have not been taken. Defendants' failure to so comply prevents the realization of the Act's goals in a timely and effective manner, prolongs the time during which polluters will be free of appropriate regulation thereunder and deprives the public of vital information concerning the sources and effects of, and means for preventing, marine pollution. 56. As set forth in paragraph 10 above, Plaintiff organizations have given special attention to providing information to and educating the public on the problem of marine pollution. Further, as set forth in paragraph 11 above, the members of Plaintiff organizations use and depend on the coastal and estuarine areas of the marine environment of the United States for recreational and educational activities, aesthetic enjoyment and scientific investigation. The quality of these areas directly affects the educational, recreational, aesthetic, scientific and environmental interests of these individuals. Plaintiff organizations and their members, in pursuit of such interests, have been and are being irreparably harmed, adversely affected and aggrieved by the unlawful acts and omissions of Defendants complained of herein. 57. Plaintiffs have no adequate remedy at law with respect to the unlawful acts and omissions of Defendants compained of herein. PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that this Court: (A) Issue a declaratory judgment that Defendants are required, in promulgating rules and regulations under subsections 201 (3) and 201 (7) of Title II of the Act governing the design, construction, alteration, repair, maintenance, and operation of U.S. flag oil tankers engaged in the coastwise trade, to establish comprehensive standards for the improvement thereof, including, but not limited to, standards governing maneuvering and stopping ability, and the manning of such vessels and the duties and qualifications of the officers and crew thereof; (B) Issue a declaratory judgment that Defendants are required, in promulgating rules and regulations under subsections 201 (3) and 201 (7) of Title II of the Act, (i) to establish hull protection standards to reduce cargo loss following collision, groundings or other accidents involving vessels smaller than 70,000 deadweight tons, and (ii) to mandate specific designs, or, alternatively, procedures and criteria to ensure the adoption of optimum designs, for the distribution of fully segregated clean ballast capacity as defensive space on both “new” and “existing” oil tankers larger than 70,000 deadweight tons engaged in the coastwise trade; (C) Issue a declaratory judgment that Defendants in promulgating rules and regulations under subsections 201 (3) and 201(7) of Title II of the Act, are not legally obligated under the Act to apply identical standards to “foreign vessels and United States flag vessels operating in the foreign trade" and "United States flag vessels engaged in the coastwise trade"; (D) Issue a mandatory injunction directing Defendants to comply with the Act forthwith by promulgating final rules and regulations under subsections 201 (3) and 201 (7) of Title II thereof for United States flag oil tankers engaged in the coastwise trade establishing comprehensive standards for the protection of the marine environment, including, but not limited to, standards governing maneuvering and stopping ability, manning of such vessels and the duties and qualifications of the crew and officers thereof, reduction of accidental outflows on vessels smaller than 70,000 deadweight tons and optimal distribution of fully segregated clean ballast capacity on both "new" and "existing" oil tankers larger than 70,000 deadweight tons, independent of standards applicable to oil tankers engaged in foreign trade; (E) Retain continuing jurisdiction of this matter until Defendants have promulgated all rules and regulations governing U.S. flag oil tankers engaged in the coastwise trade in accordance with Title II of the Act; and (F) Award Plaintiffs their costs and disbursements in this action, and grant such other further relief as it may deem just and proper. Respectfully submitted, ELDON V. C. GREENBERG, RICHARD A. FRANK, Center for Law & Social Policy, 1751 N Street, N.W., Washington, D.C., Attorneys for Plaintiffs. Dated: Washington, D.C., February 2, 1976. U.S. SENATE, COMMITTEE ON COMMERCE, Washington, D.C., November 6, 1975. Hon. WILLIAM COLEMAN, DEAR MR. SECRETARY: On Tuesday, October 14, 1975, the Coast Guard promulgated final rules and regulations for the construction and operation of tank vessels carrying oil in the domestic trade. These rules and regulations seek to implement the Ports and Waterways Safety Act. That Act was enacted to augment protection of the marine environment by making vessels carrying polluting substances in bulk intrinsically safer and less likely to spill cargo in the event of an accident. As chairman of the Commerce Committee, which has legislative oversight jurisdiction over the Ports and Waterways Safety Act and the rules and regulations promulgated thereunder, I am very concerned with several aspects of the rules promulgated by the Coast Guard: (1) the unconscionable delay of well over one year from the date the notice of proposed rule making was issued until the date of final promulgation; (2) the manner in which certain regulations were developed; and (3) the substantive content and Scope of the final rules. 1. ADMINISTRATIVE DELAY The Coast Guard's delay in promulgating final rules is unreasonable and inexcusable. First, timely action was essential because the Alaska Pipeline fleet has been under construction for some time and would have been affected by the new rules. The Coast Guard should have been award of the urgency of setting the best construction rules possible at the earliest moment. In addition, the Ports and Waterways Safety Act contemplated that the Coast Guard would issue rules shortly after the IMCO Conference on Marine Pollution from ships. This Conference concluded its work in November 1973. Contrary to the Act, however, there was considerable delay before the Coast Guard issued a notice of proposed rule making. To speed up the process, an amendment was inserted in the Alaska Pipeline Act to require the Department to publish, and make effective by not later than June 30, 1974, rules on the design and construction of U.S. tank vessels in the domestic trade. On May 9, 1974, I wrote Under-Secretary John Barnum urging rapid action on these regulations. Proposed rules were finally published June 28, 1974, eight days after the date Congress intended the final rules to go into effect. After hearings were held and comments received, there was again delay in promulgating final rules-16 months to be exact. On May 21, 1975, I wrote Admiral Owen Siler to ask that final regulations be issued as soon as possible. By letter dated June 18, 1975, you informed me that the final regulations would be published by August 4, 1975. They were not published until October 14. Since the final rules are almost exactly like those proposed June 18, 1975, these delays did not lead to improvement in the regulations. I believe that these delays throughout the rulemaking process cannot be justified in light of the mandate of the Act and the urgency of setting construction rules which would be applicable to the Alaska Pipeline fleet currently under construction. 2. DEFECTIVE RULEMAKING PROCEDURES I am also concerned that the rules were developed in a manner that relied too heavily on the input of special interests. As I expressed to you in my letter of May 22, 1975, I am concerned that the Coast Guard's ad hoc study group on segregated ballast "was made up nearly entirely of experts associated with organizations and companies which are publicly opposed to double bottoms." I agree with Senator Lee Metcalf's view that the use of this group to develop regulations is a violation of the Federal Advisory Committee Act. Consequently, the so-called "defensive space" concept was properly issued on October 14 as a proposed, rather than final, rule. Heavy reliance on special interest input in a public rule making process can only erode public confidence in our government. The Department must do a better job of gaining public support for its actions. 3. LACK OF EFFICACY OF RULES Finally, I must object to the substantive content and scope of the final rules. While it is true that these new rules will effect a reduction in oil pollution from the vessels covered, further reduction is possible and should have been accom plished. I believe the Coast Guard has failed to meet the mandate of the Ports and Waterways Safety Act in two ways. First, the Act requires the Coast Guard to develop tanker and construction rules based on the best available technology. Second, the Ports and Waterways Safety Act intended that the United States set standards for vessels in U.S. ports and internal waters based on its own independent technological assessment of possible anti-pollution measures. An independent assessment does not seem to have been done. Instead, the Coast Guard has accepted-on a political rather than technical basis—the provisions of the 1973 IMCO Conference as the basis of its regulatory actions. The Coast Guard strained to stay within the letter of a treaty which had not been sent to the Senate for advice and consent, which is not intended to be exclusive, and which does not cover completely the problem of accidental pollution from ships. As a legal matter, nothing in that treaty precludes the United States from establishing construction standards more stringent than those in the treaty. In sum, I refer you to my statement of July 23, 1974, presented to the Coast Guard at hearings on the proposed rules. In that statement (which reflects my views on the final rules since they are substantially similar to the proposed rules), I said that the proposed rules were too narrow in scope, particularly with regard to maneuverability. Considerably more work in this area is warranted. The Coast Guard rules' lack of stringent controls could seriously frustrate the attainment of uniform national standards in the regulation of vessels carrying oil in the domestic trade. If the best national standards are not implemented, state governments will attempt to regulate the design, construction, and operation of tankers. I favor stringent uniform national standards, but feel that if these are not forthcoming, local government is warranted in regulating tankers in order to prevent pollution of local waters and natural resources. In this regard, I believe the recent action of the Washington State legislature on tanker movements is a direct outgrowth of my home state's lack of confidence in the regulatory efforts of the Coast Guard. I urge you to review these regulations and the Coast Guard procedures by which they were promulgated in order to determine their compatibility with the Ports and Waterways Safety Act. The rule making process, in this case, appears to require considerable improvement. The Commerce Committee plans to examine the Coast Guard's action in some depth. I would very much appreciate your assistance in this undertaking. Sincerely, WARREN G. MAGNUSON, Chairman. Hon. WARREN G. MAGNUSON, Chairman, Committee on Commerce, THE SECRETARY OF TRANSPORTATION, DEAR MR. CHAIRMAN: Your letter of November 6, 1975, concerning the regulations promulgated under the 1972 Ports and Waterways Safety Act discusses a number of important issues concerning which there are some differences of opinion. A number of these issues were discussed in the related Environmental Impact Statement and in the preambles to the recently published final and proposed rules. However, it is apparent that your concerns have not been satisfied. We do regret the delay which has taken place in the promulgation of the regulations. I also wish to state, however, that some delay was inevitable in view of the complexity of this subject, the sometime conflicting factors involved, and the requirement of the law that we consider, among other things, the need for such regulations, the extent and the practicability of compliance therewith coupled with cost and technical feasibility. You stated that your Committee plans to examine the Coast Guard's actions concerning the promulgation of the regulations in some depth. We believe that a hearing by your Committee would provide a useful means of publicly setting the record straight, and accordingly, this Department and the Coast Guard will be pleased to provide the assistance you request. Please be assured that a full and proper review of the Coast Guard's actions with respect to the issues raised will be undertaken. Sincerely, WILLIAM T. COLEMAN, Jr. U.S. SENATE, COMMITTEE ON COMMERCE, Washington, D.C., May 22, 1975. Hon. WILLIAM T. COLEMAN, Department of Transportation, DEAR SECRETARY COLEMAN : The Senate Commerce Committee has been working closely with the Coast Guard on proposed regulations concerning the construction and operation of tank vessels in the domestic trade as required by the Ports and Waterways Safety Act of 1972, as amended. In that regard, the staff of the Committee was recently provided with a copy of the special study group's report entitled "Segregated Ballast Tanker Study: Ship Configuration". We understand the study to be an attempt by the Coast Guard to further elaborate upon its concept of 'defensive space'. The Ports and Waterways Safety Act was amended by Public Law 93-153, the so-called Alaska Pipeline Act, to require promulgation of construction and operation regulations for U.S. vessels in the coastwise trade by not later than June 30, 1974. Nearly one year has passed since that date and since the notice of proposed rule-making was issued on June 28, 1974. I believe further delay in putting final regulations into effect cannot be tolerated. Therefore, I urge you to issue those regulations as soon as possible. At the same time, I still have reservations about whether the proposed regulations in fact meet the Congressional mandate in the Ports and Waterways Safety Act. It is the plan of the Commerce Committee to request the Office of Technology Assessment to evaluate the results of the 'defensive space' study group to determine whether the Coast Guard's proposal constitutes the best available technology. Personally, I am very concerned that the study group was nearly entirely made up of experts associated with organizations and companies which are publicly opposed to double bottoms. In addition, the Committee plans oversight hearings on the entire set of regulations issued under the Ports and Waterways Safety Act. But it is best that implementation of the regulations, now long overdue, begin as soon as possible. Sincerely, WARREN G. MAGNUSON, Chairman. DEPARTMENT OF TRANSPORTATION, U.S. COAST GUARD, Hon. W. G. MAGNUSON, Chairman, Committee on Commerce, DEAR MR. CHAIRMAN: You are doubtless aware of Senator Metcalf's concern for the procedures followed in regard to investigation of alternate tanker construction arrangements. This is the concept of defensive space, utilizing the requirement of segregated ballast, which I mentioned when I appeared before the Senate Commerce Committee on 29 January 1975. The development of a formula for the distribution of segregated ballast in a tanker is a highly complex matter which must take into account various conditions of vessel loading and trim together with the optimization of the defensive space concept. The integration of all of these factors required the utilization of the talents of some of the most highly skilled and knowledgeable persons in the field of naval architecture. This was accomplished by a group of such persons who, though in industry employ, responded in accordance with their professional lights to conditions upon which the Coast Guard insisted in this highly technical field. Their study methodology and conclusions have been verified with a number of independent authorities in the academic community and the naval architectural profession. However, in the time press of readying the regulatory package, it now appears possible that the Coast Guard may not have acted in every respect in compliance with the Federal Advisory Committee Act in regard to the development of the formula. The Coast Guard has been completely open as to the intention of applying the defensive space concept with virtually everyone associated with the matter of tanker design. If we have been remiss, it was simply an unfortunate oversight. The formula derived has received wide distribution as an appendix to the Environmental Impact Statement. However, in order to eliminate any potential concern that the public has not had the procedural opportunity to comment upon the formula for the distribution of segregated ballast tankage, we will publish a notice of proposed rulemaking on this topic. Simultaneously in the same issue of the Federal Register, we shall publish as final rules the regulations proposed in the Federal Register in June of 1974, as modified to take into account public comments. As regards the distribution of segregated ballast the rule will require this distribution to be acceptable to the Coast Guard. Then, after receiving public comments we will be in a position to determine whether to modify that rule by adopting the formula. We want to make clear that while we have not specified the sole solution of double bottoms, compliance with the formula in the notice of proposed rulemaking, if adopted, would lead to one of the following solutions being employed: a. Double bottoms, b. Double sides, c. "L" shaped wing tanks, d. "J" shaped wing tanks, e. Double hulls, or f. Staggered wing tanks combined with reduced volume of the intervening cargo tanks. We feel that this is a legitimate middle position between the extremes of the industry opposing double bottoms and the environmental interests demanding double bottoms in all situations. It leaves the shipbulider some options but compels a positive design against accidental release of oil from a more comprehensive view of the statistical history of tanker accidents. We believe the implementation of the concept of defensive space is a wellreasoned response to the call for improved tanker design and are hopeful of your personal endorsement of the proposed rules. Until Senator Metcalf's concerns were raised, we were expecting to publish the final regulations in the week of 22 September 1975. As indicated above, we are now in the midst of a rewrite that began on 19 September and we now are hoping to publish both final and proposed rules in the first week in October. Sincerely, O. W. SILER, Admiral, U.S. Coast Guard Commandant. NOVEMBER 14, 1975. Adm. OWEN SILER, U.S. Coast Guard, DEAR ADMIRAL SILER: This is in response to the Coast Guard's October 14 Notice of Proposed Rulemaking regarding the so-called 'defesnsive space' concept for distribution of segregated ballast on oil tankers. I wish these comments to be included in the official rulemaking record on this proposed rule. I also wish to incorporate by reference the remarks I made on double bottoms for tankers in my presentation at the Coast Guard's public meeting in Seattle, Washington, on July 23, 1974. Based on the independent analysis of tanker safety by the Congressional Office of Technology Assessment (OTA), I must conclude that the proposed rule does not represent the best pollution prevention technology now available, and that considerable improvement in this rule should be accomplished. As I stated in my November 6, 1975, letter to Secretary of Transportation William Coleman (which I also wish to incorporate in the rulemaking record), it appears that the Coast Guard has made a political rather than a technical decision in deciding to adopt only those rules that would be compatible with the proposed IMCO treaty on Marine Pollution from Ships. Yet Carlyle Maw, Under Secretary of State, has informed me that there is no impediment in that treaty barring establishment of more stringent tanker construction or operation standards. International law, therefore, provides the United States adequate legal authority to establish the most stringent standard's necessary for preventing pollution in its ports and internal waters. This is the mandate of the Ports and Waterways Safety Act of 1972. From a technical viewpoint, the OTA Report concluded that "double bottoms or double hulls on tankers offer a sig |