U.S. Department Commandant 

of Transportation U.S. Coast Guard 

United States 

Coast Guard 

From: Commandant 

To: Distribution 

2100 Second St., SW 

Washington, DC 20593-0001 

Staff Symbol: G-MEP 

Phone: (202) 267-0518 

NOV 6 1992 

5711/11 

Subj.: FORWARDING OF INTERIM RULE ON STATE ACCESS TO THE OIL 

SPILL LIABILITY TRUST FUND FOR REMOVAL COSTS UNDER THE 

OIL POLLUTION ACT OF 1990 (PURSUANT TO SECTION 1012(D) (1)) 

AND TECHNICAL OPERATING PROCEDURES (TOPs) 

1. The interim rule, 33 CFR 133, implementing Section 1012 (d) (1) of the Oil Pollution 

Act of 1990 (OP 90) (PL 101380) which accord States access to Oil Spill Liability 

Trust Funds for the immediate removal of a discharge, or the mitigation or prevention 

of a substantial threat of a discharge of oil was signed by the Commandant 5 November 

1992 and is effective the day of publication in the Federal Register. The Director, 

National Pollution Funds Center (NPFC) has distributed a copy of this rule and 

Technical Operating Procedures (TOPs) to facilitate administration of the Fund. I am 

forwarding a copy of both the interim rule and the TOPs for further distribution to 

Coast Guard OSCs in your district. 

2. A natural working group of NPFC staff, an Environmental Protection Agency 

representative, and members of my staff developed these TOPs. To the extent we were 

able, these procedures were drafted for use by all parties: the NPFC, the States, OSCs, 

the District and Commandant (G-MEP). These procedures were also written to allow 

for maximum flexibility to allow the OSC to work with State officials in a mutually 

comfortable manner. 

3. We also did not want to burden the OSC with unnecessary paperwork. So, for example 

the OSC is not required to review state cost accounting paperwork: however we 

directed that the NPFC case officer consult with the OSC on questions of an operational 

nature. We also assumed that the State/OSC relationship with respect to State access 

under this rule would be addressed in the Coast Guard/State Memoranda of Agreement. 

I understand that we are breaking new ground, procedural as well as programmatic. We have 

already heard talk of the states using the Fund for abandoned oil well clean up. This will 

likely increase unit workload. And because the OSC has final authority 

Chapter 5 5-5 
5711/11 

Subj.: FORWARDING OF INTERIM RULE ON STATE ACCESS TO THE OIL SPILL 

LIABILITY TRUST FUND FOR REMOVAL COSTS UNDER THE OIL 

POLLUTION ACT OF 1990 (PURSUANT TO SECTION 1012 (D) (1)) AND 

TECHNICAL OPERATING PROCEDURES (TOPs) 

on granting State access, we recognize that the OSC will be placed in awkward position at 

times. I therefore encourage constructive comments on the rule and the TOPs, not only on 

their content, but also to better define the Coast Guard/State relationship and our response to 

oil spills. Comments should be dual addressed to the Director, NPFC and Commandant (GME). Commandant (G-ME) will address those concerns related to operational matters and 

impact on work load. NPFC will address those concerns related to Fund administration. My 

point of contact is Commander Bruce Russell, Commandant (G-ME-3) at (202) 267-0421. 

Encl: (1) Interim Rule 

(2) Technical Operating Procedures for State Access under Section 1012 (d) (1) 

of the Oil Pollution Act of 1990 (PL 101-380) 

Dist: All District (m) 

RTC Yorktown 

NSFCC 

Chapter 5 5-6 
Friday

November 13, 1992

Part II 

Department of 

Transportation 

Coast Guard 

33 CFR Part 133 

State Access to the Oil Spill Liability

Trust Fund for Removal costs Under the 

Oil Pollution Act of 1990; Interim rule 

Chapter 5 5-7 
539504 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Coast Guard 

33 CFR Part 133 

[CGD 92-014] 

RIN 2115-AE19 

State Access to the Oil Spill Liability 

Trust Fund for Removal Costs Under 

the Oil Pollution Act of 1990 

AGENCY: Coast Guard. DOT. 

ACTION: Interim rule with request 

for comments. 

SUMMARY: This rulemaking 

implements the provisions of the Oil 

Pollution Act of 1990 (OPA 90) 

concerning the procedures by which 

the Governor of a State can request 

payments of up to $250,000 from the 

Oil Spill Liability Trust Fund (the 

Fund) for removal costs required for 

the immediate removal of a discharge, 

or the mitigation or prevention of a 

substantial threat of a discharge of oil. 

This action is a temporary measure 

needed primarily to provide a 

procedure 

by which the Governor of a State can 

make a request for payments from the 

Fund. This interim rule will be 

replaced by a more comprehensive rule 

that addresses, in addition to requests 

by Governors, formal agreements 

between the States and the Coast 

Guard providing specific procedures 

for fund use. 

DATES: This rule is effective on 

November 13, 1992. Comments must 

be received on or before February 11, 

1993. 

ADDRESSES: Comments may be 

mailed to the Executive Secretary, 

Marine Safety Council (G-LRA/3406) 

(CGD 92-014), U.S. Coast Guard 

Headquarters, 2100 Second Street, 

SW, Washington, DC 20593-0001, or 

may be delivered to room 3406 at the 

above address between 8 a.m. and 3 

p.m., Monday through Friday, except 

Federal holidays. The telephone 

number is (202) 287-1477. Comments 

on collection of information 

requirements also must be mailed to 

the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW, Washington, DC 20503, 

ATTN: Desk Officer, U.S. Coast 

Guard. 

The Executive Secretary maintains 

the public docket for this rulemaking. 

Comments will become part of this 

docket and will be available for 

inspection of copying at room 3406, 

U.S. Coast Guard Headquarters. 

FOR FURTHER INFORMATION 

CONTACT: Mr. Donald Taylor 

(Project Manager), National Pollution 

Funds Center, (703) 235-4805. 

SUPPLEMENTARY 

INFORMATION: 

Request for Comments 

The Coast Guard encourages 

interested persons to participate in this 

rulemaking by submitting written data, 

views, or arguments. Comments are 

specifically requested on the effect the 

U.S. Department of Transportation 

regulations regarding cooperative 

agreements may have on State access 

to the Fund. These regulations are 

contained in 49 CFR parts 18, 20, 29, 

and 90. Persons submitting comments 

should include their names and 

addresses, identify this rulemaking 

(CGD 92-014) and the specific section 

of the rule to which each comment 

applies, and give the reason for each 

comment. Each person wanting 

acknowledgment of receipt of 

comments should enclose a stamped, 

self-addressed postcard or envelope. 

The Coast Guard will consider all 

comments received during the 

comment period. It may change this 

rule in view of the comments. 

The Coast Guard plans no public 

hearing. Persons may request a public 

hearing by writing to the Marine 

Safety Council at the address under 

“ADDRESSES”. If it determines that 

the opportunity for oral presentations 

will aid this rulemaking, the Coast 

Guard will hold a public hearing at a 

time and place announced by a later 

notice of the Federal Register. 

Drafting Information 

The principal person involved in 

drafting this document is Donald 

Taylor, Project Manager, National 

Pollution funds Center. 

Regulatory Information 

This rule is being published as an 

interim rule and is being made 

effective on the date of publication to 

provide a procedure whereby funds for 

the immediate removal of an oil 

discharge, or the mitigation or 

prevention of a substantial threat of an 

oil discharge, may be made available 

as soon as possible. A delay in 

providing a procedure may delay the 

payment of the necessary funds. Such 

a delay would be contrary to the intent 

of Congress under the Oil Pollution 

Act of 1990 (OPA 90) and to the 

interests of the public. For these 

reasons, the Coast Guard for good 

cause finds, under 5 U.S.C.553 

(b)(3)(B) and (d)(3), that notice and 

public procedure thereon before the 

effective date of the interim rule are 

unnecessary and that the interim rule 

should be made effective in less than 

30 days after publication. 

In addition to this rulemaking, the 

Coast Guard is developing a second, 

separate rule which will replace this 

rule. A notice of proposed rulemaking 

and opportunity for public comment 

will be provided. The second 

rulemaking address not only requests 

by State Governors for payments 

between the States and the Coast 

Guard that may provide for advance 

payments to facilitate immediate 

removal of oil discharges, or the 

mitigation or prevention of substantial 

threats of oil discharges. 

The Coast Guard consulted with 

representatives from the States at 

regional meetings held in December 

1991 and January 1992. There was 

general support for the content of this 

rulemaking. A synopsis of the 

discussions that took place at those 

meetings is in the public docket for 

this rulemaking. 

This rulemaking (CGD 92-014) is 

separate from the Coast Guard’s 

ongoing claims regulations project 

(CGD 91-035). The state access 

regulations concern payment to the 

States outside the normal claims 

process. 

Discussion of the Regulations 

This interim rule implements the 

provision under section 1012(d)(1) of 

the Oil Pollution Act of 1990 (Pub. 

L.101-380; August 18, 1990) (OPA 

90) which states that in accordance 

with regulations promulgated under 

section 1012(d)(1), the President, upon 

the request of the Governor of a State, 

may obligate the Fund for payment in 

an amount not to exceed $250,000 for 

removal costs consistent with the 

National Contingency Plan required 

for the immediate removal of a 

discharge, or the mitigation or 

prevention of a substantial threat of a 

discharge, of oil. 

The objective of this rulemaking is 

to develop the basic request 

procedures. Elaboration of this 

procedure, if deemed necessary after 

further consultation with the States and 

consideration of the comments on this 

rule, will be handled in the second 

rulemaking discussed under 

“Regulatory Information” in this 

preamble. 

The interim rule addresses only 

requests by Governors or their 

representatives. Requests are made 

directly to the On-Scene Coordinator 

(OSC). The OSC reviews the request 

for eligibility both under section 

1012(d) and under the interim rule and 

approves or denies the Governor’s 

request. To guide the OSC in making 

eligibility recommendations, the 

Chapter 5 5-8 
539505 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations 

interim rule provides minimum 

standards. This provides consistency 

in applying the interim rule. The 

States are required to coordinate their 

removal actions with the OSC and 

retain records of expenditures of the 

funds. The provisions of the Federal 

Grant and Cooperative Agreement Act 

and the regulations of the U.S. 

Department of Transportation 

regarding Federal assistance programs 

apply to payments from the Fund. 

In developing this rule, the Coast 

Guard consulted with the 

Environmental Protection Agency. 

Regulatory Evaluation 

This rule is not major under 

Executive Order 12291. It is 

significant under the Department of 

Transportation Regulatory Policies and 

Procedures (44 FR 11040; February 

26, 1979). This rulemaking is 

considered significant because of the 

substantial interest by the States. The 

Coast Guard expects the economic 

impact of this rule to be so minimal 

that a separate Regulatory Evaluation 

is unnecessary. Though the Coast 

Guard expects the economic impact of 

this rule to be minimal, it specifically 

requests comments and data on this 

subject. 

The impacts of this rule arise from 

the procedures the Governor of a State 

must follow requesting payments for 

immediate removal costs from the 

Fund and from the recordkeeping by 

the State necessary to account for their 

expenditures. The cost of making a 

request is expected to be as little as the 

cost of making a telephone call or 

sending a facsimile. The cost of 

conforming with Federal cooperative 

agreement administrative requirements 

is expected to be minimal. This cost is 

intrinsic to all of the cooperative 

agreements a State may have with the 

Federal government. The costs of 

transferring and expending funds and 

keeping records of the expenditures of 

the payments obligated from the Fund 

would vary with the nature of the 

removal activity. Recordkeeping of 

removal activities and costs, however, 

is required already for actions 

consistent with the National 

Contingency Plan. 

Small Entities 

The entities affected by this 

rulemaking are State governments. 

This rulemaking does not affect “small 

entities”, as the term is defined in the 

Regulatory Flexibility Act (5 U.S.C. 

601 et seq.). Therefore, the Coast 

Guard certifies under 5 U.S.C. 605(b) 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Federalism 

The Coast Guard has analyzed this 

rule in accordance with the principles 

and criteria contained in Executive 

Order 12612 and has determined that 

this rule does not have sufficient 

implications to warrant the preparation 

of a Federalism Assessment. Though 

this rulemaking affects the States by 

providing a procedure whereby they 

may request money from the Fund, the 

implications of that procedure are not 

sufficient enough, under the 

Department of Transportation’s 

federalism guide, to warrant the 

preparation of a Federalism 

Assessment. In addition, States are not 

preempted from utilizing their own 

funds in a removal activity. 

Collection of Information 

Under the Paperwork Reduction 

Act (44 U.S.C. 3501 et seq.), the 

Office of Management and Budget 

(OMB) reviews each rule that contains 

a “collection of information 

requirement” to determine whether the 

practical value of the information is 

worth the burden imposed by its 

collection. Collection of information 

requirements include reporting, 

recordkeeping, notification, and other 

similar requirements. 

This rule prescribes requirements 

for requesting access to the Fund, for 

following up those requests with a 

confirmation, and for keeping records 

of expenditures. These requirements 

are discussed in the “Regulatory 

Evaluation” section of this preamble. 

The Coast Guard has submitted 

the collection of information 

requirements to OMB for review under 

section 3504(h) of the Paperwork 

Reduction Act. Persons submitting 

comments on the requirements should 

submit their comments both to OMB 

and to the Coast Guard where 

indicated under “ADDRESSES”. 

For further information, contact 

the Information Requirements 

Division, M-34, Office of the 

Secretary of Transportation, 4400 

Seventh Street, SW, Washington, DC 

20590, (202) 366-4735; the Desk 

Officer, U.S. Coast, at the Office of 

Management and Budget, 725 17th 

Street, NW, Washington, DC 20503, 

(202) 395-7340; or the person under 

“FOR FURTHER INFORMATION 

CONTACT” in this preamble. 

Environment 

The Coast Guard considered the 

environmental impact of this rule and 

concluded that, under section 2.B.2 of 

Commandant Instruction M16475.1B, 

this rule is categorically excluded from 

further environmental documentation. 

This rule concerns procedures relating 

to a request for payments to expedite 

the removal of an oil discharge or the 

mitigation or prevention of a 

substantial threat of an oil discharge 

This action concerns internal 

administrative procedure. A 

Categorical Exclusion Determination 

is available in the docket for inspecting 

or coping where indicated under 

“ADDRESSES”. 

List of Subject in 33 CFR Part 133 

Administrative practice and 

procedure, intergovernmental 

relations, Oil pollution, Reporting and 

recordkeeping requirements. 

For the reasons set out in the 

preamble, the Coast Guard amends 33 

CFR chapter I as follows: 

1. Part 133 is added to read as 

follows: 

PART 133 OIL SPILL LIABILITY

TRUST FUND; STATE ACCESS 

Sec.

133.1 Purpose.

133.3 Definitions.

133.5 Requests: General.

133.7 Requests: Amount. 

133.9 Requests: Where made. 

133.11 Requests: Contents. 

133.13 Removal actions eligible for

funding. 

133.15 Determination of eligibility

for 

funding. 

133.17 Conduct of removal actions. 

133.19 Recordkeeping. 

133.21 Records retention. 

133.23 Investigation to determine the 

source and responsible party. 

133.25 Notification of Governor’s 

designee. 

Authority: 33 U.S.C. 2712(e): 

E.O. 12777 (3 CFR, 1991 Comp., p. 

351); 49 CFR 1.48. 

§ 133.1 Purpose. 

This part prescribes procedures for 

the Governor of a State to request 

payments from he Oil Spill Liability 

Trust Fund (the Fund) for oil pollution 

removal costs under section 1012(d)(1) 

of the Oil Pollution Act of 1990 (the 

Act) (33 U.S.C. 2712(d)(1)). 

§ 133.3 Definitions. 

(a) As used in this case the 

following terms have the same 

meaning as set forth in section 100 of 

the Act (33 U.S.C. 2701): “discharge”, 

“inclusive economic zone”, “Fund”, 

“incident”, “National Contingency 

Plan”, “navigable waters”, “oil”, 

“remove”, “removal”, “removal costs”, 

“responsible party”, “State”, and 

“United States”. 

(b) As used in this part— 

Act means Title I of the Oil 

Pollution Act of 1990 (33 U.S.C. 2701 

through 2719). 

Chapter 5 5-9 
539506 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations 

Director, NPFC, means the person in 

charge of the U.S. Coast Guard 

National Pollution Funds Center or 

that person’s authorized representative. 

NPFC means the U.S. Coast 

Guard National Pollution Funds 

Center, 4200 Wilson Boulevard, Suite 

1000, Arlington, Virginia 22203-1804. 

On-Scene Coordinator or OSC 

means the Federal-official 

predesignated by the Environmental 

Protection Agency or the U.S. Coast 

Guard to direct and coordinate all 

efforts for removal of a discharge, or 

the mitigation or the prevention of a 

substantial threat of a discharge, of oil. 

Removal action means an incidentspecific activity taken under this part 

to contain or remove a discharge, or to 

mitigate or prevent a substantial threat 

of a discharge, of oil. 

§ 133.5 Requests: General. 

(a) Upon a request submitted in 

accordance with this part by the 

Governor of a State or his or her 

designated State official, the OSC may 

obtain a Federal Project Number 

(FPN) and a ceiling not to exceed 

$250,000 per incident for removal 

costs. The removal costs must be for 

the immediate removal of a discharge, 

or the mitigation or prevention of a 

substantial threat of a discharge, of oil. 

(b) Before a request under this part 

is made, the State official shall ensure 

that the procedures in the National 

Contingency Plan (40 CFR part 300) 

for notifying Federal authorities of the 

discharge or threat of discharge have 

been met. 

(c) The Federal Grant and 

Cooperative Agreement Act of 1977 

(31 U.S.C. 8301-8308) and 49 CFR 

parts 18, 20, 29, and 90 apply to fund 

monies obligated for payment under 

this part. 

§ 133.7 Requests: Amount. 

(a) The amount of funds that may 

be requested under this part� 

(1) Is limited to the amount 

anticipated for immediate removal 

action for a single oil pollution 

incident, but, in any event, may not 

exceed $250,000 per incident; 

(2) Must be for removal costs 

consistent with the National 

Contingency Plan; and 

(3) Must be reasonable for the 

removal actions proposed, considering 

such factors as quantity and 

composition of the oil, weather 

conditions and customary costs of 

similar services in the locale. 

(b) The funds requested are 

obligated only to the extent they are 

determined to be for immediate 

removal actions which are reasonable 

and otherwise eligible for payment 

under this part. 

§ 133.9 Requests: Where made. 

Requests for access to the Fund 

under § 133.5 must be made by 

telephone or other rapid means to the 

OSC. 

§ 133.11 Request: contents. 

In making a request for access to 

the Fund, the person making the 

request shall� 

(a) Indicate that the request is a 

State access request under 33 CFR part 

133; 

(b) Give his or her name, title, 

department, and State; 

(c) Describe the incident in 

sufficient detail to allow a 

determination of jurisdiction, including 

at a minimum the date of the 

occurrence, type of product 

discharged, estimated quantity of the 

discharge, body of water involved, and 

proposed removal actions for which 

funds are being requested under the 

part; and 

(d) indicate the amount of funds 

being requested. 

§ 133.13 Removal actions eligible 

for funding. 

To be eligible for funding under 

this part, each removal action must 

meet the following: 

(a) Must be for an incident, 

occurring after August 18, 1990, which 

resulted in a discharge, or the 

substantial threat of a discharge, of oil 

into or upon the navigable waters or 

adjoining shorelines. 

(b) Must comply with the National 

Contingency Plan. 

(c) must be an immediate removal 

action. 

§ 133.15 Determination of 

eligibility for funding. 

Upon receipt of the information 

under § 133.11 and, if necessary, from 

other sources determined to be 

appropriate at his or her discretion, the 

OSC will determine whether the 

proposed removal actions meet the 

requirements of § 133.13. If 

necessary, the OSC may seek further 

clarification of the proposed actions 

from the State official. The OSC shall 

expeditiously notify the State official 

and the Director, NPFC, of his or her 

decision. 

§ 133.17 Conduct of removal 

actions. 

Removal actions funded under this 

part must be coordinated with the OSC 

and conducted in accordance with the 

National Contingency Plan. 

§ 133.19 Recordkeeping. 

(a) The State official shall 

maintain detailed records of 

expenditures made from the funds 

provided under this part, including 

records of� 

(1) Daily expenditures for each 

individual worker, giving the 

individual’s name, title or position, 

activity performed, time on task, salary 

or hourly rate, travel costs, per diem, 

out-of-pocket or extraordinary 

expenses, and whether the individual is 

normally available for oil spill 

removal; 

(2) equipment purchased or rented 

each day, with the daily or hourly rate; 

(3) Miscellaneous materials and 

expendables purchased each day; and 

(4) Daily contractor or consultant 

fees, including costs for their 

personnel and contractor-owned or 

rented equipment, as well as that of 

any subcontractor. 

(b) The State official shall submit 

a copy of these records and a summary 

document stating the total of all 

expenditures made to the NPFC 

official specified in § 133.25(c) within 

thirty days after completion of the 

removal actions. A copy of these 

documents shall also be submitted to 

the cognizant OSC. 

(c) Upon request of the OSC or the 

NPFC, the State official shall make the 

original records available for 

inspection. 

(d) If, after inspecting the records, 

the Director, NPFC, determines that 

expenditures by a State official from 

funds obligated under this part were 

not eligible for funding under this part 

and the expenditures were not made 

with the good faith understanding that 

they were eligible under this part, the 

Director, NPFC, may seek 

reimbursement to the Fund from the 

State. 

§ 133.21 Records retention. 

(a) The State official shall 

maintain all records for ten years 

following completion of the removal 

actions. 

(b) If any litigation, claim, 

negotiation, audit, cost recovery, or 

other action involving the records has 

been started before the expiration of 

the two-year period, he records must 

be retained until completion of the 

action and resolution of all issues 

which arise from it, or until the end of 

the regular ten-year period, whichever 

is later. 

§ 133.23 Investigation to 

determine the source and 

responsible party. 

(a) The State official shall 

promptly make a thorough 

investigation to determine the source 

of the incident and the responsible 

party. 

Chapter 5 5-10 
539507 Federal Register / Vol. 57, No. 220 / Friday, November 13, 1992 / Rules and Regulations 

(b) Upon completion of the 

investigation, the State official shall 

forward the results of the investigation 

and copies of the supporting evidence 

identifying the source and the 

responsible party to both the cognizant 

OSC and the NPFC official specified 

in § 133.25(c). 

§ 133.25 Notification of 

Governor’s designee. 

(a) If the Governor of a State 

anticipates the need to access the Fund 

under this part, he or she must advise 

the NPFC in writing of a specific 

individual who is designated to make 

requests under this part. 

(b) This designation must include 

the individual’s name, address, 

telephone number, and title or capacity 

in which employed. 

(c) The information required by 

paragraph (b) of this section must be 

forwarded to the Chief, Case 

Management Division, National 

Pollution Funds Center, Suite 1000, 

4200 Wilson Boulevard, Arlington, 

Virginia 22203-1804. 

Dated: November 5, 1992. 

J.W. Kime, 

Admiral, U.S. Coast Guard 

Commandant. 

[FR Doc. 92-27392 Filed 11-12-92; 

8:45 am] 

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