Advance Notice of Arrival: Vessels Bound for Ports and Places in the United States

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 160

[CGD] 97-067

RIN 2115-AF54

Advance Notice of Arrival: Vessels Bound for Ports and Places in

the United States

AGENCY: Coast Guard, DOT.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard amends its rules to require certain vessels to

notify us of their International Safety Management (ISM) Code

certification status when they enter U.S. waters and ports. The rule

requires these vessels to include their ISM Code status in notice of

arrival messages that are routinely sent to the Coast Guard Captain of

the Port. This rule will allow the Coast Guard to monitor vessel

compliance with ISM Code certification requirements.

DATES: This interim rule is effective January 26, 1998. Comments must

reach the Coast Guard on or before January 12, 1998. Comments sent to

the Office of Management and Budget (OMB) on collection of information

must reach OMB on or before February 9, 1998.

ADDRESSES: You may mail comments to the Executive Secretary, Marine

Safety Council (G-LRA/3406) (CGD 97-067), U.S. Coast Guard

Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or

deliver them to room 3406 at the same address between 9:30 a.m. and 2

p.m., Monday through Friday, except Federal holidays. The telephone

number is 202-267-1477. You must also mail comments on collection of

information to the Office of Information and Regulatory Affairs, Office

of Management and Budget, 725 17th Street N.W., Washington, DC 20503,

ATTN: Desk Officer, U.S. Coast Guard.

The Executive Secretary maintains the public docket for this

rulemaking. Comments, and documents as indicated in this preamble, will

become part of this docket and will be available for

[[Page 65204]]

inspection or copying at room 3406, U.S. Coast Guard Headquarters,

between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal

holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Gauvin, Project Manager,

Vessel and Facility Operating Standards Division (G-MSO-2), at (202)

267-1053, or fax (202) 267-4570.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to participate in

this rulemaking by submitting written data, views, or arguments.

Persons submitting comments should include their names and addresses,

identify this rulemaking (CGD 97-067) and the specific section of this

document to which each comment applies, and give the reason for each

comment. Please submit two copies of all comments and attachments in an

unbound format, no larger than 8\1/2\ by 11 inches, suitable for

copying and electronic filing. Persons wanting acknowledgment of

receipt of comments should enclose stamped, self-addressed postcards or

envelopes.

The Coast Guard will consider all comments received during the

comment period. It may change this rule in view of the comments.

The Coast Guard plans no public hearing. Persons may request a

public hearing by writing to the Marine Safety Council at the address

under ADDRESSES. The request should include the reasons why a hearing

would be beneficial. If it determines that the opportunity for oral

presentations will aid this rulemaking, the Coast Guard will hold a

public hearing at a time and place announced by a later notice in the

Federal Register.

Regulatory Information

The Coast Guard has not published a Notice of Proposed Rulemaking

(NPRM) for this regulatory amendment. Under the Administrative

Procedure Act (5 U.S.C. 553), an agency can publish a rule without

notice and public procedure if it finds for good cause that notice

would be impracticable, unnecessary, or contrary to the public

interest. This rule involves international issues and safety and port

management concerns. Compliance with the ISM Code is mandated by the

Coast Guard Authorization Act of 1996 and by Chapter IX of the

International Convention for the Safety of Life at Sea (SOLAS).

The initial implementation date of the ISM Code is July 1, 1998,

for the following vessels engaged on a foreign voyage: A vessel

transporting more than 12 passengers; or a tanker, a bulk freight

vessel, and a high speed freight vessel of 500 gross tons or more. The

second implementation date for the ISM Code is July 1, 2002, for other

freight vessels and self-propelled mobile offshore drilling units

(MODU) of 500 gross tons or more.

The majority of countries that are a party to the SOLAS convention

have adopted the ISM Code and are committed to timely and strict

enforcement of the Code internationally. In order for the U.S. to

demonstrate its support for this international goal, it is crucial that

we begin monitoring and documenting ISM Code compliance status of

vessels that must comply with the ISM Code by July 1, 1998. Similarly,

it will be critical to begin monitoring ISM Code compliance for the

remaining classes of vessels covered by the ISM Code well in advance of

July 1, 2002.

Once the ISM Code is in effect, vessels entering U.S. waters and

bound for U.S. ports which do not have fully certificated or

implemented safety management systems under the ISM Code may be

detained or denied entry into U.S. ports. Gathering ISM Code

certification information about vessels that must comply with the ISM

Code by July 1, 1998, well in advance of that date, will permit the

Coast Guard to determine resource allocations for the U.S. Port State

Control Programs and carry out enforcement actions required by 46

U.S.C. 3204(c) and 3205(d). This will enhance the Coast Guard's ability

to carry out the required enforcement of the ISM Code, and promote safe

and smooth operations at U.S. ports. For these reasons, the Coast Guard

finds good cause under 5 U.S.C. 553(b)(B) that a notice before the

effective date of this rule is unnecessary.

Although this rule will not be preceded by a notice of proposed

rulemaking, we have provided for a 30-day public comment period. This

ensures that the public has an opportunity to comment prior to the

effective date of the rule, but also allows us to begin collecting the

necessary information as soon as possible prior to implementation of

the ISM Code.

Background and Purpose

The Ports and Waterways Safety Act of 1972 [86 Stat. 424], as

amended by the Port and Tanker Safety Act of 1978 [92 Stat. 1271],

authorizes the Secretary of the Department in which the Coast Guard is

operating to require the receipt of notice from any vessel destined for

or departing from a port or place under the jurisdiction of the U.S.

This does not include a vessel declaring force majeure or a vessel on

innocent passage through U.S. waters. This notice may include any

information necessary for the control of the vessel and for the safety

of the port or marine environment. See 33 U.S.C. 1223; 33 CFR Part 160,

Subpart C.

In October 1996, the Coast Guard Authorization Act of 1996 [110

Stat. 3901] amended title 46 of the U.S. Code by adding Chapter 32,

``Management of Vessels.'' Under this new law, the Secretary of

Transportation was directed to prescribe regulations and enforce

compliance with the ISM Code for safety management systems on vessels

engaged on a foreign voyage. This authority was delegated to the

Commandant of the Coast Guard on April 24, 1997 (62 FR 19935), in 49

CFR, Part 1.46 (fff) and (ggg).

On May 1, 1997, the Coast Guard published a Notice of Proposed

Rulemaking on implementation and certification of owners' and vessels'

safety management systems consistent with the ISM Code (62 FR 23705).

The NPRM's comment period closed on July 30, 1997.

Briefly, compliance with the ISM Code means that these vessels and

the companies which own or operate these vessels must have in effect

safety management systems that meet the requirements of the ISM Code,

and they must hold valid Document of Compliance certificates and Safety

Management Certificates.

This rule will require these vessels to provide their ISM

certification status prior to entering U.S. ports. It should be noted

that passenger vessels carrying 12 passengers or more involved in

foreign voyages that are below 500 gross tons are not covered by this

rule even though these passenger vessels under 500 gross tons will be

required to be certificated to the ISM Code requirements.

There are very few foreign passenger vessels operating within the

U.S. that meet these parameters. Those that do operate on liner runs to

the same port daily with their schedules well known to the Coast

Guard's Captain of the Port. An example of this would be small

passenger ferries operating between the British Virgin Islands and U.S.

Virgin Islands, which enter U.S. waters three or more times daily. Once

the Captain of the Port's personnel verify that these vessels meet the

ISM Code requirements during routine foreign vessel boardings, the need

to report ISM Code status is unnecessary due to their limited, one U.S.

port operation. For these reasons, we are excluding these vessels from

the requirements of this rule.

The purpose of this rule is to permit the Coast Guard to enforce

the requirements of 46 U.S.C. 3204(c),

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which prohibits a vessel from operating in U.S. waters without having

on board a valid Document of Compliance certificate and Safety

Management Certificate. Collecting a vessel's certification status

before arrival in port is vital to determining appropriate enforcement

actions by Coast Guard officials at U.S. ports. An effected vessel that

does not have the ISM Code certificates on board will be denied entry

into a U.S. port after the effective date of the ISM Code. A vessel

that has the proper ISM Code certificates will be boarded annually

under the existing standards of the U.S. Port State Control program.

During these boardings, if the vessel is found to have valid

certificates but has not properly implemented or maintained its safety

management system, the vessel will be detained in port. The vessel's

flag state or organization acting on behalf of its flag, will be

requested by the Coast Guard to attend to the vessel to ensure

corrections, or take actions to manage the corrections of non-

conformities to the vessel's safety management system prior to the

vessel departing the port.

Discussion of the Proposed Rule

Notification of a vessel's ISM Code certification status will be

added to 33 CFR 160.207 as new paragraphs (d) and (e). Paragraph (d)

requires an owner, agent, master, operator, or person in charge of a

vessel of 500 gross tons or more and engaged on a foreign voyage to the

United States to provide the ISM Code notice described in paragraph

(e).

Vessels that are required to comply with the ISM Code by July 1,

1998 must comply with this rule on its effective date. These are listed

in paragraph (d)(1) and include a passenger vessel carrying 12 or more

passengers, a tank vessel, a bulk freight vessel, or a high-speed

freight vessel.

Vessels that must comply with the ISM Code by July 1, 2002, must

comply with this rule beginning January 1, 2000. These vessels are

listed in paragraph (d)(2) and include a freight vessel not listed in

paragraph (d)(1) or a self-propelled MODU. We are not collecting ISM

Code compliance information from these other freight vessels and self-

propelled MODU's until January 1, 2000, because they are not required

to comply with the ISM Code until July 1, 2002. This delayed compliance

date reduces the collection of information burden for these vessels,

but will allow the Coast Guard to collect this information well in

advance of the second ISM Code effective date.

Paragraph (e) describes the content and manner of the notice. These

vessels will be required to include in their advance notice of arrival

message the issuance dates of their Document of Compliance certificate

and Safety Management Certificate, and the name of the Flag

Administration or recognized organization(s) representing the vessel's

flag which issued the certificates. The notice must be given to the

appropriate Captain of the Port at least 24 hours prior to entry, and

can be combined with the existing notification given under 33 CFR

160.207(a).

We recognize that this rule will take effect prior to the initial

ISM Code implementation date of July 1, 1998, and will take effect for

other freight vessels and self-propelled MODUs on July 1, 2002. Vessels

that are not in compliance with the ISM Code will not be detained or

denied entry into U.S. ports prior to the implementation date for that

particular vessel. However, compiling ISM certification status prior to

the ISM implementation dates will enable us to enforce the ISM Code

compliance in a timely and efficient manner.

Regulatory Evaluation

This interim rule is not a significant regulatory action under

section 3(f) of Executive Order 12866 and does not require an

assessment of potential costs and benefits under section 6(a)(3) of

that Order. It has not been reviewed by the Office of Management and

Budget under that Order. It is not significant under the regulatory

policies and procedures of the Department of Transportation (DOT) (44

FR 11040; February 26, 1979).

The Coast Guard expects the economic impact of this interim rule to

be so minimal that a full Regulatory Evaluation under paragraph 10e of

the regulatory policies and procedures of DOT is unnecessary.

This rule will amend established reporting regimes which are now

customary procedures. The information to be reported is readily

available aboard the vessel by international convention. Modern

electronic communication systems make it easier to report this

information, and will only add seconds to the delivery of currently

required reports.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard considers the economic impact on small entities of each

rule for which a general notice of proposed rulemaking is required.

``Small entities'' include small businesses, not-for-profit

organizations that are independently owned and operated and are not

dominant in their fields, and governmental jurisdictions with

populations of less than 50,000. This rule does not require a general

notice of proposed rulemaking and, therefore, is exempt from the

requirements of the Regulatory Flexibility Act. Although this rule is

exempt, the Coast Guard has reviewed it for potential economic impact

on small entities.

This rulemaking will affect U.S. oceangoing shipping companies and

their vessels of specific categories of more than 500 gross tons, or

passenger vessels of 500 gross tons or more carrying more than 12

passengers engaged on a foreign voyage. These companies and their

vessels are not considered small businesses or small entities. Small

passenger vessels are the only small entities required to comply with

the ISM Code. A small passenger vessel is generally one carrying more

than six passengers and is less than 100 gross tons (See 46 U.S.C. 2101

(35)). Since the new reporting requirements are for passenger vessels

of 500 gross tons or over, there is no impact or reporting requirement

for a small passenger vessel engaged on a foreign voyage.

Therefore, the Coast Guard's position is that this rule will not

have a significant economic impact on a substantial number of small

entities. If, however, you think that your business or organization

qualifies as a small entity and that this rule will have a significant

economic impact on your business or organization, please submit a

comment (see ADDRESSES) explaining why you think it qualifies and in

what way and to what degree this rule will economically affect it.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory

Enforcement Act of 1996 (Pub.L. 104-121), the Coast Guard wants to help

small entities understand this proposed rule so they can better

evaluate its effects on them and participate in the rulemaking process.

If your small business is affected by this rule and you have questions

concerning its provisions or options for compliance, please contact Mr.

Robert Gauvin, Project Manager, Vessel and Facility Operating Standards

Division (G-MSO-2), at (202) 267-1053, or fax (202) 267-4570.

Collection of Information

This rule provides for a collection of information requirement

under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As

defined in 5 CFR 1320.3(c), ``collection of information'' includes

reporting,

[[Page 65206]]

recordkeeping, monitoring, posting, labeling, and other, similar

actions.

The Coast Guard submitted the requirements for the collection

request to the Office of Management and Budget, requesting emergency

processing of the collection. The title and description of the

collections, a description of the respondents, and an estimate of the

total annual burden follow. Included in the estimate is the time for

reviewing instructions, searching existing sources of data, gathering

and maintaining the data needed, and completing and reviewing the

collection.

Title: Advance Notice of Arrivals: Vessels bound for ports and

places in the U.S.

Summary of the Collection of Information: This interim rule

contains collection of information requirements in Sec. 160.207, and

the corresponding approval number is OMB Control Number 2115-0557.

Need for Information: 46 U.S.C. 3204(c) prohibits vessels from

operating in U.S. waters without having on board a copy of their

company's Document of Compliance certificate and the vessel's Safety

Management Certificate. This advance notice of arrival report will

ensure that the vessel and its company have been issued these

certificates and are in compliance. This report will ensure

uninterrupted trading of the vessel in the U.S. when meeting the

requirements of the ISM Code. Once the ISM Code implementation dates

come into effect, this will allow the Coast Guard Captain of the Port

to deny vessels from entry into U.S. waters and ports if the vessel

does not verify the issuance of the required certificates in the

advance notice of arrival. This will enhance safety in U.S. ports and

waterways, and prevent costs for the U.S. port to detain a non-

complying vessel, if found in port.

Proposed Use of Information: This information will be used by the

cognizant Captain of the Port to ensure compliance with the ISM Code

and U.S. law to enhance waterway safety management.

Description of the Respondents: Respondents include the vessel's

owner, master, operator, agent or person in charge of a passenger

vessel carrying more than 12 passengers, tank vessels, bulk freight

vessels, freight vessels, high-speed freight vessels or self-propelled

mobile offshore drilling units of at least 500 gross tons or more,

engaged on a foreign voyage to the U.S.

Number of Respondents: The ISM Code compliance reporting

requirement will effect the above-described vessels of 500 gross tons

or more on a foreign voyage to the U.S. There are approximately 9,507

vessels operating on a foreign voyage to the U.S. annually. During 1998

and 1999, 60 percent of the total population will need to meet this

requirement (5,704 vessels). In the year 2000, 100 percent compliance

will be expected.

Frequency of Response: It is expected that each vessel will be

required to make this report eight times per year at every port call.

This will require a total of 45,632 responses per year during 1998 and

1999, and a total of 76,056 responses during the year 2000. Each vessel

responds to local Coast Guard Captain of the Port units.

Burden of Response: It is expected that the additional requirement

will add one minute of time per report for recording the additional

information needed to verify the vessel's ISM Code certification

compliance.

Estimated Total Annual Burden: The estimated total additional

burden in each year, for 1998 and 1999 will equal: 1 minute x 45,632

responses = 45,632 minutes or 761 hours per year. At $20.00 an hour for

clerical time, the cost to the public is $15,220 per year ($20.00 x

761 hours = $15,220).

The estimated total annual burden for the year 2000 will equal: 1

minute x 76,056 responses = 76,056 minutes or 1,268 hours per year.

At $20.00 an hour for clerical time, the cost to the public is $25,360

per year ($20.00 x 1,268 hours = $25,360).

As required by section 3507(d) of the Paperwork Reduction Act of

1995, the Coast Guard has submitted a copy of this rule to OMB for its

review of the collection of information.

Even though the Coast Guard has received emergency authorization to

collect this information, it solicits public comment on the collection

of information to (1) evaluate whether the information is necessary for

the proper performance of the functions of the Coast Guard, including

whether the information will have practical utility; (2) evaluate the

accuracy of the Coast Guard's estimate of the burden of the collection,

including the validity of the methodology and assumptions used; (3)

enhance the quality, utility, and clarity of the information to be

collected; and (4) minimize the burden of the collection on those who

are to respond, by allowing the submittal of responses by electronic

means or the use of other forms of information technology.

Persons submitting comments on the collection of information should

submit their comments both to OMB and to the Coast Guard where

indicated under ADDRESSES by the date under DATES.

Persons are not required to respond to a collection of information

unless it displays a currently valid OMB control number.

Federalism

The Coast Guard has analyzed this interim rule under the principles

and criteria contained in Executive Order 12612 and has determined that

this rule does not have sufficient implications for federalism to

warrant the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this interim

rule and concluded that, under paragraph 2.B.2e(34(d)) of Commandant

Instruction M16475.1B, this rule is categorically excluded from further

environmental documentation. A ``Categorical Exclusion Determination''

is available in the docket for inspection or copying where indicated

under ADDRESSES.

List of Subjects in 33 CFR Part 160

Administrative practice and procedure, Harbors, Hazardous materials

transportation, Marine safety, Navigation (water), Reporting and

recordkeeping requirements, Vessels, Waterways.

For the reasons discussed in the preamble, the Coast Guard amends

33 CFR Part 160 as follows:

1. Revise the authority citation for part 160 to read as follows:

PART 160--[AMENDED]

Authority: 33 U.S.C. 1223, 1231; 49 CFR 1.46.

2. Revise Sec. 160.207 by adding paragraphs (d) and (e) to read as

follows:

Sec. 160.207 Notice of arrival: Vessels bound for ports or places in

the United States.

* * * * *

(d) International Safety Management (ISM) Code (Chapter IX of

SOLAS) Notice. If you are the owner, agent, master, operator, or person

in charge of a vessel that is 500 gross tons or more and engaged on a

foreign voyage to the United States, you must provide the ISM Code

notice described in paragraph (e) as follows:

(1) Immediate ISM Code notice if your vessel is--a passenger vessel

carrying 12 or more passengers, a tank vessel, a bulk freight vessel,

or a high-speed freight vessel.

(2) ISM Code notice beginning January 1, 2000, if your vessel is--a

freight vessel not listed in paragraph (d)(1) or a self-propelled

mobile offshore drilling unit (MODU).

[[Page 65207]]

(e) Content and Manner of ISM Code Notice. (1) ISM Code notice

includes the following:

(i) the date of issuance for the company's Document of Compliance

certificate that covers the vessel,

(ii) the date of issuance for the vessel's Safety Management

Certificate, and,

(iii) the name of the Flag Administration, or the recognized

organization(s) representing the vessel flag administration, that

issued those certificates.

(2) If you meet the criteria in paragraph (d) of this section, you

must give the ISM Code notice to the Coast Guard Captain of the Port of

the port or place of your destination in the U.S. at least 24 hours

before you enter the port or place of destination. The ISM Code notice

may be combined and provided with the report required by paragraph (a)

of this section.

Dated: December 5, 1997.

R.C. North,

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

and Environmental Protection.

[FR Doc. 97-32447 Filed 12-10-97; 8:45 am]

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