[Federal Register Volume 63, Number 158 (Monday, August 17, 1998)]
[Rules and Regulations]
[Pages 44114-44117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22005]
[[Page 44113]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
33 CFR Part 160
Advance Notice of Arrival: Vessels Bound for Ports and Places in the
United States; Final Rule
Federal Register / Vol. 63, No. 158 / Monday, August 17, 1998 / Rules
and Regulations
[[Page 44114]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 160
[CGD 97-067]
RIN 2115-AF54
Advance Notice of Arrival: Vessels Bound for Ports and Places in
the United States.
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: In an Interim Rule (IR) published on December 11, 1997, the
Coast Guard amended the notice of arrival requirements for certain
vessels which must comply with the International Safety Management
(ISM) Code, prior to their entering U.S. waters. This final rule
completes the rulemaking action that allows the Coast Guard to monitor
the ISM Code certification status of vessels prior to operating in U.S.
waters and ensure that safety management system requirements are being
met.
DATES: This final rule is effective September 16, 1998.
ADDRESSES: Documents as indicated in this preamble are available for
inspection or copying at the office of the Executive Secretary, Marine
Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100 Second
Street SW., room 3406, Washington, DC 20593-0001, between 9:30 a.m. and
2 p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-267-1477.
FOR FURTHER INFORMATION CONTACT:
Mr. Robert M. Gauvin, Project Manager, Vessel and Facility Operating
Standards Division (G-MSO-2), at (202) 267-1053, or fax (202) 267-4570.
SUPPLEMENTARY INFORMATION:
Regulatory History
On December 11, 1997, the Coast Guard published an interim rule
entitled ``Advance Notice of Arrival: Vessels Bound for Ports and
Places in the United States,'' in the Federal Register (62 FR 65203).
The Coast Guard received eight letters during the comment period which
closed on January 12, 1998, commenting on the proposed rulemaking. No
public hearing was requested, and none was held.
Background and Purpose
The Ports and Waterways Safety Act of 1972 [86 Stat. 424], as
amended by the Port and Tanker Safety Act of 1978 [92 Stat. 1271],
authorizes the Secretary of the Department in which the Coast Guard is
operating to require the receipt of notice from any vessel destined for
or departing from a port or place under the jurisdiction of the U.S.
This does not include a vessel declaring force majeure or a vessel on
innocent passage through U.S. waters. This notice may include any
information necessary for the control of the vessel and for the safety
of the port or marine environment. See 33 U.S.C. 1223; 33 CFR part 160,
subpart C.
In October 1996, the Coast Guard Authorization Act of 1996 [110
Stat. 3901] amended title 46 of the U.S. Code by adding Chapter 32,
``Management of Vessels.'' Under this new law, the Secretary of
Transportation was directed to prescribe regulations and enforce
compliance with the ISM Code for safety management systems on vessels
engaged on a foreign voyage. This authority was delegated to the
Commandant of the Coast Guard on April 24, 1997 (62 FR 19935), in 49
CFR 1.46 (fff) and (ggg).
On December 24, 1997, a final rule entitled ``Rules for the Safe
Operation of Vessels and Safety Management Systems'' was published in
the Federal Register (62 FR 67492). This rule establishes the
requirements for safety management systems in 33 CFR part 96. This rule
became effective on January 23, 1998.
The notice of arrival requirements state that vessels which must
meet Chapter IX (ISM Code regulations) of the International Convention
for the Safety of Life at Sea (SOLAS), 1974 provide their ISM
certification status by message to the U.S. Coast Guard, at least 24
hours prior to entering a U.S. port or place. It should be noted that
passenger vessels that are below 500 gross tons, carrying more than 12
passengers, and engaged on a foreign voyage are not covered by this
rule, even through these passenger vessels under 500 gross tons will be
required to be certificated to the ISM Code requirements of SOLAS and
33 CFR part 96.
The purpose of this rule is to permit the Coast Guard to enforce
the requirements of 33 CFR 96.390 (46 U.S.C. 3204(c)), which prohibits
a vessel from operating in U.S. waters without having on board a valid
copy of a company's Document of Compliance certificate or a valid
original of the vessel's Safety Management Certificate. Collecting a
vessel's certification status before arrival in port is vital to
determining appropriate enforcement actions by Coast Guard officials at
U.S. ports. An affected vessel that does not have the ISM Code
certificates on board will be denied entry into a U.S. port or place
after the effective date of the ISM Code. A vessel that has the proper
ISM Code certificates will be boarded annually under the existing
standards of the U.S. Port State Control program. During these
boardings, if the vessel is found to have valid certificates but has
not properly implemented or maintained its safety management system,
the vessel may be detained in port until corrections are made to the
system. The vessel's flag state or organization acting on behalf of its
flag state, will be requested by the Coast Guard to attend to the
vessel to ensure corrections, or take actions to manage the corrections
of non-conformities to the vessel's safety management system prior to
the vessel departing the port. U.S. enforcement policy regarding the
Port State Control Program and safety management system requirements
for foreign vessels operating in the U.S. are provided in the Coast
Guard's Navigation and Vessel Inspection Circular (NVIC) 4-98, which
was published on March 17, 1998. This NVIC can be received by sending a
written request to the Coast Guard's National Maritime Center, 4200
Wilson Boulevard, Suite 510, Arlington, Virginia 22203-1804, or by
telephone at (703) 235-1604. The document can be downloaded through the
internet from the Coast Guard's home page on the World Wide Web located
at http://www.uscg.mil/hq/g-m/nvic/index.htm. Go to the NVIC link,
select all NVICS published in the 1990's, select the year 1998, and
then select and download NVIC 4-98.
Discussion of Comments and Changes
The Coast Guard received a total of 8 documents containing 14
comments to the public docket. No written comment requested a public
hearing and none was held.
All changes to each section of the rule are discussed within the
following paragraphs:
1. Three comments received supported the interim rule as written
and its intent to monitor compliance with the certification of vessels'
safety management systems. A fourth comment went further to discuss
that the Coast Guard's use of the notice of arrival requirements to
stop a vessel from entering or operating in U.S. waters could endanger
a vessel if it is unsafe and could hamper efforts to ensure
international compliance with these new international regulations. That
comment also stated that a certificate did not ensure that a vessel was
safe or had safe operating practices. The Coast Guard agrees that a
certificate is not absolute proof of safety, but vessels are required
under 46 U.S.C.
[[Page 44115]]
3204(c) to have safety management system certificates documenting their
compliance on board the vessel to operate in U.S. waters. The notice of
arrival system is the most effective way of ensuring compliance with
these mandatory statutory requirements for certification.
The Coast Guard was delegated the responsibility to enforce 46 USC
3204(c) and is not provided with the ability to allow variance from the
requirement. If a vessel is unsafe or unseaworthy, the master can claim
a force majeure entrance to a U.S. port, even without the required
certificates. The Coast Guard will verify claims of force majeure.
Also, the Coast Guard will continue to board vessels under the current
port state control management program which includes verification that
the vessel's safety management system is being used by the vessel's
crew. In such cases where safe operation of the vessel is in question,
the Coast Guard will be in contact with the vessel's Flag State or
recognized organization acting on the Flag State's behalf, to notify
them of the vessel's situation as required by SOLAS. In response to the
comment suggesting an ability of the notice of arrival to hamper
compliance with safety management system requirements internationally,
the Coast Guard expects this action to have the opposite effect.
Approximately 7,500 to 8,000 individual foreign flag vessels per year
make U.S. port calls. This notification process will ensure that each
vessel complies with the new SOLAS safety management system and U.S.
requirements on the proper effective date, or it will not be allowed to
trade with the U.S. No changes were made to this rule due to these
comments.
2. One comment requested that a company and vessel additionally
provide their compliance information on ISO quality standard
certification as part of this notification requirement. The ISO quality
standards are not mandated for use on vessels or by their company under
U.S. law or international regulations. These ISO quality standards are
voluntary industry standards not mandated, except possibly by
commercial contract. Thus, only those companies that wish to be
certificated to these quality standards do so. ISO standards are
developed along the same basic performance elements as safety
management systems. The collection of quality system certification
information would not provide the Coast Guard with any information or
indicators of safe operation of a vessel, not included by providing the
safety management system certification under the ISM Code. Therefore,
the Coast Guard does not see a need for collection of this information,
and has not changed these rules due to this comment.
3. One comment requested that the notification process include
notification of oil (bunker and cargo) transfers, and ballast water
exchange information, as well as the ISM Code certification status. As
this comment requests collection of new information not discussed in
the interim rule and outside the scope of this rulemaking, the Coast
Guard could not include such a request without an additional
opportunity for public comment. However, there is an ongoing rulemaking
on ballast water discharge controls. A Notice of Proposed Rulemaking
(NPRM) entitled ``Implementation of the National Invasive Species Act
of 1996 (USCG-1998-3423)'' was published on April 10, 1998, in the
Federal Register (63 FR 17782). This written comment was forwarded to
the NPRM docket for that rulemaking to ensure it is reviewed during the
comment period for that NPRM which was reopened on June 16, 1998, and
closes on August 8, 1998. There is no change to this rule in response
to this comment.
4. Four comments stated that the second effective date of the
notification in 33 CFR 160.207(d)(2), January 1, 2000, was too far in
advance of the second effective date of the ISM Code compliance
requirements for freight vessels and self-propelled mobile offshore
drilling units of 500 gross tons or more engaged on foreign voyages
(July 1, 2002). One comment recommended that the second effective date
of notification be amended to January 1, 2002. The comments also
recommended that the collection of the ISM Code certification
information be a one-time notification requirement, as opposed to a
continuous requirement. The Coast Guard agrees that the second
effective date should be moved to a date closer to the second effective
date of the ISM Code. Therefore, the second effective date of 33 CFR
160.207(d)(2) is amended to January 1, 2002, in the final rule.
The Coast Guard disagrees that the notification of ISM Code
certification compliance be completed only once. The Coast Guard is
required to enforce 46 CFR 3204(c) constantly, not just on the
effective date of the ISM Code. To ensure compliance before operation
in U.S. waters, the Coast Guard must verify ISM Code certification on
any new vessel, vessel whose owner or management company changes,
vessel with name changes, or other changes which would effect their
original ISM Code certification and safety management systems. Also,
vessels can have their certificates invalidated and terminated by Flag
States if found in non-compliance at re-issuance of the certificate or
during interim audits and endorsement of certificates. As these
requirements will be in constant dynamic alteration, the Coast Guard
must keep appraised of a vessel's compliance status on a visit by visit
notification for U.S. port entry. No change was made to the final rule
due to these comments.
5. One comment requested that this rule be terminated after the
initial collection of information, while a second comment requested
that the rule be terminated on July 1, 2004. The Coast Guard disagrees
with these requests. There are no other actions that are currently
available, without the Coast Guard boarding every vessel which enters a
U.S. port, to ensure compliance of these ISM Code certification
programs for safety management systems. In the future, some other
action may allow oversight of the ISM Code certification compliance
information without this collection of information requirement. If this
does occur, the Coat Guard will consider removing these notification
requirements from the regulations in 33 CFR 160.207. No change was made
to the final rule due to this comment.
6. One comment recommended that the ISM Code certification
information be filed in the Marine Safety Information System (MSIS)
database for vessels, but not in that section of the database that
indicates non-compliance status. Also, this comment supported Flag
States sharing vessel boarding information, but cautioned that this
could lead to incorrect data being passed between Flag States. For all
vessels, the ISM Code certification information will be filed with
other listed documents in the Vessel File of Listed Documents (VFLD) in
MSIS. This is an information collection file used as a reference by the
Coast Guard to determine vessel historical background. It is updated
when new information is collected during vessel boardings, inspections,
and examinations. This information is not normally updated by
information received from a notification of arrival message. This
information is updated after the Coast Guard visually checks the actual
documents on board the vessel during an annual boarding or inspection.
Thus, this information is not normally placed in a non-compliance data
file. However, if the vessel does not provide the proper certification
notification prior to entry into a U.S. port or is found in non-
compliance after boarding in a U.S. port, a report of
[[Page 44116]]
detention or intervention may be filed with IMO, the vessel Flag State,
and a violation processed by the Coast Guard, which would be recorded
in the vessel's boarding history files on MSIS. No change was made to
the final rule due to this comment.
7. One comment stated that the applicability for passenger vessels
was incorrectly stated in the interim rule, 33 CFR 160.207(d)(1). The
interim rule states the applicability of a passenger vessel as: ``a
passenger vessel carrying 12 or more passengers'' when it should state,
``a passenger vessel carrying more than 12 passengers.'' The Coast
Guard agrees with this comment and corrected this typographical error,
in a Federal Register notice of correction (63 FR 5458) published on
February 3, 1998. The corrected wording is found in this final rule.
8. One comment stated that there may be situations where agents
representing a vessel's owner may not be aware of the vessel's
compliance with the ISM Code certification and may not be able to
provide the notification information prior to vessel arrival. In such
situations, it was requested that the Coast Guard not lodge a violation
report against the vessel or the vessels' agent. In a situation where
the certification status is not known before a vessel arrives in a port
or place within the U.S., the vessel will not be allowed into port
under 46 CFR 3204(c). If the vessel's ISM Code certification status is
already known and appears valid from previous U.S. boardings and MSIS
data, the Coast Guard COTP may allow the vessel to enter port. However,
the COTP will determine on a case-by-case basis whether a civil
violation action should be taken due to the circumstances of the
situation. No change to the final rule or other Coast Guard policy is
made in response to this comment.
Regulatory Evaluation
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. It has not been reviewed by the Office of Management and
Budget under that Order. It is not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) (44
FR 11040; February 26, 1979).
The Coast Guard expects the economic impact of this final rule to
be so minimal that a full Regulatory Evaluation under paragraph 10e of
the regulatory policies and procedures of DOT is unnecessary.
This rule will amend established reporting regimes, which are now
customary procedures. The information to be reported is readily
available aboard the vessel by international convention. Modern
electronic communication systems make it easier to report this
information, and will only add seconds to the delivery of currently
required reports.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considered whether this rule would have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include small businesses, not-for-profit organizations that
are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This rule does not require a general notice of proposed
rulemaking and, therefore, is exempt from the requirements of the
Regulatory Flexibility Act. Although this rule is exempt, the Coast
Guard has reviewed it for potential economic impact on small entities.
This rulemaking will affect U.S. oceangoing shipping companies and
their vessels of specific categories of more than 500 gross tons, or
passenger vessels of 500 gross tons or more carrying more than 12
passengers engaged on a foreign voyage. These companies and their
vessels are not considered small businesses or small entities. Small
passenger vessels are the only small entities required to comply with
the ISM Code. A small passenger vessel is generally one carrying more
than 6 passengers and is 100 gross tons or less (See 46 U.S.C. 2101
(35)). Since the new reporting requirements only affect passenger
vessels of 500 gross tons or more, there is no impact or reporting
requirement for a small passenger vessel engaged on a foreign voyage.
Therefore, the Coast Guard certifies under section 605(b) of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this final rule
will not have a significant economic impact on a substantial number of
small entities.
Assistant for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard
offered to assist small entities in understanding the rule so that they
could better evaluate its effects on them and participate in the
rulemaking process. No written or verbal comments were received to this
rulemaking docket which requested or stated a need for assistance for
small entities to comply with these reporting requirement. Thus, no
actions are specifically required.
Collection of Information
This final rule provides for a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As stated in
the interim rule, the Coast Guard solicited comments on the collection
of information to: (1) Evaluate whether the information is necessary
for the proper performance of the functions of the Coast Guard,
including whether the information will have practical utility; (2)
evaluate the accuracy of the Coast Guard's estimate of the burden of
the collection, including the validity of the methodology and
assumptions used; (3) enhance the quality, utility, and clarity of the
information to be collected; and (4) minimize the burden of the
collection on those who are to respond by allowing the submittal of
responses by electronic means or the use of other forms of information
technology. The Coast Guard received no comments directed specifically
at these questions and has responded to any information request
comments in the ``Discussion of Comments and Changes'' section of this
rulemaking.
As required by 5 U.S.C. 3507(d), the Coast Guard submitted a copy
of this rule to the Office of Management and Budget (OMB) for its
review of the collection of information. OMB has approved the
collection. The amendment to 33 CFR 160.207 and the corresponding
approval number from OMB is OMB Control Number 2115-0557, which expires
on April 30, 2001.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
Federalism
The Coast Guard analyzed this final rule under the principles and
criteria contained in Executive Order 12612 and have determined that
this rule does not have sufficient implications for federalism to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this final
rule and concluded that, under Figure 2-1, paragraph (34)(d) of
Commandant Instruction M16475.1C, this final rule is categorically
excluded from further environmental documentation. A ``Categorical
Exclusion Determination'' is available in the docket for inspection or
copying where indicated under ADDRESSES.
[[Page 44117]]
List of Subjects in 33 CFR Part 160
Administrative practice and procedure, Harbors, Hazardous materials
transportation, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Vessels, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 160 as follows:
1. The authority citation for part 160 continues to read as
follows:
Authority: 33 U.S.C. 1223, 1231; 49 CFR 1.46.
2. Revise Sec. 160.207 paragraphs (d) and (e) to read as follows:
Sec. 160.207 Notice of arrival: Vessels bound for ports or places in
the United States.
* * * * *
(d) International Safety Management (ISM) Code (Chapter IX of
SOLAS) Notice. If you are the owner, agent, master, operator, or person
in charge of a vessel that is 500 gross tons or more and engaged on a
foreign voyage to the United States, you must provide the ISM Code
notice described in paragraph (e) as follows:
(1) ISM Code notice beginning January 26, 1998, if your vessel is--
a passenger vessel carrying more than 12 passengers, a tank vessel, a
bulk freight vessel, or a high-speed freight vessel.
(2) ISM Code notice beginning January 1, 2002, if your vessel is--a
freight vessel not listed in paragraph (d)(1) or a self-propelled
mobile offshore drilling unit (MODU).
(e) Content and Manner of ISM Code Notice.
(1) ISM Code notice includes the following:
(i) The date of issuance for the company's Document of Compliance
certificate that covers the vessel.
(ii) The date of issuance for the vessel's Safety Management
Certificate, and,
(iii) The name of the Flag Administration, or the recognized
organization(s) representing the vessel flag administration, that
issued those certificates.
(2) If you meet the criteria in paragraph (d) of this section, you
must give the ISM Code notice to the Coast Guard Captain of the Port of
the port or place of your destination in the U.S. at least 24 hours
before you enter the port or place of destination. The ISM Code notice
may be combined and provided with the report required by paragraph (a)
of this section.
Dated: August 6, 1998.
Joseph J. Angelo,
Acting Assistant Commandant for Marine Safety and Environmental
Protection.
[FR Doc. 98-22005 Filed 8-14-98; 8:45 am]
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