Coast Guard, DOT.
Supplemental notice of proposed rulemaking.
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.
Comments and related material must reach the Docket Management Facility on or before September 10, 2001.
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:Start Printed 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.Start Further Info
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.End Further Info End Preamble Start Supplemental 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 81/2 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.
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.
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 § 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
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 Start Printed Page 36532reporting 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.Start Signature
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]
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