Annual Certification of Prince William Sound Regional Citizens' Advisory Council

DEPARTMENT OF TRANSPORTATION

Coast Guard

[USCG-1998-4271]

Annual Certification of Prince William Sound Regional Citizens'

Advisory Council

AGENCY: Coast Guard, DOT.

ACTION: Notice of Recertification.

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SUMMARY: Under the Oil Terminal and Oil Tanker Environmental Oversight

Act of 1990, the Coast Guard may certify on an annual basis, an

alternative voluntary advisory group in lieu of a regional citizens'

advisory council for Prince William Sound, Alaska. This certification

allows the advisory group to monitor the activities of terminal

facilities and crude oil tankers under the Prince William Sound Program

established by the statute. The purpose of this notice is to inform the

public that the Coast Guard has recertified the alternative voluntary

advisory group for Prince William Sound, Alaska. The period of

certification is being administratively adjusted to allow realignment

of the recertification process with the annual budget year of the

Prince William Sound Regional Citizens' Advisory Council (PWSRCAC). The

effective period of this recertification is from June 1, 1998 to

January 30, 2000.

FOR FURTHER INFORMATION CONTACT: For general information regarding the

PWSRCAC contact LT Pittman, Marine Safety and Environmental Protection

Directorate, Office of Response, (G-MOR-1), (202 267-0426. For

questions on viewing materials submitted to the docket, contact Dorothy

Walker, Chief, Dockets, Department of Transportation, telephone 202-

366-9329.

SUPPLEMENTARY INFORMATION: As part of the Oil Pollution Act of 1990,

Congress passed the Oil Terminal and Oil Tanker Environmental Oversight

and Monitoring Act of 1990 (the Act), Section 5002, to foster the long-

term partnership among industry, government, and local communities in

overseeing compliance with the environmental concerns in the operation

of terminal facilities and crude-oil tankers. Subsection 5002(o)

permits an alternative voluntary advisory group to represent the

communities and interests in the vicinity of the terminal facilities in

the Prince William Sound, in lieu of a council of the type specified in

subsection 5002(d), if certain conditions are met.

The Act requires that the group enter into a contract to ensure

annual funding, and that it receive annual certification by the

President to the effect that it fosters the general goals and purposes

of the Act, and is broadly representative of the communities and

interests in the vicinity of the terminal facilities and Prince William

Sound. Accordingly, in 1991, the President granted certification to the

PWSRCAC. The authority to certify alternative advisory groups was

subsequently delegated to the Commandant of the Coast Guard and

redelegated to the Assistant Commandant for Marine Safety and

Environmental Protection.

On August 7, 1998, the Coast Guard announced in the Federal

Register the availability of the application for recertification that

it received from the PWSRCAC and requested comments (63 FR 42475). It

received twenty-one comments to the docket.

Discussion of Comments

One commenter expresses concern about the ``jurisdiction limits of

the PWSRCAC''. Contrary to a ``Council'' that would have operating

limits clearly delineated, the alternative voluntary advisory group is

limited to certain regions or terminal facilities but not in the scope

of its allowable actions. This stems from the wording of the statute

itself. The Act does not preclude actions often termed ``outside of the

intent'' of OPA 90 as long as the voluntary alternative group meets the

recertification threshold for alternative voluntary advisory groups, as

follows: ``fosters the general goals and purposes of this section and

is broadly representative * * *.'' Due to the fact that the action in

question (evaluation of a proposed pipeline) appears ``representative

of the communities and

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interests in the vicinity of the terminal facilities and Prince William

Sound,'' the action is not outside of the scope of the Act.

Three commenters express concern regarding individual staff and

board members representing their personal opinions as those of PWSRCAC

during official meetings with other organizations. This is an internal

issue for the PWSRCAC. The Coast Guard identified one specific instance

of a member of the PWSRCAC presenting a personal position as that of

the PWSRCAC. The Executive Director of the PWSRCAC personally visited

the mayor of the city from which the representative came; the city

appointed a different representative for the next term. After this

conflict occurred, the PWSRCAC revised the code of conduct. This

revised code of conduct was included in this year's recertification

application. the Coast Guard agrees that corrective actions should be

reported to the organizations that received a misrepresentation of the

PWSRCAC's position in order to maintain trust and open communications.

These commenters recommend the Coast Guard require a policy and

controls audit. In the recertification letter, we have asked the

PWSRCAC to conduct an internal audit based upon its rules for self-

government. One commenter recommends the PWSRCAC continue to maintain

offices in two cities. Presently, the Coast Guard is unaware of any

plans to change this. One commenter suggests that the RCAC should not

be certified as an alternative voluntary advisory group but rather as a

``Council'' under the statute. Since most commenters mention many

examples how the PWSRCAC fosters the goals and purposes of the Act,

there is no basis to disallow certification for the purpose of

assigning a ``Council''. Several commenters indicate the PWSRCAC does

not act like more rigidly structured organizations such as government

agencies or oil companies. Congress did not intend to impose a highly

structured organization on voluntary alternative groups.

Three commenters indicate a desire to have greater accountability

of PWSRCAC members to their constituencies. Appointment of a

representative to the PWSRCAC under its by-laws and membership

provisions, together with subsequent endorsements of the localities or

interest groups they represent, constitutes a de facto acknowledgement

that they speak for a constituency. There is no mandate under OPA 90 to

further limit the alternative voluntary advisory group through a

detailed proscription of its functions.

Three commenters question the efficacy of alternative voluntary

advisory groups as models for other United States ports. The input to

the docket will be maintained for consideration during such a potential

study in the future.

The commenter challenges the residency status of one PWSRCAC member

representative. PWSRCAC indicates that the member representative in

question meets the Alaska State minimum standards for residency;

however, his residency status is under question by an Alaska court.

PWSRCAC indicated in follow up discussion with the Coast Guard the

intent to follow the decision by the Alaska court to set their future

actions regarding citizenship standards. The Coast Guard also has

concerns about the ability of a resident to adequately represent a

constituency when the resident is only present two months of the year.

The PWSRCAC has been asked to resolve this by the next recertification

period in the recertification letter. Two commenters express concern

that PWSRCAC members are sometimes uncooperative. The statute requires

the PWSRCAC to foster the goal and purpose of cooperation. The majority

of commenters underscored the cooperativeness and effectiveness of the

RCAC at representing constituent views. There is nothing in the statute

that requires the PWSRCAC to agree with industry or government

positions. The PWSRCAC is advisory in nature. The Coast Guard

determined that concern stems from the contrast between the way a

voluntary organization builds consensus vice a structured chain of

command. One commenter criticized the PWSRCAC's press conferences. The

Act includes language that encourages cooperation but in no way

precludes the use of press conference.

One commenter expresses concern regarding special interests of

members and their representatives. The diverse interests of members are

inherent in the process of obtaining appointed representatives.

One commenter states that advisory groups should not encroach on

technical compliance with regulations. This comment is directed at

comments, provided by PWSRCAC in their advisory role, related to the

implementation of regulations by the state and federal governments.

There is nothing in the Act that restricts advice provided under the

Act from covering regulatory compliance, especially regarding the topic

areas specifically identified under the Act. One commenter suggests

difficulty in staff communications. The Coast Guard's discussions with

commenters indicate that this problem pertains to one or two

individuals. The Coast Guard encourages the PWSRCAC to take steps to

resolve actions of specific individuals who may be undermining

communications by appropriate use of its self-governing process.

One commenter indicates a concern about efforts aimed at long-term

partnering. Based upon remarks of numerous commenters, overall actions

of the PWSRCAC appear to foster goal of building long-term

partnerships. The PWSRCAC clearly does not agree with all activities

undertaken by industry or government; however, the actions of the

PWSRCAC identified by virtually every commenter show a pattern of

partnering. Two commenters direct complaints at a lack of management

control over staff. Based upon Coast Guard calls to clarify this item

there seem to be two underlying concerns: draft documents that were

used in a litigation by a private citizen (the litigating citizen also

happens to be a representative of a member of the PWSRCAC's Board).

There is a circumstantial link but no direct evidence that the PWSRCAC

Staff members passed these draft documents. There were others on the

working group who could have also passed these draft documents. The

other concern was that a specific staff member was being uncooperative.

Therefore, encouragement of the PWSRCAC to conduct an internal audit is

merited. The problem is not widespread, as such it should be resolved

through the internal ``self-government'' process of the PWSRCAC.

One commenter expresses concern regarding alleged staff support of

legal efforts without Board consideration or approval. The reference

appears to refer to information provided to various parties involved in

an action that ultimately became litigation. The PWSRCAC appears to

have supported all parties requesting information, similar in nature to

a Freedom of Information Act response by the government. The Executive

Director indicated to the Coast Guard that such support actions were

approved by the Board in the session immediately prior to provision of

the information.

Two commenters complain of unfair or inadequate present funding.

The statements were not supported and the level of funding is a

contractual issue. One commenter indicates that RCAC should be held to

legal and regulatory mandates. The Act requires voluntary alternative

advisory groups to foster the goals and purposes of the Act. The Coast

Guard holds the RCAC to this standard.

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One commenter indicates that the advisory group process has not

evolved into effective partnerships. There is not sufficient evidence

to support such a claim; rather, the contrary is evidenced through the

many items identified annually by commenters and in the recertification

application that demonstrate efforts to enhance marine safety. In

letters expressing concern to the contrary there was indication of

sufficient partnering efforts to indicate the PWSRCAC fosters such a

goal.

One commenter believes that individual members should obtain

PWSRCAC approval before litigating. Based upon Coast Guard calls, the

litigation in question was a private matter between a representative of

a member of the PWSRCAC, not acting under the capacity of their PWSRCAC

office. There is no requirement in the Act that precludes members of

the PWSRCAC from initiating and conducting personal litigation against

any entity. The Act merely precludes others from litigation against

``Councils''.

One comment criticizes the PWSRCAC for not accepting outcomes

counter to those indicated in its advice. The Act does not preclude the

PWSRCAC from continuing to pursue initiatives that it believes to be in

its best interest. Two commenters offer specific examples for the

previous comment. As an alternative voluntary advisory group, the

PWSRCAC is not compelled to adopt a position that seems based only upon

science. It is responsible to represent its regional interests.

Twenty commenters to the docket recommend recertification. One

commenter does not oppose recertification but stops short of

recommending recertification.

Three additional positive letters were received after the docket

closed, two from members of Comgress and one from the Governor of

Alaska.

As a result of the above analysis, the following recommendations

were conveyed to the PWSRCAC in the recertification letter: that the

PWSRCAC revisits the Alaska residency issue as part of the ``self-

governing process''; that the PWSRCAC conducts an internal policy and

controls audit; that the PWSRCAC makes results of the previous two

items and any actions stemming from an audit available in the next

recertification application; and, that the PWSRCAC includes a copy of

the by-laws as part of the recertification package for the next

recertification and in subsequent years following changes to the by-

laws.

In light of the many positive comments received regarding the

PWSRCAC's performance during the past year and the above analysis, the

Coast Guard has determined that recertification in accordance with the

Act is appropriate. The Coast Guard has requested the PWSRCAC to

include documentation in its application next year indicating how each

of the issues has been addressed. Such documentation should include

recent correspondence from the PWSRCAC to the Coast Guard resolving

concerns.

RECERTIFICATION: By letter dated November ____, 1998, the Assistant

Commandant for Marine Safety and Environmental Protection certified

that the PWSRCAC qualifies as an alternative voluntary advisory group

under 33 U.S.C. 2732(o). This recertification terminates on January 30,

2000.

Dated: January 13, 1999.

R.C. North,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety

and Environmental Protection.

[FR Doc. 99-1880 Filed 1-26-99; 8:45 am]

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