[Federal Register Volume 63, Number 158 (Monday, August 17, 1998)]
[Rules and Regulations]
[Pages 44114-44117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22005]



[[Page 44113]]

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Part V





Department of Transportation





_______________________________________________________________________



Coast Guard



_______________________________________________________________________



33 CFR Part 160



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

  Federal Register / Vol. 63, No. 158 / Monday, August 17, 1998 / Rules 
and Regulations  

[[Page 44114]]



DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 160

[CGD 97-067]
RIN 2115-AF54


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

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: In an Interim Rule (IR) published on December 11, 1997, the 
Coast Guard amended the notice of arrival requirements for certain 
vessels which must comply with the International Safety Management 
(ISM) Code, prior to their entering U.S. waters. This final rule 
completes the rulemaking action that allows the Coast Guard to monitor 
the ISM Code certification status of vessels prior to operating in U.S. 
waters and ensure that safety management system requirements are being 
met.

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

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at the office of the Executive Secretary, Marine 
Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100 Second 
Street SW., room 3406, Washington, DC 20593-0001, between 9:30 a.m. and 
2 p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-267-1477.

FOR FURTHER INFORMATION CONTACT:
Mr. Robert M. Gauvin, Project Manager, Vessel and Facility Operating 
Standards Division (G-MSO-2), at (202) 267-1053, or fax (202) 267-4570.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On December 11, 1997, the Coast Guard published an interim rule 
entitled ``Advance Notice of Arrival: Vessels Bound for Ports and 
Places in the United States,'' in the Federal Register (62 FR 65203). 
The Coast Guard received eight letters during the comment period which 
closed on January 12, 1998, commenting on the proposed rulemaking. No 
public hearing was requested, and none was held.

Background and Purpose

    The Ports and Waterways Safety Act of 1972 [86 Stat. 424], as 
amended by the Port and Tanker Safety Act of 1978 [92 Stat. 1271], 
authorizes the Secretary of the Department in which the Coast Guard is 
operating to require the receipt of notice from any vessel destined for 
or departing from a port or place under the jurisdiction of the U.S. 
This does not include a vessel declaring force majeure or a vessel on 
innocent passage through U.S. waters. This notice may include any 
information necessary for the control of the vessel and for the safety 
of the port or marine environment. See 33 U.S.C. 1223; 33 CFR part 160, 
subpart C.
    In October 1996, the Coast Guard Authorization Act of 1996 [110 
Stat. 3901] amended title 46 of the U.S. Code by adding Chapter 32, 
``Management of Vessels.'' Under this new law, the Secretary of 
Transportation was directed to prescribe regulations and enforce 
compliance with the ISM Code for safety management systems on vessels 
engaged on a foreign voyage. This authority was delegated to the 
Commandant of the Coast Guard on April 24, 1997 (62 FR 19935), in 49 
CFR 1.46 (fff) and (ggg).
    On December 24, 1997, a final rule entitled ``Rules for the Safe 
Operation of Vessels and Safety Management Systems'' was published in 
the Federal Register (62 FR 67492). This rule establishes the 
requirements for safety management systems in 33 CFR part 96. This rule 
became effective on January 23, 1998.
    The notice of arrival requirements state that vessels which must 
meet Chapter IX (ISM Code regulations) of the International Convention 
for the Safety of Life at Sea (SOLAS), 1974 provide their ISM 
certification status by message to the U.S. Coast Guard, at least 24 
hours prior to entering a U.S. port or place. It should be noted that 
passenger vessels that are below 500 gross tons, carrying more than 12 
passengers, and engaged on a foreign voyage are not covered by this 
rule, even through these passenger vessels under 500 gross tons will be 
required to be certificated to the ISM Code requirements of SOLAS and 
33 CFR part 96.
    The purpose of this rule is to permit the Coast Guard to enforce 
the requirements of 33 CFR 96.390 (46 U.S.C. 3204(c)), which prohibits 
a vessel from operating in U.S. waters without having on board a valid 
copy of a company's Document of Compliance certificate or a valid 
original of the vessel's Safety Management Certificate. Collecting a 
vessel's certification status before arrival in port is vital to 
determining appropriate enforcement actions by Coast Guard officials at 
U.S. ports. An affected vessel that does not have the ISM Code 
certificates on board will be denied entry into a U.S. port or place 
after the effective date of the ISM Code. A vessel that has the proper 
ISM Code certificates will be boarded annually under the existing 
standards of the U.S. Port State Control program. During these 
boardings, if the vessel is found to have valid certificates but has 
not properly implemented or maintained its safety management system, 
the vessel may be detained in port until corrections are made to the 
system. The vessel's flag state or organization acting on behalf of its 
flag state, will be requested by the Coast Guard to attend to the 
vessel to ensure corrections, or take actions to manage the corrections 
of non-conformities to the vessel's safety management system prior to 
the vessel departing the port. U.S. enforcement policy regarding the 
Port State Control Program and safety management system requirements 
for foreign vessels operating in the U.S. are provided in the Coast 
Guard's Navigation and Vessel Inspection Circular (NVIC) 4-98, which 
was published on March 17, 1998. This NVIC can be received by sending a 
written request to the Coast Guard's National Maritime Center, 4200 
Wilson Boulevard, Suite 510, Arlington, Virginia 22203-1804, or by 
telephone at (703) 235-1604. The document can be downloaded through the 
internet from the Coast Guard's home page on the World Wide Web located 
at http://www.uscg.mil/hq/g-m/nvic/index.htm. Go to the NVIC link, 
select all NVICS published in the 1990's, select the year 1998, and 
then select and download NVIC 4-98.

Discussion of Comments and Changes

    The Coast Guard received a total of 8 documents containing 14 
comments to the public docket. No written comment requested a public 
hearing and none was held.
    All changes to each section of the rule are discussed within the 
following paragraphs:
    1. Three comments received supported the interim rule as written 
and its intent to monitor compliance with the certification of vessels' 
safety management systems. A fourth comment went further to discuss 
that the Coast Guard's use of the notice of arrival requirements to 
stop a vessel from entering or operating in U.S. waters could endanger 
a vessel if it is unsafe and could hamper efforts to ensure 
international compliance with these new international regulations. That 
comment also stated that a certificate did not ensure that a vessel was 
safe or had safe operating practices. The Coast Guard agrees that a 
certificate is not absolute proof of safety, but vessels are required 
under 46 U.S.C.

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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.

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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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