[Federal Register Volume 66, Number 134 (Thursday, July 12, 2001)]
[Proposed Rules]
[Pages 36530-36532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17384]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 151 and 153

46 CFR Part 4

[USCG-2000-6927]
RIN 2115-AD98


Reporting Marine Casualties

AGENCY: Coast Guard, DOT.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On November 2, 2000, the Coast Guard published a notice of 
proposed rulemaking to amend the marine casualty reporting requirements 
by adding ``significant harm to the environment'' as a reportable 
marine casualty. This supplemental notice of proposed rulemaking 
addresses only the comments received in response to the Federalism 
section of the preamble and only proposes a revised Federalism section.

DATES: Comments and related material must reach the Docket Management 
Facility on or before September 10, 2001.

ADDRESSES: To make sure your comments and related material are not 
entered more than once in the docket, please submit them by only one of 
the following means:

[[Page 36531]]

    (1) By mail to the Docket Management Facility, USCG-2000-6927, U.S. 
Department of Transportation, room PL-401, 400 Seventh Street SW., 
Washington, DC 20590-0001.
    (2) By delivery to room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (3) By fax to the Docket Management Facility at 202-493-2251.
    (4) Electronically through the Web Site for the Docket Management 
System at http://dms.dot.gov.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying at room PL-401 on the Plaza level of the Nassif Building, 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 regarding this proposed 
rule, contact Lieutenant Junior Grade Edward Jackson, Project Manager, 
Office of Standards Evaluation and Development (G-MSR), Coast Guard, 
telephone 202-267-6884. For questions on viewing or submitting material 
to the docket, call Dorothy Beard, Chief, Dockets, Department of 
Transportation, telephone 202-366-5149.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [USCG-2000-
6927], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. You may submit 
your comments and material by mail, hand delivery, fax, or electronic 
means to the Docket Management Facility at the address under ADDRESSES; 
but please submit your comments and material by only one means. If you 
submit them by mail or hand delivery, submit them in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit them by mail and would like to know they reached 
the Facility, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

Regulatory History

    At Coast Guard Headquarters in Washington, DC, we held a public 
meeting on this project on January 20, 1995 (59 FR 65522; December 20, 
1994), regarding amendments contained in the Oil Pollution Act of 1990 
(OPA 90) (Pub. L. 101-380) that require certain U.S. and foreign-flag 
vessels to report marine casualties.
    On November 2, 2000, the Coast Guard published a notice of proposed 
rulemaking (NPRM) entitled Reporting Marine Casualties in the Federal 
Register (65 FR 65808).

Background and Purpose

    The Coast Guard received 24 letters commenting on the NPRM, nine of 
which related to the Federalism section. Several comments also 
requested a public meeting to discuss the Federalism section. This 
supplemental notice addresses only the comments regarding the 
Federalism section and the requests for a public meeting. The remaining 
comments will be considered as we develop the final rule.

November NPRM

    Current marine casualty reporting requirements for U.S.-flag 
vessels worldwide and foreign-flag vessels in U.S. navigable waters are 
contained in 46 CFR part 4. The proposed amendments would add 
``significant harm to the environment'' as a reportable marine casualty 
under 46 CFR 4.05-1 for these vessels.
    This rulemaking will help the Coast Guard track and investigate 
marine casualties that may result in significant harm to the 
environment. In addition, it will lessen the effects of marine 
casualties by requiring timely notification needed to ensure a timely 
and appropriate pollution response clean-up. It would also require 
foreign-flag tank vessels in the U.S. Exclusive Economic Zone (EEZ) to 
report marine casualties that occur within the U.S. EEZ, involving 
material damage affecting the seaworthiness or efficiency of a vessel, 
or significant harm to the environment.
    In accordance with Sec. 4106 of OPA 90, the Coast Guard proposes to 
amend the marine casualty reporting requirements to require U.S. 
vessels anywhere, foreign vessels in the U.S. navigable waters and 
foreign tank vessels in the U.S. EEZ to report a discharge or a 
substantial threat of discharge involving oil, hazardous substances, 
marine pollutants, or Noxious Liquid Substances (NLS) to the Coast 
Guard.
    We propose to adopt the MARPOL 73/78 standard for reporting 
discharges and probable discharges.

Discussion of Comments

Federalism

    The Coast Guard received 10 comments on the Federalism section of 
the November 2, 2000 NPRM. These comments stated that the Federalism 
section appears to preempt states from regulating the reporting of 
discharges of oil or hazardous substances in U.S. waters as a casualty, 
and therefore, this section should be revised.
    We have considered the comments submitted by the eight States, one 
regional group, and one corporation. We now recognize that the 
Federalism statement as published in the NPRM could be interpreted to 
mean that this rulemaking would preempt State regulations requiring 
reporting of discharges to State officials. The Coast Guard did not 
intend such an interpretation, and proposes to revise the Federalism 
statement accordingly.
    In the case of United States v. Locke, 529 U.S. 89 (2000), the 
Supreme Court held the States may not regulate in categories reserved 
for regulation to the Coast Guard, including design, construction, 
alteration, repair, maintenance, operation, equipping, personnel 
certification and manning of vessels, among others. Included in the 
categories reserved to the Coast Guard are regulations requiring the 
reporting of marine casualties. The Supreme Court recognized that 
marine casualties resulting in significant harm to the marine 
environment would be included in the preempted category. The Federalism 
statement in the NPRM was drafted to reflect that aspect of the Locke 
decision. However, the Court also discussed Section 1018 of OPA 90 at 
length. Section 1018(a) states, in part, that ``nothing in the Act 
shall affect, or be construed or interpreted as preempting the 
authority of any State or any political subdivision thereof from 
imposing any additional liability or requirements with respect to--(A) 
the discharge of oil or other pollution by oil within such State or (B) 
any removal activities in connection with such a discharge.'' Section 
1018(c) allows for ``additional liability or additional requirements'' 
relating to ``the discharge or substantial threat of a discharge of 
oil.'' While the Court held that Section 1018 did not affect the 
preemptive impact of the categories described above, State requirements 
regarding

[[Page 36532]]

reporting to it of the actual discharge or the substantial threat of a 
discharge of oil so that it could undertake its proper role in respect 
of the removal of such a discharge (and its rules in respect of 
liability and compensation for that discharge) were unaffected by the 
decision.
    The Coast Guard believes that reporting of discharges or of the 
substantial threat of a discharge of oil is within the ambit of State 
regulation contemplated by Section 1018 of OPA, because without such 
reports, State removal, liability and penalty actions could not 
commence. Therefore, while State regulation requiring reports of marine 
casualties that ultimately cause discharges of oil are preempted, State 
regulations requiring reports of the discharge itself, or the 
substantial threat of such a discharge, are not preempted. The Coast 
Guard proposes to revise the Federalism Statement for this rulemaking 
as follows:

Revised Federalism Statement

    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. It is well settled that States may 
not regulate in categories reserved for regulation by the Coast Guard. 
It is also well settled, now, 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 the decision of 
the Supreme Court in the consolidated cases of United States v. Locke 
and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000)). This 
proposed 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 casualties 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 proposed rule, so in that regard, this proposed 
rule likewise has no implications for Federalism.

Requests for Public Meeting

    We also received comments stating that the Coast Guard should hold 
a public meeting to address the Federalism section in the NPRM. The 
Coast Guard believes that this SNPRM addresses these comments and 
clarifies the Federalism section and that a public meeting will not be 
necessary.

    Dated: May 24, 2001.
Joseph J. Angelo,
Acting Assistant Commandant for Marine Safety and Environmental 
Protection.
[FR Doc. 01-17384 Filed 7-11-01; 8:45 am]
BILLING CODE 4910-15-U