[Federal Register: April 9, 2007 (Volume 72, Number 67)]
[Notices]
[Page 17574-17575]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap07-104]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
[USCG-2006-25843]
Use of Reports of Marine Casualty in Claims Process by National
Pollution Funds Center
AGENCY: Coast Guard, DHS.
ACTION: Notice of interpretation; response to comments received.
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SUMMARY: On October 13, 2006, the Coast Guard published a notice of
interpretation that the prohibition in 46 U.S.C. 6308 on the use of any
part of a report of a Coast Guard marine casualty investigation report
(MCIR) in certain administrative proceedings does not prohibit use of
such reports in the process used by the Coast Guard's National
Pollution Funds Center (NPFC) for determining to pay or deny claims
under the Oil Pollution Act of 1990. We received two comments in
response to the notice, neither of which effects the interpretation.
FOR FURTHER INFORMATION CONTACT: For questions on this notice, please
contact Benjamin White, U.S. Coast Guard's National Pollution Funds
Center (NPFC), telephone 202-493-6863.
SUPPLEMENTARY INFORMATION: On October 13, 2006, we published a notice
of interpretation entitled ``Use of Reports of Marine Casualty in
Claims Process by National Pollution Funds Center'' (71 FR 60553). The
notice provided for a comment period ending November 13, 2006.
Background and Purpose
The Coast Guard investigates and reports on marine casualties
pursuant to 46 U.S.C. Chapter 63. Under 46 U.S.C. 6308 no part of a
report of a marine casualty investigation ``shall be admissible as
evidence or subject to discovery in any civil or administrative
proceedings, other than an administrative proceeding initiated by the
United States.'' Marine casualties may result in the discharge or
substantial threat of discharge of oil to the navigable waters,
adjoining shorelines or the exclusive economic
[[Page 17575]]
zone. The National Pollution Funds Center (NPFC) processes claims
against the Oil Spill Liability Trust Fund for oil removal costs and
certain damages that result from such discharges or threats under
authority of the Oil Pollution Act of 1990 (OPA) (33 U.S.C. 2701 et
seq.). The circumstances of a marine casualty will often bear on the
entitlement of a claimant to payment of its claim, particularly for
vessel owners or operators who may claim a complete defense to their
own liability for such costs or damages, or entitlement to limit their
liability under OPA.
In the past, the NPFC has not considered such reports of marine
casualty investigations on the grounds that a broad interpretation of
46 U.S.C. 6308 might proscribe their use in the NPFC's claims
processes. However, this resulted, in some instances, in the NPFC
having to duplicate the investigative process in order to make findings
of fact that were included in a Marine Casualty Investigation Report
(MCIR).
As stated in the notice of interpretation, the NPFC may consider
and rely on any part of a report of a MCIR in determining whether to
pay or deny a claim. While such reports may be of use to NPFC in this
regard, and may also be submitted by claimants to support their claims,
the NPFC is not bound by such reports of investigation. The NPFC may
require additional information from claimants in order to support their
claims and may, considering the record as a whole, find additional
facts or different facts from those included in such reports of
investigation.
Discussion of Comments
Two commentors submitted comments to the Coast Guard during the
comment period (71 FR 60553). Both commentors stated that the MCIRs are
essentially field reports compiled under difficult circumstances by
personnel of varying degrees of experience and knowledge. Commentors
cautioned that the use of MCIRs should be undertaken with appropriate
awareness of their possible shortcomings. The Coast Guard has stated
that the NPFC is not bound by reports of investigation. Accordingly,
the Director of the NPFC can reach not only different facts but also
different opinions or conclusions than the opinions and conclusions in
the MCIR.
A second comment noted that consideration of MCIRs by the NPFC will
ultimately lead to their inclusion in the administrative record. The
commentor reasoned that if a claim were appealed in a federal district
court under the Administrative Procedure Act (APA), those documents
would be introduced into civil proceedings as part of the
administrative record in violation of 46 U.S.C. 6308.
The scope of APA judicial review is in 5 U.S.C. 706 and expressly
provides that the court shall review the whole record. While the
exclusion under 46 U.S.C. 6308 refers in general to civil proceedings,
Congress did not intend to prevent proper judicial review under the APA
and therefore 46 U.S.C. 6308 does not trump the APA record requirement.
For the reasons discussed above, these comments do not effect our
interpretation as published in the Federal Register on October 13, 2006
(71 FR 60553).
Dated: April 3, 2007.
William D. Baumgartner,
U.S. Coast Guard Judge Advocate General.
[FR Doc. E7-6540 Filed 4-6-07; 8:45 am]
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