[Federal Register Volume 62, Number 238 (Thursday, December 11, 1997)]
[Rules and Regulations]
[Pages 65203-65207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32447]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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),

[[Page 65205]]

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]
BILLING CODE 4910-14-P