E7-6540. Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of interpretation; response to comments received.

SUMMARY:

On October 13, 2006, the Coast Guard published 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 to pay or deny claims under the Oil Pollution Act of 1990. We received two comments in response to the notice, neither of which effects the interpretation.

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:

On October 13, 2006, we published a notice of interpretation entitled “Use of Reports of Marine Casualty in Claims Process by National Pollution Funds Center” (71 FR 60553). The notice provided for a comment period ending November 13, 2006.

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 make findings of fact that were included in a Marine Casualty Investigation Report (MCIR).

As stated in the notice of interpretation, 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 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 from those included in such reports of investigation.

Discussion of Comments

Two commentors submitted comments to the Coast Guard during the comment period (71 FR 60553). Both commentors stated that the MCIRs are essentially field reports compiled under difficult circumstances by personnel of varying degrees of experience and knowledge. Commentors cautioned that the use of MCIRs should be undertaken with appropriate awareness of their possible shortcomings. The Coast Guard has stated that the NPFC is not bound by reports of investigation. Accordingly, the Director of the NPFC can reach not only different facts but also different opinions or conclusions than the opinions and conclusions in the MCIR.

A second comment noted that consideration of MCIRs by the NPFC will ultimately lead to their inclusion in the administrative record. The commentor reasoned that if a claim were appealed in a federal district court under the Administrative Procedure Act (APA), those documents would be introduced into civil proceedings as part of the administrative record in violation of 46 U.S.C. 6308.

The scope of APA judicial review is in 5 U.S.C. 706 and expressly provides that the court shall review the whole record. While the exclusion under 46 U.S.C. 6308 refers in general to civil proceedings, Congress did not intend to prevent proper judicial review under the APA and therefore 46 U.S.C. 6308 does not trump the APA record requirement.

For the reasons discussed above, these comments do not effect our interpretation as published in the Federal Register on October 13, 2006 (71 FR 60553).

Dated: April 3, 2007.

William D. Baumgartner,

U.S. Coast Guard Judge Advocate General.