[Federal Register Volume 71, Number 198 (Friday, October 13, 2006)]
[Notices]
[Pages 60553-60554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17042]


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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.

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SUMMARY: The U.S. Coast Guard is providing 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 whether to pay or deny claims under 
the Oil Pollution Act of 1990.

DATES: Effective October 13, 2006. Comments and related material must 
reach the Coast Guard on or before November 13, 2006.

ADDRESSES: You may mail comments and related material by only one of 
the following means:
    (1) By mail to the Docket Management Facility (USCG-2006-25843), 
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 the 
rulemaking. Comments and material received from the public will become 
part of this docket and will be available for inspection or copying at 
room PL-401, located on the Plaza level of the Nassif Building at the 
same address between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. You may electronically access the public docket on 
the internet at http://dms.dot.gov.
    Electronic forms of all comments received into any of our dockets 
can be searched by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor unit, etc.) and is open to the public without 
restriction. You may review the Department of Transportation's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.

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:

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 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 gather 
evidence that was included in a Marine Casualty Investigation Report 
(MCIR). This, in turn, resulted in delays while those duplicative 
investigative efforts were carried out. Further, in those instances 
where the claimant sought to make a MCIR a part of the record of its 
claim, the NPFC's position resulted in the claimant being denied the 
opportunity to do so or have that report considered by NPFC. In order 
to avoid duplication of efforts and expedite the claims process, the 
Coast Guard has recently examined the provisions of 46 U.S.C. 6308 to 
determine whether Congress, in fact, intended the broad interpretation 
followed by the NPFC in the past.
    The Coast Guard has concluded that the statute in question, 46 
U.S.C. 6308, was not meant to prohibit the use by NPFC of all or parts 
of a MCIR in its claims process under 33 U.S.C. 2713. The plain 
language of 46 U.S.C. 6308 does not indicate an intent to include the 
NPFC's claims process, because that process is an internal, informal 
agency process. The NPFC's claims process is administrative. However, 
it is not an administrative proceeding as the term is used in 46 U.S.C. 
6308, which refers to proceedings subject to rules of evidence and 
discovery. The statute does not appear to be directed at the Coast 
Guard's internal use of its MCIRs, or a process as informal as the 
NPFC's claims process. To interpret the statute otherwise would result 
in unnecessary duplication of government and claimant investigative 
resources, a result that was

[[Page 60554]]

borne out in practice and was not intended by Congress.
    Accordingly, because the NPFC claims procedures under 33 U.S.C. 
2713 and the implementing regulations at 33 CFR part 136 are internal, 
informal administrative processes the use of a MCIR in those processes 
is not precluded by 46 U.S.C. 6308.
    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 any part of such a 
MCIR may be considered, it is the enclosures to such a report, such as 
witness statements, navigation records and vessel logs that will most 
likely bear on any determination 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 than 
those determined in such reports of investigation.

    Dated: October 10, 2006.
William D. Baumgartner,
Rear Admiral, U.S. Coast Guard, Judge Advocate General.
[FR Doc. E6-17042 Filed 10-12-06; 8:45 am]
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