X94-11227. 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, ...  

  • [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.
      
    
    
    

Document Information

Published:
12/27/1994
Entry Type:
Uncategorized Document
Action:
Final rule.
Document Number:
X94-11227
Dates:
December 27, 1994.
Pages:
0-0 (1 pages)
Docket Numbers:
Federal Register: December 27, 1994, CGD 91-225
CFR: (5)
33 CFR 1.01-30
33 CFR 1.01-70
33 CFR 1.01-80
33 CFR 1.01-85
33 CFR 1.01-90