E6-17042. Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of interpretation.

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 [phone].

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 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.