[Federal Register: December 16, 2005 (Volume 70, Number 241)]
[Rules and Regulations]
[Page 74669-74676]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de05-11]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 151 and 153
46 CFR Part 4
[USCG-2000-6927]
RIN 1625-AA04 (Formerly RIN 2115-AD98)
Reporting Marine Casualties
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is amending its regulations governing marine
casualty reporting requirements by adding ``significant harm to the
environment'' as a reportable marine casualty, and by requiring certain
foreign flag vessels, such as oil tankers, to report marine casualties
that occur in waters subject to U.S. jurisdiction, but beyond U.S.
navigable waters, when those casualties involve material damage
affecting the seaworthiness or efficiency of the vessel, or significant
[[Page 74670]]
harm to the environment. These changes are required by the Oil
Pollution Act of 1990.
DATES: This final rule is effective January 17, 2006.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2000-6927 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street, SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://dms.dot.gov
.
FOR FURTHER INFORMATION CONTACT: For questions on this rule, call
Lieutenant Commander Kelly Post, Project Manager, Office of
Investigation and Analysis (G-MOA), Coast Guard, telephone 202-267-
1418. If you have questions on viewing the docket, call Renee V.
Wright, Program Manager, Docket Operations, telephone 202-493-0402.
SUPPLEMENTARY INFORMATION:
Background and Purpose
Pursuant to 46 U.S.C. 6101 and Coast Guard regulations, U.S. vessel
owners are required to report marine casualties to the Coast Guard.
Initially there were four categories of marine casualties that required
reporting to the Coast Guard: (1) Death of an individual, (2) serious
injury to an individual, (3) material loss of property, and (4)
material damage affecting the seaworthiness of the vessel. Section 4106
of the Oil Pollution Act of 1990, Public Law 101-380 (OPA 90), amended
46 U.S.C. 6101 to add ``significant harm to the environment'' to the
list of reportable marine casualties. Additionally, section 4106
extended the requirements for reporting a marine casualty involving
``material damage affecting the seaworthiness or efficiency of the
vessel'' or ``significant harm to the environment'' to any foreign-flag
vessel ``constructed or adapted to carry, or that carries, oil in bulk
as cargo or cargo residue'' and operating beyond U.S. navigable waters,
but within waters subject to the jurisdiction of the United States
(principally, the U.S. Exclusive Economic Zone, or EEZ).
The Coast Guard held a public meeting on January 20, 1995, to
solicit public comments regarding the requirements of OPA 90. See 59 FR
65522 (December 20, 1994). Subsequently, the Coast Guard published a
notice of proposed rulemaking (NPRM) on November 2, 2000 (65 FR 65808)
to solicit comments on amendments to Coast Guard regulations to
implement the requirements of OPA 90. The Coast Guard also published a
supplemental notice of proposed rulemaking (SNPRM) on July 12, 2001 (66
FR 36530) to solicit comments on federalism issues raised by commenters
on the NPRM.
This rule amends Coast Guard regulations as necessary to finalize
implementation of the requirements of section 4106 of OPA 90.
Discussion of Comments and Changes
The Coast Guard received 25 letters commenting on the NPRM. Nine
letters commented on the Federalism analysis set forth in the NPRM. The
comments relating to the Federalism analysis of the NPRM have been
discussed in the SNPRM and therefore will not be discussed again in
this final rule.
General: Nine commenters expressed general support for the NPRM.
One commenter said the basic premise that vessels be subject to
reporting requirements for incidents through all navigable waters,
including the EEZ, is commendable and should improve the government's
ability to respond to incidents, and further our understanding of
vessel navigation safety. Another commenter ``applauded'' our
regulation of foreign tank vessels operating within U.S. jurisdiction
because such regulation would level the playing field for U.S. marine
interests. Five other commenters said foreign vessels plying U.S.
waters should have to comply with all the same notification
requirements as U.S.-flag vessels.
Ballast water: One commenter asked the Coast Guard to revise the
proposed text of 33 CFR 151.15(c)(1) by adding the statement that
``this provision does not require reporting of normal or emergency
discharges of ballast water during shipping operations.'' The commenter
said such discharges are already covered by 33 CFR part 151, subpart D,
and are not normally considered marine casualties. We agree with the
commenter that ballast water discharges normally do not constitute
marine casualties. However, because nothing in 33 CFR 151.15 amends 33
CFR part 151, subpart D, we see no need to add the requested language.
Industry costs: One commenter said that our estimated burden of
response (one hour per form) is not realistic, particularly when the
number of people involved in confecting and administering the report
form is considered. The estimate of the paperwork burden is an average
of the time and resources likely needed to complete and process report
forms currently used by industry to collect information about a wide
range of casualties with various impacts. In some cases, the form will
take longer to complete and involve more than one person, particularly
for casualties with extensive impacts. In other cases, it will take
less time and involve only one person, particularly for casualties with
small or no impacts.
One commenter said that neither the NPRM's discussion of costs
generally, nor of small entity costs in particular, addressed the
implied new reporting mandates of 46 CFR 4.03-1(b). Title 46 CFR 4.03-1
does not establish new reporting mandates; rather reporting
requirements are provided in 46 CFR 4.05. The NPRM proposed new
reporting requirements for occurrences involving significant harm to
the environment and material damage to foreign tank vessels operating
within the EEZ. The NPRM describes the total industry cost and the
impact on small entities as the increase in paperwork burden due to the
proposed new reporting requirements.
Duplicative reporting: Eleven commenters remarked on what they
considered to be duplicative reporting requirements in the NPRM. One
commenter saw our proposal as adding to the paperwork burden affecting
U.S. waters generally and the Mississippi River system in particular.
Four said that submission of casualty reports is a process that needs
to be simplified and streamlined, and that our proposal goes in the
wrong direction. Two said they had been advised of Coast Guard plans to
initiate a rulemaking to reduce the number of written reports required,
while a third said that a comprehensive approach to reforming marine
casualty reporting standards is long overdue and that tacking
additional requirements onto an antiquated reporting regimen distracts
the Coast Guard and responsible industry members from efficiently
exchanging information needed to protect the marine environment. All
three of these commenters asked us to move quickly with these reform
efforts. We consider the streamlining of the marine casualty reporting
process to be a continuing project that exceeds the scope of the
present rulemaking. We disagree that the present rulemaking goes in the
wrong direction. Instead, this final rule extends well-established
procedures for reporting marine casualties to events involving
significant harm to the environment, in line with statutory
requirements.
[[Page 74671]]
Four commenters said that Coast Guard pollution investigators
already record comprehensive amounts of information when executing
their response and investigation responsibilities, and asked what
possible benefit the Coast Guard could derive from having the
responsible party give this information again via a ``one size fits
all'' marine casualty report form like Form CG-2692. We believe the
public, the Coast Guard, and the responsible party all benefit from the
marine casualty report. The report gives the marine industry a
nationally consistent tool for describing an incident accurately and
quickly, and in the responsible party's own words. The report is an
important and unique component of the investigative file, not a
redundancy.
One commenter was concerned that by creating dual reporting and
investigative requirements for oil spills under both 33 CFR 151.15 and
153.203 and 46 CFR part 4, we have set up a situation where operators
may comply with one of the reporting requirements but not the other,
exposing themselves to potential civil penalties. This commenter said
we should put the reporting requirements in one section or another, but
not in both. We have embedded cross-references in 33 CFR 151.15(g), 33
CFR 153.203, and 46 CFR 4.05-1(c). Notification reports made under 33
CFR 151.15 and 153.203 will satisfy the reporting requirements in 46
CFR 4.05. However, reports made under 46 CFR 4.05 will not satisfy the
notification requirements in 33 CFR 151.15 and 153.203, but, if a
discharge is reported to us under 46 CFR 4.05, we will notify the party
of its reporting responsibilities under 33 CFR 151.15 and 153.203.
One commenter asked us to revise 46 CFR 4.05-1(c) by inserting
``and the written requirements specified in 46 CFR 4.05-10'' after
``immediate notification requirement of this section,'' and by adding
``and does not involve any other marine casualty as defined in 46 CFR
4.03-1.'' The commenter said these changes would more clearly state the
intent of the regulation and would eliminate the possibility of
redundant initial verbal notification and the unnecessary submission of
Form CG-2692. We agree with the commenter that paragraph (c) should
apply only if the marine casualty exclusively involves significant harm
to the environment, and we have revised paragraph (c) accordingly. We
do not agree that a report made under 33 CFR 153.203, 40 CFR 117.21, or
40 CFR 302.6 should satisfy 46 CFR 4.05-10 as well as 4.05-1, because
46 CFR 4.05-10(a) provides for a situation in which immediate notice is
given under Sec. 4.05-1, but complete information for the marine
casualty report (and its addenda) is not available until later. We want
to preserve that two-tiered approach. The existing language of 46 CFR
4.05-10(b) states that, if filed without delay after the occurrence of
the marine casualty, the report required by 46 CFR 4.05-10 also
suffices as the immediate notification required by 46 CFR 4.05-1.
Existing authority: Two commenters said the Coast Guard already has
authority allowing us to require immediate notification of incidents
that could threaten the environment. One commenter said that 33 U.S.C.
1321 (b)(5) and (d)(2)(D) provide the Coast Guard with that authority
and therefore we do not need to adopt a new rule that raises federalism
issues. The other said that OPA 90 does not mandate a redundant,
unnecessary, and speculative requirement that overlaps with existing
reporting requirements contained in 46 CFR 4.05-1, 49 CFR 176.48, 33
CFR 151.26, 33 CFR 153.203, and 33 CFR 155.1040. We addressed the
federalism issues raised by the first commenter in our SNPRM. With
respect to 33 U.S.C. 1321, while it does contain requirements similar
to those contained in OPA 90 (explaining the overlap with existing
regulations noted by the second commenter), this section does not apply
to foreign vessels that operate in ``waters under U.S. jurisdiction''
that are not ``navigable waters of the United States.'' OPA 90 extends
coverage to such vessels.
Great Lakes and internal waters: One commenter asked the Coast
Guard to address two questions. First, is a vessel that generally
operates on the ocean, but occasionally operates in the Great Lakes or
U.S. internal waters, subject to 33 CFR 151.15 on those occasions?
Second, is a vessel operating under a foreign authority subject to 33
CFR 151.15 when it operates in the Great Lakes (presumably on the U.S.
side of the international boundary) or in U.S. internal waters? We
consider the answer to be ``yes'' in both cases, provided the vessel is
not specifically exempted by 33 CFR 151.09(b).
Highways: Two commenters compared the regulation of marine commerce
with highway regulations, saying it seems odd that the ``most
environmentally friendly'' transportation system is held under
microscopic examination while highway runoff from land based
transportation is not. The Coast Guard notes that these comments are
outside of the scope of the present rulemaking and beyond the
jurisdiction of the Coast Guard's authority. We consider the required
report on marine casualties to be essential to the Coast Guard's
performance of its statutory duties for the protection of marine safety
and the environment.
Inconsistent application: Four commenters complained that
inconsistencies among Coast Guard officials in applying the reporting
criteria are rampant. These comments are beyond the scope of this
rulemaking; however, you can address comments or complaints about how
reporting criteria are applied to United States Coast Guard
Headquarters (G-MOA), 2100 Second Street, SW., Washington, DC 20593 or
by e-mail at fldr-G-MOA@comdt.uscg.mil.
Procedure: One commenter said our proposed changes to 46 CFR 4.03-
1(b) added or changed reporting requirements that were not identified
in the original meeting notice or in the NPRM, and that were not
justified by any discussion of need, goals, or alternatives considered.
No reporting requirements were proposed in 46 CFR 4.03-1(b); the new
proposed reporting requirements in 46 CFR 4.05 were discussed fully in
the NPRM preamble. The NPRM proposed only one substantive change to 46
CFR 4.03-1(b): the addition of paragraph (b)(1)(xii), which adds any
incident involving significant harm to the environment. That change
also was amply discussed in the NPRM preamble. We also rewrote the
section and changed some of the illustrations of events that would
constitute a marine casualty or accident, but neither in the former 46
CFR 4.03-1 nor in the new version are these illustrations intended to
limit the definition of a marine casualty or accident. It is true that
former section 4.03-1 defined a marine casualty or accident to ``mean
any casualty or accident involving any vessel * * *'' while the new
version says that the term ``applies to events caused by or involving a
vessel'' * * * However, dictionary definitions of ``involving'' include
``to have an effect on,'' so we do not think there is, and did not
intend there to be, any substantive difference between the two versions
of section 4.03-1 on this count. See Merriam-Webster Online, http://www.m-w.com
, last checked on Aug. 19, 2005.
Recreational boaters: Two commenters complained that the regulatory
burden imposed on industry by rulemakings like this one is not imposed
on recreational boaters who, according to the commenters, do not need
to be licensed, do not understand the rules of the road, and have
nothing to lose from noncompliance with
[[Page 74672]]
standards that apply to industry. The present rulemaking applies only
to vessels covered by 33 CFR parts 151 and 153, and 46 CFR part 4. To
the extent those parts do not apply to recreational boaters, those
boaters remain subject to other Federal and State statutory and
regulatory controls, including the casualty and accident reporting
provisions of 33 CFR part 173.
Requiring other casualties: One commenter said we should amend the
rule so that a written report is not required for any actual or
potential discharge that does not involve some other marine casualty
required to be reported under 46 CFR 4.05-1. We decline to adopt this
recommendation because we think it would weaken the apparent intent of
OPA 90 to equate ``significant harm to the environment'' with the other
marine casualties listed in 46 U.S.C. 6101(a). In our view, the statute
requires a report to be filed when any one of the listed casualties
occurs. The requirement is not conditioned upon the presence of
multiple events or aggravating factors.
Significant harm: Eight commenters asked for or suggested
clarification on the meaning of ``significant harm to the
environment.'' Five said that the Environmental Protection Agency's
definition of significant harm (40 CFR 110.3) is neither reasonable nor
appropriate for marine casualty considerations. These five said it is
unreasonable that sheen coming from a properly greased but broken
rudder stock would meet our proposed definition, as would an eyedropper
discharge of diesel fuel or a drop of oil from a $20 hydraulic steering
hose rupture, or any small amount of oil from a commercial source, but
that the release of 4,999 lbs. of ammonium sulfate would not meet the
definition. We believe 46 CFR 4.03-65 adequately and appropriately
defines significant harm to the environment by referencing 40 CFR 110.3
and other existing regulations. The significance of an environmental
marine casualty is not necessarily a function of the quantities
discharged or of the reasons for the discharge. Information about the
causes of a discharge, or measures taken to prevent or abate the
discharge, can be given in the marine casualty report itself. Whether
discharge of small amounts of ammonium sulfate should also constitute
an environmental marine casualty is beyond the scope of this
rulemaking.
Three commenters said the NPRM was directly inconsistent with
recent Coast Guard initiatives to better align marine casualty
investigation and reporting procedures with legitimate marine safety
goals and with a Coast Guard policy against investigating minor
incidents where reports provide little or no useful information for
improving marine safety. We see no inconsistency. This rule aligns
existing regulations with OPA 90's inclusion of significant harm to the
environment in the list of reportable marine casualties under 46 U.S.C.
6101(a). This rule does not alter the Coast Guard's processing of
marine casualty reports or our procedures for determining which
reported marine casualties will be investigated.
One commenter said it will report all discharges or probable
discharges, but that to require written reports for minor matters will
be counterproductive to practical considerations and will not result in
any meaningful protection of the environment. It may be that not all
marine casualty reports will result in meaningful safety improvements,
but reporting requirements are well established and help insure the
timely availability of information that may prove critical, either to
immediate response efforts or to longer term marine safety programs.
This final rule simply extends those established requirements to
environmental marine casualties.
One commenter said the Coast Guard should align the definition of
``significant harm to the environment'' with our existing definition of
a major oil spill or chemical release, in lieu of any violation of the
Clean Water Act. We note that amended 46 CFR 4.03-65 is aligned with
several existing definitions of prohibited discharge. The amended
regulation refers to the definition of harmful oil discharges in 40 CFR
110.3, to rules for determining reportable quantities of hazardous
substances in 40 CFR part 117, to oil discharge limitations in 33 CFR
151.10 and 33 CFR 151.13, and to noxious liquid substance discharge
limitations in 46 CFR 153.1126 and 153.1128.
One commenter suggested amending proposed 33 CFR 151.15(c)(1) by
inserting ``as set forth in 40 CFR 110.3'' after ``[a] discharge of
oil,'' and by inserting ``in quantities equal to or exceeding, in any
24-hour period, the reportable quantity determined in 40 CFR part 117''
after ``hazardous substances.'' Reports under Sec. 151.15(c)(1) are
required only when a discharge results from damage to the vessel (or
its equipment), or from efforts to secure vessel safety or save a life
at sea. The Coast Guard understands that under such emergency
conditions, which may pose an imminent risk to vessel safety and human
life, vessel personnel may be unable to devote their primary attention
to avoidance or mitigation of environmental damage. However, precisely
because these circumstances can give way to unintended environmental
consequences, we think it is important to require reports even though
the discharge may not rise to the levels specified in 40 CFR 110.3 or
40 CFR part 117.
Regulatory Evaluation
Executive Order 12866, ``Regulatory Planning and Review'', 58 FR
51735, October 4, 1993, requires a determination whether a regulatory
action is ``significant'' and therefore subject to review by the Office
of Management and Budget (OMB) and subject to the requirements of the
Executive Order. This final rule is considered to be a ``significant
regulatory action'' under Executive Order 12866. Accordingly, this
final rule has been reviewed by OMB.
The following is a discussion of the expected costs and benefits of
the rule.
Costs
We estimate that the rule imposes an additional 1,570 hours per
year of annual paperwork requirements on the domestic industry. These
paperwork requirements are further discussed under the collection-of-
information section. Assuming one hour of staff time has a value of
$45, an additional 1,570 hours equates to an aggregate domestic
industry cost of $70,650 per year. Additionally, this rule will require
an estimated 186 hours of annual paperwork requirements on foreign
industry equating to $8,370. The total cost to industry, domestic and
foreign, is estimated to be $79,020 annually for a total of 1,756 hours
per year.
Benefits
The measures in this rule are mandated by OPA 90. The primary
benefit of this rule is the establishment of standardized reporting
requirements that address the Coast Guard's need to track and
investigate events that cause ``significant harm to the environment.''
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
[[Page 74673]]
The estimated annual impact to U.S. industry of this rule is
$70,650. The measures included in this proposed rule are mandated by
OPA 90. Small entities involved in ``significant harm to the
environment'' incidents will be required to prepare a form which will
take approximately one hour of staff time to complete. One hour of
staff time is valued at $45. Therefore, the cost per incident of this
rule is $45. If a small entity is not involved in a ``significant harm
to the environment'' incident, this rule will have zero cost.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule will not have a significant economic impact on a
substantial number of small entities.
Assistance for Small Entities
Under Sec. 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard wants to assist
small entities in understanding this proposed rule so that they can
better evaluate its effects on them and participate in the rulemaking.
The NPRM provided small businesses, organizations or governmental
jurisdictions a Coast Guard contact to ask questions concerning this
rule's provisions or options for compliance. We received no public
comments in response to the NPRM regarding any impact on small
entities. If the rule would affect your small business, organization,
or governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult Lieutenant
Commander Kelly Post, Project Manager, Office of Investigation and
Analysis (G-MOA), Coast Guard, telephone 202-267-1418. The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule calls for a collection of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR
1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other similar
actions. The title and description of the information collections, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
This rule modifies an existing OMB-approved collection 1625-0001. A
summary of the revised collection follows.
OMB Control Number: 1625-0001 [formerly 2115-0003].
Title: Marine Casualty Information & Periodic Chemical Drug and
Alcohol Testing of Commercial Vessel Personnel.
Summary of the Collection of Information: The Marine Casualty
Information portion of this Collection of Information requires foreign-
flag tank vessels operating in the U.S. EEZ to report a marine casualty
involving either ``significant harm to the environment'' or material
damage affecting the seaworthiness or efficiency of a vessel. This
collection also requires U.S.-flag vessels operating anywhere to report
a marine casualty involving ``significant harm to the environment''.
Need for Information: To help the Coast Guard track and investigate
marine casualties that may result in significant harm to the
environment, and lessen the effects by requiring timely notification
needed to ensure a timely and appropriate pollution response clean-up.
Proposed Use of Information: Assist the Coast Guard's efforts to
track and help determine the level of investigation needed for
reportable marine casualties that may result in significant harm to the
environment.
Description of the Respondents: All U.S.-flag vessel operators
anywhere, or foreign-flag vessels in the navigable waters of the U.S.,
involved in a marine casualty involving an actual or probable discharge
of oil, hazardous substances, marine pollutants, or noxious liquid
substances, as well as foreign-flag tank vessels operating within the
EEZ that are involved in a marine casualty resulting in either material
damage affecting the seaworthiness or efficiency of the vessel or
``significant harm to the environment'' within the EEZ.
Number of Respondents: The total number of casualty events used to
determine the change in annual paperwork requirements for this rule for
both U.S.-flag vessels and foreign-flag tank vessels is 1,756. This
number represents the 5-year average of U.S. flag-vessels pollution
events (1,570) during the years 1993 through 1997 plus the 5-year
average of marine casualty events for foreign-flag tank vessels
operating in U.S. navigable waters, including the EEZ, of 186 events.
The information was retrieved from the U.S. Coast Guard Marine Safety
Management System Data Base. The existing OMB-approved number of
respondents is 33,189. This rule will increase the number by 1,756.
With this rule's submission we are also taking into account a program
change of removing the Management Information System (MIS) respondents
of 830 (See Chemical Testing final rule; USCG 2003-16414; February 11,
2004; 69 FR 6575). The total number of respondents is 34,115.
Frequency of Response: This rule will change existing reporting
requirements by adding reports of ``significant harm to the
environment'' incidents involving U.S.-flag vessels or marine casualty
incidents involving foreign-flag tank vessels involved in a marine
casualty resulting in material damage affecting the seaworthiness of
the vessel or significant harm to the environment in waters subject to
the jurisdiction of the U.S. including the EEZ. The existing OMB-
approved number of responses is 181,089. This rule will increase the
number by 1,756. With this rule's submission we are also taking into
account a program change of removing the MIS responses of 830. The
total number of responses is 182,015.
Burden of Response: Approximately one hour per form.
Estimated Total Annual Burden: The existing OMB-approved annual
burden is 19,195 hours. This rule will increase the number by 1,756
hours. With this rule's submission we are also taking into account a
program change of removing the MIS annual burden of 2,075 hours. The
total annual burden is 18,876 hours.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), we have submitted a copy of this rule to the Office of
Management and Budget (OMB) for its review of the collection of
information. OMB has approved the collection. The section numbers are
33 CFR 151.15, 153.203 and 46 CFR 4.05-1. The corresponding approval
number from OMB is OMB Control Number 1625-0001 [formerly 2115-0003].
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
[[Page 74674]]
Federalism
A rule has implications for federalism under Executive Order 13132
if the rule has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. The law is well settled that States
may not regulate in categories reserved for regulation by the Coast
Guard. The law also is well settled that all of the categories covered
in 46 U.S.C. 3306, 3703, 6101, 7101 and 8101 (design, construction,
alteration, repair, maintenance, operation, equipping, personnel
certification, manning and the reporting of marine casualties on
vessels), and any other category in which Congress intended the Coast
Guard to be the sole source of a vessel's obligations, are within the
field foreclosed from regulation by the States. See United States v.
Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000)).
This final rule concerns the reporting of marine casualties, including
the reporting of casualties causing significant harm to the marine
environment. Because States may not regulate within this category,
preemption under Executive Order 13132 is not an issue.
However, the determination that States are precluded from
regulating in the category of marine casualty reporting does not impact
the ability of a State to require reports of the discharge, or the
substantial threat of a discharge of oil. Pursuant to Section 1018 of
OPA 90, States retain their rights to impose additional requirements
regarding reports of the discharge or substantial threat of a discharge
of oil for the purpose of responding to the discharge or substantial
threat of a discharge and instituting liability and compensation
proceedings, providing those requirements do not touch on preempted
categories described in the Locke decision. Therefore, present and
future State discharge reporting requirements that do not touch on the
preemptive marine casualty reporting category are unaffected by the
Locke decision and this rule, so in that regard, this rule likewise has
no implications for federalism.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies to prepare a written
assessment of the costs, benefits and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local or tribal governments, in the aggregate, or
by the private sector of more than $100 million in any one year
(adjusted for inflation with 1995 base year). Before promulgating a
rule for which a written statement is needed, section 205 of UMRA
requires an agency to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome option that achieves the objective of
the rule. Section 205 allows an agency to adopt an alternative, other
than the least costly, most cost-effective, or least burdensome option
if the agency publishes an explanation with the final rule.
This final rule will not result in the expenditure by State, local
or tribal governments, in the aggregate, or by the private sector of
more than $100 million in any one year. Therefore, the Coast Guard has
not prepared a written assessment under UMRA.
Taking of Private Property
This final rule will not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this final rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This final rule is not an economically significant rule and does
not concern an environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This final rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Energy Effects
We have analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. We have determined that this final rule is not a
``significant energy action'' under that Order. Although this final
rule is a ``significant regulatory action'' under Executive Order
12866, the rule only affects the issuance of credentials to merchant
mariners and therefore is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The Administrator
of the Office of Information and Regulatory Affairs has not designated
this final rule as a significant energy action. Therefore, it does not
require a Statement of Energy Effects under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, performance, design, or operation; test methods; sampling
procedures; and related management systems practices) that are
developed or adopted by voluntary consensus standards bodies.
This final rule does not use technical standards. Therefore, we did
not consider the use of voluntary consensus standards.
Environment
We considered the environmental impact of this final rule and
concluded that, under figure 2-1, paragraph (34)(a), of Commandant
Instruction M16475.1D, this final rule is categorically excluded from
further environmental documentation. This rule will add a requirement
to report marine casualties involving ``significant harm to the
environment'' and for foreign flag tank vessels operating in waters
subject to U.S. jurisdiction but beyond U.S. navigable waters to report
material damage affecting the seaworthiness or efficiency of the
vessel. A ``Categorical Exclusion Determination'' is available in the
docket where indicated under ADDRESSES.
List of Subjects
33 CFR Part 151
Administrative practice and procedure, Oil pollution, Penalties,
Reporting and recordkeeping requirements, Water pollution control.
[[Page 74675]]
33 CFR Part 153
Hazardous substances, Oil pollution, Reporting and recordkeeping
requirements, Water pollution control.
46 CFR Part 4
Administrative practice and procedure, Drug testing,
Investigations, Marine safety, National Transportation Safety Board,
Nuclear vessels, Radiation protection, Reporting and recordkeeping
requirements, Safety, Transportation.
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For the reasons discussed in the preamble, the Coast Guard amends 33
CFR parts 151 and 153, and 46 CFR part 4 as follows:
Title 33--Navigation and Navigable Waters
PART 151--VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE,
MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER
0
1. Revise the authority citation for subpart A of part 151 to read as
follows:
Authority: 33 U.S.C. 1321, 1903, 1908; 46 U.S.C. 6101; Pub. L.
104-227 (110 Stat. 3034); E.O. 12777, 3 CFR, 1991 Comp. p. 351;
Department of Homeland Security Delegation No. 170.1.
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2. In Sec. 151.05, add the definition of ``marine pollutant'', in
alphabetical order, to read as follows:
Sec. 151.05 Definitions.
* * * * *
Marine pollutant means a harmful substance in packaged form, as it
appears in Appendix B of 49 CFR 172.101.
* * * * *
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3. Revise Sec. 151.15 to read as follows:
Sec. 151.15 Reporting requirements.
(a) The master, person in charge, owner, charterer, manager, or
operator of a vessel involved in any incident described in paragraph
(c) of this section must report the particulars of the incident without
delay to the fullest extent possible under the provisions of this
section.
(b) If a vessel involved in an incident is abandoned, or if a
report from that vessel is incomplete or unattainable, the owner,
charterer, manager, operator, or their agent must assume the
obligations placed upon the master or other person having charge of the
vessel under provisions of this section.
(c) The report must be made whenever an incident involves--
(1) A discharge of oil, hazardous substances, marine pollutants, or
noxious liquid substances (NLS) resulting from damage to the vessel or
its equipment, or for the purpose of securing the safety of a vessel or
saving a life at sea;
(2) A discharge of oil in excess of the quantities or instantaneous
rate permitted in Sec. Sec. 151.10 or 151.13 of this chapter, or NLS
in bulk, in 46 CFR 153.1126 or 153.1128, during the operation of the
vessel;
(3) A discharge of marine pollutants in packaged form; or
(4) A probable discharge resulting from damage to the vessel or its
equipment. The factors you must consider to determine whether a
discharge is probable include, but are not limited to--
(i) Ship location and proximity to land or other navigational
hazards;
(ii) Weather;
(iii) Tide current;
(iv) Sea state;
(v) Traffic density;
(vi) The nature of damage to the vessel; and
(vii) Failure or breakdown aboard the vessel of its machinery or
equipment. Such damage may be caused by collision, grounding, fire,
explosion, structural failure, flooding or cargo shifting or a failure
or breakdown of steering gear, propulsion, electrical generating system
or essential shipboard navigational aids.
(d) Each report must be made by radio whenever possible, or by the
fastest telecommunications channels available with the highest possible
priority at the time the report is made to--
(1) The appropriate officer or agency of the government of the
country in whose waters the incident occurs; and
(2) The nearest Captain of the Port (COTP) or the National Response
Center (NRC), toll free number 800-424-8802 (in Washington, DC,
metropolitan area, 202-267-2675), fax number 202-479-7165, telex number
892427 for incidents involving U.S. vessels in any body of water; or
incidents involving foreign flag vessels in the navigable waters of the
United States; or incidents involving foreign-flag tank vessels within
waters subject to the jurisdiction of the United States, including the
Exclusive Economic Zone (EEZ).
(e) Each report must contain--
(1) The identity of the ship;
(2) The type of harmful substance involved;
(3) The time and date of the incident;
(4) The geographic position of the vessel when the incident
occurred;
(5) The wind and the sea condition prevailing at the time of the
incident;
(6) Relevant details respecting the condition of the vessel;
(7) A statement or estimate of the quantity of the harmful
substance discharged or likely to be discharged into the sea; and
(8) Assistance and salvage measures.
(f) A person who is obligated under the provisions of this section
to send a report must--
(1) Supplement the initial report, as necessary, with information
concerning further developments; and
(2) Comply as fully as possible with requests from affected
countries for additional information concerning the incident.
(g) A report made under this section satisfies the reporting
requirements of Sec. 153.203 of this chapter and of 46 CFR 4.05-1 and
4.05-2, if required under those provisions.
Sec. 151.45 [Removed]
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4. Remove Sec. 151.45.
PART 153--CONTROL OF POLLUTION BY OIL AND HAZARDOUS SUBSTANCES,
DISCHARGE REMOVAL
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5. Revise the authority citation for part 153 to read as follows:
Authority: 14 U.S.C. 633; 33 U.S.C. 1321, 1903, 1908; 42 U.S.C.
9615; 46 U.S.C. 6101; E.O. 12580, 3 CFR, 1987 Comp., p. 193; E.O.
12777, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security
Delegation No. 0170.1.
Sec. 153.203 [Amended]
0
6. In Sec. 153.203, after the words ``notifies the NRC as soon as
possible.'' add the words ``A report made under this section satisfies
the reporting requirements of Sec. 151.15 of this chapter and of 46
CFR 4.05-1, if required under that provision.''
Title 46--Shipping
PART 4--MARINE CASUALTIES AND INVESTIGATIONS
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7. Revise the authority citation for part 4 to read as follows:
Authority: 33 U.S.C. 1231, 1321; 43 U.S.C. 1333; 46 U.S.C. 2103,
2306, 6101, 6301, 6305; 50 U.S.C. 198; Department of Homeland
Security Delegation No. 170.1. Authority for subpart 4.40: 49 U.S.C.
1903(a)(1)(E); Department of Homeland Security Delegation No.
0170.1.
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8. Revise Sec. 4.03-1 to read as follows:
Sec. 4.03-1 Marine casualty or accident.
Marine casualty or accident means--
(a) Any casualty or accident involving any vessel other than a
public vessel that--
(1) Occurs upon the navigable waters of the United States, its
territories or possessions;
[[Page 74676]]
(2) Involves any United States vessel wherever such casualty or
accident occurs; or
(3) With respect to a foreign tank vessel operating in waters
subject to the jurisdiction of the United States, including the
Exclusive Economic Zone (EEZ), involves significant harm to the
environment or material damage affecting the seaworthiness or
efficiency of the vessel.
(b) The term ``marine casualty or accident'' applies to events
caused by or involving a vessel and includes, but is not limited to,
the following:
(1) Any fall overboard, injury, or loss of life of any person.
(2) Any occurrence involving a vessel that results in--
(i) Grounding;
(ii) Stranding;
(iii) Foundering;
(iv) Flooding;
(v) Collision;
(vi) Allision;
(vii) Explosion;
(viii) Fire;
(ix) Reduction or loss of a vessel's electrical power, propulsion,
or steering capabilities;
(x) Failures or occurrences, regardless of cause, which impair any
aspect of a vessel's operation, components, or cargo;
(xi) Any other circumstance that might affect or impair a vessel's
seaworthiness, efficiency, or fitness for service or route; or
(xii) Any incident involving significant harm to the environment.
(3) Any occurrences of injury or loss of life to any person while
diving from a vessel and using underwater breathing apparatus.
(4) Any incident described in Sec. 4.05-1(a).
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9. Add Sec. 4.03-60 to read as follows:
Sec. 4.03-60 Noxious liquid substance (NLS).
Noxious liquid substance (NLS) means--
(a) Each substance listed in 33 CFR 151.47 or 151.49;
(b) Each substance having an ``A,'' ``B,'' ``C,'' or ``D'' beside
its name in the column headed ``IMO Annex II pollution category'' in
table 1 of part 153 of this chapter; and
(c) Each substance that is identified as an NLS in a written
permission issued under Sec. 153.900(d) of this chapter.
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10. Add Sec. 4.03-65 to read as follows:
Sec. 4.03-65 Significant harm to the environment.
Significant harm to the environment means--
(a) In the navigable waters of the United States, a discharge of
oil as set forth in 40 CFR 110.3 or a discharge of hazardous substances
in quantities equal to or exceeding, in any 24-hour period, the
reportable quantity determined in 40 CFR part 117;
(b) In other waters subject to the jurisdiction of the United
States, including the EEZ--
(1) A discharge of oil in excess of the quantities or instantaneous
rate permitted in 33 CFR 151.10 or 151.13 during operation of the ship;
or
(2) A discharge of noxious liquid substances in bulk in violation
of Sec. Sec. 153.1126 or 153.1128 of this chapter during the operation
of the ship; and
(c) In waters subject to the jurisdiction of the United States,
including the EEZ, a probable discharge of oil, hazardous substances,
marine pollutants, or noxious liquid substances. The factors you must
consider to determine whether a discharge is probable include, but are
not limited to--
(1) Ship location and proximity to land or other navigational
hazards;
(2) Weather;
(3) Tide current;
(4) Sea state;
(5) Traffic density;
(6) The nature of damage to the vessel; and
(7) Failure or breakdown aboard the vessel, its machinery, or
equipment.
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11. Add Sec. 4.03-70 to read as follows:
Sec. 4.03-70 Tank vessel.
Tank vessel means a vessel that is constructed or adapted to carry,
or that carries, oil, hazardous substances, marine pollutants, or
noxious liquid substances, in bulk as cargo or cargo residue.
Sec. 4.05-1 [Amended]
0
12. In Sec. 4.05-1, in paragraph (a)(2), remove the number ``(7)'' and
add, in its place, the number ``(8)''; and add paragraphs (a)(8) and
(c) to read as follows:
Sec. 4.05-1 Notice of marine casualty.
(a) * * *
(8) An occurrence involving significant harm to the environment as
defined in Sec. 4.03-65.
* * * * *
(c) Except as otherwise required under this subpart, if the marine
casualty exclusively involves an occurrence or occurrences described by
paragraph (a)(8) of this section, a report made pursuant to 33 CFR
153.203, 40 CFR 117.21, or 40 CFR 302.6 satisfies the immediate
notification requirement of this section.
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13. Add Sec. 4.05-2 to read as follows:
Sec. 4.05-2 Incidents involving foreign tank vessels.
(a) Within the navigable waters of the United States, its
territories, or possessions. The marine casualty reporting and
investigation criteria of this part apply to foreign tank vessels
operating on the navigable waters of the United States, its
territories, or possessions. A written marine casualty report must be
submitted under Sec. 4.05-10 of this chapter.
(b) Outside the U.S. navigable waters and within the Exclusive
Economic Zone (EEZ). The owner, agent, master, operator, or person in
charge of a foreign tank vessel involved in a marine casualty must
report under procedures detailed in 33 CFR 151.15, immediately after
addressing resultant safety concerns, whenever the marine casualty
involves, or results in--
(1) Material damage affecting the seaworthiness or efficiency of
the vessel; or
(2) An occurrence involving significant harm to the environment as
a result of a discharge, or probable discharge, resulting from damage
to the vessel or its equipment. The factors you must consider to
determine whether a discharge is probable include, but are not limited
to--
(i) Ship location and proximity to land or other navigational
hazards;
(ii) Weather;
(iii) Tide current;
(iv) Sea state;
(v) Traffic density;
(vi) The nature of damage to the vessel; and
(vii) Failure or breakdown aboard the vessel, its machinery, or
equipment.
Dated: December 8, 2005.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 05-24125 Filed 12-15-05; 8:45 am]
BILLING CODE 4910-15-P