[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Rules and Regulations]
[Pages 58066-58070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28964]


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

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 169

[USCG-1999-5525]
RIN 2115-AF82


Mandatory Ship Reporting Systems

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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

SUMMARY: The Coast Guard adopts, as final, with changes, its interim 
rule published on June 1, 1999. The interim rule implemented two 
mandatory ship reporting systems in an effort to reduce the threat of 
ship collisions to endangered northern right whales (also known as 
North Atlantic right whales). The final rule clarifies reporting 
requirements.

DATES: This final rule is effective December 20, 2001.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-1999-5525 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. You may also find this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions regarding this rule, 
contact Lieutenant Alan Blume, Office of Vessel Traffic Management (G-
MWV), Coast Guard, telephone 202-267-0550623. For questions on viewing 
or submitting material to the docket, contact Dorothy Beard, Chief, 
Dockets, Department of Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On June 1, 1999, the Coast Guard published an interim rule entitled 
Mandatory Ship Reporting Systems in the Federal Register. In that 
publication we solicited comments (64 FR 29229). On June 9, 1999, we 
corrected the end date of the comment period to read August 2, 1999. 
(64 FR 31037). We received four letters commenting on the interim rule. 
No public hearing was requested, and none was held.

Background and Purpose

    In response to the endangered status of northern right whales (also 
known as

[[Page 58067]]

North Atlantic right whales), the United States and the International 
Maritime Organization (IMO) have taken steps to identify and implement 
measures to reduce the likelihood of collisions between ships and 
whales. These steps have addressed the problem on three fronts: mariner 
awareness, identification of whale movements, and efforts to promote 
recovery of the whale species.
    In spite of these efforts, ship collisions with endangered right 
whales continue to occur. Mandatory ship reporting systems help protect 
these endangered whales by providing direct communication of current 
sighting information to ships and their operators in high risk areas.
    Because right whales frequent two distinct areas off the Atlantic 
coast of the United States, we established two reporting systems. The 
northeastern reporting system is located mainly off the coast of 
Massachusetts and comprises the right whale's main feeding grounds. The 
southeastern reporting system is located off the coasts of Florida and 
Georgia, and encompasses the only known calving grounds for the right 
whale.
    Right whales aggregate to feed and calve in five seasonal habitats 
along the eastern seaboard from Florida to Nova Scotia: (a) Off the 
southeastern United States; (b) in the Great South Channel, 
Massachusetts; (c) in Massachusetts and Cape Cod Bays, Massachusetts; 
(d) in the lower Bay of Fundy, Canada; and (e) over the southern Nova 
Scotian shelf, Canada (notably those areas referred to as Browns Bank 
and Roseway Basin). Portions of these areas have been designated 
``critical habitats'' for northern right whales or as national marine 
sanctuaries under United States domestic law and as conservation areas 
under Canadian law. Northern right whale sightings also occur outside 
these areas as the whales migrate from one area to the other area. 
However, there is not enough information about the migratory corridor 
to establish additional reporting systems for these areas.
    The interim rule created a new part 169 in Title 33 of the Code of 
Federal Regulations (CFR) entitled ``Ship Reporting Systems.'' Subpart 
A established general requirements for all ship reporting systems. 
Subpart B established specific requirements for two mandatory ship 
reporting systems. The statutory authority for this rule is 33 U.S.C. 
1230(d), which is an amendment to Section 11 of the Ports and Waterways 
Safety Act (PWSA)(33 U.S.C. 1230(d)). Violators are subject to the 
penalties authorized under the PWSA.
    These mandatory ship reporting systems were adopted by the IMO, and 
the Maritime Safety Committee (MSC) at its 70th session December 7, 
1998, (Resolution MSC.85(70)), it was agreed that these systems would 
come into force no sooner than six months after adoption. The effective 
date agreed to by the IMO was July 1, 1999. It was expected that the 
United States' actions to put a reporting program in place would be 
completed by that date.

Discussion of Comments and Changes

    The Coast Guard received four letters in response to the rule. One 
comment did not call for any change in the interim rule. It stated that 
the mandatory ship reporting systems should help decrease the 
probability of vessel-related right whale deaths and commended the 
Coast Guard for its efforts to develop and support these systems. The 
other comments are summarized below under two headings:

Comments Resulting in a Change to the Rule

    One comment stated that the interim rule is not clear on whether 
this rule is based on a vessel's U.S. regulatory tonnage or 
international tonnage. The Coast Guard agrees and has added a 
definition of gross tons to Sec. 169.5 to make it clear that the 
regulations are based on the tonnage assigned by the flag state 
administrator.
    Two comments indicated that the interim rule is not clear as to 
whether or not a barge would be required to report. The comments 
contend that a barge exceeding 300 gross tons may be towed by a tug of 
less than 300 gross tons. Only self-propelled ships greater than 300 
gross tons need to report. In response to this comment, the Coast Guard 
has added a definition of ``self-propelled'' to Sec. 169.5 and inserted 
self-propelled in Sec. 169.125 for clarification.

Comments Addressed Without a Change to the Rule

    One comment raised an objection to the regulatory process used for 
this rulemaking. It stated that the Coast Guard circumvented the 
regulatory process by engaging in rulemaking with the International 
Maritime Organization without giving proper notice to the public, that 
the public was denied an opportunity to comment before the interim rule 
become effective because no notice of proposed rulemaking (NPRM) was 
published, and that prior notice did not appear in the Regulatory 
Agenda.
    As authorized by 5 U.S.C. 553(b)(B) and as discussed in the interim 
rule, the Coast Guard found good cause for not publishing an NPRM. The 
delay associated with an NPRM made it impracticable and contrary to the 
public interest in protecting these whales, so the Coast Guard 
proceeded directly to an interim rule with request for comments. 
Furthermore, the Coast Guard conducted a public Shipping Coordinating 
Committee meeting before and after the sessions of the IMO. The 
Department of State published notices of these public meetings in the 
Federal Register. (62 FR 62396, November 21, 1997; 63 FR 33122, June 
17, 1998). Because internal clearance procedures were not completed in 
time to include this rulemaking in the 1999 spring issue of the 
Regulatory Agenda, the first notice in the Agenda appeared after the 
interim rule had been published (64 FR 64739, November 22, 1999).
    Two comments stated that the interim rule is not clear as to 
whether or not a report is required by a ship leaving a port within one 
of the areas. One comment was concerned about the need for a report if 
a vessel moved within a reporting area. Section 169.130 clearly states 
a vessel is required to report ``upon entering the area'' covered by a 
ship reporting system. A vessel leaving a port within a reporting area 
is not ``entering the area'' and no report is required.
    One comment referred to the mandatory use of INMARSAT-C and the 
charges associated with use of that system. This rule does not require 
a ship to install or use INMARSAT C. While the Coast Guard prefers that 
vessels use INMARSAT C, the rule provides several options for 
reporting. Operators may choose the appropriate option for their ship. 
For commercial ships, the system options are already available, and in 
most cases required so the vessel can meet its obligations under other 
regulations. The Coast Guard will assume the costs associated with the 
INMARSAT transmissions.
    One comment recommended the Coast Guard access data already 
available in the Automated Mutual Assistance Vessel Rescue (AMVER) 
database rather than require reporting. The AMVER database contains 
proprietary information, which is only accessible for search and rescue 
purposes. The Coast Guard cannot legally access that database to 
replace this report. In addition, such use fails to meet the intent of 
this rulemaking. First, the Coast Guard needs notification at the time 
a vessel enters the area. Second, the Coast Guard wants to use that 
notice to exchange information. Projected arrival times or intended 
routes cannot take the place of real-time notifications.

[[Page 58068]]

    One comment stated that the ship's officers were very aware of the 
possibility of ship collisions with northern right whales and are 
already vigilant to avoid striking whales and that further awareness 
could be better accomplished by identifying the two special areas on 
the applicable nautical charts. The Coast Guard agrees with the spirit 
of this comment. While many bridge-watch personnel are alert to avoid 
striking whales, others need to be made aware of this issue. This is 
the purpose of the information we provide in response to the required 
reports. Since the publication of the interim rule, National Oceanic 
and Atmospheric Administration (NOAA) nautical charts have been updated 
to reflect these ship reporting system areas through either notices to 
mariners corrections or the issuance of new chart editions.
    One comment indicated that since this rule is written to meet the 
requirements in an IMO resolution, it should only apply to vessels 
certified under the International Convention for Safety of Life at Sea 
(SOLAS). The Coast Guard disagrees. The United States made the initial 
proposal applying the reporting requirement to vessels of 300 gross 
tons or greater, with no distinction made with regard to SOLAS or non-
SOLAS vessels. IMO adopted the resolution, which was necessary to have 
the areas we established recognized by the international community. The 
IMO resolution also recognized the reporting requirement adopted by 
this regulation. This action by the Maritime Safety Committee reflected 
the international community's concern for protecting right whales.
    One comment stated that there is no practicable benefit for non-
seagoing vessels to report. The Coast Guard disagrees because any self-
propelled ship of 300 gross tons or greater that is entering one of the 
reporting areas, benefits from the information exchanged. They are 
large enough to harm a whale and can use the information to plan their 
route. Also, both reporting areas include waters transited by non-
seagoing vessels.
    One comment recommends a ship be allowed to make a report before 
entering the area, rather than when entering. For example, a ship 
departing a loading dock in New York City should be able to make a 
report before getting underway. The Coast Guard disagrees with this 
comment because the intent of the rulemaking is to exchange information 
when the ship enters the reporting area. As noted, if the port is 
within a reporting area, no report is required under Sec. 169.130.
    One comment suggested that reports required by 33 CFR 160, subpart 
C, should be accepted as meeting the requirements of this rule. The 
Coast Guard disagrees with this comment. The report mentioned is an 
advance notice that is required for certain cargoes bound for a U.S. 
port. Not all ships make that report and it will not meet the intent of 
exchanging information when the ship enters the reporting area.
    One comment expressed concern regarding the equipment and logistics 
of using either voice radio communication or telephone communication. 
The comment recommends allowing the use of a fax (facsimile machine) 
for this report. The Coast Guard disagrees because ships' operators use 
all of the methods allowed by this rulemaking on a routine basis, 
including email messages by INMARSAT.

Other Changes

    We made a few technical and clarification changes to the rule that 
were not based on comments. The authority citation was amended to 
include CFR authority and to limit statutory authority to the U.S.C. 
citation. The note for Sec. 169.110 was amended to incorporate the 
section number and to reflect the removal of 50 CFR 223.32. The wording 
in Sec. 169.120 was changed to clarify the annual, consecutive November 
through April dates of the reporting period. In Sec. 169.135, the order 
of the reference to the table in Sec. 169.140 was changed. Finally, a 
reference to the section number for the table in Sec. 169.140 was 
added, along with a reference to the email addresses and telex numbers, 
and the table was amended to include an entry for the INMARSAT number 
and to clarify the wording of the information required.

Regulatory Evaluation

    This 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. The 
Office of Management and Budget has not reviewed it 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).
    For the following reasons, 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:
    Benefits. Generally, mandatory ship reporting systems enhance 
mariners' awareness of the presence of northern right whales and 
provide them with pertinent information to avoid collisions. The 
increased awareness may reduce the risk of ship collisions with 
endangered northern right whales.
    Private industry costs. The reporting requirement uses the 
mariner's existing equipment and will not add to the expenses of the 
owner/operator. The Coast Guard has assumed the cost associated with 
INMARSAT C calls to the email or telex numbers provided. (Current email 
addresses and telex numbers are published annually in the U.S. Coast 
Pilot.) The average communications process (transmission/reception) is 
five minutes. Existing personnel will be utilized to make this 
communication. Consequently, the use of INMARSAT C to report will not 
mean any additional financial costs to the impacted companies. The cost 
of the issuing advisory information will be borne by the Coast Guard 
and the National Marine Fisheries Service (NMFS). Minimal ship 
maneuvers are expected in the avoidance of whales.
    Government costs. The Coast Guard and NMFS estimated the cost of 
this program to be approximately $208,000 for Fiscal Year 1999 and 
$176,000 annually for future years. The burden of this regulation will 
be split equally between the Coast Guard and NMFS. Therefore, it is 
estimated that the cost to the Coast Guard would be $104,000 for the 
first year and $88,000 annually thereafter. Coast Guard personnel are 
not utilized; a private contractor has been hired to operate and 
maintain facilities.
    The Coast Guard will bear the burden associated with relaying non-
INMARSAT-C reports through Coast Guard radio stations. Ships not 
equipped with INMARSAT-C are required to report in standard format to 
the shore-based authority, either through narrow band direct printing 
(SITOR) or HF, MF, or VHF-voice communication systems.
    This will add to the workload of staff currently assigned to the 
Coast Guard unit, but will not create an additional billet. Therefore, 
there is no additional expense.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard considered whether this rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises 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.

[[Page 58069]]

    This rulemaking will not impose a significant cost on any entity, 
large or small. Existing personnel will make the required 
communications in the course of their normal responsibilities. 
Consequently, companies will not incur additional financial costs.
    The nature of the reports that are made is not such that a 
significant burden will be imposed on anyone. The Coast Guard will 
incur the cost with INMARSAT-C transmissions under this program. 
Reports will be accepted in many different forms to allow for the 
flexibility that many small entities require. It is anticipated very 
few small entities operate ships of 300 gross tons or greater. The 
Coast Guard has attempted to make compliance with this requirement as 
simple as possible.
    Therefore, the Coast Guard still certifies under 5 U.S.C. 605(b) 
that this rule will not have a significant economic impact on a 
substantial number of small entities.

Collection of Information

    This rule provides for a collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). No comments 
regarding the collection of information were received during the 
interim rule comment period.
    The collection involves ships reporting by radio to a shore-based 
authority when entering the area covered by the reporting system. The 
ships will receive, in return, an advisory on protection of whales and 
sources of additional information.
    The northern right whale is an endangered species. Mortality rates 
attributed to ship strikes account for up to 50 percent of recorded 
fatalities. The purpose of establishing mandatory ship reporting 
systems is to reduce the likelihood of collisions between ships and 
northern right whales in the areas established with critical habitat 
designation.
    Reports will be used to record ship traffic in the reporting 
systems and provide information to minimize interaction with northern 
right whales.
    All ships of 300 gross tons or greater that transit the reporting 
systems are required to participate in the reporting systems, except 
government vessels exempted from reporting by regulation V/8-1(c) of 
the International Convention for the Safety of Life at Sea, 1974, as 
amended (SOLAS).
    We estimate that this information collection would affect 
approximately 367 respondents annually.
    The frequency of response is on occasion. Owners or operators are 
required to respond only when entering a mandatory reporting area.
    The cost burden of response is $8,448 per year.
    Number of transmissions: 4,400.
    Hour burden per transmission: .08 hours.
    Estimated salary rate for affected personnel $24 per hour.
    4,400 transmissions per year X .08 hours per transmission X
    $24 per hour = $8,448 per year.
    The reporting burden is 352 hours to industry.
    As required by 44 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 corresponding approval number from OMB is OMB Control 
Number 2115-0640. You 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 rule under Executive Order 13132 
and has determined that this rule does not have sufficient implications 
for federalism to warrant the preparation of a Federalism Assessment.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their regulatory 
actions not specifically required by law. In particular, the Act 
addresses actions that may result in the expenditure by a State, local, 
or tribal government, in the aggregate, or by the private sector of 
$100,000,000 or more in any one year. Though this rule will not result 
in such an expenditure, the Coast Guard does discuss the effects of 
this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    The Coast Guard has analyzed this rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    The Coast Guard has considered the environmental impact of this 
rule and concluded that under figure 2-1, paragraphs (34)(i) of 
Commandant Instruction M16475.lC, this rule establishes two mandatory 
ship reporting systems and is categorically excluded from further 
environmental documentation. A ``Categorical Exclusion Determination'' 
is available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 169

    Endangered and threatened species, Environmental protection, 
Mandatory ship reporting, Marine mammals, Marine safety, Navigation 
(water), Reporting and recordkeeping requirements, Telecommunications, 
Vessels.

    Accordingly, the interim rule amending 33 CFR chapter I by adding a 
new part 169 to subchapter P which was published at 64 FR 29234-35 on 
June 1, 1999, is adopted as a final rule with the following changes:

[[Page 58070]]

PART 169--SHIP REPORTING SYSTEMS

    1. The authority citation for part 169 is revised to read as 
follows:

    Authority: 33 U.S.C. 1230(d), 49 CFR 1.46.

    2. Revise Sec. 169.5 to read as follows:


Sec. 169.5  What terms are defined?

    Gross tons means vessel tonnage measured in accordance with the 
method utilized by the flag state administration of that vessel.
    Mandatory ship reporting system means a ship reporting system that 
requires the participation of specified vessels or classes of vessels, 
and that is established by a government or governments after adoption 
of a proposed system by the International Maritime Organization (IMO) 
as complying with all requirements of regulation V/8-1 of the 
International Convention for the Safety of Life at Sea, 1974, as 
amended (SOLAS), except paragraph (e) thereof.
    Self-propelled ships means ships propelled by mechanical means.
    Shore-based authority means the government appointed office or 
offices that will receive the reports made by ships entering each of 
the mandatory ship reporting systems. The office or offices will be 
responsible for the management and coordination of the system, 
interaction with participating ships, and the safe and effective 
operation of the system. Such an authority may or may not be an 
authority in charge of a vessel traffic service.

    3. In Sec. 169.100, revise the note at the end of the section to 
read as follows:


Sec. 169.100  What mandatory ship reporting systems are established by 
this subpart?

* * * * *

    Note to Sec. 169.100: 50 CFR 224.103(c) contains requirements 
and procedures concerning northern right whale approach limitations 
and avoidance procedures.


    4. Revise Sec. 169.120 to read as follows:


Sec. 169.120  When is the southeastern reporting system in effect?

    The mandatory ship reporting system in the southeastern United 
States operates during the period beginning on November 15 each year 
through April 16 of the following year.

    5. Revise Sec. 169.125 to read as follows:


Sec. 169.125  What classes of ships are required to make reports?

    Each self-propelled ship of 300 gross tons or greater must 
participate in the reporting systems, except government ships exempted 
from reporting by regulation V/8-1(c) of SOLAS. However, exempt ships 
are encouraged to participate in the reporting systems.

    6. Revise Sec. 169.135(a) to read as follows:


Sec. 169.135  How must the reports be made?

    (a) A ship equipped with INMARSAT C must report in IMO standard 
format as provided in Sec. 169.140 in table 169.140.
* * * * *

    7. Revise Sec. 169.140 to read as follows:


Sec. 169.140  What information must be included in the report?

    Each ship report made to the shore-based authority must follow the 
standard reporting and format requirements listed in this section in 
table 169.140. Current email addresses and telex numbers are published 
annually in the US Coast Pilot.

              Table 169.140--Requirements for Ship Reports
------------------------------------------------------------------------
           Telegraphy                 Function      Information required
------------------------------------------------------------------------
Name of system.................  System identifier  Ship reporting
                                                     system WHALESNORTH
                                                     or WHALESSOUTH.
M..............................  INMARSAT Number..  Vessel INMARSAT
                                                     number
A..............................  Ship.............  The name, call sign
                                                     or ship station
                                                     identity, IMO
                                                     number, and flag of
                                                     the vessel.
B..............................  Date and time of   A 6-digit group
                                  event.             giving day of month
                                                     (first two digits),
                                                     hours and minutes
                                                     (last four digits).
E..............................  True course......  A 3-digit group
                                                     indicating true
                                                     course.
F..............................  Speed in knots     A 3-digit group.
                                  and tenths of
                                  knots.
H..............................  Date, time and     Entry time expressed
                                  point of entry     as in (B) and entry
                                  into system.       position expressed
                                                     as-(1) a 4-digit
                                                     group giving
                                                     latitude in degrees
                                                     and minutes
                                                     suffixed with
                                                     N(north) or S
                                                     (south) and a 5-
                                                     digit group giving
                                                     longitude in
                                                     degrees and minutes
                                                     suffixed with E
                                                     (east) or W (west);
                                                     or (2) True bearing
                                                     (first 3 digits)
                                                     and distance (state
                                                     distance) in
                                                     nautical miles from
                                                     a clearly
                                                     identified landmark
                                                     (state landmark)
I..............................  Destination and    Name of port and
                                  expected time of   date time group
                                  arrival.           expressed as in (B)
L..............................  Route information  Intended track.
------------------------------------------------------------------------


    Dated: September 7, 2001.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.
[FR Doc. 01-28964 Filed 11-19-01; 8:45 am]
BILLING CODE 4910-75-P