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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.






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MAY 14, 1998

Printed for the use of the

Committee on Transportation and Infrastructure


BUD SHUSTER, Pennsylvania, Chairman

THOMAS E. PETRI, Wisconsin
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HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
JAY KIM, California
STEPHEN HORN, California
BOB FRANKS, New Jersey
JOHN L. MICA, Florida
SUE W. KELLY, New York
RAY LaHOOD, Illinois
FRANK RIGGS, California
CHARLES F. BASS, New Hampshire
JACK METCALF, Washington
ROY BLUNT, Missouri
JOSEPH R. PITTS, Pennsylvania
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JOHN R. THUNE, South Dakota
CHARLES W. ''CHIP'' PICKERING, Jr., Mississippi
JON D. FOX, Pennsylvania
J.C. WATTS, Jr., Oklahoma

NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
ROBERT E. WISE, Jr., West Virginia
BOB CLEMENT, Tennessee
ELEANOR HOLMES NORTON, District of Columbia
PAT DANNER, Missouri
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JAMES E. CLYBURN, South Carolina
BOB FILNER, California
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
BILL PASCRELL, Jr., New Jersey
JAY W. JOHNSON, Wisconsin
JAMES P. McGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania

Subcommittee on Coast Guard and Maritime Transportation
WAYNE T. GILCHREST, Maryland, Chairman
FRANK A. LoBIONDO, New Jersey, Vice-Chairman
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HOWARD COBLE, North Carolina
BUD SHUSTER, Pennsylvania
(ex officio)

BOB CLEMENT, Tennessee
JAY W. JOHNSON, Wisconsin
ROBERT A. BORSKI, Pennsylvania
(ex officio)




    Hurt, Captain Richard A., Master, Marine Transport Lines

    Lane, H. Merritt, III, President, Canal Barge Company, Inc

    Robson, Captain Gary, Maritrans, Inc

    Williams, Captain Malcolm J., Jr., Chief, Office of Maritime and International Law, U.S. Coast Guard, accompanied by Captain Thomas Gilmour, Director of Field Activities, Marine Safety and Environmental Protection
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    Gilchrest, Hon. Wayne T., of Maryland

    Shuster, Hon. Bud, of Pennsylvania


    Hurt, Capt. Richard A

    Lane, H. Merritt, III

    Robson, Capt. Gary

    Williams, Capt. Malcolm J., Jr


    Williams, Captain Malcolm J., Jr., Chief, Office of Maritime and International Law, U.S. Coast Guard, responses to questions


    Bryant, Dennis L., Senior Counsel, Haight Gardner Holland & Knight, statement
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    Eklof, Douglas, President and CEO, Eklof Marine Terrace, statement

    Henry, James L., President, Transportation Institute, letter to Rep. Gilchrest, May 12, 1998

    International Group of Protection and Indemnity Clubs, statement

    Russo, Thomas M., Chalos & Brown, letter, June 25, 1998

    Starr, Judson W., Attorney, Venable, Baetjer, Howard and Civiletti, LLP, statement

    Water Quality Insurance Syndicate, statement





THURSDAY, MAY 14, 1998

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U.S. House of Representatives,

Subcommittee on Coast Guard and Maritime Transportation,

Committee on Transportation and Infrastructure,

Washington, D.C.

    The committee met, pursuant to notice, at 10:53 a.m., in Room 2253, Rayburn House Office Building, Hon. Wayne Gilchrest (chairman of the subcommittee) presiding.

    Mr. GILCHREST. TheSubcommittee on Coast Guard and Maritime Transportation will come to order.

    The subcommittee is meeting today to hear testimony on criminal liability for oil pollution. As you know, we will limit opening statements to the Chairman and ranking minority member.

    If other members have statements, they can be included in the record.

    I appreciate everyone's attendance here today to discuss the idea of criminal liability dealing with OPA '90 and the oil pollution problem that crops up occasionally around the world. We, as interested parties, in the maritime industry, I think the level of sophistication over the past 5, 10 years or so has increased dramatically in all of our interest in trying to preserve the world's ecosystems, on this fragile, tiny infinitesimal blue and white speck we call planet earth in the midst of an infinite hostile environment of which we can't escape to.
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    So, responsible, intelligent adults get together, in a community sense, to figure out how we can preserve our natural resources, not for our lifetime, not for 100 years, but for unseen generations to come. I think we've reached a point in the development of civilization, if you don't mind me going on for a minute, and I'll limit this to a minute. I think human activity has been blessed with plenty of open space; generations past, endless frontiers; a huge ocean that seemed endless; an abundance of natural resources. And at the edge of the 21st century, we see that the vast open spaces are now populated. The ocean is a small moat to be traversed with goods and cargo. The abundance of natural resources that once abounded on the planet are quickly diminishing, and so our next frontier is not to find the new world, like Columbus did, our next frontier is an intellectual frontier, to discover how we can manage the limited resources on this planet, on an international basis, to find ways that future generations will have the same blessings that we do, the same benefits from natural resources, from a living, breathing planet.

    So, when we discuss criminal liability today, which is a small part of a huge puzzle, we want to make sure that we do it in such as way that everybody has an interest in preserving the natural resources, a sophisticated, educated, knowledgeable understanding of how ecosystems work, because that's what provides us with the sustaining life we all need.

    OPA '90 was an attempt to ensure that the maritime industry move several clicks in the right direction in their responsibilities. But like any legislation, we always need to review it, and then to fine tune. So if we didn't go far enough, we can go further. If we went too far in unintended consequences, we can fine tune that as well. So, we're here today to have some understanding of how criminal liability deals with the Oil Pollution Act of 1990, how it has impact, or how the Refuge Act, or the Migratory Bird Treaty Act impactS on that as well. We're not here to dismiss anybody from responsibility. But we're here to understand how we can make the maritime industry work better, be responsible, protect natural resources—but do it in a sophisticated way so that when someone is responsible, when somebody does everything they were asked to do, do you still punish them? So, we appreciate everyone's attendance. We appreciate everybody's participation in this hearing.
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    [The prepared statements of Mr. Gilchrest and Mr. Shuster follows:]

    [Insert here.]

    Mr. GILCHREST. And I'll recognize—I had to talk long enough for Mr. Clement to arrive.

    Mr. CLEMENT. Mr. Chairman, were you talking slow enough as well as long enough?

    Mr. GILCHREST. I can't quite talk that slow with people from Tennessee.

    Mr. CLEMENT. And I've already shared this with Mr. Borski. The reason I was late is that I've been stuck in the elevator, and the elevator door would not open, Mr. Chairman. It closed, but it did not open.

    Mr. GILCHREST. It closed, but it wouldn't open, well?

    Mr. CLEMENT. So I've been sitting there waiting for the elevator door to open.

    Mr. GILCHREST. I've heard some interesting excuses before, but that's probably the best one I've heard yet.
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    I recognize——

    Mr. CLEMENT. Even when you tell the truth, it doesn't work.


    Mr. GILCHREST. I recognize the gentleman from Tennessee.

    Mr. CLEMENT. Thank you, Mr. Chairman, for scheduling this hearing on criminal liability for oil spills.

    The Oil Pollution Act of 1990 has two major goals: first, to prevent oil spills; and second, to ensure that there are adequate resources for cleaning up the spill and compensating those that have suffered losses resulting from the spill.

    Today's hearing is to examine two issues: first, whether one of the aspects of prevention, namely criminal liability for spilling oil, can actually contribute to the cause of a spill; and second, if possible, criminal liability can inhibit the fair exchange of information needed to respond to and clean up an oil spill.

    There are millions of tons of oil and hazardous materials transported by vessels on our rivers and through our ports. We have to ensure that they are operated by the best personnel. If the very best ship captains decide not to operate ships carrying these dangerous cargoes because they are afraid they will be thrown in jail if an accident occurs through no fault of theirs, then we may be placing our communities in danger.
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    Similarly, we want to make sure that people who operate vessels in a negligent manner that jeopardize the lives and property of those along our waterways can be severely fined and even thrown in jail. This is a balancing act, one which we in Congress have left to the Coast Guard and the Department of Justice to decide. Today, we will hear if they have been successful in how they balance these two methods of reaching our primary goals of preventing oil spills and cleaning them up when they do occur.

    I do not believe that Congress is going to eliminate all criminal liability for those causing oil spills. The question is, when is it appropriate to assess civil penalties, and when is it appropriate to pursue a criminal prosecution. This is a very complex area of the law, and with many criminal laws that can impact on any given case.

    To give the government a wide array of tools to prosecute a case, including civil, misdemeanor, and felony penalties, may bother some in the industry. To others, it gives them latitude to negotiate with the government over charges, and also importantly to avoid the mandatory sentencing guidelines for misdemeanors. Should a person be guilty of a criminal misdemeanor, with the possibility of spending time in jail, for accidentally spilling oil, without the government having to prove criminal negligence? That's a fair question. When Congress wrote the Migratory Bird Treaty Act I suspect our goal was to penalize hunters, not ship owners. For the answer to that question, I believe you're going to need to talk to Chairman Young over on the House Resources Committee, since they have jurisdiction over the protection of migratory birds.

    Again, thank you, Mr. Chairman, for scheduling this hearing. I look forward to hearing from today's witnesses on the possible impact of criminal penalties on the prevention and clean up of oil spills.
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    Mr. GILCHREST. Thank you, Mr. Clement.

    Mr. Borski.

    Mr. BORSKI. Mr. Chairman, I have no statement. Let me just commend you and Mr. Clement for holding this hearing. Just a brief comment that you mention in your opening remarks the importance of oversight. We used to oversight committees—subcommittees on this Committee, and I think it is prudent for you and Mr. Clement to use—I know how busy we all are here—but this oversight process is extremely important. So, let me commend you once again, and I look forward to hearing from our witnesses.

    Mr. GILCHREST. Thank you, Mr. Borski.

    Our first witness is Captain Malcolm Williams, Chief, Office of Maritime and International Law, accompanied by Captain Thomas Gilmour, Director of Field Activities, Marine Safety and Environmental Protection. U.S. Coast Guard.

    Good morning, gentlemen. Captain, you may begin.


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    Captain WILLIAMS. Good morning, Mr. Chairman and members of the Subcommittee.

    I'm Captain Malcolm Williams, and this is Captain Gilmour, as you mentioned. And thank you for the opportunity to appear before this distinguished Committee to express the Coast Guard's position on the use of criminal sanctions to enforce environmental laws.

    I have prepared an oral summary of my statement, and I request that the written statement be entered into the record.

    Mr. GILCHREST. Without objection, so ordered.

    Captain WILLIAMS. The Oil Pollution Act of 1990, better known as OPA 90, has made a major positive impact on this Nation's efforts to protect the marine environment. An important part of the program by the Coast Guard and other Federal agencies.

    The Coast Guard published internal guidelines in the form of a commandant instruction for the criminal enforcement of environmental laws on July 30, 1997. The commandant instruction serves several internal agency purposes.

    First, the instruction serves to focus scarce Coast Guard resources that are required to investigate a case for possible criminal prosecution on only those violations that truly deserve such attention.

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    A second closely related purpose is to foster enforcement consistency within the Coast Guard by providing policy guidance to field commanders.

    The third purpose of the instruction is to provide education on all alternative enforcement options available for violations and on the processing of environmental crimes cases.

    In order to achieve these purposes, the instruction establishes criteria that should be used in determining whether a particular case should be investigated as a criminal case of later referred for prosecution. These criteria are particularly important because they provide guidance on which types of cases may merit criminal investigation.

    The criteria in the instruction are based on two general measures: significant environmental harm, and culpable conduct.

    Factors to be considered are listed under these measures. The measures serve as a sliding scale to be used when making decisions regarding the propriety of pursuing criminal sanctions in a particular case. For instance, when one or more culpability factors is present, and especially when the violation results in significant environmental harm, then an investigation in anticipation of criminal prosecution should be considered.

    As a result of continuing discussions with industry, the Coast Guard is aware of several concerns they have expressed. One concern is whether the instructions signaled a change in Coast Guard focus and allocation of resources to criminal investigations for environmental violations. The answer is no. In fact, the instruction so states that the vast majority of pollution cases will continue to result in civil penalty action. This was borne out by the fact that between July 30, 1997, when the instruction was published, and March 30, 1998, there have been 8,357 pollution cases investigated by the Coast Guard. Of all these cases, approximately 10 were under criminal investigation, and none has been referred for prosecution to date.
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    The second area of concern is the impact that the instruction will have on the willingness of companies and employees involved in an oil or chemical spill to share information with the Coast Guard during a response. The Coast Guard recognizes that there is a natural tension between the responsible party and the government during a response action. The potential for criminal sanctions may increase this tension.

    However, as the instruction notes response, clean up, and safety are the most important considerations after a spill. The Department of Justice agrees with this view. The priority on response reflects the priorities contained the National Contingency Plan.

    The Coast Guard recognizes that companies and employees must balance their interest in interacting with the Coast Guard during a response. However, the Coast Guard anticipates that when doing so, they will keep in mind the reasonable approach to enforcement by the Coast Guard since enactment of OPA 90; the factors identified by the Coast Guard in its instruction that it will use in determining whether criminal sanctions are appropriate; and the need for the highest degree of cooperation in limiting environmental damages and response costs after a spill.

    The last industry concern involves the potential adverse impact of this instruction on the Coast Guard's partnering efforts with the regulated community. The Coast Guard believes that this instruction is consistent with these partnering initiatives for several reasons.

    Those who intentionally violate pollution laws or internalize the cost of non-compliance by deciding civil penalties are the cost of doing business may be gaining a competitive advantage over responsible operators, the vast majority being responsible operators. By pursuing criminal sanctions in these cases, the Coast Guard strengthens the partnering initiative by leveling the field. Additionally, the instruction indicates that criminal sanctions are appropriate for those who falsify records, engage in fraud, or tamper with evidence. Partnerships must be based on mutual trust. The ability to rely on the truth and accuracy of information provided by the regulated community allows the Coast Guard to step back from its detailed inspection and enforcement posture to focus instead on cooperative efforts to solve problems of mutual concern. In the long run, these efforts reduce the regulatory burden on the vast majority who are responsible vessel and facility owners and operators.
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    Thank you again for the opportunity to discuss this important issue. Captain Gilmour and I would be happy to try to answer any questions you may have.

    Mr. GILCHREST. Thank you, Captain.

    You said the statute—I just want to see if I interpret your testimony correctly—the statute as it not exists or the instructions that you were given regarding criminal penalties and your role in that process—the way it now exists does not allow for a non-responsible carrier to have a competitive advantage. Could you elaborate on that?

    Captain WILLIAMS. What I was saying at that point was that there's very few that try to avoid their regulatory responsibilities and avoid the costs that are involved in meeting the regulatory requirements—training their employees, et cetera. And those are the ones that tend to be the ones that also engage in the culpable conduct. And those are the ones that we're targeting by our instruction focusing on that type of conduct. When we do that, they lose any advantage they may have gained by ignoring the regulatory requirements and the costs associated with compliance.

    Mr. GILCHREST. So those who are responsible, adhere to the regulations, are you saying you're telling them to put the fear out of their mind that they are likely to be held criminally liable or they're not likely to be held criminally liable if they adhere to all the regulations.

    Captain WILLIAMS. You could adhere to regulations and still be criminally liable.
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    Mr. GILCHREST. But you're saying the Coast always uses good judgement, and past experience should—well, you know, most always uses good judgement.

    Captain WILLIAMS. Yes, I'd like to say the Coast Guard always uses good judgement. I think mostly we do. I think by looking at the track record of the type of cases that the Coast Guard has investigated since OPA 90 came into effect and by looking at the factors that are listed on instruction of the types of conduct that the Coast Guard's going to focus their investigative resources on, that that should give industry a good indication of when there might be a potential for criminal liability in those very few cases—the 10 out of 8,000 plus—and when there wouldn't be.

    Mr. GILCHREST. So, you're recommending at this time that there not be a change in the process?

    Captain WILLIAMS. That's right. Yes, sir.

    Mr. GILCHREST. And that the natural tension between the regulatory agencies, or the Coast Guard, and the carriers of petroleum is a good thing?

    Captain WILLIAMS. It's a fact of life. It—just as the Coast Guard is both in charge of fill response and on-scene coordinator, and also responsible for all the Federal laws in the maritime environment, there's a tension on the operator side, too, between wanting to be engaged in full cooperation and having the possibility of criminal sanctions be brought. What we're suggesting is that the possibility of the criminal sanctions is fairly remote. The instances in which it happens, there's a track record to that effect, and it should not affect the vast majority of responses.
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    Mr. GILCHREST. How would the Coast Guard describe significant environmental harm?

    Captain WILLIAMS. Significant environmental harm is decided on a case by case basis. There's—it would depend how much of a particular substance was spilled, what the substance was, what area it was spilled in. We would leave that the judgement of senior officials, who have operational experience in the field. The way our instruction would refer—the way a case would be referred for criminal prosecution under our instruction. It would initially, in most circumstances, be initiated by the commanding officer of our Marine Safety Office or captain of the port, somebody who has substantial experience in dealing with spills and can, therefore, determine—weigh the various factors as to what's significant.

    It would then be required to go up to the District Commander, our flag level operational commander in that area, for his review. He has legal staff. They would review it also, probably coordinating with the U.S. Attorney's Office along the way. Only then, would the case be referred. So it would be—this idea of what's significant environmental harm would be reviewed at those levels by the U.S. Attorney'sFE

    Mr. GILCHREST. It doesn't need to be reviewed at Coast Guard headquarters?

    Captain WILLIAMS. The Coast Guard—the reason that we leave the decision at the district or place the decision at the District Commander level, there's several reasons.
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    First, he'd be the senior operational commander in the area where the spill took place, so he would, by far, have the best knowledge of the facts and circumstances of the case, also of the environmental sensitivity of the areas in which the spill occurred.

    A second reason that it's at that level is because it roughly corresponds to where the U.S. Attorney's Offices would be at a more local level than main Justice. And the U.S. Attorney's Offices would be the ones that would be making decisions as to whether to prosecute a case. And so, at that level, there's also cooperation. In many instances, they have environmental crimes task forces, where they're already working together—representatives from the U.S. Attorney's Offices, Coast Guard, and other Federal agencies—to coordinate these cases. And that's a second reason that would be appropriate to leave it at that level.

    Mr. GILCHREST. Under your jurisdiction, do you ever use Migratory Bird Treaty Act? Is that one of the things—statutes—that you use for criminal liability decisions?

    Captain WILLIAMS. No, the instruction itself focuses our investigators on culpable conduct, the Migratory Bird Treaty Act being a strict liability statute. It's not referred to in the instruction, although the Refuse Act, which is another strict liability statute is. Our focus is on culpable conduct, and, to the best of my knowledge, we have never referred a case based on strict liability statutes standing alone. And also, to the best of my knowledge, the Department of Justice has never prosecuted an environmental crimes case based on a strict liability statute alone. So it's been in conjunction with other conduct—criminal negligence or culpable conduct with those charges.
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    Mr. GILCHREST. I have just one more question. Have you seen any reluctance of the industry to cooperate with the Coast Guard since the North Cape case?

    Captain GILMOUR. Mr. Chairman, this is Captain Gilmour. No, we haven't seen any reluctance since the North Cape case. We've had a number of major and medium spills, and they've all been addressed satisfactorily.

    Mr. GILCHREST. If the gentleman—I'll ask one more question.

    Could you tell us today if someone basically followed all of the safety requirements, had a response team in place, were engaged in the clean up, and it was a fairly substantial oil spill, do you have specific criteria before you pursue the criminal side of this that you use to determine whether or not to pursue that?

    Captain WILLIAMS. Those would be the criteria that we have listed in our commandant instruction. The criteria that includes both looking at the degree of environmental harm and the culpability of the conduct.

    Mr. GILCHREST. So would you say that if there was no negligence, if there was an Act of God or, you know, an unforeseen circumstance, you are not likely to pursue the criminal end of this?

    Captain WILLIAMS. That's correct, sir.
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    Mr. GILCHREST. Can somebody else pursue the criminal end of this—the Justice Department, Fish and Wildlife—somebody like that—an environmental organization?

    Captain WILLIAMS. There's several avenues that can lead to a criminal prosecution. Referral by the Coast Guard is just one. There's other Federal agencies as well as State and local agencies and prosecutors that have jurisdiction in response to oil spills. So, yes, it is possible that criminal actions can be initiated through a process other than referral of the environmental case by the Coast Guard to the U.S. Attorney's Office.

    Mr. GILCHREST. And that's because of the existing statute?

    Captain WILLIAMS. It's because the Coast Guard is not the only agency that has the authority to investigate these spills.

    Mr. GILCHREST. All right. Thank you, Captain Williams.

    Mr. Clement.

    Mr. CLEMENT. Thank you, Mr. Chairman. And good to have Mr. Coble here too. Mr. Coble, pleased to have you here always.

    Captain Williams, according to the Coast Guard's environmental enforcement directive, a company, its officers, employees—mariners, in the event of an oil spill could be convicted and sentenced to a criminal fine even where they took reasonable precautions to avoid the discharge. How and why can these people be prosecuted if they've taken all reasonable precautions to avoid the discharge?
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    Captain WILLIAMS. Yes, sir. That statement in the Coast Guard instruction is in the appendix, where we're outlining the various criminal statutes that impact the environmental arena, and that came out of a discussion of the Refuse Act, which is one of those strict liability statutes we had mentioned before. However, that's not the same as the Coast Guard's criteria earlier, in the body of the instruction, as to which cases would be appropriate cases for us to focus our investigations on. It was simply part of an appendix where that statement was contained. We would focus on culpable conduct and significant harm. However, the statement is a true statement under the Refuse Act. That's a strict liability regime. And that's a true reflection of the law.

    Mr. CLEMENT. Captain Gilmour, did you want to add to that statement?

    Captain GILMOUR. No, sir. That's a legal issue, and I stay more into operational issues.

    Mr. CLEMENT. Captain Williams, does the Coast Guard believe that there should only be criminal prosecution of an oil spill when it was caused by criminal negligence?

    Captain WILLIAMS. There are certain—I'm not certain if that's related again to the strict liability issue or not. There are certainly instances where prosecution for criminal would be appropriate. Repeat offenders, who have—apparently the civil penalties haven't effectively changed their conduct. That could lead to a charge being brought under criminal negligence, and has in the past. I'm not sure if I've got the gist of the question.
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    Mr. CLEMENT. Well, would you say yes or no to my question. Does the Coast Guard believe that there should only be criminal prosecution of an oil spill when it was cause by criminal negligence?

    Captain WILLIAMS. Criminal negligence or greater culpable conduct, such as willful, knowing, deliberate. So I guess the answer would be no, not just criminal negligence, but criminal negligence and other culpable conduct. As I said, though, the Coast Guard would not refer a case if it's dealing with strict liability issue, the Coast Guard has not, and the instruction does not provide that they should refer a case based solely on a strict liability statute.

    Mr. CLEMENT. Captain Gilmour, the Coast Guard Spill of National Significance After-Action Report states that ''the criminal investigation should not be allowed to interfere with the top priority, which is to proceed with the clean up and stop additional oil discharge. In addition, the chilling effect of an aggressive, ill-timed criminal investigation on the cooperative relationship desired for an effective crisis response is unfortunate. This issue requires more discussion and policy guidance. Is there anything that the Coast Guard can do to stop a U.S. Attorney or Department of Justice investigator from interfering with the clean up operation?

    Captain GILMOUR. Well, first addressing the issue of the statement in the SONS exercise. That was an issue that was brought forth by the Coast Guard during our planning of our exercise, because we knew it was an industry issue that they were concerned with also.
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    There were three participantsFEBouchard Marine, UNICOM, and Redband—during that exercise, and they all agreed that this is an issue that should be brought forth.

    We're taking an aggressive approach to be sure that the investigation does not interfere with the response. Certainly, by doing it in SONS exercises and also our preparedness exercises at the more local level, we address this issue. We certainly also are in task forces at the local level that are—address this issue with other law enforcement agencies to be sure that the response is not hurt by the investigation. And we have also discussed this issue with the Department of Justice, and they agree with the stand.

    Mr. CLEMENT. Thank you, Mr. Chairman.

    Mr. GILCHREST. Thank you, Mr. Clement.

    Mr. Coble.

    Mr. COBLE. Thank you, Mr. Chairman. Mr. Chairman, I have a markup going on now in Judiciary and therefore, I'm going to be on a short leash.

    Captain, under OPA 90 responsible parties can be sued in Federal or State court, as you all know, which can inevitably result in competing and overlapping claims against the responsible party. It can also lead to differing treatment for similarly situated claimants by different courts, in different legal proceedings. Do you agree with me, Captain, that it would make more sense to require all legal actions relating to a single spill to be consolidated into one legal proceeding? Or am I over simplifying? But it seems to me that would be the most simple course to pursue.
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    Captain WILLIAMS. I believe that's the issue that's being referred to as the concursus issue. I'm not prepared to testify specifically on that today, although I understand there are cases in the 11th circuit and 1st circuit Federal courts that may go towards resolving the issue. I'd be happy to provide an answer for the record.

    Mr. COBLE. I'd like—Mr. Chairman, if it meets with your approval, to receive additional information on that.

    Gentlemen, your statement mentions certain oil spill cases where criminal sanctions are the only effective deterrent. Could you give us an example where a large civil fine would not result in a deterrence of future spills?

    Captain WILLIAMS. There could be two types of cases that come to mind. One is the repeat offenders. Civil penalties have been tried and haven't worked. There was a case in New Orleans at a facility where there had been repeated spills over a period of years, and it seemed that paying the civil penalties was the cost of doing business, as opposed to making the necessary repairs. Finally, an action was brought, a criminal action, criminal negligence. As part of the plea agreement, they made the repairs, trained their employees. And from the date that that criminal action was brought to now, the following 3 years or so, there have been no spills at the facility. Whereas, when—repeated civil penalty action had been taken prior to that, it just continued to be spills.

    Another case where a large civil penalty might not be appropriate is if the conduct is so culpable, willful, deliberate, knowing, intentional, and there's environmental harm that it's simply more appropriate to address that type of conduct, in those rare cases, with a criminal action as opposed to civil action.
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    Mr. COBLE. Captain Gilmour, do you want to be heard on either question?

    Captain GILMOUR. No, I think those have been adequate.

    Mr. COBLE. All right. Thank you, gentlemen. Thank you, Mr. Chairman.

    Mr. GILCHREST. Thank you, Mr. Coble.

    A couple of quick follow-up questions. Captain Williams, you said that the Justice Department can pursue criminal action when the Coast Guard considers just administrative action or liability. If the Coast Guard, for example, believes that a civil penalty is all that is needed, the Justice Department can then, independent of the Coast Guard, pursue criminal action?

    Captain WILLIAMS. Well, the Coast Guard—it's true the Justice Department can pursue an action by itself. A U.S. Attorney can initiate a criminal investigation. The Coast Guard coordinates in almost—in most cases with the Justice Department about what is appropriate. I'm not aware of a case where the Coast Guard felt that an administrative penalty was the appropriate remedy, and the Justice Department went ahead with a—and the only appropriate remedy—and the Justice Department went ahead with a criminal investigation. But certainly it is true that there are other ways to initiate prosecution, and one is through investigation—grand jury investigations, et cetera—initiated by the U.S. Attorney, independent of the decisions by the Coast Guard.
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    Mr. GILCHREST. So, it's true that the Justice Department has the legal ability to do that, but you're not aware of a situation where that happened?

    Captain WILLIAMS. No, I'm not aware of a situation where the Coast Guard felt that administrative penalties alone, civil penalties alone, would have been appropriate, where the Justice Department nonetheless went ahead and initiated a criminal case.

    Mr. GILCHREST. How else can criminal cases be pursued other than the Coast Guard and the Justice Department, and I think Mr. Coble mentioned, the State can do that? The state has standing in those circumstances?

    Captain WILLIAMS. Yes, sir. The State can also.

    Mr. GILCHREST. Who else can do that?

    Captain WILLIAMS. State, Federal, potentially local. But the ones I'm mostly familiar with would be Federal and State authorities.

    Mr. GILCHREST. Are you aware of any situation where someone else pursued criminal action once the—you say you're not aware of the Justice Department pursuing criminal action. Are you of aware of any other entity—State or local government—that pursued criminal action after the Coast Guard considered civil penalty sufficient?

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    Captain WILLIAMS. No, I don't have any personal knowledge of a case like that.

    Mr. GILCHREST. I see.

    One other—one last question.

    It's my understanding that the FAA has a number—thank God for this—that employees can call in that they see some problem that they don't think is being addressed. Does the Coast Guard having anything like that?

    Captain GILMOUR. Yes, sir, Mr. Chairman. We do have a similar hotline number that goes 24-hour a day basis to our command center, Coast Guard headquarters.

    Mr. GILCHREST. That mariners can call in if they see something?

    Captain GILMOUR. We have found, though, that that's not used nearly as much as their complaints, mariner complaints, straight to the local marine safety offices in the general area. We get much more—many more complaints in those areas, locally.

    Mr. GILCHREST. This is my last one, Mr. Clement. This is sort of a sidebar.

    Does any of this—what we're discussing now about oil spills, civil liability, criminal action—most of this has to deal with a barge that has run aground. We're talking about the Exxon Valdez, those kinds of things and everything else in between, does any of this, have you—had any problem with coastal areas breaking ships apart involved in ship scrapping, where a certain amount of oil or residue has spilled into the waterways?
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    Captain WILLIAMS. Mr. Chairman, I know of one case where there was a minor spill associated with ship scrapping. But that's certainly not the rule. I think most of the criminal cases that are being discussed areFE

    Mr. GILCHREST. Was a criminal—was criminal action pursued in that instance?

    Captain WILLIAMS. I do not know.

    Mr. GILCHREST. Where was that?

    Captain WILLIAMS. I think it was—I'm not sure. I can get that for the record.

    Mr. GILCHREST. I'd appreciate that. Sure. Thank you.

    Mr. Clement, any follow-up questions?

    Captain Gilmour, Captain Williams, thank you for coming this morning. Good luck with your careers in the Coast Guard, and if you're lucky you'll end up on the Polar Star in the Antarctic someday. Fabulous place.

    Captain WILLIAMS. Thank you, Mr. Chairman.

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    Mr. GILCHREST. If you need a letter of recommendation to get onto Polar Start, I'll be happy toFE


    Captain WILLIAMS. Thank you, Mr. Chairman.

    Mr. GILCHREST. Thank you, gentlemen.

    Captain WILLIAMS. Thank you.

    Mr. GILCHREST. Our next panel the witnesses will be H. Merritt Lane the third, president, Canal Barge Company, Inc., representing the American Waterways Operators; Captain Richard Hurt, Master, Marine Transport Lines; and Captain Gary Robson, Maritrans, Inc.

    Welcome, gentlemen, this morning.

    We'll start with Mr. Lane.


    Mr. LANE. Thank you very much, Mr. Chairman. Good morning, I'm Merritt Lane, the President of Canal Barge Company, one of the country's major liquid cargo carriers. And I'm pleased to testify today on behalf of our company and the American Waterways Operators.
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    My testimony today also enjoys the support of several other organizations, including the Chamber of Shipping of America, INTERTANKO, the Transportation Institute, and the Water Quality Insurance Syndicate.

    Mr. Chairman, let me begin by commending for holding this oversight hearing today. The Oil Pollution Act of 1990 has been tremendously successful in reducing the number of oil spills and in establishing a cooperative public-private partnership to respond effectively in the diminishing number of situations when an oil spill occurs. Nonetheless, we found that the implementation of some aspects of OPA 90 have undermined the spill prevention and response objectives of the act.

    While our focus today is on the strict criminal liability issue, the Congress should also examine other reforms and improvements that could be made, including natural resource damage assessments, consolidating all claims from an oil spill into one legal proceeding, and establishing a meaningful limitation of liability.

    With regard to the primary purpose of this hearing, I am most concerned that, as stated in the Coast Guard's own environmental enforcement directive, the company and its employees in the event of an oil spill ''could be convicted and sentenced to a criminal fine, even when they took all reasonable precautions to avoid the discharge.''

    With increasing frequency, responsible operators who transport oil are unavoidably exposed to potentially immeasurable criminal fines, and the worst case scenario: jail time. Let me be clear, Mr. Chairman, and our barge company has a zero tolerance policy for oil spills. We've transferred over three billion gallons of liquid cargo without spilling so much as a tea cup into the water in the past several years. Yet despite our substantial and conscientious fleet modernization, safety and training efforts, we cannot escape the threat of criminal liability in the event of an oil spill.
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    OPA 90 carefully balanced the imposition of stronger criminal and civil penalties with the need to promote enhanced cooperation among all parties involved in the spill prevention and response effort. In so doing, the Congress clearly enumerated the circumstances where enhanced criminal penalties could be imposed for actions related to marine oil spills. As a result of OPA 90's powerful deterrence, the number of domestic oil spills has been dramatically reduced. In those limited situations in which oil spills unfortunately occurred, OPA 90 has provided a comprehensive blueprint to ensure that the response is properly and cooperatively managed.

    We're not here today to advocate changes to the tough criminal sanctions that were imposed in OPA 90. However, we're concerned about the Justice Department's increasing willingness in the post OPA 90 environment to use strict criminal liability statutes, and the Coast Guard's increasing preoccupation with criminal enforcement in oil spill incidents. As you know, strict liability imposes criminal sanctions without requiring a showing of criminal knowledge, intent, or even negligence.

    Such strict criminal liability statutes as the Migratory Bird Treaty Act and the Refuse Act, statutes that were enacted at the turn of the century to serve other purposes, in effect have turned every oil spill into a potential crime scene, without regard to fault or intent.

    The unjustified use of strict liability statutes is plainly undermining the very objectives which OPA 90 sought to achieve, namely to enhance the prevention of and response to oil spills. With strict liability criminal enforcement, responsible members of the marine transportation industry are faced with an extreme dilemma in the event of an oil spill: provide less than full cooperation and response as criminal defense attorneys will certainly direct or cooperate fully despite the risk of criminal prosecution that could result form any additional actions or statements made during the course of the spill response.
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    The OPA 90 blueprint is no longer clear. The only method available to companies and their employees to avoid the risk of criminal liability completely is to get out of the marine oil transportation business altogether. Furthermore, strict criminal liability laws provide a strong disincentive for trained, highly experience mariners to continue the operation of tank vessels.

    A strict criminal liability serving the objectives of OPA 90, is this in the public interest of the most immediate, most effective oil spill clean up in the unfortunate event of a spill? We think not.

    We believe that your Subcommittee should take the lead by enacting legislation to restore the delicate balance of interests reached with the passage of OPA 90. Mr. Chairman, thank you for the opportunity to testify today, and I look forward to responding to any questions from you or members of the Subcommittee.

    Mr. GILCHREST. Thank you, Mr. Lane.

    Captain Hurt.

    Mr. HURT. Good morning.

    Mr. GILCHREST. Good morning.

    Mr. HURT. My name is Richard Hurt. I'm the captain of the BT Alaska, a 190,000-ton American flag tanker operating in the Trans-Alaska pipeline trade.
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    I've submitted a detailed written statement for the record.

    I've been a vessel master since 1991. On average, I sail about 50,000 miles each year, carrying either to the west coast of the United States or to ports in China, Korea, and Taiwan. I've been involved in the safe movement of billions of barrels of oil in my career. I'm proud of my profession. I'm proud of the officers and seafarers I work with, and I'm proud of my ship and its record.

    We do our job very well, and I can assure you that every minute of our operation is devoted to the safe and environmentally friendly movement of oil cargos that are so important to the American economy.

    My company, Marine Transport Lines, is a member of INTERTANKO. I am here today representing INTERTANKO.

    INTERTANKO is a an international organization of tanker owners. We represent more than 500 ship-owning and related companies around the world. There are approximately 2,000 tankers in the combined INTERTANKO fleet.

    INTERTANKO expects high standards of safety and environmental protection from all of its members, all over the world. I am here today to share the views of an American master. However, what I tell you today is equally applicable to my colleagues in other maritime countries of the world.

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    Operating tankers is a big responsibility. The ships are enormous. The value of the cargos we carry is immense, both in monetary terms and in terms of their importance to the economy of the United States. The physical properties of the cargos are such that they can do serious environmental damage if released. We understand these better than anyone— we understand these things better than anyone.

    My shipmates and I spend a significant portion of our time preventing casualties. The philosophy in my company, Marine Transport Lines, and responsible tanker owners elsewhere in the world, is that we need to do everything humanly possible to avoid accidents. However, the sea being a place of infinite peril, if accidents occur, despite human precautions, we must use all of the mariner's skills to contain damage and to get the oil out of the water.

    I think you can imagine that operations on a vessel in peril or in an oil spill clean up situation are high stress operations. They bring out the best in people, and they have a way of finding human weakness that we all carry. Every crew that I command will do its best in this extreme situation. But I can also say that people will make mistakes. An increased emphasis on applying criminal sanctions to incidents where oil gets into the water, regardless of whether the spill is caused by reckless or grossly negligent human actions, will undermine our ability to respond successfully in the case of the spill.

    In drills that we engage in we have learned that a crew, working together for a common goal, is extremely important. Being in command of men and women who are worried that every decision they make, every action they take could land them in jail hampers my ability to mitigate the situation.

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    I want to be able to talk frankly with my crew and Coast Guard personnel without consulting a criminal lawyer before each utterance. Unless I can do this, the quality of spill response will be degraded.

    The second concern I have is a more long-term concern. The masters, officers, and crew of tank vessels should be the best in the business. And, in fact, I think they are the best in the business. We have a lot of responsibility, and we know it. Quite frankly, my concern is that the best and brightest in this business will begin themselves in billets where the cargos carried are less sensitive. This country would be the loser if that occurs. We should encourage the best American mariners and the best foreign mariners to put their skills where they are needed most. They should be encouraged to work in the tanker sector and other sectors that demand the highest skills.

    If they are driven from this area by criminal enforcement policies, we will end up with mediocrity where we should have excellence. From this mariner's perspective, the Oil Pollution Act of 1990 and international requirements like the ISM and STCW standards have done much to improve—have done much to provide leadership and direction for tanker owners, operators, and officers. These standards encourage open communication and prompt clean ups. We, in no way, are attacking the benefits of these standards and requirements.

    In the event of an incident, I will be very much in demand on the front lines. What I need from Congress is an environment where people focus on helping me mount the best possible response, not on covering their back sides. This means ensuring that criminal sanctions are limited to situations in which people act deliberately or recklessly to despoil the environment.
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    Thank you for your time and attention, and I'll be happy to answer any questions you may have.

    Mr. GILCHREST. Thank you, Captain Hurt.

    Captain Robson.

    Captain ROBSON. Thank you, Mr. Chairman.

    Mr. GILCHREST. How was Galena this morning?

    Captain ROBSON. Pardon?

    Mr. GILCHREST. Did you come from Galena this morning?

    Captain ROBSON. Yes, sir.

    Mr. GILCHREST. How was the drive over?

    Captain ROBSON. Rough.


    Mr. GILCHREST. The drive over was rough. Let me—just before you start. I probably should do this after. Do you know Mr. Berg?
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    Captain ROBSON. Sure do.

    Mr. GILCHREST. I painted his house about 10 years ago.

    Captain ROBSON. I painted his boats.

    Mr. GILCHREST. He's painted it since.

    Captain ROBSON. I painted his boats.

    Mr. GILCHREST. You painted his boats? Well, that's good.


    Mr. CLEMENT. Mr. Chairman, do you do this—do you moonlight occasionally?


    My house needs painting.

    Mr. GILCHREST. Well, I——

    Mr. CLEMENT. I've never had a Republican paint my house.
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    Mr. GILCHREST. I'm not sure if I've ever painted a Democratic household, Mr. Clement. I only use latex. I don't use oil paint.


    Tell Mr. Berg I said hi.

    I'll give you an estimate pretty soon, Mr. Clement.


    Mr. CLEMENT. Thank you. I pay minimum wage.


    Mr. GILCHREST. No, Although I charged much more than minimum wage at the time.

    Anyway, Captain Robson, tell Mr. Berg that I said hi. I haven't seen him in a long time. And thanks for coming this morning from the fine town of Galena, on the eastern shore of Maryland. And thank you for your testimony.

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    Captain ROBSON. Well, thank you very much for giving me the opportunity.

    I'm Gary Robson, of Galena, Maryland. I'm a captain with Maritrans, Inc., a Philadelphia-based company that operates tugboats and tank barges on the east and Gulf coasts of the United States.

    Maritrans is the 1997 recipient of the U.S. Coast Guard's William M. Benkert Award for Environmental Excellence. The company is also a member of the American Waterways Operators, the national trade association for the tug, towboat, and barge industry.

    I appreciate the opportunity to be here today to talk to you about the issue of criminal liability for oil pollution, from the perspective of a person who makes his living moving tank barges.

    I've been in the tugboat business for 24 years, and I love the water. I grew up sailing, fishing, and crabbing on the Chesapeake Bay, and I've raced sailboats in the U.S., Canada, Bermuda, Europe, and the Caribbean. I graduated from the United States Merchant Marine Academy at Kings Point, with a bachelor of science in Marine Transportation. In 1982, I started with Maritrans, first as a mate and then as a captain. Commercially, I've handled vessels from 35 ft work boats up to my company's 640-foot tug barge unit. That vessel has the capacity to carry 16,000,000 gallons of cargo. That would fill 20,000 tank trucks.

    As captain, I have ranged from Mexico, to the U.S., Canada, and Bermuda.

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    I grew up on, work on, play on, and live on the water. I am well aware of the role of a healthy marine environment for the sustenance of this planet, our lifeboat. I have a vested interest in maintaining this lifeboat—my kids.

    I'm a member of the Chesapeake Bay Foundation and support other environmental organizations. I love the outdoors and my job gives me the ability to work in that environment.

    However, the recent changes in the legal and criminal aspects of my industry cause me great concern. Strict criminal liability does not make me do my job better. It only produces counterproductive stress. The sense that I have is that a mariner is less criminally liable if he kills someone out there than if he spills oil.

    I think the criminal liability aspect of this business is out of proportion. If a mariner and his company have complied with all the regulatory requirements of construction, maintenance, crewing, training, et cetera, and if an accident does occur, they should not be held criminally liable.

    We at Maritrans endeavor to meet or exceed these requirements day and night. Yet, even with all our efforts and precautions, sometimes things can happen. To protect myself and my family, I buy license insurance. The first costs about $200 a year. With increased criminal liability, that cost has increased five fold. Because of the current situation, I cannot and will not encourage my children to follow in my footsteps. Nor can I encourage anyone else to enter the marine petroleum transportation business. Not when your license, your income, even your liberty are on the line through circumstances beyond your control.
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    Yet the industry needs good people. Strict criminal liability is a tremendous deterrent to anyone considering entering the industry. I think we need to set high standards for our industry, and demand that all operators comply with the spirit as well as the letter of the law. We must expect companies and mariners to take every precaution. But even insurance companies recognize Acts of God. Yet, these laws, as currently applied, do not. I'm simply asking you to apply the same standards of liability that the rest of society enjoys.

    I hope as you consider this industry issue, you will keep the perspective of mariners like me in mind.

    Thank you very much for your time.

    Mr. GILCHREST. Thank you, Captain Robson.

    Could each of you give a quick response as to the different interpretations of strict liability that you have just given to us, and the Coast Guard's phrase—I'm going to paraphrase as the Coast Guard—I don't want to speak for the Coast Guard—I think if there's anybody here from the Coast Guard and they want to correct me, please feel free to do so. But it seems that the Coast Guard views the strict liability as the natural tension that apparently needs to exist between the carriers and the Coast Guard and the idea of OPA 90.

    Now you view the strict liability as a financial problem; as a problem for people getting into the business; a problem of people in the business being less than the best; and the fact that I suppose, and I'm not a legal scholar by any means, that this is different. It's applicable to this industry—strict liability—differently than other industries across the board.
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    Could you comment on that idea that the Coast Guard says that it is a natural tension that benefits those competent marine carriers as opposed to the less competent marine carriers. And, let's go with that—why the Coast Guard views this as a thing that's not so bad, especially considering that there hasn't been any criminal actions taken according to the Coast Guard. And, has there been a problem since OPA 90 with someone going to jail when they weren't reckless. There was no criminal intent, and they weren't negligent?

    Captain ROBSON. At this point, I don't think we have too much argument with the Coast Guard per se. I think it's the other entities that you discussed earlier. I will just give you—it's not straight applicable, but I'll give you an example, and I don't remember the name of the vessel or exactly when it happened. But a few years ago, a vessel hit a rock in the Kill Van Kull of New York. And my understanding is that the New Jersey State police came down and took the captain and the chief mate off the boat in handcuffs, at gunpoint as soon as they hit the dock virtually.

    That removed two of the primary people who are going to be able to control things on the ship, from the scene. I don't think that's a particularly good thing. Now I understand that was a State situation. My understanding now is that that could very well be U.S. Marshals.

    Mr. GILCHREST. Captain Hurt——

    Captain ROBSON. That does address what you asked?

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    Mr. GILCHREST. I think so.

    Mr. HURT. Sir, there are a number——

    Mr. LANE. I——I'm sorry. Forgive me.

    Mr. HURT.1 Excuse me. I'm a—I view things from an operations vantage and standpoint, and I've been involved in operations from towing semi-submersible towing platforms to very complex, mixed cargo-loading on tankers. And my observation has been that in the—and—a clean up operation would be very operationally intense endeavor. And I would say that this tension that you're talking about my experience has been that two things are very much required. One is focus, and one is communication. And this tension would inhibit that communication. And you must have people who don't have other agendas, who are running for cover. You need full disclosure if you're looking to mitigate a situation and be operationally successful. You need outstanding communications, and anything that gets in the way of that, such as tensions, I think would be counterproductive.

    Mr. GILCHREST. Interesting.

    Mr. Lane.

    Mr. LANE. Yes, sir. One of the unfortunate things about these no-fault criminal liability statutes is that they fail to distinguish between the company that did all the things right prior to the spill and the company that didn't. So, we're all in the same bag if we did end up with an oil spill. And that's unfortunate. Some of the interpretation that the Coast Guard is speaking of is irrelevant when it comes to the use of these strict statutes. We really don't have much disagreement with the Coast Guard. We've learned, within industry, and I believe the Coast Guard has learned as well, over the last several years that we can do a lot more to improve operations by working cooperatively. Certainly, their endorsement of the Responsible Carrier Program of the American Waterways Operators, their working in quality partnerships that I've had a chance to work with the Coast Guard on indicates that. We can find real problems, proactively and address them and come together and solve them. Typically, we find ourselves learning that when we cooperate we can be a great deal more successful together than if we're in conflict. One of the beauties of OPA 90, frankly, aside from being a significant deterrent, is that it does provide this blueprint that says contingency plan, be prepared, identify resources, report the spill as soon as it occurs, and cooperate in totality with all the necessary public officials that are going to be involved in one of these spills. What we learned from—what we, as an operator, have believed until very recently is that our emphasis needs to be on prevention. But in the event that we have a spill, we have to be prepared. And if we do the right thing by reporting and working with the Coast Guard and getting the oil spill, while it may be a very expensive proposition, because of our record and because of the way we operate—the way that we would operate in this particular instance, we'd have very little else to be concerned with. Of course, our customers would be very aware of it, and that has some problems. And the underwriters would be very concerned. And just as with the regulatory authorities, they mean a great deal to us. But when you add the aspect of a criminal defense need into this, we have a three-part situation to manage. We're managing the spill response. We're dealing with civil damage and liability. And, at the same time, we're dealing with the prospect of criminal liability. Prudence would dictate that you'd look at the three and you'd say, well, criminal defense is a priority. We've discussed with our—we now have retained a criminal defense attorney. I can't believe that we would have to do that, but we have. They have told me very clearly that in the event that we hired them, they would immediately take over. And they would tell us what to do and what to say. And one of the analogies that they've used is that in the event——
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    Mr. GILCHREST. I guess you would hire all former Coast Guard people, though, I would guess to be your defense attorneys?

    Mr. LANE. Of course, of course. They've indicated to us that their advice typically would be if the house is afire, let it burn down. Get away. Don't self-incriminate. And I don't think that's the kind of productive tension that needs to exist between the parties trying to clean up oil.

    Mr. GILCHREST. Thank you, very much.

    Mr. Clement.

    Mr. CLEMENT. Mr. Lane, please describe how OPA 90 has improved you company's oil spill prevention and response efforts. And how does the threat of strict criminal liability undermine those efforts?

    Mr. LANE. OPA 90, with its significantly stricter and more expensive aspects, sends a clear message to an operator that you'd better focus on prevention. To that end, our company has retired all of its obsolete single-skin tank barges and constructed 31 new, state-of-art, double-skin tank barges well in advance of the OPA 90 deadline. We've committed literally millions of dollars of training that didn't pre-exist OPA, frankly, in trying to get our crew and our operating procedures to be bar none.

    On the response side, we have had to very much prepare ourselves, as OPA dictates, for a spill by writing vessel response plans, by determining who in our organization would be the qualified individuals to respond to a spill. They have full authority to spend whatever resources we have to clean up the oil. We've trained in our—we do an annual, very elaborate spill drill, where, in October, which was the time we did it this past year, invited in six oil spill response contractors, members of the Marine Safety Office, of the Coast Guard in New Orleans, as well as roughly 45 percent of our office staff, to participate in a drill. I can tell you, sir, I've never had first hand experience with cleaning up an oil spill. But we do what we can to simulate the most—the stresses, and the pressures, and the decision making process that you have to go through in the event of a spill.
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    OPA has caused us to do those many things, and frankly quite a bit more than that.

    Strict liability enters a whole new dynamic. The bias that I just described is one of a bias towards prevention and rapid response. Strict liability brings in a bias towards defense. At a minimum, it's a chilling effect. And in the worst case scenario, we're stuck with complying with the dictates of OPA, to cooperate, and our defense attorney telling us you better not.

    Mr. CLEMENT. Mr. Lane, are you aware of companies that have decided not to transport oil products to some States because of their liability laws, and, if so, which States are these carriers refusing to operate?

    Mr. LANE. Again, I'll be speaking based on industry knowledge more than anything else. I can tell you that as far as States go, there's one State within the inland system in particular and these gentlemen can speak much better. We trade on the inland waterway system. The State of Florida is certainly a State that people that transport oil products have consciously stayed away from.

    I'm sorry—the rest of the question?

    Mr. CLEMENT. Well, I just wanted to know which States are these carriers refusing to operate.

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    Mr. LANE. Certainly, we're a—I think carriers since OPA have recognized that certain commodities and certain geographical ranges are more sensitive. Some major operators have actually chosen to get entirely out of the carriage of persistent oils—the heavier products—asphalt and six oils and things such as that. And that was frankly prior to being aware of some of the strict criminal liability element. This was in response to some of the unlimited liability in other issues contained in OPA.

    Mr. CLEMENT Captain Hurt or Captain Robson, you want to comment on that?

    Mr. HURT. Well, as I said my knowledge is going to be more operational specific. As far as companies that have made a decision to stay out, I've only what I have read in professional papers. I know that there are some problems with the State of Washington, pursuing their own agenda. But outside of that, I would have any knowledge.

    Captain ROBSON. Yes, sir. I know that with my company after OPA came into effect for a while stayed out of, let's say, the persistent oil business until we—for several years—until we could implement all our plans, response plans, et cetera. We're back in it now. I do not believe we go to the State of Maine, though, because of that—those State problems. But I think that things are being reconsidered now.

    Mr. CLEMENT. Captain Robson, Captain Hurt, you have clearly stated your concerns about strict criminal liability. Are you willing to have criminal penalties for criminally negligent actions?

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    Captain ROBSON. I think that's perfectly fair.

    Mr. HURT. Absolutely, I have no problem with that at all.

    Mr. CLEMENT. Captain Robson, the penalties in the Migratory Bird Treaty Act and the Refuse Act were enacted much earlier in time than the Oil Pollution Act of 1990. Why are you worried about their criminal penalties now?

    Captain ROBSON. Personally, quite frankly, if you have done something criminal and migratory birds have been adversely impacted because of that, then that would be fine. I mean, even if they were—this was not intended for that purpose. If there are valid laws, but just the strict—boom—there birds were injured. You are criminally guilty. That's the part that I have the trouble with. The strict, you know, absoluteness of it. And the use of it as a bludgeon.

    Mr. CLEMENT. Okay.

    Mr. HURT. I would say it's—from what I know about the legislation, it sounds a bit of a stretch, although I agree with Captain Robson. I've found that there is, you know, a grossly irresponsible act that you'd certainly be liable for that. I don't know if that was the original intention of the Migratory Bird Act.

    Mr. CLEMENT. Mr. Lane.

    Mr. LANE. Congressman, I might add, sitting here with the captains here reminds of the dilemma that I feel that I have, you know, as CEO of our company. I'm responsible to a lot of different parties, but none more than our people. And it's very, very hard to know how much information I need to be sharing with our people, who are exposed to this liability. There's a lot of this information that is just developing, and we really don't know—we don't want to create undue stress on our people. But by the same token, we're a very open shop, and we share information very willingly with our people. And we want them to know that we stand there with them. Certainly, the criminalization of an oil spill event changes that dynamic.
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    Mr. CLEMENT. I thank you.

    Mr. GILCHREST. Thank you, Mr. Clement. Just a quick follow-up question if each of you could give a comment on it. How would you want to see this changed? Do you have a specific recommendation?

    Mr. Lane?

    Mr. LANE. I'm not sure that I'm qualified to offer the fix. There may be several, but we certainly wanted to take advantage of the opportunity to share with you the magnitude of the problem as we perceive it, and the dilemmas that occur.

    Mr. GILCHREST. If you could—you're talking to—I think I can say that you're talking to at least two laymen up here. I don't know about the staff. I don't know. Can I say that, Mr. Clement? You and I are laymen?

    Mr. CLEMENT. You're not an attorney.

    Mr. GILCHREST. Okay, that's good.

    Mr. CLEMENT. MBA—north.

    Mr. GILCHREST. Could you—to some extent you have already, each of you, verbalized your considerable concern over strict liability and the problems that that causes. Could you, each of you, give us an idea of a fix that you would, you know, laymen's terms, legal terms, at this point, just an expression of how would like to see this changed. I think we could hold a further hearing to work out the ramifications.
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    Mr. LANE. I think, simply put, we would all like to have the opportunity to do our jobs and not be held to a standard that is substantially stricter than the traditional notion of what constitutes a crime.

    Mr. GILCHREST. Thank you.

    Captain Hurt.

    Mr. HURT. It would be nice to be able to tell my officers and my crew that gentlemen, if at the end of the day you've done everything you were supposed to do, you have taken all of the precautions, you have done what we expect of you, that you won't be thrown in jail at the end of that day. If some—measures could be taken to see that we all know what these rules are going into it, in the event of this unforeseen eventuality of an oil spill, that we that we can operate with good faith; that we won't later be giving interviews from a jail cell.

    Mr. GILCHREST. Thank you.

    Captain Robson.

    Captain ROBSON. I think that about says it.

    Mr. GILCHREST. Thank you.

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    Well, gentlemen, thank you very much. It has been very informative and very helpful. We appreciate your testimony.

    The hearing is adjourned.

    [Whereupon, at 12:06 p.m., the subcommittee adjourned subject to the call of the Chair.]

    [Insert here.]