[Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X94-11227]


[[Page Unknown]]

[Federal Register: December 27, 1994]


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33 CFR Parts 1 and 153

[CGD 91-225]

 

Delegations of Authority Under the Federal Water Pollution 
Control Act, As Amended by the Oil Pollution Act of 1990, Under the Oil 
Pollution Act of 1990, and Under the Comprehensive Environmental 
Response, Compensation, and Liability Act, As Amended by the Superfund 
Amendments and Reauthorization Act of 1986

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is redesignating and revising certain 
regulations relating to delegation of authority. The changes 
incorporate amendments to the Federal Water Pollution Control Act 
(FWPCA) made by the Oil Pollution Act of 1990 (OPA 90); provisions 
added to the United States Code by OPA 90; and certain provisions of 
the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 (CERCLA), as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (SARA). These statutes relate to discharges 
and releases of oil, hazardous substances, pollutants, and 
contaminants. The changes reflect, in large part, additional 
responsibilities assigned to Coast Guard On-Scene Coordinators to 
direct responses to spills of oil and hazardous substances.

EFFECTIVE DATE: December 27, 1994.

FOR FURTHER INFORMATION CONTACT: CDR K. W. Keane, Chief, Pollution 
Response Branch, G-MEP-2, (202) 267-2611.

SUPPLEMENTARY INFORMATION:

Drafting Information

    The principal person involved in drafting this document is Ms. 
Jacqueline Sullivan, Project Manager, OPA 90 Staff.

Background and Purpose

    The Oil Pollution Act of 1990 (OPA 90) [Pub. L. 101-380] amended 
several provisions of section 311 of the Federal Water Pollution 
Control Act (FWPCA) [33 U.S.C. 1321] relating to the prevention of and 
response to discharges of oil and hazardous substances. Several new 
functions under both OPA 90 and the amended section 311 of the FWPCA 
were vested in the President. Others were vested in the Secretary of 
the department in which the Coast Guard is operating. Executive Order 
12777 [3 CFR, 1991 Comp., p. 351, 56 FR 54757, October 22, 1991] 
assigned many new functions and reassigned many preexisting functions 
to the Secretary of Transportation, and the Secretary reassigned many 
new and preexisting functions to the Commandant of the Coast Guard [49 
CFR 1.46 (l), (m), and (ll)].
    The Commandant, by internal directive dated March 19, 1992, 
redelegated most of the functions under OPA 90 and section 311 of the 
FWPCA. Copies of the Commandant's redelegation memorandum are available 
by calling G-MEP at the telephone number listed under FOR FURTHER 
INFORMATION CONTACT. The amendments to 33 CFR subpart 1.01 in this 
rulemaking reflect much of that redelegation.
    These rules also delegate authority to Coast Guard officials to 
carry out certain functions under CERCLA, as amended by the Superfund 
Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C. 9601, et 
seq., Pub. L. 96-510, 94 Stat. 2767, as amended by Pub. L. 99-499, 100 
Stat. 1613] relating to the release of hazardous substances. Executive 
Order 12580 delegated the President's functions under CERCLA, as 
amended, to the heads of various Executive Branch departments and 
agencies, including the Secretary of Transportation [3 CFR, 1987 Comp., 
p. 193, 52 FR 2923, January 29, 1987]. The Secretary of Transportation 
has redelegated certain functions to the Commandant of the Coast Guard 
[49 CFR 1.46 (ff) and (gg)]. This rule further delegates authority to 
designated Coast Guard officials under CERCLA relating to the 
enforcement of financial- responsibility requirements, including the 
assessment of civil penalties.

Discussion of Rules

    The revisions, removals, and additions to the regulations in 33 CFR 
parts 1 and 153 are organized in the following manner:
    Section 1.01-30 is revised to delete reference to the authority of 
command, warrant, and petty officers of the Coast Guard to assist in 
discharging the duties of the Captain of the Port. This authority is 
now contained in a new Sec. 1.01-90 which reflects that the authority 
exists to carry out the functions of District and Area Commanders, and 
Officers in Charge, Marine Inspection in addition to Captains of the 
Ports.
    Section 1.01-70 is revised to reflect delegations of authority 
under CERCLA to each District Commander to enforce requirements for 
financial responsibility of vessels and the assessment of civil 
penalties.
    Section 1.01-80 is added to reflect delegations to Area and 
District Commanders that are currently located in Sec. 153.105(a); 
delegations of authority to the Coast Guard's Chief, Office of Marine 
Safety, Security, and Environmental Protection, that are currently 
located in Sec. 153.105(b); and delegations to On-Scene Coordinators 
that are currently located in Sec. 153.105(c). The text of Sec. 1.01-80 
also includes delegations of functions under provisions of OPA 90, such 
as new authority for assessment of civil penalties provided in section 
4303 of OPA 90 [33 U.S.C. 2716a], and amendments to section 311 of the 
FWPCA regarding additional authority for inspection and entry provided 
in section 4305 of OPA 90 [33 U.S.C. 1321(m)].
    Section 1.01-85 is added by redesignating the delegations of 
authority currently found in 153.107 and revising them with respect to 
officers under the staff and command of individuals delegated authority 
in Sec. 1.01-80.
    Section 1.01-90 is added to allow authorization of any 
commissioned, warrant, or petty officer of the U.S. Coast Guard to 
carry out functions delegated to superior officials under Secs. 1.01-1, 
1.01-20, 1.01-30, 1.01-70, and 1.01-80, or redelegated under Sec. 1.01-
85, within the jurisdiction of the cognizant official.
    The authority cite for subpart 1.07 has been revised to restore an 
inadvertent deletion during a prior rulemaking.
    Section 153.105 is revised to reflect the administrative move of 
FWPCA delegations of authority to the new Sec. 1.01-80.
    Section 153.107 is removed; and the text, revised to cite 
Sec. 1.01-80 authorities, is included in new Sec. 1.01-85.

Regulatory Evaluation

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that order. It 
has not been reviewed by the Office of Management and Budget under that 
order. It is not significant under the regulatory policies and 
procedures of the Department of Transportation (DOT) [44 FR 11304 
(February 26, 1979)]. The Coast Guard expects the economic impact of 
this rule to be so minimal that a full Regulatory Evaluation under 
paragraph 10e of the regulatory policies and procedures of DOT is 
unnecessary. This rulemaking expedites the Coast Guard's ability to 
respond to discharges of oil and hazardous substances and thereby 
limits the potential effect of those discharges.
    Because the changes to its regulations relate to agency management 
and organization, the Coast Guard finds that under the Administrative 
Procedure Act (APA) [5 U.S.C. 553(a)(2)] notice and the opportunity for 
public comment are unnecessary. Further, since the regulations are 
being revised to accurately reflect statutory changes, the Coast Guard 
finds good cause under the APA [5 U.S.C. 553(d)(3)] for the final rule 
to be effective on the date of publication in the Federal Register.

Small Entities

    Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the 
Coast Guard must consider the economic impact on small entities of a 
rule for which a general notice of proposed rulemaking is required. 
``Small entities'' may include (1) small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields and (2) governmental jurisdictions with 
populations of less than 50,000. This rule does not require a general 
notice of proposed rulemaking and, therefore, is exempt from the 
requirements of the Act. Although this rule is exempt, the Coast Guard 
has reviewed it for potential impact on small entities.
    This rule will have no adverse impacts, economic or other. It 
improves the Coast Guard's ability to respond to discharges of oil and 
hazardous substances. Therefore, the Coast Guard's position is that 
this rule will not have a significant economic impact on a substantial 
number of small entities.

Collection of Information

    This rule contains no collection-of-information requirements under 
the Paperwork Reduction Act [44 U.S.C. 3501 et seq.].

Federalism

    The Coast Guard has analyzed this rule under the principles and 
criteria contained in Executive Order 12612 and has determined that 
this rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Environment

    The Coast Guard has considered the environmental impact of this 
rule and concluded that, under paragraph 2.B.2 of Commandant 
Instruction M16475.1B, this rule is categorically excluded from further 
environmental documentation. This rule will only affect internal agency 
procedure. A ``Categorical Exclusion Determination'' is available in 
the docket for inspection or copying at the Office of the Executive 
Secretary, Marine Safety Council (G-LRA, 3406) [CGD 91-225], U.S. Coast 
Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001 
between 8 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays. The telephone number is (202) 267-1477.

List of Subjects

33 CFR Part 1

    Administrative practice and procedure, Authority delegations 
(Government agencies)2, Freedom of information, Penalties.

33 CFR Part 153

    Hazardous substances, Oil pollution, Reporting and recordkeeping 
requirements, Water pollution control.

    For the reasons set out in the preamble, the Coast Guard amends 33 
CFR parts 1 and 153 as follows:

PART 1--GENERAL PROVISIONS

    1. The authority citation for subpart 1.01 is revised to read as 
follows:

    Authority: 14 U.S.C. 633; 33 U.S.C. 401, 491, 525, 1321, 2716, 
and 2716a; 42 U.S.C. 9615; 49 U.S.C. 322; 49 CFR 1.45(b), 1.46; 
section 1.01-70 also issued under the authority of E.O. 12580, 3 
C.F.R., 1987 Comp., p. 193; and sections 1.01-80 and 1.01-85 also 
issued under the authority of E.O. 12777, 3 C.F.R., 1991 Comp., p. 
351.


Sec. 1.01-30  [Amended]

    2. Section 1.01-30 is revised to read as follows:
    Captains of the Port and their representatives enforce within their 
respective areas port safety and security and marine environmental 
protection regulations, including, without limitation, regulations for 
the protection and security of vessels, harbors, and waterfront 
facilities; anchorages; security zones; safety zones; regulated 
navigation areas; deepwater ports; water pollution; and ports and 
waterways safety.
    3. Section 1.01-70 is amended by revising paragraph (d)(2) and 
adding paragraph (d)(3) to read as follows:


Sec. 1.01-70  CERCLA delegations.

* * * * *
    (d) * * *
    (2) Authority, pursuant to section 109 of CERCLA, to assess 
penalties relating to violations of sections 103 (a) and (b) pertaining 
to notification requirements, section 108 pertaining to financial 
responsibility for release of hazardous substances from vessels, and 
section 122 pertaining to administrative orders and consent decrees.
    (3) Authority, pursuant to section 108 of CERCLA, to deny entry to 
any port or place in the United States or to the navigable waters of 
the United States and detain at any port or place in the United States 
any vessel subject to section 108(a) of CERCLA that, upon request, does 
not provide evidence of financial responsibility.
* * * * *
    4. Section 1.01-80 is added to read as follows:


Sec. 1.01-80  FWPCA and OPA 90 delegations.

    (a) This section delegates authority to implement provisions of 
section 311 of the Federal Water Pollution Control Act (FWPCA), as 
amended [33 U.S.C. 1321] and provisions of the Oil Pollution Act of 
1990 (OPA 90). The definitions in subsection (a) of section 311 of the 
FWPCA and section 1001 of OPA 90 [33 U.S.C. 2701] apply.
    (b) The Chief, Office of Marine Safety, Security, and Environmental 
Protection, is delegated authority to require the owner or operator of 
a facility to establish and maintain such records, make such reports, 
install, use, and maintain such monitoring equipment and methods, and 
provide such other information as may be required to carry out the 
objectives of section 311 of the FWPCA [33 U.S.C. 1321].
    (c) Each District and Area Commander is delegated authority within 
the Commander's assigned district or area to--
    (1) Deny entry to any place in the United States or to the 
navigable waters of the United States, and to detain at any place in 
the United States, any vessel subject to section 1016 of OPA 90 [33 
U.S.C. 2716] that, upon request, does not provide evidence of financial 
responsibility;
    (2) Seize and, through the Chief Counsel, seek forfeiture to the 
United States of any vessel subject to the requirements of section 1016 
of OPA 90 [33 U.S.C. 2716] that is found in the navigable waters of the 
United States without the necessary evidence of financial 
responsibility;
    (3) Assess any class I civil penalty under subsection (b) of 
section 311 of the FWPCA [33 U.S.C. 1321], in accordance with the 
procedures in subpart 1.07 of this chapter;
    (4) Assess any civil penalty under section 4303 of OPA 90 [33 
U.S.C. 2716a] in accordance with the procedures in subpart 1.07 of this 
chapter;
    (5) Board and inspect any vessel upon the navigable waters of the 
United States or the waters of the contiguous zone, except for public 
vessels; with or without warrant, arrest any person who, in the 
Commander's presence or view, violates a provision of section 311 of 
the FWPCA [33 U.S.C. 1321] or any regulation issued thereunder; and 
execute any warrant or other process issued by an officer or court of 
competent jurisdiction, as prescribed in section 311(m)(1) of the FWPCA 
[33 U.S.C. 1321(m)(1)];
    (6) Enter and inspect any facility in the coastal zone at 
reasonable times; have access to and copy any records; take samples; 
inspect monitoring equipment required by section 311(m)(2)(A) of the 
FWPCA [33 U.S.C. 1321(m)(2)(A)]; with or without warrant, arrest any 
person who, in the Commander's presence or view, violates a provision 
of section 311 of the FWPCA [33 U.S.C. 1321] or any regulation issued 
thereunder; and execute any warrant or other process issued by an 
officer or court of competent jurisdiction, as prescribed in section 
311(m)(2) of the FWPCA [33 U.S.C. 1321(m)(2)(A)]; and
    (7) Determine for purposes of section 311(b)(12) of the FWPCA [33 
U.S.C. 1321(b)(12)]--
    (i) Whether reasonable cause exists to believe that an owner, 
operator, or person in charge may be subject to a civil penalty under 
section 311(b) of the FWPCA [33 U.S.C. 1321(b)]; and
    (ii) Whether a filed bond or other surety is satisfactory.
    (d) Each Coast Guard official predesignated as the On-Scene 
Coordinator by the applicable Regional Contingency Plan is delegated 
authority pursuant to section 311(c) of the FWPCA [33 U.S.C. 1321(c)], 
subject to paragraph (e) of this section, in accordance with the 
National Contingency Plan and any appropriate Area Contingency Plan, to 
ensure the effective and immediate removal of a discharge and 
mitigation or prevention of a substantial threat of a discharge of oil 
or a hazardous substance by--
    (1) Removing or arranging for the removal of a discharge and 
mitigating or preventing an imminent and substantial threat of a 
discharge at any time;
    (2) Directing or monitoring all Federal, State, and private actions 
to remove a discharge, including issuance of orders;
    (3) Determining, pursuant to section 311(c) of the FWPCA [33 U.S.C. 
1321(c)], whether a discharge or a substantial threat of a discharge of 
oil or a hazardous substance from a vessel, offshore facility, or 
onshore facility is of such a size or character as to be a substantial 
threat to the public health or welfare of the United States (including, 
but not limited to fish, shellfish, wildlife, other natural resources, 
and the public and private beaches and shorelines of the United 
States); and, if it is, directing all Federal, State, and private 
actions to remove the discharge or to mitigate or prevent the 
threatened discharge;
    (4) Determining, pursuant to section 311(e) of the FWPCA [33 U.S.C. 
1321(e)], that there may be an imminent and substantial threat to the 
public health and welfare of the United States, and, if there is, may--
    (i) Determine an imminent and substantial threat as a basis for 
recommending referral for judicial relief; or
    (ii) Act pursuant to section 311(e)(1)(B) of the FWPCA [33 U.S.C. 
1321(e)(1)(B)], including the issuance of orders; and
    (5) Acting to mitigate the damage to the public health or welfare 
caused by a discharge of oil or a hazardous substance.
    (e) The authority described in paragraph (d) of this section does 
not include the authority to--
    (1) Remove or destroy a vessel; or
    (2) Take any other action that constitutes intervention under the 
Intervention on the High Seas Act [33 U.S.C. 1471, et seq.] or other 
applicable laws. For purposes of this section, ``intervention'' means 
any detrimental action taken against the interest of a vessel or its 
cargo without the consent of the vessel's owner or operator.
    5. Section 1.01-85 is added to read as follows:


Sec. 1.01-85  Redelegation.

    Except as provided in Sec. 1.01-80(e)(1) and (2), each Coast Guard 
officer to whom authority is granted in Sec. 1.01-80 may redelegate and 
authorize successive redelegations of that authority within the command 
under the officer's jurisdiction, or to members of the officer's staff.
    6. Section 1.01-90 is added to read as follows:


Sec. 1.01-90  Commissioned, warrant, and petty officers.

    Any commissioned, warrant, or petty officer of the United States 
Coast Guard may be authorized to carry out the functions delegated to 
superior officials under Secs. 1.01-1, 1.01-20, 1.01-30, 1.01-70, and 
1.07-80, or redelegated under Sec. 1.01-85, within the jurisdiction of 
the cognizant official. They will do so under the supervision and 
general direction of that official.
    7. The authority citation for subpart 1.07 is revised to read as 
follows:

    Authority: 14 U.S.C. 633; Sec. 6079(d), Pub. L. 100-690, 102 
Stat. 4181; 49 CFR 1.46.