[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Notices]
[Pages 17574-17575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6540]


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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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