[Federal Register Volume 70, Number 241 (Friday, December 16, 2005)]
[Rules and Regulations]
[Pages 74669-74676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24125]


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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 [email protected].
    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.


0
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.


0
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.
* * * * *

0
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]

0
4. Remove Sec.  151.45.

PART 153--CONTROL OF POLLUTION BY OIL AND HAZARDOUS SUBSTANCES, 
DISCHARGE REMOVAL

0
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

0
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.


0
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).

0
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.

0
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.

0
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.

0
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