known with certainty. Determining a vessel’s precise position has been 

a challenge to mariners for centuries. With the advent of the Global Positioning System (GPS), it has become possible for mariners to determine their position to within 

meters. NOAA’s development and implementation of the Continuous Operating Reference System program enables even more precise applications of GPS. 

Mariners have traditionally relied on astronomically predicted water level and 

current information to prevent groundings and anticipate where difficult maneuvers 

might be required. However, weather and other factors can cause actual conditions 

to deviate significantly from predictions, misleading the mariner, and increasing the 

risk of an accident. NOAA’s Physical Oceanographic Real Time System (PORTS®) 

program provides real time oceanographic and meteorological data at key locations 

that provides mariners with a situational awareness of their operating environment 

that can help avoid accidents. The 14th PORTS® was just established in Mobile, 

Alabama and we are working with the USCG to integrate PORTS® data into its 

Automated Identification System. Two different NOAA-funded reports studying the 

economic impacts of PORTS® in Florida and Texas have documented that ports with 

established PORTS® have an over 50 percent reduction in groundings (both reports 

available at http://tidesandcurrents.noaa.gov/pub.html). 

In addition to PORTS®, NOAA’s National Marine Sanctuary Program has taken 

steps to address a number of vessel traffic measures with the International Maritime Organization, including offshore routing measures, reporting measures, Areas 

to be Avoided (ATBA’s), Particularly Sensitive Sea Areas and No-Anchoring Areas. 

These areas, including the voluntary ATBA off the Olympic Coast of Washington 

State and the mandatory ATBA off the Florida Keys, have provided additional protection for the National Marine Sanctuaries. Off the Olympic Coast, NOAA is working with both the U.S. and Canadian Coast Guard to address vessels that have been 

identified as non-compliant; current compliance rates are greater than 97 percent 

over the last 2 years. 

NOAA’s Role in Response 

Federal, state, and local agencies across the country call on NOAA’s scientific support when an oil spill occurs. NOAA’s suite of scientific products and services and 

the expertise of our personnel are critical in mitigating harm, providing critical information for allocation of response assets, restoring adversely affected natural resources, and making smarter response decisions through the application of science. 

Under the Oil Pollution Act of 1990 (OPA), the National Contingency Plan, and the 

National Marine Sanctuaries Act, when an oil spill happens, NOAA is responsible 

for: 

• Providing scientific support to the Federal On-Scene Coordinator, whether the 

FOSC is EPA or USCG; 

• Representing the Department of Commerce on the National and Regional Response Teams; 

• Working with our Federal and state co-trustees to assess and restore injured 

natural resources and the services they provide; 

• Fulfilling responsibilities to protect resources when a National Marine Sanctuary is affected; and 

• Participating on the Interagency Coordinating Committee on Oil Pollution Research, which coordinates research and development efforts among industry, 

universities, and others. 

During an oil spill, NOAA’s Office of Response and Restoration provides scientific 

support services such as trajectory predictions, overflight observations, identification 

of sensitive environmental areas, shoreline surveys, toxicity assessment, and evaluaVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
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tion of cleanup alternatives. The Emergency Response Division is charged with developing all of NOAA’s response models and tools, conducting planning in U.S. 

coastal areas and the Great Lakes, maintaining a 24/7 notification system, and responding to more than 100 hazardous material release notifications each year. 

The NOAA Scientific Support Coordinator (SSC) is the key player in the NOAA 

effort to provide scientific support to an oil spill response. Nine SSCs are located 

around the country, in USCG Districts, to respond around the clock to any emergencies involving the release of oil or hazardous materials into the oceans or atmosphere. The SSC is supported by a diverse group of scientists in Seattle, WA, who 

are experienced in dealing with spill response. The SSC also coordinates access to 

all of NOAA’s capabilities including: spot weather forecasts, emergency coastal survey and charting capabilities, aerial and satellite imagery, and real-time coastal 

ocean observation data to assist response efforts. 

During the COSCO BUSAN oil spill, NOAA’s Office of Response and Restoration 

deployed seven people to the spill site to carry out overflights, coordinate beach surveys, develop cleanup standards and protocols, evaluate risks and effects to natural 

resources, and otherwise support the Federal On-Scene Coordinator. In addition, 

NOAA provided four technical experts in trajectory modeling, toxicity assessment, 

and other specialties to support the response 7 days a week from Seattle, WA. 

NOAA also provided over 30 personnel from the National Marine Sanctuary Program and coordinated 90 volunteers (Beach Watch) that were trained in the Safe 

Seas 2006 exercise. The Safe Seas exercise improved the capability of NOAA staff 

and volunteers to provide expertise to the Command Post in Liaison, the Environmental Unit, Wildlife Operations and the Joint Information Center as well as Natural Resource Damage Assessment Activities, in response to the recent COSCO 

BUSAN spill. 

During a coastal oil spill event, NOAA is also responsible for providing real-time 

ocean and coastal observations to our Hazardous Materials (HAZMAT) teams and 

to the USCG to determine the location and trajectory of an oil spill. Currently, there 

is no easy or centralized access to the thousands of high frequency radar surface 

current measurements, which are critical for pollution tracking and response planning. NOAA HAZMAT staff must contact individual radar operators for data. In addition, the data are not compatible from site to site and may have gaps in space 

and time. NOAA’s Integrated Ocean Observing System program is working to increase availability and compatibility of these data, in partnership with regional data 

providers, through the development of common data standards and access points. 

Effective spill response also depends on effective planning and preparation. NOAA 

promotes preparedness by working closely with regional response teams and local 

area committees to develop policies on dispersant use, best cleanup practices, communications, and ensuring access to science-related resources, data and expertise. 

In addition, NOAA enhances the state of readiness by conducting training for the 

response community to develop better response tools including trajectory models, 

fate models, and integrating improved weather and ocean observing systems data 

into spill trajectory forecasts. 

NOAA’s Role in Damage Assessment and Restoration 

Oil spills may also diminish the services that natural resources provide us, such 

as fishing, boating, beach going, and wildlife viewing, as well as ecological services, 

such as providing habitat, nutrient cycling, and energy transfer through food webs. 

As an agency with Federal trustee responsibilities for many marine resources, 

NOAA seeks, pursuant to OPA, restoration of ocean and coastal resources that are 

harmed by an oil spill. NOAA’s trust resources include: commercial and recreational 

fisheries, anadromous fish, selected endangered and threatened marine species, selected marine mammals, wetlands, mangroves, seagrass beds, coral reefs, and other 

coastal habitats, all resources associated with National Marine Sanctuaries and National Estuarine Research Reserves. Restoration is accomplished through the Natural Resource Damage Assessment (NRDA) process—by assessing injuries, developing a restoration plan that is subject to public review, and presenting a claim for 

restoration costs to the responsible party. If the responsible party does not pay the 

claim, the trustees may litigate or file a claim for restoration costs with the Oil Spill 

Liability Trust Fund. 

For incidents occurring in, or creating a significant threat to, a National Marine 

Sanctuary, the National Marine Sanctuaries Act (NMSA) provides jurisdictional authority. The NMSA prohibits destroying, causing the loss of, or injuring any sanctuary resource managed under the statute or regulations for that sanctuary. Thus, 

during an oil spill or any other emergency response incident, NOAA’s National Marine Sanctuary Program has responsibility under the NMSA and the National ConVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
23 

tingency Plan for addressing threats and injuries to Sanctuary resources. Possible 

response roles for the Program include participating: 

• As a jurisdictional authority providing resources in direct support of response 

operations; 

• As a trustee agency assisting in response decisions in order to reduce the environmental consequences of the spill and response actions; and 

• As a trustee participating in NRDA activities. 

Natural resource trustees typically work together as a coordinated group, often 

with representatives of the responsible party in a cooperative process. NOAA scientists and economists work with other Federal and state trustees and responsible 

parties to ensure that coastal and marine resources injured by oil spills are restored. 

NOAA and other natural resource trustees are responsible for two types of restoration: primary and compensatory. To fulfill these responsibilities, they pursue 

restoration projects that satisfy the OPA goal of restoring natural resources and 

services to pre-incident conditions (primary restoration) and compensating the public for interim losses resulting from the injury (compensatory restoration). 

NOAA scientists and economists provide the technical foundation for natural resource damage assessments and work with other trustees and responsible parties 

to restore resources injured by oil spills. To accomplish this effort NOAA experts collect data, conduct studies, and perform analyses needed to determine whether and 

to what degree coastal resources have sustained injury from oil spills. NOAA experts determine how best to restore injured resources and to ascertain the most appropriate restoration projects to compensate the public for associated lost services. 

NOAA has long been interested in looking at alternative ways to expedite restoration and cut process costs for natural resource damage assessment. One alternative 

is a cooperative assessment in which the responsible party plays a major role with 

the natural resource trustees. Based on NOAA’s successful experiences in cooperative assessments, NOAA is promoting this approach through national and regional 

dialogues. The intent is to expedite restoration, encourage innovative approaches, 

strengthen partnerships, and provide meaningful public involvement. Cooperative 

assessments offer industry the opportunity for a greater role and more control over 

the timing of restoration actions without undermining the natural resource trustee 

responsibilities. This approach also reduces damage assessment costs and the risk 

and costs associated with litigation. 

NOAA’s Oil Spill Research Role 

Even though the number of large spills from vessels has decreased over the last 

decade, when a spill occurs, we still want to mount the best response that science 

and technology can provide. Oil spill research and development is critical to improving the effectiveness of oil spill preparedness, response, and restoration. 

NOAA’s oil spill research is conducted through NOAA’s partnership with the 

Coastal Response Research Center (CRRC) at the University of New Hampshire, 

which was created in 2004. This partnership combines the strength of NOAA’s spill 

response staff and the University of New Hampshire’s research abilities and academic affiliations, and stimulates innovation in spill preparedness, response and 

damage assessment. In 2005, NOAA and CRRC supported a report published by the 

National Academy of Sciences entitled Oil Spill Dispersants: Efficacy and Effects. 

Since then NOAA, through CRRC, has funded studies to improve decision-making 

capabilities for dispersant use, and has galvanized the national and international 

spill communities to collaborate on dispersant research to minimize duplication of 

efforts and maximize resources. NOAA and CRRC are working to improve predictive 

and response capabilities for oil spills in cold-water environments through national 

and international collaborations. Additionally, NOAA and CRRC continue to sponsor 

workshops to address pressing issues in oil spill response, including the use of 

dispersants, submerged oil, human dimensions of spills, habitat equivalency analysis metrics, and integrated modeling. NOAA and CRRC work with partner agencies 

and industry to examine the benefits/costs with in situ burning in coastal marshes, 

and communicate how to use the technology to minimize further injury to resources. 

NOAA also works with the U.S. Coast Guard and other members of the Regional 

Response Teams during Ecological Risk Assessments, where multiple stakeholders 

analyze environmental tradeoffs with the range of response options for spill events 

within a region. This information is then included into contingency plans, and informs research and technology agendas. 

In the past several years NOAA’s oil spill research has focused on improvements 

to spill modeling that are essential to predicting where oil will go in the environment; exposure and effects of the released oil on sensitive and economically-important species; methods to improve environmental recovery and restoration; and the 

24 

human dimensions of spills (e.g., social issues, community effects, risk communication methods, valuation of natural resources, etc.) that affect decision-making. 

Examples of Response, Restoration, and Research at Work 

M/V SELENDANG AYU 

On December 7–8, 2004, the cargo vessel M/V SELENDANG AYU lost power, ran 

aground and broke in half on the shore of Unalaska Island, Alaska, losing her 

60,000 ton cargo of soybeans and spilling approximately 335,000 gallons of fuel oil. 

During the initial response, NOAA participated in aerial observations and mapping 

of floating and beached oil, as well as provided on-scene weather information, including the establishment of an emergency remote weather station and the provision of a dedicated on-scene meteorologist. To give an example of the difficult nature 

of the work involved, a heavy-lift helicopter was used to remove 140,000 gallons of 

fuel remaining on the wreck by transporting seventy, 2,000-gallon fuel canisters, 

one at a time, through the mountains, 25 miles to Dutch Harbor. Without accurate, 

up to date, spot-specific forecasts, it would not have been possible to safely conduct 

this complicated operation in such an extreme climate. 

The SSC provided input on environmental issues to the Unified Command, including technical matters related to potential dispersant use. The SSC and Scientific 

Support Team reviewed satellite data and remote sensing information and assisted 

the USCG in prioritizing search areas for the flight recorder from a downed helicopter. NOAA participated in shoreline and aerial surveys and helped prepare a 

comprehensive map of shoreline contamination. NOAA also worked with the USCG, 

the Department of the Interior, and the State of Alaska to monitor cleanup operations and determine the potential trade-offs in using one cleanup technique versus 

another. 

The Port of Dutch Harbor on Unalaska Island is the largest fishing port in the 

United States and the largest Alaskan Native subsistence community in the Aleutians. NOAA, U.S. Fish and Wildlife Service, and the State of Alaska worked with 

the local community to address subsistence and seafood safety concerns. Any real 

or perceived contamination of fisheries products with oil had the potential to disrupt 

both the local community and worldwide markets. With a combination of trajectory 

analysis and experience from other large spills, NOAA was able to provide valuable 

assistance to the Seafood Safety Task Force. 

NOAA continues to work with the other natural resource trustees (U.S. Fish and 

Wildlife Service and the State of Alaska) and the responsible party to conduct a natural resource damage assessment. The parties are assessing injury to natural resources and beginning to evaluate restoration alternatives. Public meetings already 

have been held to solicit local input on potential restoration alternatives, and NOAA 

is committed to providing the public with up to date information and meaningful 

opportunities for review and comment during the damage assessment and restoration planning process. 

M/V KUROSHIMA 

On November 26, 1997, the M/V KUROSHIMA, a 370-foot refrigerated cargo vessel owned by Kuroshima Shipping, S.A., broke away from its anchorage in Summer 

Bay on Unalaska Island, near Dutch Harbor, Alaska. While the vessel was attempting to move to a safer anchorage, winds reported to be in excess of 100 knots blew 

the freighter into Second Priest Rock, damaging several of the vessel’s fuel tanks. 

The vessel subsequently ran aground on the shore of Summer Bay. Two crewmen 

were killed in the incident and approximately 39,000 gallons of heavy fuel oil were 

spilled. 

The SSC provided input to the Unified Command as well as technical support in 

identifying the extent of the oiled areas. NOAA also provided shoreline mapping, 

trajectory and overflight information. NOAA led a multi-agency shoreline cleanup 

assessment team to survey the impacted areas and prepare detailed cleanup instructions. Although the response was curtailed several times due to poor weather 

conditions, the cleanup was officially completed in July 1998. 

SS CAPE MOHICAN 

On October 28, 1996, the military reserve vessel SS CAPE MOHICAN spilled an 

estimated 96,000 gallons of intermediate fuel oil (IFO 180) into a dry dock structure. 

Approximately 40,000 gallons of fuel escaped into the San Francisco Bay at Pier 70. 

The spill occurred during routine maintenance when an opened valve discharged 

stored fuel while oil was being transferred from a stabilization tank. The oil affected 

many sensitive and highly valued natural resources including the Gulf of the 

Farallones and Monterey Bay National Marine Sanctuaries, as well as historical 

parks and sites, beaches, and wetlands, and migratory birds under Department of 

25 

the Interior trusteeship. The spill resulted in physical fouling of artificial structures 

(e.g., pier pilings, rip rap, and seawalls), sand and gravel beaches, rocky intertidal 

habitat, kelp beds, mudflats, and wetlands. The spill also caused closures of recreation areas and oiling of marinas and vessels, including historic ships. 

The SSC and NOAA Scientific Support Team provided technical support including 

trajectory and mapping information, resources at risk assessments, overflight observations and shoreline assessments. NOAA worked with the Department of the Interior and the State of California to develop a restoration plan addressing five resource categories impacted by the spill: birds, fisheries and water quality, wetland 

habitat, sandy shoreline and rocky intertidal habitats, and lost and diminished 

human use. 

Conclusion 

Thank you for the opportunity to discuss with you NOAA’s important role in oil 

spill preparedness, response, and restoration. NOAA’s expertise is critical to prevent 

further harm, restore adverse effects on natural resources, and aid planning and response decision-making associated with oil spills. I am happy to answer any questions that you may have. 

Senator CANTWELL. Thank you, Ms. Glackin. Ms. Fleming? 

Thank you for being here. 

STATEMENT OF SUSAN A. FLEMING, DIRECTOR, 

PHYSICAL INFRASTRUCTURE ISSUES, 

U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Ms. FLEMING. Thank you. Madam Chair, Ranking Member 

Snowe, and members of the Subcommittee, thank you for the opportunity to discuss the cost of major oil spills. As the recent accident in the San Francisco Bay illustrates, the potential for oil spills 

exists daily across coastal and inland waters of the United States. 

This accident also shows that the potential extends well beyond 

vessels involved in the petroleum industry. Cargo, fishing, and 

other types of vessels also carry substantial fuel reserves. Accidents 

can release this fuel and create significant damage. Spills can be 

expensive, with considerable costs to the Federal Government and 

the private sector. 

My testimony today has two parts: The number of major oil spills 

since 1990 and the costs; and second, the factors that affect major 

oil spill costs. First, we estimate that since 1990, there have been 

51 oil spills that have had removal costs and damage claims totaling at least a million dollars. Responsible parties and the Federal 

Oil Spill Liability Trust Fund have spent between $860 million and 

$1.1 billion to clean up these spills and compensate affected parties. Responsible parties paid about 75 percent of these costs; the 

fund has paid the remainder. Since removal costs and damage 

claims may stretch out over many years, the cost of these spills 

could rise. 

I’ll now go into a little more detail on the 51 spills. These spills, 

which constitute about 2 percent of all vessel spills since 1990, vary 

greatly from year to year and number in costs, and show no 

discernable trends in frequency, size, or type of vessel. They also 

occurred in a variety of locations, on the Atlantic, Gulf, and Pacific 

coasts, and in open coastal waters, and more confined waterways. 

Moving on to my second point, there are three main factors that 

affect the cost of a spill, according to industry experts, agency officials, and the studies we reviewed. 

The first factor is the spill’s location. Spills that occur in remote 

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1 As of December 4, 2007, about 20,000 gallons of oil had been recovered. 

2 Responsible parties are liable without limit, however, if the oil discharge is the result of 

gross negligence, or a violation of Federal operation, safety, and construction regulations. 

sponders and equipment. Similarly, a spill that occurs close to 

shore, rather than further out at sea, can become more expensive 

because it may involve the use of manual labor to remove oil from 

sensitive shoreline habitats. 

The second factor affecting cost is the time of year the spill occurs. A spill at one time of year might be more costly than a spill 

in the same place, but at a different time of year. For example, a 

spill occurring during tourist or fishing season might produce substantial compensation claims, while the same spill at another time 

of year might not. 

The third factor affecting costs is the type of oil spilled. Fuels, 

like gasoline, may dissipate quickly, but if they do not, they are extremely toxic to fish and plants. Crude oil is less toxic, but it 

doesn’t dissipate quickly, and harms wildlife if it coats their bodies 

or if they ingest it, and it’s much harder to clean up. No single factor clearly predicts a spill’s cost. The 51 major spills we identified 

occurred in many different types of locations, across all seasons, 

and with all major types of oil. In each case, the three factors came 

together in unique ways to affect the spill’s overall cost. Although 

the costs of the San Francisco spill are not fully known at this 

point, location and oil type will again likely have an impact. 

In conclusion, major oil spills are rare, but the risk of such spills 

exists daily. Further, spills are expensive, with significant cost to 

the Federal Government, the private sector, the environment, the 

economy, and the public at large. It is therefore critical that we do 

not become complacent in our preparedness efforts. Madam Chair, 

this concludes my statement. I will be pleased to answer any questions you, or members of the Subcommittee might have. 

[The prepared statement of Ms. Fleming follows:] 

PREPARED STATEMENT OF SUSAN A. FLEMING, DIRECTOR, PHYSICAL INFRASTRUCTURE

ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Madam Chair and Members of the Subcommittee: 

We appreciate the opportunity to be here today to discuss the costs of major oil 

spills. As the recent accident in San Francisco Bay illustrates, the potential for an 

oil spill exists daily across coastal and inland waters of the United States. Specifically, on November 7, 2007, a cargo ship leaving the Port of Oakland struck the San 

Francisco-Oakland Bay Bridge, tearing the hull of the ship. As a result, over 50,000 

gallons of heavy oil spilled into the bay.1 The total cost of cleaning up the spill, as 

well as the damage to marine wildlife and fisheries is still undetermined. As this 

spill also illustrates, the potential for costly spills is present for vessels other than 

tankers and tank barges involved in the petroleum industry. Cargo, fishing, and 

other types of vessels also carry substantial fuel reserves and accidents can release 

this fuel and create substantial damage. Spills can be expensive, with considerable 

costs to the Federal Government and the private sector. 

The framework for addressing and paying for maritime oil spills is identified in 

the Oil Pollution Act of 1990 (OPA), which was enacted after the EXXON VALDEZ 

spill. OPA created a ‘‘polluter pays’’ system that places the primary burden of liability and the costs of oil spills on the vessel owner or operator who was responsible 

for the spill—that is, the responsible party. However, there are financial limitations 

on that liability. Under this system, the responsible party assumes, up to a specified 

limit, the burden of paying for spill costs—which can include both removal costs 

(cleaning up the spill) and damage claims (restoring the environment and payment 

of compensation to parties that were economically harmed by the spill). Above the 

specified limit, the responsible party is no longer financially liable.2 To pay costs 

27 

3The National Oil and Hazardous Substances Pollution Contingency Plan states that any oil 

discharge that poses a substantial threat to public health or welfare of the United States or the 

environment or results in significant public concern shall be classified as a major spill. For the 

purposes of our work, however, we defined major spills as spills with total removal costs and 

damage claims that exceed $1 million. 4GAO, Maritime Transportation: Major Oil Spills Occur Infrequently, but Risks to the Federal 

Oil Spill Fund Remain, GAO–07–1085 (Washington, D.C.: Sept. 7, 2007). The Coast Guard and 

Maritime Transportation Act of 2006 directed us to conduct an assessment of the cost of response activities and claims related to oil spills from vessels that have occurred since January 

1, 1990, for which the total costs and claims paid was at least $1 million per spill. The mandate 

required that the report summarize the costs and claims for oil spills that have occurred since 

January 1, 1990, that total at least $1 million per spill, and the source, if known, of each spill 

for each year. 5 Environmental Research Consulting is a private consulting firm that specializes in data 

analysis, environmental risk assessment, cost analyses, expert witness research and testimony, 

and development of comprehensive databases on oil and chemical spills in service to regulatory 

agencies, nongovernmental organizations, and industry. 

above the limit of liability, as well as to pay costs when a responsible party does 

not pay or cannot be identified, OPA authorized the Oil Spill Liability Trust Fund 

(Fund), which is financed primarily from a per-barrel tax on petroleum products either produced in the United States or imported from other countries. The Fund is 

administered by the National Pollution Funds Center (NPFC) within the U.S. Coast 

Guard. The balance in the Fund—about $600 million at the end of Fiscal Year 

2006—is well below its peak of $1.2 billion in 2000. The decline in the Fund’s balance primarily reflects an expiration of the barrel tax on petroleum in 1994. The 

tax was not reinstated until 2005. 

While this system is well understood, the costs involved in responding to oil spills 

are less clear. Costs paid from the Fund are well documented, but the party responsible for the spill is not required to report the costs it incurs. As a result, privatesector and total costs for cleaning up spills and paying damages are largely unknown to the public. The lack of information about the cost of spills, the declining 

Fund balance, and significant claims made on the Fund—for spills in which the removal costs and damage claims have exceeded established OPA liability limits— 

have all raised concerns about the Fund’s long-term viability. 

Although we have not assessed the November 2007 San Francisco oil spill in 

depth, we have done considerable work looking at the cost of major spills in recent 

years and the factors that contribute to making spills particularly expensive to clean 

up and mitigate. My remarks today are intended to provide a context for looking 

at the Nation’s approach to paying the costs of such spills. Specifically, my testimony today focuses on (1) the number of major oil spills—i.e., spills for which the total costs and claims paid was at least $1 million—from 1990 to 2006 and the total 

costs of these spills, (2) the factors that affect major oil spill costs, and (3) the implications of major oil spill costs for the Oil Spill Liability Trust Fund.3 My comments 

are based primarily on our September 2007 report on oil spill costs, which was 

issued to the Senate Committee on Commerce, Science, and Transportation and the 

House Committee on Transportation and Infrastructure.4 In preparing our September report, we analyzed oil spill removal cost and claims data from NPFC, the 

National Oceanic and Atmospheric Administration’s (NOAA) Damage Assessment, 

Remediation, and Restoration Program, and the Department of the Interior’s (DOI) 

Natural Resource Damage Assessment and Restoration Program and the U.S. Fish 

and Wildlife Service (FWS). We also analyzed cost data obtained from vessel insurers and through contract with Environmental Research Consulting.5 We interviewed 

NPFC, NOAA, and state officials responsible for oil spill response, as well as industry experts and representatives from key industry associations and a vessel owner. 

In addition, we selected five oil spills on the basis of the spill’s location, oil type, 

and spill volume for an in-depth review. During this review, we interviewed NPFC 

officials involved in spill response for all five spills, as well as representatives of private sector companies involved in the spill and spill response; and we conducted a 

file review of NPFC records of the Federal oil spill removal activities and costs associated with spill cleanup. We also reviewed documentation from the NPFC regarding the Fund balance and vessels’ limits of liability. Because private-sector and total 

costs for cleaning up spills and paying damages are not centrally tracked and maintained, we obtained the best available cost data from a variety of sources, as previously described. We then combined the information that we collected from these 

various sources to develop cost estimates for the oil spills. However, because the cost 

data are somewhat imprecise and the data we collected vary somewhat by source, 

we present the cost estimates in ranges. The lower and higher bounds of the range 

represent the low and high end of cost information we obtained. Based on reviews 

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28 

6 Another potential factor is the size of the spill. Although a larger spill will require an extensive and expensive cleanup effort, officials reported that compared with the factors presented 

here, spill volume is less important to the costs of oil spill response. 7OPA has required since 1990 that the President—and through several delegations to the Secretaries of Transportation and Homeland Security and a redelegation to the Coast Guard in 

2005—adjust liability limits at least every 3 years to account for significant increases in inflation. However, the Executive Branch has never made such adjustments. 

ness, we determined that the data were sufficiently reliable for the purposes of our 

report. We also conducted additional research and interviewed NPFC officials to update our September 2007 report’s findings and to gather information on the recent 

oil spill in San Francisco Bay. We conducted this work in December 2007 in accordance with generally accepted government auditing standards. 

Summary 

We estimate that from 1990 to 2006, 51 oil spills have involved removal costs and damage claims totaling at least $1 million. Collectively, from public and nonpublic 

sources, we estimate that responsible parties and the Fund have paid between approximately $860 million and $1.1 billion to clean up these spills and compensate 

affected parties. Responsible parties paid between about 72 to 78 percent of these 

costs; the Fund has paid the remainder, or $240 million. The overall cost for the 

51 spills we identified could also increase over time because the claims adjudication 

processes can take many years to resolve. The 51 spills we identified, which constitute about 2 percent of all vessel spills from 1990 to 2006, varied greatly from 

year to year in number and cost and showed no discernible trends in frequency or 

size. All vessel types were involved with the 51 major spills we identified—with 

cargo/freight vessels and tank barges involved with 30 of the 51 spills. 

Three main factors affect the costs of a spill, according to industry experts and 

agency officials and the studies we reviewed: the spill’s location, the time of year 

it occurs, and the type of oil spilled.6 A remote location, for example, can increase 

the cost of a spill because of the additional expense involved in mounting a remote 

response. Similarly, a spill that occurs close to shore rather than further out at sea 

can become more expensive because it may involve the use of manual labor to remove oil from sensitive shoreline habitat. Time also has situation-specific effects, in 

that a spill that occurs at a particular time of year might involve a much greater 

cost than a spill occurring in the same place but at a different time of year. For 

example, a spill occurring during fishing or tourist season might carry additional 

economic damage, or a spill occurring during a typically stormy season might prove 

more expensive because it is more difficult to clean up than one occurring during 

a season with generally calmer weather. The specific type of oil affects costs because 

the type of oil can affect the amount of cleanup needed and the amount of natural 

resource damage incurred. Lighter oils such as gasoline or diesel fuels dissipate and 

evaporate quickly—requiring minimal cleanup—but are highly toxic and create severe environmental impacts. Heavier oils such as crude oil do not evaporate, and 

therefore may require intensive structural and shoreline cleanup; and while they 

are less toxic than light oils, heavy oils can harm waterfowl and fur-bearing mammals through coating and ingestion. Each spill’s cost reflects the particular mix of 

these factors, and no factor is clearly predictive of the outcome. The 51 major spills 

we identified, for example, occurred on all U.S. coasts, across all seasons, and with 

all major types of oil; but each spill’s particular location, time, or product contributed to making it expensive. Although the total costs of the San Francisco spill are 

unknown, some of the same key factors such as location and oil type will likely have 

an impact on the costs of the spill. 

To date, the Fund has been able to cover costs that responsible parties have not 

paid, but risks remain. In particular, the Fund is at risk from claims resulting from 

spills that significantly exceed responsible parties’ liability limits. The effect of such 

spills can be seen among the 51 major oil spills we identified: 10 of them exceeded 

the limit of liability, resulting in claims of about $252 million on the Fund. In the 

Coast Guard and Maritime Transportation Act of 2006, the Congress increased 

these liability limits, but for two main reasons, additional attention to the limits appears warranted. First, the liability limits for certain vessel types may be disproportionately low compared with their historic spill cost. For example, of the 51 major 

spills since 1990, 15 resulted from tank barges. The average cost for these 15 tank 

barge spills was about $23 million—more than double the average new liability limit 

($10.3 million) for these vessels. The Coast Guard is responsible for adjusting limits 

of liability at least every 3 years for significant increases in inflation and for making 

recommendations to Congress on whether adjustments to limits are necessary to 

help protect the Fund.7 In its January 2007 report examining oil spills that exceeded the limits of liability, the Coast Guard had similar findings on the adequacy of 

29 

8OPA applies to oil discharged from vessels or facilities into navigable waters of the United 

States and adjoining shorelines. OPA also covers substantial threats of discharge, even if an actual discharge does not occur. 9When responsible parties’ costs exceed their limit of liability and the limit is upheld—because there was no gross negligence or violations of Federal regulations by the vessel owner or 

operator—the responsible party is entitled to file a claim on the Fund to be reimbursed for costs 

in excess of the limit. NPFC reviews the claim to determine which costs are OPA-compensable 

and the responsible party is reimbursed from the Fund. 10Title VI of the Coast Guard and Maritime Transportation Act of 2006. Public Law 109–241, 

§ 603(c)(3). 

11 33 C.F.R. § 138. The U.S. Exclusive Economic Zone extends 200 nautical miles offshore. 

some of the new limits. However, the Coast Guard did not make explicit recommendations to Congress on how the limits should be adjusted. Second, although 

OPA has required since 1990 that liability limits be adjusted every 3 years to account for significant increases in inflation, such adjustments have never been made. 

If such adjustments had been made between 1990 and 2006, claims against the fund 

for the 51 major spills would have been reduced by 16 percent, which could have 

saved the Fund $39 million. The Coast Guard, which has been delegated the authority to adjust limits for significant increases in inflation, has not indicated whether 

it will exercise its authority to adjust liability limits in the future. Aside from issues 

related to limits of liability, the Fund faces other potential drains on its resources, 

including ongoing claims from existing spills, claims related to already-sunken vessels that may begin to leak oil, and the threat of a catastrophic spill such as occurred with the EXXON VALDEZ in 1989. 

In our September 2007 report, we recommended that the Commandant of the 

Coast Guard (1) determine whether and how liability limits should be changed, by 

vessel type, and make recommendations about these changes to the Congress and 

(2) adjust the limits of liability for vessels every 3 years to reflect changes in inflation, as appropriate. The Department of Homeland Security (DHS), including the 

Coast Guard, generally agreed with the report’s contents and agreed with the recommendations. To date, the Commandant of the Coast Guard has not implemented 

these recommendations. 

Background 

With more than 100,000 commercial vessels navigating U.S. waters and 12.2 million barrels of oil being imported into the United States each day, some oil spills 

in domestic waters are inevitable. Fortunately, however, spills are relatively infrequent and are decreasing. While oil transport and maritime traffic have continued 

to increase, the total number of reported spills has generally declined each year 

since 1990. 

OPA places the primary burden of liability and the costs of oil spills on the vessel 

owner and operator who were responsible for the spill.8 This ‘‘polluter pays’’ system 

provides a deterrent for vessel owners and operators who spill oil by requiring that 

they assume the burden of spill response, natural resource restoration, and compensation to those damaged by the spill, up to a specified limit of liability—which 

is the amount above which responsible parties are no longer financially liable under 

certain conditions. (See Fig. 1 for the limits of liability by vessel type.) For example, 

if a vessel’s limit of liability is $10 million and a spill resulted in $12 million in 

costs, the responsible party only has to pay up to $10 million—the Fund will pay 

for the remaining $2 million.9 The Coast Guard is responsible for adjusting limits 

for significant increases in inflation and for making recommendations to Congress 

on whether other adjustments are necessary to help protect the Fund.10 OPA also 

requires that vessel owners and operators must demonstrate their ability to pay for 

oil spill response up to their limit of liability. Specifically, by regulation, with few 

exceptions, owners and operators of vessels over 300 gross tons and any vessels that 

transship or transfer oil in the Exclusive Economic Zone are required to have a certificate of financial responsibility that demonstrates their ability to pay for oil spill 

response up to their limit of liability.11

30 

12The prior Federal laws regarding oil pollution included the Federal Water Pollution Control 

Act, the Deepwater Port Act, the Trans-Alaska Pipeline System Authorization Act, and the 

Outer Continental Shelf Lands Act Amendments of 1978. Congress created the Fund in 1986 

but did not authorize collection of revenue or use of the money until it passed OPA in 1990. 13The tax expired in December 1994. Besides the barrel tax, the Fund also receives revenue 

in the form of interest on the Fund’s principal and fines and penalties. 14 Recent related GAO products include GAO, U.S. Coast Guard National Pollution Funds 

Center: Improvements Are Needed in Internal Control Over Disbursements, GAO–04–340R 

(Washington, D.C.: Jan. 13, 2004) and GAO, U.S. Coast Guard National Pollution Funds Center: 

Claims Payment Process Was Functioning Effectively, but Additional Controls Are Needed to Reduce the Risk of Improper Payments, GAO–04–114R (Washington, D.C.: Oct. 3, 2003). 15The Energy Policy Act of 2005. Public Law 109–58 § 1361. The barrel tax is scheduled to 

be in place until 2014. 

Source: GAO. 

OPA consolidated the liability and compensation provisions of four prior Federal 

oil pollution initiatives and their respective trust funds into the Oil Spill Liability 

Trust Fund and authorized the collection of revenue and the use of the money, with 

certain limitations, with regard to expenditures.12 The Fund’s balance has generally 

declined from 1995 through 2006, and since Fiscal Year 2003, its balance has been 

less than the authorized limit on Federal expenditures for the response to a single 

spill, which is currently set at $1 billion (see Fig. 2). The balance has declined, in 

part, because the Fund’s main source of revenue—a $0.05 per barrel tax on U.S. 

produced and imported oil—was not collected for most of the time between 1993 and 

2006.13 As a result, the Fund balance was $604.4 million at the end of Fiscal Year 

2006.14 The Energy Policy Act of 2005 reinstated the barrel tax beginning in April 

2006.15 With the barrel tax once again in place, NPFC anticipates that the Fund 

will be able to cover potential noncatastrophic liabilities. 

Source: GAO analysis of NPFC data. 

Note: The Fund balance increase in 2000 was largely due to a transfer of $181.8 million from 

the Trans-Alaska Pipeline Liability Fund. 


1218gao.eps 1218gao1.eps
31 

16OPA authorizes the United States, states, and Indian Tribes to act on behalf of the public 

as natural resource trustees for natural resources under their respective trusteeship. Trustees 

often have information and technical expertise about the biological effects of pollution, as well 

as the location of sensitive species and habitats that can assist the Federal On-Scene Coordinator in characterizing the nature and extent of site-related contamination and impacts. Federal 

Trustees include Commerce, DOI, the Departments of Agriculture, Defense, Energy, and other 

agencies authorized to manage or protect natural resources. 17Our analysis excluded the spills with limit of liability claims. 18The Incident Command System (ICS) is a standardized response management system that 

is part of the National Interagency Incident Management System. The ICS is organizationally 

flexible so that it can expand and contract to accommodate spill responses of various sizes. The 

ICS typically consists of four sections: operations, planning, logistics, and finance/administration. 19We established the universe of major oil spills from 1990 to 2006, based on available public 

and private sector data in consultation with NPFC, Environmental Research Consulting, and 

other industry experts. Additionally, we gathered removal costs and damage claims data from 

Federal agencies involved in spill response, claims payments, and conducting natural resource 

damage assessments (Coast Guard, NOAA, DOI, and FWS); and to the best of our ability, we 

gathered private-sector cost data from vessels insurers, and in contract with Environmental Research Consulting. 

OPA also defines the costs for which responsible parties are liable and for which 

the Fund is made available for compensation in the event that the responsible party 

does not pay or is not identified. These costs, or ‘‘OPA compensable’’ costs, are of 

two main types: 

• Removal costs: Removal costs are incurred by the Federal Government or any 

other entity taking approved action to respond to, contain, and clean up the 

spill. For example, removal costs include the equipment used in the response— 

skimmers to pull oil from the water, booms to contain the oil, planes for aerial 

observation—as well as salaries and travel and lodging costs for responders. 

• Damages caused by the oil spill: OPA-compensable damages cover a wide range 

of both actual and potential adverse impacts from an oil spill, for which a claim 

may be made to either the responsible party or the Fund. Claims include natural resource damage claims filed by trustees, claims for uncompensated removal costs and third-party damage claims for lost or damaged property and 

lost profits, among other things.16

The Fund also covers costs when responsible parties cannot be located or do not 

pay their liabilities. NPFC encounters cases where the source of the spill, and therefore the responsible party is unknown, or where the responsible party does not have 

the ability to pay. In other cases, since the cost recovery can take a period of years, 

the responsible party may become bankrupt or dissolved. Based on our analysis of 

NPFC records, responsible parties have reimbursed the majority—about 65 percent—of the Fund’s costs for the 51 spills.17

Response to large oil spills is typically a cooperative effort between the public and 

private sector, and there are numerous players who participate in responding to and 

paying for oil spills. To manage the response effort, the responsible party, the Coast 

Guard, EPA, and the pertinent state and local agencies form the unified command, 

which implements and manages the spill response.18 Appendix I contains additional 

information on the parties involved in spill response. 

Oil Spills Costing At Least $1 Million Occurred Infrequently Between 1990 

and 2006, but Estimated Costs Total $860 Million to $1.1 Billion 

On the basis of information we were able to assemble about responsible parties’ 

expenditures and payments from the Fund, we estimate that 51 oil spills involving 

removal costs and damage claims totaling at least $1 million have occurred from 

1990 to 2006. During this period, 3,389 oil spills occurred in which one or more parties sought reimbursement from the Fund. The 51 major spills represent less than 

2 percent of this total.19 As Figure 3 shows, there are no discernable trends in the 

number of major oil spills that occur each year. The highest number of spills was 

seven in 1996; the lowest number was zero in 2006. 

32 

20 Under regulation S–K, 17 C.F.R. 229, companies that are publicly traded must disclose any 

outstanding liabilities, including liabilities such as oil spill removal costs or claims made against 

Source: GAO analysis of NPFC data. 

Note: Because spill costs accrue over time, there may have been vessel spills in 2006 for which 

costs will exceed $1 million in the future. 

These 51 spills occurred in a variety of locations and involved a range of vessel 

types. The spills occurred on the Atlantic, Gulf, and Pacific coasts and include spills 

both in open coastal waters and inland waterways. In addition, as Figure 4 shows, 

30 of the 51 spills involved cargo/freight vessels and tank barges, 12 involved fishing 

and other types of vessels, and 9 involved tanker vessels. 

Source: GAO. 

The total cost of the 51 spills cannot be precisely determined because private-sector expenditures are not tracked,20 the various parties involved in covering these 


1218gao2.eps 1218gao3.eps
33 

the company for natural resource or third-party damages incurred. However, many vessel owners or operators are not publicly traded companies. 21 Another potential factor is the size of the spill. Although a larger spill will require an extensive and expensive cleanup effort, officials reported that compared with the factors presented 

here, spill volume is less important to the costs of oil spill response. 

costs do not categorize them uniformly, and spills costs are somewhat fluid and accrue over time. Because spill cost data are somewhat imprecise and the data we collected vary somewhat by source, the results described below will be reported in 

ranges, in which various data sources are combined together. The lower and higher 

bounds of the range represent the low and high end of cost information we obtained. 

Our analysis of these 51 spills shows their total cost was approximately $1 billion—ranging from $860 million to $1.1 billion. This amount breaks down by source 

as follows: 

• Amount paid out of the Trust Fund: Because the NPFC tracks and reports all 

Fund expenditures, the amount paid from the Fund can be reported as an actual amount, not an estimate. For these 51 spills, the Fund paid a total of 

$239.5 million. 

• Amount paid by responsible parties: Because of the lack of precise information 

about amounts paid by responsible parties and the differences in how they categorize their costs, this portion of the expenditures must be presented as an estimate. Based on the data we were able to obtain and analyze, responsible parties spent between $620 million and $840 million. Even at the low end of the 

range, this amount is nearly triple the expenditure from the Fund. 

Costs of these 51 spills varied widely by spill, and therefore, by year (see Fig. 5). 

For example, 1994 and 2004 both had four spills during the year, but the average 

cost per spill in 1994 was about $30 million, while the average cost per spill in 2004 

was between $71 million and $96 million. Just as there was no discernible trend 

in the frequency of these major spills, there is no discernible trend in their cost. Although the substantial increase in 2004 may look like an upward trend, 2004 may 

be an anomaly that reflects the unique character of two of the four spills that occurred that year. These two spills accounted for 98 percent of the year’s costs. 

Source: GAO. 

Note: Because we are reporting costs from multiple sources of data, the data were combined 

and grouped into cost ranges. In some cases, however, there was only one cost estimate. In those 

cases, we present the amount as a single cost estimate. 

Key Factors Affect Oil Spill Costs in Unique Ways 

Location, time of year, and type of oil are key factors affecting oil spill costs, according to industry experts, agency officials, and our analysis of spills.21 Officials 


1218gao4.eps
34 

also identified two other factors that may influence oil spill costs to a lesser extent— 

the effectiveness of the spill response and the level of public interest in a spill. In 

ways that are unique to each spill, these factors can affect the breadth and difficulty 

of the response effort or the extent of damage that requires mitigation. 

Location Impacts Costs in Different Ways 

The location of a spill can have a large bearing on spill costs because it will determine the extent of response needed, as well as the degree of damage to the environment and local economies. According to state officials with whom we spoke and industry experts, there are three primary characteristics of location that affect costs: 

• Remoteness: For spills that occur in remote areas, spill response can be particularly difficult in terms of mobilizing responders and equipment, and they can 

complicate the logistics of removing oil from the water—all of which can increase the costs of a spill. 

• Proximity to shore: There are also significant costs associated with spills that 

occur close to shore. Contamination of shoreline areas has a considerable bearing on the costs of spills as such spills can require manual labor to remove oil 

from the shoreline and sensitive habitats. The extent of damage is also affected 

by the specific shoreline location. 

• Proximity to economic centers: Spills that occur in the proximity of economic 

centers can also result in increased costs when local services are disrupted. A 

spill near a port can interrupt the flow of goods, necessitating an expeditious 

response in order to resume business activities, which could increase removal 

costs. Additionally, spills that disrupt economic activities can result in expensive third-party damage claims. 

Time of Year Has Impact on Local Economies and Response Efforts 

The time of year in which a spill occurs can also affect spill costs—in particular, 

impacting local economies and response efforts. According to several state and private-sector officials with whom we spoke, spills that disrupt seasonal events that 

are critical for local economies can result in considerable expenses. For example, 

spills in the spring months in areas of the country that rely on revenue from tourism may incur additional removal costs in order to expedite spill clean-up, or because there are stricter standards for clean up, which increase the costs. 

The time of year in which a spill occurs also affects response efforts because of 

possible inclement weather conditions. For example, spills that occur during the 

winter months in areas of the country that experience harsh winter conditions can 

result in higher removal costs because of the increased difficulty in mobilizing 

equipment and personnel to respond to a spill in inclement weather. According to 

a state official knowledgeable about a January 1996 spill along the coast of Rhode 

Island, extremely cold and stormy weather made response efforts very difficult. 

Type of Oil Spilled Impacts the Extent of the Response Effort and the Amount of 

Damage 

The type of oil spilled affects the degree to which oil can be cleaned up and removed, as well as the nature of the natural resource damage caused by the spill. 

The different types of oil can be grouped into four categories, each with its own set 

of impacts on spill response and the environment (see Table 1). 

35 

22 National Research Council of the National Academies, Oil in the Sea III: Inputs, Fates, and 

Effects (Washington, D.C.: 2003). 23Lightering is the process of transferring oil at sea from a very large or ultra-large carrier 

to smaller tankers that are capable of entering the port. 

Source: NOAA. 

Lighter oils such as jet fuels, gasoline, and diesel fuel dissipate and evaporate 

quickly, and as such, often require minimal cleanup. However, these oils are highly 

toxic and can severely affect the environment if conditions for evaporation are unfavorable. For instance, in 1996, a tank barge that was carrying home-heating oil 

grounded in the middle of a storm near Point Judith, Rhode Island, spilling approximately 828,000 gallons of heating oil (light oil). Although this oil might dissipate 

quickly under normal circumstances, heavy wave conditions caused an estimated 80 

percent of the release to mix with water.22 Natural resource damages alone were 

estimated at $18 million, due to the death of approximately 9 million lobsters, 27 

million clams and crabs, and over 4 million fish. 

Heavier oils, such as crude oils and other heavy petroleum products are less toxic 

than lighter oils but can also have severe environmental impacts. Medium and 

heavy oils do not evaporate much, even during favorable weather conditions, and 

can blanket structures they come in contact with—boats and fishing gear, for example—as well as the shoreline, creating severe environmental impacts to these areas, 

and harming waterfowl and fur-bearing mammals through coating and ingestion. 

Additionally, heavy oils can sink, creating prolonged contamination of the sea bed 

and tar balls that sink to the ocean floor and scatter along beaches. These spills 

can require intensive shoreline and structural clean up, which is time-consuming 

and expensive. For example, in 1995, a tanker spilled approximately 38,000 gallons 

of heavy fuel oil into the Gulf of Mexico when it collided with another tanker as 

it prepared to lighter its oil to another ship.23 Less than 1 percent (210 gallons) of 

the oil was recovered from the sea, and as a result, recovery efforts on the beaches 

of Matagorda and South Padre Islands were labor intensive, as hundreds of workers 

had to manually pick up tar balls with shovels. The total removal costs for the spill 

were estimated at $7 million. 

Other Factors Also Affect Spill Costs 

Some industry experts cited two other factors as also affecting costs incurred during a spill. 

• Effectiveness of Spill Response: Some private-sector officials stated that the effectiveness of spill response can impact the cost of cleanup. The longer it takes 

to assemble and conduct the spill response, the more likely it is that the oil will 

move with changing tides and currents and affect a greater area, which can increase costs. Some officials said the level of experience of those involved in the 

incident command is critical to the effectiveness of spill response. For example, 

they said poor decisionmaking during a spill response could lead to the deployment of unnecessary response equipment, or worse, not enough equipment to 

respond to a spill. Several officials expressed concern that Coast Guard officials 

are increasingly inexperienced in handling spill response, in part because the 


1218gao5.eps
36 

24 According to NPFC officials, the OPA limit of liability for this vessel, if the limit applies under the circumstances of the spill, is approximately $61.8 million. 25 Intermediate fuel oil is a common diesel fuel used to power marine vessels. 26 Additional spills had costs in excess of the vessel’s limit of liability, but either the limit was 

not upheld or no claim was filed by the responsible party. 27This figure is based on all spills with claims on the Fund, currently under adjudication, not 

just the 51 major spills. U.S. Coast Guard, Report on Oil Pollution Act Liability Limits, Jan. 

5, 2007. Like our report, the Coast Guard’s report was prepared in response to a provision in 

the Coast Guard and Maritime Transportation Act. 

Coast Guard’s mission has been increased to include homeland security initiatives. 

• Public interest: Several officials with whom we spoke stated that the level of 

public attention placed on a spill creates pressure on parties to take action and 

can increase costs. They also noted that the level of public interest can increase 

the standards of cleanliness expected, which may increase removal costs. 

Key Factors Will Likely Influence Cost of San Francisco Spill 

The total costs of the San Francisco spill are currently unknown. According to NPFC officials, as of December 4, 2007, the Unified Command estimated that $48 

million had been spent on the response, which includes approximately $2.2 million 

from the Fund.24 The total costs will not likely be known for a while, as it can take 

many months or years to determine the full effect of a spill on natural resources 

and to determine the costs and extent of the natural resource damage. Our work 

for this testimony did not include a thorough evaluation of the factors affecting the 

spill. However, some of the same key factors that have influenced the cost of 51 

major oil spills will likely have an effect on the costs in the San Francisco spill. For 

example, the spill occurred in an area close to shore, which caused the closing of 

as many as 22 beaches, according to Coast Guard officials. A weather-related factor 

was that the spill occurred during dense fog, which complicated efforts to determine 

how much of an area the spill covered. Moreover, the cargo ship spilled a heavy 

oil—specifically intermediate fuel oil—that requires particularly intensive shoreline 

and structural clean-up, and harmed scores of birds and marine mammals through 

coating and ingestion.25 Concerns have also been raised about the effectiveness of 

the spill response and incident command, another of the factors cited as contributing to increased costs. The National Transportation Safety Board, the Coast 

Guard, as well as other government agencies, are currently investigating the details 

of the accident and the subsequent response. 

Fund Has Been Able to Cover Costs Not Paid by Responsible Parties, but 

Risks Remain 

The Fund has been able to cover costs from major spills that responsible parties 

have not paid, but risks remain. Specifically, the current liability limits for certain 

vessel types, notably tank barges, may be disproportionately low relative to costs associated with such spills. There is also no assurance that vessel owners and operators are able to financially cover these new limits, because the Coast Guard has not 

yet issued regulations for satisfying financial responsibility requirements. In addition, although OPA calls for periodic increases in liability limits to account for significant increases in inflation, such increases have never been made. Aside from 

issues related to limits of liability, the Fund faces other potential drains on its resources, including ongoing claims from existing spills. 

Further Attention To Limits of Liability Is Needed 

The Fund has been able to cover costs from major spills that responsible parties 

have not paid, but additional focus on limits of liability is warranted. Limits of liability are the amount, under certain circumstances, above which responsible parties are no longer financially liable for spill removal costs and damage claims. If the 

responsible party’s costs exceed the limit of liability, they can make a claim against 

the Fund for the amount above the limit. Major oil spills that exceed a vessel’s limit 

of liability are infrequent, but their impact on the Fund can be significant. Ten of 

the 51 major oil spills that occurred since 1990 resulted in limit-of-liability claims 

on the Fund.26 These limit-of-liability claims totaled more than $252 million and 

ranged from less than $1 million to more than $100 million. Limit-of-liability claims 

will continue to have a pronounced effect on the Fund. NPFC estimates that 74 percent of claims under adjudication that were outstanding as of January 2007 were 

for spills in which the limit of liability had been exceeded. The amount of these 

claims under adjudication was $217 million.27

We identified three areas in which further attention to these liability limits appears warranted: the appropriateness of some current liability limits, the need to 

37 

28OPA requires that all tank vessels (greater than 5,000 gross tons) constructed (or that undergo major conversions) under contracts awarded after June 30, 1990, operating in U.S. navigable waters must have double hulls. Of the 51 major oil spills, all 24 major spills from tank 

vessels (tankers and tank barges) involved single-hull vessels. 29The average limits of liability for the spills involving tankers are much greater than the 

average liability for tank barges because the liability is based on the volume of the vessel, and 

tankers generally have much higher volumes than tank barges. 

adjust limits periodically in the future to account for significant increases in inflation, and the need for updated regulations for ensuring vessel owners and operators 

are able to financially cover their new limits. 

Some Recent Adjustments to Liability Limits Do Not Reflect the Cost of Major Spills 

The Coast Guard and Maritime Transportation Act of 2006 significantly increased 

the limits of liability from the limits set by OPA in 1990. Both laws base the liability on a specified amount per gross ton of vessel volume, with different amounts for 

vessels that transport oil commodities (tankers and tank barges) than for vessels 

that carry oil as a fuel (such as cargo vessels, fishing vessels, and passenger ships). 

The 2006 Act raised both the per-ton and the required minimum amounts, differentiating between vessels with a double hull, which helps prevent oil spills resulting 

from collision or grounding, and vessels without a double hull (see Table 2 for a 

comparison of amounts by vessel category).28 For example, the liability limit for single-hull vessels larger than 3,000 gross tons was increased from the greater of 

$1,200 per gross ton or $10 million to the greater of $3,000 per gross ton or $22 

million. 

Source: Coast Guard and Maritime Transportation Act of 2006. 

Our analysis of the 51 spills showed that the average spill cost for some types 

of vessels, particularly tank barges, was higher than the limit of liability, including 

the new limits established in 2006. As Figure 6 shows, the 15 tank barge spills and 

the 12 fishing/other vessel spills had average costs greater than both the 1990 and 

2006 limits of liability. For example, for tank barges, the average cost of $23 million 

was higher than the average limit of liability of $4.1 million under the 1990 limits 

and $10.3 million under the new 2006 limits. The nine spills involving tankers, by 

comparison, had average spill costs of $34 million, which was considerably lower 

than the average limit of liability of $77 million under the 1990 limits and $187 

million under the new 2006 limits.29 Similarly, the 15 major spills involving cargo/ 

freight vessels had an average spill cost of $67 million, which was lower than both 

the 1990 and 2006 limits of liability. 


1218gao6.eps
38 

30 U.S. Coast Guard, Report on Oil Pollution Act Liability Limits, Jan. 5, 2007. 31We did not assess the reasonableness of adopting such a standard in determining liability 

limits. 32The new limits, which increased an average of 125 percent for the 51 vessels involved in 

major oil spills, were substantially higher than the rise in inflation during the period. 33 Congress reiterated this requirement in the Coast Guard and Maritime Transportation Act 

by requiring that regulations be issued 3 years after the enactment of the act (July 11, 2006) 

and every 3 years afterward to adjust the limits of liability to reflect significant increases in 

the Consumer Price Index. 34OPA has required since 1990 that the President—and through several delegations to the 

Secretaries of Transportation and Homeland Security and a redelegation to the Coast Guard in 

2005—adjust liability limits at least every 3 years to account for significant increases in inflation. However, the Executive Branch has never made such adjustments. 

Source: GAO. 

In a January 2007 report examining spills in which the limits of liability had been 

exceeded, the Coast Guard had similar findings on the adequacy of some of the new 

limits.30 Based on an analysis of 40 spills in which costs had exceeded the responsible party’s liability limit since 1991, the Coast Guard found that the Fund’s responsibility would be greatest for spills involving tank barges, where the Fund 

would be responsible for paying 69 percent of costs. The Coast Guard concluded that 

increasing liability limits for tank barges and non tank vessels—cargo, freight, and 

fishing vessels—over 300 gross tons would positively impact the Fund balance. With 

regard to making specific adjustments, the Coast Guard said dividing costs equally 

between the responsible parties and the Fund was a reasonable standard to apply 

in determining the adequacy of liability limits.31 However, the Coast Guard did not 

recommend explicit changes to achieve either that 50/50 standard or some other division of responsibility. 

Liability Limits Have Not Been Adjusted for Inflation 

Although OPA requires adjusting liability limits to account for significant increases in inflation, no adjustments to the limits were made between 1990 and 

2006, when the Congress raised the limits in the Coast Guard and Maritime Transportation Act. During those years, the Consumer Price Index rose approximately 54 

percent.32 OPA requires the President, who has delegated responsibility to the Coast 

Guard, through the Secretary of Homeland Security, to issue regulations not less 

often than every 3 years to adjust the limits of liability to reflect significant increases in the Consumer Price Index.33 We asked Coast Guard officials why no adjustments were made between 1990 and 2006. Coast Guard officials stated that they 

could not speculate on behalf of other agencies as to why no adjustments had been 

made prior to 2005 when the delegation to the Coast Guard was made.34


1218gao7.eps
39 

35 According to the NPFC, while liable parties are not required to establish an ability to pay 

at the higher amended limits until the certificate of financial responsibility rule is published 

as required by OPA, those parties are liable for the higher amounts. 36Federal response costs for spills that resulted from Hurricanes Katrina and Rita were paid 

from the Stafford Act Disaster Relief Funds. However, private parties can seek reimbursement 

from the Fund for cleanup costs and damages in the future. According to NPFC, it is difficult 

to estimate future liabilities to the Fund as a result of Hurricanes Katrina and Rita, but as 

of July 2007, there are no claims pending in connection with these hurricanes. 37Michel, J., D. Etkin, T. Gilbert, J. Waldron, C. Blocksidge, and R. Urban; 2005. Potentially 

Polluting Wrecks in Marine Waters: An Issue Paper Prepared for the 2005 International Oil Spill 

Conference. 38The EXXON VALDEZ only discharged about 20 percent of the oil it was carrying. A catastrophic spill from a vessel could result in costs that exceed those of the EXXON VALDEZ, particularly if the entire contents of a tanker were released in a ‘worst-case discharge’ scenario. 

The decision to leave limits unchanged had financial implications for the Fund. 

Raising the liability limits to account for inflation would have the effect of reducing 

payments from the Fund, because responsible parties would be responsible for paying costs up to the higher liability limit. Not making adjustments during this 16- 

year period thus had the effect of increasing the Fund’s financial liability. Our analysis showed that if the 1990 liability limits had been adjusted for inflation during 

the 16-year period, claims against the Fund for the 51 major oil spills would have 

been reduced 16 percent, from $252 million to $213 million. This would have meant 

a savings of $39 million for the Fund. 

Certification of Compliance With the New Liability Limits Is Not in Place 

Certificates of Financial Responsibility have not been adjusted to reflect the new 

liability limits. The Coast Guard requires Certificates of Financial Responsibility, 

with few exceptions, for vessels over 300 gross tons or any vessels that are 

lightering or transshipping oil in the Exclusive Economic Zone as a legal certification that vessel owners and operators have the financial resources to fund spill 

response up to the vessel’s limit of liability. Currently, Certificate of Financial Responsibility requirements are consistent with the 1990 limits of liability and, therefore, there is no assurance that responsible parties have the financial resources to 

cover their increased liability.35 The Coast Guard plans to initiate a rulemaking to 

issue new Certificate of Financial Responsibility requirements. Coast Guard officials 

indicated their goal is to publish a Notice of Proposed Rulemaking by the end of 

2007, but they said they could not be certain they would meet this goal. 

Other Challenges Could Also Affect the Fund’s Condition 

The Fund also faces several other potential challenges that could affect its financial condition: 

• Additional claims could be made on spills that have already been cleaned up: 

Natural resource damage claims can be made on the Fund for years after a spill 

has been cleaned up. The official natural resource damage assessment conducted by trustees can take years to complete, and once it is completed, claims 

can be submitted to the NPFC for up to 3 years thereafter.36 For example, 

NPFC recently received and paid a natural resource damage claim for a spill 

in U.S. waters in the Caribbean that occurred in 1991. 

• Costs and claims may occur on spills from previously sunken vessels that discharge oil in the future: Previously sunken vessels that are submerged and in 

threat of discharging oil represent an ongoing liability to the Fund. There are 

over 1,000 sunken vessels that pose a threat of oil discharge.37 These potential 

spills are particularly problematic because in many cases there is no viable responsible party that would be liable for removal costs. Therefore, the full cost 

burden of oil spilled from these vessels would likely be paid by the Fund. 

• Spills may occur without an identifiable source and therefore, no responsible 

party: Mystery spills also have a sustained impact on the Fund, because costs 

for spills without an identifiable source—and therefore no responsible party— 

may be paid out of the Fund. Although mystery spills are a concern, the total 

cost to the Fund from mystery spills was lower than the costs of known vessel 

spills in 2001 through 2004. Additionally, none of the 51 major oil spills was 

the result of discharge from an unknown source. 

• A catastrophic spill could strain the Fund’s resources: Since the 1989 EXXON 

VALDEZ spill, which was the impetus for authorizing the Fund’s usage, no oil 

spill has come close to matching its costs.38 Cleanup costs for the EXXON 

VALDEZ alone totaled about $2.2 billion, according to the vessel’s owner. By 

comparison, the 51 major oil spills since 1990 cost, in total, between $860 milVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
40 

39The Incident Command System (ICS) is a standardized response management system that 

is part of the National Interagency Incident Management System. The ICS is organizationally 

flexible so that it can expand and contract to accommodate spill responses of various sizes. The 

ICS typically consists of four sections: operations, planning, logistics, and finance/administration. 40For a full description of the organizational structure and procedures for preparing for and 

responding to discharges of oil, see The National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300. 41 Although this report focuses on vessels, and most vessel spills are in the Coast Guard zone 

of jurisdiction, EPA is the lead on-scene coordinator in the inland zone, and Coast Guard is lead 

on-scene coordinator in the coastal zone. 

lion and $1.1 billion. The Fund is currently authorized to pay out a maximum 

of $1 billion on a single spill. Although the Fund has been successful thus far 

in covering costs that responsible parties did not pay, it may not be sufficient 

to pay such costs for a spill that has catastrophic consequences. 

Concluding Observations 

In conclusion, the ‘‘polluter pays’’ system established under OPA has been generally effective in ensuring that responsible parties pay the costs of responding to 

spills and compensating those affected. However, increases in some liability limits 

appear warranted to help ensure that the ‘‘polluter pays’’ principle is carried out in 

practice. For certain vessel types, such as tank barges, current liability limits appear disproportionately low relative to their historic spill costs. The Coast Guard 

has reached a similar conclusion but so far has stopped short of making explicit recommendations to the Congress about what the limits should be. Absent such recommendations, the Fund may continue to pay tens of millions for spills that exceed 

the responsible parties’ limits of liability. Further, to date, liability limits have not 

been regularly adjusted for significant changes in inflation. Consequently, the Fund 

was exposed to about $39 million in liability claims for the 51 major spills between 

1990 and 2006 that could have been saved if the limits had been adjusted for inflation. Without such actions, oil spills with costs exceeding the responsible parties’ 

limits of liability will continue to place the Fund at risk. Given these concerns, in 

our September 2007 report, we recommended that the Commandant of the Coast 

Guard (1) determine whether and how liability limits should be changed, by vessel 

type, and make recommendations about these changes to the Congress and (2) adjust the limits of liability for vessels every 3 years to reflect significant changes in 

inflation, as appropriate. DHS, including the Coast Guard, generally agreed with 

the report’s contents and agreed with the recommendations. To date, the Commandant of the Coast Guard has not implemented these recommendations. 

Madame Chair this concludes my statement. I would be pleased to answer any 

questions that you or other Members of the Subcommittee may have at this time. 

APPENDIX I: INFORMATION ON SPILL RESPONSE

Response to large oil spills is typically a cooperative effort between the public and 

private sector, and there are numerous players who participate in responding to and 

paying for oil spills. To manage the response effort, the responsible party, the Coast 

Guard, EPA, and the pertinent state and local agencies form the Unified Command, 

which implements and manages the spill response.39 Beyond the response operations, there are other stakeholders, such as accountants who are involved in documenting and accounting for costs, and receiving and processing claims. In addition, 

insurers and underwriters provide financial backing to the responsible party. The 

players involved in responding to and/or paying for major spill response are as follows: 40

• Government agencies: The lead Federal authority, or Federal On-Scene Coordinator, in conducting a spill response is usually the nearest Coast Guard Sector 

and is headed by the Coast Guard Captain of the Port.41 The Federal On-Scene 

Coordinator directs response efforts and coordinates all other efforts at the 

scene of an oil spill. Additionally, the on-scene coordinator issues pollution removal funding authorizations—guarantees that the agency will receive reimbursement for performing response activities—to obtain services and assistance 

from other government agencies. Other Federal agencies may also be involved. 

NOAA provides scientific support, monitoring and predicting the movement of 

oil, and conducting environmental assessments of the impacted area. The Federal, state, and tribal trustees join together to perform a natural resource damage assessment, if necessary. Within the Coast Guard, the NPFC is responsible 

for disbursing funds to the Federal On-Scene Coordinator for oil spill removal 

activities and seeking reimbursement from responsible parties for Federal costs. 

41 

42State governments can seek reimbursement directly from responsible parties or from the 

Fund. State officials in Alaska, California, New York, Rhode Island, Texas, and Washington said 

that state agencies recover almost all of their costs, either directly from responsible parties or 

from the NPFC. Officials in Texas said that the reimbursement rate for oil spill costs may be 

as high as 98 percent. 43These 13 organizations are American Steamship Owners Mutual Protection and Indemnity 

Association, Inc.; Assuranceforeningen Gard; Assuranceforeningen Skuld; the Britannia Steam 

Ship Insurance Association Limited; the Japan Ship Owners’ Mutual Protection & Indemnity 

Association; the London Steam-Ship Owners’ Mutual Insurance Association Limited; the North 

of England Protection and Indemnity Association, Limited; the Shipowners’ Mutual Protection 

and Indemnity Association (Luxembourg); the Standard Steamship Owners’ Protection and Indemnity Association (Bermuda), Limited; the Steamship Mutual Underwriting Association (Bermuda), Limited; the Swedish Club; United Kingdom Mutual Steam Ship Assurance Association 

(Bermuda), Limited; the West of England Ship Owners Mutual Insurance Association (Luxembourg). 44The National Oil and Hazardous Substances Pollution Contingency Plan is a part of a larger plan known as the National Response Plan which covers a wide variety of contingencies that 

include natural disasters, major disasters, and terrorist attacks. 45The National Strike Force was established in 1973. Originally comprised of three 17-member strike teams, today’s National Strike Force totals over 200 active duty, civilian, and reserve 

Coast Guard personnel for three distinct regions—the Atlantic, Gulf and Pacific. 

Additionally, regional governmental entities that are affected by the spill—both 

state and local—as well as tribal government officials or representatives may 

participate in the Unified Command and contribute to the response effort, 

which is paid for by the responsible party or are reimbursed by the responsible 

party or the Fund.42

• Responsible parties: OPA stipulates that both the vessel owner and operator are 

ultimately liable for the costs of the spill and the cleanup effort. The Coast 

Guard has final determination on what actions must be taken in a spill response, and the responsible party may form part of the Unified Command— 

along with the Federal on-scene coordinator and pertinent state and local agencies—to manage the spill response. The responsible parties rely on other entities to evaluate the spill effects and the resulting compensation. Responsible 

parties hire environmental and scientific support staff, specialized claims adjustors to adjudicate third-party claims, public relations firms, and legal representation to file and defend limit of liability claims on the Fund, as well as serve 

as counsel throughout the spill response. 

• Qualified individuals: Federal regulations require that vessels carrying oil as 

cargo have an incident response plan and, as part of the plan, they appoint a 

qualified individual who acts with full authority to obligate funds required to 

carry out response activities. The qualified individual acts as a liaison with the 

Federal On-Scene Coordinator and is responsible for activating the incident response plan. 

• Oil spill response organizations: These organizations are private companies that 

perform oil spill cleanup, such as skimming and disposal of oil. Many of the 

companies have contractual agreements with responsible parties and the Coast 

Guard. The agreements, called basic ordering agreements, provide for prearranged pricing, response personnel, and equipment in the event of an oil spill. 

• Insurers: Responsible parties often have multiple layers of primary and excess 

insurance coverage, which pays oil spill costs and claims. Pollution liability coverage for large vessels is often underwritten by not-for-profit mutual insurance 

organizations. The organizations act as a collective of ship owners, who insure 

themselves, at-cost. The primary insurers of commercial vessels in U.S. waters 

are the Water Quality Insurance Syndicate, an organization providing pollution 

liability insurance to over 40,000 vessels, and the International Group of P&I 

Clubs, 13 protection and indemnity organizations that provide insurance primarily to foreign-flagged large vessels.43

At the Federal level, the National Oil and Hazardous Substances Pollution Contingency Plan provides the framework for responding to oil spills.44 At the port 

level, each port has an Area Contingency Plan, developed by a committee of local 

stakeholders, that calls for a response that is coordinated with both higher-level 

Federal plans and lower-level facility and vessel plans. The Federal plans designate 

the Coast Guard as the primary agency to respond to oil spills on water. The Coast 

Guard has a National Strike Force to provide assistance to efforts by the local Coast 

Guard and other agencies.45 The Coast Guard also has an exercise program—known 

as the Spills of National Significance exercise program—to test national level response capabilities. This program is focused on exercising the entire response system at the local, regional and national level using large-scale, high probability oil 

42 

and hazardous material incidents that result from unintentional causes such as 

maritime accidents or natural disasters. The most recent program exercise, in June 

2007, tested the response and recovery to an oil and hazardous materials release 

in the wake of a large scale earthquake in the Mississippi and Ohio River valleys. 

Senator CANTWELL. Thank you. And thank you all for your testimony and the focus on this important issue. I know many of my 

colleagues will have questions, but I think what I want to do is to 

start with 5-minute rounds, and if we want to have a second round 

on this panel, we can, but we do have another panel afterwards. 

So I want to get to them as time allows and have interest. 

So we’ll just have to take a reading after that. But let’s start 

with 5-minute rounds, if we could, and I’d like to start with how 

the 1990 Act required the preparedness of Vessel Response Plans. 

And each of you mentioned that in your testimony, and the effectiveness of the response structure. All vessels that carry oil as 

cargo over 400 gross tons, that carry that fuel, must have a Vessel 

Response Plan. And these response plans are to address the potential of discharge from the vessel. 

So Congress mandated the Coast Guard to come up with the 

2004 Maritime Transportation Act with what these actual regulations should be, what is the final rule implemented into law. So 

just a yes or no answer, if you can just tell me whether you think 

it’s important that we get this done. Just a yes or no. 

Senator LAUTENBERG. Yes. 

Ms. FLEMING. Yes. 

Senator CANTWELL. OK. Admiral Allen? Will we these regulations put in place within the next 12 months? 

Admiral ALLEN. We’re putting together a regulatory work plan 

right now. As I stated in my opening statement, we did provide 

guidance to the industry, and they have submitted plans to us that 

we have reviewed, and they have been acting under those plans. 

So we are constructively meeting the intent, but the rule is not out 

there and it needs to get out there. I’m prepared to put resources 

out, and I think we’ve got a good chance to get it done in the next 

12 to 18 months, but there are—— 

Senator CANTWELL. I’m asking you for a yes or no commitment 

of whether we’ll have that done in the next year or not. In the next 

12 months. If it takes longer than 12 months—but I think what 

we’re trying to get at is we—— 

Admiral ALLEN. Oh, you certainly have my commitment. Yes, 

ma’am. Yes, ma’am. 

Senator CANTWELL. I’m asking you more yes or no, do you think 

it can be done, and are you—— 

Admiral ALLEN. It can be done in 12 months. As I say, we have 

a number of rules in the backlogs, so we can do this in 12 months. 

It will likely displace something else, but yes, it can be done. 

Senator CANTWELL. Do you think it should be done in the next 

12 months, Admiral? 

Admiral ALLEN. I would like to collaborate and talk about that, 

because I would like to get that sense from the Congress how to 

compete in priorities on the rules that we’d be required to make. 

Senator CANTWELL. I think we’re here today because we think 

it’s very important. So happy to have that collaboration, but I think 

you will hear from us that we expect it to be done soon. Let me 

43 

ask you about how many nontank vessels under law haven’t submitted a response plan—that haven’t done so. 

Admiral ALLEN. Well, any nontank vessel that is calling here is 

required to have one, so if there is not one that’s been prepared, 

it means they’re not calling the United States, ma’am. 

Senator CANTWELL. So you say there is none. 

Admiral ALLEN. None that I’m aware. 

[An appended statement from Admiral Allen on this issue follows:] 

UNITED STATES COAST GUARD

U.S. DEPARTMENT OF HOMELAND SECURITY

Washington, DC, January 14, 2008 

HON. MARIA CANTWELL, 

Chair, 

Fisheries and Coast Guard Subcommittee, 

Committee on Commerce, Science, and Transportation, 

U.S. Senate, 

Washington, DC. 

Dear Madam Chair: 

I am writing to advise you of the need to correct my testimony from the December 

18, 2007, hearing pertaining to oil spills from non-tank vessels. During the hearing, 

you questioned me about the number of non-tank vessels which have yet to submit 

response plans. I indicated that any non-tank vessel calling on a U.S. port is required to have a Non-tank Vessel Response Plan (NTVRP). I further added that vessels without such plans are not permitted to call on U.S. ports; I have since learned 

that this is incorrect. Specifically, there are instances where both U.S. and foreignflagged non-tank vessels have entered and operated in the United States without 

a Coast Guard-reviewed NTVRP. 

Absent the effect of a formal rule to implement the NTVRP required by the Coast 

Guard Maritime Transportation Act of 2004 (MTA), as amended in 2006, the fully 

enforceable requirement is the international standard required under MARPOL 

Annex I. Annex I requires that non-tank vessels over 400 gross tons have an approved Shipboard Oil Pollution Emergency Plan (SOPEP). 

The Coast Guard ensures vessels possess valid SOPEPs during Port State Control 

examinations and domestic inspections. However, these standards are not as detailed and rigorous as those required by MTA. In the case of M/V COSCO BUSAN, 

both the MTA-required NTVRP and international SOPEP requirements were met. 

I have initiated a review of the interim guidance provided to our field commanders following the passage of MTA, the effectiveness of that guidance, and a 

more accurate determination of the compliance rate. I am accountable to ensure the 

statutory NTVRP requirement is met and will take appropriate action. I am available to provide a more comprehensive brief upon your return from holiday recess. 

Thank you for your leadership on this important national issue. The Coast Guard 

is committed to protecting the environment through prevention and stands ready to 

answer any questions you may have. You can reach me through my Senate Liaison 

Office. Identical letters have been sent to Senator Snowe, Senator Stevens and Senator Inouye. 

Sincerely, 

THAD W. ALLEN, 

Admiral, 

U.S. Coast Guard, Commandant. 

Senator CANTWELL. And is the Coast Guard effectively enforcing 

the response plans? 

Admiral ALLEN. Yes. We’ve received and reviewed, and I’m going 

to give them authority to operate as nontank vessels under the Circular that was issued in 2005 to conform to the legislation, ma’am. 

Senator CANTWELL. And what kind of uniformity do you think 

there is in these response plans? 

Admiral ALLEN. Well, the guidance that was issued to the industry regarding nontank vessels is very similar to the tank vessel 

44 

plans that are already required out there, and we’re looking for 

continuity between two sets of plans. And so they’re basically mirrored on the tank vessel plans made. 

Senator CANTWELL. And so you’d be surprised if—I mean, I think 

we’re going to hear from my colleague from California, and we already heard a little from Senator Snowe on this issue of the response time in general. And I think what we’re seeing in this particular case is perhaps a lack of uniformity and the lack of oversight might have a broad array of what these response plans have 

been. 

But clearly, notifying people hours and hours later I don’t think 

is what we had in mind. But let’s say, for example, if this particular ship did not have a response plan, what would have happened? What would have transpired? 

Admiral ALLEN. In this ship, it had to have a response plan, as 

it is a requirement to enter the port, ma’am. And every time it had 

to have met the requirements of the Circular that was issued in 

2005 would have to be reviewed and accepted by the Coast Guard. 

Senator CANTWELL. Ms. Glackin and Ms. Fleming, do you have 

any—— 

Ms. GLACKIN. No. This role is primarily a Coast Guard role. We 

would consult on these things as needed. 

Senator CANTWELL. How sufficient do you think the response 

plans are today? 

Ms. GLACKIN. I’m not in a position to answer that. 

Senator CANTWELL. OK. OK, Senator Snowe, I’m going to turn 

it over to you. 

Senator SNOWE. Thank you, Madam Chair. Admiral Allen, on 

these interim plans, what percentage of the nontanker fleet does 

this represent those who have these Vessel Response Plans on file? 

Admiral ALLEN. The total population of Non-Tank Vessel Response Plans on file is about 13,000. The subset of our large ocean 

wave freight vessels, like the COSCO BUSAN, is about 8,000. 

Senator SNOWE. 8,000 out of how many total? 15,000? 

Admiral ALLEN. Thirteen—Yes, ma’am. 

Senator SNOWE. What is the reason due to the backlog on these 

regulations that you’re so far behind? 

Admiral ALLEN. The legislation required that the rule be done 

within a year. We could not get the rule done within a year, so we 

issued interim guidelines that were constructively the same—— 

Senator SNOWE. Yes. 

Admiral ALLEN.—as the Tank Vessel Response Plans that were 

required OPA 90. We’re in the process of putting together a regulatory plan to write that regulation right now. But in the interim, 

we issued guidance that was basically the same as the Tank Vessel 

Response Plans. 

Senator SNOWE. Yes. Do you have the resources to carry out 

these regulations? 

Admiral ALLEN. I don’t think we’ve got adequate resources right 

now. No, ma’am. And we can even talk about that. I’ve gone to the 

Administration, and I am getting support for more resources moving forward. 

Senator SNOWE. Do you require a budgetary increase? 

45 

Admiral ALLEN. It requires a couple of things. We can move internal resources, but you’re robbing Peter to pay Paul. We can do 

that increase in the staffs that make rules. We also need to talk 

about the priority in which rules are being made. And we’re trying 

to establish a task force to take a look at it. 

Senator SNOWE. What’s the timeline for reaching a decision in 

exactly how you’re going to proceed? 

Admiral ALLEN. Quite frankly—— 

Senator SNOWE.—at what point? 

Admiral ALLEN. I cannot conceive of coming to the hearing this 

next spring and not having a move forward on the regulatory backlog for the Coast Guard, ma’am. It’s unsatisfactory to you, but it’s 

unsatisfactory to me, as well. 

Senator SNOWE. Admiral Allen, also on the response personnel, 

I gather from following the exercise in 2004, the Coast Guard’s 

After Action Report stated that response personnel were not proficient with their equipment, and that there was a shortage of experienced personnel to fill these positions? What have you done to 

develop a response capability and to work on these deficiencies? 

Admiral ALLEN. We have a national—we call it our Prep Program. It’s a national exercise program where we issue guidelines 

every year. Our large major spill exercises for the last year have 

been met. I’ve asked for a detailed data collection to make sure 

that all of the training requirements clear down to the lower levels 

have been consistent with the guidance that was provided out 

there. And we’ll be looking at that as part of the incident review 

that we’re doing, ma’am. If there is a gap there, I will advise you. 

But for the major large significant exercises to be conducted both 

by industry and the government, we have been meeting those criteria. 

Senator SNOWE. OK. Are these drills being conducted with adequate frequency? 

Admiral ALLEN. Yes. They’re according to standard. Yes. The current standard is there should be six to eight major spill exercises 

a year. We completed seven last year. The industry is supposed to 

lead 13 to 16, and they’ve led 16, ma’am. 

Senator SNOWE. Yes. And are you going to incorporate anything 

you’ve learned from this recent spill with the COSCO BUSAN? 

Admiral ALLEN. Yes, ma’am. Most notably, if I could just summarize, and as Senator Boxer already indicated, I think things in our 

country right now, in terms of information available to the public, 

for we’re not envisioning, with OPA 90 this past—we look at NGOs, 

how to bring volunteers in, and take advantage of our more modern 

communications. 

Senator SNOWE. Yes. And Ms. Fleming mentioned the NGO report. There are various issues that have an impact on the severity 

of the spill, and the cost of the cleanup, especially around port facilities, and that’s something I mentioned in my opening statement, 

whether it’s at the Port of Portland or up near Bar Harbor and 

Acadia National Park. We do have dense fog, high winds, and that 

all adds excessively to the dangerous conditions in which these 

ships are coming into port. How is the Coast Guard addressing 

those issues? What authority do you have to regulate that traffic 

around various ports? 

46 

Admiral ALLEN. The Coast Guard has extensive authority to regulate traffic, and I would differentiate the movement of vessels in 

the port as opposed to Vessel Traffic Services for the purposes of 

this answer, as far as high winds, hurricane conditions, and so 

forth. We routinely put restrictions on port entry or port departure, 

and we have the current authority to be able to do that. 

Although, what we need to look at going forward is issues like 

if there was low visibility in a port, to move beyond the judgment 

of the pilot to be able to make that vessel movement and whether 

or not there needs to be a government role in doing that. And that 

is handled differently around the country, but most notably, the pilot’s associations make determinations on whether or not it’s safe 

to move a vessel. But we have statutory authority to intervene as 

well. 

Senator SNOWE. OK. Ms. Fleming, you mentioned several things, 

one of which, 51 spills, up to a billion dollars, which sounds like 

a lot of money for 51 oil spills. But you say in your report the Fund 

has been able to cover costs not paid by responsible parties, but 

risks remain. 

Ms. FLEMING. Yes. 

Senator SNOWE. So we’re not able to recover the costs from the 

responsible parties with respect to the cleanup? 

Ms. FLEMING. What I’ve highlighted in my statement is that the 

Coast Guard reports that as of the end of Fiscal Year 2006, the 

Fund balance was about $600 million. 

Senator SNOWE. Yes. 

Ms. FLEMING. At its peak, there was about $1.2 billion. There’s 

enough, because of the recent reinstitution of the barrel tax, to 

cover non-catastrophic spills. However, we’ve highlighted in our 

work that there are other factors that could affect the solvency of 

the Trust Fund. For instance, there are still spills out there for 

which additional costs may accrue for instance, additional natural 

resource damage claims. 

As you know, in a 1991 spill, the claims were just filed and they 

were just paid by the fund. So another thing is that previously 

sunken vessels could discharge oil. That comes into play particularly if there is no viable responsible party, because the fund would 

pay the full cost for those types of incidents. So while the fund is 

in good shape to cover non-catastrophic costs there are other factors that could affect the solvency of the fund. 

Senator SNOWE. Yes, Admiral Allen? 

Admiral ALLEN. I just wanted to add that another issue is 

whether the response exceeds the limits of liability of the responsible party. Then the fund is vulnerable at that point. That’s why 

it’s very, very important to look at limits of liability. 

Senator SNOWE. To raise them? 

Admiral ALLEN. Yes. 

Senator SNOWE. Yes, to raise them? Would you agree, Ms. Fleming? 

Ms. FLEMING. Yes. We agreed with that—it was a recommendation that we made in our September report, that for certain vessel 

types we change the liability limits to be more commensurate with 

the historic spill costs for certain vessels, such as tank barges. 

47 

Senator SNOWE. OK. Well, that’s something obviously we should 

consider then and take action on. Thank you. 

Senator CANTWELL. Thank you. Senator Lautenberg? 

Senator LAUTENBERG. OK. Admiral Allen, pursuant to the discussion that was just taking place with Senator Snowe and Ms. Fleming, what do you do where there is a billion-dollar cost allowed in 

the event of a catastrophic spill, what do you do in the case of a 

major spill that a billion dollars of Federal cleanup assistance is required, and the Trust Fund doesn’t have it? What then takes place? 

Admiral ALLEN. Well, sir, first of all, it would depend on the vessel and the limits of liability and how much the responsible party 

had to pay. I’m assuming your question is based on the fact that 

we went over the limits of liability and over what was available in 

the fund. We would have to go back and seek additional appropriations or support from Congress to source the fund. 

Senator LAUTENBERG. How does that happen in a timeline that 

requires the additional funding? 

Admiral ALLEN. We have not had to do that in the history of the 

fund. As you know, we have reinstituted the upper-barrel tax and 

the fund is increasing back up. In fact, I would just like to make 

a correction, we’re up around $943 million right now, and we’re 

bringing in about $250 million to $300 million a year based on that 

tax, and we think we’re going to stabilize at about $2 billion by 

2014. We have not faced a catastrophic incident that challenged the 

entire amount of the fund yet, sir. 

Senator LAUTENBERG. Ms. Fleming, what brought you to revisit 

the Federal liability limits to better align the polluter responsibilities over damages that they cause in a spill? 

Ms. FLEMING. We believe for certain vessel types, most notably 

tank barges, the liability limits are disproportionately low compared to historic oil spill costs. Even with the recent limits, the 

2006 limits, we did an analysis that shows both the 1990 liability 

limits for certain vessel types, as well as the 2006, stayed disproportionately low compared to what a historic oil spill costs. 

Senator LAUTENBERG. Are barges enveloped in the same structure that provide the insurance necessary, the insurance that a 

regular vessel would have? Are the barges ever put in the separate 

designations that are not really able to meet the same financial obligations that a seagoing vessel would? 

Admiral ALLEN. They’re covered and required to meet those obligations. Yes, sir. 

Senator LAUTENBERG. Admiral, it’s been a year and a half since 

the Federal liability limits have been set. When will the Coast 

Guard publish new regulations requiring shippers to prove that 

they can meet the required financial liabilities now? 

Admiral ALLEN. Well, you know limits of liability have already 

been raised, subsequent to the legislation. What we are now required to do is raise the Certificate of Financial Responsibility; in 

other words, their assurance that they can pay that up to the same 

levels. That rule is in process right now. We’re expecting to be published in 2008. 

Senator LAUTENBERG. And did the COSCO BUSAN possess your 

required proof of—— 

48 

Admiral ALLEN. They did. And as a result of the earlier legisla- tion, their limits of liability range from approximately $31 million 

to almost $61 million regarding this particular incident. 

Senator LAUTENBERG. Does it look like that’s going to be enough 

to cover the damage that resulted from this? 

Admiral ALLEN. Yes, sir. 

Senator LAUTENBERG. So it would fall—does it first fall to the 

fund or does it—— 

Admiral ALLEN. The responsible party pays, sir. 

Senator LAUTENBERG. The responsible party—— 

Admiral ALLEN. Yes, sir. 

Senator LAUTENBERG.—pays to whatever their liability is today. 

Admiral ALLEN. Yes, sir. As they move above the limits of liability, obviously, there is a conversation that has to occur. However, 

there are provisions that you can weigh the limits of liability based 

on certain circumstances, and those discussions are going on now 

with the Department of Justice. 

Senator LAUTENBERG. Are they required to meet those standards 

if they’ve got a vessel afloat? A higher level of—— 

Admiral ALLEN. Up to their limits of liability, yes, sir. 

Senator LAUTENBERG. Up to the limit of the Federal liability 

standards? 

Admiral ALLEN. Yes, sir. And we see many companies that go 

above their limit of liability, just because it’s the responsible thing 

to do. But they are captive to liability if there are certain exigencies that exist. In this case, there are reasons why you can move 

above the limits of liability based on the circumstances surrounding 

the incident itself. And quite frankly, we are discussing them now. 

Senator LAUTENBERG. Before Congress updated the Federal Oil 

Spill Liability Limits last year, the Coast Guard failed for 16 years 

to raise the limits as required by law to keep up with the CPI. 

Now, as a result, we ended up subsidizing polluters by some $39 

million. When will the Coast Guard next update these limits to 

keep up with inflation? 

Admiral ALLEN. Sir, there is not any procedure in place right 

now to add a Consumer Price Index increase to those limits, and 

that was fixed in the legislation in our committee rules. What we 

still have to do is move that over to the Certificates of Financial 

Responsibility, which is the financial assurance that they can pay, 

and that’s already being done right now and will be issued in 2008, 

sir. 

Senator LAUTENBERG. It’s been a year and a half since my law 

passed requiring the Coast Guard to create the Delaware River Oil 

Spill Advisory Commission. This Commission has still not had its 

first meeting. And the Coast Guard has not yet appointed members 

to it. What’s taking place, Admiral? 

Admiral ALLEN. Sir, the situation is that the nomination period 

closes out in January, and we need to establish a committee. 

Senator LAUTENBERG. The time runs out in January? 

Admiral ALLEN. We have asked for nominations, and the nominating period closes in January, at which point we will send the 

paperwork for the establishment of the Committee, sir. 

Senator LAUTENBERG. You’re prepared to present candidates? 

Admiral ALLEN. Yes, sir. 

49 

Senator LAUTENBERG. Thank you very much, Madam Chairman. 

Senator CANTWELL. Thank you. Senator Boxer? 

Senator BOXER. Thank you so much, Senator, again. It’s my understanding if there is gross negligence then the cap doesn’t apply. 

Is that correct? 

Admiral ALLEN. There’s a provision for that. Yes, ma’am. 

Senator BOXER. So that if—So the cap only applies if it was just 

sort of an act of God. But if it’s gross negligence, the cap doesn’t 

apply. Let me just ask our GAO person this question. My understanding is we have several issues here. One is the cap itself, and 

the second issue is that the cap is different for oil tankers versus 

cargo ships. It’s like half the amount. And it seems to me, as Senator Feinstein and I looked at this, and I’m so happy everyone is 

interested in this, because this will go over to the EPW. But if we 

can come up with—obviously, Senator Feinstein and I are certainly 

not wedded to what we did, but let me tell you what we did. 

We took the limits for the nontanker ships, put the cargo ships, 

such as this ship that crashed into the Bay Bridge, and we moved 

it up to equal the liability cap of the tankers, because now, as Senator Snowe points out, there is so much more oil being carried by 

these other type of ships. So we equalized it. And also, I guess, the 

third question is the issue of the double hulls. Right now, is there 

a different cap if you have a double hull? 

Admiral ALLEN. In establishing limits of liability, there is. 

Senator BOXER. Good. 

Admiral ALLEN. Double hulls, double size, there is different—— 

Senator BOXER. Right. 

Admiral ALLEN.—gradations, and then it’s an amount by gross 

tonnage, and we can provide—— 

Senator BOXER. OK. 

Admiral ALLEN.—a detailed—— 

Senator BOXER. Well, my understanding is it’s 3,000 per gross 

ton for a single-hulled vessel and $1,800 for a double-hulled vessel 

is what we have per gross ton. But I said in my comments, the 

issue is equalizing this. And then, the next issue is maybe we want 

to review the double hulls more as we reform this. So I think this 

is an area that we really need to deal with. Just in all honesty, I 

am very disappointed in your response to Senator Cantwell’s questions about the Vessel Response Plans. And in her prodding you, 

saying can you promise to be here, in your answer, well, it would 

have to displace other rules, so I really can’t tell you. 

Now, this law passed in 2004. We’re going into 2008. That’s 4 

years. It’s unacceptable. So could you tell me what we can do to 

help you get the resources you need, the people you need? Because 

it’s just not right. That’s not an answer we want to hear. We know 

the Coast Guard has a lot of issues being part of Homeland Security, and one of the things we worried about when the Coast Guard 

went into Homeland Security is, you know, we were afraid that 

maybe this would take second tier of your interests. 

Now, it can’t. You have to tell us what you need to do everything: 

Homeland Security and protecting our resources. Because I’ll tell 

you, if this starts to take second fiddle, and we have more of these 

issues, we look at more of these birds, and we can’t have a fishing 

season, we are looking at a very grim future indeed. So can you tell 

50 

us, from your bottom of your heart and in all honesty, how can we 

help you get to the point where you have the resources to do all 

the rulemakings that you have to do? 

Admiral ALLEN. Well, it’s more people to do legal analysis, economic analysis, regulatory analysis, and all the requirements of the 

Administrative Procedures Act and all of the policy guidance. Some 

of these require environmental impact statements. 

Senator BOXER. Yes. 

Admiral ALLEN. The hoops you have to jump through for some 

of these rules are extensive. The average time to make a rule in 

the Coast Guard right now—not just because of resources, but because of the process, because I think we have to look at the process, too—is 3.5 years. That is unsatisfactory. 

Senator BOXER. Yes. Well, could you please, in writing, just— 

we’re asking a question. If you were to have to do—if you decided 

you want to complete all your rulemakings that you’ve had to set 

aside, what would you need? Because it would help us. We want 

to be there for you. We want this to happen I can tell you. We can’t 

sit back. I mean, we pass these laws, and then colleagues, we think 

they’re going to do the rules, and they don’t do the rules because 

they don’t have the resources. It’s just wrong. And it’s not an answer. It’s not going to satisfy my people back home. So thank you 

for your candor, and I look forward to getting this. 

[The requested information follows:] 

The Coast Guard has chartered a Rulemaking Review and Reform Project (RRRP) 

to conduct a top to bottom review of our rulemaking processes and to facilitate increases in capacity. The RRRP will assess the current state of rulemaking, determine root causes of rulemaking delays and identify specific opportunities for improvement. The RRRP will deliver a complete report with recommendations and an 

implementation plan by April 2008. 

Moreover, the Consolidated Appropriations Act, 2008 (Pub. L. 110–161) provided 

the Coast Guard with 31 additional full time positions to apply toward rulemaking 

efforts. A working group within the RRRP has begun an expedited process for hiring 

these new rulemaking personnel. We expect to begin hiring personnel by April 1, 

2008 and to be near full complement by September 30, 2008. These additional resources will allow us to make significant, near-term progress in our existing rulemaking backlog. 

Senator BOXER. Now, I wanted to ask a question about bunker 

fuel, and then I’ll be done. The Coast Guard has represented the 

United States at the International Maritime Organization negotiations on bunker fuel, recommending that either lower sulfur be 

used, or technology used to retrofit existing ships. In light of the 

recent tragedy in San Francisco Bay, should the United States consider taking a stronger stand by supporting a ban on bunker fuel, 

just flat-out? 

Admiral ALLEN. We could do that, ma’am, but I’m not sure it 

would have the constructive effect, because we can only regulate 

what goes on within our economic zone in our territorial sea. Many 

ships would end up carrying two tankers of fuel, using bunker fuel 

outside the EEZ, and leaving the larger—— 

Senator BOXER. Absolutely. And guess what? If that’s what happens, that’s a huge victory for our people, because my people, who 

live around ports, and I’m sure it goes to—we have all the ships 

coming in. We do 40 percent of the exports that come through Los 

Angeles/Long Beach, and I’ve got to tell you, the people are sufVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00054 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
51 

fering. The kids who live around there, they have lower lung development. 

And if that happens, we feel that that is a first step. We would 

love to see an international agreement. But short of that, we have 

legislation that would ban the bunker fuel. But I have to just say, 

if you have to change your fuel when you get close to American waters, fine. But if you want the privilege of coming into our waters, 

then you need to step up to the plate and keep the air clean, because this bunker fuel—that’s what spilled in the bay. This is horrific. It’s terrible on the lungs, it’s terrible on the water. And so, 

sir, I think if the outcome was, yes, that we have to get them to 

change the fuel as they’re coming into our ports, then that will help 

us. 

Admiral ALLEN. Yes, ma’am. I would say that this has been done 

under MARPOL Annex VI, which involves air emissions. It would 

remove some of the bunker fuel, but there will be bunker fuel on 

the ship that it used to maneuver before it came into the country. 

Senator BOXER. I under—— 

Admiral ALLEN. I just want to be clear. 

Senator BOXER. I totally get it. That’s why we’re amending the 

Clean Air Act. That’s why our bill does that in the EPW Committee. Well, thank you. 

Senator CANTWELL. Thank you. Senator Kerry? 

Senator KERRY. Thank you, Madam Chairman. So Admiral, I 

sort of asked a question, in essence, to really summarize your familiarity with the Oil Spill Prevention Act that was passed in Massachusetts. In several other states, the Coast Guard did not challenge similar legislation. We had several oil spills back in the day, 

so why does the Coast Guard not allow Massachusetts to protect 

its own environmental interests there? 

Admiral ALLEN. Sir, I don’t think it’s a matter of that. And, in 

fact, I think on 85 and 90 percent of what’s involved here, we actually agree. The real issue is the inclusion—— 

Senator KERRY. We know what it involves if we go to court. I 

mean—— 

Admiral ALLEN. Well, these are the double hulls, sir, as you 

know. 

Senator KERRY. I know, but—well, I understand that. But that’s 

exactly what they want to require, any major ship carrying major 

amounts of oil, no matter what, double hull or not, because double 

hull, as it obviously draws more, and has as much risk in a shallow 

area if it—if somebody mis-navigates. I mean, the last spill took 

place because they went for the wrong side of the navigation buoy. 

Admiral ALLEN. Yes, sir. 

Senator KERRY. So why can’t a double hull do that? 

Admiral ALLEN. Sir, when we do a rulemaking, again, like we 

were talking about earlier, under the Administrative Procedures 

Act and the current guidelines, we have to do a regulatory analysis 

and an economic analysis, and look at the cost benefits of the solution that we’re going to provide in the rules. When you do that, the 

cost of regulating a double-hull tanker in which an investment has 

already been made has a higher degree of safety, and you work 

through this process, it drives you to different than what the state 

arrived at, then we have the issue of trying to provide a standard 

52 

set of rules across the country, so that we’re not dealing with 50 

different sets of guidelines within the Federal Government, sir. 

We’d be happy to work with you on it, sir. 

Senator KERRY. Well, I understand that—I mean, it’s not skin off 

your back if a state has a stricter requirement, as long as the ship 

that’s coming through is going to enforce it. I mean, the requirement is pretty simple. They’ve got to have a minimum staffing 

watch requirement. That’s fairly standard fare. They’ve got to have 

a tug pilot, and then, a mandatory navigational route. 

Admiral ALLEN. Yes, sir. 

Senator KERRY. I mean, what is complicated about that? 

Admiral ALLEN. Sir, there is nothing complicated about it at all, 

and it would be a higher degree of safety were we to apply this to 

double hulls. All I was saying is the analysis that a company’s rulemaking required to do leads you to an answer that says there is 

not a greater benefit to include double hulls through the regulatory 

process. And if that’s unsatisfactory, we need to look at that process, sir. 

Senator KERRY. Well, obviously, the state disagrees with you. 

Admiral ALLEN. Yes, sir. 

Senator KERRY. So in effect, the Coast Guard is, by virtue of its 

oppositional roles, trying to overrule the state’s desire to regulate 

its own waters. 

Admiral ALLEN. No, sir. I think what we’re trying to do is take 

a Federal position, and there are a lot of higher legal—— 

Senator KERRY. You’ve never taken that position in other places. 

Admiral ALLEN. Sir, the position we have taken regarding special 

areas and what the state has done, I think we have been consistent. I can provide you the background on that. 

Senator KERRY. Is that the only place where there is a double 

hulled rule of this type? 

Admiral ALLEN. I would have to go back and check, sir. I would 

be happy to respond for the record. 

Senator KERRY. Would you, please? 

Admiral ALLEN. Yes, sir. 

[The requested information follows:] 

In August 2007, The First Coast Guard District published amendments to an existing regulated navigation area that includes Buzzards Bay. The rule accomplished 

four objectives: 

(1) It requires tug escorts for single-hull tankers transiting Buzzards Bay and 

carrying 5,000 or more barrels of oil or other hazardous material. 

(2) It requires a federally licensed pilot, in addition to the crew, to be onboard 

the primary tug during the transit. 

(3) It maintains the recommended route for tankers as ‘‘recommended’’ vice 

mandatory to allow mariners maximum flexibility in the event of unusual circumstances and; 

(4) It establishes a vessel movement reporting system to better track and monitor tanker movements in the Bay. 

It is true that the Massachusetts state rule, currently being challenged by the Department of Justice in Federal court, requires tug escorts and state licensed pilots 

for double-hulled tankers, as well. During the rulemaking process, the state asked 

that the Coast Guard adopt the same rule. After careful consideration, the Coast 

Guard rejected the state’s proposal, for the following reasons: 

1. As stated in the preamble to the Final Rule, the Coast Guard believes that 

double hulls provide a sufficient margin of safety for tankers transiting Buzzards Bay. The bottom characteristics of the Bay are primarily rocky—a condiVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
53 

tion double hulls are designed to protect against. The State has repeatedly cited 

a situation in the Gulf of Mexico where a double-hulled tanker was involved in 

a spill. This situation presented a unique set of facts—a tanker struck a submerged, uncharted oil platform that sank during Hurricane Rita. These facts 

are unlikely to be repeated in Buzzards Bay. 

2. As Admiral Sullivan, the First District Commander, stated when the final 

rules were published, the Coast Guard is seeking opportunities to create economic incentives for shippers to use double hull tankers; the State’s rule, by requiring tug escorts of both single and double hull tank vessels removes that incentive. Prior to the B–120 spill in 2003, approximately 20 percent of tanker 

transits through Buzzards Bay were in double hull tankers. In 2005, that percentage rose to nearly 58 percent, and has since remained at that level. The 

Coast Guard seeks to increase that percentage; our regulatory choice is one 

method of accomplishing that goal. By Federal statute, single hull tankers will 

be largely phased out in the U.S. by 2015. The Coast Guard has no authority 

to accelerate that timetable. In contrast, the international phase-out will be 

largely complete by 2010. Without double hull incentives in certain sensitive 

areas like Estuaries of National Significance (Buzzards Bay is so designated), 

use of single hull tankers might conceivably increase. 

3. It has long been the Coast Guard’s position that consistent, uniform national 

and international regulation is the most effective method to ensure navigation 

safety and protection of the marine environment. The majority of maritime accidents are caused by human error, and a confused mariner is an unsafe mariner. 

Conflicting Federal and state regulations can create such confusion. The Coast 

Guard wants mariners to concentrate on navigating safely, not on whether a 

state rule or a Federal rule applies in a certain waterway. 

Regulated Navigation Areas, such as the one covering Buzzards Bay, are created 

under the authority of the Ports and Waterways Safety Act of 1972, as amended. 

That statute requires the Coast Guard to consult and work closely with affected 

states before promulgating any new rules regulating vessel traffic. The Coast Guard 

takes that mandate very seriously, as interaction with our state and local partners 

is a crucial component of developing sound, sensible rules. In the case of the Buzzards Bay rule, the Coast Guard coordinated closely with state and local government through briefings, public hearings and by giving the state and several cities 

and towns formal consultative status during the rulemaking process. In the final 

analysis, our nation, as described in the Federalist Papers, through the founding of 

the Republic and in numerous, subsequent Congressional and Supreme Court actions, has long recognized the need to ultimately speak with one voice on matters 

maritime. 

The actions of the Coast Guard throughout this rulemaking process have been 

consistent with those objectives, while always keeping in mind the value and importance of input from all stakeholders. San Francisco Bay, Prince William Sound and 

Puget Sound are the only other places where there are tug escort rules for tankers. 

The conditions in those places, as well as the statutory and regulatory history for 

their creation are sufficiently distinct that they may not be compared to Buzzards 

Bay to determine what requirements should exist in Buzzards Bay. For example, 

in San Francisco, there are no Federal tug escort rules with which the state rule 

might conflict, and no indication that there is a need for any Federal tug escort regulation. In Prince William Sound, the rules are statutorily mandated as part of Oil 

Pollution Act of 1990. In Puget Sound, the tank vessels requiring escort serve only 

ports in the State of Washington, whereas in Buzzards Bay, they serve several 

states (Rhode Island, Connecticut, New York, New Hampshire and Maine), in addition to Massachusetts, and thus an obvious need for Federal uniformity. 

Finally, the law established by the Supreme Court in U.S. v. Locke in 2000, 

strengthened and clarified how Federal rules applicable to vessel regulation preempt state rules. This strengthened Federal preemption regime for vessel regulation 

was not so clear when the Puget Sound rules were adopted in 1994. 

Senator KERRY. I think you should. And, you know, it’s—well, it’s 

obviously frustrating, particularly when you look at the cost issue. 

Secretary Glackin, the NOAA Damage Assessment Remediation 

and Restoration is not yet completed, the damage assessment for 

Buzzards Bay. And the community has not been compensated for 

shellfish loss, salt marsh, beach damage, et cetera. What is the staVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
54 

tus of when will the community be compensated to have those environmental issues being addressed? 

Ms. GLACKIN. Senator, I’ll have to get back to you with the specifics on that, but I can tell you that that activity is ongoing and 

we’re moving forward with that. I’m sorry. I’m just not prepared to 

give you a date. 

Senator KERRY. Would you get us something more specific, 

please? 

Ms. GLACKIN. Absolutely. 

Senator KERRY. We are moving forward. It’s been several years 

now. It just goes on and on. These folks are not big conglomerates 

and corporations; they get hurt, they get hurt. 

Ms. GLACKIN. I understand. 

Senator KERRY. And the compensation is pretty critical. And 

we’re supposed to do that for them. 

Ms. GLACKIN. Yes. I understand. 

Senator KERRY. All of us. You, me, et cetera. So I’d like to see 

if we could address that. Admiral, you know, for the 24 years that 

I’ve been on this Committee, almost 24, I’ve been involved with 

these issues with the waterways, the Coast Guard. I used to be 

Chairman of the Subcommittee with the Coast Guard. And I’ve always been frustrated. I mean, I’m frustrated. I imagine you are, 

and you can’t say it. You and I have had a little bit of this discussion previously. 

But the Coast Guard’s responsibilities just keep getting bigger 

and bigger, and go up and up and up. You know, and any fair 

measurement says that you’re not getting what you need in terms 

of the increases in complement to your personnel and to your assets. And so, it’s hard for us to sit here and sort of measure really 

where we are in terms of Homeland Security requirements, drug 

interdiction requirements, public safety requirements, enforcement, 

EPA enforcement, and all those other things you have to do. 

And I wonder if you can share with us—I mean, I know it’s difficult under the structure we have—but can you at least share with 

us the priorities that you wish you had to have a better ability to 

be able to address? 

Admiral ALLEN. I can say that I can tell you that these priorities 

also represent Secretary Chertoff, as well, because I talked with 

him personally about it. We have to put more people in certain critical functions at least in the perceptions of our stakeholders and 

overseers, whether or not our performance has diminished, at least, 

there is a perception that we’ve been diverting and not been taking 

care of business. And there is another safety area with inspections, 

other areas of rulemaking, watch standards for our command centers in our ports, people that play a direct impact on managing the 

waterways and preventing these events from happening. I’ve made 

my requirements clear, and thus far I’ve gotten support from the 

Secretary. 

Senator KERRY. Well, can I emphasize something that’s bothered 

me for a long, long time? I was recently down in South Africa, and 

in South Africa, in the port, I saw a lot of Taiwanese and Japanese 

trawlers and fishing vessels in the South African port. Senator Stevens and I took the issue of the driftnet fishing to the United Nations in the 1990s, and we succeeded in getting it banned. But 

55 

there were folks out there doing it, and about 50 percent or more 

of the catch is ‘‘by catch’’ and it’s discarded. 

And all across the globe, but obviously, we care—we have to care 

about it all, but our primary focus is needless to say on our shorelines. But I talked to our own fishermen. I’ve seen and it’s happening up in New England and elsewhere. We just don’t have adequate capacity to enforce, to monitor anywhere. And I’d like not see 

that left out of the list of immediate priorities. I mean, we’ve got 

to have the ability to be able to bring stocks back and enforce fisheries, or else we’re in trouble. 

Admiral ALLEN. I can give you a response for the record. I can 

give you a couple of highlights, if you’d like, sir. 

Senator KERRY. I would. 

Admiral ALLEN. One of the real issues—and you know this all 

too well from your service—is maritime patrol aircraft and sensors 

to be able to understand what’s out there, establish a threat, and 

be able to interdict a target of interest. We have done a couple of 

things in the last couple of years that I think are going to provide 

us a significant improvement on our performance there. This last 

year, we combined maritime patrol aircraft from Japan and Canada, working with the Coast Guard cutter with a Chinese shiprider 

on interdicting seven high seas driftnet cases in the middle of the 

Pacific. Three of them constituted severe enough infractions that 

we took them back to the Chinese and turned them over for prosecution. We also established an adjoined program office with Customs and Border Protection on UAVs, trying to extend our region 

and also take care of the new Hawaiian Island Sanctuary, sir. But 

I can provide you more for the record. 

[The requested information follows:] 

The attached annual Report of the Secretary of Commerce to the Congress of the 

United States Concerning U.S. Actions Taken on Foreign Large Scale High Seas 

Driftnet Fishing (2006) incorporates Coast Guard contributions and summarizes 

overall U.S. Government actions to combat High Seas Driftnet (HSDN) fishing 

worldwide. Coast Guard HSDN enforcement operations have focused exclusively on 

the North Pacific Ocean. The success of Coast Guard HSDN enforcement operations 

in the North Pacific results from dedicated cooperation with, and coordinated planning between, a number of Pacific Rim governments and counterpart enforcement 

agencies. 

Coast Guard HSDN Enforcement Efforts in 2007 

U.S.-PRC HSDN Enforcement MOU. The United States and the People’s Republic 

of China (PRC) conducted joint operations in 2007 pursuant to the terms of a Memorandum of Understanding (MOU) to ensure effective implementation of United Nations General Assembly (UNGA) Resolution 46/215 in the North Pacific Ocean. The 

MOU (also referred to as the ‘‘U.S.2DPRC Shiprider Agreement’’) established boarding procedures for law enforcement officials of either country to board and inspect 

U.S. or Chinese-flagged vessels suspected of driftnet fishing. The MOU allows PRC 

officials to embark on U.S. Coast Guard vessels or aircraft. 

Coast Guard Partnership with the PRC Fisheries Law Enforcement Command 

(FLEC). The Coast Guard has had a strong working relationship with the PRC Fisheries Law Enforcement Command (FLEC) for well over a decade, and China has 

provided opportunities for 46 enforcement officials to visit and work with the Coast 

Guard since 1994. In May 2007, the Coast Guard hosted familiarization visits for 

PRC FLEC enforcement officers as well as an operational planning meeting for the 

2007 enforcement season. Two FLEC officers rotated through the North Pacific Regional Fishery Training Center in Kodiak, Alaska from April through August 2007. 

In addition, two Chinese FLEC shipriders were deployed on U.S. Coast Guard Cutters (USCGCs) BOUTWELL and MIDGETT during their Illegal, Unregulated, Unreported (IUU) fisheries patrols. The FLEC officials in Kodiak passed real-time operational information to their colleagues onboard the Coast Guard cutters at sea. 

56 

1 Annotated Supplement to the Commanders Handbook of the Law of Naval Operations, Naval 

War College, 1997 (Section 3.4) 

These officials were instrumental in facilitating communications between the Coast 

Guard and the PRC FLEC, effectively expanding the jurisdictional reach of both enforcement agencies and allowing for the largest number of HSDN vessel seizures in 

the North Pacific since implementation of the MOU. The Coast Guard hopes to host 

additional PRC officials during the 2008 fishing season. 

Aircraft patrols. In recent years, the Coast Guard has patrolled High Threat 

Areas in the North Pacific in support of the U.S. High Seas Driftnet Enforcement 

Act and North Pacific Anadromous Fish Commission (NPAFC) initiatives, as well 

as to monitor compliance with the United Nations (UN) moratorium on large-scale 

HSDN operations. Operation North Pacific Watch, the Coast Guard’s 2007 multi-national HSDN enforcement campaign, began in April with support from Canadian deployments to Shemya Island, Alaska, Coast Guard Air Station Kodiak, Alaska deployed once from Shemya to patrol the HSDN High Threat Area, and additional 

Coast Guard HC–130s flew in late September 2007 to support joint operations with 

USCGC BOUTWELL and USCGC MIDGETT. 

In early September 2007, a Coast Guard Seventeenth District law enforcement officer participated in a joint surveillance aircraft patrol with the Japan Coast Guard 

(JCG) (the second of such flights, the first being in 2006). The purpose of this JCG 

flight was to patrol for IUU fishing activity and perform communications exercises 

with USCGC BOUTWELL. The patrol identified several radar contacts in the 

HSDN High Threat Area but weather conditions precluded a specific determination 

of vessel type and activity. This information did, however, directly facilitate subsequent positioning of USCGC BOUTWELL for follow-on HSDN interdictions. 

Surface patrols. USCGC BOUTWELL also participated in a multi-national IUU 

fisheries enforcement patrol from July 22 to November 7, 2007 that included 

NPAFC party states and fisheries law enforcement officials from the PRC. USCGC 

BOUTWELL patrolled the HSDN High Threat Area, made port calls in Japan, Russia, and China, and embarked a PRC Fisheries Law Enforcement Command (FLEC) 

shiprider. USCGC MIDGETT deployed on short notice from the Bering Sea to the 

HSDN High Threat Area in late September due to reports of multiple possible 

HSDN fishing vessel sightings. USCGC MIDGETT expanded the surface patrol coverage through coordinated patrolling with USCGC BOUTWELL. During September 

and October of 2007, these U.S. Coast Guard Cutters interdicted and subsequently 

transferred custody of six PRC-flagged HSDN-capable fishing vessels to Chinese authorities for additional investigation and prosecution. 

While patrolling on September 14, 2007, USCGC BOUTWELL’s embarked helicopter located the Indonesian F/V FONG SENG No. 818 rigged for large-scale 

driftnet fishing on the high seas. As USCGC BOUTWELL closed position, the crew 

of FONG SENG No. 818 conducted evasive maneuvers and attempted to conceal 

nets and gear on deck. USCGC BOUTWELL documented the vessel’s configuration 

and activity, while at the same time performing Right of Approach 1 questioning 

alongside the vessel to gather registry information, which USCGC BOUTWELL was 

eventually able to obtain. The Coast Guard joined with the U.S. Department of 

State to report this activity to the Government of Indonesia and has initiated diplomatic dialogue regarding F/V FONG SENG No. 818’s observed activities. It is suspected that FONG SENG No. 818 is a sister ship of, and is associated with, the F/ 

V RONG SHENG No. 828, which Russian authorities seized on the high seas in 

June 2007 with a reported 90 metric tons of salmon onboard. 

In addition to the enforcement efforts associated with seizure of the six PRCflagged large-scale HSDN vessels, USCGC CHASE conducted a joint IUU fisheries 

law enforcement patrol, officer exchange, and training engagement with the Russian 

Federal Security Service patrol vessel VOROVSKY in April 2007. The vessels conducted a joint boarding exercise on the Alaska State Trooper vessel WOLSTAD in 

preparation for future North Pacific IUU fishing and Central Bering Sea law enforcement operations. 

2006 REPORT OF THE SECRETARY OF COMMERCE TO THE CONGRESS OF THE UNITED

STATES CONCERNING U.S. ACTIONS TAKEN ON FOREIGN LARGE-SCALE HIGH SEAS

DRIFTNET FISHING PURSUANT TO SECTION 206(E) OF THE MAGNUSON-STEVENS

FISHERY CONSERVATION AND MANAGEMENT ACT, AS AMENDED BY PUBLIC LAW

104–297, THE SUSTAINABLE FISHERIES ACT OF 1996 

I. Introduction 

Public Law 101–627: The President signed Public Law 101–627, the Fishery Conservation Amendments of 1990, on 28 November 1990. Title I, Section 107, of the 

57 

law amended Section 206 of the Magnuson-Stevens Fishery Conservation and Management Act (hereafter referred to as the Magnuson-Stevens Act) (16 U.S.C. 1826) 

to incorporate and expand upon provisions of the Driftnet Impact Monitoring, Assessment, and Control Act of 1987. 

Section 206(b) of the Magnuson-Stevens Act sets forth Congressional findings, including inter alia that ‘‘the continued widespread use of large-scale driftnets beyond 

the exclusive economic zone (EEZ) of any nation is a destructive fishing practice 

that poses a threat to living marine resources of the world’s oceans.’’ It also notes 

the expansion of large-scale driftnet fishing into other oceans and acknowledges the 

30 June 1992 global driftnet moratorium called for by United Nations General Assembly (UNGA) Resolution 44/225. Finally, Section 206(b) recognizes the moratorium on the use of large-scale driftnets agreed through the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, also known as the Wellington Convention. 

Section 206(c) sets forth Congress’s driftnet policy, specifically that the United 

States should: 

(1) implement the moratorium called for by UNGA Resolution 44/225; 

(2) support the Tarawa Declaration and the Wellington Convention; and 

(3) secure a permanent ban on the use of destructive fishing practices, and in 

particular large-scale driftnets, by persons or vessels fishing beyond the exclusive economic zone of any nation. 

Section 206(d) directs the Secretary of Commerce, through the Secretary of State 

and the Secretary of Homeland Security, to seek to secure international agreements 

to implement immediately the findings, policy, and provisions of Section 206, particularly the international ban on large-scale driftnet fishing. 

Section 206(e) directs the Secretary of Commerce, after consultation with the Secretaries of State and Homeland Security, to submit to Congress no later than 1 January an annual report (1) describing the efforts made to carry out Section 206, especially subsection (c); (2) evaluating the progress of those efforts, the impacts on living marine resources, including available observer data, and plans for further action; (3) listing and describing any new high seas driftnet fisheries developed by nations that conduct or authorize their nationals to conduct large-scale high seas 

driftnet fishing; and (4) listing nations that conduct or authorize their nationals to 

conduct high seas driftnet fishing in a manner that diminishes the effectiveness of 

or is inconsistent with any international agreement governing large-scale driftnet 

fishing to which the United States is a party. (The number of reporting requirements in Section 206(e) of Public Law 101–627 were reduced in 1996 to those above 

by Public Law 104–297, the Sustainable Fisheries Act.) 

Finally, Section 206(f) provides that, if at any time the Secretary of Commerce, 

in consultation with the Secretaries of State and Homeland Security, identifies any 

nation that warrants inclusion in the list described in (4) above, the Secretary shall 

certify that fact to the President. This certification shall be deemed to be a certification for the purposes of Section 8(a) of the Fishermen’s Protective Act of 1967 (22 

U.S.C. 1978(a), as amended by Public Law 102–582), commonly referred to as the 

Pelly Amendment. Such a certification gives the President discretion to embargo 

products imported into the United States from that nation, so long as such action 

is consistent with U.S. obligations under the General Agreement on Tariffs and 

Trade. 

Public Law 102–582: On 2 November 1992, the President signed Public Law 102– 

582, the High Seas Driftnet Fisheries Enforcement Act. Among other things, this 

Act is intended to enforce implementation of UNGA Resolution 46/215, which called 

for a worldwide driftnet moratorium beginning 31 December 1992. Once the Secretary of Commerce identifies a country as a nation whose nationals or vessels are 

conducting large-scale driftnet fishing beyond the EEZ of any nation, pursuant to 

the Act, a chain of U.S. actions is triggered. The Secretary of the Treasury must 

deny entry of that country’s large-scale driftnet vessels to U.S. ports and navigable 

waters. At the same time, the President is required to enter into consultations with 

the country within 30 days after the identification to obtain an agreement that will 

effect the immediate termination of high seas large-scale driftnetting by its vessels 

and nationals. If these consultations are not satisfactorily concluded within 90 days, 

the President must direct the Secretary of the Treasury to prohibit the importation 

into the United States of fish, fish products, and sport fishing equipment from the 

identified country. The Secretary of the Treasury is required to implement such prohibitions within 45 days of the President’s direction. 

If the above sanctions are insufficient to persuade the identified country to cease 

large-scale high seas driftnet fishing within 6 months, or if it retaliates against the 

58 

1 A number of these vessels were unidentified, raising the possibility of multiple sightings of 

the same vessel or vessels. For purposes of this report, only those vessels that were visually 

confirmed as driftnet-capable have been considered sightings. 

United States during that time period as a result of the sanctions, the Secretary 

of Commerce is required to certify this fact to the President. Such a certification 

is deemed to be a certification under Section 8(a) of the Fishermen’s Protective Act 

of 1967 (22 U.S.C. 1978(a), as amended by Public Law 102–582). 

Public Law 104–43: Public Law 104–43, the Fisheries Act of 1995, was enacted 

on 3 November 1995. Title VI of this law, the High Seas Driftnet Fishing Moratorium Protection Act, prohibits the United States, or any agency or official acting on 

behalf of the United States, from entering into any international agreement with 

respect to the conservation and management of living marine resources or the use 

of the high seas by fishing vessels that would prevent full implementation of UNGA 

Resolution 46/215. Title VI also charges the Secretary of State, on behalf of the 

United States, to seek to enhance the implementation and effectiveness of the 

UNGA resolutions and decisions regarding the large-scale high seas driftnet moratorium through appropriate international agreements and organizations. Finally, the 

Act specifies that the President of the United States shall utilize appropriate assets 

of the Department of Defense, the U.S. Coast Guard (USCG), and other Federal 

agencies, to detect, monitor, and prevent violations of the U.N. large-scale high seas 

driftnet moratorium for all fisheries under the jurisdiction of the United States, and 

to the fullest extent permitted under international law for fisheries not under U.S. 

jurisdiction. 

The National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce, in consultation with the 

Department of State and the Department of Homeland Security, submits the following report for 2006 in fulfillment of the Section 206(e) reporting requirement. Information pertaining to U.S. actions in support of the Act prior to 2006 and after 

1988 can be found in the 1990–2005 annual driftnet reports to the Congress available from NMFS. 

II. Description and Progress of Efforts Made to Carry Out Provisions of 

Section 206(c) Policy 

A. Implementation of the Driftnet Moratorium Called for by UNGA Resolutions 

44/225, 45/197, and 46/215 

1. Current Status of the Driftnet Moratorium 

As of 31 December 2006, the UNGA global moratorium on large-scale high seas 

driftnet fishing has been in effect for 14 years. International implementation of the 

moratorium in the world’s oceans and enclosed and semi-enclosed seas continues to 

be generally successful, although problem areas remain. Of the two major problem 

areas in recent years, the North Pacific Ocean and the Mediterranean Sea, 98 vessels capable of conducting unauthorized large-scale high seas driftnet fishing operations were sighted 1 in the North Pacific Ocean in 2006. At least 12 vessels were 

reported operating on the high seas of the Mediterranean Sea in 2006 with largescale driftnets. 

a. North Pacific Ocean 

No large-scale driftnet fishing vessels were intercepted on the high seas of the 

North Pacific Ocean by the international community in 2006. However, 98 vessels 

capable of driftnet fishing were sighted operating in the Northwestern Pacific. 

(1) Regional Driftnet Enforcement Coordination 

North Pacific Anadromous Fish Commission (NPAFC): The NPAFC serves as a 

forum for promoting the conservation of anadromous stocks and ecologically-related 

species, including marine mammals, sea birds, and non-anadromous fish, in the 

high seas area of the North Pacific Ocean. This area, as defined in the Convention 

for the Conservation of Anadromous Stocks in the North Pacific Ocean (the Convention that established the NPAFC), is ‘‘the waters of the North Pacific Ocean and its 

adjacent seas, north of 33° North Latitude beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.’’ The members of 

the NPAFC are Canada, Japan, the Republic of Korea (Korea), Russia, and the 

United States. 

In addition, the NPAFC serves as the venue for coordinating the collection, exchange, and analysis of scientific data regarding the above species within Convention waters. It also coordinates high seas fishery enforcement activities by member 

countries. The Convention prohibits directed fishing for salmonids and includes proVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
59 

visions to minimize the incidental take of salmonids in other fisheries in the Convention area. Although it does not specifically ban high seas driftnet fishing, fishing 

for salmonids on the high seas has historically been carried out in this manner. As 

a result, the NPAFC and its enforcement activities are primarily targeted against 

high seas driftnet fishing vessels. The members of the NPAFC jointly plan and coordinate their high seas enforcement operations in order to most efficiently utilize 

enforcement resources. 

NPAFC Enforcement Evaluation and Coordination Meeting (EECM): Representatives of the NPAFC Parties met in Juneau, Alaska, on 28 February–1 March 2006, 

for the annual NPAFC EECM. The meeting included presentations by each Party 

on enforcement efforts to date in 2006; coordination of enforcement plans and resources for the remainder of 2006; a demonstration on the use of the Parties’ Integrated Information System (IIS), a software tool developed by Russia to improve information sharing and coordination; and a discussion on the applicability of the FAO 

model scheme on port state measures to combat illegal, unreported and unregulated 

(IUU) fishing in the NPAFC Convention Area. The Parties also discussed the characterization of vessels to be placed on a ‘‘Vessels of Interest’’ list on the IIS; i.e., 

those vessels believed to be engaged in fishing activity contrary to the Convention. 

On 2 March, following the EECM, an enforcement symposium ‘‘Patrol tactics, 

planning and execution of enforcement in the NPAFC Convention Area’’ was held 

in Juneau. The purpose of the symposium was to bring together enforcement professionals from each of the NPAFC Parties to share lessons learned and best practices 

from their respective agencies. Enforcement officers, ship captains, and air crews 

from Canada’s Department of Fisheries and Oceans (DFO) and Department of National Defense (DND), Japan’s Fisheries Agency (FAJ) and Coast Guard, Republic 

of Korea’s Ministry of Maritime Affairs and Fisheries, Russia’s Federal Security 

Service, and the United States’ NMFS and USCG participated. Each agency made 

a presentation which was followed by lengthy and spirited discussion. The NPAFC 

funded the attendance of two representatives from each of the Parties. The symposium fostered a very productive exchange of ideas and presented a valuable opportunity for the actual vessel, aircraft, and enforcement officers to meet each other 

prior to the beginning of the 2006 fishing season. 

NPAFC Annual Meeting: The 14th Annual Meeting of the NPAFC was held in 

Vancouver, British Columbia, on 23–27 October 2006. Enforcement officials of the 

Parties met under the auspices of the NPAFC Committee on Enforcement to review 

enforcement activities in 2006 and begin planning activities for 2007. Representatives of Taiwan observed the proceedings of the meeting. 

As a result of the Parties’ cooperative enforcement efforts in 2006, no vessels were 

detected engaged in illegal large-scale driftnet fishing for salmon in the NPAFC 

Convention Area. However, sightings, boardings, and fishing vessel seizures from 

2003–2006 indicate that the high seas driftnet threat in the North Pacific Ocean 

may be increasing, and shifting fishing effort from salmon to squid and albacore 

tuna. At least 26 vessels suspected of high seas driftnet fishing were sighted in 

2003, 22 vessels in 2004, 24 vessels in 2005, and 98 vessels in 2006. Unfortunately, 

the Parties were unable to investigate and positively identify many of these vessels 

because of their remote location. The Parties believe that the majority of the vessels 

were from the People’s Republic of China (China) because of the type of vessel, the 

characteristic style of the Chinese characters used for vessel names, and because 

many Chinese-flagged squid jigging vessels were often sighted fishing in close proximity. 

Approximately two thirds of the 2006 sightings occurred in the September–November time-frame. In past years, the Parties concentrated most of their enforcement efforts in the summer months. In 2005, Japan patrolled the northwestern part 

of the Convention Area in September–DOctober and made 17 of the 24 total driftnet 

vessel sightings for the year. There is some uncertainty as to whether the increased 

number of sightings represents a real increase in the occurrence of large-scale high 

seas driftnet fishing in the North Pacific Ocean or whether enforcement efforts have 

uncovered an existing IUU fishery. 

Although the NPAFC has successfully deterred high seas salmon fishing and 

served as a forum for joint enforcement planning and coordination in the NPAFC 

Convention Area, it has limited enforcement authority against non-salmon nonParty high seas driftnet fishing threats. Because of the different target species and 

vessel flags involved, the NPAFC will work multilaterally through enforcement and 

diplomatic channels to bring pressure on these driftnet fishing vessels and their flag 

states to end operations in the NPAFC Convention Area. The NPAFC Parties 

agreed to send a letter from the Commission to the Chinese Government to request 

it to take preventative measures to ensure that Chinese vessels and nationals are 

not involved in high seas driftnet fishing operations on anadromous fish stocks in 

60 

the NPAFC Convention Area and to express its concern about the increased number 

of Chinese vessels equipped with driftnet gear. The letter would also invite China 

to partner with the NPAFC Parties to combat such illegal activity. 

In light of the continuing threat of unauthorized high seas salmon fishing in the 

Convention Area, Parties agreed to maintain 2007 enforcement efforts at levels 

similar to 2006 as a deterrent to unauthorized fishing activity. To coordinate enforcement efforts, the Parties agreed to hold the annual EECM in Busan, Korea, 

from 27 February–1 March 2007. 

Senator KERRY. Well, I really appreciate that. Yes, I would like 

that. I’d like to follow up with you sometime and talk about it, and 

see how we could sort of think this through and plan for some 

things as we head into next year and beyond, because it’s very distressing. And I’m hearing unbelievable stories of depleted stocks on 

almost everything everywhere, and not to mention the pollution 

issues and others kinds of issues. One last thing—container ships. 

Admiral ALLEN. Yes, sir. 

Senator KERRY. Drop some of these containers out on the ocean, 

and they float, submerged, and they become a serious hazard to 

other shipping. What, if anything, could be done? I understand 

there is an enormous number. I’ve heard it’s in the thousands— 

maybe you can shed some light on this—of containers that in 

storms or bad lashing and loading and other procedures, they lose 

them. And because of the weight, they don’t really sink completely 

because of the buoyancy, but they also don’t float so we see them. 

And they’re a real hazard to navigation. 

Admiral ALLEN. Yes, sir. I’m just prepared to handle the reporting, but if I could, for the record, I will go back and consult with 

the International Maritime Organization and Secretary General 

Mitropoulos, and I will give you our best estimate on worldwide figures. 

Senator KERRY. I would really appreciate that. 

Admiral ALLEN. Yes, sir. 

[The requested information follows:] 

It is estimated that between 500 and 2,000 containers are lost at sea annually. 

While the International Maritime Organization does not collect data regarding numbers of containers lost overboard world-wide, National Cargo Bureau records indicate that at least 500 containers are lost each year. Some industry trade publications estimate approximately 2,000 containers are lost annually. It is reasonable to 

assume that some containers losses are not reported and the number for any given 

year may be skewed by one or two major incidents. As such, we conclude that between 500 and 2,000 are lost annually. 

Senator KERRY. Thank you, Madam Chair. 

Senator CANTWELL. Thank you. And I want to thank the panelists for their testimony. I think this will be the first of probably 

several hearings that we’ll end up having on this issue, perhaps 

even a third hearing. Admiral Allen, I think you will take away 

that my colleagues are very concerned about this rulemaking, 

whether it’s on salvage or response plans or updating the Oil Spill 

Liability Trust Fund for inflation. 

All of those things we think are things that we’re falling behind 

on, so we would prefer the Coast Guard come to us and lead the 

charge on the changes that we’re now wanting to be proposing as 

it relates to these nontank vessels, these cargo containers, because 

I think that many of my colleagues are expressing here today, in 

addition to Senator Boxer, issues that we think need to be updated 

61 

from the 1990 Act. So we look forward to discussing that with you 

further, and for the timeline to respond to these various rulemaking authorities, sir. With that, I thank the other panelists for 

being here, as well, and for your work, and we look forward to 

dialoguing with you about this important issue. 

I’d like to call up the second panel now—Dr. Dagmar Etkin, who 

is the President of the Environmental Research Consulting, Mr. 

Mike Cooper, Chairman of the Washington State Oil Spill Advisory 

Council, and Mr. Bill Deaver, President and Chief Operating Officer of Totem Ocean Trailer Express. And if those who are exiting 

could help us by doing so quickly and quietly, we would appreciate 

it, so that we can get on with the second panel. 

And I think that we would like to start with you, Dr. Etkin, for 

being here with us today and for your testimony. And if the witnesses could keep their comments to 5 minutes or so, thank you. 

STATEMENT OF DAGMAR SCHMIDT ETKIN, PH.D., PRESIDENT, 

ENVIRONMENTAL RESEARCH CONSULTING 

Dr. ETKIN. Thank you. Good afternoon, and thank you for the opportunity to speak today. 

Senator CANTWELL. Dr. Etkin, if you could just pull the microphone a little closer to you, thank you. 

Dr. ETKIN. Thank you. For 19 years, I’ve been an independent 

consultant on oil spill risks, statistics, environmental impacts, costs 

and response, in the U.S. and internationally. I’ve been a consultant to the Coast Guard and Corps of Engineers, National Research 

Council, EPA, NOAA, GAO, and to the States of California and 

Washington. I’ve been on three U.N. IMO task teams on environmental risks from shipping. And I have also worked with NGOs 

and industry. I’ve seen many sides of this complex issue. 

Spill risk is the probability of spillage multiplied by spill consequences—environmental, economic, social, and political. The 

probability of nontank vessel spillage has decreased over 20 years 

despite increases in shipping, but we now know that the consequences of the spill may be great. The risk remains. 

Most nontank vessel spills are small incidents that occur during 

bunker transfers and other operations that result in relatively 

small spills. But there have also been significant spills related to 

accidental groundings and collisions, notably the recent incident in 

San Francisco. 

Spill consequences are directly related to volume, oil type, location, and timing. Heavy oil that often spills from nontank vessels 

presents a particular challenge with regard to its persistence and 

its propensity to coat bird feathers and shorelines. Spill volume is 

a factor, but even a relatively small spill in a bad location can 

cause serious damage. Timing is also important. Had the San 

Francisco spill occurred in January, ten times as many birds may 

have been oiled. 

There are three arenas in which we can make progress: prevention, preparedness, and response—preferably in that order. It is 

best to prevent spills in the first place, and there are proven ways 

to accomplish this. Safer ship design, such as double hulls, and increased financial responsibility requirements, with Certificates of 

Financial Responsibility, have reduced tanker spills in the U.S. waVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
62 

ters more so than outside the U.S. We have a better class of tankers in the U.S. waters due to our more stringent regulations. 

This strategy can be extended to nontank vessels. Double-hulled 

bunker tanks and cargo ships reduce the probability of spillage 

after impact. Requiring tug escorts in challenging waterways in 

sensitive areas has proven to be an effective measure in Washington State. Improvements in vessel traffic systems and crew 

training can also prevent accidents. We should also carefully study 

nontank vessel liability limits, taking into account the oil volume 

carried and the actual spillage risk. 

Being prepared to respond promptly and effectively are keys to 

success. Studies I’ve conducted for Washington State show that increased response equipment deployed at the scene earlier than required can significantly reduce impacts. Pre-booming of vessels and 

pre-positioning of response equipment during oil transfers can increase the chances of successful damage mitigation. Maintenance 

inspections and spill exercises are also important. Spills will happen, but we’ve been fortunate. We’ve never had a worst-case tanker 

or large cargo ship discharge in U.S. waters. With the total release, 

the spill in San Francisco could have involved 20 times as much 

oil, or a thousand times as much oil had it been a fully loaded 

tanker. We cannot become complacent. We must increase and then 

maintain preparedness even as spill rates are going down. 

Spill response presents an opportunity for improvement, as well. 

There are many technological challenges in spill response. Despite 

decades of research and development, and practical experience, we 

are still left with relatively inefficient mechanical recovery options 

and largely manual shoreline cleanup methods. Booms and skimmers do not work well in high currents in San Francisco Bay. The 

forces of physics simply come into play. 

Even when conditions are favorable, it’s rare that more than 10 

to 25 percent of spilled oil is recovered. Dispersants can be effective, but their use is limited in sensitive near-shore waters and on 

heavier oils. But there are ways to improve spill response. Simply 

repositioning of some boom can better protect sensitive areas. Ironically, I was working with California Fish and Game on alternative 

booming strategies to protect sensitive areas of San Francisco Bay 

when the recent spill occurred. 

I’ve worked with the U.S. Coast Guard on studies to improve detection of submerged and floating oil with laser technologies to improve response and reduce damages. Special booming techniques 

for faster water conditions have been developed by the U.S. Coast 

Guard; these need to be applied. We need to continue to fund research and development efforts and to train responders with the 

best techniques. We have an excellent spill response testing and 

training facility at OHMSETT in New Jersey, and many excellent 

researchers and practitioners to learn from. 

Last, I think we have an opportunity and responsibility for public 

education. The public has unrealistic expectations of what spill responders and officials can do to magically erase spilled oil. Rather 

than point accusatory fingers at officials or industry, we need to 

work together to educate the public about realistic expectations 

when a spill does occur and get their support rather than animosity. There is no time to be looking for good guys and bad guys. We 

63 

need public support; funding for spill prevention, preparedness, and 

response efforts; and we need to make the public understand that 

rational, scientifically based decisionmaking and planning are required to reduce the likelihood of future spills and to respond effectively when they do occur. We are all in this together. Thank you. 

[The prepared statement of Dr. Etkin follows:] 

PREPARED STATEMENT OF DAGMAR SCHMIDT ETKIN, PH.D., PRESIDENT, ENVIRONMENTAL RESEARCH CONSULTING

My name is Dagmar Schmidt Etkin. For the past 19 years, I have been an independent environmental consultant specializing in oil spill risk analysis, spill statistics, costs, environmental impacts, policy analysis, and response issues in the U.S. 

and internationally. I have been a consultant to the U.S. Coast Guard, Minerals 

Management Service, Maritime Administration, Army Corps of Engineers, National 

Research Council Transportation Research and Ocean Studies Boards, EPA, NOAA, 

GAO, California Department of Fish and Game, and Washington Department of 

Ecology. I have been on three United Nations task teams on oil pollution and environmental risk assessments from shipping. I have also worked closely with non-governmental organizations and industry on oil spill issues. In my work, I have had 

the privilege of seeing many sides of this complex issue. 

Spill risk is a combination of the probability of spills occurring multiplied by the 

consequences (environmental, economic, social, and political). The probability of 

spillage from a non-tank vessel has decreased in the last two decades despite the 

fact that there have been increases in worldwide shipping, but the potential consequences of a spill are still great. The risk remains. The data indicate that the 

greatest proportion of spills from non-tank vessels occurs during bunker transfers 

and other operations which result in relatively small spills. And there have been 

a number of significant spills related to accidental groundings, collisions, and 

allisions that have resulted in larger oil releases, notably the recent COSCO 

BUSAN spill in San Francisco. 

The consequences of a spill are directly related to four main factors—volume, oil 

type, location, and timing. Heavy oil that often spills from non-tank vessels presents 

a particular challenge with regard to its persistence and its propensity to coat bird 

feathers and visibly impact shorelines. Spill size is certainly a factor, but even a relatively small spill (note that the recent COSCO BUSAN spill was actually a relatively small spill with regard to an accident-related non-tank vessel spill) in the 

wrong location can cause serious damage on many fronts. Timing is an important 

issue. Had the San Francisco spill occurred 2 months later, ten times as many birds 

may have been oiled! 

There are three arenas in which we can make progress in reducing the impacts 

of spills from non-tank vessels—better efforts at prevention, better preparedness, 

and better response, preferably in that order. 

Prevention—It would be best to prevent spills from non-tank vessels in the first 

place. There are proven ways that this can be done. We know that the phasing-in 

of double hulls and better ship design, as well as increasing financial responsibility 

requirements, have reduced tanker spills in U.S. waters in particular. We have a 

better class of tankers in U.S. waters due to our more stringent requirements. This 

tactic can be extended to non-tank vessels. Double-hulled bunker tanks on cargo 

ships reduce the probability of spillage with a grounding, collision, or allision. Requiring tug escorts in challenging waterways has proven to be an effective prevention measure in Washington State. Improvements in vessel traffic systems and crew 

training can help prevent accidents in the first place. We should also carefully study 

the issue of liability limits for non-tank vessels taking into account the amount of 

oil carried and potential for spillage. 

Preparedness—Being prepared to respond promptly and effectively after notification of a spill is the key to success in spill response. Studies I have conducted for 

Washington Department of Ecology have shown that increasing the amount of spill 

response equipment and requiring it to be at the scene earlier than is currently required can result in significant reductions in impacts. Pre-booming of vessels and 

having response equipment on standby during oil transfer and bunkering operations—one of the most common times during which spills occur—can increase the 

chances of successfully mitigating spill damages. Maintenance of equipment and 

maintaining readiness with required spill exercises and inspections are important 

to keep prepared for the next spill. Spills will happen. We have been fortunate that 

we have never had a worst-case discharge from a tanker or from a large cargo ship 

64 

in U.S. waters. The situation in San Francisco Bay could have involved twenty 

times as much oil from a non-tank vessel and a thousand times as much oil with 

a fully-loaded tanker. We must maintain preparedness even if spill rates are going 

down! 

Response—Finally, spill response presents an opportunity for improvement. There 

are many technological challenges in spill response. Despite decades of research and 

development, as well as experience on many actual spills, we are still left with relatively inefficient on-water mechanical containment and recovery options, occasional 

opportunities to apply chemical dispersing agents, and tedious, largely manual, 

shoreline cleanup methods. Booms and skimmers do not work well in high currents, 

such as those seen in much of San Francisco Bay. The forces of physics come into 

play. Even when all things are in favor it is rare that more than 10–25 percent of 

spilled oil is recovered. More—as was recovered in San Francisco—is considered a 

real success. Oil spill dispersants can be effective, but their use is limited in sensitive nearshore waters and on heavier oils. 

But, there are ways to improve spill response in addition to timing. Positioning 

of boom to protect particularly sensitive sites can dramatically reduce damages. 

Ironically, I was in the midst of working with California Fish and Game on some 

new booming strategies to protect sensitive areas of San Francisco Bay when the 

recent spill occurred. I have worked with the Coast Guard on studies to improve 

oil detection through the use of laser fluorosensor technologies. Better detection of 

submerged and floating oil can improve spill response and reduce damages. Booming in fast-water conditions requires special techniques that can be applied by 

skilled responders. We need to continue to fund research and development efforts 

of the U.S. Coast Guard and others. We have the best spill response testing facility 

at OHMSETT in New Jersey and many excellent researchers and practitioners to 

learn from. 

Lastly, I think we have an opportunity and responsibility for public education. 

The public has unrealistic expectations of what spill responders and officials can do 

to magically erase the oil that has spilled. The oil is on the water. The oil is on 

the birds. It is unfortunate, but rather than pointing accusatory fingers at officials, 

we need to work together to educate the public about realistic expectations when 

a spill does occur and get their support rather than animosity. There is no time to 

be looking for ‘‘good guys’’ and ‘‘bad guys’’. We need public support in continuing 

to fund spill prevention, preparedness, and response efforts. We need to make the 

public understand that rational, scientifically-based decision-making and planning 

is required to reduce the likelihood of future spills from non-tank vessels or any 

source and to respond effectively when they do occur. We are all in this together. 

Thank you for your time. 

Senator CANTWELL. Mr. Cooper, thank you for being here. 

STATEMENT OF HON. MIKE COOPER, CHAIRMAN, 

WASHINGTON STATE OIL SPILL ADVISORY COUNCIL 

Mr. COOPER. Thank you. Thank you, Madam Chair and Senator 

Snowe for conducting this hearing, and for inviting me to come and 

testify. I am Mike Cooper, Chairman of the Washington State Oil 

Spill Advisory Council. I am pleased to be here today on behalf of 

the people of the State of Washington to talk to you about this very 

important issue. I have submitted written testimony, and I would 

like it to be included in the record. 

The Oil Spill Advisory Council’s goal is to act as a mechanism 

to foster a long-term partnership and consensus between communities, government, and industry. Governor Gregoire noted earlier 

this year that, to prevent oil spills, it is important for the public 

to be engaged and involved. Only if public engagement continues 

can we battle complacency. I encourage Congress to support the 

work of citizen advisory councils like those in Washington and 

Alaska. 

It is important to note that the Council’s enabling legislation, 

signed by the Governor, invited Washington tribes to participate, 

and they do. However, we do recognize that, as a State-created enVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
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tity, we cannot stand and speak for the tribes because of the very 

unique government-to-government relationship they have with the 

Federal Government and the state government. 

Washington’s marine resources are unique. Puget Sound, the 

Strait of Juan de Fuca, the Pacific coastline, and the Columbia 

River each have very unique economic and environmental value. 

We must do everything humanly possible to maintain that value, 

both for our economy and for our environment. Washington’s waterways, specifically Puget Sound, are unique in that we have 23 

ferry routes crisscrossing the traffic lanes that are used by cargo 

vessels—23 ferry routes in addition to the 6,000 transits you’ve already heard about create 167,000 transits a year across the shipping lanes. 

Today, I want to talk a little bit about a few of the things that 

I think that Congress can do, that we could recommend and move 

forward on, that will really help this issue, specifically for cargo 

vessels. First, I think it’s important that the Congress think about 

delegating authority to capable states, like Washington, to conduct 

vessel inspections, investigations, and enforce Federal regulations, 

and to review and improve vessel and facility contingency plans. 

Second, you’ve already heard about the double hull issue. I think 

it’s important for us to move forward on the issue of putting double-hulled fuel tanks on cargo vessels. Third, I think it’s important 

for Washington State, in particular, for Congress to have the Coast 

Guard move the high-volume port line from Port Angeles, Washington to the entrance of the Strait of Juan de Fuca. 

This would enable the Coast Guard to have additional rules in 

place to protect the 60 miles of coastline from Port Angeles, Washington out to Cape Flattery. Every other high-volume port line in 

the country has its line at the entrance to the waterway, not 60 

miles inland as is the case in Washington State. 

And finally, Congress could extend the restrictions in the Area 

To Be Avoided around the Pacific Coast Marine Sanctuary to 

nontank vessels. The Olympic Coast National Marine Sanctuary is 

one of our nation’s most treasured maritime and marine areas. Its 

mission is to protect the sanctuary and ensure that future generations are able to use it and enjoy it. By extending the Area To Be 

Avoided to cargo vessels, and not just oil vessels, I think we would 

go a long way to protecting that sanctuary and to preventing potential spills in the sanctuary. 

I would like to close by stressing the importance of all levels of 

government working together to solve this very important challenge before us. The Federal, state, tribal, and local governments 

need to work with important stakeholder groups like the oil and 

cargo industry, as well as the environmental community and our 

local ports, to solve this issue. Thank you very much. I’d be happy 

to answer questions. 

[The prepared statement of Mr. Cooper follows:] 

PREPARED STATEMENT OF HON. MIKE COOPER, CHAIRMAN, WASHINGTON STATE OIL

SPILL ADVISORY COUNCIL

I. Introduction 

Good morning, Madam Chair and members of the Committee. I am Mike Cooper, 

Chairman of the Washington State Oil Spill Advisory Council. Thank you for invitVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
66 

ing me to testify. I am pleased to appear before you today on behalf of the Council 

and the State of Washington. Also, I wish to thank the Chair for her continuing 

leadership to protect Washington State from the risk of oil spills. Particularly I wish 

to thank the Senator for her efforts to assure that the Neah Bay tug remains on 

stand-by protecting our outer coast and the Strait of Juan de Fuca from the perils 

of drift landings. 

The mission of the Council is to maintain Washington’s vigilance in preventing 

oil spills in marine and navigable waters, by ensuring an emphasis on oil spill prevention while also recognizing the importance of improving spill preparedness and 

response. The Council’s goal is to act as a mechanism to foster a long-term partnership and consensus between communities, government, and industry. The Council 

operates by consensus, even on the difficult issues. To date, it has not been necessary for the Council to avail itself of its statutory authorization allowing nine 

members to call for a majority vote. 

It is important to note: Through the Council’s organic legislation and as implemented by Governor Christine Gregoire, Washington State invited Washington tribal governments to participate on the Council. And they do participate. However, we 

do recognize that the Council, as a State-created entity, can not stand in for the 

tribes, as they are resource trustees with whom the Federal Government has a direct relationship. Additionally, we recognize that the tribes should be invited as a 

sovereign to work with the state and Federal governments on these important natural resources issues. 

In light of the growing oil spill risks from commercial cargo vessels, I will limit 

my testimony to the regulation of these vessels. My intention with my testimony 

is to generally represent the various governmental and citizen interests of Washington. There was not sufficient time for the Council to come to consensus over my 

remarks. We will have a meeting in January 2008, however. Our agenda will include an action item to discuss my testimony and to provide some follow up from 

the Council on my testimony. 

One thing I know we all agree upon is the value of citizen advisory councils. As 

Governor Gregoire noted earlier this year, to prevent oil spills it is important for 

the public to be engaged and involved; only if public engagement continues can we 

battle complacency. The Council encourages Congress to support the work of citizen 

advisory councils like those in Alaska and Washington. These bodies play a vital 

role in ensuring vigilance in oil spill prevention, response, and remediation. Members of Washington’s Oil Spill Advisory Council not only live and breathe in and 

among the fragile Puget Sound, but they also are vested in the success of our local 

economy. For this reason, citizen bodies are very well suited to spotlight problem 

areas and to effectuate needed change. 

The issue before the Subcommittee is how to better regulate non-tank vessels. In 

Washington, we understand the urgency of grappling with this issue, particularly 

in light of the significant spill from a cargo vessel into San Francisco Bay on November 7 of this year. This was a spill caused when a container ship sideswiped 

the stationary Bay Bridge. The vessel spilled 58,000 gallons of fuel oil, blackening 

the coastline and wildlife, shutting down the fishing industry, and requiring an expensive mop-up operation. 

II. Risk from Cargo Vessels in Puget Sound 

A. Washington’s Waters Are Unique 

Washington’s marine resources are unique in their geographic characteristics, 

their rare beauty, for the bounty they provide—and for their fragility. Puget Sound 

is a shimmering estuary with oysters, clams, and soul stirring views for the nearly 

four million people who live near its waters. The Strait of Juan de Fuca is a rushing 

narrow waterway that carries the tides in and out of Puget Sound and acts as our 

country’s natural border between its western most portion and Canada. Washington’s Pacific Coastline boasts rugged and rocky coastlines, a part of which includes 

the federally protect Olympia Coast Marine Sanctuary. 

But Washington’s waters also are in peril. For example, State studies show that 

just beneath the shimmering surface of Puget Sound lies a sick and dying water 

body. Further, the region’s two keystone marine species—the orca whale and the 

salmon—are listed under the Federal Endangered Species Act. It is said that the 

region’s populations of the orca whale are so fragile that they are only one large 

oil spill away from extinction. 

We must do everything humanly possible to ensure that Washington’s coastal and 

marine environments and navigable waters continue to be a source of beauty, recreation, health, ecological integrity, food production, and economic betterment for 

Washington citizens. We need Congress to help. 

67 

1Washington’s Vessel Entries and Transits for Washington Waters, VEAT 2006, WDOE Publication 07–08–005. 2 Regulatory Assessment, Use of Tugs to Protect Against Oil Spills in the Puget Sound Area, 

p. 7, U.S. Coast Guard, Report No. 9522–02, November 15, 1999. 3 Regulatory Assessment, p. 13, November 15, 1999. 

4 Regulatory Assessment, p. 18. 

5 Regulatory Assessment, p. 1–20. 

B. Puget Sound Bears Unique Risks Due to Passenger Ferry and Commercial Vessel 

Interactions 

Washington is unique in that a very large number passenger ferries crisscross 

through the traffic lanes in which large cargo vessels are required to travel. Washington has the largest car passenger fleet in the Nation. As population grows, the 

number of ferry transits will increase. As cargo vessel grow larger and the number 

of cargo vessel transits increase, so too will the risk of them negatively interacting 

with an increasingly active ferry fleet. 

Cargo vessels are growing in both size and number in Washington. These vessels 

encounter passenger ferries zipping around the Sound taking Washington citizens 

to and fro. This poses a growing risk of oil being spilled in Washington’s waters 

from cargo vessels. 

A growing number of cargo vessels are transiting more frequently in Washington’s 

waters. In 2006, there were over 6,000 cargo and passenger vessel that engaged in 

‘‘entering transits’’ in Washington. This number jumps to over 12,000 when considering that most cargo vessels entering Puget Sound must leave through the Strait 

of Juan de Fuca. In Puget Sound alone, there were over 2,000 cargo and passenger 

vessel transits. Again, when one considers that these vessels must leave Puget 

Sound, this number jumps to over 4,000 trips. These transits happen in conjunction 

with 23 public passenger ferry routes that, in 2006, had over 167,000 transits made 

through them across the commercial vessel traffic lanes.1 As cargo vessels grow bigger and increase their transit numbers, the risk posed by interactions between cargo 

vessels and passenger ferries will increase. And, of course, this is complicated by 

a very high volume of recreational boater traffic, which exists due to Washington’s 

popularity with recreational boaters and fishers. 

C. Risk From Cargo Vessels Currently Exist and Will Continue to Grow 

Cargo vessels have a history of having dangerous mishaps in Washington’s waters. After a review of Washington vessel incident data, the Washington Department 

of Ecology concluded that: 

• Cargo and passenger vessel casualty and near-miss rate trend is downward, but 

the spill rate trend is flat. 

• The overall downward trends should be viewed in light of other indicators that 

show there are generally longer periods of time between spills to marine waters—especially large spills. 

• Ongoing efforts by Ecology, the Coast Guard, maritime industry, tribes, and 

public advocacy groups appear to be pushing most spill and incident rates 

downward in Washington State. However, maintaining the downward trend will 

require focused on-going efforts. Also, Ecology specifically believes non-tank vessels need to be regulated to a much higher standard than exists today. 

Projections show that cargo vessels will grow in both size and in number. In 1999, 

the U.S. Coast Guard reported that over 65 percent of the vessels above 300 gross 

tons (GT) that transited the Strait of Juan de Fuca were container ships and bulk 

carriers.2 The Coast Guard report also noted that Puget Sound waterborne commerce is becoming increasingly dominated by container traffic—over 75 percent of 

the tonnage moved through the Port of Seattle is not in containers, with break bulk 

traffic, including paper and pulp, moved through Tacoma and surrounding ports.3

Movements of dry cargo are predicted by the Coast Guard study to increase by 3.6 

percent per year through 2025.4 Thus, by 2025, it is expected that bulk carrier and 

containership transits will increase from 7,513 transits in 2000 to over 12,425 transits in 2025. Additionally, these ships will get much larger. The 1999 Coast Guard 

report noted that in 1997 27 percent of container ships were less than 2,500 TEU 

and that 36.7 percent were 2,500 to 4,000 TEUs, with 36.1 percent being greater 

than 4,000 TEUs. The report noted that the first of the large 6,000 TEU container 

ships were delivered in 1996, and more than thirty 4,500 plus TEU container ships 

were delivered through 1999. The study projects that by 2025, that only 30 percent 

of the container fleet will be comprised of vessels under 4,000 TEU, with 70 percent 

of the fleet being comprised of vessels over 4,000 TEU.5

68 

6 Regulatory Assessment, p. 19–20. 

7 United States v. Locke, 529 U.S. 89, 120 S. Ct. 135 (2000). 

Naturally, the bunker fuel carried increases with the size of the ship. Thus, the 

Coast Guard reported that gallons of oil transported as bunker in cargo vessels 

(bulk liquid carriers, bulk carriers, container ships, and vehicle carriers) would increase from 78,385,168 gallons in 2000 to over 143,405,063 gallons per year in 2025. 

This is a transit increase of about 160 percent and an increase of oil transported 

by cargo vessels of about 180 percent.6 While this may not have quite the ‘‘wow factor’’ as what is predicted to be carried by oil tank vessels, this oil transport presents 

a serious and significant risk. 

D. Global Climate Change Will Worsen Existing Risk 

As human-induced climate change inevitably worsens, there will be more random 

and serious weather events. For example, this past December 3, Seattle experienced 

its second rainiest day on record. First place goes to a rainy day in very recent history—2003. Now that we can predict that the 100-year storm will come much more 

frequently, weather related vessel incidents may increase accordingly. As an example of this, on December 3, the KAUAI, a 720-foot container ship sailing near Cape 

Flattery, Washington was suddenly smashed by a large ocean swell. The waves 

broke out the wheelhouse windows, damaged electronic systems and knocked out 

the ship’s primary steering system. 

Disaster was averted, however. The vessel did not drift onto the rocks and spill 

oil because the state-funded Neah Bay rescue tug launched to save the stranded 

cargo vessel. This was the tug’s thirty-fourth save since it was put on stand-by status in 1999. Its thirty-fifth save came days later on December 12 when it saved the 

NA HOKU, a 105-foot tug towing a fuel barge containing more than two million gallons of diesel fuel and about a half million gallons of gasoline. The tug was headed 

down Washington’s outer coast when its primary electrical generator engine failed 

about 12.5 miles west of Cape Flattery. As storm events gain strength and frequency, it is paramount to have a tug that intervenes to prevent groundings when 

vessels are disabled or have reduced maneuverability or propulsion capability while 

transporting oil and other cargo along the Pacific coast and through the Strait of 

Juan de Fuca. 

III. Options for Reducing Risk from Cargo Vessels 

A. Introduction 

Seeing strong Federal regulations put into place at the Federal level is extremely 

important to the Council and the State of Washington, particularly in areas in 

which states are limited in their ability to prevent oil spills from underway vessels 

engaged in commerce.7

There are several very real changes Congress could make to enhance prevention 

of oil spills from non-tank vessels. 

First, Congress could work to enhance Federal and state collaboration to prevent 

oil spills, including changing Coast Guard and state dynamics and authorities. For 

example, Congress could delegate authority to capable states like Washington to 

conduct vessel inspections, conduct investigations, and enforce Federal regulations, 

and to review and approve vessel and facility contingency plans. 

Second, Congress could federally apply Washington’s Voluntary Best Achievable 

Protection Standards to non-tank vessels. 

Third, Congress could require that cargo vessels be redesigned so that their bunker fuel tanks are not so vulnerable to injury and leakage. 

Fourth, Congress could require that the Coast Guard complete the ‘‘Salvage Rule’’ 

and also extend it to non-tank vessels. 

Fifth, Congress could relocate the high-volume port line to the entrance of the 

Strait of Juan de Fuca. 

Sixth, Congress could extend restrictions in the Area To Be Avoided around the 

Pacific Coast Marine Sanctuary to non-tank vessels (not just oil cargo vessels) and 

expand the definition of ‘‘carrying cargo’’ to include tank oil ‘‘clingage.’’ 

Last, Congress could implement Federal non-tank vessel contingency planning requirements and recognize state accepted ‘‘umbrella’’ plans. 

B. Enhanced Federal and State Collaboration to Prevent Oil Spills; Changes to Coast 

Guard and State Interactions and Authorities 

The State of Washington, through the State Department of Ecology, has a positive 

and strong partnership with the Coast Guard. This relationship was affirmed and 

reinforced earlier this year at an oil spill summit between Governor Gregoire and 

Admiral Houck, Commander of the Thirteenth District of the U.S. Coast Guard. 

69 

But, we acknowledge there is still work to be done. The following are recommendations for continued improvements as they relate to non-tank vessels. 

Again, these recommendations have not been vetted through the Council, which 

will take these issues up at its January meeting. While certain industries may not 

fully agree with these recommendations, most of the stakeholder groups represented 

by the Council would agree. Also, the State Department of Ecology agrees. 

Delegate Authority to Capable States Like Washington 

The Washington Department of Ecology and the Oil Spill Advisory Council maintain that one way to optimize Federal and state resources would be for Congress 

to direct the Coast Guard to delegate authority to capable states to perform several 

functions: conduct vessel inspections, conduct investigations and enforce Federal 

regulations, and to review and approve vessel and facility contingency plans. 

Review and Approve Vessel and Facility Contingency Plans 

The Washington Department of Ecology has reviewed and approved non-tank, 

tank vessel, and facility contingency plans for over thirteen years. Washington regulators have a long history of implementing a rigorous plan review and drill program. 

Ecology’s plan review staff members are recognized nationally as leaders. This reputation is based on local knowledge and relationships built with communities, industry, Federal, state and local agencies, and tribal nations. 

The Federal Government has only recently begun to require contingency plans 

from non-tank vessels. All tank and non-tank vessel contingency plan reviews are 

centralized by the Coast Guard to ensure consistency in applying standards. Copies 

of the plans are maintained at the Coast Guard’s Headquarter offices in Washington, D.C., rather than in local Captain of the Port offices. Yet, any spill that occurs is going to have a local impact and any response will typically be managed by 

local state and Federal officials, using local Area Contingency Plans. 

Delegating authority for qualified and experienced state personnel to conduct 

these activities would maximize efficiency and effectiveness of both agencies’ resources and provide a strong unified approach for responding to spills in Washington waters. Further, it would enhance mutual respect and collaboration between 

state and Federal safety professionals, and would reduce duplication of efforts where 

agencies have concurrent jurisdiction or areas of mutual interests. 

Vessel Inspections and Delegation to Investigate Violations of and Enforce Coast 

Guard Regulations 

The Washington Department of Ecology has a staff of trained and experienced 

mariners who board tank vessels through a program called the Voluntary Best 

Achievable Protection Program (BBAP). This program was put into place after U.S. v. Locke as a way for the state to continue to provide oil spill prevention services 

for underway tank vessels. The program has been enormously successful. 

Through the VBAP program, Ecology inspectors board participating tank vessels 

and conduct inspections to determine whether VBAP standards are being met. Simultaneously, inspectors are able to determine if the vessels are compliant with 

Coast Guard regulations. In this way, Ecology inspectors can act as the Coast 

Guard’s eyes and ears. 

Ecology’s experience has been that vessel crews see Ecology staff as mentors who 

provide education regarding what is expected in Washington waters under applicable law. The experienced Ecology inspectors are seen as equals—as experienced 

mariners, many of whom have lived and worked in Washington’s waters for years, 

even decades. This augments Coast Guard activities, many of which are performed 

by staff rotating into a Washington assignment from a different area or from the 

Coast Guard Academy. Having state inspectors board participating vessels is of 

enormous benefit. Education conducted by state inspectors has increased crew ‘‘situational awareness,’’ which is often a key to preventing incidents that lead to oil 

spills. 

It makes sense to expand the role of this trusted and capable resource to include 

inspecting both tank and non-tank vessels and conducting investigations to determine compliance with Coast Guard Rules. It also would seem logical to extend this 

authority to allowing capable states to assist with enforcement of Federal Coast 

Guard regulations on both tank and non-tank vessels. 

C. Federally Apply Washington’s Voluntary Best Achievable Protection (VBAP) 

Standards to Non-tank Vessels 

Many of Washington’s thirty-one VBAP standards for tankers already have been 

incorporated into Federal and international standards. Insofar as these standards 

have not been extended to non-tank vessels, it is logical to extend them. Washington’s VBAP standards include, but are not limited to, navigation watch, bridgeVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00073 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
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watch composition, bridge resource management, voyage planning, refresher training, drug and alcohol policies, personnel evaluation system, work hours, language 

proficiency, record keeping, and preventative maintenance documentation. These 

standards are geared toward preventing incidents while underway that could lead 

to oil spills in marine waters. 

Cargo vessels are growing appreciably in their size and in the amount of bunker 

they will hold. Therefore, taking measures to reduce incidents that could result in 

bunker fuel entering marine waters is a sound risk reduction strategy. 

D. Vessel Design; Double Hull Bunker Tanks on Cargo Vessels 

Just as Federal law no longer allows tankers to be constructed without a double 

hull in order to protect oil cargo, neither should vessels be constructed with unprotected bunker tanks. Current regulatory requirements permit fuel tanks to be arranged outside of the cargo block region and to be located adjacent to the shell. This 

was an issue with the COSCO BUSAN that ‘‘scraped’’ the side of the San Francisco 

Bay Bridge and instantly lost 58,000 gallons of bunker. 

E. Complete and Extend the Coast Guard Salvage and Firefighting Rule for Vessel 

Contingency Planning 

The Federal Water Pollution Control Act, as amended by the Oil Pollution Act of 

1990, mandated that the Coast Guard issue regulations to improve response capabilities from tank vessels and minimize the impact of oil spills from these vessels. 

The Coast Guard promulgated a rule in 1993 that required salvage and marine firefighting resources in vessel oil spill response plans for tank vessels. This rule should 

be finalized and also extended to cargo vessels. 

The Coast Guard’s 1993 rule did not set forth specific requirements because salvage and marine firefighting response resource requirements were viewed as unique 

to each vessel. The CG intended to rely on plan holders to prudently identify contractor resources to meet their needs. The CG thought that significant benefits of 

a quick and effective salvage and marine firefighting response would be sufficient 

incentive for industry to develop salvage and firefighting capabilities similar to the 

development of oil spill removal organizations. Also, the Coast Guard mandated no 

specific response times due to concerns over the capacity of these resources that existed in the United States. Yet, under the 1993 rule, response plans submitted for 

approval after 1998 (by owners or operators of tank vessels carrying groups I 

through V petroleum oil as a primary cargo) had to identify a salvage company with 

expertise and equipment and a company with firefighting capability that could be 

deployed to a port nearest to the vessel’s operating area within 24 hours of notification or discovery of a discharge. 

In 1997, the CG became aware that anticipated salvage and marine firefighting 

capability development was not occurring. Instead, there was disagreement among 

plan holders, salvage and marine firefighting contractors, marine associations, public agencies, and other stakeholder regarding what constituted adequate salvage and 

marine firefighting resources. There was also concern over the ability to meet the 

24-hour requirement. So, the Coast Guard delayed implementation of the 1998 requirement. In 2001, the Coast Guard suspended the rule again, saying the suspension would be lifted in 2004. 

In 2002, the Coast Guard issued a notice of proposed rulemaking to amend the 

1993 rule in light of stakeholder meetings that occurred. The proposed rule provided 

that plan holders of a vessel carrying groups I through V of petroleum oil as primary cargo would need to identify, in their plans, a salvage and marine firefighting 

resources provider(s) that performs the specific salvage and marine firefighting services identified in a proposed table. The CG said that the proposed table provided 

the specificity that was previously lacking while still maintaining flexibility for each 

vessel. Focusing on services, versus specific equipment, was deemed to be more 

practical for the plan holder, since the amount and type would vary depending on 

the vessel’s characteristics and the operating environment. 

This proposed rule generated many comments of many different perspectives. The 

rule was never finalized. Instead, just before the 1993 rule’s suspension was to end 

in 2004, the Coast Guard issued a notice stating it would suspend the rule for another 3 years until 2007. Then in 2004, the Coast Guard issued another 3 year suspension and the new date for the suspension to end is in 2009. 

Congress should consider directing the Coast Guard to finish this rule, incorporate 

the changes suggested by the Pacific States/British Columbia Oil Spill Task Force, 

and extend the rule to non-tank vessels. 

F. Relocate the High-Volume Port Line to the Entrance of the Strait of Juan de Fuca 

The Department of Ecology finds that the high-volume port line, currently located 

at Port Angeles, should be moved to the entrance of the Strait of Juan de Fuca. 

71 

The Coast Guard’s oil spill response planning requirements apply (or do not 

apply) to an area based on whether the area is east or west of the high-volume port 

line that currently is established in an alignment from Port Angeles, Washington 

to Vancouver Island, Canada. As a result of this, response equipment is not required 

to be pre-staged close to Washington’s outer coast. Staging equipment only in this 

eastern area increases the time it will take to mount an effective response to a spill 

event on the outer coast. 

Puget Sound is a high-volume port and, therefore, merits more response equipment being available in the event of a spill. The Strait of Juan de Fuca is the only 

commercial vessel traffic highway through which vessels traveling into Puget Sound 

proceed. Yet, having the high-volume port line established at Port Angeles, rather 

than at Strait’s entrance, denies much of this high volume vessel highway the same 

response equipment protections that are available east of Port Angeles. 

High-volume port lines for all other ports in the country are located at the entrances to main water bodies, not sixty miles inside as in the case of Washington. 

Similarly situated areas should be treated similarly. 

The State of Washington is concerned that Washington’s coastline is not adequately protected on the basis of the current high-volume port line location. The 

eventual Federal requirement for a marine salvage response capability is also expected to be based on this high-volume port line. The State is very concerned that 

this may jeopardize a timely rescue/response action off of our pristine coastline. We 

urge Congress to shift this critical response benchmark to the entrance of the Strait 

of Juan de Fuca. 

G. Extend the Pacific Coast Marine Sanctuary Area to Be Avoided to Include NonTank Vessels (Not Just Oil Carrying Tank Vessels) and Expand Definition of 

‘‘Carrying Cargo’’ To Include Tank Oil ‘‘Clingage’’ 

The Olympic Coast National Marine Sanctuary is one of our Nation’s most treasured marine areas. Its mission is to protect the sanctuary and ensure that future 

generations are able to use and enjoy it. That means that managing the sanctuary 

to both conserve its resources and encourage uses that are compatible with conservation. To this end, the Area To Be Avoided was created by the International 

Maritime Organization. The ATBA standard is that ‘‘all ships and barges carrying 

cargoes of oil or hazardous materials’’ will not enter the ATBA. 

Recently, the Oil Spill Advisory Council wrote a letter to the NOAA’s Olympic 

Coast Marine Sanctuary questioning why vessels with hundreds or thousands of 

gallons of oil ‘‘clingage’’ inside their tanks are not considered to be ‘‘carrying cargo,’’ 

and thus required to stay outside of the ATBA. The Council asked that the Sanctuary revisit its interpretation of ‘‘carrying cargo’’ and make a determination about 

whether oil carrying ships and barges that are mostly empty should be considered 

empty and not carrying cargo, or whether they should be considered mostly empty 

and carrying some cargo. 

Unfortunately, the Sanctuary responded that it feels constrained by the ATBA 

language and that it will continue to consider vessels that have only residual product in their holds as not ‘‘carrying cargo,’’ and thus not having to stay out of the 

Sanctuary’s ATBA. 

The Council asks that Congress act to change this. The Council has learned from 

the Washington Department of Ecology (Ecology) that oil-carrying vessels that have 

been ‘‘emptied’’ actually contain at least several hundred gallons of oil onboard, and 

are more likely to contain several thousand gallons of oil ‘‘residue.’’ We have even 

learned that one vessel that had its tanks cleaned and certified to be gas-free was 

still carrying 15,000 gallons of diesel when it landed on the rocks. 

The Council has learned that if an incident involving a vessel carrying thousands 

of gallons of oil, or even hundreds of gallons of oil, resulted in a release of that oil 

to the environment, serious environmental and economic harm would almost certainly result. There are scenarios where the release of this residue oil could cost the 

State of Washington millions and millions of dollars. 

True, the severity of any oil related incident depends on factors such as the type 

of oil released, where the oil is spilled, whether weather conditions are conducive 

to containment and recovery, and the sensitivity of impacted habitats and resources. 

However, it goes without saying that hundreds or many thousands of gallons of oil 

released into the environment would not be an insignificant event, especially in an 

area where the precautionary principle is being implemented as the IMO deemed 

it to be ‘‘exceptionally important to avoid casualties.’’ 

Additionally, preventing huge cargo vessels with many thousands of gallons of oil 

as bunker to transit through the ATBA is not consistent with the goals of the ATBA 

or the Sanctuary. Therefore, Congress should expand the ATBA to include non-tank 

72 

vessels that are simply transiting through the ATBA without any real need to be 

there (such as fishing vessels who are actively fishing inside the sanctuary). 

H. Vessel Response Plans for Non-Tank Vessels 

Federal regulations for non-tank vessel contingency plans should be finalized 

without further delay and aggressively implemented. In addition, Congress should 

recognize state accepted planning standards that increase response effectiveness. 

Many states, including Washington and Oregon, have adopted an ‘‘umbrella’’ approach for non tank vessel planning, approving a single plan that covers large classes of vessels. The state believes the Federal rules should fully recognize state accepted umbrella plans that are locally designed. They are more cost-effective for industry and ensure the local first-response capability is aggressively launched in the 

event of a spill. This approach is also able to provide a smooth transition to any 

longer-term response organization without compromising Federal or international 

standards. This can be accomplished by delegation of authority to authorized states. 

I. Impose Additional Speed Limits in Vessel Traffic Lanes; Enforce With Civil and 

Criminal Penalties 

The pilot maneuvering the COSCO BUSAN was speeding. Had he not been, he 

possibly could have averted the vessel away from the bridge. The pilot apparently 

had a history of being careless and going too fast. Had there already been in place 

enforceable speed limits that could form the basis for fining companies and for taking away the license of a pilot or a master, it is quite possible that the COSCO 

BUSAN pilot would not have been ‘‘behind the wheel.’’ 

The larger the vessel, the longer it takes to stop. Cargo ships often take miles 

to slow down and stop. The difference in being able to avert disaster or not, could 

be as little as one knot. Therefore, it is important to slow down vessel traffic and 

to enforce vessel speed limits, just like we do on our Nation’s highways. Indeed, it 

is even more important given that one ‘‘boat wreck’’ can ‘‘wipe out’’ an entire community, its culture, and its economy. Congress could impose these speed limitations 

and couple them with strong Coast Guard enforcement. 

IV. Conclusion 

I would like close by stressing how vitally important it is for all levels of government to work together to solve these issues—for the Federal Government to work 

with state, tribal, and local governments to assure that while we pursue the interests of commerce, we do not do so at the expense of other things that are so dearly 

important to our culture, our local communities, and our general well being. 

Thank you for inviting me to testify before the Senate Commerce Committee. I 

would be happy to answer any questions you have. 

Senator CANTWELL. Thank you, Mr. Cooper. Mr. Deaver, welcome, and thank you for being here. 

STATEMENT OF WILLIAM G. DEAVER, PRESIDENT AND COO, 

TOTEM OCEAN TRAILER EXPRESS, INC. 

Mr. DEAVER. Thank you very much, Madam Chair. Thank you, 

Madam Chairman and Ranking Member Snowe. I am William 

Gary Deaver, Bill, President of Totem Ocean Trailer Express. And 

I want to thank you for the opportunity to express my company’s 

views on this matter. 

Totem Ocean Trailer Express, or TOTE, is a Jones Act carrier 

transporting cargo between Tacoma, Washington and Anchorage, 

Alaska. Since 1975, we have been serving the people of Alaska by 

transporting the things that Alaskans eat, wear, and use. We have 

170 shore-based employees and provide direct and indirect jobs for 

an additional 525 individuals onboard our vessels, as stevedores, 

truck drivers, warehouse operators, and others. Together, we have 

served the Alaska trade consistently, efficiently, and without a significant oil spill for 32 years. We currently operate two new vessels 

that were built at NASSCO’s shipyard in San Diego and were delivered in 2003. 

73 

Madam Chairman, TOTE believes that prevention is better than 

cleanup, and we have designed our ships with our operating systems to prevent oil spills. Our ships were designed to minimize the 

risk of oil spills, such as the recent tragedy in San Francisco. Specifically, TOTE’s ships carry their fuel in tanks that are approximately eight feet inside the sides of the outer hull; in other words, 

an object has to penetrate the side of the ship by more than eight 

feet in order to rupture the fuel tank. 

Moreover, the tanks themselves have double bottoms, and are 

elevated more than ten feet above the bottom of the hull, thereby 

offering similar safety in the event of a grounding. The tanks themselves are vertical, instead of being parallel to the waterline as is 

traditionally the case. This is a very crucial safety factor. The fuel 

tanks are approximately 20 feet wide; hence, only about 20-footwide band of the ship’s 839-foot length is vulnerable. There is no 

fuel tank behind the other 819 feet of the ship’s sides. 

The combination of the set-back from the outer hull and the 

vertical orientation of the fuel tanks means that to breach the fuel 

tank an object would have to penetrate the hull by more than eight 

feet, and the penetration would have to occur within a 20-foot 

band, which is less than one-fortieth of the ship’s length. In other 

words, even a collision that penetrated the hull by more than eight 

feet would not damage the fuel tanks if the collision occurred on 

the other thirty-nine fortieths of the ship’s length. 

In addition, TOTE’s vessels incorporate numerous other elements 

that reduce the risk of oil pollution and other environmental hazards, such as: we have three separate radar systems on each vessel; we have redundant oily water separators on each vessel, ensuring that gray water discharge from the vessel is 98 percent pure; 

each vessel operates with twin electric screws with four main and 

two auxiliary diesel generators with diesel electric; twin rudders; 

airspace stern tube sealing system that prevents lubricant leaks; 

and a self-containing ballast system to prevent the spread of 

invasive species through ballast discharge. 

These design elements went beyond what was legally required, 

and they were expensive. We estimate that we spent approximately 

$15 million per ship for system redundancies and environmental 

enhancements that were not legally required. But TOTE’s people 

and our operating practices are at least as important as preventing 

oil spills as the vessel design. 

First, as a Jones Act carrier, our ships are crewed by Americans. 

Therefore, language and communication problems are minimized 

when the Master, crew, and pilot speak a common language. Moreover, our crews are highly trained, experienced, and well-qualified 

to operate our vessels safely and in an environmentally sound manner. All of us take immense pride in TOTE’s commitment to environmentally sound vessel design features and our operating safety 

processes. 

The main terminals in both Alaska and Washington State were 

certified ISO–14001:2004, which is Environmental Management 

System compliant this past June for all the facilities and all the 

loading and unloading cargo and equipment to and from the vessels. In addition, each of our ships enters and leaves Puget Sound 

and Cook Inlet approximately 50 times per year. Our Masters have 

74 

all been with TOTE for at least 15 years. They know their crews, 

they know the waters, they know the pilots. The pilots know the 

ships, they know the Masters, and of course, they know the waters. 

In Alaska, for example, TOTE contracts with pilots who ride the 

ships fulltime from Tacoma to Anchorage and back, thereby eliminating the risk and uncertainty of having to take on a pilot in 

stormy Cook Inlet in the darkness of an Alaskan winter. We believe that these measures, which we have taken voluntarily, are 

the best, most proactive ways to minimize the risk of oil spills and 

other environmental safety hazards in our industry. Thank you for 

this opportunity to express our views. 

[The prepared statement of Mr. Deaver follows:] 

PREPARED STATEMENT OF WILLIAM G. DEAVER, PRESIDENT AND COO, 

TOTEM OCEAN TRAILER EXPRESS, INC. 

Madam Chairman and members of the Subcommittee, I am William G. Deaver, 

President of Totem Ocean Trailer Express, Inc. I want to thank you for this opportunity to express my company’s views on this matter. 

Totem Ocean Trailer Express, or TOTE, is a Jones Act carrier transporting cargo 

between Tacoma, Washington and Anchorage, Alaska. Since 1975, we have been 

serving the people of Alaska by transporting the things that Alaskans eat, wear, 

and use. We have 170 shore based employees and provide direct and indirect jobs 

for an additional 525 individuals onboard our vessels, as stevedores, truck drivers, 

warehouse operators and others. Together, we have served the Alaska trade consistently, efficiently, and without a significant oil spill for thirty-two years. We currently operate two new vessels that were built at NASSCO’s shipyard in San Diego 

and were delivered in 2003. 

Madam Chairman, TOTE believes that prevention is better than clean-up and we 

have designed our ships and our operating systems to prevent oil spills. 

Our ships were designed to minimize the risk of oil spills such as the recent tragedy in San Francisco Bay. Specifically, TOTE’s ships carry their fuel in tanks that 

are approximately 8 feet from the sides of the ship’s outer hull. In other words, an 

object would have to penetrate the ship’s side more than 8 feet in order to rupture 

the fuel tank. Moreover, the tanks themselves have double bottoms and are elevated 

more than ten feet above the bottom of the hull, thereby offering similar safety in 

the event of a grounding. 

The tanks themselves are vertical, instead of being parallel to the water line as 

is traditionally the case. This is a crucial safety factor. The fuel tanks are approximately 20 feet wide. Hence only about a 20-foot wide band of the ship’s 839-foot 

length is vulnerable; there are no fuel tanks behind the other 819 feet of the ship’s 

sides. The combination of the set-back from the outer hull and the vertical orientation of the fuel tanks means that to breach the fuel tank an object would have to 

penetrate the hull by more than 8 feet and the penetration would have to occur 

within a 20-foot band, which is less than one-fortieth of the ship’s length. In other 

words, even a collision that penetrated the hull by more than 8 feet would not damage the fuel tanks if the collision occurred on the other thirty-nine fortieths of the 

ship’s length. 

In addition, TOTE’s vessels incorporate numerous other elements that reduce the 

risk of oil pollution and other environmental hazards, for example: 

• Three separate radar systems; 

• Redundant oily water separators ensure that our grey water discharge is 98 

percent pure; 

• Twin electric screws with four main and two auxiliary diesel generators; 

• Twin rudders; 

• Airspace stern tube sealing system that prevents lubricant leakage; and 

• Self-contained ballast system to prevent the spread of invasive species through 

ballast discharge. 

These design elements went beyond what was legally required, and they were expensive. We estimate that we spent approximately $15 million per ship for system 

redundancies and environmental enhancements that were not legally required. 

75 

But TOTE’s people and our operating practices are at least as important in preventing oil spills as the vessel design. First, as a Jones Act carrier, our ships are 

crewed by Americans. Language and communication problems are minimized when 

the Master, crew, and pilot speak a common language. Moreover, our crews are 

highly trained, experienced and well-qualified to operate our vessels safely and in 

an environmentally sound manner. All of us take immense pride in TOTE’s commitment to environmentally sound vessel design features and our operating safety processes. The main facilities in both Alaska and Washington State were certified ISO– 

14001:2004 (Environmental Management Systems) compliant this past June for all 

facilities and the loading and unloading of cargo and equipment to and from our 

vessels. 

In addition, each of our ships enters and leaves Puget Sound and Cook Inlet approximately fifty times per year. Our Masters have all been with TOTE for at least 

15 years. They know their crews, they know the waters and they know the pilots. 

The pilots know the ships, they know the Masters, and of course they know the waters. In Alaska, for example, TOTE contracts with pilots who ride the ship full time 

from Tacoma to Anchorage and back, thereby eliminating the risk and uncertainty 

of having to take on a pilot in stormy Cook Inlet in the darkness of an Alaskan winter. 

We believe these measures, which we have taken voluntarily, are the best, most 

pro-active ways to minimize the risk of oil spills and other environmental and safety 

hazards in our industry. Thank you for this opportunity to express our views. 

Senator CANTWELL. Thank you, Mr. Deaver. And I want to thank 

all the panelists who are—the second panel seems to be focused a 

little more on the prevention issue, not that colleagues here didn’t 

want to know a lot about where we are on this rulemaking and response plans and things of that nature. But if I could follow on this 

line of prevention, and ask each of you about where you really 

think we are, in context of—I guess you could just say a grade, if 

you will, in the context of prevention. 

We have prevention, we have preparedness, and we have response plans. And I think we all know how expensive the response 

plans are. So I’m just trying to get a sense of where you—how 

much Mr. Deaver there is showing a stellar response, I guess I 

would say. It sounds like you may be the leader of the industry. 

But I want to hear from Dr. Etkin and Mr. Cooper, as well, on how 

much more you think we need or can be doing on preparedness. If 

you had to give us a grade today, what would you give us, and 

what else do you think we need to be doing? 

Dr. ETKIN. A grade on preparedness? 

Senator CANTWELL. Yes. 

Dr. ETKIN. I’d probably give us a C. I think that because we’ve 

had fewer spills, I think there are fewer people who were welltrained to respond. Many of the old-school response people who are 

involved in some of the larger spills are retiring now. They tell me 

that there are many people who are spill responders who have 

never actually been to a really big spill. And I think that’s a concern. 

I think we need to increase our preparedness in terms of the 

amount of equipment that we have available, and we need to train 

and position that equipment in a way that we can get out there 

more quickly, because, as I’ve shown many times in trajectory modeling and other studies, that the more quickly you get out there to 

respond, the better you are in terms of reducing damages and the 

spread of the oil. That’s certainly an issue that merits attention. 

In terms of prevention, I think we’re doing better in the U.S. 

than elsewhere. I’ve done some work on the international front, 

and I see that we tend to have a better class of vessels coming into 

76 

U.S. waters, particularly with regard to the Certificate of Financial 

Responsibility. Ship owners are afraid to come into U.S. waters, because they’re afraid of the liability limits, they’re afraid of natural 

resource damages assessments, which is something that does not 

exist outside the United States. So there certainly is that to consider. 

But I think we need to carefully examine those liabilities, and 

then we can see that we really recover all of the costs of the spill. 

Senator CANTWELL. Thank you. Mr. Cooper? And really, I’m focusing on—Dr. Etkin, I believe that you said it—about working together and being positive. What we need to understand is how 

much more is out there in the area of preparedness, and I want 

to make sure—I’m thrilled that you seem to be doing a lot of work 

in this particular area. If you help us understand where we are and 

how much better we can do? 

Mr. COOPER. In Washington State, I think, in particular, in the 

preparedness area, we’ve come a long way, largely because of some 

actions that have been taken by the Governor and the State Legislature over the last two or 3 years in requiring plans for—requiring 

pre-booming and requiring plans for bunkering—for pre-booming 

during bunkering, and requiring better contingency plans and 

things like that at the state level. 

I think we’ve got a long ways to go. We could do many more 

things. There are some people who think that, for example, the tug 

escort requirements in the Strait of Juan de Fuca could be a little 

bit stricter. There are some who believe that we need, as I mentioned, that we need to push harder on the double hull issue. One 

of the things that I see in Puget Sound, in particular, and on the 

outer coast, is the increased traffic of barges and tugs carrying fuel, 

something that we haven’t spent a lot of time talking about. 

So we’re probably in very, very good shape in Washington, but 

we can always do more. The other thing I would note is the Memorandum of Agreement that the state signed with the Coast Guard 

and how we’re going to jointly manage the waterways for prevention and preparedness. So, I’d say nationally we’re a C. I’d like to 

believe that in Washington State we’re a B or a B+ in many of 

those areas. But we’re not perfect. 

Senator CANTWELL. Thank you. Mr. Deaver? 

Mr. DEAVER. I would give us a C–. I think that industry can continue to do more. We have a carrier in Evergreen Maritime, out of 

the Republic of China, that have come up—there are vessels now 

that have the vertical fuel tanks, similar to what TOTE has put in, 

which I think is a very positive step, and those ships are culling 

on the West Coast. So I think that that is a very positive step, but 

I think that industry can continue to do more. 

Senator CANTWELL. Mr. Deaver, why did TOTE respond so aggressively to the development of vessels that met these prevention 

techniques that have been so helpful, and having that stellar 

record for so many years? 

Mr. DEAVER. We looked at the vessel assets that we were building, and we said that these vessels will be in operation for up to 

and exceeding 40 years. And we were looking over the horizon as 

to what the regulations might be, or how we would really want to 

treat the waters that we live and work in. So we voluntarily took 

77 

the measures, because we said it was simply the right thing to do 

in the environment that we work. 

Senator CANTWELL. So how many other companies have vessels, 

such as TOTE, with tanks in the center of the ship, well protected 

from possible eruption from collision and other activities? 

Mr. DEAVER. The only ones that I’m really aware of are the new 

Evergreen ships that have come out, but I’m not totally aware of 

that. But the industry, I believe, will begin to migrate to that 

vertical-type tank within these ships? 

Senator CANTWELL. They will do so on their own or—is there an 

economic benefit for doing that? 

Mr. DEAVER. I think that there is a benefit environmentally in 

being able to say that they have taken the steps to mitigate spills. 

But economically, I don’t know that that could be said at this point. 

Senator CANTWELL. So your company looked at it over a 40-year 

period and just decided that this is the right thing to do. 

Mr. DEAVER. It is the right thing to do. 

Senator CANTWELL. Thank you. Senator Snowe? 

Senator SNOWE. Yes. Thank you, Madam Chair. Dr. Etkin, I 

know it’s important to move forward, but what are the lessons 

learned from what happened with COSCO BUSAN? What were 

your impressions of the Coast Guard’s response, and where we 

could make improvements? Obviously, there are a number of issues 

that emerged from that incident, including the lack of timeliness 

on the part of the Coast Guard and notifying local officials other 

than the Coast Guard itself being notified about the magnitude and 

dimensions of the oil spill from 142 to 58,000 gallons. 

Obviously there are a number of issues that we are going to have 

to address, and so will the Coast Guard. In your observations, in 

fact, I’d like to get any of the impressions from the panel, what are 

the lessons learned? What would you recommend to us on the basis 

that you’ve been able to discern from this incident, and that we 

should do better? 

Dr. ETKIN. Well, I actually have had the opportunity to go to San 

Francisco recently. I did see the oiled shorelines and I spoke directly to some of the Coast Guard people and other responders who 

were involved in this spill, because I was involved in working on 

efforts of prevention and response with California Fish and Game. 

I don’t know enough about the specifics of the incident to comment 

too specifically on that. I’m concerned about saying anything more. 

I do collect case histories of spills, and analyze them after the 

fact, and this would be one of the spills that I will have to look at 

in terms of lessons learned. But just offhand, certainly, the delay 

in response contributed greatly to allowing that oil to spread so far 

throughout the bay. I know that there are very, very challenging 

currents in San Francisco Bay. I’ve done some modeling with those 

currents, some trajectory models, and you see that it really is a 

challenge to do on-water oil recovery in this environment. 

But that being said, there was a remarkable—I think you had 

mentioned this earlier—a remarkable oil recovery rate. I was told 

there was about 36 percent, which is actually a very high rate. It 

doesn’t sound very high, but with regard to on-water oil recovery, 

mechanical oil recovery, it is relatively high. So somebody was 

doing something right there, but I think that the delay in notificaVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00081 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\77422.TXT JACKIE
78 

tion was an issue. And certainly, I had gotten an initial notice that 

there were 130 gallons that were spilled, and I didn’t think much 

of it. 

I received these notifications myself, and I was thinking, ‘‘Oh, 

OK. Well, I’ll just chalk that up to one of the smaller ones.’’ Then 

I heard that it was so much larger, and I did hear that the oil must 

have spilled very, very quickly from that size of a gash. Obviously, 

the oil doesn’t just slowly release. I don’t know what happened, and 

certainly that should be investigated, because that delay absolutely 

contributed to the spread of the oil. 

Senator SNOWE. Do you think the 36 percent recovery rate is the 

best we could expect? In other words, it’s very difficult to increase 

that amount of recovery? 

Dr. ETKIN. I’m sorry to say that that is probably true. Except in 

very unusual circumstances, where you’re in very calm, sheltered 

waters, or where you have a pre-boomed vessel that happens to 

have a spill during oil transfer operations. You can sometimes get 

oil recovery 75 percent or even higher in those sorts of circumstances. But on-water recovery, when you’re trying to boom it, 

contain it, and skim it, very rarely more than 10 to 25 percent, so 

it’s actually remarkable that it was 36 percent. 

Although I suspect that some of that oil that they included in 

that count was what was recovered from the shoreline, so I would 

take that with a grain of salt. 

Senator SNOWE. Do you think the Coast Guard’s Response Program is robust enough to address this with nontanker vessels, 

since they represent about a third of the—— 

Dr. ETKIN. Well, I think a spill is a spill, regardless of the source, 

and certainly there are all kinds of spills from all sorts of sources 

and facilities we handle. I think that the Coast Guard’s Strike 

Force Team and, in general, the Regional Response Teams, these 

are very highly trained people who know what they’re doing. And 

I think that there are probably ways which they could work better 

with some of the oil spill removal organizations and private entities 

that are hired by the responsible party. There are probably communication issues and jurisdiction issues. 

Senator SNOWE. Yes. One of the issues was using volunteers. 

There were so many available at the time, and they weren’t integrated in the process early on, and that’s one of the other issues. 

Dr. ETKIN. Yes. My sister was one of those people who were 

there as a volunteer. I know that many people were sorely disappointed that they could not do something. I think there needs to 

be a way to bring people into the process, because there are a lot 

of very motivated people who want to help. 

Senator SNOWE. Mr. Cooper, do you have any impressions? I 

know you were suggesting we should create or delegate one of the 

authorities that is already vested in the Coast Guard to state authorities, whether it’s for inspections, regulations, or conducting investigations. Do you think that’s possible for states to have adequate resources to assume financial responsibilities? Even if preferable, as well, to have a central authority, one who creates a consistency from one agency, such as the Coast Guard, to oversee all 

of those responsibilities? 

79 

Mr. COOPER. I think if we’re going to do that kind of delegation, 

it’s important to know that we have a capable state. And that’s 

why I chose that word in my testimony. A capable state, like I believe Washington State is, where we have people in the Department of Ecology that are well-trained mariners that actually do inspections with the Coast Guard now, and in some cases do some 

of the inspections, as a part of the Memorandum of Agreement between the State and Federal Government, on oil tank vessels. 

And I think that the first thing that would have to happen is the 

Coast Guard would have to ensure that the state had the policies 

and the training and the personnel in place to do those inspections 

for them, under the authority of the Coast Guard. But without that 

training at the State level, I don’t think it’s practical to pass it on 

if the state doesn’t have the resources to be able to do it. 

Senator SNOWE. Yes. Do you think you could establish a level of 

consistency with respect to the inspections, for example, in enforcement? If you were to delegate it to, say, certain states that have 

the capabilities? 

Mr. COOPER. The assumption would be that the states would do 

the inspections consistent with the Coast Guard standards, and 

that it would be actually acting as an arm of the Coast Guard. 

Senator SNOWE. Yes. Do you have any views about the COSCO 

BUSAN in any way from your vantage point? 

Mr. COOPER. I haven’t looked at the information yet. The reports 

are just starting to come out. The Oil Spill Advisory Council is 

looking forward to more extensive briefings on the lessons learned 

as the complete report comes out. I will say that the volunteer 

issue is an issue that came up in Washington, following the very 

small oil spill on the tip of Vashon Island, in an area called Dalco 

Passage, and we’ve been working hard in our advisory capacity at 

the Department of Ecology to try to figure out how to train volunteers. 

And one of the issues that consistently comes up, both in the 

Coast Guard and from the Department of Ecology, is what level of 

HAZWOPER training do those people need to have to be able to respond as volunteers? Now, I know there are people, perhaps some 

in this room, who responded as volunteers to the TENYO MARU 

spill on the Washington Coast, and perhaps at the EXXON 

VALDEZ spill in Alaska, as volunteers were used there. So the 

question is—how do you include organized groups of volunteers? I 

think it’s very, very important to include the community. 

We have caches of equipment now at the local government level 

in Washington. The Legislature made an appropriation, and we actually have local fire departments and local port districts that have 

small caches of booms so that they can respond instantly and without waiting for the longer response time, and I think the response 

time is one of the things that’s going to come out as a very critical 

issue after that spill. 

In my other life as a firefighter, where you put equipment and 

how fast you respond had a lot to do with whether or not the house 

burned down, and I think that type of logic needs to be applied to 

spill response. We need to shorten response times, and we need to 

get trained personnel, boom, and equipment more strategically located around areas like, in our state, Puget Sound, or in California, 

80 

the San Francisco Bay, so that the equipment can get to the scene 

a lot faster. 

Senator SNOWE. Maybe incorporating drills for volunteers. A lot 

of our local counties have volunteer fire departments, for example, 

and emergency personnel. Maybe that’s another way of doing that, 

incorporating the drills so you have that pattern of response, and 

it happens intuitively, based on the experience in those drills. Since 

obviously people were standing by and waiting to help, and they 

were frustrated because they weren’t able to as the spill got worse. 

It’s an interesting point. We really have to draw from our experience and discern in what ways we can improve. Thank you. 

Mr. Deaver, finally, obviously, your company has a very impressive track record, and you’ve taken a very proactive, aggressive approach to prevention. It really is, when you think about the amount 

of money your company has invested to ensure and guard against 

oil spill risks. Did you have any views about, for example, the 

Coast Guard’s response? Some are suggesting we should increase 

their authority with respect to monitoring the transit of vessels in 

and out of port, in terms of their direction or their speed, to have 

the Coast Guard watches be more involved in vessel monitoring the 

trafficking of vessels coming into the port. 

Mr. DEAVER. With the VTS system in an area like San Francisco 

Bay, I think that it would be very difficult to have someone in the 

VTS office giving directions, settings for the best level of speed, on 

an ongoing basis, let’s say as an air traffic controller does with airplanes. That is left normally to the pilot and to the captain. And 

I have read a lot about the incident in San Francisco, and the questions that I would really have there would also come as to what 

is the real liability and responsibility of the pilot and the Master 

in the incident. Because I think that that has to be really clearly 

identified going forward. So it’s more of a question. 

Senator SNOWE. Thank you. Thank you, Madam Chair. 

Senator CANTWELL. Thank you, Senator Snowe. And to follow up 

on that, Mr. Deaver, and to our other panelists, because we’ve really talked about on the prevention side, what were some of the key 

issues in which we needed to spend more time on. And that is in 

thinking about our prevention efforts. 

And I don’t know if you could comment on, in general—I’m not 

talking about this specific incident in San Francisco Bay—but 

human error, communications systems, and weather. If you could— 

Mr. Deaver, you mentioned that you had a three-radar system, and 

I’m assuming that you use that, and probably pretty aggressively 

in avoiding weather issues and staying out of particularly challenging times and particularly challenging areas. But of those 

issues, or any other ones, where do you think we need to be spending more time on prevention? 

Mr. DEAVER. I think it’s really in the management processes, 

generally, within the companies. The vessel construction, and putting internal tanks in vessels, will take a long period of time. There 

has been a tremendous number of new-built container ships in the 

last, let’s say, 5 years, that I believe almost all of the tanks are bottom tanks onboard those vessels. So I think it’s really in the management processes, and I think that clearly there has to be good 

81 

language skills onboard the vessel at the time that it’s transiting 

U.S. waters. 

Senator CANTWELL. Are you saying that’s a significant problem 

today or—— 

Mr. DEAVER. I would ask that question going forward. I don’t 

know. I mean, TOTE is an American-owned company, Americancrewed, English obviously is the language. But I think that that is 

a question when you get into many of the international arrivals 

into the United States. 

Senator CANTWELL. Mr. Cooper? 

Mr. COOPER. As Mr. Deaver stated, I think management practices really need to be focused on as part of the human error question. Oftentimes, and one of the things we’re finding, we’re doing 

a root cause analysis right now, and we’re discovering that the 

Coast Guard and the State Department of Ecology’s recordkeeping 

is not the same, or historically has not been the same. 

It’s better now. But, oftentimes, things get called human error, 

but when you break down the subsets you find out it’s because a 

company didn’t have a policy or didn’t have crew training, or had 

a management practice that needed to be addressed. So I think you 

need to break it down and talk about where the human error originates. What causes a human being to make a mistake? Were they 

tired? Were they not trained? Was there a policy that wasn’t in 

place? But I think, in particular, in Washington—— 

Senator CANTWELL. Do you suggest we follow that up with better 

rulemaking on that? 

Mr. COOPER. If rulemaking is not in place that addresses those 

issues, it probably should be. 

Senator CANTWELL. OK, thank you. I’m sorry—were you going to 

add something else? 

Mr. COOPER. Well, I was just going to very briefly talk about the 

weather. I think, in particular, in Washington, weather is something you need to be paying attention to in the coastal areas where 

wind and storms are factors. There’s a lot of debate going on right 

now in the state about whether or not tankers should be transferring their cargo when the weather is too—even in Bellingham and 

Port Angeles—when the weather is too bad for them to boom that 

vessel. 

There’s probably going to be a question about whether or not the 

state is preempted from making that decision, and so I think 

weather is probably something that should be looked at, as well, 

and rulemaking around when you can transfer fuel and when you 

cannot transfer fuel, and when is it too rough for those vessels to 

be transiting in and out, especially in narrow waterways. 

Senator CANTWELL. Thank you. Dr. Etkin? 

Dr. ETKIN. Actually, I was involved in the study on currents and 

prepositioning of the booms in Washington State, and looked at 

areas where the currents at all times or most times were going to 

be too high to actually effectively be able to contain the oil. From 

this data, the State can then look at that and decide, well, should 

we say that we can’t do any oil transfers in these locations, or do 

we need to take into account the current and weather conditions 

at the time? I think that’s an important thing. 

82 

Certainly, weather is an issue, and fog. I’ve been to San Francisco enough to know that fog occurs a lot in San Francisco. And 

this is something that needs to be factored in. We need to look at 

ways in which one can navigate in fog. And I don’t know—I’m not 

knowledgeable enough to know myself how we’re going to do that, 

but it certainly is an issue that should be looked at. That seems 

obvious. But human error has been shown to be a factor in a lot 

of spills, and certainly what always comes to my mind is the 

JULIE ANNE spill in the Fore River in Portland, Maine, where the 

pilots ordered a ‘‘hard right’’ and hit the bridge. That was quite a 

mess up there. 

That’s an obvious example, but there are certainly a lot of human 

error factors that come into play, and maybe in very small ways. 

And it’s important that we actually look at this, and there are people who are actually studying this type of thing. I think more attention needs to be paid to that, and then look, what is it that 

caused the problem? Is it that the crews are tired or not welltrained? And based on what we find are the real root causes, that’s 

where there should be guidelines or regulations put in place. 

Senator CANTWELL. Well, I want to thank the panel very much 

for your testimony today, and your continued work in this area. 

And I want to thank the Vice Chair, Senator Snowe, for attending 

this hearing. Our Committee meeting is adjourned. 

[Whereupon, at 5:09 p.m., the hearing was adjourned.] 

(83) 

A P P E N D I X 

PREPARED STATEMENT OF BEN JOHNSON, JR., CHAIRMAN, MAKAH TRIBAL COUNCIL

Chairman Senator Cantwell and distinguish members of the Subcommittee: 

Thank you for the opportunity to provide written testimony to the hearing record 

from a sovereign tribal government perspective. 

I. Summary 

While the 58,000 gallon spill caused by the freighter COSCO BUSAN in San 

Francisco Bay last month provided impetus for this hearing, it is important to also 

note that since that time over 4.5 million gallons of oil have spilled into the world’s 

oceans from three tanker incidents in the Black Sea, South Korea and North Sea. 

We are grateful for Senator Cantwell’s leadership on this Subcommittee to help 

minimize the risk of hazardous spills and offer the following comments to that end. 

Cargo freighters comprise the majority of traffic that transits through our Usual 

and Accustomed (U and A) treaty reserved ocean area making them the most likely 

source of a spill. It is also important to understand that oil tankers and oil barges 

pose the risk of the largest, most damaging spills to the marine environment and 

our traditional way of life. My tribe has witnessed firsthand the rapid growth in the 

size of the cargo and passenger vessels that transit our treaty-protected waters. We 

realize this increase in size makes them more vulnerable to the forces of the wind 

and potential sources of bigger spills. We understand that that the General Accounting Office (GAO) has found that over the past 16 years oil tankers and barges comprised just under half of the 51 major oil spills in the Nation and that the cost of 

a spill can be greatly increased in remote, environmentally sensitive areas like ours 

where the shipping lanes come close to shore. Our treaty-protected resources do not 

distinguish between the sources of oil that cause damage upon the event of a spill. 

We call on Congress to help us to develop the capacity to assure state and Federal 

rulemaking incorporate tribal treaty interests. In particular we ask that the Coast 

Guard adequately completes the Salvage and Firefighting rule of OPA 90; requires 

vessel response plans for non tank vessels; and raises the liability cap for all vessels, especially oil barges, to keep up with the consumer price index. Finally we 

strongly recommend passage of the Coast Guard Authorization Act of 2008 with the 

Neah Bay tug and tribal consultation provisions in place. 

II. Introduction 

In 1855, the Makah Indian Tribe signed a treaty with the U.S. Government that 

reserved land adjoining the Strait of Juan de Fuca and Olympic Coast in Washington State for the tribe’s use and occupation. The terms and conditions of the treaty reserve the right of taking fish, whale, and seal at our usual and accustomed 

grounds and stations. The Makah treaty area extends out approximately 45 miles 

west into the Pacific Ocean and 70 miles eastward into the Strait of Juan de Fuca 

from Neah Bay, Washington. 

The major center of population on the Makah Indian Reservation is Neah Bay, 

home to a strategically located port situated on the Strait of Juan de Fuca, facing 

Vancouver Island, British Columbia, Canada. Neah Bay is the only accessible port 

on the outer Washington coast north of Grays Harbor, located in the southwestern 

portion of the state, on a year round basis. The Makah Tribal government, tribal 

treaty commercial fishing and non-treaty sports and commercial fishing, the timber 

industry and tourism support the local economy. The isolated location and natural 

beauty of the Makah Indian Reservation attracts thousands of people each year. 

Visitor surveys document that a large number of people come to the Makah Reservation exclusively to visit the Makah Cultural and Research Center. Visitors also 

enjoy hiking the Cape Flattery and Shi Shi Beach trails, also to bird watch, whale 

watch, kayak, surf, dive and stroll on our pristine beaches. 

Makah people are a maritime people who have historically depended upon the 

wealth of the sea for the majority of our food. Our diet includes sea mammals, and 

a numerous variety of fish, shellfish, and crustaceans. The Makah Tribe is the only 

84 

tribe in the United States whose treaty reserved rights includes whaling; historically whale blubber and oil was a mainstay of our diet. 

The ocean still plays an essential role in the economy and diet of Makah people 

to this day. A unique Makah cultural perspective comes directly from the proximity 

to the ocean, rivers and lakes and the vast resources our marine environment contains. The Makah people are able to continue to exercise our traditional cultural 

practices by maintaining a basic and intrinsic relationship to our maritime environment. 

Until historic times the Makah Indian Tribe was composed of five principal winter 

villages. The pre-historic population of the Makah is estimated to have been approximately 4,000 people, about double what it is today. The Makah Tribe has 

viewed access to the marine environment and our marine resources as an inherent 

sovereign right from time immemorial. 

III. Oil Spill Risk 

One hundred and fifty years after we signed our treaty with the U.S. Government, 

the Strait of Juan de Fuca has become a primary waterway route for oil tankers, 

cargo and passenger vessels bound to port facilities in Washington and British Columbia. Being the ‘‘People of the Cape’’ and been situated in the northwest most corner of the contiguous United States, we understand our exposure to oil spill risk 

is high. The Makah have the largest combined ocean fisheries of any federally recognized Indian Tribe in the United States. Our Usual and Accustomed (U&A) marine 

treaty area is located at the crossroads of the Strait of Juan de Fuca and the Pacific 

Ocean. This places us at the entrance to a U.S. High-Volume Port Complex, Canada’s largest port and the world’s third largest Naval complex. The Olympic Coast 

National Marine Sanctuary, the Olympic National Park, a National Fish Hatchery 

and a National Wildlife Refuge are adjacent to or part of our treaty area. The 

Makah Tribal Council (MTC) recognizes the importance of protecting these national 

treasures and is fully committed to do our part to improve the standards of protection against negative impacts to our shared environment. 

These unique circumstances combined with our experience as serving as a ‘‘Resource Trustee’’ in addressing the impacts of the 4 largest persistent oil spills in 

Washington State history (General Meiggs, 2,300,000 gallons in 1972; ARCO Anchorage, 239,000 gallons in 1985; Nestucca, 231,000 gallons in 1988, TENYO 

MARU, 400,000 gallons in 1991) totaling approximately 3 million gallons of oil 

spilled on our natural and cultural resources afford us strong standing in this discussion. 

The probability of another major oil spill is high in our area as the volume of 

trade is expected to triple in the next 15 to 20 years. Yet due to rulemakings that 

have not adequately considered our treaty reserved rights, the western portion of 

the Strait of Juan de Fuca and the outer Washington Coast do not receive the same 

levels of protection from oil spills that the rest of the Washington State waters are 

afforded. For example the placement of the High-Volume Port Line 70 miles east 

from the entrance to the Strait of Juan de Fuca means there is less oil spill response equipment and personnel stationed adjacent to the high seas. In addition, 

the fact that pilots do not board ships until Port Angeles, WA, means captains with 

varying degrees of familiarity with our waters and the English language transit 

without assistance. This is particularly concerning as our region increasingly relies 

on foreign sources for our oil and trade. 

According to Washington State Department of Ecology (DOE) data for 2006, 3,559 

individual vessels made 18,977 transits through Washington waters bound to and 

from ports in Washington, Oregon and British Columbia. Cargo and Passenger vessels comprised 65 percent of the transits and 88 percent of the vessels making those 

calls. Oil tankers and barges comprised 33 percent of the transits and 10 percent 

of the vessels. Commercial fishing vessels made the balance of the transits. 

Ecology’s data also indicates that the cargo and passenger vessels likelihood of 

having an incident, near miss or spill is proportional to their frequency of transit 

for they comprised 63 percent of the incidents and spills in 2006 and 65 percent of 

the traffic. However, they pose a greater challenge to the Coast Guard’s inspection 

program because they comprise 88 percent of the individual vessels making transits 

through Washington waters in 2006. Preliminary results from the most comprehensive vessel traffic risk assessment done to date for the British Petroleum Cherry 

Point Environmental Impact Statement suggest that tank vessels have a higher rate 

of incidences than non tank vessels when you control for their frequency of transit, 

but cargo and passenger vessels occur twice as prevalent along our waterways. 

While oil tankers continue to pose the risk of the largest catastrophic spill, 

freighters clearly are the more likely source of a spill. This point is further clarified 

by the fact that the State funded Emergency Response Tug, stationed in our port 

85 

1 1994 NAS Reassessment of the Marine Salvage Posture of the United States. 

2 ‘‘Crisis on the Coast’’ Federal On Scene Coordinator’s Report and Assessment of M/V NEW 

CARISSA Oil Spill Response CAPT M. Hall, USCG MSO Portland, June 1999. 3TRB 2003. Marine Salvage Capabilities Responding to Terrorist Attacks in U.S. Ports—Actions to Improve Readiness. 

of Neah Bay during the winter months since 1999, has responded to 21 cargo and 

passenger vessels (58 percent), 10 tank vessels (28 percent) and 5 fishing vessels 

(14 percent) to date. When it comes to needing tug assistance it appears to be based 

on the proportion of the vessel type calling on our waters with freighters being twice 

as likely to need assistance as compared with tank vessels. 

Being the homeport for the Navy’s third largest port complex means that commercial vessels are not our only source of risk. On August 4, 2006 the USS NEVADA, 

a Navy Trident submarine based at Naval Base Kitsap-Bangor severed the towline 

of the tug PHYLLIS DUNLAP and its barge at the entrance to the Strait of Juan 

de Fuca. The tug PHYLLIS DUNLAP was transiting with two empty barges when 

the incident took place. This incident is very similar to one that occurred off of Cape 

Flattery in October 2003 when the U.S. Navy sub TOPEKA separated an empty oil 

barge from its tow underscoring our diversity of risks. Despite the fact that the 

Navy’s Supervisor of Salvage has tremendous expertise and equipment to respond 

to such incidents none of those assets are stockpiled in the Pacific Northwest. 

The Makah Tribe is currently contracted by oil spill response organizations as 

first responders. The newly revised Washington State Oil Spill Contingency Plan 

Rule (173–182 WAC) identifies the establishment of Neah Bay as a primary response/staging area. This action is supported by the mutual effort between the State 

of Washington DOE and the MTC to identify the needed infrastructure improvements to the Port of Neah Bay facilities to accommodate the equipment staging requirements as well as expanding the role of tribal members as first responders. 

In the Consent Decree of the EXXON VALDEZ Oil Spill it was determined that 

the lack of strategically located ports around Prince William Sound with appropriate 

caches of equipment significantly limited the effectiveness of the response. 

IV. Addressing the Risk 

It is an unfortunate fact that most maritime safety advances are made in response to major accidents. The last most significant event was the EXXON VALDEZ 

of 1989 after which Congress passed OPA 90. This comprehensive overhaul of our 

Nation’s oil spill policies directed the Coast Guard to implemented the Salvage and 

Firefighting provisions of OPA 90. In support of the OPA 90 mandates the National 

Academy of Science has repeatedly found the U.S. Salvage posture to be far from 

adequate.1 The grounding and break up of the bulk carrier NEW CARISSA along 

the Oregon Coast magnified our inability to muster an appropriate salvage response.2 We believe these examples serve as ample motivation for the Coast Guard 

to complete the rulemaking called for by Congress in OPA 90. Post-9/11 the Transportation Research Board has found salvage capacities to be even more critical to 

respond to a terrorist attack.3

The following is an accounting of the Coast Guard’s rulemaking actions. On May 

10, 2002 the Coast Guard published a Notice of Proposed Rulemaking (NPRM) entitled ‘‘Salvage and Marine Firefighting Requirements; Vessel Response Plans for Oil; 

Proposed Rule,’’ which addressed requirements in 33 CFR Part 155 for vessel owners/operators of vessels carrying Groups I through V petroleum oil as a primary 

cargo to identify and ensure availability of salvage and marine firefighting resources. This rulemaking, previously in the Office of Response (G–MOR), has moved 

to the Office of Vessel Activities (CG–543). All comments have been addressed and 

incorporated in the Final Rule for Salvage and Marine Firefighting Requirements; 

Vessel Response Plans for Oil. 

On January 23, 2004, a notice of suspension was published in the Federal Register, suspending the 24-hour requirement scheduled to become effective on February 12, 2004, until February 12, 2007 (69 FR 3236). The Coast Guard has extend 

this suspension period for another 2 years to allow it to complete the rulemaking 

that will revise the salvage and marine firefighting requirements. This extension is 

effective as of February 12, 2007. Termination of the suspension will be on February 

12, 2009. The Final Rule is currently in its final review at USCG Headquarters. In 

this final review, due to the age of this rulemaking, it was determined that the Salvage & Marine Firefighting rule is required to undergo an economic and regulatory 

analysis before final USCG approval. After clearance at USCG Headquarters, the 

rulemaking will then be submitted to the Department of Homeland Security and 

then the U.S. Executive Office of Management and Budget (OMB) for approval. It 

86 

is anticipated that this Final Rule will be published in 2008. LCDR Reed Kohberger 

is the point person, G–5232 (202–372–1471). 

In our February 15, 2006 comment letter to the U.S. Coast Guard Salvage and 

Marine Firefighting Rule (USCG–1998–3417) we requested a government-to-government consultation with Coast Guard HQ to discuss how our treaty interests were 

being left out of the rulemaking. An initial meeting with USCG Headquarters staff 

took in Neah Bay on June 1, 2006 which resulted in an invitation for the MTC to 

meet with senior staff at Coast Guard headquarters in Washington, D.C. to further 

discuss the formal inclusion of tribal treaty interests in the proposed rulemaking. 

During our meeting we agreed with the Coast Guard that there isn’t a ‘‘Coordination and Consultation’’ policy currently established in the Department of Homeland 

Security and therefore the Coast Guard. The lack of a Tribal Consultation Policy 

makes it problematic to not only formally consult with Indian tribal governments 

but also to formally represent tribal interests in their rulemaking. We pointed out 

that we also wanted to work with Coast Guard Headquarters to assure the associated NEPA review process to the rulemaking be completed in a manner that incorporates treaty interests. We further pointed out the inclusion of treaty interests in 

the NEPA action could serve as a tool to assist the Coast Guard in continuing to 

develop the formal recognition of their trust responsibility to the Makah Tribal governments in mitigating the risk posed by the transportation of oil and cargo through 

the Makah Tribe’s marine treaty area. 

The formal inclusion of tribal cultural and resource values into the cost benefit 

analysis applied to the OPA 90 Marine Salvage and Firefighting proposed rulemaking would not only provide a thorough representation of resources at risk but 

would also allow for more effective oil spill prevention and response strategies be 

implemented by Federal, state and tribal governments. The MTC has maintained 

as a fundamental treaty right requirement, the need to integrate tribal cultural and 

resource values into any cost-benefit analyses, regulatory assessment and damage 

assessment model or any action the USCG is involved with that impacts our treaty 

rights. In doing so the USCG would began to lay the foundation work toward satisfying their Trust Responsibility to the Makah Tribal Council. 

In regard to the OPA 90 Marine Salvage and Firefighting Proposed Rulemaking, 

it is clear to the MTC that the cost effectiveness of such evaluations has only considered the cost of compliance with the rule as the cost of not spilling (BNSR: barrels 

of oil not spilled or spilled and removed from the environment). The cost to the marine environment or those dependent on it for their cultural or economic livelihood 

is not considered. Similarly, the Coast Guard’s establishment of the High-Volume 

Port Line (and associated spill response equipment) 70 miles east from the open 

ocean is another example of how our treaty interests not being appropriately considered. 

The MTC believes in order for the USCG to adequately address our treaty interests and their Trust Responsibility to the MTC, both of which were excluded from 

the OPA 90 Programmatic Regulatory Assessment used to select the preferred alternative in the Salvage and Firefighting Rule, a permanent multi-mission tug should 

be stationed in Neah Bay. The State of Washington funded rescue tug that has seasonally protected our waters since 1999 has provided assistance to 36 vessels to 

date, two in just the past month. This more than exemplifies its value to the maritime community and underscores their need to underwrite its expense that is minor 

as compared to the cost of spilling on treaty protected resources and State of Washington waters. It is also imperative that the Coast Guard assures the liability limits 

keep up with the consumer price index. 

The MTC supports laying the ground work for the oil industry to station a permanent multi-mission tug at Neah Bay, WA as part of this rule and we strongly recommend further that the Coast Guard use it’s regulatory authority to have the 

cargo and passenger vessels assume their share of financial responsibility to support 

the stationing of the tug with the implementation of the non-tank rule. We join 

Washington State Governor Gregoire in urging the Congress to pass the Coast 

Guard Authorization bill of 2008 to resolve this matter in a timely fashion. 

Vessel Response Plans: Non-Tank Vessels. The Coast Guard Authorization Act 

signed by the President on August 9, 2004, requires ‘‘nontank vessels’’ to submit response plans by August 9, 2005. ‘‘Non-tank vessels’’ are vessels of 400 gross tons 

and above which use oil for propulsion. NVIC No. 01–05 was signed and published 

on February 4, 2005 to provide interim guidance to industry for the development 

and review of non-tank vessel response plans. On June 24, 2005, the Coast Guard 

published a Notice and Request for Comment in the Federal Register. On February 

23, 2006, the USCG published a Notice of Availability to the public indicating that 

Navigation and Inspection Circular No. 01–05 was updated and reissued as NVIC 

01–05 Change 1. This update was in response to questions and comments received 

87 

from the maritime industry. This rulemaking, previously in the Office of Response 

(G–MOR), has moved to the Office of Vessel Activities (CG–543). The President 

signed the Coast Guard and Maritime Transportation Act of 2006 on July 11, 2006. 

Section 608 of the CGMTA 2006 contained provisions to further amend the FWPCA 

with regard to applicability standards for nontank vessels. 

The Coast Guard is anticipating a 2008 release of the Notice of Proposed Rule 

Making with public hearings to be held in various parts of the U.S. The Final Rule 

is projected to be published in 2010. To date, the Coast Guard has received 2,186 

nontank vessel response plans covering 12,075 vessels. LCDR Rob Smith is the 

project officer CG–5431 (202–3721226). 

It is essential that Congress assure that the Coast Guard complete this rulemaking in a more timely basis than proposed by the Coast Guard, so that the public 

can be assured that tank and non-tank vessels have response plans that are adequate to protect against the maximum sized spill they can create. It is also imperative that the Coast Guard recognizes legitimate umbrella plans that have been rigorously drilled and which may cover many non-tank vessels calling on a particular 

waterway instead of requiring each vessel to have to submit their own plan. This 

could significantly streamline the rulemaking process. 

V. Conclusion 

During the past few years, the Makah Tribal Council has dedicated a great deal 

of tribal assets toward incorporating treaty cultural and resource protection interests into Federal and state oil spill prevention, preparedness and response regulations. Our efforts thus far have heightened the government-to-government oil pollution policy concerns of the treaty tribes in Washington State, where there is not a 

single mile of coastline that is not covered within the treaty-defined area of one of 

the treaty tribes. The fact that the Coast Guard has not developed formal protocols 

for consultation with tribal governments has hampered our oil pollution efforts in 

the Northwest. 

We strongly believe adequate standards of oil spill protection along the outer 

Washington coast cannot be fully achieved without the participation of the affected 

Indian Tribal governments. Without a meaningful and formal government-to-government coordination and consultation process in place to address oil pollution 

issues neither the Federal Government or the Makah Tribal Council can effectively 

meet their mutual trust responsibility to protect our natural resources. The Makah 

Tribal Council views the development of a formal consultation process with the 

USCG as a fundamental and efficient means to wed the Public Trust Doctrine, 

which the Federal Government is pledged to uphold, to the Federal Trust Responsibility to protect treaty reserved rights with the Makah Indian Tribe, which the Federal Government is obliged to uphold. 

It is our genuine hope that we are able to formalize a vital working relationship 

with the U.S. Coast Guard to address these essential treaty resource and environmental protection goals. We join Washington State Governor Christine Gregoire in 

strongly urging your support to maintain the Chairman Senator Cantwell’s oil spill 

provisions in the FY 2008 Coast Guard Authorization Bill. 

The MTC would like to thank you for your leadership and continued vigilance regarding marine transportation safety in Washington State and the Nation. 

MATSON NAVIGATION COMPANY

Oakland, CA, January 24, 2008 

Hon. MARIA CANTWELL, 

Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, 

Senate Committee on Commerce, Science, and Transportation, 

U.S. Senate, 

Washington, DC. 

Madam Chairman: 

On December 18, 2007 your Subcommittee on Oceans, Atmosphere, Fisheries, and 

Coast Guard held a hearing on ‘‘Oil Spills from Non-tank Vessels’’. Matson Navigation Company is a 125 year-old ocean shipping company that today operates 13 

Jones Act vessels engaged In the carriage of container and RO/RO cargo between 

the U.S. Pacific Coast and Hawaii, Guam, and Asia. Our West Coast terminals are 

located in Seattle, Oakland, and Long Beach. For many years, Matson has been 

deeply involved in the development and implementation of ship operational procedures and designs that minimize the discharge of oil into the marine environment. 

We commend you for holding this hearing and pledge the availability of Matson’s 

knowledgeable ship operations personnel to assist the Subcommittee in developing 

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useful recommendations for lowering the risk of oil spills in the marine environment. 

We wish, however, to correct the record regarding a statement that was introduced at the hearing concerning a Matson vessel. More specifically, after describing 

heavy weather damage to the Matson container ship SS KAUAI that occurred on 

December 3, 2007 off the Washington State coastline, the Washington Oil Spill Advisory Council stated that ‘‘The vessel did not drift onto the rocks and spill oil because the state-funded Neah Bay rescue tug launched to save the stranded cargo 

vessel.’’ The facts are that after departing Seattle, the SS KAUAI was struck by a 

series of extremely high 60 foot waves near Cape Flattery, Washington, that broke 

out six bridge windows, and damaged several pieces of bridge navigation equipment, 

including the primary steering system. As a result, the Master made a decision to 

return to Seattle for repairs and to allow the passing of an intense NW storm. The 

important point here is that the SS KAUAI made the return to Seattle of over 100 

nautical miles under its own power and using a back-up, redundant steering system 

that is standard equipment on all Matson oceangoing vessels and, Indeed, is required for all U.S. registered ships. At no time was the SS Kauai adrift or stranded 

or mechanically unable to maintain course and speed, although this Intense storm 

obviously presented severe operational challenges. 

It is not our purpose here to question the important role of the Neah Bay rescue 

tug or the good intentions of the knowledgeable witnesses who took the time and 

effort to testify at your December 18th hearing. Matson simply wants to set the 

record straight on a point that reflects directly on our ship operations and, therefore, on the core of our organization. We have operated oceangoing ships in the Pacific longer than any other American shipping company, and take great pride in our 

ability to do so extremely well. 

Thank you for taking these comments into consideration. 

Sincerely, 

RONALD J. FOREST, 

Senior Vice President Operations. 

cc: P.M. Grill 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

ADMIRAL THAD W. ALLEN

Question 1. Is the Coast Guard actively enforcing vessel response plans for nontank vessels? 

Answer. Please see the below text from the Coast Guard letter of January 14, 

2008 to Senator Ted Stevens, which addresses this issue. A copy of this letter was 

also provided to your office and to Senators Snowe and Inouye. 

Dear Senator Stevens, 

I am writing to advise you of the need to correct my testimony from the December 

18, 2007, hearing pertaining to oil spills from non-tank vessels. During the hearing, 

you questioned me about the number of non-tank vessels which have yet to submit 

response plans. I indicated that any non-tank vessel calling on a U.S. port is required to have a Non-tank Vessel Response Plan (NTVRP). I further added that vessels without such plans are not permitted to call on U.S. ports; I have since learned 

that this is incorrect. Specifically, there are instances where both U.S. and foreignflagged non-tank vessels have entered and operated in the United States without 

a Coast Guard-reviewed NTVRP. 

Absent the effect of a formal rule to implement the NTVRP required by the Coast 

Guard Maritime Transportation Act of 2004 (MTA), as amended in 2006, the fully 

enforceable requirement is the international standard required under MARPOL 

Annex I. Annex I requires that non-tank vessels over 400 gross tons have an approved Shipboard Oil Pollution Emergency Plan (SOPEP). 

The Coast Guard ensures vessels possess valid SOPEPs during Port State Control 

examination and domestic inspections. However, these standards are not as detailed 

and rigorous as those required by MTA. In the case of M/V COSCO BUSAN, both 

the MTA-required NTVRP and international SOPEP requirements were met. 

I have initiated a review of the interim guidance provided to our field commanders following the passage of MTA, the effectiveness of that guidance, and a 

more accurate determination of the compliance rate. I am accountable to ensure the 

statutory NTVRP requirement is met and will take appropriate action. I am available to provide a more comprehensive brief upon your return from holiday recess. 

Thank you for your leadership on this important national issue. The Coast Guard 

is committed to protecting the environment through prevention and stands ready to 

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answer any questions you may have. You can reach me through my Senate Liaison 

Office. Identical letters have been sent to Senator Cantwell, Senator Snowe, and 

Senator Inouye. 

Question 2a. What steps has the Coast Guard taken to ensure the solvency of the 

Oil Spill Liability Trust Fund? 

Answer. Oil Spill Liability Trust Fund (OSLTF) solvency concerns were addressed 

by Congress when it enacted the Energy Policy Act of 2005. That Act included a 

provision reinstating the tax on oil which had lapsed in 1994. Treasury reports and 

estimates now show OSLTF annual tax revenue of $250–$300 million. The OSLTF 

has a current balance of $988M which includes approximately $79 million available 

for Federal response. The OSLTF balance is expected to continue to increase to approximately $2 billion by FY 2014 and then begin to decline again after FY 2014 

when the tax sunsets. 

Question 2b. Why doesn’t the Coast Guard track the amount of money responsible 

parties expend in cleaning up oil spills? 

Answer. The Federal focus is on the adequacy of responsible party clean up activities and not the cost of those activities. For many of the thousands of incidents reported annually, responsible parties are able to clean up their spills with little or 

no Federal involvement. For incidents where Federal authorities manage the overall 

response, only summary cost data is captured as it reflects the RP’s effort and 

progress associated with a complete clean up. Responsible parties are, however, required to report detailed response cost documentation when presenting a claim for 

reimbursement from the OSLTF under the provisions of the Oil Pollution Act of 

1990 (OPA). 

Question 2c. How do you know if the private sector is paying its ‘‘fair share’’ if 

the Coast Guard is not tracking private sector costs of an incident? 

Answer. Under OPA Title I a responsible party that does not clean up the oil spill 

solely through its own efforts is strictly liable for the Federal, state and private 

party clean up costs. If the responsible party does not pay or settle those costs the 

OSLTF is available to pay claimants and the Coast Guard will seek recourse as appropriate against the responsible party for all Federal removal costs and damages, 

including any claims paid. The responsible party’s ‘‘share’’ will also be affected by 

other circumstances, including whether the applicable OPA liability limit applies or 

liability is unlimited; whether one of the OPA narrow defenses to liability applies 

(i.e., solely caused by acts of god, war or third party); and/or the responsible party’s 

ability to pay its liability. 

Question 3a. Many have expressed concern that the response to the San Francisco 

oil spill was not as effective as it should have been—despite the fact that San Francisco recently had a major ‘‘Safe Seas’’ drill. How would you rate the response to 

the San Francisco oil spill? 

Answer. The response to the M/V COSCO BUSAN oil spill provided important lessons-learned for the Coast Guard. The deployment of equipment exceeded state and 

Federal requirements for on-water recovery capability and enabled a greater than 

average oil recovery. Nonetheless, there is opportunity for improvement in preparedness and response coordination activities. 

The Coast Guard chartered an Incident Specific Preparedness Review (ISPR) on 

November 14, 2007 to review the strengths and weaknesses of the San Francisco 

Bay Area Contingency Plan and to analyze the effectiveness of the Unified Command response to the COSCO BUSAN oil spill. The report includes approximately 

100 lessons-learned and 128 recommendations to improve preparedness and response in the San Francisco Bay area. The recommendations fall into several broad 

categories including exercises and drills, area contingency planning, training, initial 

actions and unified command. A more detailed review is on-going to determine 

which findings, recommendations, and other report information should be forwarded 

to various departments, branches, and field units in the Coast Guard or other agencies for action to produce positive, effective, preparedness improvements that will 

benefit the San Francisco Bay region and the Nation as a whole. 

Question 3b. If the response was lacking despite the recent Safe Seas drill, what 

does that mean? Are we so woefully under-prepared that even a Safe Seas drill 

could not guarantee an effective response? 

Answer. The Safe Seas and other drills are designed to test and renew working 

relationships while providing feedback on the effectiveness of response. Safe Seas 

was a successful drill in that it improved interagency coordination and preparedness 

for response. The drill also identified lessons-learned for use among the spill response community. With respect to the M/V COSCO BUSAN response, we will review the recommendations of the ISPR as noted above. 

90 

Question 4a. How often does the Coast Guard conduct drills on oil spill response? 

Answer. The requirement for exercises and drills on oil spill response are established in the National Preparedness for Response Exercise Program (PREP) Guidelines, August 2002. These exercises typically include responsible parties and their 

contractors. The exercise requirements apply to each of the Area Committees. In 

some cases, a Coast Guard Sector may have more than one Area Committee. The 

PREP guidelines call for each Area Committee to conduct annually: four—Notification Exercises per Area Contingency Plan (ACP), one—Area Equipment Deployment 

Exercise per ACP, one—Area Spill Management Team ‘‘Table-top’’ exercise, and 

one—Government/Industry Led Full-Scale Exercise (FSE) (triennially). On average, 

nationwide, the PREP Guidelines call for 4–6 governmental FSEs led by the government per year. Each Federal on Scene Commander (FOSC) and/or Captain of the 

Port (COTP) can conduct up to four discretionary Government-Initiated Unannounced Exercises per area per year. 

Question 4b. Do these drills include responsible parties and their contractors? 

Answer. Yes, these drills normally involve responsible parties, contractors, and 

other parties. 

Question 4c. How do these drills and preparations vary geographically? Do they 

happen regularly in all regions? 

Answer. Coast Guard oil spill exercise regulations, the PREP Guidelines, and 

other Coast Guard-led oil spill preparedness efforts apply nationally. The Coast 

Guard strives for uniform enforcement and preparedness efforts across all geographic regions. 

Question 4d. What geographic regions are strongest in this regard? Which are the 

weakest? 

Answer. As described above, the Coast Guard’s exercise and planning activities 

are national, and all areas of the country are given equal standing. The primary 

components of this system include the National Response Framework, the National 

Contingency Plan, the National Preparedness for Response Exercise Program 

(PREP) Guidelines, and Coast Guard regulations that apply uniformly to all geographic areas of the country. Through these programs, the Coast Guard strives to 

establish and maintain a consistently high level of preparedness across the country. 

Question 4e. Do you consider the San Francisco area to be among the strongest 

and most well-prepared regions to respond to oil spills? 

Answer. While the Coast Guard leads oil spill preparedness efforts in the coastal 

area as described above, many other agencies and organizations contribute to the 

effort. While the Coast Guard does not specifically rank oil spill preparedness between geographic areas, the San Francisco area benefits from the skill of agencies 

such as CA OSPR, and the enthusiasm of its local citizens and non-government organizations is especially distinguishing. 

Question 5. Recently, I’ve been hearing from constituents who are concerned that 

the Coast Guard is falling behind in its traditional missions. What should I tell my 

constituents who have concerns that the Coast Guard is no longer providing the 

level of service on traditional missions as it once did? 

Answer. The public should know the Coast Guard is a multi-mission service and 

on duty 24/7. We continue to meet our many responsibilities by balancing risk and 

resources against competing mission requirements. We assess risk and assign assets 

with a view to our highest priority, the safety of citizens. The Coast Guard ensures 

the safe operation and navigation of some 20,000 U.S. and foreign-flagged vessels. 

We conduct over 70,000 domestic vessel inspections and 10,000 port state control 

inspections each year to safeguard maritime commerce, international trade and supply chain security. We also conduct 14,000 casualty, suspension and revocation, and 

civil penalty cases annually to prevent maritime disasters. 

Additionally, many of the resources, competencies and authorities needed to assure security are the same needed to enhance maritime safety and other traditional 

missions. As we refine our risk protocols and build additional interagency and civil/ 

military partnerships, the Coast Guard is better able to balance resource and mission requirements. Moreover, the Coast Guard is taking significant organizational 

steps to improve local preparedness and response, and moving aggressively to ensure we have the right mix of assets and authorities to provide in place the level 

of service the American public expects and requires. 

Question 6. What portion of the Coast Guard’s budget is devoted to oil spill prevention and response? Has oil spill prevention and response experienced a decrease 

in funding and/or staffing in the Coast Guard since 9/11? What are the implications 

of this? Is it possible that we won’t realize the full impact of this until a major spill 

happens and it is too late? 

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Answer. Oil spill prevention and response is accomplished through the Coast 

Guard’s extensive authorities, and layered prevention and response capabilities. 

Spill prevention and response is a major component of the Coast Guard’s Marine 

Safety, Aids to Navigation, and Marine Environmental Protection missions, which 

collectively represent 28 percent percent of the Coast Guard’s operating budget. 

The Coast Guard’s prevention and response model is based on all hazards-all 

threats. As such, resources allocated to prevention and response may be called upon 

by field commanders for other response efforts as warranted. We are seeking to 

grow the Marine Safety Program in FY09. Specifically, the FY 2009 President’s 

budget requests an additional $20M and 276 FTE exclusively for the Coast Guard’s 

Marine Safety Program. 

Moreover, the recent COSCO BUSAN and associated Incident Specific Preparedness Review (ISPR), in addition to annual reviews of Area Contingency plans, provide for case by case and continuous review of the Coast Guard, inter-agency, and 

stakeholder response capacity. We will institutionalize lessons-learned from the 

ISPR to improve future efforts. 

Question 7. How does the rotation of Coast Guard personnel impact oil spill preparedness and response? 

Answer. The rotation of active duty Coast Guard personnel enhances oil spill preparedness and response by promoting the sharing and dissemination of knowledge 

and experience among Coast Guard Commands. As personnel transfer into new 

commands they spread skills and experiences they have developed from other units 

across the service. The continuing exercises and drills on oil spill responses prepare, 

maintain, and ensure rotating CG personnel have the expertise, knowledge, and 

leadership for diverse assignments and major responses. This knowledge and experience is shared throughout the Coast Guard. This system, in combination with permanent Coast Guard civilian positions in each region, ensures continuity with an 

infusion of diverse spill response experience. 

Question 8. Could you please explain the powers and limitations that the Coast 

Guard has in directing vessels, vessel traffic, and vessel movement—particularly in 

times of emergency. Can the Coast Guard give orders to a vessel in the same way 

that the FAA can give orders to planes? 

Answer. The Coast Guard may exercise authority granted to it by the Ports and 

Waterways Safety Act (33 U.S.C. 1221 et. seq.) to issue orders to vessels it considers 

necessary in the interest of marine or navigational safety. This authority may be 

similar to the type of authority that the FAA enjoys for issuing orders to aircraft. 

In certain ports, many large commercial vessels must participate in a Vessel Traffic 

Service (VTS) that is monitored and operated by the Coast Guard. Unlike the FAA, 

a VTS does not regularly issue particular vessel navigation orders because of the 

nature of the marine environment and the unique factors that must be considered 

in order to safely navigate a large commercial vessel. These factors are different 

than those faced by the FAA. For instance, not all commercial vessels carry, or are 

required to carry, transponders and only vessels of a particular type are required 

to check-in and use VTS services. Indeed, there are numerous smaller vessels that 

are not required to be VTS users, may not carry transponders, and consequently the 

VTS may not have a full operational picture of the activities of those vessels. 

Accordingly, when large commercial vessels are navigating within a VTS area, it 

is incumbent on them to rely on typical safe navigation techniques such as keeping 

a proper and constant visual look-out, listening for other vessels’ sound signals, and 

monitoring ship surface radar for other marine traffic. As such, when a large commercial vessel maneuvers, it will be able to take into account the variety of factors 

posed by other marine traffic. More important, it is critical to recognize that each 

vessel has unique handling characteristics that will react differently based on the 

ever changing dynamics of the marine environment. Tide, current, wind, time of day 

and vessel operational capabilities will all be evaluated by the vessel operator in 

order to determine the exact rudder, engine and other commands that are necessary 

for proper navigation. Even though the Coast Guard has authority to issue particular vessel orders, the Service exercises significant restraint in doing so in recognition of the fact that the vessel operator may have greater situational awareness 

because of their familiarity with the ship and positioning on its bridge. In essence, 

the FAA issues orders within a more regulated, controlled, and predictable operational picture than is available in the marine environment. 

Question 9. Would a more FAA-like set of powers for the Coast Guard help to 

avoid oil spills and vessel collisions in the future? What would be the advantages 

and disadvantages of such powers? What would the implications be for the maritime 

industry? For the Coast Guard? Would such a setup even be feasible in the maritime world? 

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Answer. No, an FAA-like power structure is not optimal for the marine environment. The Coast Guard has extensive authorities, such as the Ports and Waterways 

Safety Act (33 U.S.C. 1221 et. seq.) for controlling vessel traffic and prevention of 

oil spills. These authorities are similar to those of the FAA for aviation. 

It is unknown if any technology exists that would allow the same level of surveillance of waters that air traffic control has of the air and if any risk reduction would 

be realized. Of particular concern with such a program would be how it could account for the unique hazards and demands of maritime navigation safety which are 

largely informed by information received on the bridge of the ship, including from 

visual lookouts, listening for sound signals from other vessels, and monitoring ship 

surface radar for other marine traffic. 

Moreover, the regulations required to mandate participation in the Vessel Traffic 

Service by every vessel, from the smallest kayak to the largest container ship, are 

unlikely to be implemented without substantial resistance from every sector of the 

maritime community. This action would present an enormous shift in the exercise 

of vessel traffic management authority and a huge investment in an unprecedented 

program. Therefore, implementation and enforcement of such an FAA-like regulatory structure would be an enormous task and is viewed as an unfeasible option. 

Question 10. Most of the time, state and Federal pilots can rely upon the equipment onboard the ship to steer the vessel safely. On rare occasions, however, the 

equipment is not reliable. Should pilots have laptops that would allow them to link 

to an independent source of navigation information while piloting ships? Wouldn’t 

this help reduce possible accidents and spills? Isn’t it just common sense to have 

an independent, backup source of information available just in case? 

Answer. This is an active topic of discussion among vessel operators, pilots associations, international organizations, and the U.S. Coast Guard. There are perceived 

advantages and disadvantages of pilot carry-aboard equipment, such as laptop computers. Advantages of pilot carry-aboard equipment include pilot familiarity and 

configuration particular to a given waterway. However, while laptops do provide 

these benefits, their use tends to reduce participation in the actual navigation process by the vessel’s Bridge Management Team. Reducing the role of the ship’s crew 

in directing the movement of the vessel places the pilot in the position of being a 

single point of failure and thus has the potential for reducing overall safety. 

The International Convention for the Safety of Life at Sea (SOLAS) contains comprehensive requirements for the navigation equipment to be fitted on ships. The 

Convention is amended periodically as new technology is developed. Coast Guard 

regulations require that SOLAS vessels have a ‘‘Pilot Plug’’ installed so that those 

pilots who wish to use a carry aboard system may have access to the ship’s Automatic Identification System and its navigation sensors. 

For a pilot carry-aboard laptop to be a useful tool, it would have to be designed 

and certified to standards on par with the standards for navigation equipment already fitted on the ship. Anything less could increase the risk of a casualty. Nevertheless, such pilot carry-aboard equipment could help reduce possible accidents and 

spills as long as it did not adversely impact coordination among the Bridge Management Team. 

Question 11. The navigational equipment on vessels can vary substantially— 

wouldn’t a standardized suite of equipment among all vessels help to prevent accidents in the future? 

Answer. Navigation equipment on ships subject to the International Convention 

for the Safety of Life at Sea (SOLAS) must meet specific international standards. 

For instance, all radars must meet the International Maritime Organization (IMO) 

radar performance standards and the International Electrotechnical Commission 

(IEC) technical and testing standards for radar. The only way the equipment can 

differ is in added features offered by individual manufacturers. This allows ship 

owners to choose equipment that is built to a firm standard but also having additional capabilities that are of use in their ships’ operating environment. Because of 

this international performance regime, SOLAS ships do have standardized equipment suites that only vary to the degree manufacturers enhance the basic equipment. However, manufacturers, ship-owners and vessel operators are considering 

development of a proposal for a standardized mode of operation that all manufacturers could incorporate into their system designs along with their individually added 

features. 

Question 12. Do you believe that vessel operators should function under a single 

common language? Isn’t language sometimes a barrier that can increase the risk of 

miscommunications and accidents? 

Answer. Yes. The U.S. Coast Guard recognizes the importance of safe bridge-tobridge and bridge-to-shore communications using a single common language. ConVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00096 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
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tained at section 160.113 of title 33 of the Code of Federal Regulations is a rule promulgated pursuant to the authority of the Ports and Tanker Safety Act that requires all tank ships underway in U.S. waters to operate with at least one licensed 

deck officer who is capable of communicating in English. 

The International Maritime Organization and its Member States have recognized 

the importance of communications using a single common language as evident in 

Chapter V, Regulation 15 of the International Convention for the Safety of Life at 

Sea (SOLAS), which requires every ship subject to SOLAS to designate a working 

language that all crew members are able to understand and use to ensure effective 

crew performance. SOLAS also requires that all ships subject to SOLAS use English 

as the working language for bridge-to-bridge and bridge-to-shore safety communications and for communications between the pilot and bridge watchkeeping personnel, 

as well. 

The International Convention on Standards of Training, Certification and 

Watchkeeping for Seafarers, 1978 as amended (STCW Convention), requires all officers in charge of a navigational watch to demonstrate adequate knowledge of 

English using the Standard Marine Communication Phrases (SCMP) published by 

the International Maritime Organization. SMCP provides a simplified and easily understood version of maritime English. The STCW Convention also requires all officers in charge of an engineering watch to demonstrate adequate knowledge in 

English to enable the officer to use engineering publications and to perform engineering duties. 

During Coast Guard inspections of commercial vessels, Coast Guard personnel ensure that ships fulfill these requirements. 

Question 13. While all federally-licensed pilots receive the same training, many 

pilots consider the most substantial part of their training to be the state training 

they receive in addition to the training for their Federal license. Yet, standards and 

training at the state level can vary substantially. Are some states and regions more 

vulnerable because of their state piloting license requirements? Is there a need for 

more stringent requirements for a Federal pilots license? 

Answer. The Coast Guard has no information to suggest that any particular state 

has piloting license requirements that make it ‘‘more vulnerable’’ than any other 

state. The authority for states to regulate pilots is addressed in 46 U.S.C. Chapter 

85. The Coast Guard does not interfere with this authority, and we do not interject 

into the piloting licensing requirements of the individual states. 

The Coast Guard does not have any information to suggest there is a need for 

‘‘more stringent’’ requirements for Federal pilots licenses. The requirements for Federal pilots licenses are established in statute (46 U.S.C. 7101(e)) and specified in 46 

CFR Part 10, Subpart G. The requirements include, as applicable: service requirements, route familiarization requirements, examination requirements, annual physical examination requirements, tonnage requirements and requirements for maintaining current knowledge of waters to be navigated. 

Finally, it is important to note the limitations of when an individual is actually 

‘‘acting under the authority’’ of a Federal pilot license. In accordance with 46 U.S.C. 

8501 and 46 CFR 15.812 , only U.S. flag vessels not sailing on register may require 

a Federal pilot (or an individual qualified to ‘‘serve as’’ a pilot). U.S. flag vessels 

sailing on register (e.g., to/from a foreign port), and all foreign flag vessels, do not 

require Federal pilotage. 

Question 14. I understand that after several large non-tank vessel accidents, including the SELENDANG AYU in Alaska, and the NEW CARISSA in Oregon, that 

the wrecks were not fully removed. How can we allow a shipping company to leave 

their wreckage on the shoreline? 

Answer. In general, once the Federal On-Scene Coordinator determines the threat 

of pollution has been mitigated and/or the situation no longer poses the threat of 

pollution, clean-up required by the National Contingency plan will cease and further 

removal actions are the responsibility of the responsible party. By law the Coast 

Guard is responsible for pollution response and only under certain conditions would 

get involved in a vessel’s salvage. Generally, the vessel’s owner is responsible for 

salvage. 

Coast Guard authority to conduct and direct pollution response actions is derived 

from the Federal Waters Pollution Control Act/Clean Water Act and other legislation. This authority does not extend to the removal of wrecks once the threat of the 

associated oil spill and/or hazardous material release has been mitigated. At that 

point, the vessel is the responsibility of the vessel’s owner. In some cases, a Federal 

On-Scene Coordinator may determine an abandoned vessel represents an ongoing 

threat because it is likely to become an illegal dump site. In these cases, the Coast 

Guard may direct or take action to remove the vessel. 

94 

The Coast Guard works with the affected state, the U.S. Army Corps of Engineers 

(USACE), National Oceanic and Atmospheric Administration (NOAA), and other appropriate agencies to assess the threats such vessels may pose. In particular, the 

Coast Guard works with NOAA to prioritize abandoned vessels through their Abandoned Vessel Program, which prioritizes abandoned vessel removal based on impact 

to ‘‘sensitive areas’’ and available Federal funds. 

Question 15a. Washington State recently completed the response to the wreck of 

the S.S. CATALA. This vessel ran aground in 1965, but only recently was the wreck 

cleaned of fuel oil. I understand that over 34,000 gallons of fuel was removed, preventing contamination of the adjacent state park. Are there other wrecks that we 

should proactively be responding to before oil is spilled? 

Answer. There are a number of wrecks in U.S. waters which may contain oil or 

hazardous materials, but they may not necessarily pose an immediate risk. For instance, the USS ARIZONA is known to have fuel onboard but studies indicate it 

does not pose an immediate risk to the environment. Identifying all such vessels 

within the U.S. exclusive economic zones and assessing their potential for additional 

pollution would require significant interagency effort and resources. 

Presently, the Coast Guard supports a National Oceanographic and Atmospheric 

Administration (NOAA) initiative which identifies and prioritizes wrecks located 

within marine sanctuaries. When the Coast Guard becomes aware of such vessels, 

they are assessed and mitigated as possible. 

Question 15b. Does the Federal Oil Spill fund cover these kinds of incidents? 

Answer. Yes. The OSTLF will generally cover the cost of removing fuel from abandoned vessels if the Federal On-Scene Coordinator (FOSC) determines a wreck poses 

a substantial threat of pollution to U.S. waters and if a responsible party cannot 

be identified. 

Question 16. Has the government of South Korea requested technical assistance 

from the U.S. Coast Guard in its response to the recent major oil spill in that country? If so, how are you providing assistance? What is the U.S. Coast Guard’s involvement and how long do we anticipate that involvement to continue? 

Answer. On December 10, 2007, the U.S. Coast Guard made an offer of technical 

assistance to the Korean Coast Guard (KCG) following the oil spill which occurred 

after a barge collided with the M/V HEBEI SPIRIT on December 8, 2007. On December 12, the KCG accepted the U.S. Coast Guard’s offer. On December 13, the 

U.S. Technical Assist Team (TAT) arrived in Korea; the TAT consisted of three 

members of the Pacific Strike Team and one Scientific Support Coordinator from 

NOAA. The U.S. Coast Guard and NOAA team assisted the KCG with their response priorities, which included protection of natural resources including the fishing industry, the migratory bird population, and tourist beaches. The TAT worked 

closely with other international teams (i.e., Ministry of Maritime Affairs and Fisheries, the Korean Oceanographic Research and Development Institute, and the KCG 

to provide an evaluation of the overall effectiveness and management of the oil spill 

response.) Additionally, the TAT assisted KCG in press conference preparation. The 

TAT departed Korea on December 22, 2007. 

Question 17. What is the most appropriate, safe, and helpful role for volunteers 

in the wake of a major oil spill like the one that just occurred in San Francisco? 

What training is required in order for volunteers to participate in post-spill cleanup 

activities? 

In the wake of a major spill, citizens often want desperately to help in any way 

they can, even when this might be a logistical nightmare. What is the best way to 

accomplish this when oil cleanup often involves dealing with hazardous materials 

that require extensive training to handle? 

Answer. The best role for volunteers in the wake of an oil spill is through preexisting non-government organizations such as the International Bird Rescue Research Center and Tri-State Bird Rescue. These and similar organizations provide 

training on how to rescue and rehabilitate oiled wildlife, and have contributed to 

the success of many oil spill response efforts. 

Use of previously untrained volunteers in an oil spill response operation poses 

many challenges. Safety requirements, such as Hazardous Waste Operations and 

Emergency Response (HAZWOPER) certification, generally require a minimum of 8– 

24 hours of training before an individual can safely work in or near the hazardous 

environment of an oil spill. Even with this initial safety training completed, volunteer responders must receive additional training and direction to effectively participate in response operation. The Coast Guard National Response Team is developing 

guidelines on how to best incorporate volunteers into an oil spill operation and enhance citizen preparation throughout the country. 

95 

Question 18. The ‘Great Circle Route’ is a main trade route between the U.S. West 

Coast and Asia. Vessels leave ports on the West Coast and cut through the Aleutian 

Islands in Alaska en route to ports in China and Japan. There have been a number 

of spills in Alaska from vessels on this route. In 2004, the 738-foot SELENDANG 

AYU broke apart spilling 330,000 gallons of heavy oil and spilling its entire cargo 

of soybeans. That voyage originated in Seattle. Last year the 654 foot COUGAR 

ACE nearly capsized and sank. It was loaded with 142,000 gallons of fuel and 4,800 

automobiles and was heading to Portland, OR. Only heroic salvage efforts kept the 

vessel afloat. One salvor died. Has a risk assessment been completed for this area? 

What is being done to improve vessel traffic safety? 

Answer. A Ports and Waterways Safety Assessment (PAWSA) was completed for 

the Aleutian Islands in 2006. PAWSA is a rudimentary risk assessment process that 

gathers and evaluates expert opinion on the navigation risk character of a waterway. It resulted in several recommendations to improve vessel traffic safety, including enhanced vessel tracking, improved meteorological information and updated 

navigational information. The Coast Guard continues to work with stakeholders in 

the area to evaluate and implement the recommended improvements. The Coast 

Guard has contracted with the Marine Board of the National Academy of Sciences 

to design a comprehensive risk assessment process specifically targeted for the Aleutian Chain and ships on a great circle transit. This initial study is expected to be 

completed by May 2008. The actual assessment will then be completed through a 

competitive contractual effort. 

Additionally, the Coast Guard has an Automatic Identification System (AIS) 

tracking receiver in the Unimak Pass region to track vessels equipped with AIS. 

The Coast Guard is also helping to lead international efforts for implementation of 

Long Range Identification and Tracking, which would allow the monitoring of vessels transiting the great circle route. The PAWSA recommendations and enhanced 

tracking will help improve vessel traffic safety along this great circle route. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN F. KERRY TO

ADMIRAL THAD W. ALLEN

Question. The State of Massachusetts passed the Oil Spill Prevention Act of 2004 

to help protect it’s waterways, but the Coast Guard continues to challenge this law 

in court. In several other States the Coast Guard did not challenge similar legislation. There have been several serious oil spills in Buzzards Bay. Why does the Coast 

Guard not allow Buzzards Bay to manage its own environmental protection activities? 

Answer. As a preliminary matter, the Federal Government’s current challenge 

concerns only two provisions of the Massachusetts law. The other provisions are either unchallenged or the Federal district court judge’s opinion holding the provisions unconstitutional was not appealed by the state. The two provisions that remain subject to the litigation are Massachusetts’ requirement for a tug escort for 

double hull tank vessels, and a provision requiring certain manning on tank vessels. 

The Coast Guard cannot comment on that litigation; all questions with respect to 

it must be referred to the Department of Justice. 

However, in addition to the explanation that is contained in the rulemakings document published in the Federal Register at 72 FR 50052, the following information 

explains the Regulated Navigation Area (RNA) in Buzzards Bay and why the Massachusetts rules are in conflict. 

In August 2007, the First Coast Guard District published amendments to an existing RNA that includes Buzzards Bay. The rule accomplishes four objectives: 

(1) It requires tug escorts for single-hull tankers transiting Buzzards Bay and 

carrying 5,000 or more barrels of oil or other hazardous material. 

(2) It requires a federally licensed pilot, in addition to the crew, to be onboard 

the primary tug during the transit. 

(3) It maintains the recommended route for tankers as ‘‘recommended’’ vice 

mandatory to allow mariners maximum flexibility in the event of unusual circumstances; and 

(4) It establishes a vessel movement reporting system to better track and monitor tanker movements in the Bay. 

The Commonwealth of Massachusetts’ rule, currently being challenged in Federal 

court, requires tug escorts and state licensed pilots for double-hulled tankers, as 

well. During the rulemaking process, the State asked that the Coast Guard adopt 

the same provisions in the State rule as a part of the Federal rule. After careful 

96 

consideration, the Coast Guard rejected the State’s proposal, for the following reasons: 

1. As stated in the preamble to the Final Rule, the Coast Guard believes that 

double hulls provide a sufficient margin of safety for tankers transiting Buzzards Bay. The bottom characteristics of the Bay are primarily rocky—a condition double hulls are designed to protect against. The State has repeatedly cited 

a situation in the Gulf of Mexico where a double-hulled tanker was involved in 

a spill as justification for a tug escort for double hull tank vessels. However, 

the Gulf of Mexico incident presented a unique set of facts—a tanker struck a 

submerged, uncharted oil platform that sank during Hurricane Rita. These facts 

are unlikely to be repeated in Buzzards Bay. 

2. As Rear Admiral Sullivan, the Coast Guard First District Commander, stated 

when the final rules were published, the Coast Guard is seeking opportunities 

to create economic incentives for shippers to use double hull tankers (or stated 

conversely, to discourage the use of single hull tank vessels). The State’s rule, 

by requiring tug escorts of both single and double hull tank vessels, removes 

that incentive. Prior to the B–120 spill in 2003, approximately 20 percent of 

tanker transits through Buzzards Bay were in double hull tankers. In 2005, 

that percentage rose to nearly 58 percent, and has remained relatively constant 

at that level. The Coast Guard seeks to increase that percentage; our regulatory 

choice (which creates an economic disincentive to use single hull tank barges) 

is one method of accomplishing that goal. By Federal statute, single hull tankers will be largely phased out in the United States by 2015. The Coast Guard 

has no authority to accelerate that timetable. In contrast, the international 

phase-out will be largely complete by 2010. Without double hull incentives in 

certain sensitive areas like Estuaries of National Significance (Buzzards Bay is 

so designated), use of single hull tankers might conceivably increase. 

3. It has long been the Coast Guard’s position that consistent, uniform national 

and international regulation is the most effective method to ensure navigation 

safety and protection of the marine environment. The majority of maritime accidents are caused by human error, and a confused mariner is an unsafe mariner. 

Conflicting Federal and state regulations can create such confusion. The Coast 

Guard wants mariners to concentrate on navigating safely, not on whether a 

state rule or a Federal rule applies in a certain waterway. 

RNA’s, such as the one covering Buzzards Bay, are created under the authority 

of the Ports and Waterways Safety Act of 1972, as amended. That statute requires 

the Coast Guard to consult and work closely with affected states before promulgating any new rules regulating vessel traffic. The Coast Guard takes that mandate 

very seriously, as interaction with our State and local partners is a crucial component of developing sound, sensible rules. In the case of the Buzzards Bay rule, the 

Coast Guard coordinated closely with State and local governments through briefings, public hearings and by giving the Commonwealth of Massachusetts and several cities and towns formal consultative status during the rulemaking process. In 

the final analysis, our nation, as evident in the Federalist Papers and in numerous 

subsequent Congressional and Supreme Court actions, has long recognized the need 

to ultimately speak with one voice on maritime matters. The actions of the Coast 

Guard throughout this rulemaking process have been consistent with those objectives, while always keeping in mind the value and importance of input from all 

stakeholders. 

As for tug escort rules elsewhere, San Francisco Bay, Prince William Sound and 

Puget Sound are the only other places where there are tug escort rules for tankers. 

The conditions in those places, as well as the statutory and regulatory history for 

their creation, are sufficiently distinct that they should not be compared to Buzzard’s Bay to determine what requirements should exist in Buzzard’s Bay. For example, in San Francisco, there are no Federal tug escort rules with which the State 

of California’s rule might conflict, and no indication that there is a need for any 

Federal tug escort regulation. In Prince William Sound, the rules are statutorily 

mandated as part of Oil Pollution Act of 1990. In Puget Sound, the tank vessels requiring escort serve only ports in the State of Washington, whereas in Buzzards Bay 

they serve several states (Rhode Island, Connecticut, New York, New Hampshire 

and Maine) in addition to Massachusetts, and thus further supports the need for 

Federal uniformity. Additionally, the law established by the Supreme Court in U.S. 

v. Locke in 2000, strengthened and clarified how Federal rules applicable to vessel 

regulation preempt State rules. This strengthened Federal preemption regime for 

vessel regulation was not as clear when the Puget Sound rules were adopted in 

1994. 

97 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

SUSAN A. FLEMING

Question 1. Right now a single-hulled tanker has a limit of $3,000 per gross ton, 

while freighters are only $950 per gross ton. Do you think that tank and non-tank 

vessels should have comparable liability limits? 

Answer. The liability limits for non-tank vessels and tank barges’ liability limits 

should be more commensurate with their historic spill costs, and as such, in our 

September 2007 report, we recommended that the limits be adjusted based on our 

analysis of major oil spills. Specifically, we found that for certain vessel types, such 

as tank barges, current liability limits appear disproportionately low relative to 

their historic spill costs—and as a result, the Oil Spill Liability Trust Fund (Fund) 

may continue to pay tens of millions for spills that exceed the responsible parties’ 

limits of liability. We also found that liability limits have not been routinely adjusted for significant changes in inflation—resulting in the Fund being exposed to 

about $39 million in liability claims for the 51 major spills between 1990 and 2006 

that could have been saved if the limits had been adjusted for inflation. Based on 

these findings, we recommended that (1) the Coast Guard determine whether and 

how liability limits should be changed, by vessel type, and make recommendations 

about these changes to the Congress and (2) adjust the limits of liability for vessels 

every 3 years to reflect changes in inflation, as appropriate. 

I should note that spills in which the costs exceed the limit of liability are rare 

(42 since the enactment of Oil Pollution Act of 1990, according to the Coast Guard). 

However, when they do occur, they can be expensive and very costly to the Federal 

Government. Thus, we believe adjustments are warranted. 

Question 2. How would you describe the current fiscal condition of the Oil Spill 

Liability Trust Fund? 

Answer. We did not evaluate the fiscal condition of the Fund. At the end of Fiscal 

Year 2006, however, the balance of the Fund was about $604 million, which is well 

below its peak of $1.2 billion in 2000. With the reinstatement of the barrel tax in 

April 2006, the National Pollution Funds Center anticipates that the Fund will be 

able to cover its projected noncatastrophic liabilities. However, there are other potential challenges that could affect the Fund’s condition and place it at risk, such 

as additional natural resource damage claims that could be made on spills that have 

already been cleaned up, potential response costs and damage claims from previously sunken vessels that may discharge oil in the future, and spills that may 

occur without an identifiable source, and therefore, no responsible party to pay for 

response costs and damage claims. Furthermore, because the current liability limits 

appear disproportionately low relative to their historic spill costs for some vessels, 

the Fund may continue to pay tens of millions for spills that exceed the responsible 

parties’ limits of liability. 

Question 3. How much of the Trust Fund is devoted to drills and exercises to prepare for oil spill response? 

Answer. Our 2007 report did not examine the amount of Fund expenditures used 

for drills and exercises to prepare for oil spill response. However, I would note that 

in our bodies of work, such as on homeland security issues, we have identified drills 

and exercises as an important component in preparedness efforts. Based on previous 

GAO work, we also know that the Coast Guard also has an exercise program— 

known as the Spills of National Significance exercise program—to test national level 

response capabilities. This program is focused on exercising the entire response system at the local, regional and national level using large-scale, high probability oil 

and hazardous material incidents that result from unintentional causes such as 

maritime accidents or natural disasters. A recent program exercise, in June 2007, 

tested the response and recovery to an oil and hazardous materials release in the 

wake of a large scale earthquake in the Mississippi and Ohio River valleys. According to Coast Guard officials, there was a multi-agency oil spill response exercise, 

called Safe Seas, held in the San Francisco area in August 2006. 

Question 4. Spills are infrequent, but the public demands a swift and effective response and prompt restoration. Yes or no: are sufficient resources being spent on 

training and preparedness so that when spills happen the agencies are ready to respond? 

Answer. Our 2007 report did not examine the resources spent on the Coast 

Guard’s training and preparedness efforts, so we do not know the extent to which 

sufficient resources are being spent on training and preparing for spills. However, 

I would note that in our bodies of work, such as on homeland security issues, we 

have identified drills and exercises as an important component in preparedness efVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00101 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
98 

*Federal research and other programs include appropriations to Department of Transportation, the Denali Commission, and the Oil Spill Recovery Institute. The Department of Treasury and the Army Corps of Engineers have received appropriations, but these account for about 

0.10 percent of Fund expenditures. 1The 105-foot towing vessel NA HOKU, towing the single-hulled barge NOHO HELE, suffered 

electrical power generator failures thirteen miles off the Washington coast while en route to 

Portland, Oregon, from Port Angeles, Washington, in the vicinity of the Olympic Coast National 

Marine Sanctuary. The T/B NOHO HELE was laden with 2,016,000 gallons of diesel fuel and 

462,000 gallons of gasoline. Seas were 8–10 feet and winds were westerly at 20–30 knots. 

forts. But, as we heard from agency and private-sector officials, no two oil spills are 

the same and each presents challenges that are different than any other spill. 

Question 5. Despite the fact that oil spills occur on a regular basis throughout the 

United States, I understand that we do not have a complete understanding of how 

to most efficiently respond to these events. Is additional research in this field needed? If so, are there any areas of high priority? 

Answer. Our 2007 report did not examine the efficiency of spill response. As we 

heard from industry experts and agency officials, no two oil spills are the same and 

each presents challenges that are different than any other spill. Some private sector 

officials we spoke with, however, cited two challenges facing spill response efforts. 

First, Coast Guard officials are increasingly inexperienced in handling spill response, in part because the Coast Guard’s mission has been increased to include 

homeland security initiatives. This is a concern because poor decision-making during a spill response could lead to the deployment of unnecessary response equipment, or worse, not enough equipment to respond to a spill. Second, some privatesector officials stated that spill response companies, in general, have less experience 

in dealing with spill response and the local geography of an area affected by the 

spill. The geography can be critical to determining which spill response techniques 

are most effective in a given area. They attributed the limited experience to the 

overall decline in the number of spills in recent years. 

Question 6. NOAA has a critical role in preparing for and responding to oil spills. 

Why does the Department of the Interior and the Environmental Protection Agency 

receive an annual appropriation from the Oil Spill Liability Trust Fund (OSLTF) 

and NOAA does not? 

Answer. Our 2007 report did not examine the level of annual appropriations from 

the Oil Spill Liability Trust Fund to individual Federal agencies, nor how those 

agencies use the appropriations. However, we reported that between 1990 and 2006, 

approximately 61 percent of the Oil Spill Liability Trust Fund expenditures went 

to Federal appropriations. The U.S. Coast Guard received the most appropriations 

from the Fund, followed by the Environmental Protection Agency, Federal research 

and other programs, and the Department of the Interior.*

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

DAGMAR SCHMIDT ETKIN, PH.D. 

Question 1. The rescue tug at Neah Bay, Washington, has rescued several ships 

in distress in the past several weeks. These include a 720 foot container ship on 

December 3rd, and an oil tanker barge on December 11. The engines of the vessel 

towing the oil barge went out, and the barge was left floating adrift toward shore. 

With 2 million gallons of diesel and 500,000 gallons of gasoline in the barge, a 

grounding and spill would have been disastrous. 

• What kinds of environmental impacts would have resulted from a spill if the 

rescue tug had not been there? 

• Can you quantify the costs that were potentially averted by the rescue of these 

two vessels? 

• What would be the costs of a major spill of crude oil or bunker fuel? 

• In light of the numerous saves the Neah Bay tug has made, isn’t it clear that 

this is a good return on investment for oil spill prevention? 

Answer. The Neah Bay rescue tug has been credited with 37 responses since 1999, 

including two this past December. In the 11 December 2007 Towing Vessel NA 

HOKU-T/B NOHO HELE incident,1 there could have been significant impacts from 

the spillage of 2,016,000 gallons of diesel fuel and 462,000 gallons of gasoline. The 

spillage of these volumes of oil, or even a portion of that oil, could have caused significant environmental and socioeconomic impacts. With the westerly wind and currents in that area, the oil would have impacted the Olympic Coast National Marine 

Sanctuary and coastal areas. Diesel fuel and gasoline are relatively non-persistent 

99 

2French-McCay, D., J. Rowe, N.Whittier, S. Sankaranarayanan, D.S. Etkin, and L. Pilkey-Jarvis. 2005. Evaluation of the consequences of various response options using modeling of fate, 

effects and NRDA costs of oil spills into Washington waters. Proceedings of 2005 International 

Oil Spill Conference: 467–473. Etkin, D.S., D. French-McCay, J. Rowe, N. Whittier, S. 

Sankaranarayanan, and L. Pilkey-Jarvis. 2005. Modeling impacts of response method and capability on oil spill costs and damages for Washington State spill scenarios. Proceedings of 2005 

International Oil Spill Conference: 457–462. Etkin, D.S. 2004a. Response Cost Modeling For 

Washington State Oil Spill Scenarios. Prepared by Environmental Research Consulting, 

Cortlandt Manor, NY, for Washington Department of Ecology, Olympia, WA. Contract No. 

C040018. 56 pp. 30 June 2004. Etkin, D.S. 2004b. Socioeconomic Cost Modeling For Washington 

State Oil Spill Scenarios. Prepared by Environmental Research Consulting, Cortlandt Manor, 

NY, for Washington Department of Ecology, Olympia, WA. Contract No. C040018. 83 pp. 21 July 

2004. 3Tribal nations of Washington State are highly dependent on fish and shellfish caught in 

Washington waters and on Washington shorelines for basic nutritional needs. Young children 

deprived of protein in their formative years can have life-long impairments. 4On 3 December 2007, the 720-foot container ship KAUAI outbound from Seattle, Washington, to Oakland, California, encountered a storm with 60-foot waves and 64-knot winds 90 

miles west of the entrance to the Columbia River. The vessel sustained damage and required 

escort back to the Strait of Juan de Fuca for repairs. 

and would not have caused significant visible coastal oiling, but these oils are extremely toxic. Due to the location of the spill, the sea conditions, and the nature 

of the spilled oil, it would have been very difficult to mount a successful spill response to mitigate any damages, though resources would likely have been expended 

to attempt this. A shoreline response in the form of damage surveys would likely 

have ensued. Extrapolating from various modeling studies conducted for the Washington Department of Ecology,2 the oil would likely have spread over several hundred square miles. While the costs would vary based on the exact impacts of the 

oils and conditions at the time of the incident, the response costs, natural resource 

damages, and socioeconomic impacts could easily have topped hundreds of millions 

of dollars if not $1 billion. Impacts would have included fish mortality, subsistence 

fishing impacts,3 commercial fishing losses, mortality in diving birds, and damage 

to sensitive marine ecosystems in the designated Olympic National Marine Sanctuary and adjoining areas. 

The 3 December 2007 rescue of the container ship KAUAI 4 likely averted the 

spillage of as much as a million gallons of bunker fuel. A spillage of this much persistent oil would likely have caused significant impacts. Bunker fuel would likely 

have coated a significant length of shoreline with fresh oil or with tar balls along 

both the Washington and Oregon coasts. Depending on conditions at the time of the 

spill, shoreline impacts could have been significant requiring a long-term cleanup 

effort. The spillage of this much bunker fuel would likely have had significant impacts on birds and marine mammals. Costs for a spill of this type could easily have 

reached topped hundreds of millions of dollars if not $1 billion mark. 

A major spill of crude oil from a large tanker would most likely result in costs 

of tens of billions of dollars depending on the circumstances surrounding the spill. 

Impacts of crude oil spills in Washington waters would include commercial and subsistence fishing losses, significant environmental and natural resource damages, 

tourism losses, and impacts to private and state property. In addition, there are 

likely to be significant social impacts. The demoralizing social and psychological impacts of a major spill incident are difficult to measure, but have clearly been demonstrated in studies conducted in the wake of the EXXON VALDEZ spill. 

The Neah Bay rescue tug program has clearly demonstrated that it can avert potential environmental disasters and help in the protection of Washington, Oregon, 

and Canadian waters and shorelines. As such, it represents a good return on investment. 

Question 2. I understand that prompt and effective salvage is important for preventing and minimizing spills. Keeping oil on the ship and keeping it from sinking 

is critical to protecting the environment. Have you studied this issue of the benefits 

of salvage? Isn’t this a clear example of how investing in prevention can far outweigh the costs of disaster? 

Answer. Logically, the order of preference with regard to preventing damage from 

oil spills is: prevention of accidents and actions that can result in vessel damage 

and spillage, reducing the magnitude of spillage at the source, preventing the 

spread of the oil with a high level of response preparedness, protecting the most 

sensitive resources, and, last, doing a thorough job cleaning up the oil. Short of preventing the spill in the first place, effective salvage measures are the best ways to 

control the magnitude of an oil spill. Stabilizing the vessel, controlling the spillage 

of oil at its source, and reducing the amount of oil released to the environment are 

the next best ways to averting significant damages. Trained salvage teams can often 

100 

5 I would recommend an approach that would include an analysis of salvage efforts that have 

been documented and modeling the spillage that might have occurred without salvage efforts 

and then estimating the costs with and without the benefits of salvage. I conducted a similar 

study for the U.S. Environmental Protection Agency in which the numbers of spill incidents with 

and without the various prevention programs were compared and costs that were ‘‘averted’’ with 

the implementation of prevention measures were estimated to determine the benefits of the prevention measures. See Etkin, D.S. 2004. Modeling oil spill response and damage costs. Proceedings of 5th Biennial Freshwater Spills Symp. Etkin, D.S. 2004. Twenty-year trend analysis 

of oil spills in EPA jurisdiction. Proceedings of 5th Biennial Freshwater Spills Symposium. Another study was conducted for the U.S. Coast Guard with regard to the benefits of various spill 

response technologies. Etkin, D.S. and P. Tebeau, P. 2003. Assessing progress and benefits of 

oil spill response technology development since EXXON VALDEZ. Proceedings of 2003 International Oil Spill Conference: pp. 843–850. 6Lentz, S.A., and F. Felleman. 2003. Oil spill prevention: A proactive approach. Proceedings 

of the 2003 International Oil Spill Conference: pp. 3–27. 7 All of this is analogous to the ways in which automobile insurance rates are determined. 

While the procedures vary from state to state, there are general principles of setting the insurance rates based on driver characteristics (age, experience, and driving history), automobile type 

(including safety features), and location of driving. 8There needs to be a certain minimum liability amount in that any spill of a commercial vessel of at least 300 GRT will have a certain cost due to the logistics of response. 9 In fact, on the international front, there is no liability convention for non-persistent oils (including diesel). For a discussion of persistent vs. non-persistent oils see: Davis, B., D.S. Etkin, 

M. Landry, and K. Watts. 2004. Determination of oil persistence: A historical perspective. Proceedings of Fifth Biennial Freshwater Spills Symposium. 10The following states have unlimited liability for cleanup costs and other damages: Alabama, 

Alaska, California, Connecticut, Georgia, Hawaii, Maine, Maryland, Massachusetts, Mississippi, 

New Hampshire, New Jersey, Oregon, Pennsylvania, Rhode Island, South Carolina, Virginia, 

and Washington. 

significantly reduce the impacts of a spill and turn what could have been a significant incident into a relatively minor manageable incident. 

To the best of my knowledge there has been no rigorous cost-benefit analysis of 

salvage as a means to reduce oil spillage that has been conducted, though it would 

certainly be possible to do this.5 The benefits of salvage have been described in a 

paper presented at the 2003 International Oil Spill Conference 6 for which I provided spill data and analyses. In this report, data from the International Salvage 

Union (ISU) indicated that in the year 2000, 310 salvage rescue efforts averted the 

spillage of enough oil to represent 11 spills the size of the EXXON VALDEZ. This 

represents roughly $60–$100 billion in averted damages in that year alone. Clearly, 

investing in salvage capabilities is an important part of preventing significant environmental damages. A more detailed analysis would more clearly elucidate the benefits of salvage. 

Question 3. Currently liability limits makes a distinction between tank and nontank vessels, and for tank vessels, whether they have single or double hulls. If the 

U.S. were to adjust liability limits for vessels, what other factors should be considered? Should non-tank vessels get a break for having protectively located fuel tanks? 

Answer. Logically, since the liability limits are related to the risk of an oil spill— 

and risk is the product of the probability of having an incident times the con- sequences or impact of the incident—these limits should take into account both sides 

of the risk equation. In other words, the limits are designed to anticipate potential 

costs and impacts from spill incident as well as the probability that the incident will 

happen in the first place.7

From the standpoint of potential impacts and consequences of a spill, the liability 

limits should be based on the amount of oil and the type of oil that is carried by 

the vessels, whether they are tank vessels or non-tank vessels. The amount of oil 

factor can easily be applied by having a liability limit that is tied to the size of the 

vessel.8 The type of oil could also determine the costs that might be incurred. A 

heavier oil would tend to be more expensive with regard to cleanup and damages 

than a lighter non-persistent oil.9 Rightly, the locations in which the vessels are 

traveling should also be taken into account in that the consequences of a spill are 

highly contingent on the location in which the spill occurs. To some extent this location factor is already taken into account with regard to the higher financial responsibility requirements in U.S. waters compared to non-U.S. waters. States are also 

given the right as per the Oil Pollution Act of 1990 of setting their own liability 

limits, including unlimited liability.10

The probability of having a spill is dependent on a variety of factors, including 

the structural integrity of the vessel, the location in which the vessel transits, the 

skills of the pilot, captain, and vessel crew, and other variable factors, such as 

weather. Since most of these probability factors change from trip to trip, it is difficult to assign a particular adjustment to the vessel with regard to its liability limVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00104 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
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11Michel, K., and T. Winslow. 2000. Cargo ship bunker tanks: Designing to mitigate oil spills. 

SNAME Marine Technology, October 2000. 12Two notorious examples include: the 1994 T/B MORRIS J. BERMAN spill of 750,000 gallons of No. 6 (Bunker C) fuel oil in Puerto Rico, which resulted in $124 million in costs; and the 

1996 T/B NORTH CAPE spill of 828,000 gallons of diesel fuel in Rhode Island that resulted in 

$190 million in costs. 13 Etkin, D.S. 1990. Oil Spill Contingency Planning, Cutter Info. Corp., Arlington, MA, 116 

pp. 14 Usher, D. 2003. How response contractors are remaining vigilant and viable despite the 

downward trend in oil spills. Proceedings of the 2003 International Oil Spill Conference: pp. 809– 

811. 

its. While the structural integrity of the vessel can vary over the lifetime of a vessel 

and will be dependent on maintenance and passing various inspections, the design 

of the vessel with regard to the protection of the oil cargo and/or fuel is not variable 

from one trip to the next. Since it is well established that the protection of oil cargo 

and fuel tanks with secondary hulls or protective locations 11 reduces the probability 

of spillage and can reduce the amount of spillage when a breach does occur, the 

presence or absence of the double hulls or double fuel tanks should be taken into 

account in establishing liability limits. 

Question 4. I understand from GAO that large spills from tank barges often exceed the liability limits. Does it make sense to lump barges and tankers together, 

or should we have separate liability limits for tank barges? 

Answer. Tank barges often carry two million gallons of oil, which can be a significant amount in the event of a spill. Significant damages have resulted from spills 

from tank barges.12 As mentioned earlier, liability limits should be based on the risk 

of spillage with regard to the amount of and type of oil carried, as well as the probability that such a spill would occur in the first place. In this respect, there are likely to be differences between tank ships and tank barges. 

While I have not yet undertaken such an analysis, it would be fairly straight-forward to examine the differences in risk from tank barges vs. Tankers (tank ships) 

with regard to the probability of spillage given an accident (differentiating between 

single- and double-hulls) and the relative amount of cargo that is spilled in the 

event of an accidental grounding, collision, or allusion. This analysis, which could 

be conducted fairly quickly, could determine whether it really makes sense to treat 

tank barges and tank ships differently with regard to liability limits and financial 

responsibility requirements. 

Question 5. In your testimony you said that there has never been a worst-case 

discharge from a large vessel in the U.S. I understand that the COSCO BUSAN 

only spilled about 5 percent of its fuel oil, and the EXXON VALDEZ only spilled 

about 20 percent of its cargo. Yet both incidents swamped the local capacity to respond. Despite assurances the response was ‘all hands on deck,’ we still did not 

manage to prevent oil from reaching shore and wreaking untold environmental 

damage. 

• Are the worst-case plans realistic? 

• What kinds of costs might be anticipated from a truly worst case non-tank vessel spill? 

Answer. A spill of any magnitude is likely to quickly overwhelm local resources 

in that everything that is available locally will likely be brought in at the request 

of the Federal On-Scene Coordinator in conjunction with the responsible party’s representatives. A tiered response in which cascades of resources from local equipment/ 

personnel caches, and then from regional and national resources will be brought in. 

In some cases, international assistance may even come into play. When the EXXON 

VALDEZ spill occurred in 1989, our response organizations and the general response infrastructure were ill-prepared to deal with the magnitude of the response 

required. Contingency plans at the time were ill-conceived and inadequate and response resources were not appropriately ready.13 Since that time, there have been 

significant improvements in our response infrastructure and readiness. The U.S. 

Coast Guard has implemented a systematic certification of oil spill removal organizations (OSROs) with inspections and increased the response requirements with regard to response capability standards and the timing of responses. But, the fact that 

with even a relatively small spill such as the M/V COSCO BUSAN incident in San 

Francisco Bay in November 2007 our response capabilities were overwhelmed and 

disorganized demonstrates that we still have far to go. OSRO owners express that 

they have difficulties maintaining preparedness with the decrease in the number of 

incidents 14 and that any increases in requirements for increased preparedness with 

102 

15 A study I conducted for the Washington Department of Ecology showed that the state’s 

higher response standard would significantly reduce the costs and damages of an oil spill over 

the Federal (U.S. Coast Guard) standards. Etkin, D.S., D. French-McCay, J. Rowe, N. Whittier, 

S. Sankaranarayanan, and L. Pilkey-Jarvis. 2005. Modeling impacts of response method and capability on oil spill costs and damages for Washington State spill scenarios. Proceedings of 2005 

International Oil Spill Conference: 457–462. 16The highest level of required response capability (after 3 days) is about 500,000 gallons of 

oil removal per day. This would mean that it would theoretically take 160 days to completely 

remove the oil from an 80-million gallon spill. 17 Crude oil tankers tend to be larger than product tankers. A fully-laden product tanker (e.g., 

one with No. 2 diesel oil ) would likely hold less than half this amount. 18 Chemical dispersants are akin to detergents that are applied to the spilled oil on the water 

surface to chemically and physically break the oil down into smaller droplets that can be dispersed and diluted with wave action. This methodology is applied in many non-U.S. spills to 

dramatically reduce shoreline oiling. It is the first-order of response in many parts of the world, 

but, because of concerns about the potential toxicity of the dispersed oil and the dispersant 

chemicals themselves, it is generally not used in U.S. waters. There are certainly limitations 

in their use in nearshore waters because of the lack of physical mixing in shallower waters. The 

U.S. Coast Guard has designated certain areas of pre-approval in U.S. waters, principally away 

from nearshore areas and other sensitive locations. 19The location of the spill would determine the sensitive resources at risk, as well as the degree of cleanliness (known as the ‘‘how clean is clean’’ factor ) required by the local communities 

and authorities. Generally, the more sensitive resources, such as wetlands, require the most expensive cleanup operations because they are both sensitive to the impacts of the oil and to the 

impacts of the response operations (e.g., people and equipment trampling through the marsh). 20The costs of non-U.S. spills tend to be considerably lower than those in the U.S. due to the 

relatively low liability limits set in international conventions (Civil Liability and International 

Oil Pollution Compensation Fund Conventions) to which the U.S. is not party. The standards 

of ‘‘cleanliness’’ after a spill are also usually lower than is norm in the U.S. There is currently 

no compensation for environmental or natural resource damages in non-U.S. spills. In many 

cases, the more effective and less expensive chemical dispersant strategy is applied. This tends 

to significantly reduce the amount of shoreline oiling. All of these factors make non-U.S. spills 

essentially irrelevant for cost estimations of U.S. spills. 21 A more rigorous modeling analysis of a variety of hypothetical worst-case discharges would 

be required for a more definitive answer to this question. This has not been done to date. 22 Based on modeling work I conducted for National Academy of Sciences Transportation Research Board (National Research Council Committee for Evaluating Double Hull Tanker Design 

Alternatives. 2001. Environmental Performance of Tanker Designs in Collision and Grounding: 

Method for Comparison. Special Report 259. National Academy Press, Washington, D.C. 136 pp. 

plus appendices on CD–ROM.) 

regard to the amount of equipment and personnel or the rapidity of the response 

will likely tax the existing infrastructure. The U.S. Coast Guard’s response requirements are wholly inadequate to respond to anything but a moderate-sized spill.15

The standards are not even designed to deal with spills of a worst-case discharge.16

If there were to be a worst-case discharge from a fully-laden tanker,17 this could 

amount to a spill of 80 million gallons of crude oil. The response requirements would 

depend on the location, but if this type of incident were to occur in a coastal area, 

there would likely be a massive response with all local, regional, and national resources being brought to the scene over the course of several days. 

It would be extremely difficult for there to be any kind of effective on-water spill 

response with mechanical containment and recovery. The best outcome with such 

methods might be a recovery of 10–20 percent of the spilled oil, though with such 

a large spill, the results may be even more disappointing as the spread of the oil 

would quickly make it difficult to contain and remove the oil. Unless the use of 

chemical dispersants 18 was to be approved, the response will likely be largely shoreline cleanup. The shoreline impacts would likely reach hundreds of miles. The response would take many months or even years to complete. 

If there were to be a worst-case discharge from a fully-laden tanker, the costs 

could be astronomical. Again, the exact costs would depend on oil type, weather conditions, and, most importantly, location.19 Since there never has been a worst-case 

tanker discharge in U.S. waters and examples from outside the U.S. are not relevant for cost-estimation purposes,20 it is necessary to model hypothetical spills to 

estimate the costs of a worst-case discharge. While this exercise has not been specifically addressed on a national level, there are some examples of modeling from 

which one could extrapolate the costs of a worst-case discharge.21 Modeling of hypothetical spills of 80 million gallons indicates that cleanup response costs alone could 

easily reach $15 billion.22 Socioeconomic and natural resource damages could add 

several hundred million to billions of dollars on top of this. Clearly, no existing liability limit for tankers covers these levels of costs. 

A worst-case discharge from a non-tank vessel would be considerably smaller, perhaps two million gallons of heavy fuel oil. The costs for this type of spill could easily 

103 

23 Etkin, D.S., D. French-McCay, and J. Rowe. 2006. Modeling to evaluate effectiveness of 

variations in spill response strategy. Proceedings of 29th Arctic and Marine Oilspill Program 

Technical Seminar: 879–892. Etkin, D.S., D. French-McCay, and J. Rowe. 2006. Use of trajectory 

modeling to analyze variations on the response strategies for inland spills. Proceedings of 2006 

Freshwater Spills Symposium. 24 An allusion occurs when a moving object strikes a stationary object, as when a ship hits 

a pier. 25 Herbert Engineering Corp. and Designers & Planners, 1999. Use of Tugs to Protect Against 

Oil Spills in the Puget Sound Area. U.S. Coast Guard Report 9522–001, November 1999. Glosten 

Associates, Inc., and Environmental Research Consulting. 2004. Study of Tug Escorts in Puget 

Sound. Prepared for Washington Department of Ecology, Olympia, Washington. Contract No. 

ECY0414. 135 pp. 

reach $1 billion in spill response costs and more in natural resource and socioeconomic damages. 

Overall, in the case of a very large spill or worst-case discharge, there will be a 

prolonged response, astronomical costs, and environmental, social, and socioeconomic impacts that may be felt for many years or perhaps decades. Because each 

spill situation is so different, it is extremely difficult to precisely plan an appropriate response or to accurately predict outcomes. It may not really be possible to 

anticipate every contingency. But, there are many ‘‘lessons learned’’ that can be derived from past spill experiences here in the U.S. as well as from incidents outside 

the U.S. Post-mortem studies of spill responses often show a lack of coordination 

amongst key players, strategic errors, and miscommunication. The difference between a well-executed spill response and a poorly-executed effort can mean a considerable difference in impacts and costs. For example, in one spill in Maryland 

(138,600 gallons of heavy fuel oil), costs (and environmental damages) were shown 

to be at least 60 percent higher than they would have been had responders followed 

the directions of the on-scene coordinator.23

The keys to a successful response and mitigating damages to the greatest extent 

possible are rapidity of the response with well-trained personnel and well-maintained equipment, and good strategic decision-making based on sound scientific and 

technical information. A thorough understanding of the behavior of oil under different conditions, pre-planning and exercising of contingency plans including the Incident Command System, prioritization of sensitive resources at risk (for protection), 

and informed use of technological equipment and resources to locate oil and predict 

its movement will increase the likelihood of success and minimize or reduce damages. Funding of key studies and those agencies that are involved in spill response 

(e.g., U.S. Coast Guard, EPA, and NOAA) will help in this regard. When the ‘‘horse 

is out of the barn’’ (i.e., the oil has spilled), time is of essence. Each hour that passes 

allows the oil to spread further on the water surface, decreasing the likelihood of 

successful removal and increasing the breadth of damages. There are many extremely knowledgeable and talented individuals and organizations involved in spill 

response. We need to continue to tap this expertise and continue to train a new generation of experts for the future. This will require funding at the Federal and state 

levels, as well as from industry. 

Question 6. A large amount of money is spent on oil spills once they occur, but 

are we spending enough on prevention activities? For example, after the 

SELENDANG AYU and COUGAR ACE incidents in Alaska, there were calls for improvements to vessel traffic in the Aleutian Islands, but funding for conducting a 

navigation risk assessment was hard to come by. 

Answer. Oil spill response—when conducted in the thorough manner expected by 

a public that is concerned about environmental protection and restoration—is very 

expensive, because of the large amount of trained labor, specialized equipment, 

logistical arrangements, hazardous material disposal, and monitoring required. In 

addition, the costs to restore and rehabilitate a damaged environment and to compensate socioeconomic damages can be exceedingly high, depending on the specific 

circumstances of the spill. Rehabilitation of damaged environmental habitats can 

take years or decades. Once a spill has occurred, these costs and damages are inevitable. There are few things that can be done to significantly reduce costs and damages. Because of the high costs involved, prevention is the best way to mitigate these 

costs and damages. 

Analyses of vessel-sourced spill incidents often indicate that human error and 

navigational errors in high-vessel traffic areas are at the root of most of the larger 

spill incidents (i.e., those involving collisions, allusions,24 and groundings). Navigational risk assessment studies, such as those that have been conducted in the Puget 

Sound,25 can help in developing better vessel traffic control systems, improving 

navigational information for vessel operators, and determine the best locations for 

rescue tugs and spill response equipment. These types of studies are complex, when 

104 

26 Etkin, D.S., and J. Neel. 2001. Investing in spill prevention—Has it reduced vessel spills 

and accidents in Washington State? Proceedings of 2001 International Oil Spill Conference: 47– 

56. 

done well, and require significant funding. But, funding for these types of studies 

is essential. The implementation of recommended changes in navigational practices 

and other regulations to improve vessel safety that result from these studies, can 

significantly reduce the incidence of spills and the devastating costs and impacts 

that result. A study that I conducted for the Washington Department of Ecology 26

showed that the investing in prevention measures to reduce vessel spills can significantly reduce the incidence of spills from tank vessels and non-tank vessels. Clearly, 

investing in spill prevention and investing in the studies that make for informed 

decisions in spill prevention makes good sense. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

HON. MIKE COOPER

Question 1. The rescue tug at Neah Bay, Washington, has rescued several ships 

in distress in the past several weeks. These include a 720 foot container ship on 

December 3rd, and an oil tanker barge on December 11. The engines of the vessel 

towing the oil barge went out, and the barge was left floating adrift toward shore. 

With 2 million gallons of diesel and 500,000 gallons of gasoline in the barge, a 

grounding and spill would have been disastrous. From your perspective, what would 

have been the impact on Washington State if one of these vessels had not been 

saved by the rescue tug and there had been a catastrophic oil spill? In light of the 

numerous saves the Neah Bay tug has made, isn’t it clear that this is a good return 

on investment for oil spill prevention? Do you believe a rescue tug at Neah Bay is 

a necessary preventative investment? 

Answer. You ask what would have been the impact on Washington State had one 

of these vessels not been saved by the rescue tug and there had been a catastrophic 

oil spill? 

While there is no definitive answer to your question, experts calculate, at a minimum, that significant oil spills in Washington waters could result in hundreds of 

millions, if not billions, of dollars of socioeconomic impacts. 

Yet, this estimate does not incorporate a spill’s impact on the longer-term quality 

of life, psychological impacts, and spiritual values. 

Neither does it take into consideration the ability of a damaged natural environment to provide us with valuable ecosystem services. 

Socioeconomic Costs 

An oil spill can have serious socioeconomic impacts. There are several good reports on this topic by Environmental Research Consulting that are incorporated by 

reference: 

• Regulatory Analyses for Economical and Environmental Impact for U.S. Coast 

Guard (U.S. Coast Guard) (2005). 

• Oil Spill Response, Socioeconomic, and Environmental Cost-Benefit Analysis 

(WA Dept. Ecology): (2003–ongoing); 

• Socioeconomic Cost Modeling for Washington State Oil Spill Scenarios: Part II 

(2005). 

The second cited report provides the following view on socioeconomic damages to 

Washington State in the event of a large spill. 

An oil spill can have serious socioeconomic impacts on the affected region, local 

communities, residents, the state, and the Federal Government. These impacts include damages to real and personal property, loss of use of natural resources (parks 

and recreation areas), and loss of income and expenses (fishing, tourism, recreation, 

shipping and other commerce). As a major shipping port and tourist and recreation 

area, Puget Sound and the Columbia River are particularly vulnerable to socioeconomic impacts from oil spills. Reduction in tourism, commercial fishing, and 

blocking the shipping port could have widespread impacts. There can also be serious 

impacts on the Tribal Nations, particularly with respect to subsistence fishing. In 

the case of an oil spill, the Oil Pollution Act of 1990 allows the Federal Government 

to collect from responsible parties socioeconomic costs including: 

• Loss of natural resources (lost-use); 

• Losses for destruction of real/personal property; 

• Losses of subsistence use of natural resources; 

105 

* This article is retained in the Committee’s files. 

• Net loss of taxes/fees/net profit due to injury, destruction/loss of real/personal 

property or natural resources; 

• Loss of profits or earning capacity due to damage to real/personal property or 

natural resources (e.g., fish); and 

• Governmental costs for providing increased or additional public services during 

or after removal activities. 

In addition to the costs that the Federal and state government authorities can collect, there are also possible third-party damage suits that can ensue. Successful 

damage suits in past oil spill incidents have included payments for: 

• Out-of-pocket costs relating to removal of oil or restoration of impacted property; 

• Economic losses, including lost revenues and profits due to lost tourism or business opportunities; 

• Cost of repair/replacement of physical property damaged by a spill (e.g., fishing 

nets, docks); 

• Loss of revenues from decreased fishing resource; 

• Increased cost of fishing due to necessity of fishing in different locations; 

• Damages to real property, including potential damage to market values of properties ‘‘stigmatized’’ by an oil spill; 

• Possible replacement of natural resources irretrievably oiled by the creation of 

new natural resources; 

• Losses by sport fishermen incurred as result of curtailment of fishing; and 

• Subsistence losses to American Natives. 

Socioeconomic costs are based on the real and perceived impacts, which are related to the degree of oiling, the oil type and persistence, the degree to which cleanup operations can mitigate the oil impacts, and the time of the impact. 

This demonstrates that significant oil spills in Washington waters could result in 

hundreds of millions, if not billions, of dollars of socioeconomic impacts. 

Oil spills in the state could involve significant impacts to commercial fishing, tribal nations, subsistence fishing, ports, tourism, wildlife viewing, hunting, and other 

resources that are important to the state. But measuring these values is always difficult and often involves a variety of assumptions. Additionally, this measure does 

not include other spill impacts, such as long-term quality of life, psychological impacts, and spiritual values. 

Additionally, standard economic damage calculations do not include the loss to society of ecosystem services. Modern economic thinking, however, is beginning to incorporate this loss into damages calculations. When portions of the commons that 

belong to all humanity are lost—for example if a large spill caused the extinction 

of the Orca whale—the ecosystem services provided by those resources are no longer 

available to humanity. 

The Cost of Lost Ecosystem Services 

An oil spill would damage the environment’s ability to provide us with valuable 

ecosystem services. 

Generally speaking, ecosystem services include provisioning, such as the production of food and water; regulating, such as the control of climate and disease; supporting, such as nutrient cycles and crop pollination; cultural, such as spiritual and 

recreational benefits; and preserving, which includes guarding against uncertainty 

through the maintenance of diversity. Wikipedia. The services of ecological systems 

and the natural capital stocks that produce them are critical to the way the Earth’s 

life-support systems function. These directly and indirectly contribute to human welfare and represent part of the total economic value of the planet. Economic Reasons 

for Conserving Wild Nature, Andrew Balmford, et al., Science Magazine, Vol. 297, 

August 9, 2002 (attached* and incorporated by reference). 

Coastal systems, including estuaries, coastal wetlands, river deltas and coastal 

shelves, are particularly rich in ecosystem goods and services. They provide widely 

ranging and highly valued resources that include fisheries, open spaces, wildlife 

habitat, nutrient cycling, and recreational opportunities. Integrated Assessment and 

Valuation of Ecosystem Goods and Services provided by Coastal Systems, Matthew 

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* This report is retained in the Committee’s files. 

A. Wilson, et al. (attached* and incorporated by reference). They also provide climate regulation and soil formation. Balmford, supra. Economists are working to develop better frameworks for assessing and valuing 

the goods and services provided by coastal systems. See e.g.: Wilson, supra. Experts 

have estimated that a large-scale oil spill in Washington would cause socioeconomic 

damages in the ‘‘hundreds of millions, if not billions’’ of dollars. If we add to this 

the loss of ecosystem services, the damages exponentially increase. 

TENYO MARU Spill—a Reference Point 

In 1991, the Japanese fish processing vessel TENYO MARU was involved in a collision 20 miles west of Cape Flattery. It sank at the point of collision in 90 fathoms 

of water with a reported 475,000 gallons of oil onboard. It initially leaked a large 

amount of oil and undetermined amounts were reported leaking for more than a 

month after the collision. Beaches were fouled from Vancouver Island, British Columbia to northern Oregon. 

While impacts were scattered along the entire Washington State shoreline and 

the northern beaches of Oregon, the heaviest oiling occurred along the Makah Indian Reservation and the Olympic National Park shoreline. A large number of birds, 

including Common Murres, federally-threatened Marbled Murrelets, auklets, Tufted 

Puffins and Pigeon Guillemots were killed. Kelp beds had substantial amounts of 

oil in them for weeks. 

The U.S. Fish and Wildlife Service (USFWS), the State of Washington, and the 

Makah Indian Tribe were responsible for the care of impacted wildlife and, along 

with the National Oceanic and Atmospheric Administration (NOAA) documented the 

injuries to natural resources. These parties formed a Trustee Committee that was 

responsible for planning, designing, constructing, and implementing restoration 

projects to compensate the public for the losses as a result of the oil spill. 

The natural resources damages assessment performed by the trustees was done 

under the Oil Pollution Act of 1990 (OPA) and its accompanying Natural Resource 

Damage Assessment and Restoration (NRDAR) process. The goal of OPA is to make 

the environment and the public whole for injuries to natural resources and services 

resulting from an incident involving a discharge of oil. Through this process, the 

Trustees work to return the injured natural resources and services to a pre-incident 

condition and to compensate the public for their losses. 

Importantly, the NRDA process excludes any assessment of the loss of ecosystem 

services. Rather, as the natural resources damages settlement for the TENYO 

MARU shows, the trustees come up with a list of restoration projects needed in light 

of the spill. Then the trustees attempt to collect the costs for performing those 

projects from the spiller. 

For example, to settle the trustees’ claims for the TENYO MARU accident, de- fendants agreed to pay approximately $5.2 million to restore, rehabilitate, replace, 

or acquire the equivalent of natural resources injured by the oil discharge. This was 

in addition to $500,000 to pay a civil penalty assessed by the U.S. Coast Guard, 

$3,000,000 to reimburse oil removal costs, $340,028 to reimburse damage assessment costs incurred by the Trustees, for a total settlement cost of $9 million (over 

and above approximately $2.4 million in removal costs previously paid). The $5.2 million dollar portion paid for the following projects: (1) permanent protection of Marbled Murrelet habitat and reduction of river silt to the marine ecosystem, (2) terrestrial Marbled Murrelet surveys to protect forested habitat through 

the identification of nesting locations, (3) restoration of Common Murre colonies in 

Copalis National Wildlife Refuge, (4) emergency towing vessel at entrance to the 

Strait of Juan de Fuca, and (5) producing publications, signs, and brochures. http:// 

www.fws.gov/westwafwo/contaminants/Final%20Tenyo%20sum%20.pdf. This settlement is significant—$5.2 million. Yet it does not represent the whole 

picture on damages from the TENYO MARU spill to Washington State. First, it was 

the product of a legal settlement. Second, not all types of damages, such as loss of 

ecosystem services, were considered. Yet, the natural resources damages assessment 

for the TENYO MARU spill does seem to serve as a good reference in thinking 

about how badly a large oil spill could damage Washington State. 

You ask, in light of the numerous saves the Neah Bay tug has made, isn’t it clear 

that this is a good return on investment for oil spill prevention? You further ask, 

do you believe a rescue tug at Neah Bay is a necessary preventative investment? 

The Neah Bay tug is, without a doubt, a great investment in Washington State. 

It’s like spending pennies to get millions of dollars. In the fall of 2006, the Oil Spill 

Advisory Council estimated that providing enhanced year-round coverage with the 

Neah Bay tug would cost about $11 million. This cost, even calculated over one-hunVerDate Nov 24 2008 11:35 Dec 17, 2012 Jkt 075679 PO 00000 Frm 00110 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\77422.TXT JACKIE
107 

dred years, pales in comparison to the damages that one catastrophic spill would 

have on Washington State. I most definitely believe the Neah Bay tug is a necessary 

investment in our state. 

Question 2. Do you feel that the Coast Guard devotes adequate time and resources 

to oil spill prevention and response? 

Answer. I very much wish the answer were yes. However, I do not believe that 

it is. I do not believe the United State’s Coast Guard devotes enough time to spill 

prevention and response. This, of course, is not a function of the men and women 

who serve our country in the Coast Guard being undedicated, uncommitted, or 

untalented. I believe the contrary to be true. 

However, the Coast Guard is a multi-mission agency. Oil Spill Advisory Council 

staff have spoken with Coast Guard staff who espouse a commitment to a mission, 

not only to protect the environment and enhance marine safety, but also to facilitate 

the free flow of interstate commerce. In addition, Congress recently brought the 

Coast Guard under the rubric of the Department of Homeland Security. Therefore, 

the vast majority of the Coast Guard’s resources and focus is on preventing terrorism. 

It is possible that, if Congress provides the Coast Guard with more resources and 

refocuses the Coast Guard’s attention on natural resource protection, the Coast 

Guard would begin to devote more time and resources to oil spill prevention and 

response. 

Question 3. One of the goals of the citizen’s advisory council is to promote public 

engagement. What do you think the roles of volunteers should be during spills? 

Answer. There is a role for the public to play in cleaning up oil spills. When an 

oil spill fouls our local community, our local resources, and our local natural environments, local people feel an overwhelming urge to do something. If properly prepared and organized, local people who are desperate to help can become an invaluable cleanup resource. 

If it can be done safely, local volunteers familiar with local waters could participate in oil spill assessment and response. Volunteers can prepare beaches to get 

oiled by picking up debris and standard beach litter that would collect oil and have 

to be sent to the hazardous landfill. Volunteers also can participate in limited and 

supervised beach cleanup. They can also participate in the response to oiled wildlife—including hazing, search and collection, processing and care, tracking and release. 

We have seen from the COSCO BUSAN spill in San Francisco that we must 

greatly improve our efforts around volunteer coordination. The Coast Guard recently 

released a lessons learned report of the San Francisco spill called Incident Specific 

Preparedness Review (ISPR), M/V COSCO BUSAN Oil Spill in San Francisco Bay, 

Report On Initial Response Phase, January 11, 2008 (http://www.uscgsan 

francisco.com/posted/823/CoscoBusanISPRFinal.190115.pdf). 

Observations 

The San Francisco Bay area public is interested in volunteering for oil spill cleanup but there is not an active pre-training program for oil spill response. California 

OSHA and Environmental Protection Agency regulations require minimum training 

before responders can enter the oil spill collection areas to avoid exposure to hazards. Both Coast Guard publications and the Area Contingency Plan (ACP) discourage the use of convergent volunteers for cleaning up oil. The ACP states that ‘‘Volunteers will not be utilized to work directly in the recovery of oil. Volunteers will 

not be assigned to work in areas where there is a known or a potential health hazard due to chemical exposure such as oil recovery, etc.’’ However, the ACP does say 

that trained volunteers may pick up tarballs. 

It was reported and confirmed that the issue of convergent volunteers wishing to 

clean up oil (as opposed to oiled wildlife) had never arisen in the 17 years since OPA 

90 was enacted. Accordingly, there was no program in place to conduct required 

HAZWOPER training of volunteers for this purpose in advance of the spill, other 

than training with respect to oiled wildlife. The Unified Command (UC) was playing 

‘‘catch-up’’ trying to find training protocols and address a difficult situation on the 

spot. The UC was completely taken by surprise, unprepared, and ill-equipped to 

deal with the outpouring of convergent volunteers willing to help pick up oil off of 

beaches, and the local government entities who supported them. With no volunteer 

training protocols or materials in place, agencies were forced to pull together training materials and protocols during the spill response itself, taking time away from 

other duties. 

A lack of planning for a convergent volunteer program, and a general lack of attention to convergent volunteers, resulted in long and frustrating delays that impacted the response overall. Establishing a training program for volunteers during 

108 

an incident is challenging and impacts the ability for the UC to adequately assess 

available resources and conduct normal operations. 

Recommendations 

The Coast Guard recommends: 

• Government use models such as the California Oil Wildlife Care Network 

(OWCN) volunteer program to develop an organized volunteer program. 

• Planners develop a uniform approach to the use of convergent volunteers for oil 

spill response, consistent with local needs, to reflect the use of these volunteers 

in response operations. 

• The National Response Team develop generic guidance for ACP committees to 

develop convergent volunteer sections in local ACPs. 

• Planners integrate trained, experienced organizations into the ACP and drills 

to assist with volunteer coordination and to be an outlet for volunteer interest. 

• Update the ACP (and other state and Federal safety policies/regulations accordingly) to provide a process and protocols for convergent volunteers to assist with 

some beach cleanup (e.g., who’s responsible for volunteer coordination, how the 

volunteers can and cannot be used, liability, training venues, etc.). 

• Volunteer management be staffed at UC in accordance with the ACP and address the issue of convergent volunteers. 

• Integrate trained, experienced organizations into the ACP planning process and 

oil spill drills to assist with volunteer coordination and to be an outlet for volunteer interest. 

It is noteworthy that the Coast Guard praised California’s ability to effectively 

mobilize volunteers to clean up oiled wildlife. This is noteworthy because California 

maintains a well-funded, well-organized, and award-winning oiled wildlife care network, which is un-paralleled in any other state. Thus, a spill in another state would 

predictably have similar problems to the general use of volunteers. 

This indicates that we need to make great improvements in developing and maintaining programs to develop and manage a base of trained volunteers and integrate 

this program into the Unified Command. 

We have heard from our own Washington Department of Ecology that efforts to 

recruit and maintain volunteer base seem unsustainable. People who volunteer to 

become trained often lose interest and fade away. This indicates to me that we have 

to work harder at doing outreach and education. We need to dedicate more resources to educating citizens about the sources and causes of spills and about the 

socioeconomic ramifications of spills, both large and small. We need to build community around participating in a corps of volunteers that will spring into action when 

a spill occurs. 

This effort would not need to be limited to interested individuals. Targeted outreach to professional and volunteer fire departments, Rotary Clubs, and other nongovernmental organizations could be very successful. 

Too often, however, agencies have budgets and staff and conflicting mandates. 

These agencies, must make tough choices of the allocation of tight resources. Therefore, these agencies have not placed an emphasis on developing coordinated and robust volunteer coordination and education programs. The result is that both the 

Coast Guard and Washington State have a great deal of room for making improvements in the way they work together to recruit, train, mobilize, and coordinate volunteers. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. MARIA CANTWELL TO

WILLIAM G. DEAVER

Question 1. Mr. Deaver, I understand your ships have a number of design features 

and safety standards that are well above and beyond the requirements. Your company has clearly made a conscious decision to invest in oil pollution prevention. 

What are the benefits that your business is seeing as a result of your investments 

in oil pollution prevention? 

Answer. TOTE invested approximately $15,000,000 per vessel in additional safety 

features and redundancies that will help prevent vessel incidents and spills in the 

years ahead. Clearly, our investment is one that will last the 40+ year life of our 

vessel assets, however, any attempt to quantify the return on invested capital for 

an event which hopefully will never occur is too difficult to estimate. What we do 

know is that if it is even a close call, we would rather err on the side of doing too 

much on prevention, rather than too little. Uncompromising reliability adds enough 

109 

value to our customers business that it results in lower future costs to maintain 

that customer and can create enough value to charge more for our service than a 

low reliability carrier. The major benefits derived to date are that of a ‘‘state of the 

industry safety record’’, and customer, public, and industry recognition that our enhancements are a positive step forward in designing and operating environmentally 

friendly vessels in future years. TOTE owners and employees live and work in the 

Puget Sound and Cook Inlet regions and our commitment is to keep our environment as pristine and as natural as possible. Bottom line, it was the right investment for us to make in the communities and environment where we live and work. 

Question 2. What can be done to encourage other shipping companies to voluntarily do the same? 

Answer. Seminars and conferences will clearly communicate the need for change 

and enhancements. We are much more in favor of ‘‘the carrot than the stick’’, however, when it comes to incentivizing companies to make capital and operating decisions with respect to their vessels. These incentives can take a variety of forms on 

the investment side, tax credits or some other form of a one time financial incentive 

that would motivate companies to modify their existing vessels. There are operating 

cost incentives such as an exemption from ‘‘rescue tug’’ payment fees which could 

motivate modifications to existing vessels, or new build enhancements. Generally, 

modifications would be very expensive and it would involve thousands of vessels, not 

hundreds. The ‘‘prevention’’ dollars are significant, and world-wide ship yards and 

vessel owners need direction as to what is acceptable to the United States. The 

United States needs to work very closely with the International Maritime Organization (IMO) for the creation of new rules and regulations that meet our needs. 

Question 3. Mr. Deaver, this past January the containership MSC NAPOLI, was 

damaged in a storm and then intentionally grounded in the English Channel to 

keep from sinking. The vessel was only slightly smaller than the COSCO BUSAN. 

Many of the containers were lost at sea and debris was spread for miles. Does TOTE 

have a contingency for such a scenario? 

Answer. TOTE’s contingency plans primarily rest with the securement systems we 

have on our Ro-Ro vessel which are quite different than a conventional container 

vessel. Each trailer or container on a chassis that is carried on a TOTE Ro-Ro vessel 

are secured through the use of a patented ‘‘Rolox’’ box that secures the trailers ‘‘5th 

wheel’’ to the deck of the vessel, and either 2 or 4 chains and binders are used to 

further secure the trailer depending on the stow of the trailer on the vessel and anticipated weather conditions. We experience severe weather conditions in the Gulf 

of Alaska resulting in vessel rolls as severe as 45 degrees, thus requiring our ‘‘redundancy’’ securement system. The redundant vessel propulsion and navigation systems provide a significant safety margin should one of the main generators, motors, 

or rudders fail at a critical time; we have 6 diesel electric generators, two electric 

propulsion motors, and twin rudders. The loss of all power at any given time is extremely unlikely. 

Question 4. Mr. Deaver, I understand that your ships have a number of design 

features and safety standards that are well above and beyond the requirements. It 

is refreshing to hear about such stories. How can we bring other ships including foreign flagged vessels up to the standards? 

Answer. We need very strict regulations from the International Maritime Organization (IMO) that address the issues that we have discussed, supported by Federal 

regulations. Voluntary compliance will most likely not achieve our national goals in 

the near future, thus we need either incredibly high penalties and fines for spills 

that will force the carriers to comply, or IMO and Federal regulations that dictate 

the minimum requirements for vessels calling U.S. ports. Requiring carriers to comply should not become a marketplace competitive issue as all carrier would be required to comply, thus all would have an expense issue that they would need to pass 

through in the marketplace. 

Question 5. Is it cost effective to upgrade vessels, or do we need to wait for the 

next generation of vessels to be built? 

Answer. I do not believe there is a simple answer to this question as there are 

hundreds of classes of vessels, some new, and some old. What might be cost effective 

for one vessel, might not be cost effective for another vessel of a different type, or 

age. Thousands of vessels would need to be modified and it would take many years 

to accomplish the required upgrades. It would be very expensive to modify many of 

the existing vessels, but It would be a good question to pose to the International 

Maritime Organization once new standards are established. 

Question 6. Mr. Deaver, TOTE Shipping use vessels that carry roll-on/roll-off 

cargo. How is this different than a typical container ship? 

110 

Answer. TOTE’s business model requires us to be in port for less than 12 hours 

based on the sea mile distance between Anchorage, AK, and Tacoma, WA and our 

need to turn the vessel in 7 days. Our cargo trailers require wheels as they are driven on and off the vessel, whereas a container ship operation leaves the wheels, or 

chassis in port. The containers are lifted on and off the vessels by large gantry 

cranes, and are stowed in either cells below deck, or staked on deck. The containers 

above deck are generally secured through lashing cables and rods, or in stacking 

frames on some vessels. Our Ro-Ro trailers are secured with our Rolox box, and 

chains and binders. Our Ro-Ro operation is a very efficient and fast operation, allowing us to minimize our port time. 

Question 7. Are oils and hazardous materials carried in Ro-Ro tanks? 

Answer. During 2007, TOTE carrier in excess of 57,000 FEU (forty foot equivalents) of cargo to Alaska and we carried 8 20-foot ISO tanks of lube oil, and 26 other 

tank loads of hazardous materials. These tanks are always secured with 4 chains 

and binders and we have not had issues with the carriage of tanks through the 

years. 

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