[Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X94-11227]
[[Page Unknown]]
[Federal Register: December 27, 1994]
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33 CFR Parts 1 and 153
[CGD 91-225]
Delegations of Authority Under the Federal Water Pollution
Control Act, As Amended by the Oil Pollution Act of 1990, Under the Oil
Pollution Act of 1990, and Under the Comprehensive Environmental
Response, Compensation, and Liability Act, As Amended by the Superfund
Amendments and Reauthorization Act of 1986
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is redesignating and revising certain
regulations relating to delegation of authority. The changes
incorporate amendments to the Federal Water Pollution Control Act
(FWPCA) made by the Oil Pollution Act of 1990 (OPA 90); provisions
added to the United States Code by OPA 90; and certain provisions of
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (SARA). These statutes relate to discharges
and releases of oil, hazardous substances, pollutants, and
contaminants. The changes reflect, in large part, additional
responsibilities assigned to Coast Guard On-Scene Coordinators to
direct responses to spills of oil and hazardous substances.
EFFECTIVE DATE: December 27, 1994.
FOR FURTHER INFORMATION CONTACT: CDR K. W. Keane, Chief, Pollution
Response Branch, G-MEP-2, (202) 267-2611.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal person involved in drafting this document is Ms.
Jacqueline Sullivan, Project Manager, OPA 90 Staff.
Background and Purpose
The Oil Pollution Act of 1990 (OPA 90) [Pub. L. 101-380] amended
several provisions of section 311 of the Federal Water Pollution
Control Act (FWPCA) [33 U.S.C. 1321] relating to the prevention of and
response to discharges of oil and hazardous substances. Several new
functions under both OPA 90 and the amended section 311 of the FWPCA
were vested in the President. Others were vested in the Secretary of
the department in which the Coast Guard is operating. Executive Order
12777 [3 CFR, 1991 Comp., p. 351, 56 FR 54757, October 22, 1991]
assigned many new functions and reassigned many preexisting functions
to the Secretary of Transportation, and the Secretary reassigned many
new and preexisting functions to the Commandant of the Coast Guard [49
CFR 1.46 (l), (m), and (ll)].
The Commandant, by internal directive dated March 19, 1992,
redelegated most of the functions under OPA 90 and section 311 of the
FWPCA. Copies of the Commandant's redelegation memorandum are available
by calling G-MEP at the telephone number listed under FOR FURTHER
INFORMATION CONTACT. The amendments to 33 CFR subpart 1.01 in this
rulemaking reflect much of that redelegation.
These rules also delegate authority to Coast Guard officials to
carry out certain functions under CERCLA, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C. 9601, et
seq., Pub. L. 96-510, 94 Stat. 2767, as amended by Pub. L. 99-499, 100
Stat. 1613] relating to the release of hazardous substances. Executive
Order 12580 delegated the President's functions under CERCLA, as
amended, to the heads of various Executive Branch departments and
agencies, including the Secretary of Transportation [3 CFR, 1987 Comp.,
p. 193, 52 FR 2923, January 29, 1987]. The Secretary of Transportation
has redelegated certain functions to the Commandant of the Coast Guard
[49 CFR 1.46 (ff) and (gg)]. This rule further delegates authority to
designated Coast Guard officials under CERCLA relating to the
enforcement of financial- responsibility requirements, including the
assessment of civil penalties.
Discussion of Rules
The revisions, removals, and additions to the regulations in 33 CFR
parts 1 and 153 are organized in the following manner:
Section 1.01-30 is revised to delete reference to the authority of
command, warrant, and petty officers of the Coast Guard to assist in
discharging the duties of the Captain of the Port. This authority is
now contained in a new Sec. 1.01-90 which reflects that the authority
exists to carry out the functions of District and Area Commanders, and
Officers in Charge, Marine Inspection in addition to Captains of the
Ports.
Section 1.01-70 is revised to reflect delegations of authority
under CERCLA to each District Commander to enforce requirements for
financial responsibility of vessels and the assessment of civil
penalties.
Section 1.01-80 is added to reflect delegations to Area and
District Commanders that are currently located in Sec. 153.105(a);
delegations of authority to the Coast Guard's Chief, Office of Marine
Safety, Security, and Environmental Protection, that are currently
located in Sec. 153.105(b); and delegations to On-Scene Coordinators
that are currently located in Sec. 153.105(c). The text of Sec. 1.01-80
also includes delegations of functions under provisions of OPA 90, such
as new authority for assessment of civil penalties provided in section
4303 of OPA 90 [33 U.S.C. 2716a], and amendments to section 311 of the
FWPCA regarding additional authority for inspection and entry provided
in section 4305 of OPA 90 [33 U.S.C. 1321(m)].
Section 1.01-85 is added by redesignating the delegations of
authority currently found in 153.107 and revising them with respect to
officers under the staff and command of individuals delegated authority
in Sec. 1.01-80.
Section 1.01-90 is added to allow authorization of any
commissioned, warrant, or petty officer of the U.S. Coast Guard to
carry out functions delegated to superior officials under Secs. 1.01-1,
1.01-20, 1.01-30, 1.01-70, and 1.01-80, or redelegated under Sec. 1.01-
85, within the jurisdiction of the cognizant official.
The authority cite for subpart 1.07 has been revised to restore an
inadvertent deletion during a prior rulemaking.
Section 153.105 is revised to reflect the administrative move of
FWPCA delegations of authority to the new Sec. 1.01-80.
Section 153.107 is removed; and the text, revised to cite
Sec. 1.01-80 authorities, is included in new Sec. 1.01-85.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) [44 FR 11304
(February 26, 1979)]. The Coast Guard expects the economic impact of
this rule to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary. This rulemaking expedites the Coast Guard's ability to
respond to discharges of oil and hazardous substances and thereby
limits the potential effect of those discharges.
Because the changes to its regulations relate to agency management
and organization, the Coast Guard finds that under the Administrative
Procedure Act (APA) [5 U.S.C. 553(a)(2)] notice and the opportunity for
public comment are unnecessary. Further, since the regulations are
being revised to accurately reflect statutory changes, the Coast Guard
finds good cause under the APA [5 U.S.C. 553(d)(3)] for the final rule
to be effective on the date of publication in the Federal Register.
Small Entities
Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the
Coast Guard must consider the economic impact on small entities of a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000. This rule does not require a general
notice of proposed rulemaking and, therefore, is exempt from the
requirements of the Act. Although this rule is exempt, the Coast Guard
has reviewed it for potential impact on small entities.
This rule will have no adverse impacts, economic or other. It
improves the Coast Guard's ability to respond to discharges of oil and
hazardous substances. Therefore, the Coast Guard's position is that
this rule will not have a significant economic impact on a substantial
number of small entities.
Collection of Information
This rule contains no collection-of-information requirements under
the Paperwork Reduction Act [44 U.S.C. 3501 et seq.].
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
rule and concluded that, under paragraph 2.B.2 of Commandant
Instruction M16475.1B, this rule is categorically excluded from further
environmental documentation. This rule will only affect internal agency
procedure. A ``Categorical Exclusion Determination'' is available in
the docket for inspection or copying at the Office of the Executive
Secretary, Marine Safety Council (G-LRA, 3406) [CGD 91-225], U.S. Coast
Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001
between 8 a.m. and 3 p.m., Monday through Friday, except Federal
holidays. The telephone number is (202) 267-1477.
List of Subjects
33 CFR Part 1
Administrative practice and procedure, Authority delegations
(Government agencies)2, Freedom of information, Penalties.
33 CFR Part 153
Hazardous substances, Oil pollution, Reporting and recordkeeping
requirements, Water pollution control.
For the reasons set out in the preamble, the Coast Guard amends 33
CFR parts 1 and 153 as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for subpart 1.01 is revised to read as
follows:
Authority: 14 U.S.C. 633; 33 U.S.C. 401, 491, 525, 1321, 2716,
and 2716a; 42 U.S.C. 9615; 49 U.S.C. 322; 49 CFR 1.45(b), 1.46;
section 1.01-70 also issued under the authority of E.O. 12580, 3
C.F.R., 1987 Comp., p. 193; and sections 1.01-80 and 1.01-85 also
issued under the authority of E.O. 12777, 3 C.F.R., 1991 Comp., p.
351.
Sec. 1.01-30 [Amended]
2. Section 1.01-30 is revised to read as follows:
Captains of the Port and their representatives enforce within their
respective areas port safety and security and marine environmental
protection regulations, including, without limitation, regulations for
the protection and security of vessels, harbors, and waterfront
facilities; anchorages; security zones; safety zones; regulated
navigation areas; deepwater ports; water pollution; and ports and
waterways safety.
3. Section 1.01-70 is amended by revising paragraph (d)(2) and
adding paragraph (d)(3) to read as follows:
Sec. 1.01-70 CERCLA delegations.
* * * * *
(d) * * *
(2) Authority, pursuant to section 109 of CERCLA, to assess
penalties relating to violations of sections 103 (a) and (b) pertaining
to notification requirements, section 108 pertaining to financial
responsibility for release of hazardous substances from vessels, and
section 122 pertaining to administrative orders and consent decrees.
(3) Authority, pursuant to section 108 of CERCLA, to deny entry to
any port or place in the United States or to the navigable waters of
the United States and detain at any port or place in the United States
any vessel subject to section 108(a) of CERCLA that, upon request, does
not provide evidence of financial responsibility.
* * * * *
4. Section 1.01-80 is added to read as follows:
Sec. 1.01-80 FWPCA and OPA 90 delegations.
(a) This section delegates authority to implement provisions of
section 311 of the Federal Water Pollution Control Act (FWPCA), as
amended [33 U.S.C. 1321] and provisions of the Oil Pollution Act of
1990 (OPA 90). The definitions in subsection (a) of section 311 of the
FWPCA and section 1001 of OPA 90 [33 U.S.C. 2701] apply.
(b) The Chief, Office of Marine Safety, Security, and Environmental
Protection, is delegated authority to require the owner or operator of
a facility to establish and maintain such records, make such reports,
install, use, and maintain such monitoring equipment and methods, and
provide such other information as may be required to carry out the
objectives of section 311 of the FWPCA [33 U.S.C. 1321].
(c) Each District and Area Commander is delegated authority within
the Commander's assigned district or area to--
(1) Deny entry to any place in the United States or to the
navigable waters of the United States, and to detain at any place in
the United States, any vessel subject to section 1016 of OPA 90 [33
U.S.C. 2716] that, upon request, does not provide evidence of financial
responsibility;
(2) Seize and, through the Chief Counsel, seek forfeiture to the
United States of any vessel subject to the requirements of section 1016
of OPA 90 [33 U.S.C. 2716] that is found in the navigable waters of the
United States without the necessary evidence of financial
responsibility;
(3) Assess any class I civil penalty under subsection (b) of
section 311 of the FWPCA [33 U.S.C. 1321], in accordance with the
procedures in subpart 1.07 of this chapter;
(4) Assess any civil penalty under section 4303 of OPA 90 [33
U.S.C. 2716a] in accordance with the procedures in subpart 1.07 of this
chapter;
(5) Board and inspect any vessel upon the navigable waters of the
United States or the waters of the contiguous zone, except for public
vessels; with or without warrant, arrest any person who, in the
Commander's presence or view, violates a provision of section 311 of
the FWPCA [33 U.S.C. 1321] or any regulation issued thereunder; and
execute any warrant or other process issued by an officer or court of
competent jurisdiction, as prescribed in section 311(m)(1) of the FWPCA
[33 U.S.C. 1321(m)(1)];
(6) Enter and inspect any facility in the coastal zone at
reasonable times; have access to and copy any records; take samples;
inspect monitoring equipment required by section 311(m)(2)(A) of the
FWPCA [33 U.S.C. 1321(m)(2)(A)]; with or without warrant, arrest any
person who, in the Commander's presence or view, violates a provision
of section 311 of the FWPCA [33 U.S.C. 1321] or any regulation issued
thereunder; and execute any warrant or other process issued by an
officer or court of competent jurisdiction, as prescribed in section
311(m)(2) of the FWPCA [33 U.S.C. 1321(m)(2)(A)]; and
(7) Determine for purposes of section 311(b)(12) of the FWPCA [33
U.S.C. 1321(b)(12)]--
(i) Whether reasonable cause exists to believe that an owner,
operator, or person in charge may be subject to a civil penalty under
section 311(b) of the FWPCA [33 U.S.C. 1321(b)]; and
(ii) Whether a filed bond or other surety is satisfactory.
(d) Each Coast Guard official predesignated as the On-Scene
Coordinator by the applicable Regional Contingency Plan is delegated
authority pursuant to section 311(c) of the FWPCA [33 U.S.C. 1321(c)],
subject to paragraph (e) of this section, in accordance with the
National Contingency Plan and any appropriate Area Contingency Plan, to
ensure the effective and immediate removal of a discharge and
mitigation or prevention of a substantial threat of a discharge of oil
or a hazardous substance by--
(1) Removing or arranging for the removal of a discharge and
mitigating or preventing an imminent and substantial threat of a
discharge at any time;
(2) Directing or monitoring all Federal, State, and private actions
to remove a discharge, including issuance of orders;
(3) Determining, pursuant to section 311(c) of the FWPCA [33 U.S.C.
1321(c)], whether a discharge or a substantial threat of a discharge of
oil or a hazardous substance from a vessel, offshore facility, or
onshore facility is of such a size or character as to be a substantial
threat to the public health or welfare of the United States (including,
but not limited to fish, shellfish, wildlife, other natural resources,
and the public and private beaches and shorelines of the United
States); and, if it is, directing all Federal, State, and private
actions to remove the discharge or to mitigate or prevent the
threatened discharge;
(4) Determining, pursuant to section 311(e) of the FWPCA [33 U.S.C.
1321(e)], that there may be an imminent and substantial threat to the
public health and welfare of the United States, and, if there is, may--
(i) Determine an imminent and substantial threat as a basis for
recommending referral for judicial relief; or
(ii) Act pursuant to section 311(e)(1)(B) of the FWPCA [33 U.S.C.
1321(e)(1)(B)], including the issuance of orders; and
(5) Acting to mitigate the damage to the public health or welfare
caused by a discharge of oil or a hazardous substance.
(e) The authority described in paragraph (d) of this section does
not include the authority to--
(1) Remove or destroy a vessel; or
(2) Take any other action that constitutes intervention under the
Intervention on the High Seas Act [33 U.S.C. 1471, et seq.] or other
applicable laws. For purposes of this section, ``intervention'' means
any detrimental action taken against the interest of a vessel or its
cargo without the consent of the vessel's owner or operator.
5. Section 1.01-85 is added to read as follows:
Sec. 1.01-85 Redelegation.
Except as provided in Sec. 1.01-80(e)(1) and (2), each Coast Guard
officer to whom authority is granted in Sec. 1.01-80 may redelegate and
authorize successive redelegations of that authority within the command
under the officer's jurisdiction, or to members of the officer's staff.
6. Section 1.01-90 is added to read as follows:
Sec. 1.01-90 Commissioned, warrant, and petty officers.
Any commissioned, warrant, or petty officer of the United States
Coast Guard may be authorized to carry out the functions delegated to
superior officials under Secs. 1.01-1, 1.01-20, 1.01-30, 1.01-70, and
1.07-80, or redelegated under Sec. 1.01-85, within the jurisdiction of
the cognizant official. They will do so under the supervision and
general direction of that official.
7. The authority citation for subpart 1.07 is revised to read as
follows:
Authority: 14 U.S.C. 633; Sec. 6079(d), Pub. L. 100-690, 102
Stat. 4181; 49 CFR 1.46.