USCG responds to new Massachusetts oil spill response legislation with ANPRM covering additional safety measures

In a non-nonsense response to the Massachusetts new Oil Spill Response law enacted on 4 August 2004, (see Weekly NEWS No. 40 of 1 October 2004) the U.S. Coast Guard (U.S.C.G.) has issued an Advance Notice of Proposed Rulemaking (ANPRM) 69 Fed. Reg. 62427 regarding possible additional navigation safety measures within Buzzards Bay including tug escorts, use of Recommended Routes, AIS, and maybe pilotage. The US Coast Guard encourages public participation and feedback to this rulemaking process, which aims to assess the efficiency of the Massachusetts law provisions.

The U.S.C.G. ANPRM goes further when it also states that "several provisions of the Massachusetts Act touch categories of regulation reserved for the Federal Government and are pre-empted according to the rulings in Locke and Ray" (i.e. INTERTANKO vs Washington State case). As an example, Section 17 of the Massachusetts Act purports to impose a state pilotage requirement on certain vessels engaged in the coastwise trade. It is the view of the Coast Guard that this provision is void by operation of the law pursuant to 46 U.S.C. § 8501. Coast Guard regulations promulgated as a result of this ANPRM may also address pilotage.

Because of the pre-emption issues described above, the Coast Guard will conduct a Federalism analysis for any rules promulgated as a result of this notice. One indication of the U.S. Coast Guard asserting federal jurisdiction over commercial traffic in coastal waterways, was the US Coast Guard Commandant’s letter (click here to view) asking Massachusetts Governor Mitt Romney not to enforce the new Massachusetts Oil Spill Act.

As part of the ANPRM process, the USCG will hold two public meetings in New Bedford (16 November 2004) and in Buzzards Bay (17 November 2004). INTERTANKO is considering attending and testifying. The deadline for written comments to the ANPRM has been set for 27 December 2004.

Contact: Dragos Rauta