Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System
Federal RegisterJan 30, 2015
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Parts 62, 66, 101, 110, 117, 118, 151, 160, 161, 164, and 165
46 CFR Parts 4 and 148
[Docket No. USCG-2005-21869]
RIN 1625-AA99
Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System
AGENCY:
Coast Guard, DHS.
ACTION:
Final rule.
SUMMARY:
Consistent with statutory requirements and provisions, the Coast Guard is expanding the applicability of notice of arrival (NOA) and automatic identification system (AIS) requirements to include more commercial vessels. This final rule amends the applicability of notice of arrival requirements to include additional vessels, sets forth a mandatory method for electronic submission of NOAs, and modifies related reporting content, timeframes, and procedures. This final rule also extends the applicability of AIS requirements beyond Vessel Traffic Service (VTS) areas to all U.S. navigable waters, and requires that additional commercial vessels install and use AIS, consistent with statutory requirements, and in limited cases, the Secretary's discretionary authority. These changes will improve navigation safety, enhance our ability to identify and track vessels, and heighten our overall maritime domain awareness (MDA), thus helping us address threats to maritime transportation safety and security.
DATES:
This final rule is effective March 2, 2015, except for amendments to 33 CFR part 160 which become effective April 30, 2015, with the further exception of § 160.204(a)(6), which is effective April 30, 2015 through December 31, 2015; and except for §§ 160.204(a)(5)(vii), 160.205, 160.208(a) and (c), and 164.46(b) and (c), which contain collection of information requirements that have not yet been approved by the Office of Management and Budget (OMB). The Coast Guard will publish a document in the
Federal Register
announcing the effective date of these four collection-of-information related sections. The incorporation by reference of certain publications listed in the final rule is approved by the Director of the Federal Register on March 2, 2015.
ADDRESSES:
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2005-21869 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to
http://www.regulations.gov,
inserting USCG-2005-21869 in the “Keyword” box, and then clicking “Search.”
FOR FURTHER INFORMATION CONTACT:
If you have questions on the NOA portion of this final rule, call or email Lieutenant Commander Michael Lendvay, Office of Commercial Vessel Compliance (CG-CVC), Coast Guard; telephone 202-372-1218, email
Michael.D.Lendvay@uscg.mil
. If you have questions on the AIS portion of this final rule, call or email Mr. Jorge Arroyo, Office of Navigation Systems (CG-NAV-2), Coast Guard; telephone 202-372-1563, email
Jorge.Arroyo@uscg.mil
. Finally, if you have questions on viewing the docket, call Ms. Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Executive Summary and Regulatory History
A. Executive Summary
1. Purpose and Authority
2. Overview of the Final Rule
3. Costs and Benefits
B. Regulatory History
III. Basis and Purpose
IV. Background
V. Summary of Changes From NPRM
VI. Discussion of Comments and Changes
A. Notice of Arrival and Departure
1. Applicability
2. Definitions
3. Exemptions
4. NOA Information
5. NOD Information
6. Electronic Submission
7. When To Submit an NOA
8. When To Submit an NOD
9. Force Majeure
10. Need for NOAD Data and Agency Collaboration in Obtaining It
11. Scope and Scale
12. Financial Impact
13. Outer Continental Shelf
14. Miscellaneous
B. Automatic Identification System
1. Applicability
2. Broader Use of AIS
3. Expanding AIS Carriage
4. Impracticability
5. AIS and Nationwide AIS
6. Fishing Industry Concerns
7. AIS Class B
8. AIS Displays and Integration
9. Installation Period
10. AIS Pilot Plug
11. Supplemental Notice of Proposed Rulemaking
C. Regulatory Analysis and Final Regulatory Flexibility Analysis
1. Notice of Arrival and Departure
2. Automatic Identification System
VII. Incorporation by Reference
VIII. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
List of Tables
Table 1—NOAD Derivation and Comparison Table: Final Rule and Corresponding Current Applicability or Exemption Paragraphs in 33 CFR Part 160
Table 2—AIS Derivation and Comparison Table: Final Rule and Corresponding Current Applicability Paragraphs in 33 CFR 164.46
Table 3—Comparison of Regulatory Impact Changes Between NPRM and Final Rule
Table 4—AIS Carriage Costs and Benefits
Table 5—NOAD Derivation and Comparison Table: Final Rule and NPRM Applicability and Exemption Paragraphs in 33 CFR Part 160
Table 6—AIS Derivation and Comparison Table: Final Rule and NPRM Applicability Paragraphs in 33 CFR 164.46
Table 7—Cost per Small Entity To Carry Three AIS Units and Submit Three Additional NOAD Fields
Table 8—Annual Risk Reduction Required for Cost to Equal Benefits for Passenger Vessels With Certain Passenger Capacities (Annual Costs at 7% Discount Rate)
Table 9—Nature of Authority To Require Installation and Use of Automatic Identification System (AIS)
I. Abbreviations
AC Alternating Current
AIS Automatic Identification System
AIS AtoN Automatic Identification System Aids to Navigation
AMS Automated Manifest System
ANF Advance Notice Form
API American Petroleum Institute
APIS Advance Passenger Information System
ASM Application-specific messaging
ASTM American Society for Testing and Materials
AtoN Aids to Navigation
CBP U.S. Customs and Border Protection
CDC Certain Dangerous Cargo
CFR Code of Federal Regulations
CMTS Committee on the Maritime Transportation System
COP Common Operating Picture
COTP Captain of the Port
CSR Continuous Synopsis Record
DGPS Differential Global Positioning System
DHS U.S. Department of Homeland Security
ECDIS Electronic Chart Display and Information System
ECS Electronic Chart System
eNOAD Electronic Notice of Arrival and Departure
FCC Federal Communications Commission
FILS Federal/Industry Logistics Standardization
FRFA Final Regulatory Flexibility Analysis
IMO International Maritime Organization
INS mmigration and Naturalization Service
IRFA Initial Regulatory Flexibility Analysis
IRVMC Inland River Vessel Movement Center
ISM International Safety Management
ISPS International Ship and Port Facility Security
ISSC International Ship Security Certificate
ITU International Telecommunications Union
LOOP Louisiana Offshore Oil Port
LRIT Long Range Identification and Tracking
MARPOL International Convention for the Prevention of Pollution from Ships
MARSEC Maritime Security
MDA Maritime Domain Awareness
MEPC IMO Marine Environment Protection Committee
MISLE Marine Information for Safety and Law Enforcement
MKD Minimal Keyboard Display
MMSI Maritime Mobile Service Identity
MODU Mobile Offshore Drilling Unit
MTSA Maritime Transportation Security Act of 2002
NAICS North American Industry Classification System
NAIS Nationwide Automatic Identification System
NARA National Archives and Records Administration
NAVSAC Navigation Safety Advisory Council
NEMA National Electrical Manufacturers Association
NMEA National Marine Electronics Association
NOA Notice of Arrival
NOA OCS Notice of Arrival on the Outer Continental Shelf
NOAD Notice of Arrival and Departure
NOD Notice of Departure
NPRM Notice of Proposed Rulemaking
N-RAT National Risk Assessment Tool
NVMC National Vessel Movement Center
OCS Outer Continental Shelf
OMB Office of Management and Budget
OSRV Oil Spill Response Vessel
OSV Offshore Supply Vessel
PWSA Ports and Waterways Safety Act
RA Regulatory Analysis
RFA Regulatory Flexibility Act
RTCM Radio Technical Commission for Maritime Services
§ Section
SAFE Port Act Security and Accountability for Every Port Act of 2006
SBA Small Business Administration
SN/Circ. (IMO) Safety of Navigation Circular
SNPRM Supplemental Notice of Proposed Rulemaking
SOLAS International Convention for the Safety of Life at Sea
TWIC Transportation Worker Identification Credential
ULC Universal Location Code
U.S.C. United States Code
VMRS Vessel Movement Reporting System
VSL Value of Statistical Life
VTC Vessel Traffic Center
VTS Vessel Traffic Service
WDR Waste Delivery Receipt
WMD Weapon of Mass Destruction
WME Weapon of Mass Effect
II. Executive Summary and Regulatory History
A. Executive Summary
1. Purpose and Authority
The Coast Guard is expanding the applicability of notice of arrival (NOA) and automatic identification system (AIS) requirements to include more commercial vessels, consistent with statutory requirements and provisions. The Coast Guard is finalizing a narrow expansion of the applicability beyond the Congressionally-mandated requirements using the Secretary's discretionary authority. The purpose of these changes is to improve navigation safety, enhance the Coast Guard's ability to identify and track vessels, and heighten the Coast Guard's overall situational and maritime domain awareness (MDA), which will enhance mariner's navigation safety and the Coast Guard's ability to address threats to maritime transportation security.
The authority for the Coast Guard to issue AIS and NOA requirements stems from the Ports and Waterways Safety Act (PWSA) (33 U.S.C. 1221
et seq.
), which allows the Secretary to require the installation of specified navigation and communications equipment on vessels that operate within a vessel traffic service (VTS) area, pre-arrival notices, and other measures to protect navigation and the marine environment. The authority for the Coast Guard to issue AIS-related requirements also comes from the Maritime Transportation Security Act of 2002 (MTSA), Public Law 107-295, which directs that AIS be required on certain commercial vessels operating on U.S. navigable waters. See specifically, 46 U.S.C. 70114.
2. Overview of the Final Rule
This final rule amends the applicability of notice of arrival (NOA) requirements to include additional vessels (commercial vessels 300 gross tons or less coming from a foreign port or place), sets forth a mandatory method for electronic NOAD submission, and modifies related reporting content, timeframes, and procedures. This final rule also extends the applicability of AIS requirements beyond VTS areas—to all U.S. navigable waters—and to non-VTS users.
3. Costs and Benefits
The cost of this final rule will be borne by approximately 18,000 U.S.-flag and foreign-flag vessel owners or operators. We estimate the total discounted cost of the final rule to be $46.1 million over the 10-year period of analysis at a 7-percent discount rate, and we estimate that 98 percent of this cost will be borne by U.S. vessels owners and operators. The NOA burden on industry from this rule was minimized to the maximum extent possible and includes three new information fields, consistent with the objectives of this rule. No new government resources are needed to process the NOA information or AIS-related requirements of this rule. The AIS-related requirements of this rule were not applied to low risk, smaller vessels. Based on current estimates of the risks and benefits, expanding AIS installation requirements is not justified for smaller vessels that are not moving certain dangerous cargo (CDC) or flammable or combustible liquid cargo in bulk.
We expect benefits of this final rule to include improved security, safety and environmental protection. The Coast Guard believes that this final rule will enhance maritime and navigational safety through a synergistic effect of NOA and AIS, and will strengthen maritime security. Specifically, when reliable NOA data is combined with other data from sources such as AIS and long-range identification and tracking (LRIT) reporting, a common operating picture is formed in which vessel-specific movements to, from, or in U.S. ports and waterways can be monitored in near-real time. This will enable the Coast Guard to filter data from collection mechanisms that do not require vessel compliance, such as radar, and thereby enhance our ability to rapidly detect, identify, and track suspicious vessels. This assists the Coast Guard and our other interagency partners in decision-making regarding homeland security, and affords decision-makers an opportunity to prioritize resources and meet mission requirements while maintaining MDA.
Improving MDA will also result in improvements to maritime and navigational safety. We assess additional improvements to safety and environmental protection quantitatively, given the existence of historic casualty
data from which to develop such estimates. From the casualty history we can assess the mitigation of fatalities, injuries, property damage, and environmental impacts as a result of oil spills from casualty incidents. We estimate the total discounted benefit (injuries and fatalities avoided) for the AIS portion of the final rule, derived from marine casualty cases for the period 1996 to 2010, to be between $25.1 and $31.2 million, using $9.1 million for the value of statistical life (VSL) at 7- and 3-percent discount rates, respectively. We expect the AIS portion of this final rule to prevent on average 14 barrels of oil (undiscounted) from being spilled annually, or between 85 and 106 barrels at 7- and 3-percent discount rates, respectively, over the 10-year period of analysis.
B. Regulatory History
On December 16, 2008, we published a notice of proposed rulemaking (NPRM) titled “Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System” in the
Federal Register
(73 FR 76295). The preamble of that NPRM contains an extensive post-September 11, 2001, history of NOA and AIS regulatory actions. We provided a 4-month comment period for the proposed rule. We received 91 written submissions, and 27 persons made oral statements at our public meetings. There were approximately 475 comments in response to our NPRM.
Public meetings were requested and two were held. We held the first meeting in Washington, DC, on March 5, 2009, and the second in Seattle, WA, on March 25, 2009.
See
74 FR 3534, January 21, 2009, and 74 FR 9071, March 2, 2009.
III. Basis and Purpose
This final rule makes revisions to NOAD regulations in 33 CFR part 160 that are necessary to require the submission of comprehensive and timely information on vessels entering U.S. ports and transiting U.S. waters. Also, the revision requiring electronic submissions will expedite processing of NOAD information. Prompt receipt of this information about a vessel and its voyage, cargo, and persons on board, and the operational condition of its navigation equipment will assist us in—
• Preventing damage to structures on, in, or adjacent to the navigable waters of the United States; and
• Protecting those navigable waters.
The Secretary of the Department of Homeland Security has delegated to the Coast Guard authority from the PWSA (33 U.S.C. 1221
et seq.
). Under this authority, the Coast Guard may promulgate regulations to—
• Require receipt of pre-arrival messages from vessels destined for a U.S. port or place in sufficient time to permit advance vessel traffic planning prior to port entry.
• Protect the navigable waters of the United States, as well as bridges over those waters, and land structures and shore area immediately adjacent to such waters, including measures involving the movement of explosives or other dangerous articles and substances.
See
specifically 33 U.S.C. 1223(a)(5), 1225, and 1231.
This final rule also amends AIS and AIS-related regulations in 33 CFR parts 62, 66, 161, 164, and 165 necessary to implement section 102 of MTSA, Public Law 107-295, 116 Stat. 2064, which directs that AIS be installed and operating on most commercial vessels on the navigable waters of the United States.
See
46 U.S.C. 70114. In addition, this final rule implements certain mandatory provisions of the International Convention for the Safety of Life at Sea, 1974, (SOLAS), as amended.
See
specifically SOLAS, Chapter V, regulation 19.2.4, which requires all ships of 300 gross tonnage and upwards engaged on international voyages, cargo ships of 500 gross tonnage and upwards not engaged on international voyages, and passenger ships irrespective of size, to be fitted with AIS; and regulation 1.4, which gives the United States some discretion in implementing these AIS requirements for ships. As a Contracting Government to SOLAS, the United States has a responsibility to implement mandatory SOLAS provisions such as these AIS, SOLAS Chapter V provisions.
See
SOLAS Art. I, SOLAS, 32 U.S.T. 47, and the Protocol of 1978 relating to SOLAS, 32 U.S.T. 5577. As with NOAD data, AIS data also assist us in traffic management, safety, and security.
The combination of these NOA and AIS revisions will help provide a more comprehensive picture of the maritime domain. These NOA and AIS data go into a common operating picture (COP) that uses input from various sources to provide both a visual display of marine traffic and a display of each vessel's accompanying information. This system allows us to detect anomalies in these data elements. Specifically, NOA provides the stated intent of the vessel, which AIS complements by providing actual movement and a historical pattern of behavior. Combining the two, along with non-cooperative means of detection/tracking, provides a check on both, and thus an early indication of abnormal behavior, hazardous situations and/or potential security incidents.
IV. Background
The NOA- and AIS-specific regulations appear in 33 CFR part 160 subpart C and § 164.46, respectively. AIS-related regulations appear in 33 CFR parts 62, 66, 161, and 165. As noted, the preamble of the NPRM published December 16, 2008, contains an extensive post-September 11, 2001, history of NOA and AIS regulatory actions.
See
73 FR 76298-76300.
V. Summary of Changes From NPRM
We made changes from the proposed rule to reduce the burden of the final rule, to more closely align it with statutory requirements, to make it more effective, and to clarify it. We made many of these changes in response to public comments, which we discuss in Section VI, “Discussion of Comments and Changes.” If the rationale for the change appears in Section VI, then we point to the specific location of that response in this Section V summary. Otherwise, we provide the rationale for the change by section number here in this summary of NPRM-to-final-rule changes.
• We added a section to 33 CFR part 62 and amended two sections in part 66 to address a comment requesting that we expand AIS carriage to offshore fixed structures. In our NPRM, we encouraged broader use of AIS, but this comment highlighted a particular shortcoming regarding offshore fixed structures. Our proposed rule addressed mobile shipboard devices such as AIS Class A or B, but not offshore structures or AIS Aids to Navigation (AIS AtoN) systems which are best suited for fixed position deployment, such as on offshore oil platforms. Existing AtoN regulations (see 33 CFR 66.01-1 Basic Provisions) bar the use of AIS as a Private Aid to Navigation, and thus preclude the use of an AIS AtoN on certain fixed structures. This prohibition in the current AtoN regulations is inconsistent with our stated objective of broadening the use of AIS. An AIS AtoN would provide position, name, and health status of the aid, such as “on station, watching properly.” These amendments to parts 62 and 66, which allow for enhanced MDA and improved navigation safety, would not require anyone subject to our rule to establish an AIS AtoN, they would merely make that option available.
• We amended 33 CFR 118.120 for the same reasons we amended part 66, to allow the use of an AIS AtoN on certain fixed structures, here
specifically bridges. We added the following sentence to § 118.120: The District Commander may authorize the use of Automatic Identification System Aids to Navigation in lieu of or in addition to a racon.
• We removed a technical amendment to § 160.5(d) because that change was implemented in a separate rulemaking, “Navigation and Navigable Waters; Technical, Organizational, and Conforming Amendments,” in 2010.
See
75 FR 36273, 36287, June 25, 2010.
• In the NOA
General
section, § 160.201, we inserted a note to inform readers that notice-of-arrival requirements for the U.S. Outer Continental Shelf appear in 33 CFR part 146.
• In the NOA
Definitions
section, § 160.202, we made five changes. First, we removed the definition for the word “disembark” because we no longer use that term in our NOAD regulations. Second, in part because Sec. 617 of the Coast Guard Authorization Act of 2010 (Pub. L. 111-281) amended the 46 U.S.C. 2101(19) definition of “offshore supply vessel” after our NPRM was published, we deleted this proposed definition and five others we proposed (“commercial service,” “oil spill response vessel,” “passenger vessel,” “recreational vessel,” and “towing vessel”) that appear in 46 U.S.C. 2101. Inserting 46 U.S.C. 2101 definitions in the CFR may make it easier for CFR readers to find the definition of a term used in part 160, but as this recent legislation demonstrates, by inserting these statutory definitions, we create the potential for conflicting definitions. With the recent availability of an online official source of the U.S. Code (see
http://www.gpo.gov/fdsys/search/home.action
), access to 46 U.S.C. 2101 is not as limited as when we proposed our definition section. Our introductory text in § 160.202 pointing to 46 U.S.C. 2101, combined with a new online source for that authority, will make it easy to find the 46 U.S.C. 2101 definitions we have not separately included in § 160.202. Third, rather than use a jurisdictional term not found in 33 CFR part 2, we did not add a definition of “Continental United States” as proposed, but instead specified those jurisdictions in the sections in which we proposed to use that term: §§ 160.204(a)(5)(iii) and 160.212(a)(2) and (b)(2). Fourth, to address public comments, we added definitions for the following terms that we did not propose to add in the NPRM and that are not defined in 46 U.S.C. 2101: “ferry schedule” and “Operating exclusively within a single Captain of the Port zone.” For a discussion of these two definitions, see the “Exemptions” discussion in VI.A.3. Fifth, we added a definition of the term “boundary waters” that we use in a new § 160.212 paragraph on when to submit an NOA.
• In the NOA
Applicability
section, § 160.203, we specified in paragraph (a) that the referenced ports and places were those within the navigable waters of the United States or any deepwater port as defined in 33 CFR 148.5 and otherwise clarified that paragraph. For our rationale, see the “Applicability” discussion in VI.A.1.
• We revised the NOA
Exemptions and exceptions
section, § 160.204, to address public comments by adding to the list of exempted or excepted vessels United States- or Canadian-flag vessels engaged in certain salvage operations and certain ferries on fixed routes. We also added the requirements each such vessel must meet to qualify for the exemption or exception. In response to a suspension of reporting requirements under regulated navigation area requirements in §§ 165.830 and 165.921 until December 31, 2015, we revised exemption (a)(3), which cited to those reporting requirements, and added a temporary exemption in paragraph (a)(6). For our rationale, see “Miscellaneous” discussion in VI.A.14. Also, we revised the heading of this section to better reflect that paragraphs (b) and (c) identify exceptions and for clarification, we replaced “need not” with “is not required to” in those two paragraphs. And in paragraph (a)(5)(vii), we excluded ferries on fixed routes provided the ferry operator submits an accurate schedule, along with information in paragraphs (a)(5)(vii)(A)-(J), to the Captain of the Port for each port or place of destination listed in the schedule at least 24 hours in advance of the first date and time of arrival listed on the schedule and updates if the schedule or other information submitted changes. For our rationale, see “Exemptions” discussion in VI.A.3.
• Based on comments, in the
Information required in an NOA
section, § 160.206, we did not include the proposed entrance-to-the-port field, Table 160.206(2)(xi); crewmember passport country of issuance and passport date of expiration fields, Table 160.206(4)(v) & (vi); or the person in addition to crew passport country of issuance and passport date of expiration fields, Table 160.206(5)(v) & (vi), in this final rule. For our rationale, see the “NOA Information” discussion in VI.A.4. In this section, we also made non-substantive edits for clarity. Effective October 30, 2013, a Nontank Vessel Response Plans and Other Response Plan Requirements final rule (78 FR 60135, Sept. 30, 2013) added another field to § 160.206, in Table 160.206: USCG Vessel Response Plan Control Number, if applicable. We included that field in our revision of § 160.206.
• We delete the
Information required in an NOD
section, § 160.207, based on our decision not to require notices of departure. For our rationale, see the “When to Submit an NOD” discussion in VI.A.8. We made appropriate edits throughout the regulatory text to reflect our removal of the NOD requirement, including the removal of § 160.213.
• In the
Methods for submitting an NOA
section, § 160.210, in paragraph (a), we specify that the methods for submitting an NOA include both currently available options, and methods that may be made available on
http://www.nvmc.uscg.gov
in the future. This change ensures that current options described in this final rule will still satisfy submission method requirements even if new options are later made available on
http://www.nvmc.uscg.gov.
We clarified paragraph (b) of § 160.210 by eliminating the restricting eNOAD-application reference when identifying allowable methods for submitting NOAs. The eNOAD application provides an easy-to-use, efficient method for reporting the vessel arrival or departure information required by the Coast Guard or some other Federal agencies for vessels bound for or departing from U.S. ports. It was developed to enable an NOA or NOA update to be submitted directly to the NVMC via the Internet even while the vessel is underway, thereby avoiding the need for fax machines, scanners, and telephones. It provides a means for managing and storing recently submitted NOA data, and allows a previously submitted NOA to be updated and a partially completed NOA to be saved and submitted at a later time. These eNOAD application features make completing and submitting subsequent NOAs faster and easier, but this final rule makes clear that the Coast Guard will continue to accept other electronic methods of submission, such as emailing an XML spreadsheet to
enoad@nvmc.uscg.gov.
As discussed in VI.A.12, we amended § 160.210(a) to provide the option for a vessel operator who does not have shore-side support available to fax or phone in an NOA or an update, for a vessel in an area without internet access or when experiencing technical difficulties with an onboard computer.
• We revised the
When to submit an NOA
section, § 160.212, to adjust, in paragraph (a)(3), when NOA
submissions would be required for Canadian-flag vessels less than 300 gross tons arriving directly from Canada via boundary waters in response to provisions of the Treaty between the United States and Great Britain relating to boundary waters between the United States and Canada (Boundary Waters Treaty), 36 Stat. 2448; Treaty Series 548. (For a discussion of comments related to this treaty's provisions, see “When to submit an NOA” discussion in VI.A.7; also see the “Exemptions” discussion of this treaty in VI.A.3). Also, we inserted “Times for submitting NOAs are as follows” as introductory text for paragraph (a)(4) to conform with the introductory text of paragraph (b)(4).
• In response to comments on the
When to submit an NOD
section, § 160.213, we decided to eliminate our proposed NOD requirement and to remove § 160.213 . We determined that NOA submission requirements would provide sufficient information. For our rationale, see the “When to Submit an NOD” discussion in VI.A.8.
• In the
Vessel operating requirements
section, § 161.12, we corrected a section reference from “§ 160.203” to “§ 160.202.” We also made similar conforming amendments to reflect the redesignation of our definitions section to § 160.202 in: 33 CFR 101.105, 110.158, 110.168, 110.214, 117.1007, 151.2025, 161.12, 161.19, 165.503, 165.510, 165.753, 165.811, 165.830, 165.921, 165.1181, 165.1183, and 46 CFR 4.05-1 and 148.11. Also as a conforming amendment in a note to table 161.12(c) in § 161.12, we removed a reference to § 164.46 requirements applying to certain VTS and Vessel Movement Reporting System (VMRS) areas because our amendment to § 164.46 in this final rule expands AIS applicability beyond VTS and VMRS areas.
• In the
Applicability exception for foreign vessels
section, § 164.02, we inserted the word “foreign” into paragraph (a) to clarify that, except where noted, the requirements of this part do not apply to foreign vessels that meet the criteria listed in paragraphs (a)(1) and (a)(2) of that section.
• In the
Incorporation by reference
section, § 164.03, for reasons stated in the description of § 164.46(a) changes immediately below, we added IMO Safety of Navigation Circular SN.1/Circ.289, regarding “Guidance on the Use of AIS Application-Specific Messages;” deleted SN/Circ.236, which SN.1/Circ.289 revoked; and added National Marine Electronics Association (NMEA) Installation Standard 0400-3.10. We also updated and supplemented contact information for organizations listed in this section.
• In the
Automatic Identification System
section, § 164.46, we made the following revisions:
○ In paragraph (a),
Definitions,
we revised the definition for “Properly installed, operational” by adding International Maritime Organization Safety of Navigation Circular 289, deleting Circular 236, and adding the National Marine Electronics Association (NMEA) Installation Standard 0400-3.10. The IMO Maritime Safety Committee approved SN.1/Circ.289 after publication of our NPRM. This new circular revises two application specific messages denoted in IMO SN/Circ.236, revokes five others, and, adds 14 new applications. As noted below in our “Broader Use of AIS” discussion in VI.B.2, the applications added by SN.1/Circ.289 will broadly expand the capability and use of AIS. SN.1/Circ.289 revoked SN/Circ.236 effective January 1, 2013. Based on a comment, we added NMEA Installation Standard 0400-3.10 as an option to comply with it in lieu of SN/Circ.227 and 245 because the IMO AIS requirements and guidelines were tailored to large deep-draft seagoing vessels and may be impractical for the majority of small and shallow-draft vessels subject to this rule. An example of an impracticality created by IMO AIS requirements would be a 27-foot vessel attempting to maintain a 30-foot separation between radio antennas on board. For our response to the comment, see the “Impracticability” discussion in VI.B.4.
○ In response to comments, in paragraph (b),
AIS carriage,
we specified a Coast Guard type-approved AIS Class A device as the standard for meeting the carriage requirement (for our rationale, see “AIS Class B” discussion in VI.B.7); we redesignated paragraphs (b)(1)-(5) as (b)(1)(i)-(v) to facilitate our addition of paragraph (b)(2) that lists vessels we determined may use a Coast Guard type-approved AIS Class B device to satisfy the carriage requirement (for our rationale, see “AIS Class B” discussion in VI.B.7); we revised the applicability criteria for vessels carrying passengers by setting a higher general threshold than we had proposed—those carrying more than 150 passengers (instead of more than 50)—and by not adopting our proposed inclusion of vessels carrying more than 12 passengers for hire and capable of speeds in excess of 30 knots (for our rationale, see “Applicability” and “Broader Use of AIS” discussions in VI.B.1 and VI.B.2); and we supplemented the vessels-moving-certain-dangerous-cargo applicability paragraph to ensure that vessels carrying or moving propane and gasoline as cargo are also required to use AIS (for our rationale, see “Definitions” discussion in VI.A.2 and “Applicability” and “Expanding AIS Carriage” discussions in VI.B.1 and VI.B.3). To be consistent in our terminology, we changed “engaged in commercial towing” in paragraph (b)(1)(ii) that expressly covers towing vessels to “engaged in commercial service,” and in paragraph (b)(1)(v) we deleted the “es” from “cargoes” to match the term we point to as being defined in 33 CFR part 160 subpart C, “certain dangerous cargo.” We also replaced the content of the informational note to paragraph (b), which discussed AIS Class B devices, with information regarding a Coast Guard Captain of the Port's (COTP's) authority under 33 U.S.C. 1223(b)(3) and 33 CFR 160.111 to restrict the operation of a vessel if he or she determines that, by reason of weather, visibility, sea conditions, port congestion, other hazardous circumstances, or the condition of such vessel, the restriction is justified in the interest of safety.
○ In paragraph (c),
SOLAS provisions,
we included the titles of Chapter V regulations 19.2.1.6, 19.2.3.5, and 19.2.5.1 (“Positioning System,” “Transmitting Heading Device,” and “Gyro Compass,” respectively) to make it easier for the reader to identity the subject matter of the SOLAS regulation listed. We also removed paragraph (c)(1) because the vessels we intended to cover with it that do not engage on international voyages are covered by § 164.46(b)(1) and those that do are covered by both § 164.46(b)(1) and proposed § 164.46(c)(2), which we redesignated as (c)(1) in this final rule.
○ Within paragraph (d),
Operations
—
In (d)(1), we replaced “33 U.S.C. 2001 through 2073” with “33 CFR part 83,” because 33 U.S.C. 2001-2038 have been repealed, and the inland navigation rules are now contained in 33 CFR part 83.
See
Sec. 303 of Public Law 108-293, and 75 FR 19544, April 15, 2010;
In (d)(2)(i), we removed the unnecessary phrase “should the need arise” and restructured this paragraph regarding the ability to reinitialize AIS so that it was easier to understand;
In (d)(2)(iv), we added the word “fields” to identify AIS data that must be accurately inputted;
In (d)(2)(v), we limited the applicability of the paragraph to vessels subject to § 164.46 (b) to distinguish SOLAS based-requirements applicable to vessels subject to paragraph (c); in response to comments (see
“Impracticability” discussion in VI.B.4), we added the words “and at least 15 minutes prior to getting underway if the vessel is” to limit the time AIS must be in continual operation on moored vessels; and, lastly, we condensed the discussion of AIS being turned off when continual operation would compromise safety or a security incident is imminent;
In (d)(3), we made minor edits to more clearly distinguish safety-related AIS text messaging from AIS application-specific messaging;
We added paragraph (d)(4) to address the emerging use of AIS ASM—and to further distinguish AIS ASM from AIS text messaging—by stating that AIS application-specific messages are permissible, but are limited to no more than one per minute and to messages consistent with international standards and registered for use in the United States or Canada; and
In the note to paragraph (d), we inserted a reference to, and World Wide Web address for, the “U.S. AIS Encoding Guide” to help AIS users encode (input) consistent and accurate data; we deleted the sentence referring to external positioning systems and amended the word `integration' to the more proper term `interfacing'; current AIS does not require further integration for its operation. We also added the sentence “Most application-specific messages require interfacing to an external system that is capable of their portrayal, such as equipment certified to meet Radio Technical Commission for Maritime Services (RTCM) standard 10900 series” to provide useful information to those planning to use AIS ASM.
○ In paragraphs (e),
Watchkeeping,
and (f),
Portable AIS,
we made minor edits for clarification.
○ In response to comments, in paragraph (g),
Pilot Port,
we replaced the term “Pilot Port” with the more specific term “AIS Pilot Plug;” added “by other than the vessel Master and crew” to qualify the subject-to-pilotage-based applicability of this paragraph; added “and permanently affixed (not an extension cord) and adjacent” to clarify positioning of the AIS Pilot Plug; and inserted a reference to NEMA 5-15 as an example of a 120-volt 50/60 Hz AC power receptacle.
○ In response to comments, in paragraph (h),
Exceptions,
we increased the possible maximum duration of a deviation from 1 year to 5 years (for our rationale, see the “Broader Use of AIS” discussion in VI.B.2); inserted examples to supplement our description of types of vessels that may seek a deviation from AIS requirements; added vessels whose design or construction makes it impracticable to operate an AIS device (
e.g.,
a submersible); and added those vessels using an AIS Class B device that lacks a display as a possible candidate for a deviation from AIS requirements in paragraphs (d)(2)(ii) and (e).
○ We redesignated paragraph (i),
Implementation Date,
as paragraph (j), and inserted a new paragraph (i),
Prohibition.
In the new “Implementation Date” paragraph (j) we included those vessels identified in paragraphs (b) and (c) of § 164.46 in the group of vessels that must install AIS no later than 13 months after publication of this final rule—the NPRM had proposed 7 months after publication. For our rationale, see the “Installation Period” discussion in VI.B.9.
○ We added new paragraph (i),
Prohibition,
to note there is a prohibition of shore-side broadcasts from AIS Class A or B devices unless such stations are specifically licensed (
e.g.,
a marine support station) to do so by the Federal Communications Commission. Class A and B devices are mobile devices not intended for shore-side use; their reporting rate is set by speed and course changes and so they have a navigation status. Using them ashore could confuse mariners on the water, who may assume they are mobile devices on the water (
e.g.,
coming around a bend vice in warehouse ashore) and take action accordingly.
VI. Discussion of Comments and Changes
As noted above, we received 91 written submissions to our docket, and statements from 27 persons who spoke at our public meetings. In total, there were approximately 475 comments in response to our NPRM. These written submissions and summaries of our two public meetings are available in the public docket for this rulemaking, where indicated under
ADDRESSES
or use direct link
http://www.regulations.gov/#!docketDetail;D=USCG-2005-21869.
Below, we summarize these comments and any changes we made to the regulatory text in response. We discuss the NOAD comments first, then the AIS comments, and, finally, the Regulatory Assessment comments.
A. Notice of Arrival and Departure
In the NPRM, we used 11 categories to describe our proposed revisions to NOA regulations.
See
73 FR 76302-03, December 16, 2008. We used nine of these same categories below to discuss comments we received on the NOAD portion of the NPRM. We did not receive comments on our proposed § 160.205 to clarify who must submit an NOAD or on our proposed removal of a suspended requirement related to Customs Form 1302, so we did not use those two categories below. We have inserted five additional comment discussion categories: Need for NOAD Data and Agency Collaboration in Obtaining It, Scope and Scale, Financial Impact, Outer Continental Shelf, and Miscellaneous. Some comments raised issues in more than one of these categories, so we occasionally return to a discussion of a comment.
1. Applicability
One commenter recommended that we clarify the phrase “port or place of the United States” as it pertains to U.S. Outer Continental Shelf (OCS) locations. The commenter noted that the Coast Guard used the term “port or place of the United States” in § 160.203, which sets out the applicability of this rule, without providing a specific definition. They said that the Coast Guard declined to define this term as requested by the commenter in its August 5, 2002 submission to the docket (USCG-2002-11865-0008) for the “Automatic Identification System; Vessel Carriage Requirement” rulemaking that produced a final rule in 2003. The commenter seeks to clarify this term as it pertains to a location on the OCS, which can become viewed as a “place in the United States” when a Mobile Offshore Drilling Unit (MODU) is operating on location. The commenter notes that the Coast Guard's statement in the 2003 rule (68 FR 9537, 9538, Feb. 28, 2003) suggests that the Coast Guard may not consider a location on OCS to be a U.S. port or place.
The Coast Guard addressed Notice of Arrival issues concerning the OCS in a January 2011 final rule titled “Notice of Arrival on the Outer Continental Shelf” (76 FR 2254, January 13, 2011). Based on this and similar comments, however, and as discussed further below in the NOA “Definitions” and “Outer Continental Shelf” sections, VI.A.2 and VI.A.14, we have revised § 160.203 to limit the applicability of regulations in 33 CFR part 160, subpart C, to vessels bound for or departing from U.S. ports or places in the navigable waters of the United States or deepwater ports. This revision is intended to make clear that, with the exception of visits to deepwater ports, visits to ports or places in the OCS are covered by 33 CFR part 146 and are not covered by this rule.
We have placed NOA applicability and exemption provisions from both the final rule and the current CFR adjacent to each other in the following derivation and comparison table so that you may
quickly identify changes this final rule is introducing that may impact your vessel or company.
Table 1—NOAD Derivation and Comparison Table: Final Rule and Corresponding Current Applicability or Exemption Paragraphs in 33 CFR Part 160
Final rule section or paragraph in 33 CFR part 160
Text
Corresponding section or paragraph currently in 33 CFR part 160
Text
§ 160.203(a)
This subpart applies to the following vessels that are bound for or departing from ports or places within the navigable waters of the United States, as defined in 33 CFR 2.36(a), which includes internal waters and the territorial seas of the United States, and any deepwater port as defined in 33 CFR 148.5:
(1) U.S. vessels in commercial service, and
(2) All foreign vessels.
§ 160.202(a) & (b)
(a) This subpart applies to U.S. and foreign vessels bound for or departing from ports or places in the United States.
(b) This subpart does not apply to U.S. recreational vessels under 46 U.S.C. 4301 et seq., but does apply to foreign recreational vessels.
§ 160.204(a)
NO CHANGE IN TEXT FROM CURRENT CORRESPONDING CFR PARAGRAPH
§ 160.203(a)
Except for reporting notice of hazardous conditions, the following vessels are exempt from requirements in this subpart:
(1)
A passenger or offshore supply vessel when employed in the exploration for or in the removal of oil, gas, or mineral resources on the continental shelf
(1)
Passenger and supply vessels when they are employed in the exploration for or in the removal of oil, gas, or mineral resources on the continental shelf.
(2)
An oil spill response vessel (OSRV) when engaged in actual spill response operations or during spill response exercises
(2)
Oil Spill Recovery Vessels (OSRVs) when engaged in actual spill response operations or during spill response exercises.
(3)
After December 31, 2015, a vessel required by 33 CFR 165.830 or 165.921 to report its movements, its cargo, or the cargo in barges it is towing
(3)
(3) Vessels operating upon the following waters:
(i) Mississippi River between its sources and mile 235, Above Head of Passes;
(ii) Tributaries emptying into the Mississippi River above mile 235;
(iii) Atchafalaya River above its junction with the Plaquemine-Morgan City alternate waterway and the Red River; and
(iv) The Tennessee River from its confluence with the Ohio River to mile zero on the Mobile River and all other tributaries between those two points.
(4)
A United States or Canadian vessel engaged in the salving operations of any property wrecked, or rendering aid and assistance to any vessels wrecked, disabled, or in distress, in waters specified in Article II of the 1908 Treaty of Extradition, Wrecking and Salvage (35 Stat. 2035; Treaty Series 502)
NO CORRESPONDING PARAGRAPH.
(5)
The following vessels neither carrying certain dangerous cargo nor controlling another vessel carrying certain dangerous cargo
(b)
If not carrying certain dangerous cargo or controlling another vessel carrying certain dangerous cargo, the following vessels are exempt from NOA requirements in this subpart:
(i)
A foreign vessel 300 gross tons or less not engaged in commercial service
(1)
Vessels 300 gross tons or less, except for foreign vessels entering any port or place in the Seventh Coast Guard District as described in 33 CFR 3.35-1(b).
(ii)
A vessel operating exclusively within a single Captain of the Port zone. Captain of the Port zones are defined in 33 CFR part 3
(2)
Vessels operating exclusively within a Captain of the Port Zone.
(iii)
A U.S. towing vessel and a U.S. barge operating solely between ports or places of the contiguous 48 states, Alaska, and the District of Columbia
(4)
Towing vessels and barges operating solely between ports or places in the continental United States.
(iv)
A public vessel
(5)
Public vessels.
(v)
Except for a tank vessel, a U.S. vessel operating solely between ports or places of the United States on the Great Lakes
(6)
Except for tank vessels, U.S. vessels operating solely between ports or places in the United States on the Great Lakes.
(vi)
A U.S. vessel 300 gross tons or less, engaged in commercial service not coming from a foreign port or place
(b)(1)
Vessels 300 gross tons or less, except for foreign vessels entering any port or place in the Seventh Coast Guard District as described in 33 CFR 3.35-1(b).
(vii)
Each ferry on a fixed route that is described in an accurate schedule that is submitted by the ferry operator, along with information in paragraphs (a)(5)(vii)(A)-(J) of this section, to the Captain of the Port for each port or place of destination listed in the schedule at least 24 hours in advance of the first date and time of arrival listed on the schedule. At least 24 hours before the first date and time of arrival listed on the ferry schedule, each ferry operator who submits a schedule under paragraph (a)(5)(vii) of this section must also provide the following information to the Captain of the Port for each port or place of destination listed in the schedule for the ferry, and if the schedule or the following submitted information changes, the ferry operator must submit an updated schedule at least 24 hours in advance of the first date and time of arrival listed on the new schedule, and updates on the following items whenever the submitted information is no longer accurate:
NO CORRESPONDING PARAGRAPH.
(A) Name of the vessel;
(B) Country of registry of the vessel;
(C) Call sign of the vessel;
(D) International Maritime Organization (IMO) international number or, if the vessel does not have an assigned IMO international number, the official number of the vessel;
(E) Name of the registered owner of the vessel;
(F) Name of the operator of the vessel;
(G) Name of the vessel's classification society or recognized organization, if applicable;
(H) Each port or place of destination;
(I) Estimated dates and times of arrivals at and departures from these ports or places; and
(J) Name and telephone number of a 24-hour point of contact
(6)
April 30, 2015 through December 31, 2015, vessels identified as being subject to 33 CFR 165.830 or 165.921
NO CORRESPONDING PARAGRAPH.
§ 160.215
When a vessel is bound for a port or place of the United States under force majeure, it must comply with the requirements in this section, but not other sections of this subpart. The vessel must report the following information to the nearest Captain of the Port as soon as practicable:
(b)(3)
Vessels arriving at a port or place under force majeure.
(a) The vessel Master's intentions;
(b) Any hazardous conditions as defined in § 160.202; and
(c) If the vessel is carrying certain dangerous cargo or controlling a vessel carrying certain dangerous cargo, the amount and name of each CDC carried, including cargo UN number if applicable
2. Definitions
One commenter recommended that the definition of “certain dangerous cargo” be expanded to include vessels carrying propane and gasoline so that these vessels would have to use AIS under AIS regulations redesignated as 33 CFR 164.46(b)(1)(v).
For purposes of NOA regulations, there is a definition of certain dangerous cargo (CDC) in redesignated § 160.202, which is referenced in AIS regulation 33 CFR 164.46(b)(1)(v). The definition of CDC was revised by a separate final rule entitled “Notification of Arrival in U.S. Ports; Certain Dangerous Cargoes” (75 FR 59617, September 28, 2010). We address the recommendation that vessels moving propane or gasoline as cargo be required to use AIS in the AIS portion of this final rule preamble because we amended redesignated 33 CFR 164.46(b)(1)(v) in the AIS regulations, instead of changing the NOA definition of CDC in 33 CFR part 160, which would have triggered other requirements not requested by the commenter.
One commenter who operates youth-program sailing vessels, recommended adding the following sentence to our proposed “commercial service” definition in § 160.202: “A vessel in which persons on board are sharing expenses, with no paid staff and which is engaged in youth development of character and citizenship shall not be considered a commercial vessel.”
We note that our definition for “commercial service” mirrors the definition in 46 U.S.C. 2101 and is intended to cover a broad range of commercial activities. We did not change our definition of commercial service based on this comment because the suggested revision would unnecessarily narrow that definition.
1
1
Our definition of “commercial service” is also very similar to CBP's definition of “commercial vessel” in 19 CFR 4.7b(a).
A youth vessel inspected as a sailing school vessel under 46 CFR part 169 would not be considered to be operating in commercial service, and thus would not be subject to NOA requirements. But the commenter noted that his youth-program vessels are licensed as Small Passenger Vessels under 46 CFR chapter I, subchapter T, which would be considered vessels engaged in commercial service. If these vessels are operating exclusively within a single COTP zone (
see
33 CFR part 3 for a description of zones), they likely qualify for the exemption in § 160.204(a)(5)(ii). Also, under 33 CFR 160.214, the vessel owner may request a waiver from NOAD requirements from the local COTP. This waiver provision allows the COTP to make assessments based on factors in his or her COTP zone that are difficult to account for in a general rule.
One commenter recommended that the current definition of “operator” should explicitly state that, for vessels subject to SOLAS Chapter IX, the operator is the “company” listed on the vessel's Continuous Synopsis Record (CSR), International Safety Management (ISM) Document of Compliance, and Safety Management Certificate.
We note that the operator will not always meet the SOLAS Chapter IX definition of “company.” We did not propose to change the definition of “operator” in our NPRM and we did not change the definition based on this comment because the SOLAS Chapter IX, Reg. 1 definition of “company” does not limit the owner, organization, or person who has assumed responsibility for operation of the ship to the “company” listed on the vessel's Continuous Synopsis Record, ISM Document of Compliance, and Safety Management Certificate. The unchanged definition of “operator,” which appears in redesignated § 160.202, identifies the “person including, but not limited to, an owner, a charterer, or another contractor who conducts, or is responsible for, the operation of the vessel” as the operator.
One commenter noted that, given the availability of dynamic positioning systems, the definitions of “port or place of departure” and “port or place of destination” should be revised to capture locations where vessels transfer passengers or cargo offshore, even if the vessel is not anchored or moored.
With respect to this final rule, we do not agree that we should add the offshore transfer of passengers or cargo as a factor for either of these definitions. This final rule expands the AIS requirements to include more vessels; therefore, we are increasing our MDA of
when two or more vessels may be engaged in the activities the commenter describes. Also, to the extent these offshore activities take place in U.S. navigable waters, revising these two § 160.202 definitions as suggested would create a burden for vessels engaged in lightering offshore, and we decline to impose such a requirement without obtaining comments on the suggested revision. Additionally, a separate final rule titled “Notice of Arrival on the Outer Continental Shelf” (76 FR 2254) was published January 13, 2011, which addressed NOA requirements for certain offshore activities.
3. Exemptions
Commenters gave various reasons why ferries should be exempted from NOAD requirements: Current CBP practices of prescreening passengers in Canada and subjecting the vessel to a customs inspection when it arrives in the United States make Coast Guard NOAD requirements redundant and unjustifiable; ferries operate on a set arrival and departure schedule, so the Coast Guard already knows when a ferry will arrive; risks associated with pre-screened international ferry passengers are significantly less than risks associated with domestic ferries; under the Western Hemisphere Travel Initiative, at the United States-Canadian border, each person must have a passport, United States passport card, or certain other limited acceptable official documents; collecting and transmitting data 60 minutes before departure would eliminate a ferry operator's ability to serve last-minute travelers; NOA requirements on ferries would impact profitability and increase labor costs to collect and enter data; ferries that operate between different COTP zones, even though the ports are nearby, would be required to submit excessive daily reports even though the government has failed to show any heightened risk for operating between two COTP zones, while another operator transiting as far or farther in a single COTP zone would not be burdened with high costs of submitting 20 NOADs per day; and NOA requirements would put ferries at a competitive disadvantage with alternate choices in travel, such as land routes.
Based on comments received, we have added an NOA reporting exemption for certain ferries. We recognize that ferries are on fixed routes and schedules that can result in multiple, predictable visits within a 24-hour period to the same U.S. port, and that, due to the nature of ferry operations, it would be impractical to subject ferries to the same NOA reporting requirements as other vessels. Therefore, in this final rule we exempt ferries, as defined in 46 U.S.C. 2101(10b), that provide certain information to COTPs. As discussed above, we have not included our proposed notice of departure requirement in this final rule.
To qualify for this exemption, the ferry operator must submit the schedule for the ferry to the COTP for each port or place of destination listed in the schedule by April 30, 2015, or at least 24 hours in advance of the first date and time of arrival listed on the schedule, in addition to other information listed in new paragraph § 160.204(a)(5)(vii), including a 24-hour contact number. This exception more closely aligns with the CBP's exception in 19 CFR 4.7b(c)(1), which does not require ferries to submit either an electronic passenger arrival manifest or an electronic crew member arrival manifest. Because we need to ensure that the Coast Guard's 41 COTPs are aware of ferries entering their zones, a blanket exemption for ferries would not satisfy our need to maintain sufficient MDA.
One commenter requested an exemption for fixed-route ferry systems and tour operators remaining within specific geographic areas less than 1 nautical mile from land, whose vessels, routes, and schedules are established, and that this exemption apply to those operations (a) that are not on international voyages, (b) that do not provide overnight accommodations, and (c) whose voyages are less than 6 hours long. The commenter noted that this last provision would benefit those operations most impacted by the NOAD/AIS requirements: Small ferry operators, harbor excursion, and nature cruise operators. Also, a commenter stated that vessels such as large fish tenders make several short duration calls in separate COTP zones, triggering back-to-back reporting and an undue amount of paperwork.
The final rule contains many exemptions that apply in all U.S. waters, but there are limits to the use of general exemptions. A given set of factors, such as those described by the first commenter, may not pose a safety or security threat in one COTP zone, but may in another. For those situations, the Coast Guard may issue a waiver under § 160.214 that allows us to make assessments at the COTP level to grant relief from NOA reporting requirements based on factors specific to a given port or COTP zone.
As noted above, since publication of the NPRM, we have added an exemption for ferries that provide certain general information to COTPs. First, if the vessels on a fixed route in a specific geographic area the commenter describes do not meet the definition of “ferry,” but operate exclusively within one COTP zone and do not carry CDC, the vessels would be exempt from NOA requirements under § 160.203(a)(5)(ii). Second, if such vessels are on a fixed route transiting two or more COTP zones, the COTP in each of those zones has the discretion to grant a waiver under 33 CFR 160.214. Similarly, the large fish tenders, mentioned in the second comment, that make short trips transiting more than one COTP zone may request a waiver from the COTPs responsible for those zones.
A commenter recommended that, rather than requiring an operator to submit for renewal annually, a waiver should remain in force until a material change occurs, such as a change in route or character of the navigable waterway. This remain-in-force-until-material-change approach would be similar to the EPA Vessel General Permit and the state-issued Department of Environmental Protection Stormwater Runoff Permit automated renewal precedent. This change from the proposed rule would relieve an operator of yet another administrative task, while appropriately assigning reporting responsibility.
We note that if a waiver is granted, the termination date of that waiver will be at the discretion of the COTP. Over time, factors that impact security or safety may change. Periodic review of waivers allows the COTP to determine whether continuing a waiver is consistent with current security and safety assessments and strategy. We did not make any changes from the proposed rule based on this comment.
One commenter supports NOA requirements for vessels carrying CDC, but noted that when conditions make such requirements unnecessary, the Coast Guard should provide a waiver provision.
We note that § 160.214 provides a waiver provision at the COTP's discretion if NOA requirements appear to be unnecessary. In addition, force majeure provisions in § 160.215 of this final rule contain only limited reporting requirements under certain conditions beyond the control of the ship's Master. As previously noted, a separate final rule titled “Notification of Arrival in U.S. Ports; Certain Dangerous Cargoes” was published September 28, 2010. That rule is intended to relieve an unnecessary burden on industry by including more lower-risk cargoes in the CDC residue category, thereby reducing the number of notice of arrival
submissions required based on the cargo a vessel is carrying. These new CDC and CDC-residue definitions currently appear in § 160.204, which will be redesignated by this final rule as § 160.202. This section redesignation is intended to move the definitions closer to the beginning of subpart C. We made no revisions in response to this waiver-provision comment.
One commenter stated that NOA regulations should not apply to tender vessel operations for cruise ships, whether performed by ship's tender or by a local vessel hired for this purpose. The commenter stated that non-U.S.-flag cruise ships arriving at or departing from any U.S. port currently must submit an NOA, irrespective of whether the previous port of departure or entry is a U.S. or foreign port, and that these notices cover passenger and crew manifests; that because the cruise ship is already in a U.S. port, the tender vessel is neither physically arriving at, nor departing from, a foreign port; that for CBP purposes, these persons are considered to have arrived or departed upon arrival or departure of the cruise ship itself; that no persons are permitted to come ashore unless and until the CBP officers have cleared the ship, and that further clearance is unnecessary when passengers depart the ship to the shore, whether departure is facilitated by a gangway or by a tendering vessel; that these vessels would also appear to be exempt from NOA requirements because their temporary operations within a port occur exclusively within a single COTP zone; and that some tendering vessels may be exempted or may receive a waiver under the limited local area of operation, but that exemption may be too narrowly defined, because some tendering vessels may travel as far as 2 or 3 miles.
We have not established a separate NOA exemption for tender vessels, but under § 160.204(a)(5)(ii), to the extent that the operations of tender vessels are exclusively within a single COTP zone, and the vessel is not carrying CDC, the tender vessel would not need to submit an NOA. If a tender vessel is carried onboard an arriving cruise ship, then a separate NOA need not be submitted for the tender vessel but if after this arrival the tender vessel begins traveling under its own power, it would be subject to NOAD requirements unless it fits into an NOAD exemption. In situations where a local tender vessel services one or more cruise ships, as long as it operates exclusively in a single COTP zone and is not carrying CDC, the tender vessel would be exempt from NOA requirements. In response to this and other comments, we have added a definition for “Operating exclusively within a single Captain of the Port zone” in § 160.202 to clarify what we mean by that term.
One commenter noted that its youth program vessels would not be able to comply with NOAD requirements because these sailing vessels have no computers on board and there is no Wi-Fi (wireless Internet or network connections) available in the inlet from which the vessels sail. The commenter suggested that this problem could be settled if a waiver or exemption is granted or if its vessels were considered noncommercial.
As noted above in the “Definitions” discussion, VI.A.2, we did not change the definition of “commercial vessel” for these vessels for the reasons stated there, nor do we see a valid basis for creating an exemption for vessels in this program. However, the waiver section in subpart C, § 160.214, may be a means to deal with the situation this commenter described. The COTP may grant a waiver of some or all of the NOA requirements for a given situation if, based on the COTP's assessment, a waiver is warranted. Also, note that in response to a comment discussed below in VI.A.12, we amended § 160.210(a) to provide the option for a vessel operator who does not have shore-side support available to fax or phone in an NOA or an update, for a vessel in an area without internet access or when experiencing technical difficulties with an onboard computer.
One commenter expressed support for the proposal to maintain the exemption for U.S. commercial vessels 300 gross tons or less and not carrying CDC that transit between ports or places of the United States. This commenter stated that changing this exemption would adversely affect commerce, specifically intercoastal commerce, and, subsequently, interstate commerce.
This comment relates to § 160.204(a)(4)(vi) in the NPRM. As proposed, we narrowed the 300-gross-tons-or-less exemption in the current § 160.203(b)(1) that covers U.S. and foreign vessels. Under § 160.204(a)(5)(vi) in this final rule, a U.S. vessel 300 gross tons or less, engaged in commercial service but not carrying CDC, will be exempt from NOA requirements only if the vessel is not coming from a foreign port or place. There is no longer an NOA exception for foreign commercial vessels based on tonnage, but § 160.204(a)(5)(i) does contain an exemption for foreign vessels 300 gross tons or less not engaged in commercial service.
One commenter asked us to consider the 1908 Treaty of Extradition, Wrecking and Salvage (Salvage Treaty) (35 Stat. 2035; Treaty Series 502). This treaty states, in part, that nothing in customs, coasting, or other laws or regulations shall restrict in any manner salving operations of vessels wrecked, disabled, or in distress, or wrecking appliances “in the waters or on the shores of the other country in that portion of the St. Lawrence River through which the International Boundary line extends, and, in Lake Ontario, Lake Erie, Lake St. Clair, Lake Huron, and Lake Superior, and in the Rivers Niagara, Detroit, St. Clair, and Ste Marie, and the Canals at Sault Ste Marie, and on the shores and in the waters of the other country along the Atlantic and Pacific Coasts within a distance of thirty miles from the International Boundary on such Coasts.” Art. II of the Salvage Treaty. Regarding reporting, it states that vessels from either the United States or Canada employed in salving in the waters of the other shall, as soon as practicable afterwards, make full report at the nearest custom house of the country in whose waters such salving takes place. The commenter also noted that Article II of the Salvage Treaty also permits vessels from either country to conduct emergency operations in the other's territorial waters when necessary to assist a disabled vessel in distress. The commenter concluded that requiring tugs or other vessels to comply with time clearances and notices prior to and after embarking on an Article II mission would restrict salving operations, putting vessels, crews, property, and the environment at risk.
Based on this comment about the Salvage Treaty which provides reciprocal rights for United States and Canada in matters of wrecking and salvage, we have added an exemption for United States- and Canadian-flag vessels engaged in operations identified by Article II of this treaty for the waters and shores it specifies. This exemption appears in revised § 160.204(a)(4).
One commenter noted that exemptions in proposed § 160.204(a)(4)(iii) for U.S. towing vessels and U.S. barges operating solely between ports or places of the continental United States should include passenger vessels operating solely on fixed routes between ports and places of the continental United States. The commenter states that exemptions already exist for U.S. towing vessels and barges, commercial U.S. vessels less than 300 gross tons, public vessels, and vessels other than tank vessels operating on the Great Lakes.
We note that certain passenger vessels may qualify for some of the four
exemptions cited by this commenter, but reasons for those exemptions do not support creating a general exemption for all passenger vessels. First, towing vessels and barges do not carry passengers and, like other vessels, are required to comply with NOA requirements when carrying CDC. Second, before September 11, 2001, both United States- and Canadian-flag vessels that operated solely on the Great Lakes and that were not tank vessels or carrying CDC were exempt under 33 CFR 160.201(c)(8)(2001) from NOA requirements. Our current Great Lakes exception, § 160.203(b)(6), reflected in redesignated § 160.204(a)(5)(v) of this final rule, is narrower but does not exclude passenger vessels, and is consistent with the more-than 100-year-old Boundary Waters Treaty, proclaimed May 13, 1910, with specific provisions to “continue free and open [navigation] for the purposes of commerce” on the Great Lakes and other United States-Canadian boundary waters. Third, some passenger vessels would qualify for the exemption under § 160.204(a)(5)(vi) for U.S. commercial vessels 300 gross tons or less that are not carrying CDC or coming from a foreign port or place, and those passenger vessels greater than 300 gross tons would share size features that warrant NOA requirements. Fourth, the Coast Guard established the exemption for public vessels not carrying CDC because such vessels would be owned or operated by a government. We have not made a change from the proposed rule based on this comment.
In addition to the exemptions cited, certain passenger vessels will qualify for an exemption we have added to the final rule for ferries that provide certain general information to COTPs. Other passenger vessels seeking exemptions for operating solely on fixed routes between ports or places in the continental United States may seek a waiver under 33 CFR 160.214 from each COTP for the zones the vessel plans to transit. The operating-within-a-single-COTP-zone exception relieves a reporting burden for non-CDC vessels once they enter a COTP zone but does not interfere with each COTP having access to NOA information for vessels subject to NOA requirements that arrive in the COTP's zone.
One commenter noted that the proposed revision to NOAD regulations does not affect its vessels transporting passengers and vehicles to the island of Martha's Vineyard and Nantucket, but that it would be unjustifiable to impose NOAD on operations within lakes, bays, or sounds.
We note that the exemption for vessels not carrying CDC that operate exclusively within the same COTP zone may cover most vessels otherwise subject to NOAD regulations that operate in lakes, bays, or sounds. If a vessel is transiting more than one COTP zone, however, then under 33 CFR 160.214, the vessel Master may request a waiver from NOA requirements. As noted above, based on comments received on the NPRM, we have included an exemption for ferries that provide certain general information to the COTPs.
One commenter noted that the existing § 160.204(b)(2) and proposed § 160.204(a)(4)(ii) operating-exclusively-in-a-single-COTP-zone exception is confusing and will decrease MDA. The commenter stated that this exemption should be removed, made applicable to U.S.-flag vessels only, or limited to vessels that remain inside the territorial sea baseline or boundary line. Finally, the commenter recommended that if the exemption stays, it should be reworded to remove “exclusively,” and should instead read “A vessel that transits from one port or place to another port or place within a single Captain of the Port zone. Captain of the Port zones are defined in 33 CFR part 3.” Another commenter cited Congressional mandates in the Security and Accountability for Every Port Act of 2006 (SAFE Port Act)(Pub. L. 109-347) to support his request to exclude foreign vessels from this exemption. Another commenter stated that, regarding the exemption for operating within a single COTP zone, typically, the NOA is understood to be required for arrival at a port. The commenter noted that if a COTP zone area is 200 miles all the way out to the exclusive economic zone, a vessel does not have to submit an NOA to that place, be it at the Louisiana Offshore Oil Port (LOOP) or a port. The commenter asked if this single-COTP-zone exemption includes “voyages to nowhere;” for example, a ship that leaves Miami, goes offshore for 24 or 48 hours, stays within the COTP Miami zone, and comes back to Miami. The commenter also asked whether the exemption is for navigable waters only or also includes the exclusive economic zone.
In response to the commenter who finds the term confusing, we have added a definition of “operating exclusively within a single Captain of the Port zone” to 33 CFR 160.204 that is intended to clarify the NOAD single-COTP-zone exemption.
While a vessel's initial arrival in a COTP zone may require the submission of an NOA, when a vessel is operating exclusively within a single COTP zone, it may qualify for an exemption under § 160.204(a)(5)(ii) and thus not have to file an NOA or update for each of its transits within that COTP zone. With regard to the recommendation that this operating-in-a-single-COTP-zone exemption only apply to U.S.-flag vessels, we note that foreign-flag vessels are screened upon arrival to their first U.S. port, as are U.S. commercial vessels arriving from a foreign port or place. Therefore, the potential threat posed by a foreign vessel can be assessed and appropriate measures taken on a case-by-case basis, rather than having this exception apply only to U.S. vessels. This approach allows for efficient use of Coast Guard assets and resources and prevents the imposition of an unnecessary burden on the maritime industry.
Under regulations in 33 CFR part 160, subpart C, the COTP zone exemption covers the entire COTP zone, which may extend 200 nautical miles from shore. If the “trip to nowhere” is within a single COTP zone, then it would not trigger NOA requirements in part 160. Current regulations in 33 CFR part 146, however, impose separate NOA requirements for vessels calling on an offshore location.
See
specifically §§ 146.401 and 146.405. Also, in reference to the LOOP, § 150.325 identifies NOAD requirements for the owner, Master, agent, or person in charge of a tanker bound for a manned deepwater port.
One commenter noted that the exemption for passenger vessels and offshore supply vessels (OSVs)(§ 160.204(a)(1)) when employed in the exploration for or in the removal of oil, gas, or mineral resources on the continental shelf, and for oil spill response vessels (OSRVs) (§ 160.204(a)(2)) when engaged in actual spill response operations or during spill response exercises, should not extend to foreign-flag vessels. The commenter notes that, as written, the exemption for OSRVs and OSVs may be interpreted as allowing similar foreign vessels to enter or leave U.S. ports without reporting, and that such vessels currently work “under the radar” of government agencies and thus create security vulnerabilities. The commenter recommended that the Coast Guard add “U.S.” to § 160.204(a) to indicate that exempt vessels do not include foreign-flag vessels. The commenter cautioned that if the Coast Guard left the final rule written as the proposed rule, the final rule would allow foreign-flag offshore supply vessels to come and go at will in this country, and that this would
represent a security risk to America, in direct violation of the law.
We note that under § 160.204(a), OSRVs, whether foreign flag or U.S. flag, will continue to be exempt from requirements in 33 CFR part 160, subpart C, when they are engaged in actual spill response operations or during spill response exercises, as will U.S. and foreign passenger vessels and offshore supply vessels when employed in the exploration for or in the removal of oil, gas, or mineral resources on the continental shelf. As we have noted, however, we recently published an NOA-OCS final rule (76 FR 2254, Jan. 13, 2011) that covers notice-of-arrival requirements on the OCS and satisfies SAFE Port Act implementation requirements intended to improve maritime security through enhanced layered defenses, and for other purposes. For NOA requirements on the Outer Continental Shelf, see 33 CFR part 146. We did not make any changes from the proposed rule based on this comment.
One commenter stated that the Coast Guard should consider that individual vessel waivers by COTP will not work given the number of vessels visiting various ports at various times and having to be considered individually.
We anticipate that COTPs will be able to meet the demand created by waiver requests. We recognize that factors presented by certain vessels that will be subject to NOAD requirement for the first time under this final rule may warrant a waiver for a specific vessel within a specific COTP zone, and that COTPs may receive more waiver requests in response to this final rule. We have taken into consideration the COTP's workload under the waiver provision of § 160.214 and have reviewed blanket exemption requests extensively to determine if relief may be granted at the national level in this final rule. We have determined that allowing COTPs to grant waivers should continue to be a means we leave open to provide relief from NOAD requirements when such relief is justified in a specific situation.
One commenter focused on the OCS and requested that the Coast Guard ensure that the exemptions from NOA only apply to U.S.-flag vessels, and that this exemption should be across the board—not just for offshore supply vessels, but for OSRVs and some of the other vessels that have exemptions.
We have concluded that limiting exemptions to U.S.-flag vessels is impracticable because it would place an unnecessary burden on foreign-flag vessels, which may interfere with commerce. The NOA requirements serve a variety of purposes, including, but not limited to, maintaining MDA and scheduling inspections. Once a foreign-flag ship has been screened and appropriate activities (inspection, boarding, etc.) have been carried out, the Coast Guard has assessed, and in some cases reduced, the risk the ship may pose.
One commenter stated that, from the enforcement side, there is sometimes a difference between how arrivals and departures are reported. The commenter offered the following example: A vessel arrives in Miami and submits an NOA for Miami. While the vessel is in port, it shifts to Fort Lauderdale, which is still within the COTP Miami Zone. But for the NOD to be accurate, it would report Fort Lauderdale. The commenter asks whether this scenario creates enforcement confusion and if there is some means to address this.
We do not believe situations like this will create an issue as it pertains to enforcement. The COTP is aware of his or her geographical boundaries and the ports within those boundaries. And, as we discuss elsewhere, we have eliminated our proposed notice of departure. But if a vessel is operating in a single COTP zone and submits an NOA from a departure port within that zone that is different from their arrival port in that zone, it will not create confusion.
One commenter who reported making frequent near-port offshore transits offered his assessment that local Coast Guard concerns deal with the inability to monitor vessel traffic offshore. The commenter stated that one of the problems in the industry is the Coast Guard's inconsistent application of NOA exemptions or overriding regulations in response to security concerns.
We work to ensure consistent application of the NOA regulations throughout all U.S. ports by establishing an internal NOA enforcement policy that provides guidance to all field units. We also provide general guidance to clarify the intent or purpose of certain provisions of the NOA and to ensure it is being applied consistently throughout the Coast Guard. This information is located in the General Information portion of the “Port State Control” page on Homeport (
http://www.homeport.uscg.mil/
) and on the NVMC World Wide Web site (
http://www.nvmc.uscg.gov
). We have also published a notice of policy in the
Federal Register
that addresses how the definition of “port or place of destination” is interpreted by the Coast Guard.
See
71 FR 62210, October 24, 2006. Please note that while we try to ensure consistency, there are port specific factors that the COTP must take in consideration when evaluating the potential risk that may be associated with a vessel arrival to his or her zone.
4. NOA Information
One commenter supported the proposed rule's added NOA requirements to submit the Maritime Mobile Service Identity (MMSI) number and to report whether the vessel is 300 gross tons or less, but recommended that the Coast Guard require the submission of information on vessel type, last and next port of call, and hull type for tankers and barges.
We do not believe that collecting vessel and hull type of tankers and barges through NOAD reporting requirements is necessary because we are able to determine vessel and hull type through other means.
Section 160.206 and Table 160.206(2)(iii) and (ix) of this final rule require reporting of the port or place of the United States a vessel will visit, as well as its last port or place of departure. Based on this comment, however, we did make a nomenclature revision, adopting defined terms for use in Table 160.206(2)(ix) by changing the proposed “Last Port of Call” to “Last port or place of departure,” and making a corresponding change in Table 160.206(2)(x).
One commenter recommended that the Coast Guard specify the Universal Location Code (ULC), developed by the Federal Industry Logistics Standardization (FILS) Committee, as the means to report the data element in proposed Table 160.206(2)(iii)(“For the port or place of the United States to be visited, list the name of the receiving facility, the port or place, the city, and the state.”). The commenter noted that this revision would allow the Coast Guard to easily cross reference information on locations collected by other agencies to improve safety and enhance security. The commenter identified a government World Wide Web site where the list of location codes would be available.
As noted, § 160.206(a) and Table 160.206(2)(iii) of this final rule, as in the proposed rule, requires the name of the receiving facility, port or place, city and state. This information is available to vessel owners and provides the necessary detail required for this final rule to meet its PWSA objectives of obtaining information necessary to help enhance the safety and security of U.S. ports and waterways and to permit vessel traffic management. We are active participants of the Federal Initiative for Navigation Data Enhancement (FINDE)
and proponents of the FINDE ULC. Unfortunately, we are not currently able to use the ULC in our enterprise systems. Also, we would want to initiate a separate rulemaking to invite comments specifically on the use of ULCs for NOAs before imposing such a requirement. Therefore, we have not made any changes based on this comment.
One commenter stated that the new requirement for vessels to submit their estimated time of arrival to the entrance to the port (if applicable) would prove extremely helpful for vessels calling on the Lower Mississippi River.
We concur that it would be helpful for the Coast Guard to receive a vessel's estimated date and time of arrival to the entrance of the port, but because we can obtain this data through other existing means, we have decided not to include this new proposed item (2)(xi) in Table 160.206 in this final rule. This paragraph would have required the submission of the estimated date and time of arrival of when a vessel would reach, for example, the sea buoy, pilot station, or COLREGS demarcation line of a port, if applicable. The Coast Guard can use AIS data in combination with the essential, current NOA requirement in paragraph (a)(2)(iv), for a vessel to estimate the date and time of its arrival “[f]or the port or place of the United States to be visited,” to provide MDA on when the vessel will reach the entrance to the port.
One commenter wanted the Coast Guard to take a more aggressive stance on Certificate of Adequacy compliance regarding maritime pollution, and recommended that we use this rule to require the submission, as part of NOADs, of two IMO forms, the Advance Notice Form (ANF) discussed in MEPC.1/Circ.644, and the Waste Delivery Receipt (WDR) discussed in MEPC.1/Circ.645, to provide necessary visibility to verify COAs and help implement the International Convention for the Prevention of Pollution from Ships (MARPOL). The commenter stated that the timing differential between NOA and ANF and WDR submissions would need to be rectified.
The submission of IMO forms to verify the Certification of Adequacy to implement MARPOL, and the implementation of a mandatory mechanism for ships to request shoreside reception services and a follow-up questionnaire are outside the scope of this rulemaking. We have not made any changes from the proposed rule based on this comment.
At the March 12, 2009, public meeting on MARPOL Reception Facilities (
see
74 FR 8807, February 26, 2009), we raised a number of challenges regarding the shoreside waste reception issue. We noted that a mandatory mechanism needs to be implemented for ships to request shoreside waste reception services and also to report whether services were provided as requested.
One commenter stated that MARPOL reception facility reporting should not be integrated into the electronic Notice of Arrival and Departure (eNOAD) program because the commenter supports the use of recently published IMO standardized Advance Notice Forms and Waste Delivery Receipt as the vehicle by which port states can collect information on the adequacy of MARPOL reception facilities in their nations. The commenter noted that integrating various information needs of these forms would be difficult to do in a clear and concise fashion, given the already complex eNOAD format. The commenter also stated that waste reception facility data, under a separate system, can be routed directly to the appropriate Coast Guard officials for review and action, and obviate the need for these officials to access the eNOAD database to retrieve reception facility information.
The Coast Guard has developed the eNOAD application, accessible via the National Vessel Movement Center's (NVMC's) World Wide Web site, to provide a vessel with the means of fulfilling the arrival and departure notification requirements of the Coast Guard and CBP online.
While we may agree with this MARPOL reception facility comment, as noted above in response to a commenter with a different view, revising the NOA rule to integrate MARPOL reception facilities into NOAD requirements, and thus eNOAD application, is beyond the scope of this rulemaking.
One commenter agreed with the Coast Guard in requiring only the last five foreign ports for domestic vessels, but the commenter stated that it is very important that foreign vessels supply the Coast Guard with the last five ports, whether domestic or foreign, because the Coast Guard needs to start looking at the total picture of the U.S. maritime domain.
We note that, as proposed in the NPRM, we have added item (2)(ix) to Table 160.206, which, under § 160.206(a), requires a vessel, domestic or foreign, to list its last port of departure. We have also converted two data fields for the last five ports or places visited to the last five foreign ports or places visited.
See
Table 160.206(2)(i) & (ii). Once the vessel has entered U.S. waters, the last-port-or-place-of-departure data generated by Table 160.206(2)(ix) will provide us with sufficient data on a vessel's travel within U.S. waters to maintain MDA.
This information is necessary for Coast Guard compliance verification examination matrixes to determine the threat a vessel poses to a U.S. port. The last-five-foreign-ports information is also needed for the Condition of Entry (COE) Program which assesses effectiveness of anti-terrorism measures in foreign ports. If effective anti-terrorism measures are not in place, then conditions of entry are imposed on vessels bound for the United States—see
e.g.,
recent COE notice (79 FR 33771, June 12, 2014). This information has also been useful to screen to determine if a vessel has visited a country impacted by the Ebola virus outbreak within its last five ports of call.
One commenter stated that the COTP in Houston needs to know that a vessel came from New Orleans, and prior to that, that it came from Mobile. The commenter noted the Coast Guard needs to be able to track a vessel moving through the Gulf of Mexico.
As mentioned above, we have added item (2)(ix) in Table 160.206, which, under § 160.206(a), requires vessels to list their last port or place of departure. So whether a vessel is coming from a foreign port or place or another U.S. port or place, the COTP in Houston in the commenter's example will have access to that information. If a COTP is interested in identifying the track of a vessel once it is in U.S. waters, there are other means and methods (
e.g.,
AIS and VTS data) at the COTP's disposal which can be used to determine this without requiring vessels to list more than their last U.S. port or place of departure.
One commenter stated that while it may be outside the scope of this rulemaking, the Coast Guard should add the following recommendation to the scope of the rulemaking. The commenter recommends that adding more data elements that combine Coast Guard reporting with additional customs reporting could eliminate an entire set of paperwork that is processed for the CBP, namely, CBP Form I-418, Passenger List—Crew List. The commenter noted that this is not the first time the commenter has made this recommendation and that, if adopted, the change would save both the private sector and government agencies a great deal of time and money. Another commenter stated that many other improvements can be made to this reporting system and repeated a past suggestion for a working group of users sitting together with the Coast Guard and the CBP to identify opportunities
for improving and streamlining the report.
We are working with the CBP to address any eNOAD application issues related to Form I-418. Regarding the form itself, the CBP has noted that Form I-418, which is used by Masters, owners, or agents of vessels in complying with sections 231 and 251 of the Immigration and Nationality Act, is completed upon the vessel's arrival at its first port in the United States.
See
75 FR 1069, January 8, 2010. The CBP is looking for ways to streamline and automate that process (see the CBP supporting statement for information collection 1651-0103). We have not made a change from the proposed rule based on this comment.
We remain open to suggestions for improving the eNOAD reporting system. We have forwarded the suggestion for a working group to the responsible Coast Guard office. Our focus here, however, is on specific comments on the revisions to the CFR that we proposed in our NPRM or specific comments on how we might best revise NOAD regulations. We have made no changes from the proposed rule based on these comments.
One commenter stated that the massive amount of reporting information and duplicate reports are indicative of a system that is “working harder and not smarter.” The commenter presented as an example that the Coast Guard proposes NOAs that require four vessel identifiers. The commenter stated that this means that on every NOA, we are reporting the name, call sign, official number, and now the MMSI number, and that three of these are unique vessel identifiers.
In § 160.206(a) and item (1) in Table 160.206, we require submission of the vessel's name, call sign, IMO international number (or an official number if no IMO number), and, if applicable, MMSI number, because multiple vessels may carry the same name. These four NOA data elements allow us to more quickly either authenticate the vessel's reported identity or detect problems with those submitted data. In the latter case, we seek to determine if there is an error in one or more of the identifiers or if a vessel is attempting to submit false or improper identification data.
One commenter stated that Coast Guard field units are continuously telling them that they have to report all broken equipment on the NOA. The commenter asserted this is not required currently or in the revised regulations, but that there is a lack of clarity on this point. Finally, the commenter stated that whenever there is a requirement to submit a CG-2692 form (Report of Marine Accident, Injury or Death) for a casualty report, they are constantly asked why they did not report it on the NOA.
Regarding broken equipment, we work to ensure that our field units know NOA requirements, including the one for reporting broken navigation equipment on the NOA. Existing regulations do require an NOA report on the operational condition of navigation equipment required by 33 CFR 164.35, and, as we proposed, Item (6) in Table 160.206 of this final rule expands that requirement to report on the operational condition of all navigation equipment (including AIS) required in 33 CFR part 164. Moreover, in a note to Table 160.206, we specify that submitting this report in the NOA, “indicating that navigation equipment is not operating properly[,] does not serve as notice to the District Commander, Captain of the Port, or Vessel Traffic Center, under 33 CFR 164.53,” which has additional reporting requirements. Regarding casualties, if the marine casualty involves a hazardous condition as defined by redesignated § 160.202, the notice given to the nearest Coast Guard Sector Office or Group Office, as required by redesignated 33 CFR 160.216, will satisfy 46 CFR 4.05-1 casualty reporting requirements. Note, however, that there is a separate requirement under 46 CFR 4.05-10 that requires a written report on Form CG-2692. The NOA is not used to satisfy the redesignated § 160.216 requirements to report hazardous conditions, but in cases where the failure of a vessel's navigation equipment creates a hazardous condition, the question as to why that condition was not reported on the NOA is appropriate.
One commenter expressed problems discerning the requirements, particularly with immigration agencies and the CBP, regarding whether to use the spelling from a national passport or a U.S. Visa on our reports.
We cannot address issues that pertain to the CBP or other agency regulations that involve immigrants; for purposes of Coast Guard NOAD regulations, however, we have left it to the owner or operator to determine which document more accurately reflects the spelling of a person's name. For questions pertaining to CBP electronic passenger and crew manifest requirements, please visit the NVMC's World Wide Web site at
http://www.nvmc.uscg.gov
or call the CBP at 409-727-0285, extension 238.
One commenter who occasionally deals in lightering, particularly in other areas of the world, was not sure whether to list a lightering location as a last port, because it is not officially a terminal or a dock. The commenter expressed problems with explaining to Masters of his company's vessels how to deal with transits of U.S. and international canals, such as the Panama Canal. The commenter offered an example of whether a vessel would need to report coming through the Chesapeake and Delaware Canal on a nearby coastwise voyage.
If a vessel is engaged in lightering, then the lightering position would not be considered a port or place under 33 CFR part 160, and this not would trigger part 160 applicability unless, while lightering, the vessel anchors or moors in the navigable waters of the United States or at a deepwater port. If a vessel anchors or moors in foreign waters while it is lightering, than that lightering position would be considered a foreign port or place and must be included on vessel's NOA under § 160.206 (a) and item (2)(i) in Table 160.206, if it was one of the last five foreign ports or places visited. Regarding canals, if a vessel is only transiting through a canal, and does not anchor or moor during that transit, then it would not be considered as arriving at or departing from a port or place.
We had proposed to add new fields for crewmember passport country of issuance and passport date of expiration in Table 160.206(4)(v) & (vi), and for persons in addition to crew, passport country of issuance and passport date of expiration fields in Table 160.206(5)(v) & (vi). We have not included these new fields in our final rule because we consider this information to be a matter of record based on CBP requirements.
5. NOD Information
One commenter discussing fishing industry vessels stated that the largest issue with the proposed rule is the time it takes to get an accurate NOD list of persons sailing and to input these data into electronic format for transmittal to the Coast Guard. As further discussed in the “When to Submit an NOD” section below, VI.A.8, based on comments on the NPRM, we have eliminated our proposal to require NODs. We have deleted § 160.213(a); this final rule does not require NODs.
6. Electronic Submission
One commenter recommended that the Coast Guard allow continued use of the Excel Workbook format for submission of NOADs via email, which the commenter believes is more process-effective. The commenter noted that some vessels are not set up to connect directly to the Internet to make real-time submissions, and that it is more process-effective for the ship's Master to submit
updates to the NVMC directly rather than by going through a vessel agency service. The commenter stated that the format and process for submitting NOADs and updates in the Excel format has been of minimum administrative burden for their Masters and is easily supportable without requiring direct real-time Internet connectivity from the ship.
Under this final rule, and as indirectly reflected in the proposed rule, we will accept the following electronic forms: Submission through the NVMC eNOAD World Wide Web site, XML, which includes Excel Workbook format. XML spreadsheets may be submitted via email to
sans@nvmc.uscg.gov.
Based on this comment, we are revising the final rule from the proposed § 160.210 to specify that these currently available options, or other methods made available on
http://www.nvmc.uscg.gov
in the future, may be used to satisfy this requirement.
One commenter stated that many commercial fishing vessels do not have the capability to submit NOAD information electronically, and therefore the rule creates an additional administrative workload that may require hiring additional administrative personnel because the information would have to be sent by a shore-based office.
We have sought to impose the least burden possible while still meeting our regulatory objectives of obtaining information necessary to help ensure that we reach our PWSA objective of enhancing the safety and security of U.S. ports and waterways and to permit vessel traffic management. Many commercial fishing vessels would not be required to submit NOADs because they would qualify for an exemption, such as operating exclusively within a single COTP zone (§ 160.204(a)(5)(ii)) or being a U.S. vessel 300 gross tons or less, engaged in commercial service and not coming from a foreign port or place (§ 160.204(a)(5)(vi)).
Regarding fishing vessels and other vessels, we do not believe our final rule will cause additional costs based on some vessels not having the capability for electronic submission other than vessels we have already estimated costs for in the regulatory analysis (RA). CBP requires electronic submission on most, if not all, of the vessels added by our final rule. Computer and internet access costs were captured by CBP in its 2005 Electronic Transmission of Passenger and Crew Manifests for Vessels and Aircraft (aka Advance Passenger Information System or APIS) final rule (70 FR 17820, April 7, 2005) that required all commercial vessels (minus ferries) “arriving in the United States from any place outside the United States,” to submit arrival manifests electronically; therefore, we did not include the cost of computers or internet service for vessels affected by our rule. The Coast Guard assumed that vessel owners and operators will submit arrival information from onboard the vessel and not leverage any efficiencies from centralized fleet reporting.
We did revise the current Mississippi-River-and-tributaries exemption, but we anticipate that most of those vessels will be able to take advantage of other exemptions afforded in the final rule such as the single-COTP-zone or U.S.-vessel-300-gross-tons-or-less exemptions. The Coast Guard does not collect information specifically on vessels that transit solely on the Mississippi and its tributaries; therefore, we are unable to quantify the number of vessels that take advantage of the current exemption.
Also, in our final rule we created an exemption for certain ferries. Those on a fixed route between two or more COTP zones qualify for an exemption if they make a one-time submission as specified in § 160.204(a)(5)(vii) to qualify for the exemption, and are required to make future submissions only if their schedules or other submitted information changes. This alternative submission would not require a computer, and submission of such information has been a common industry practice since 2003 to obtain waivers from COTPs, and therefore any ferry lacking the capability for electronic submission would not incur additional costs as a result of our final rule.
One commenter noted that limiting eNOAD submissions to this World Wide Web-based program may pose problems when severe weather events cause power outages; for example, companies did not have Internet service post-Hurricane Katrina until cell phone towers were rebuilt and cable re-laid. The commenter recommended that the Coast Guard provide an alternative method to report to the NVMC.
This final rule does not limit submissions to only NVMC World Wide Web-based applications. It also allows for other electronic forms of submission such as email. But in cases where communication infrastructure is damaged and telecommunication services are not available due to natural disasters such as Katrina, the COTP may waive any or all NOA requirements within her or his COTP zone; also, a vessel may request a waiver under 33 CFR 160.214 of any or all NOAD requirements.
One commenter noted that it operates between the eastern Caribbean and the Mid-Atlantic States, and would like to alert the Coast Guard to some obstacles that might arise by requiring only electronic submissions. The commenter stated that one of its bases is St. Thomas, USVI, and on most of its vessels, the computers—if they have them on board—do not support the downloading of the notices or responses to the notices. The commenter noted that if its employees go shoreside to comply, they need to use Internet cafes that have computers and technology dating back to the 1990s. The commenter further stated that if they go to the homes of fellow captains, they have dial-up systems instead of broadband, and it takes hours to comply, so that doing away with paper notification entirely presents an obstacle.
We understand that some vessel owners may submit shoreside NOAs but the Coast Guard does not collect information on the number of vessels that utilize this method of NOA submission. For the regulatory analysis, we assumed that all NOADs will be submitted from the vessel, and not take advantage of efficiencies from centralized fleet reporting. As use of the Internet continues to become more popular including wireless Internet access via cellular/satellite networks, we anticipate greater access to faster Internet transmissions in more locations. Also, the vessel Master, owner, or agent may take advantage of XML spreadsheets—readily available on the NVMC's World Wide Web site—that can be downloaded and retained for future use to minimize the time needed to transmit NOAs.
As stated in the NPRM, mandating electronic submission of NOAs allows the Coast Guard to quickly and automatically process, validate, and screen arrival notices.
See
73 FR 76303, December 16, 2008. As discussed in VI.A.12, however, we amended § 160.210(a) to permit phone or fax submission of an NOA or an update, in limited circumstances.
7. When To Submit an NOA
As noted in the
Exemptions
section above, one commenter reported a problem with being able to meet the requirement to submit a manifest either 96 hours or 1 hour before departure because his youth-program sailing vessels, which sometime sail to Canada from Tacoma, WA, do not have computers onboard, and there is no wireless Internet or network connections in the inlet from which these vessels sail.
Under existing Custom and Border Protection requirements in 19 CFR 4.7b and 4.64, commercial vessels
2
arriving from a foreign port or departing for a foreign port are required to submit arrival or departure manifests electronically. This Coast Guard final rule only requires NOAs, and those are to be submitted at the same times that CBP requires that arrival manifests be submitted. These youth-program sailing vessels may not meet CBP's definition of “commercial vessel” and thus may not trigger CBP requirement, but the Coast Guard may consider them vessels in commercial service and thus subject to 33 CFR part 160 NOAD requirements, unless they otherwise fit into an exemption.
3
2
There are differences in the terms and definitions CBP and the Coast Guard use regarding commercial vessels. In
19 CFR 4.7b
(a), CBP defines “commercial vessel” as “any civilian vessel being used to transport persons or property for compensation or hire.” In 33 CFR 160.202, the Coast Guard uses the 46 U.S.C. 2101 definition of “commercial service” (“any type of trade or business involving the transportation of goods or individuals, except service performed by a combatant vessel”) to identify vessels in § 160.203 that are subject to NOAD regulations.
3
For arrival submission times, compare 19 CFR 4.7b(b)(2) with 33 CFR 160.212(a)(4); for departure submission times, compare 19 CFR 4.64 (b)(2) with 33 CFR 160.213(a). Because these youth program sailing vessels occasionally sail to and from Canada, they would not be eligible for the exception of operating within a single COTP zone under § 160.204(a)(5)(ii) for such trips because they would be leaving the COTP zone and thus not operating exclusively within it.
As we noted previously, under § 160.212, the time an NOA must be submitted varies based on the duration of the vessel's voyage. Under § 160.214, however, a vessel may request a waiver of NOAD requirements from the COTPs whose zones it plans to transit. This waiver provision allows the COTP to make assessments based on specific factors about the vessel or COTP zone that are difficult to reflect in a general rule without imposing unnecessary burdens.
One commenter wrote that lowering the applicability threshold for NOA reporting would not impact its fleet, which operates exclusively in the Great Lakes, but the commenter found some aspects of the current eNOAD reporting timelines to be punitive to vessels trading exclusively within the Great Lakes and St. Lawrence Seaway system. This commenter requests that the number of hours before arrival that an NOA is due, as stated in § 160.212, should be reduced to 6 hours for vessels engaged in non-ocean-going, short-haul (voyage of 24 hours or less) shipping. Also, for voyages of less than 24 hours, vessels may also have to contact local COTP.
We considered this request to relax the timelines in 33 CFR 160.212 for submitting NOAs and NOA updates for vessels in general engaged in non-ocean-going, short-haul shipping, but have determined that this information is needed from such vessels on the timelines we proposed so that the Coast Guard and other federal entities have sufficient time to screen these vessels. As proposed in the NPRM, however, we did add a provision that would allow an NOA submission 60 minutes or more before departure for U.S. vessels 300 gross tons or less, engaged in commercial service and not carrying CDC, that are coming from a foreign port or place on a voyage of less than 24 hours.
See
§ 160.212(a)(3) and discussion in NPRM at 73 FR 76303, December 16, 2008. As discussed below in the
Financial Impact
section, VI.A.12, in response to another comment on the NPRM and provisions in the Boundary Waters Treaty (36 Stat. 2448; Treaty Series 548), we have revised § 160.212(a)(3) to extend its provisions to Canadian-flag vessels arriving directly from Canada, via boundary waters, to a U.S. port or place in the Great Lakes.
We note that for vessels subject to the 60-minutes-before-departure requirement, under § 160.214, a U.S. or foreign vessel may seek a waiver from the requirement for when NOA or NOA updates must be submitted. The COTP, who can evaluate the waiver request based on the circumstances of the COTP zone in which the vessel will arrive, may grant a waiver “for any vessel or class of vessels upon finding that the vessel, route, area of operations, conditions of the voyage, or other circumstances are such that application of this subpart is unnecessary or impractical for purposes of safety, environmental protection, or national security.”
One commenter asked the Coast Guard to consider allowing vessels with a voyage of less than 24 hours to submit an NOA prior to departure. The commenter stated that this change would reduce the number of NOAs that need to be updated because data are not really known until departure. This commenter noted that current discussions of the “Seaborne Highway” suggest that the number of vessels with relatively short port calls and voyage times, and those operating on established schedules, is expected to increase. Finally, this commenter stated there is an inability to submit NOAs with consecutive ports (consolidated NOAs).
We acknowledge that for vessels making short voyages it would be more advantageous to the owner or operator if NOAs could be submitted as close to departure as possible. The Coast Guard and other government agencies, however, need the time specified in the final rule to analyze and act on NOA data. We also need NOAs to reflect current data.
Section 160.212(a)(3) of this final rule permits U.S. commercial vessels of 300 gross tons or less, arriving from a foreign port or place on a voyage of less than 24 hours, to submit an NOA up to 60 minutes before departure. Whether the voyage is short or long, because of the nature of their cargo, we require towing vessels moving CDC solely between ports or places of the contiguous 48 states, Alaska, and the District of Columbia to submit an NOA before departure, but at least 12 hours before arrival at the port or place of destination.
See
§ 160.212(a)(2).
As for the inability to submit NOAs with consecutive ports, we note that the submission of consolidated NOAs was introduced by a temporary rule issued soon after September 11, 2001 (66 FR 50565, October 4, 2001), and was included in a 2003 final rule (68 FR 9537, February 28, 2003). Under current regulations, a vessel may submit a consolidated NOA if, while on a single voyage, it plans to stop at more than one port or place in the United States.
In the NPRM, we proposed to eliminate § 160.206(d), which specifically addresses consolidated NOAs, and to change the NOA data required by § 160.206(a) and Table 160.206(2)(iv) & (v) from information regarding each U.S. port or place to be visited to information for “the port or place of the United States to be visited.” We proposed this change, which is contained in this final rule, because we found that some vessels fail to submit updated crew information and cargo information after submitting the consolidated NOA. As previously noted, we have redesigned our eNOAD application to retain previously submitted information to help reduce the burden of preparing subsequent submissions.
One commenter requested that for U.S.-flag vessels operating on the Great Lakes on voyages of less than 24 hours, the Coast Guard reinstate a previous requirement that all vessels submit an NOA prior to departing the dock. The commenter notes this would avoid subsequent amendments caused by changes before departure but after an NOA is submitted. The commenter also stated that these vessels pose low security risk, and that they will be required to have a Transportation Worker Identification Credential (TWIC)
by April 15, 2009, and thus would not represent a security threat. In addition, this commenter recommended that vessels that fuel in Canada should be exempt from NOA requirements because there is no demonstrable need to file an NOA when simply fueling in Canada. This commenter noted that the 24-hour rule does not recognize that changes in vessel plans can require an unanticipated fueling in Canada, and that a refueling vessel would either have to check down or go to anchor to comply with the 24-hour rule if the local Coast Guard COTP does not allow it to enter sooner.
We note that under both the existing regulations (§ 160.212(a)(3)(ii)) and this final rule (§ 160.212(a)(4)(ii)), a vessel greater than 300 gross tons on a voyage of less than 96 hours could submit an NOA just before departure, provided the NOA is submitted at least 24 hours before arrival. In this final rule, we allow U.S-flag vessels 300 gross tons or less that are coming from a foreign port or place to submit an NOA 60 minutes or more prior to departure if the voyage is less than 24 hours and the vessel is not carrying CDC (
see
33 CFR 160.212(a)(3)). As noted immediately above, the 60-minute requirement is necessary to provide the Coast Guard and other federal agencies an opportunity to screen the vessel's passengers, crew, and cargo.
Regarding updates, for vessels greater than 300 gross tons, § 160.212(b)(4)(iii) is intended to accommodate unexpected incidents and allows vessels on voyages of less than 24 hours to submit an update at least 12 hours before arriving in the port or place of destination. For U.S. vessels 300 gross tons or less, under § 160.212(b)(3), an NOA update may be submitted as late as 6 hours before arrival.
8. When To Submit an NOD
One commenter recommended that the Coast Guard remove the proposed requirement that U.S.-flag vessels operating between U.S. ports submit NODs, because this requirement would impose an excessive administrative burden on vessel operators without producing significant offsetting security benefits. The commenter stated that the proposed rule would require U.S.-flag vessels traveling from one U.S. port to another U.S. port, after completing a voyage from a foreign port, to submit NODs—as U.S.-flag vessels carrying CDC are required to—even if they have never visited a foreign port.
In response to comments, we have removed the NOD requirement. This final rule does not require NODs. We have determined that requiring an NOD for a vessel going to a U.S. port is unnecessarily redundant because the vessel would also have to submit an NOA for their next U.S. port of destination. For vessels departing for a foreign port or place, we have not retained our proposed new requirement for an NOD because we consider that information to be a matter of record based on CBP requirements for vessels departing for a foreign port of place to submit departure manifests.
One commenter noted that, in the discussion of NOAD requirements, there is no discussion of how those requirements might impact the CBP's reporting requirement for vessels operating under a cruising license, specifically, private vessels greater than 300 gross tons. The commenter also stated that, while an NOD is not required while transiting the same COTP zone, the CBP still requires reporting. The commenter further asked whether this reporting will take the place of the reporting required if the vessel changes COTP zones.
We work with the CBP to ensure consistency in reporting requirements whenever possible; there may be some differences in requirements, because our missions and those of the CBP differ. We do not believe our NOA requirements will impact CBP reporting requirements, and as we have noted, we have removed our proposed NOD requirement.
To note differences between the CBP electronic-passenger-and-crew-arrival-manifest requirements and our NOA requirements, compare 8 CFR 231.1 and 19 CFR 4.7b with 33 CFR part 160, subpart C. For the CBP electronic-passenger-and-crew-departure-manifest requirements, see 8 CFR 231.2 and 19 CFR 4.64; see also 8 CFR 231.3. For each regulation, you should ensure that you provide the information required.
9. Force Majeure
One commenter stated that with severe weather conditions, requirements for eNOA filing may negatively impact vessel safety because a vessel may be subject to financial penalty if it deviates to another port or harbor. The commenter also noted that in addition to weather conditions, vessel destinations can change frequently and on short notice because of port and dock congestion, ice conditions, and cargo availability.
We believe that our final rule properly addresses unanticipated or unforecasted severe weather conditions. Vessels that are forced to deviate to another port or harbor because of severe weather may claim Force Majeure, notify the local COTP of arrival, and provide the limited information required under § 160.215. The NOA update requirements in § 160.208 are designed to accommodate changes in arrival caused by non-weather factors, such as port and dock congestion or cargo availability. Under 33 CFR 160.204(a)(5)(vi), U.S. vessels 300 gross tons or less, engaged in commercial service, not coming from a foreign port or place, and not carrying CDC, are exempted from meeting this NOA requirement.
10. Need for NOAD Data and Agency Collaboration in Obtaining It
Many of the comments in this category were focused on the interaction of Coast Guard and CBP requirements. We present these first.
One commenter stated that the CBP and the Coast Guard should collaborate to make current software more efficient and less confusing, and to eliminate repetitive entries. The commenter noted that the same data are captured currently by the CBP, so additional reporting is burdensome and unfair because it serves no justifiable security purpose. Also, the commenter stated that the CBP uses real-time data to screen passengers when they leave Canada and when they enter the United States. Another commenter noted that there is no point in collecting and submitting the same information gathered and recorded by the CBP.
Another commenter noted that the CBP and the Coast Guard have the same security goals, and that they should improve information sharing to lessen the demand placed on vessel operators by duplicative information requests. Another commenter stated that the CBP and the Coast Guard undertake impractical and financially irresponsible, duplicative efforts, noting that all of its international ferry passengers are pre-inspected by the CBP at the Victoria, BC terminal and are then inspected on arrival at Port Angeles terminal, and that every passenger must complete the International Crossing Form (IMO 24-2). Ferry operator employees provide vehicle license plate numbers to the CBP. The commenter also notes that under this system, there would be multiple layers of security for ferries, but still only one layer of security for the land border, which represents direct competition for ferries.
Another commenter recommended that the CBP and the Coast Guard compare Form I-418 data with eNOAD submissions and then add other data fields to eliminate the need for a paper Immigration and Naturalization Service (INS, now the CBP) Form I-418 (Passenger List—Crew List). Another commenter also sought the elimination
of paper Form I-418 through programming changes to the eNOAD system to capture all necessary crew data. The second commenter noted that vessels are still required to file a paper Form I-418 with the CBP, which contains virtually the same data elements that are collected in the eNOAD, with the exception of the following three data elements in I-418:
1. Will crewmember be performing longshore work while in the U.S.? (yes/no)
2. Date crewmember joined the ship.
3. Date crewmember separated from the ship.
One commenter saw the need for the addition of a field to declare a valid International Carrier Bond, because this information would assist the CBP in tracking fines related to APIS submissions and reduce the number of intent-to-fine notices being delivered to the wrong vessel agent.
Finally, a commenter stated that the Coast Guard and other parts of the Department of Homeland Security should coordinate their information needs, and noted that the proposed reporting system would require vessel operators to capture and forward information already captured by the CBP. Also, this commenter stated that creating duplicate information taken from several sources by different authorities or processes wastes time, resources, and effort and introduces the opportunity for error.
We agree that we should collaborate with the CBP. We have taken steps to eliminate duplicate reporting requirements and have established the NVMC World Wide Web site and eNOAD application to facilitate receipt of information required by both the Coast Guard and CBP. (For more details on the NVMC World Wide Web site, see VI.A.4, NOA Information, above.) In 2013, NVMC modified the eNOAD application to include fields which capture the Form I-418 information, allowing for electronic submission of this information. We will continue to work towards not only providing a single window for reporting, but also an application that is both more user-friendly and efficient.
As we stated in the NPRM preamble, we have worked with the CBP to avoid requiring a vessel to submit the same information to our agencies separately, but our agencies do have separate missions. The information we need to better enable us to fulfill our missions, for example under 33 U.S.C. 1225—to prevent damage to structures on, in, or adjacent to the navigable waters of the United States, safe vessel traffic management, as well as protecting those navigable waters—may differ somewhat from information the CBP requires to implement the laws defining its missions. To the extent, however, that we both require the same information of vessels, we do not require separate submissions of that information to satisfy our respective regulations in 19 CFR and 33 CFR. The eNOAD application allows a vessel owner to fill out one NOA, which is disseminated to both the Coast Guard and CBP upon submittal.
This final rule requires submission of general cargo information as well as whether the vessel is carrying CDC, but the CBP requires more detailed information about the cargo.
See
19 CFR 4.7. While the CBP has identified the eNOAD as an approved system for submitting vessel crew manifest data to the CBP (70 FR 17820, 17828, April 7, 2005, “vessel carriers must use the eNOAD or XML transmission methods to transmit required manifest information”), in 19 CFR 4.7(b)(2) it identifies a separate means for submission of electronic cargo declaration information to the CBP: The vessel Automated Manifest System (AMS) or any electronic data interchange system approved by CBP and announced in the
Federal Register
to replace the AMS system for this purpose.
We agree that we share security goals with the CBP. As we noted above and in our NPRM (73 FR 76303, Dec. 16, 2008), however, our agencies have different missions. We have worked with the CBP to avoid requiring a vessel to submit the same information to our agencies separately. The eNOAD application allows an arriving or departing ship to satisfy both agencies' crew and passenger information requirements with a single submission to NVMC.
See
33 CFR 160.206 and 19 CFR 4.7b.
Regarding international ferry passengers, as noted in the
Exemptions
section above, we have added an NOAD reporting exemption for certain ferries. To qualify for this exemption, the ferry operator must submit the schedule for the ferry to the COTP for each port or place of destination listed in the schedule by April 30, 2015 or at least 24 hours in advance of the first date and time of arrival listed on the schedule after § 160.204(a)(5)(vii) of this final rule becomes effective. Ferry operators seeking this exemption must also submit other information listed in new paragraph § 160.204(a)(5)(vii), including a 24-hour contact number. This exemption more closely aligns our regulations with the CBP's advance electronic passenger or crew member manifest exception for ferries in 19 CFR 4.7b(c)(1).
We are working with the CBP to address any eNOAD issues related to Form I-418, which calls for more information about passengers and crew than is required by the Coast Guard and CBP to be submitted electronically. As proposed in the NPRM, we have removed the option, formerly in § 160.206(c), of submitting Form I-418 to satisfy crew and passenger information reporting requirements. Regarding the form itself, which is used by Masters, owners, or agents of vessels in complying with sections 231 and 251 of the Immigration and Nationality Act, the CBP has noted that it is completed upon arrival of the vessel.
See
75 FR 1069, January 8, 2010. The CBP is looking for ways to streamline and automate that process (see CBP supporting statement for information collection 1651-0103).
Currently, we permit multiple methods to submit an NOA. This final rule, which mandates electronic submission, will more closely align our procedures with those of the CBP, which currently receives advance electronic crew and passenger manifest information through the eNOAD application.
The request to add a field to declare a valid International Carrier Bond is beyond the scope of this Coast Guard rulemaking. We have forwarded this comment, however, to the CBP for their consideration.
One commenter noted that requirements for vessel operators to collect passenger, crew, and vessel movement information in the NOAD are duplicative and costly, and may produce misinformation.
We disagree. For reasons stated in the preamble of our NPRM, we do not view our NOA requirements as duplicative. We have removed our proposed requirement for vessels to submit an NOD.
One commenter stated that the Coast Guard's proposed changes represent an unnecessary redundancy when transiting between U.S. ports, and that this undue burden increases the potential for errors. The commenter recommended that information submitted in the NOD should be shared with the recipients of the NOA to avoid having a separate notice with the same data being input by the owner or operator, and that only one notice should be required per voyage.
We acknowledge that there is unnecessary redundancy in the submittal of both an NOA and NOD for consecutive U.S. port visits. As previously mentioned, we have
eliminated our proposed NOD requirement.
One commenter stated there is no reason why a vessel would need to report in again (
i.e.,
after submitting an initial NOA) while the vessel is equipped with and monitored by AIS, especially if the vessel is participating in a cooperative VTS system. The commenter notes that the Coast Guard would already have information on the vessel's previous whereabouts at foreign ports.
We need the information collected on the NOA to fulfill our PWSA regulatory objective of obtaining information necessary to help enhance the safety and security of U.S. ports and waterways. Neither AIS nor VTS requirements provide the data, such as changes in passengers or crew, called for by NOA requirements. The § 160.204(a)(5)(ii) exemption for a vessel operating in a single COTP zone reduces the number of NOAs that need to be submitted while still ensuring that NOAs can be used by a COTP to find out what vessels will be entering his or her COTP zone and who will be on board those vessels.
To the extent that a single transmission is the best way to meet agency requirements, we agree with one commenter who stated that the Coast Guard and sister agencies should coordinate information needs and submission timing so that a single NOAD submission will meet the information needs of all appropriate agencies. In addition to the CBP, we have worked with other agencies that need information from ships arriving at or departing from U.S. ports or places. For example, the Saint Lawrence Seaway Development Corporation also allows the eNOAD to be used as a means of satisfying SLSDC requirements.
See
Seaway Notice No. 6-2008 (
http://www.greatlakes-seaway.com/en/pdf/navigation/notice20080311.pdf
).
As noted above, based on NPRM comments, we have eliminated our proposed NOD requirement. We note that this change in no way alters CBP's current electronic passenger departure manifest and electronic crew member departure manifest requirements.
See
19 CFR 4.64.
One commenter noted that expansion of NOAD and AIS requirements to additional vessel populations and transit events will enhance MDA. The commenter stated that while the current eNOAD system adequately tracks vessels entering U.S. waters bound for a U.S. port or departing a U.S. port, in many cases it does not adequately track vessel movements while a given vessel transits among several U.S. ports. We agree; the expansion of NOA and AIS requirements implemented by this final rule will enhance MDA and greatly improve our ability to track vessel movements from one U.S. port or place to another.
One commenter stated that the proposed rule is not feasible, citing an example of a seafood company that has 10 vessels, 8 of which have over 100 persons sailing, most of whom are contracted on the day of sailing. Noting that these persons have already undergone background checks prior to being offered employment, the commenter questions the security benefit from the added workload this final rule will place on the fishing vessel industry and the Coast Guard.
As noted above, we have sought to impose the least burden possible while still meeting our regulatory objectives of obtaining information necessary to help ensure the safety and security of U.S. ports and waterways and to enhance vessel traffic management. A vessel large enough to have 100 persons on board may not qualify for the exemption for U.S. vessels 300 gross tons or less, engaged in commercial service not coming from a foreign port or place (§ 160.204(a)(5)(vi)), and may sail too widely to qualify for the exemption for a vessel operating exclusively in a single COTP zone (§ 160.204(a)(5)(ii)), but NOAs are intended to provide a layer of security that allows the Coast Guard and other federal agencies to act on current information about persons on vessels planning to enter U.S. waters, transiting U.S. waters, or about to arrive in a U.S. port or place. Background checks provide a layer of security, but they do not provide these real-time data that better enable us to prevent or respond to a maritime transportation security incident.
One commenter stated that DHS regulations in 8 CFR part 231 governing submission of arrival and departure manifests state that requirements for electronic submission of manifests do not apply to vessels arriving directly from Canada and that this should be formally acknowledged in this NOAD rule.
We disagree with this commenter's reading of 8 CFR part 231. Paragraph (b)(2) of 8 CFR 231.1 does contain an exception to the Form I-94 requirement for vessels “arriving directly from Canada on a trip originating in that country,” and 8 CFR 231.2(b)(2) contains a Form I-94 exception for vessels “departing on a trip directly for and terminating in Canada.” However, both of these sections point to requirements to submit manifests electronically. Section 231.1(a) points to 19 CFR 4.7b requirements for the “electronic transmission of arrival manifests covering passengers and crew members,” and § 231.2(a) points to 19 CFR 4.64 requirements for the “electronic transmission of departure manifests covering passengers and crew members.”
One commenter requested that the Coast Guard reevaluate the final rule after the AIS requirements have taken effect and the Nationwide AIS (NAIS) monitoring infrastructure is in place, and then assess the continued need for NOAD requirements. The commenter notes that once AIS is fully implemented, it could obviate the need for NOAD reports and foreign crew data would continue to be provided through CBP reports.
As recommended, we will reevaluate our need for NOAD data after the AIS requirements in this final rule become effective and the development of AIS application-specific messaging that mirrors eNOAD (see “Broader Use of AIS” discussion in VI.B.2). Section 160.206 and paragraph 164.46(a) of this final rule reflect the different nature of information called for by the NOA and AIS requirements. To the extent that AIS can be relied on in the future to provide information that satisfies needs currently met only by NOAD data, we will consider revising NOAD regulations.
One commenter noted that some areas that CDC vessels transit have VTS or AIS coverage, or both, and stated that this coverage provides the Coast Guard with an excellent awareness of movements within the port area. The commenter writes that these systems should enable the Coast Guard to monitor the movements of these vessels within a port area without the need for frequent NOA updates and delays created by the current system. The commenter recommends that the Coast Guard use VTS and/or AIS coverage to track vessel movements in the port area instead of requiring frequent NOA submissions for vessels carrying CDC within a port.
We disagree with this recommendation. A combination of NOA, AIS, and VTS data provides a more complete picture that better enables us to meet our regulatory objectives of obtaining information necessary to help enhance the safety and security of U.S. ports and waterways. Not only would we be unaware of passenger and crew information for these vessels, but we would not have advance notice and other essential data obtained through
NOAs to put security measures in place for vessels carrying CDC.
One commenter stated that just one or two typing errors on a crew list can be repeated multiple times in extremely short order. The commenter noted that Houston is the petrochemical capital of the Americas, and is fed by surrounding industrial ports, the majority of which are in the same COTP zone. The commenter stated that its ships bounce between these ports on a daily basis and that the port chemical trading pattern occurs between these ports like a ball in a pinball machine. The commenter noted that transits can be as long as 16 hours sea-buoy-to-sea-buoy, and as short as 4 hours, and that combined with reports for small cargo parcels, the NOA for the next port, and the NOD for the existing port, there could be as many as five reports simultaneously, with the majority of the massive amount of information required by each being virtually the same.
Based on comments on the proposed rule, we eliminated our proposed NOD requirement. If a vessel is operating in the same COTP zone and is not carrying CDC, then the single-COTP-zone exemption in § 160.204(a)(5)(ii) would apply. We expanded our definition of “CDC residue” in our “Notification of Arrival in U.S. Ports; Certain Dangerous Cargoes” final rule (75 FR 59617, September 28, 2010). This revision, which reflects the reduced risks associated with CDC reside, allows more vessels to take advantage of the single-COTP-zone exception. For vessels carrying CDC cargo, however, the COTP must evaluate all factors associated with the cargo, vessel, crew, and the infrastructure in the port and determine if it is necessary to utilize Coast Guard resources to mitigate any potential threat that the vessel cargo may pose. Vessels carrying CDC also have the option to request a waiver from the local COTP under § 160.214.
In regards to reporting information, we are working towards eliminating the need to reenter data that are still applicable to the next NOA submitted via the eNOAD; through future software upgrades, we expect to decrease the amount of time spent on data entry with respect to both the NOA and NOD.
One commenter noted that, in the past, massive updates and reporting have resulted in industry delays and confusion at the National Vessel Movement Center and at the local Coast Guard field units because they are overwhelmed with too many reports and cannot decipher the new information. The commenter noted that these reports always result in delays to industry, and that the minimum delay costs $1,000 an hour. The commenter asks why the reports cannot be simplified, combined, and streamlined by consolidating all of the repeated information. The commenter stated that once the information has been input on the first report, there should be no reason to repeat it continuously because the vessels are screened coming into every port by Marine Information for Safety and Law Enforcement (MISLE) at the field unit and the information is already contained in the first submitted report. Finally, the commenter makes an apparent reference to the 60-minutes-before-departure NOA requirement in proposed § 160.212(a)(3) when noting that for short voyages, the Coast Guard has already considered an allowance within its regulations for vessels under 300 gross tons, but not for vessels with the aid of AIS and COP in place. The commenter noted that no vessel bounces around ports in the United States more than chemical tankers, and requested that the Coast Guard provide some type of allowance to facilitate this type of trade.
We are working proactively towards streamlining the eNOAD application and process. Many vessels that “bounce around” ports may qualify for an exemption because they are 300 gross tons or less or because they are operating exclusively in a single COTP-zone, but these exemptions are limited to vessels not carrying CDC. Vessels carrying CDC do not qualify for these exemptions because of the risk associated with their cargo. Also, chemical tankers departing to another COTP zone will need to submit an NOA. The infrastructure, assets, and other factors in each COTP zone may be different, creating a different level of risk for the zone. Each COTP will need to evaluate this risk and determine if there are any additional criteria or safeguards that will need to be put in place.
11. Scope and Scale
One commenter noted that the rule has direct implications for a transit ferry system for islands in Casco Bay, and would impose a significant economic and administrative burden for that industry. The commenter recommended that the Coast Guard consider the scope and scale of the rule, and not underestimate the significant economic impact or overestimate the necessity of the rule.
This final rule will not impact the Casco Bay ferry system because their vessels operate in a single COTP zone and therefore will be exempted. If Casco Bay ferry system chooses to operate in two or more COTP zones then it would need to provide the COTPs in those zones a one-time submission of their schedule and the information requested in § 160.204(a)(5)(vii) to qualify for an exemption from standard NOA reporting.
We gave considerable consideration to the proposed rule and determined it is necessary to increase MDA by extending NOAD requirements for vessels that were not previously covered under part 160, but based on comments we received on the NPRM we have made revisions. We have revised our regulatory analysis to note existing CBP requirements and to reflect changes from requirements that the Coast Guard proposed in the NPRM and those we included in this final rule.
We expect this final rule to impose minimal regulatory costs on industry as a result of our elimination of the proposed NOD requirements, the addition of several exemptions and an exception, and the addition of only three NOA information fields that are new to industry. Also, as noted above in the “Exemptions” preamble discussion, based on comments on the NPRM, we have added an exemption for certain ferries in § 160.204(a)(5)(vii).
12. Financial Impact
We received various comments on the financial impact of the rule. Commenters noted that companies will incur computer software, programming, and hardware costs to process and protect data called for by this rule; that the cost of this added regulatory compliance is significant; that this rule presents an economic burden to marine operators already having financial difficulties; that there are substantial costs to capturing, coding, and transmitting data required by NOAD regulations; that requirements present a negative economic impact during a bad economy and a negative impact and threat to the viability of local economies; and that NOAD data collection will add a big administrative burden to passenger vessel operators.
The Coast Guard estimated the NOAD costs of the rule based on the rule's requirements and current CBP regulations. The additional cost for U.S. vessel owners and operators is for the new NOA fields on the NOA form; only three of these fields are new to industry. See the regulatory analysis in the docket for further detail. Any vessel coming from or departing to a foreign port or place is required to submit an electronic NOAD under CBP regulations, which require the use of a computer and associated hardware and software; therefore, we did not include the cost of a computer and other associated costs
such as programming, hardware and software for the affected vessel population in this rule. Based on labor costs and the time to fill in the information for the three fields of data that are new to industry, we estimate it will cost a vessel owner or operator less than 1 dollar per trip to submit the additional arrival information. The Coast Guard attempted to reduce the financial impact of the NOA requirements on vessel owners and operators by adding exemptions and an exception based on comments from the NPRM. Additionally, the Coast Guard more closely aligned its requirements to CBP regulations in an effort to reduce the financial burden on industry and we also eliminated our proposed NOD requirement.
One commenter requested that the Coast Guard consider the cumulative financial and administrative burden for maritime operators from this final rule, which comes in addition to other costs associated with regulations for TWIC, stability, discharges, STCW, other licensing changes, security plans, etc.
We have considered the cumulative impacts associated with this final rule. Please see the AIS Cumulative Impact section of the regulatory analysis in the docket, including Table 22, Cumulative Impacts of AIS Final Rule. Executive Order 13563 underscored Executive Order 12866's directive for government agencies to tailor their regulations to impose the least burden on society by taking into account the cost of cumulative regulations. The Coast Guard and DHS are working to implement this Order.
In this final rule, we have sought to reduce the burden on industry by choosing the least-cost alternative with the use of Class B AIS devices for certain vessel classes given the statutory basis for AIS carriage, where “no action” is not an option. This allows us to meet our regulatory objectives of obtaining information necessary to help enhance the safety and security of United States ports and waterways and to enhance vessel traffic management. Moreover, regarding passenger vessels, in this final rule we are not adopting the threshold of 50 or more passengers we proposed in the NPRM. Instead, we are setting the threshold at vessels certificated to carry more than 150 passengers, which is similar to the current threshold of more than 150 passengers for hire.
See
33 CFR 164.46(a)(3)(i) and (iii) (2013). Other than certain dredges, all of the vessels this final rule add to those currently required to install and use AIS (see Table 6 in the RA) are covered by 46 U.S.C. 70114(a)(1)(A) and (C) which give no discretion to the Secretary. Based on our analysis, all vessels moving certain dangerous cargo and vessels certificated to carry more than 150 passengers are already covered by the 46 U.S.C. 70114(a)(1)(A) and (C), MTSA length threshold. In the regulatory analysis in the docket for review, we estimated the costs to industry for the NOA and AIS portions of this rule. From our analysis, the NOA portion of this rule adds a present value discounted cost of about $201,619 over the 10-year period of analysis using a 7 percent discount rate for all vessel owners and operators that must comply with NOA requirements. Our final rule adds less than 1 dollar per vessel trip for owners and operators to comply with the NOA portion of this rule. For AIS, we present a cumulative impact of the 2003 MTSA AIS final rule and this final rule, in the regulatory analysis available in the docket for review.
For NOA, and in our effort to be as least burdensome as possible, the Coast Guard more closely aligned its NOA regulations with CBP regulations to make it easier to satisfy both requirements through a single submission.
One commenter disagreed with our proposal to expand the applicability of NOAD regulations and noted that this revision would be disproportionately costly to its towing vessels which operate on the Great Lakes, and to small businesses, because its tugs do not have onboard computers, Internet access, or facsimile capability, and because its offices that are capable of submitting NOAD notices electronically to the NVMC are not manned 24 hours a day, 7 days a week, 365 days per year. The commenter notes that the nature of Great Lakes shipping involves short transits between the United States and Canada, with frequent border crossings, and that any form of electronic submission disproportionately affects this population of vessels and small businesses. This commenter recommended that vessels 300 gross tons or less arriving from a foreign port should have a more cost-effective avenue of reporting, such as verbal [spoken] notification and electronic notification within 48 hours.
Based on this comment regarding vessels 300 gross tons or less, and provisions in the Boundary Waters Treaty (36 Stat. 2448; Treaty Series 548), we are extending provisions in § 160.212(a)(3) to Canadian-flag vessels arriving directly from Canada, via boundary waters, to a United States port or place on the Great Lakes. Such vessels 300 gross tons or less and on a voyage of less than 24 hours may submit an NOA as late as 60 minutes before departure from the foreign port or place.
Under the waiver section in subpart C, § 160.214, a COTP may grant a waiver of some or all of the NOA requirements for a given vessel in his or her COTP zone, if, based on the COTP's assessment, a waiver is warranted. As we stated above in response to a comment regarding a different type of vessel without a computer on board, if the COTP determines that the situation warrants it, he or she may grant a waiver. Further, the COTP may require as a condition of the waiver that, instead of NOA data being submitted to the NVMC via methods specified in § 160.210, the NOA data be conveyed to the COTP via an alternative means. We do not believe that a blanket exemption for towing vessels coming from a foreign port or places on the Great Lakes is warranted. In § 160.212(a)(3) of the final rule, we permit NOAs from certain vessels to be submitted up to 60 minutes before departure. However, to maintain sufficient MDA, we do need NOA data on vessels, persons, and cargo coming to the United States from foreign ports or places, even if the foreign port or place is a short distance away.
One commenter stated that the rule understates the initial cost of compliance because it does not account for additional crew overtime incurred by requiring vessels to wait to depart from and arrive at the United States, the cost of Internet access, computer/Internet installation, and computer training for crews. The commenter noted that the rule places a disproportionate burden on vessels 300 gross tons or less and on small businesses.
We do not believe that we underestimated the initial cost of compliance. Since the CBP's Electronic Transmission of Passenger and Crew Manifests for Vessels and Aircraft final rule (70 FR 17820, April 7, 2005) precedes our rule for NOA requirements for vessels coming from a foreign port or place, we removed the costs associated with the submittal of NOAs and the computer cost for vessels that make these transits because the CBP's final rule already requires electronic submission and subsequently estimated these costs in the cost analysis for its APIS final rule; therefore, we have revised our regulatory analysis accordingly and removed the costs associated with NOAs for vessels coming from a foreign port or place. Based on NVMC data, the Coast Guard estimates that about 2,500 foreign flag vessels 300 gross tons or less come to the United States from a foreign port; we estimate about 500 of these vessels
transit two or more COTP zones; the associated cost for these vessels is presented in the regulatory analysis. A discussion of the population appears on page 24 in the NOA cost analysis section of the regulatory analysis available in the docket for review. The Coast Guard does not collect information on whether vessel owners submit arrival information from shoreside facilities; for the purpose of our analysis and for tractability, we assume vessel owners would submit arrival information from onboard the vessel. Even with this conservative assumption, as noted previously, we expect this rule to impose minimal regulatory costs on industry as a result of our elimination of the proposed NOD requirements, the addition of several exemptions and exceptions and the addition of only three NOA information fields that are new to industry. We note that under § 160.204(a)(5)(vi) of this final rule, U.S. vessels 300 gross tons or less, engaged in commercial service not coming from a foreign port or place and not carrying CDC are exempted.
The Coast Guard views U.S. vessels operating strictly on a domestic route as posing a reduced safety and security threat and we have incorporated several exemptions to exclude vessels operating solely in the United States. See 33 CFR 160.204. Certain vessels are still required to submit a NOA, however, so that COTPs can be made aware of vessels planning to enter his or her zone, and for the Coast Guard to schedule inspections, and possibly establish safety or security zones.
One commenter asked the Coast Guard to consider the cumulative economic impact of the NOAD rule on ferry companies serving international routes. The commenter noted that, viewed in isolation, each regulatory proposal (
e.g.,
TWIC, TWIC readers, DOT passenger vessel accessibility requirements, EPA vessel discharge permits for vessel incidental discharges, EPA vessel air emission restrictions, passenger weight limitations and vessel stability revisions, and vessel speed limits for the right whale) may have some justification and its cost to vessel operators may appear to be manageable, but taken as a whole, the proposals are costly and burdensome to the international ferry operators, who are also suffering because of the downturn in international traffic across the United States-Canadian border in recent years.
For the final rule, we completed a Final Regulatory Flexibility Analysis (FRFA). The specific statutory requirements of a FRFA can be found at 5 U.S.C. 604(a). Under these statutory requirements, we did not consider the cumulative impact of our other regulations on small businesses or affected ferry operations. This final rule will impose no additional costs on ferry owners and operators. Ferries that operate on a fixed route between two or more COTPs zones and on a regular schedule will be exempt from NOAD requirements if they submit the information required under § 160.204(a)(5)(vii). This submission has been a common industry practice since 2003 to obtain waivers from COTPs; therefore, there is no additional cost associated with this provision. All vessels that transit within the same COTP that do not carry a CDC will be exempt from submitting NOADs. We acknowledge that some of our other regulations have imposed additional costs on vessel owners and operators subject to this rule, which contains revised applicability provisions. We have taken the cost associated with this rule into consideration; please see the regulatory analysis in the docket for a discussion of the impacts of this rule on industry. In this final rule, we have sought to impose the least burden possible while still meeting statutory and international mandates, as well as our regulatory objectives of obtaining information necessary to help enhance the safety and security of U.S. ports and waterways and to enhance vessel traffic management. Therefore, in our effort to reduce costs on industry and small entities, we abandoned our proposal to reduce the threshold of more than 150 passengers for AIS carriage to a threshold of 50 or more passengers. As previously noted, other than certain dredges, all of the vessels this rule adds to those currently required to install and use AIS (see Table 6 in the RA) are covered by 46 U.S.C. 70114(a)(1)(A) & (C) which give no discretion to the Secretary. We also present a cumulative impact analysis for the 2003 AIS final rule and this final rule in Table 22 of the regulatory analysis available on the docket for review.
One commenter noted that, with 50 ships worldwide and shipping offices around the world, his or her organization does not change the operating system on its computers often and that it has to upgrade its ships and offices almost simultaneously. The commenter noted its organization does not take computer operating system upgrades lightly.
We do not anticipate that an upgrade to the computer operating system is necessary for the submission of an NOAD. In light of the CBP's APIS final rule published in 2005, in which vessels coming from a foreign port or place must submit an arrival manifest (with the exception of ferries), this rule would not require an upgrade or replacement of existing means of submitting NOAs. If a vessel operator is required to submit an NOA or an update, but the vessel is in an area without internet access, he or she would be free to radio or use other non-internet means to convey NOA information to others in his or her organization that would be able to make a submission via the internet. In situations where a vessel operator must submit an NOA or an update, for a vessel in an area without internet access or when experiencing technical difficulties with an onboard computer, and he or she has no shore-side support available, the vessel operator may fax or phone the NOA or update, to the NVMC. However, based on Coast Guard information and for the purpose of the supporting regulatory analysis, our estimates assume NOAD information received by the NVMC is through the Internet.
13. Outer Continental Shelf
We received various requests to make changes from the proposed rule with respect to vessels on, or sailing to or from, the U.S. OCS.
Because of the unique operations of vessels arriving in the OCS, we initiated a separate rulemaking, “Notice of Arrival on the Outer Continental Shelf” (NOA OCS) (RIN 1625-AB28), to address the statutory directive from section 109 of the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Public Law 109-347, 120 Stat. 1884). The final rule in that NOA OCS rulemaking was published January 13, 2011 (76 FR 2254). That separate rule addresses applicability, OCS NOA reporting times, as well as information submission requirements under that rule.
See
33 CFR part 146, as amended by 79 FR 36401, June 27, 2014.
As noted above in the “Applicability” section, VI.A.1, we have revised § 160.203 to make it clear that visits to ports or places on the OCS other than deepwater ports will not directly trigger 33 CFR part 160, subpart C, NOAD requirements; see NOA OCS regulations in 33 CFR part 146 that point to regulations in 33 CFR part 160. For example, § 146.405 refers to information specified in 33 CFR Table 160.206. To increase awareness of 33 CFR part 146 NOA OCS requirements, we have added a note to § 160.201 referring to these requirements.
14. Miscellaneous
On January 21, 2009, we published a notice (74 FR 3534) announcing a March 5, 2010, public meeting to be held in
Washington, DC. Several commenters requested that we schedule an additional public meeting in the Pacific Northwest because west coast international transportation companies, including international ferry operators, are located there and it was impractical for small companies or Washington State Ferry officials to attend the public meeting in Washington, DC. We received an additional request to hold meetings in the Southwest, Mid-Continental/Mid-West, and the Atlantic Northeast.
As noted above, we held one public meeting in Washington, DC, and another public meeting in Seattle, WA. We believe those two opportunities for the public to submit oral comments were sufficient, particularly given the
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