65808 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules

Issued in Kansas City, Missouri, on

October 27, 2000.

James E. Jackson,

Acting Manager, Small Airplane Directorate,

Aircraft Certification Service.

[FR Doc. 00–28093 Filed 11–1–00; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 151, 153 and 46 CFR Part

4

[USCG–2000–6927]

RIN 2115–AD98

Reporting Marine Casualties

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes to

amend the marine casualty reporting

requirements by adding ‘‘significant

harm to the environment’’ as a

reportable marine casualty. 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.

DATES: Comments and related material

must reach the Docket Management

Facility on or before January 31, 2001.

Comments sent to the Office of

Management and Budget (OMB) on

collection of information must reach

OMB on or before January 2, 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:

(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.

You must also mail comments on

collection of information to the Office of

Information and Regulatory Affairs,

Office of Management and Budget, 725

17th Street NW., Washington, DC 20503,

ATTN: Desk Officer, U.S. Coast Guard.

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 on this proposed rule, call

Ensign 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–

9329.

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 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.

Public Meeting

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. We do not plan to

hold any additional public meetings.

Background and Purpose

Section 4106 of OPA 90 amended 46

U.S.C. 6101 by adding ‘‘significant harm

to the environment’’ to the list of

reportable marine casualties.

Additionally, that section required

operators of foreign-flag tank vessels,

operating in waters subject to the

jurisdiction of the United States—

including the Exclusive Economic Zone

(EEZ)—to report marine casualties

resulting in either:

(a) Material damage affecting the

seaworthiness or efficiency of a vessel;

or

(b) Significant harm to the

environment.

For marine casualties involving

foreign-flag tank vessels in the U.S. EEZ,

Congress required that reporting be

consistent with generally recognized

principles of international law. The

1982 United Nations Convention on the

Law of the Sea (UNCLOS), Article

211(5), governs the establishment of

laws and regulations by a coastal state

to prevent, reduce, and control

pollution from vessels in its EEZ. This

article specifies that these laws and

regulations are authorized if they enact

international maritime or general

diplomatic rules and standards.

The accepted international standard

for reporting vessel pollution incidents

is in the International Convention for

the Prevention of Pollution from Ships,

1973, as modified by the Protocol of

1978 (MARPOL 73/78).

The Act to Prevent Pollution from

Ships (APPS) (33 U.S.C. 1901–1915)

enacts MARPOL 73/78 Annexes I, II, III,

and V. Regulation 8 and Protocol I of

MARPOL 73/78 provide the reporting

provisions concerning reports on

incidents involving harmful substances.

Article 2 of MARPOL 73/78 defines an

‘‘incident’’ as the actual or probable

discharge of a harmful substance or

effluents into the sea. Regulations

implementing the reporting provisions

of APPS are in 33 CFR 151.15 and

151.45. However, these regulations (33

CFR 151.15 and 151.45) do not reflect

current U.S. law in two respects.

First, APPS has subsequently been

amended (Pub. L. 102–241). Instead of

having just the master or other personin-charge of the ship responsible for the

report, the amendment makes the

master, person-in-charge, owner,

charterer, manager, or operator of a ship

involved in an incident responsible for

the report. Second, the Hazardous

Materials Transportation Act of 1974

ratified Annex III of MARPOL 73/78

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules 65809

(packaged marine pollutants) for the

United States. We will revise the current

reporting requirements in 33 CFR

151.15 and 151.45 to reflect the

amendment to APPS and to include

items listed in Annex III.

Pursuant to 33 U.S.C. 1902, U.S.

vessels must comply with the reporting

requirements in Article 8 and Protocol

I of MARPOL 73/78 worldwide, and if

an incident occurs in U.S. navigable

waters, any foreign-flag vessel must

comply with the same reporting

requirements. Additionally, with

respect to Annex V, foreign-flag vessels

must comply with these reporting

requirements while in the navigable

waters or EEZ of the U.S.

Under APPS, and its implementing

regulatory requirements found in 33

CFR part 151, the term ‘‘navigable

waters’’ means all waters of the

territorial sea of the United States that

are within 3 nautical miles from the

baselines from which the territorial sea

of the U.S. is measured. The Coast

Guard Authorization Act of 1998

extended the U.S. territorial sea to 12

nautical miles for certain laws,

including 33 U.S.C. 1222 and a number

of sections in Title 46 U.S. Code,

including the section that defines

‘‘navigable waters’’ (46 U.S.C. 2101).

Because that definition applies

throughout subtitle II of 46 U.S. Code,

Congress effectively amended the

jurisdictional reach from 3 to 12

nautical miles for any statute within

subtitle II that refers to ‘‘navigable

waters.’’ APPS was not amended by the

1998 Coast Guard Authorization Act

that extended the territorial sea per

Presidential Proclamation 5928 of

December 27, 1988.

In passing the 1998 Coast Guard

Authorization Act that amended the

definition of ‘‘navigable waters’’,

Congress clearly intended to expand the

marine casualty reporting requirements

found in 46 U.S.C. 6101 and its

implementing regulations contained in

46 CFR part 4, out to 12 nautical miles

with respect to foreign-flag vessels.

Therefore, for the reasons that are more

fully explained in the ‘‘Discussion of

Proposed Rules’’ section of this notice of

proposed rulemaking (NPRM), while the

Coast Guard has chosen to adopt the

MARPOL 73/78 and APPS standard for

pollution reporting for its marine

casualty regulations, in order to remain

consistent with Congress’s intent that

foreign-flag vessels report marine

casualties occurring within U.S.

‘‘navigable waters’’ as that term is

defined in 46 U.S.C. 2101 (17a), we will

rely on 46 U.S.C. 6101 as the basis of

our authority for this proposed rule.

Discussion of Proposed Rules

Marine Casualty Reporting

Requirements

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. These proposed

amendments would add ‘‘significant

harm to the environment’’ as a

reportable marine casualty under 46

CFR 4.05–1 for these vessels.

This proposal would also require

foreign-flag tank vessels in the U.S. EEZ

to report marine casualties that occur

within the U.S. EEZ, which involves

either—

(1) Material damage affecting the

seaworthiness or efficiency of a vessel;

or

(2) Significant harm to the

environment.

For the purpose of this rulemaking,

‘‘significant harm to the environment’’

is defined as a discharge that, in U.S.

navigable waters, is in violation of the

Clean Water Act, 33 U.S.C. 1321. In

addition, the definition includes a

probable discharge of oil, hazardous

substances, marine pollutants, or

noxious liquid substances (NLS) as well

as an actual discharge.

Under the Clean Water Act, 33 U.S.C.

1321(c)(1), as amended by OPA 90, the

Coast Guard is authorized by E.O. 12777

and 49 CFR 1.46 to ensure the effective

and immediate removal of a discharge,

and mitigation or prevention of a

substantial threat of a discharge, of oil,

hazardous substances, marine

pollutants, or NLS into or on the

navigable waters of the U.S., or into or

on the waters of the U.S. EEZ. Pursuant

to this Federal removal authority, it is

reasonable to infer congressional intent

that the Coast Guard be notified any

time that there is a discharge or a

substantial threat of a discharge into or

on the navigable waters of the U.S. or

EEZ in order to ensure the effective and

immediate removal and mitigation or

prevention of a discharge or substantial

threat of a discharge.

In accordance with this congressional

intent and § 4106 of OPA 90, the Coast

Guard is amending 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 NLS to

the Coast Guard. For the purposes of

this rulemaking, we equate the term

‘‘substantial threat of a discharge’’ to the

term ‘‘probable discharge’’ as used in

the MARPOL 73/78 Convention.

We propose to adopt the MARPOL 73/

78 standard for reporting discharges and

probable discharges for three reasons.

First, we have adopted the MARPOL

73/78 requirements on pollution

reporting because it represents the

accepted international standard for

pollution prevention and mitigation and

because it is consistent with the Federal

pollution reporting regulations that

implement APPS (33 CFR part 151).

Second, the vast majority of the

world’s tonnage sails under the flags of

countries that are signatory to MARPOL

73/78. Therefore, most foreign-flag tank

vessels are already required to comply

with those reporting requirements.

Third, 33 U.S.C. 1902(c) and Article 5

of MARPOL 73/78 permit the United

States, insofar as the United States is a

party to the convention, to apply

MARPOL 73/78 requirements to foreign

vessels whose flag administrations are

not party to MARPOL 73/78 in order to

ensure that no more favorable treatment

is given to these vessels than to vessels

flying the flag of parties.

Application of the MARPOL 73/78

reporting standards to foreign-flag tank

vessels in the U.S. EEZ would not alter

the reporting requirements applicable to

these vessels in U.S. navigable waters

under the Comprehensive

Environmental Response,

Compensation, and Liability Act of 1980

(CERCLA) as amended by the Superfund

Amendments and Reauthorization Act

of 1986 and the Federal Water Pollution

Control Act (FWPCA).

MARPOL 73/78 reporting

requirements, distinguished from

marine casualty reporting requirements,

are codified in 33 CFR 151.15 and

151.45. We propose to revise 33 CFR

151.15 and 46 CFR part 4 to indicate

that the notification requirements in 33

CFR 151.15 will satisfy the reporting

requirements of 46 CFR part 4.

However, the reporting requirements of

46 CFR part 4 will not satisfy the

notification requirements of 33 CFR

151.15. This is because the criteria and

timing for the reports in these latter

sections is more stringent than the

reporting requirements in 46 CFR part 4.

Marine Casualty Investigations

Before OPA 90, a discharge or

probable discharge of oil, hazardous

substances, marine pollutants, or NLS

could not be investigated under the

marine casualty investigation authority

in 46 U.S.C. 63 and 46 CFR part 4 unless

the discharge resulted from a reportable

marine casualty, such as a grounding or

collision. Because OPA 90 amended 46

U.S.C. 6101 by adding ‘‘significant harm

to the environment’’ to the list of

reportable marine casualties, we will

65810 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules

now be able to investigate probable, as

well as actual, discharges that occur in

the navigable waters of the U.S. and that

may result in significant harm to the

environment using marine casualty

investigation procedures.

Coast Guard investigation of marine

casualties reported by foreign-flag tank

vessels in the U.S. EEZ under these

proposed regulations would be done

under generally recognized principles of

international law. These incidents

would be coordinated with the flag-state

administration under the IMO

Resolution A.637(16), ‘‘Cooperation in

Maritime Casualty Investigations.’’

Additionally, incidents we do not

investigate would be forwarded to the

flag-state administration and any other

state that may be affected pursuant to

Article 8 of MARPOL 73/78.

Under Article 6 of MARPOL 73/78,

we may inspect the vessel to determine

whether the vessel violated the

provisions of MARPOL 73/78 if—

(a) The vessel is in any port or

offshore terminal of the United States;

or

(b) An investigation is requested by

any party to MARPOL 73/78 and the

vessel is in a port or offshore terminal

of the United States.

Definitions

MARPOL 73/78 definitions for the

terms ‘‘oil’’ and ‘‘noxious liquid

substances’’ are currently in 33 CFR

151.05. The proposed regulations would

add a definition for the term ‘‘marine

pollutants,’’ as identified in Protocol I of

MARPOL 73/78, to mean those marine

pollutants listed in the International

Maritime Dangerous Goods Code (IMDG

Code). The marine pollutants identified

in the IMDG Code are located in

Appendix B of 49 CFR 172.101. We

would reference this section in the

proposed definition. The proposed rule

would add additional definitions in 46

CFR 4.03–1. Proposed new definitions

in 46 CFR 4.03–1 include ‘‘noxious

liquid substances,’’ ‘‘significant harm to

the environment,’’ and ‘‘tank vessel.’’

Regulatory Evaluation

This proposed rule is not a

‘‘significant regulatory action’’ under

§ 3(f) of Executive Order 12866 and does

not require an assessment of potential

costs and benefits under § 6(a)(3) of that

Order. The Office of Management and

Budget has not reviewed it under that

Order. It is not ‘‘significant’’ under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 FR 11040; February 26, 1979).

We expect the economic impact of

this proposed rule to be so minimal that

a full Regulatory Evaluation under

paragraph 10e of the regulatory policies

and procedures of DOT is unnecessary.

The following is a discussion of the

expected costs and benefits of the

proposed rule.

Industry Costs

We estimate that the proposed rule

imposes an additional 1,570 hours per

year of annual paperwork requirements

on 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 industry

cost of $70,650 per year. Additionally,

this rule proposes an estimated 186

hours of annual paperwork

requirements on foreign industry. 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 proposed rule

are mandated by OPA 90. The primary

benefit of this proposed 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 proposed 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.

The estimated annual impact to U.S.

industry of this proposed rule is

$70,650. The measures included in this

proposed rule are mandated by the 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 proposed

rule is $45. If a small entity is not

involved in a ‘‘significant harm to the

environment’’ incident, this proposed

rule will have zero cost.

Therefore, the Coast Guard certifies

under 5 U.S.C. 605(b) that this proposed

rule would not have a significant

economic impact on a substantial

number of small entities. If you think

that your business, organization, or

governmental jurisdiction qualifies as a

small entity and that this rule would

have a significant economic impact on

it, please submit a comment to the

Docket Management Facility at the

address under ADDRESSES. In your

comment, explain why you think it

qualifies and how and to what degree

this rule would economically affect it.

Assistance for Small Entities

Under section 213(a) of the Small

Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104–121),

we want to assist small entities in

understanding this proposed rule so that

they can better evaluate its effects on

them and participate in the rulemaking.

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 Ensign

Edward Jackson, Project Manager, Office

of Standards Evaluation and

Development (G–MSR), telephone 202–

267–6884.

Collection of Information

This proposed rule would call 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. The Coast Guard is

currently requesting a revision of a

current collection of information under:

DOT No.: 2115.

OMB No.: 2115–0003.

Title: Collection of Marine Casualty

Information, Chemical Drug and

Alcohol Testing Information, and

Management Information System

Reports.

Summary of the Collection of

Information: The Marine Casualty

Information portion of this Collection of

Information would require 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 would also require

U.S.-flag vessels operating anywhere to

report a marine casualty involving

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules 65811

‘‘significant harm to the environment’’.

This program change revises the

previously approved OMB Collection

2115–0003 for the Marine Casualty

Information, Chemical Drug and

Alcohol Testing Information, and

Management Information System

Reports by increasing the total number

of annual reporting and recordkeeping

hour burden from 31,326 to 33,082.

This program change represents an

increase in the burden hours by 1,756

for the collection of Marine Casualty

Information. This collection of

information would be affected by the

proposed changes in 33 CFR parts 151

and 153, and 46 CFR part 4.

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. The Coast Guard has

submitted the requirements to the OMB

for review under § 3504(h) of the

Paperwork Reduction Act. Persons

submitting comments on the

requirements should submit their

comments both to OMB and to the Coast

Guard where indicated under

ADDRESSES by the date under DATES.

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 NLS, 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

rulemaking 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.

Frequency of Response: Only to report

‘‘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.

Burden of Response: Approximately

one hour per form.

Estimated Total Annual Burden: An

annual recordkeeping burden of 33,082

hours.

As required by the Paperwork

Reduction Act of 1995 (44 U.S.C.

3507(d)), we have submitted a copy of

this proposed rule to the Office of

Management and Budget (OMB) for its

review of the collection of information.

We ask for public comment on the

proposed collection of information to

help us determine how useful the

information is; whether it can help us

perform our functions better; whether it

is readily available elsewhere; how

accurate our estimate of the burden of

collection is; how valid our methods for

determining burden are; how we can

improve the quality, usefulness, and

clarity of the information; and how we

can minimize the burden of collection.

If you submit comments on the

collection of information, submit them

both to OMB and to the Docket

Management Facility where indicated

under ADDRESSES, by the date under

DATES.

You need not respond to a collection

of information unless it displays a

currently valid control number from

OMB. Before the requirements for this

collection of information become

effective, we will publish notice in the

Federal Register of OMB’s decision to

approve, modify, or disapprove the

collection.

Federalism

We have analyzed this rule in

accordance with the principles and

criteria contained in Executive Order

13132. Under § 3(b) of that order Federal

agencies may take national action

limiting the policymaking discretion of

the States where there is constitutional

and statutory authority for the action,

and where the national activity is

appropriate in light of the presence of a

problem of national significance.

Section 3(b) also requires Federal

agencies to consult with appropriate

State and local officials if there exist

significant uncertainties as to whether

national action is authorized or

appropriate.

On March 6, 2000, the Supreme Court

of the United States, in the case of

United States v. Locke, 120 S. Ct. 1135,

2000 LEXIS 1895, held that the States

are precluded from regulating any of the

categories covered by 46 U.S.C. 3703(a).

That section of the U.S. Code (U.S.C.)

covers the design, construction,

alteration, repair, maintenance,

operation, equipping, personnel

qualification, and manning of tank

vessels. The Court specifically held that

Congress, in enacting 46 U.S.C. 6101

and 3717(a)(4), intended the Coast

Guard’s regulations on the reporting of

marine casualties to be the sole source

of a vessel’s reporting obligations.

This rule finalizes requirements for

reporting marine casualties by U.S.

vessels anywhere in the world, all other

vessels in U.S. navigable waters and

foreign tank vessels in the EEZ of the

United States that involve either

material damage affecting the

seaworthiness of a vessel or significant

harm to the environment. Under

Executive Order 13132, § 3(b) the Coast

Guard finds that there exists a problem

of national significance, namely the

need for uniform national and

international standards for reporting

marine casualties including those

involving significant harm to the

environment. This finding is supported

by 46 U.S.C. 6101 in which Congress

directed the Coast Guard to add to the

list of reportable marine casualties those

involving significant harm to the

environment. The Coast Guard further

finds that under the Supreme Court’s

decision in United States v. Locke, 120

S. Ct. 1135, 2000 LEXIS 1895, and under

Title 46 United States Code, Sections

3703(a), 6101, and 3717 that the agency

has the constitutional and statutory

authority to take this action to address

this existing national problem. The

Coast Guard also finds that in light of

Congress’ specific action in passing 46

U.S.C. 3703(a), 6101 and 3717 and the

Supreme Court’s decision in United

States v. Locke, 120 S. Ct. 1135, 2000

LEXIS 1895, that there exists no

uncertainty as to whether national

action is authorized or appropriate.

Therefore, consultation with State and

local officials under Executive Order

13132, section 3(b) is unnecessary and

not required by that order.

Unfunded Mandates

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1531–1538) requires

Federal agencies to assess the effects of

their regulatory actions not specifically

required by law. In particular, the Act

addresses actions that may result in the

expenditure by a State, local, or tribal

government, in the aggregate, or by the

65812 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules

private sector of $100,000,000 or more

in any one year. Though this proposed

rule would not result in such an

expenditure, we do discuss the effects of

this rule elsewhere in this preamble.

Taking of Private Property

This proposed rule would not effect a

taking of private property or otherwise

have taking implications under E.O.

12630, Governmental Actions and

Interference with Constitutionally

Protected Property Rights.

Civil Justice Reform

This proposed rule meets applicable

standards in §§ 3(a) and 3(b)(2) of E.O.

12988, Civil Justice Reform, to minimize

litigation, eliminate ambiguity, and

reduce burden.

Protection of Children

We have analyzed this proposed rule

under E.O. 13045, Protection of

Children from Environmental Health

Risks and Safety Risks. This 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.

Environment

We considered the environmental

impact of this proposed rule and

concluded that, under figure 2–1,

paragraph (34)(a), of Commandant

Instruction M16475.1C, this proposed

rule is categorically excluded from

further environmental documentation.

The proposed rule is a procedural

regulation that does not have any

environmental impact because the

action does not have a significant effect

on the quality of the human

environment. 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.

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.

For the reasons discussed in the

preamble, the Coast Guard proposes to

amend 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

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; E.O. 12777, 3 CFR, 1991 Comp.

p. 351; 49 CFR 1.46.

2. In § 151.05, add the definition of

‘‘marine pollutant’’, in alphabetical

order, to read as follows:

§ 151.05 Definitions.

* * * * *

Marine pollutant means a harmful

substance in packaged form, as it

appears in Appendix B of 49 CFR

172.101.

* * * * *

3. Revise § 151.15 to read as follows:

§ 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 §§ 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

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules 65813

§ 153.203 of this chapter and of 46 CFR

4.05–1 and 4.05–2, if required under

those provisions.

§ 151.45 [Removed]

4. Remove § 151.45.

PART 153—CONTROL OF POLLUTION

BY OIL AND HAZARDOUS

SUBSTANCES, DISCHARGE

REMOVAL

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; 49 CFR

1.45 and 1.46.

§ 153.203 [Amended]

6. In § 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 § 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

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; 49 CFR 1.46. Authority for

subpart 4.40: 49 U.S.C. 1903(a)(1)(E); 49 CFR

1.46.

8. Revise § 4.03–1 to read as follows:

§ 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;

(2) Involves any United States vessel

wherever such casualty or accident

occurs; or

(3) Involves significant harm to the

environment or material damage

affecting the seaworthiness or efficiency

of a vessel from a foreign tank vessel

operating in the waters subject to the

jurisdiction of the United States

including the Exclusive Economic Zone

(EEZ).

(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 § 4.05–

1(a).

9. Add § 4.03–60 to read as follows:

§ 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 § 153.900(d) of this chapter.

10. Add § 4.03–65 to read as follows:

§ 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

§§ 153.1126 or 153.1128 of this chapter

during the operation of the ship; and

(c) In waters subject to the jurisdiction

of the U.S., 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.

11. Add § 4.03–70 to read as follows:

§ 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.

§ 4.05–1 [Amended]

12. In § 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:

§ 4.05–1 Notice of marine casualty.

(a) * * *

* * * * *

(8) An occurrence involving

significant harm to the environment

from a discharge, or probable discharge,

caused by damage to the vessel or its

equipment.

(b) * * *

(c) Except as otherwise required

under this subpart, a report made per 33

CFR 153.203, 40 CFR 117.21, or 40 CFR

302.6 satisfies the immediate

notification requirement of this section

only if the marine casualty results in

significant harm to the environment as

defined by 46 CFR 4.03–65.

13. Add § 4.05–2 to read as follows:

§ 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 § 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 33 CFR

151.15, immediately after addressing

65814 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Proposed Rules

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: October 24, 2000.

Joseph J. Angelo,

Acting Assistant Commandant for Marine

Safety and Environmental Protection.

[FR Doc. 00–27943 Filed 11–1–00; 8:45 am]

BILLING CODE 4910–15–U

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01–00–227]

RIN 2115–AA97

Safety Zone: Coast Guard Activities

New York Annual Fireworks Displays

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes to

establish 12 permanent safety zones for

annual fireworks displays located in the

Port of New York/New Jersey. This

action is necessary to provide for the

safety of life on navigable waters during

the events. This action is intended to

restrict vessel traffic in a portion of the

affected waterways.

DATES: Comments and related material

must reach the Coast Guard on or before

December 18, 2000.

ADDRESSES: You may mail comments

and related material to Waterways

Oversight Branch (CGD01–00–227),

Coast Guard Activities New York, 212

Coast Guard Drive, room 204, Staten

Island, New York 10305. The

Waterways Oversight Branch of Coast

Guard Activities New York maintains

the public docket for this rulemaking.

Comments and material received from

the public, as well as documents

indicated 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 204,

Coast Guard Activities New York,

between 8 a.m. and 3 p.m., Monday

through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant M. Day, Waterways

Oversight Branch, Coast Guard

Activities New York, (718) 354–4012.

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 (CGD01–00–227),

indicate the specific section of this

document to which each comment

applies, and give the reason for each

comment. Please submit all comments

and related material in an unbound

format, no larger than 81⁄2 by 11 inches,

suitable for copying. If you would like

to know they reached us, 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.

Public Meeting

We do not now plan to hold a public

meeting. But you may submit a request

for a meeting by writing to the

Waterways Oversight Branch at the

address under ADDRESSES explaining

why one would be beneficial. If we

determine that one would aid this

rulemaking, we will hold one at a time

and place announced by a later notice

in the Federal Register.

Background and Purpose

The Coast Guard proposes to establish

twelve permanent safety zones, in eight

separate locations, that will be activated

for fireworks displays occurring at the

same location and time on an annual

basis. The eight proposed locations are

north of Bar Beach in Hempstead

Harbor; Pier 14, Manhattan, in the East

River; Highlands, NJ on Sandy Hook

Bay; Kingston, NY on Rondout Creek;

Tottenville, Staten Island, in the Arthur

Kill; Red Bank, NJ on the Navesink

River; the Burlington Bay Breakwater,

VT; and Rensselaer, NY on the Hudson

River. There are four annual fireworks

displays at the proposed location off

Pier 14 in the East River and two annual

displays at the proposed location in

Hempstead Harbor. Establishing

permanent safety zones by notice and

comment rulemaking gives the public

the opportunity to comment on the

proposed zones, provides better notice

than promulgating temporary rules

annually, and decreases the amount of

annual paperwork required for these

events. The Coast Guard has received no

prior notice of any impact caused by the

previous events.

Discussion of Proposed Rule

The Coast Guard proposes to revise 33

CFR 165.161 by adding six new

locations, revising the effective dates for

two current locations, and removing

three locations from the section because

they are now permanent fireworks

safety zones regulated by 33 CFR

165.168. The two current locations with

revised effective dates are Highlands,

NJ, and Kingston, NY. The three

locations that are being removed are

Glen Cove, NY, Yonkers, NY, and

Elizabeth, NJ.

The proposed sizes of these safety

zones were determined using National

Fire Protection Association and New

York City Fire Department standards for

6–12 inch mortars fired from a barge,

combined with the Coast Guard’s

knowledge of tide and current

conditions in these areas. The twelve

proposed safety zones are:

North Hempstead, NY Fireworks,

Hempstead Harbor

The proposed safety zone includes all

waters of Hempstead Harbor within a

300-yard radius of the fireworks barge in

approximate position 40°49′54′′N

073°39′14′′W (NAD 1983), about 360

yards north of Bar Beach, Hempstead

Harbor. There are two annual fireworks

displays in Hempstead Harbor. Aside

from being on different days, the

proposed safety zone for each display is

the same. The proposed safety zone is

effective annually from 8 p.m. (e.s.t.) to

1 a.m. (e.s.t.) on the Friday before

Memorial Day and the Saturday after

Labor Day. If the event is cancelled due

to inclement weather, then this

proposed safety zone is effective from 8

p.m. (e.s.t.) until 1 a.m. (e.s.t.) on the

Saturday before Memorial Day and the

Sunday after Labor Day. The proposed

safety zone closes a portion of southern

Hempstead Harbor and would prevent

marine traffic from transiting a portion

of this area. Vessel traffic will be able

to transit through the northern 6,000

yards of Hempstead Harbor as this

location is in the extreme southern end

of Hempstead Harbor. It is needed to

protect boaters from the hazards

associated with fireworks launched

from a barge in the area.