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

SUMMARY: In an Interim Rule (IR) published on December 11, 1997, the

Coast Guard amended the notice of arrival requirements for certain

vessels which must comply with the International Safety Management

(ISM) Code, prior to their entering U.S. waters. This final rule

completes the rulemaking action that allows the Coast Guard to monitor

the ISM Code certification status of vessels prior to operating in U.S.

waters and ensure that safety management system requirements are being

met.

DATES: This final rule is effective September 16, 1998.

ADDRESSES: Documents as indicated in this preamble are available for

inspection or copying at the office of the Executive Secretary, Marine

Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100 Second

Street SW., room 3406, Washington, DC 20593-0001, between 9:30 a.m. and

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

number is 202-267-1477.

FOR FURTHER INFORMATION CONTACT:

Mr. Robert M. Gauvin, Project Manager, Vessel and Facility Operating

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

SUPPLEMENTARY INFORMATION:

Regulatory History

On December 11, 1997, the Coast Guard published an interim rule

entitled ``Advance Notice of Arrival: Vessels Bound for Ports and

Places in the United States,'' in the Federal Register (62 FR 65203).

The Coast Guard received eight letters during the comment period which

closed on January 12, 1998, commenting on the proposed rulemaking. No

public hearing was requested, and none was held.

Background and Purpose

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

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

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

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

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

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

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

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

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

subpart C.

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

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

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

Transportation was directed to prescribe regulations and enforce

compliance with the ISM Code for safety management systems on vessels

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

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

CFR 1.46 (fff) and (ggg).

On December 24, 1997, a final rule entitled ``Rules for the Safe

Operation of Vessels and Safety Management Systems'' was published in

the Federal Register (62 FR 67492). This rule establishes the

requirements for safety management systems in 33 CFR part 96. This rule

became effective on January 23, 1998.

The notice of arrival requirements state that vessels which must

meet Chapter IX (ISM Code regulations) of the International Convention

for the Safety of Life at Sea (SOLAS), 1974 provide their ISM

certification status by message to the U.S. Coast Guard, at least 24

hours prior to entering a U.S. port or place. It should be noted that

passenger vessels that are below 500 gross tons, carrying more than 12

passengers, and engaged on a foreign voyage are not covered by this

rule, even through these passenger vessels under 500 gross tons will be

required to be certificated to the ISM Code requirements of SOLAS and

33 CFR part 96.

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

the requirements of 33 CFR 96.390 (46 U.S.C. 3204(c)), which prohibits

a vessel from operating in U.S. waters without having on board a valid

copy of a company's Document of Compliance certificate or a valid

original of the vessel's Safety Management Certificate. Collecting a

vessel's certification status before arrival in port is vital to

determining appropriate enforcement actions by Coast Guard officials at

U.S. ports. An affected vessel that does not have the ISM Code

certificates on board will be denied entry into a U.S. port or place

after the effective date of the ISM Code. A vessel that has the proper

ISM Code certificates will be boarded annually under the existing

standards of the U.S. Port State Control program. During these

boardings, if the vessel is found to have valid certificates but has

not properly implemented or maintained its safety management system,

the vessel may be detained in port until corrections are made to the

system. The vessel's flag state or organization acting on behalf of its

flag state, will be requested by the Coast Guard to attend to the

vessel to ensure corrections, or take actions to manage the corrections

of non-conformities to the vessel's safety management system prior to

the vessel departing the port. U.S. enforcement policy regarding the

Port State Control Program and safety management system requirements

for foreign vessels operating in the U.S. are provided in the Coast

Guard's Navigation and Vessel Inspection Circular (NVIC) 4-98, which

was published on March 17, 1998. This NVIC can be received by sending a

written request to the Coast Guard's National Maritime Center, 4200

Wilson Boulevard, Suite 510, Arlington, Virginia 22203-1804, or by

telephone at (703) 235-1604. The document can be downloaded through the

internet from the Coast Guard's home page on the World Wide Web located

at http://www.uscg.mil/hq/g-m/nvic/index.htm. Go to the NVIC link,

select all NVICS published in the 1990's, select the year 1998, and

then select and download NVIC 4-98.

Discussion of Comments and Changes

The Coast Guard received a total of 8 documents containing 14

comments to the public docket. No written comment requested a public

hearing and none was held.

All changes to each section of the rule are discussed within the

following paragraphs:

1. Three comments received supported the interim rule as written

and its intent to monitor compliance with the certification of vessels'

safety management systems. A fourth comment went further to discuss

that the Coast Guard's use of the notice of arrival requirements to

stop a vessel from entering or operating in U.S. waters could endanger

a vessel if it is unsafe and could hamper efforts to ensure

international compliance with these new international regulations. That

comment also stated that a certificate did not ensure that a vessel was

safe or had safe operating practices. The Coast Guard agrees that a

certificate is not absolute proof of safety, but vessels are required

under 46 U.S.C.

[[Page 44115]]

3204(c) to have safety management system certificates documenting their

compliance on board the vessel to operate in U.S. waters. The notice of

arrival system is the most effective way of ensuring compliance with

these mandatory statutory requirements for certification.

The Coast Guard was delegated the responsibility to enforce 46 USC

3204(c) and is not provided with the ability to allow variance from the

requirement. If a vessel is unsafe or unseaworthy, the master can claim

a force majeure entrance to a U.S. port, even without the required

certificates. The Coast Guard will verify claims of force majeure.

Also, the Coast Guard will continue to board vessels under the current

port state control management program which includes verification that

the vessel's safety management system is being used by the vessel's

crew. In such cases where safe operation of the vessel is in question,

the Coast Guard will be in contact with the vessel's Flag State or

recognized organization acting on the Flag State's behalf, to notify

them of the vessel's situation as required by SOLAS. In response to the

comment suggesting an ability of the notice of arrival to hamper

compliance with safety management system requirements internationally,

the Coast Guard expects this action to have the opposite effect.

Approximately 7,500 to 8,000 individual foreign flag vessels per year

make U.S. port calls. This notification process will ensure that each

vessel complies with the new SOLAS safety management system and U.S.

requirements on the proper effective date, or it will not be allowed to

trade with the U.S. No changes were made to this rule due to these

comments.

2. One comment requested that a company and vessel additionally

provide their compliance information on ISO quality standard

certification as part of this notification requirement. The ISO quality

standards are not mandated for use on vessels or by their company under

U.S. law or international regulations. These ISO quality standards are

voluntary industry standards not mandated, except possibly by

commercial contract. Thus, only those companies that wish to be

certificated to these quality standards do so. ISO standards are

developed along the same basic performance elements as safety

management systems. The collection of quality system certification

information would not provide the Coast Guard with any information or

indicators of safe operation of a vessel, not included by providing the

safety management system certification under the ISM Code. Therefore,

the Coast Guard does not see a need for collection of this information,

and has not changed these rules due to this comment.

3. One comment requested that the notification process include

notification of oil (bunker and cargo) transfers, and ballast water

exchange information, as well as the ISM Code certification status. As

this comment requests collection of new information not discussed in

the interim rule and outside the scope of this rulemaking, the Coast

Guard could not include such a request without an additional

opportunity for public comment. However, there is an ongoing rulemaking

on ballast water discharge controls. A Notice of Proposed Rulemaking

(NPRM) entitled ``Implementation of the National Invasive Species Act

of 1996 (USCG-1998-3423)'' was published on April 10, 1998, in the

Federal Register (63 FR 17782). This written comment was forwarded to

the NPRM docket for that rulemaking to ensure it is reviewed during the

comment period for that NPRM which was reopened on June 16, 1998, and

closes on August 8, 1998. There is no change to this rule in response

to this comment.

4. Four comments stated that the second effective date of the

notification in 33 CFR 160.207(d)(2), January 1, 2000, was too far in

advance of the second effective date of the ISM Code compliance

requirements for freight vessels and self-propelled mobile offshore

drilling units of 500 gross tons or more engaged on foreign voyages

(July 1, 2002). One comment recommended that the second effective date

of notification be amended to January 1, 2002. The comments also

recommended that the collection of the ISM Code certification

information be a one-time notification requirement, as opposed to a

continuous requirement. The Coast Guard agrees that the second

effective date should be moved to a date closer to the second effective

date of the ISM Code. Therefore, the second effective date of 33 CFR

160.207(d)(2) is amended to January 1, 2002, in the final rule.

The Coast Guard disagrees that the notification of ISM Code

certification compliance be completed only once. The Coast Guard is

required to enforce 46 CFR 3204(c) constantly, not just on the

effective date of the ISM Code. To ensure compliance before operation

in U.S. waters, the Coast Guard must verify ISM Code certification on

any new vessel, vessel whose owner or management company changes,

vessel with name changes, or other changes which would effect their

original ISM Code certification and safety management systems. Also,

vessels can have their certificates invalidated and terminated by Flag

States if found in non-compliance at re-issuance of the certificate or

during interim audits and endorsement of certificates. As these

requirements will be in constant dynamic alteration, the Coast Guard

must keep appraised of a vessel's compliance status on a visit by visit

notification for U.S. port entry. No change was made to the final rule

due to these comments.

5. One comment requested that this rule be terminated after the

initial collection of information, while a second comment requested

that the rule be terminated on July 1, 2004. The Coast Guard disagrees

with these requests. There are no other actions that are currently

available, without the Coast Guard boarding every vessel which enters a

U.S. port, to ensure compliance of these ISM Code certification

programs for safety management systems. In the future, some other

action may allow oversight of the ISM Code certification compliance

information without this collection of information requirement. If this

does occur, the Coat Guard will consider removing these notification

requirements from the regulations in 33 CFR 160.207. No change was made

to the final rule due to this comment.

6. One comment recommended that the ISM Code certification

information be filed in the Marine Safety Information System (MSIS)

database for vessels, but not in that section of the database that

indicates non-compliance status. Also, this comment supported Flag

States sharing vessel boarding information, but cautioned that this

could lead to incorrect data being passed between Flag States. For all

vessels, the ISM Code certification information will be filed with

other listed documents in the Vessel File of Listed Documents (VFLD) in

MSIS. This is an information collection file used as a reference by the

Coast Guard to determine vessel historical background. It is updated

when new information is collected during vessel boardings, inspections,

and examinations. This information is not normally updated by

information received from a notification of arrival message. This

information is updated after the Coast Guard visually checks the actual

documents on board the vessel during an annual boarding or inspection.

Thus, this information is not normally placed in a non-compliance data

file. However, if the vessel does not provide the proper certification

notification prior to entry into a U.S. port or is found in non-

compliance after boarding in a U.S. port, a report of

[[Page 44116]]

detention or intervention may be filed with IMO, the vessel Flag State,

and a violation processed by the Coast Guard, which would be recorded

in the vessel's boarding history files on MSIS. No change was made to

the final rule due to this comment.

7. One comment stated that the applicability for passenger vessels

was incorrectly stated in the interim rule, 33 CFR 160.207(d)(1). The

interim rule states the applicability of a passenger vessel as: ``a

passenger vessel carrying 12 or more passengers'' when it should state,

``a passenger vessel carrying more than 12 passengers.'' The Coast

Guard agrees with this comment and corrected this typographical error,

in a Federal Register notice of correction (63 FR 5458) published on

February 3, 1998. The corrected wording is found in this final rule.

8. One comment stated that there may be situations where agents

representing a vessel's owner may not be aware of the vessel's

compliance with the ISM Code certification and may not be able to

provide the notification information prior to vessel arrival. In such

situations, it was requested that the Coast Guard not lodge a violation

report against the vessel or the vessels' agent. In a situation where

the certification status is not known before a vessel arrives in a port

or place within the U.S., the vessel will not be allowed into port

under 46 CFR 3204(c). If the vessel's ISM Code certification status is

already known and appears valid from previous U.S. boardings and MSIS

data, the Coast Guard COTP may allow the vessel to enter port. However,

the COTP will determine on a case-by-case basis whether a civil

violation action should be taken due to the circumstances of the

situation. No change to the final rule or other Coast Guard policy is

made in response to this comment.

Regulatory Evaluation

This final rule is not a significant regulatory action under

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

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

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

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

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

FR 11040; February 26, 1979).

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

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

the regulatory policies and procedures of DOT is unnecessary.

This rule will amend established reporting regimes, which are now

customary procedures. The information to be reported is readily

available aboard the vessel by international convention. Modern

electronic communication systems make it easier to report this

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

required reports.

Small Entities

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

Coast Guard considered whether this rule would have a significant

economic impact on a substantial number of small entities. ``Small

entities'' include small businesses, not-for-profit organizations that

are independently owned and operated and are not dominant in their

fields, and governmental jurisdictions with populations of less than

50,000. This rule does not require a general notice of proposed

rulemaking and, therefore, is exempt from the requirements of the

Regulatory Flexibility Act. Although this rule is exempt, the Coast

Guard has reviewed it for potential economic impact on small entities.

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

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

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

passengers engaged on a foreign voyage. These companies and their

vessels are not considered small businesses or small entities. Small

passenger vessels are the only small entities required to comply with

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

than 6 passengers and is 100 gross tons or less (See 46 U.S.C. 2101

(35)). Since the new reporting requirements only affect passenger

vessels of 500 gross tons or more, there is no impact or reporting

requirement for a small passenger vessel engaged on a foreign voyage.

Therefore, the Coast Guard certifies under section 605(b) of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this final rule

will not have a significant economic impact on a substantial number of

small entities.

Assistant for Small Entities

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

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

offered to assist small entities in understanding the rule so that they

could better evaluate its effects on them and participate in the

rulemaking process. No written or verbal comments were received to this

rulemaking docket which requested or stated a need for assistance for

small entities to comply with these reporting requirement. Thus, no

actions are specifically required.

Collection of Information

This final rule provides for a collection of information under the

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

the interim rule, the Coast Guard solicited comments on the collection

of information to: (1) Evaluate whether the information is necessary

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

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

evaluate the accuracy of the Coast Guard's estimate of the burden of

the collection, including the validity of the methodology and

assumptions used; (3) enhance the quality, utility, and clarity of the

information to be collected; and (4) minimize the burden of the

collection on those who are to respond by allowing the submittal of

responses by electronic means or the use of other forms of information

technology. The Coast Guard received no comments directed specifically

at these questions and has responded to any information request

comments in the ``Discussion of Comments and Changes'' section of this

rulemaking.

As required by 5 U.S.C. 3507(d), the Coast Guard submitted a copy

of this rule to the Office of Management and Budget (OMB) for its

review of the collection of information. OMB has approved the

collection. The amendment to 33 CFR 160.207 and the corresponding

approval number from OMB is OMB Control Number 2115-0557, which expires

on April 30, 2001.

Persons are not required to respond to a collection of information

unless it displays a currently valid OMB control number.

Federalism

The Coast Guard analyzed this final rule under the principles and

criteria contained in Executive Order 12612 and have determined that

this rule does not have sufficient implications for federalism to

warrant the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this final

rule and concluded that, under Figure 2-1, paragraph (34)(d) of

Commandant Instruction M16475.1C, this final rule is categorically

excluded from further environmental documentation. A ``Categorical

Exclusion Determination'' is available in the docket for inspection or

copying where indicated under ADDRESSES.

[[Page 44117]]

List of Subjects in 33 CFR Part 160

Administrative practice and procedure, Harbors, Hazardous materials

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

recordkeeping requirements, Vessels, Waterways.

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

33 CFR part 160 as follows:

1. The authority citation for part 160 continues to read as

follows:

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

2. Revise Sec. 160.207 paragraphs (d) and (e) to read as follows:

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

the United States.

* * * * *

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

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

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

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

notice described in paragraph (e) as follows:

(1) ISM Code notice beginning January 26, 1998, if your vessel is--

a passenger vessel carrying more than 12 passengers, a tank vessel, a

bulk freight vessel, or a high-speed freight vessel.

(2) ISM Code notice beginning January 1, 2002, if your vessel is--a

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

mobile offshore drilling unit (MODU).

(e) Content and Manner of ISM Code Notice.

(1) ISM Code notice includes the following:

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

certificate that covers the vessel.

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

Certificate, and,

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

organization(s) representing the vessel flag administration, that

issued those certificates.

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

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

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

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

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

of this section.

Dated: August 6, 1998.

Joseph J. Angelo,

Acting Assistant Commandant for Marine Safety and Environmental

Protection.

[FR Doc. 98-22005 Filed 8-14-98; 8:45 am]

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