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The applications approved were those of (1) LOOP, Inc., a consortium of six oil companies: Ashland Oil, Inc., Marathon Oil Company, Murphy Oil Corporation, Shell Oil Company, Texaco, Inc., and Union Oil Company of California; and (2) Seadock, Inc., a joint venture backed by Cities Services Company, Continental Oil Company, Crown-Central Petroleum Corporation, Dow Chemical Company, Exxon Corporation, Gulf Oil Corporation, Mobil Oil Corporation, Phillips Petroleum Company, and Shell Oil Company. LOOP applied to build a port 18 miles south of Grand Isle, Louisiana, and Seadock to build a port 26 miles offshore, south of Freeport, Texas. Both ports were designed to handle oil from supertankers and to be built in water over 100 feet deep. When completed, their planned combined capacity was to be 7.4 million barrels of oil per day.
Secretary Coleman announced that, in line with recommendations from the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, and other agencies, the licenses would contain environmental conditions, including controls on any project changes and construction of pipelines, measures to minimize harm to wildlife in wetlands, and environmental monitoring throughout the project's life. Secretary Coleman also stated that he had substantially followed the antitrust advice of the Attorney General and the Federal Trade Commission in approving the applications, and that the license conditions and continual monitoring would help to insure nondiscriminatory access to all shippers and prevent any adverse effect on competition, restraint of trade, or tendency toward monopoly.
Secretary Coleman established the following conditions for the licenses:
(1) The ports must provide open and nondiscriminatory access to all shippers, both owners and nonowners. The Coast Guard will consult with the Justice Department on conditions of service and limitations imposed by the licensee on vessels and cargoes. The operations manual for the ports will include a proration policy when the oil being delivered exceeds a port's capacity.
(2) The ports can be ordered to increase their capacity to the limits set in the application. In addition, the Secretary can compel the ports to expand an additional 25 percent in a situation where excess demand of shippers is demonstrated and the expansion is "technically practical, economically reasonable, financially feasible and environmentally sound."
In addition, policies for prorating oil volume and conditions of service will require Department of Transportation (DOT) review and approval. Any shareholder or group can authorize the port corporation to expand the facilities. The license also will prohibit shareholders from preferential purchases of shares from other owners, and shares must be made available to outside shippers when a port expands and new financing is required. Moreover,
shareholders at three-year intervals will readjust their interest so each owner's share equals his average volume.
(3) Effective rate regulation of deepwater ports is necessary to make sure their economic efficiencies are passed on to the consumer. Secretary Coleman said, however, that Congress explicitly vested the power in the Interstate Commerce Commission (ICC) and he could not properly duplicate that authority in the licensing process. DOT will work closely with the ICC and the Department of Justice to bring about the necessary changes in rate-making rules which will give the consumer a better break, the Secretary said.
(4) DOT will exercise some control over onshore pipelines that connect the port with the existing inland pipeline distribution network. The licenses will provide for review by DOT of joint arrangements between the ports and commonly owned or controlled pipelines. Conditions of service must be consistent with those of the port. In addition, nonowner shippers must be provided with storage for oil until it can enter connecting pipelines and the facilities for delivery of the oil to the connecting pipelines.
Dept. of Transportation News Release (DOT 94-76), Dec. 17, 1976. For the text of the Secretary's decision, see Dept. of Transportation, U.S.A., The Secretary's Decision on the Deepwater Port License Application of LOOP, Inc., Dec. 17, 1976, and The Secretary's Decision on the Deepwater Port License Application of Seadock, Inc., Dec. 17, 1976. On Jan. 18, 1977, the Dept. of Transportation announced that Secretary Coleman had signed the licenses to permit LOOP and Seadock to build deepwater ports in the Gulf of Mexico. Dept. of Transportation News Release (DOT 17-72), Jan. 18, 1977. Texts of the licenses, the transmittal letter from Secretary Coleman to the owners, and a section-by-section analysis of the licenses are available from the Office of Deepwater Ports, U.S. Dept. of Transportation, Washington, D.C. 20590.
At the fifth session of the Third U.N. Conference on the Law of the Sea, August 2-September 17, 1976, negotiations on marine pollution were devoted to specific problems, in particular, standard-setting in the territorial sea. U.S. objectives and the negotiations were described in the U.S. Delegation Report for the session as follows:
The principal objective was to strike a balance between the protection of the marine environment and facilitation of navigation and trade. In principle, part III of the Revised Single Negotiating Text does so. The specific objectives of the United States were: (1) to ensure that the coastal state has authority to establish and enforce standards for all vessels navigating in innocent passage in its territorial sea, (b) to strengthen the new port state enforcement regime, (c) to preserve the careful balance between coastal state and navigational rights in the economic zone, and (d) to extend the flag state obligation to include deep sea mining vessels. Additionally, we had prepared a number of clarifying amendments to the vessel pollution and other articles.
. . . At the outset of the session, Chairman Yankov (Bulgaria)
identified the issue of standard-setting in the territorial sea as the major outstanding issue. The United States and several other states proposed deleting restrictions not to hamper innocent passage. All of the maritime states and a number of developing countries with maritime aspirations, opposed this position. Chairman Yankov indicated that the issue was not resolved and that further discussions were needed.
Informal committee and small group negotiating sessions were held continuously during the session to discuss other aspects of vessel source pollution. Large numbers of amendments were suggested, most of which would upset the delicate balance between coastal and port state powers to protect the environment and the rights of navigation. With few exceptions, the amendments received little support and the existing text was confirmed.
A new paragraph relating to coastal state rights to establish standards in special areas of the economic zone was negotiated and generally agreed. The text clarifies the procedure for establishing such standards and assigns a major role to the competent international organization (Intergovernmental Maritime Consultative Organization). . . .
U.S. Delegation Report, 3d U.N. Conference on the Law of the Sea, 5th Sess., Aug. 2-Sept. 17, 1976, pp. 15/16, Dept. of State File D/LOS. For the RSNT produced at the 4th Sess., see U.N. Doc. A/CONF.62/WP.8/Rev. 1/Part III, May 6, 1976, pp. 5-23.
Marine Vessel Pollution
On December 13, 1976, the U.S. Coast Guard issued revised regulations designed to reduce pollution from seagoing U.S. tank vessels engaged in foreign trade and foreign tank vessels carrying oil into U.S. waters. The new regulations constitute part 157 of title 33, Code of Federal Regulations, with an effective date of April 1, 1977, except for certain existing vessels. The regulations extend pollution prevention regulations previously in effect for U.S. tank vessels in domestic trade.
The revised rules require new and existing foreign vessels entering U.S. ports to meet the same design and equipment requirements as new and existing U.S. tank vessels, including provisions for segregated ballast on new tankers over 70,000 deadweight tons.
The operating requirements for foreign vessels and U.S. vessels continue to differ. Regulations governing discharge of oily mixtures from U.S. vessels on the high seas were not applied to foreign ships on the high seas because of U.S. jurisdictional limits.
There is a segregated ballast requirement for new foreign and U.S. vessels, designed to reduce the number of oil spills from tanker collisions and groundings. A regulation for new vessels requires slop tanks for consolidating waste from tank washings, oil residues, and dirty ballast residues, and tanks for collecting oil residue.
New vessels must have improved ability to withstand flooding damage, without the vessels becoming a total loss. Existing tank vessels will be required by 1980 to be refitted with slop tanks, residue tanks, oil discharge monitoring systems, and oily water separating equipment.
Fed. Reg., Vol. 41, No. 240, Dec. 13, 1976, pp. 54177-54180. See also Dept. of Transportation, U.S. Coast Guard News Release No. 85-76, Dec. 13, 1976.
Admiral R. A. Ratti, Chief Counsel of the U.S. Coast Guard, Department of Transportation, in a legal opinion dated January 26, 1976, stated that (1) hot pursuit may be initiated for pollution incidents detected in the contiguous zone of the United States, and (2) in such cases section 211(m) of the Federal Water Pollution Control Act of 1952 (FWPCA) (33 U.S.C. 1151 et. seq.) provides authority to board foreign vessels and to detain them for purposes of inspection but there is no authority to seize a vessel for violation of the Act. In addition, he said, the master of a vessel may be arrested for failure to report the discharge of oil into the waters of the contiguous zone. The following are excerpts from Admiral Ratti's opinion:
Article 23 of the 1958 Geneva Convention on the High Seas[TIAS 5200; 13 UST 2312] provides, "The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State." This article further provides that the pursuit of a vessel within the contiguous zone may only be undertaken if there has been a violation of rights for the protection of which a contiguous zone as defined in article 24 of the Convention on the Territorial Sea and the Contiguous Zone [TIAS 5639; 15 UST 1606] was established. .
It is apparent from the legislative history of the FWPCA that Congress, in defining “contiguous zone" for the purpose of section 311 of the FWPCA as "the entire zone established or to be established by the United States under article 24 of the Convention on the Territorial Sea and the Contiguous Zone," [section 311 (a) (9)] intended to define both the purpose and the geographic limits of the zone. By defining "contiguous zone" as an article 24 zone, Congress intended to provide for the exercise of all rights within this zone permitted by the Conventions. That being so, the authority for hot pursuit of foreign vessels for violation of the FWPCA within the contiguous zone is expressly provided by article 23 of the 1958 Geneva Convention on the High Seas.
The contiguous zone referred to in the FWPCA is to be distinguished from the pollution zones established by the 1954 Convention for the Prevention of Pollution of the Sea by Oil [TIAS 4900; 12 UST 2989]. The former zone has been declared subject to the enforcement of certain domestic laws of the United States, as permitted by the Convention on the Territorial Sea and the Contiguous Zone. The latter zones are areas, established by international agreement, in which certain discharges of oil by vessels subject to the convention are prohibited. The contiguous zone referred to in the FWPCA is in no way inconsistent with the 1954 Treaty.
The rules for hot pursuit for FWPCA violations are the same as those followed for law enforcement cases in general, and in particular those that have been formalized for fisheries cases. In section 311(m) of the FWPCA, Congress has provided authority for boarding and inspection of foreign vessels upon the waters of the contiguous zone. Implicit in the authority to board and investigate is the authority to detain a vessel for the purpose of investigating for violations. However, there is no authority to seize foreign vessels in the contiguous zone for violation of the FWPCA. Seizure of a vessel under authority of 14 U.S.C. 89 is authorized only if❝it should appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty." Section 311 (b) (6) provides that the owner or operator of the vessel shall be liable for the civil penalty. There is no provision for liability on the part of the vessel, the only action authorized with regard to the vessel is to request withholding of its clearance until a bond or other surety is filed. The Attorney General has stated in a previous_opinion that denial of clearance does not constitute seizure. Therefore, since the vessel is not made liable for the civil penalty, no seizure is authorized by 14 U.S.C. 89.
Section 311(m) also authorizes arrest, with or without a warrant, of any person who violates the provisions of section 311 or any regulations issued thereunder in the presence or view of the arresting officer, and the execution of "any warrant or other process issued by an officer or court of competent jurisdiction." These provisions provide authority for the arrest of a master of a foreign vessel as the "person in charge of a vessel," for violation of section 311 (b) (5), which requires that the person in charge of a vessel, as soon as he has knowledge of any discharge of oil from such vessel in violation of section 311 (b) (3), notify the appropriate agency of the United States Government (designated as the Coast Guard in 33 CFR 153.100) of such discharge. However, it is not the occurrence of a discharge in violation of section 311 (b)(3), but only the failure to report that discharge, which subjects the master of a vessel to arrest.
A problem raised by the justification of the enforcement of pollution laws in the contiguous zone, as presented by the legislative reports, is the reconciliation of the language of article 24 (1)(b) of the Convention on the Territorial Sea and Contiguous Zone with the provisions of the FWPCA. On its face, article 24 does not