[Federal Register Volume 70, Number 241 (Friday, December 16, 2005)]
[Rules and Regulations]
[Pages 74663-74669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24126]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 104, 105 and 160

[USCG-2004-19963]
RIN 1625-AA93


Notification of Arrival in U.S. Ports; Certain Dangerous Cargoes; 
Electronic Submission

AGENCY: Coast Guard, Department of Homeland Security.

ACTION: Interim rule; request for comments.

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SUMMARY: On August 18, 2004, the Coast Guard published a temporary rule 
entitled ``Notification of Arrival in U.S. Ports; Certain Dangerous 
Cargoes; Electronic Submission.'' 69 FR 51176. This temporary rule, 
which expires March 20, 2006, added ammonium

[[Page 74664]]

nitrate and ammonium nitrate based fertilizers, in bulk, and propylene 
oxide, alone or mixed with ethylene oxide, in bulk, to the list of 
Certain Dangerous Cargoes (CDCs) for which a notice of arrival (NOA) is 
required.
    The Coast Guard is now permanently changing the definition of 
``certain dangerous cargo'' to include (1) ammonium nitrate, in bulk; 
(2) ammonium nitrate based fertilizers, in bulk; and (3) propylene 
oxide, alone or mixed with ethylene oxide, in bulk. This rule also adds 
an option for vessels to submit notices of arrival electronically. 
These changes are necessary to promote maritime safety and security and 
to facilitate the uninterrupted flow of commerce by providing the Coast 
Guard with information on these cargoes.

DATES: This interim rule is effective January 17, 2006. Comments and 
related material must reach the Docket Management Facility on or before 
March 16, 2006. Comments sent to the Office of Management and Budget 
(OMB) on collection of information must reach OMB on or before March 
16, 2006.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number [USCG-2004-19963] to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Web site: http://dms.dot.gov.
    (2) Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street SW., Washington, DC 20590-0001.
    (3) Fax: 202-493-2251.
    (4) Delivery: Room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329. This is not a toll free call.
    (5) Federal eRulemaking Portal: http://www.regulations.gov.
    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 NW., Washington, DC 20503, ATTN: Desk Officer, 
U.S. Coast Guard.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call ENS Joseph Azzata, Office of Port Security Planning and Readiness 
(G-MPP), Coast Guard, telephone 202-267-0069. If you are interested in 
creating your own application or modifying your existing business 
systems to submit Extensible Markup Language (XML) formatted data to 
the National Vessel Movement Center (NVMC), please contact the NVMC by 
e-mail at [email protected] or by telephone at 1-800-708-9823 or 304-
264-2502 for more information. If you have questions related to 
security plans, call LCDR Rob McLellan, Office of Port and Vessel 
Security (G-MPS), telephone (202) 267-4129. This is not a toll free 
call. If you have questions on viewing or submitting material to the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-493-0402. This is not a toll free call.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation and Request for Comments
II. Acronyms
III. Background and Purpose
IV. Discussion of Comments to the Temporary Rule
    A. Adding Propylene Oxide
    B. CDC Residue
    C. Beyond the Scope of This Rulemaking
V. Discussion of Rule
    A. Temporary Rule Changes Adopted
    B. Additional Changes
VI. Regulatory Analysis
    A. Administrative Procedure Act
    B. Regulatory Evaluation
    C. Small Entities
    D. Assistance for Small Entities
    E. Collection of Information
    F. Executive Order 13132 (Federalism)
    G. Unfunded Mandates Reform Act
    H. Taking of Private Property
    I. Civil Justice Reform
    J. Protection of Children
    K. Indian Tribal Governments
    L. Energy Effects
    M. Technical Standards
    N. Environment
List of Subjects

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://dms.dot.gov and will include any personal 
information you have provided. We have an agreement with the Department 
of Transportation (DOT) to use the Docket Management Facility. Please 
see DOT's ``Privacy Act'' paragraph below.
    A. Submitting comments: If you submit a comment, please include 
your name and address, identify the docket number for this rulemaking 
[USCG-2004-19963], indicate the specific section of this document to 
which each comment applies, and give the reason for each comment. You 
may submit your comments and material by electronic means, mail, fax, 
or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this interim 
rule in view of them.
    B. Viewing comments and documents: To view comments, as well as 
documents mentioned in this preamble as being available in the docket, 
go to http://dms.dot.gov at any time and conduct a ``simple search'' 
using the last five digits of the docket number. You also may visit the 
Docket Management Facility in room PL-401 on the Plaza level of the 
Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.
    C. Public meeting: We do not now plan to hold a public meeting. 
However, you may submit a request for one to the Docket Management 
Facility at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that a public meeting would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.
    D. Privacy Act: Anyone can search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
Department of Transportation's Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477), or you may visit 
http://dms.dot.gov.

II. Acronyms

CDC Certain Dangerous Cargo
CFR Code of Federal Regulations
COI Collection of Information
CTAC Chemical Transportation Advisory Committee
DHS U.S. Department of Homeland Security
eNOAD Electronic Notice of Arrival and Departure
FR Federal Register
G-MPP USCG Office of Port Security Planning and Readiness
G-MPS USCG Office of Port and Vessel Security
IR Interim Rule
MTSA Maritime Transportation Security Act of 2002
NOA Notice of Arrival
NPRM Notice of Proposed Rulemaking
NVMC National Vessel Movement Center

[[Page 74665]]

OMB Office of Management and Budget
POX Propylene Oxide
PV Present Value
TSAC Towing Safety Advisory Committee
U.S.C. United States Code
USCG United States Coast Guard
XML Extensible Markup Language

III. Background and Purpose

    On August 18, 2004, the Coast Guard published a temporary rule 
entitled ``Notification of Arrival in U.S. Ports; Certain Dangerous 
Cargoes; Electronic Submission.'' 69 FR 51176. This temporary rule, 
which expires March 20, 2006, added ammonium nitrate and ammonium 
nitrate based fertilizers, in bulk, and propylene oxide, alone or mixed 
with ethylene oxide, in bulk, to the list of Certain Dangerous Cargoes 
(CDCs) for which a notice of arrival (NOA) is required under 33 CFR 
part 160.
    CDCs are specifically defined in 33 CFR 160.204, but may generally 
be described as substances or materials that pose an unreasonable risk 
to health, safety, and property if improperly handled. The notice of 
arrival is the process in which a vessel submits required information--
including data about the vessel, cargo, crew and others on board before 
the vessel arrives at a port or place in the United States. The 
required information contained in the notice of arrival allows the 
Coast Guard to properly screen the vessel for safety and security 
purposes.
    The temporary rule was issued in large part because of information 
the Coast Guard had received from other federal agencies in late 2003 
on the dangers of ammonium nitrate and ammonium nitrate based 
fertilizers, in bulk. While considering adding these cargoes to the CDC 
list, the Coast Guard requested comments from the Towing Safety 
Advisory Committee (TSAC) and the Chemical Transportation Advisory 
Committee (CTAC). Those committees were asked to advise the Coast Guard 
on the anticipated impact to their respective industries if solid 
ammonium nitrate and ammonium nitrate fertilizers, in bulk, were added 
to the CDC definition in 33 CFR part 160. The Coast Guard received 
recommendations from TSAC on September 10, 2003, and from CTAC on 
October 23, 2003. Neither committee specifically recommended adding 
forms of ammonium nitrate to the CDC list. Both committees 
acknowledged, however, the security hazards associated with forms of 
ammonium nitrate and agreed that additional security measures were 
warranted.
    The temporary rule also added propylene oxide, alone or mixed with 
ethylene oxide, in bulk, to the list of CDCs for the following 
reasons--
     It is chemically similar to ethylene oxide, which is 
already on the list of CDCs;
     It is extremely reactive to acids, bases, oxidizers, 
peroxides, and many other chemicals;
     When exposed to heat, it polymerizes, or reacts with 
itself, and gives off large amounts of heat;
     It has a wide flammability range, meaning that it can mix 
with air to form an explosive mixture at low (2.3 percent) or high (37 
percent) concentrations; and,
     It has a high vapor pressure, meaning that it generates 
large amounts of flammable and reactive vapor at room temperature.
    The temporary rule also provided one new option, consisting of two 
separate formats, for electronically submitting an NOA to the Coast 
Guard's National Vessel Movement Center (NVMC). Finally, the temporary 
rule clarified that vessel security regulations in 33 CFR part 104 
apply to the owner or operator of any (1) barge carrying CDC in bulk or 
(2) barge subject to 46 CFR chapter I, subchapter I, that is engaged on 
an international voyage.

IV. Discussion of Comments to the Temporary Rule

    The Coast Guard received four letters commenting on the temporary 
rule. The letters were from a national trade association, an advisory 
committee, a barge transportation company, and a science and technology 
company. All of the comments addressed issues relating to CDC 
generally. There were no comments addressing electronic submission of 
NOAs.
    A. Adding Propylene Oxide: One commenter agreed with the addition 
of propylene oxide to the list of CDCs, stating ``The addition of 
Propylene Oxide (POX) as a Certain Dangerous Cargo is an appropriate 
action, as it is a high risk cargo by any measurement.''
    B. CDC Residue: One comment discussed CDC liquid residue 
(``slops'') remaining on a vessel after the CDC has been discharged 
from the vessel. The comment stated that vessels carrying only small 
quantities of CDC liquid residue are still subject to NOA reporting 
requirements until that material is discharged from the vessel. As an 
example, it stated that the Coast Guard classifies a vessel that has 
carried a liquid CDC as a CDC vessel until it is totally free from 
dangerous concentrations of flammable or toxic gases (``gas free''). It 
also stated, ``as a result, both the Coast Guard and industry are 
forced to utilize time, money, and resources to implement the 
additional requirements even when no particular hazard exists.''
    The Coast Guard disagrees with the commenter's assertion that 
residue from liquid CDCs present no particular hazard. The residue of 
bulk liquid and bulk liquefied gas CDCs continues to retain its 
physical properties of flammability and toxicity despite the reduction 
in quantity of the CDC, and these physical properties are what make 
certain cargoes CDCs. Therefore, this rule does not modify current 
requirements for bulk liquid and bulk liquefied gas CDCs, regardless of 
amount.
    However, the Coast Guard agrees that some non-liquid residues 
should not be included in the definition of CDC. Coast Guard discussed 
with the Office of Naval Intelligence and the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives, the safety and security concerns 
related to the residue of ammonium nitrate and the residue of ammonium 
nitrate based fertilizers, in bulk. We conclude that it is not 
necessary to require an NOA when a vessel is carrying only residue of 
ammonium nitrate or residue of ammonium nitrate based fertilizers, in 
bulk, under certain circumstances. For example, a barge carrying dry 
bulk ammonium nitrate delivers to, and discharges its cargo at, a 
facility. Small quantities of residue may remain scattered around the 
edges and the rest of the floor area of the barge. In this instance, 
the Coast Guard agrees that it would be unnecessary for a company to 
clean all residue from the barge completely so that the Part 160 
requirements no longer apply to that barge.
    C. Beyond the Scope of this Rulemaking: All four commenters raised 
a number of issues that were outside the narrow scope of the temporary 
rule. Those issues generally relate to implementation of the vessel and 
facility security regulations in 33 CFR parts 104 and 105. The issues 
included concerns about segregation of barges carrying ammonium nitrate 
or ammonium nitrate fertilizers from other dry cargo barges at fleeting 
facilities--a commercial area for the making up, breaking down, or 
staging of barge tows; requests to make the Inland River Vessel 
Movement Center and NVMC reporting requirements the same; suggestions 
to allow vessel operators to ``turn on'' and ``turn off'' the vessel 
security plans of uninspected barges depending on whether they are 
carrying CDCs; and

[[Page 74666]]

storage of security plan documentation onboard dry cargo barges.
    Because the only purpose of this rulemaking is to make permanent 
the changes from the temporary rule with minor modifications, the 
aforementioned issues are not within the narrow scope of this 
rulemaking and we do not address them in this rule. However, we have 
forwarded these comments to the appropriate program staff for further 
consideration and appropriate action.
    In addition, these comments asked questions about when and how 
owners and operators with approved security plans or Alternative 
Security Plans should proceed with security plan changes relating to 
the new CDCs as well as questions about completing the required 
Declarations of Security. Such questions should be addressed to LCDR 
Rob McLellan, G-MPS, Coast Guard, 202-267-4129.

V. Discussion of Rule

A. Temporary Rule Changes Adopted

    This interim rule makes permanent the changes to 33 CFR parts 104 
and 160 introduced by the August 18, 2004 temporary rule. These 
permanent changes are necessary to promote maritime safety and security 
and to facilitate the uninterrupted flow of commerce. This rule 
permanently adds to the definition of CDC, in 33 CFR 160.204, ammonium 
nitrate and ammonium nitrate based fertilizers, in bulk, and propylene 
oxide, alone or mixed with ethylene oxide, in bulk.
    This interim rule also makes permanent one new option, consisting 
of two separate formats, for electronically submitting a NOA to the 
Coast Guard's National Vessel Movement Center (NVMC). Finally, this 
rule adopts the change the temporary rule made to the applicability of 
vessel security regulations in 33 CFR part 104, which limited 
applicability to barges that are carrying CDC in bulk to those engaged 
on international voyages.

B. Additional Changes

    This interim rule also contains editorial revisions and 
clarifications to the NOA regulation that are not in the temporary 
rule. One of the changes is a revision to the definition of certain 
dangerous cargo which eliminates the reporting requirement for vessels 
that retain only a non-liquid residue of ammonium nitrate or ammonium 
nitrate based fertilizer, in bulk. The second change is that this rule 
adds an option for vessels to submit notices of arrival electronically. 
The third change is only an editorial clarification that has no 
substantive effect, clarifying that U.S. recreational vessels are not 
subject to part 160 requirements.
    This interim rule defines ammonium nitrate and ammonium nitrate 
based fertilizers, in bulk, to exclude non-liquid residue of ammonium 
nitrate and residue of ammonium nitrate based fertilizer after 
discharging saleable cargo. The definition for ``Certain dangerous 
cargo residue (CDC residue)'' in Sec.  160.204 now excludes from the 
NOA reporting requirements ammonium nitrate, in bulk, and ammonium 
nitrate based fertilizer, in bulk, remaining after all saleable cargo 
is discharged, not exceeding 1,000 pounds in total and not individually 
accumulated in quantities exceeding two cubic feet.
    This interim rule updates the electronic submission options by 
adding the new eNOAD Microsoft InfoPath template as another electronic 
submission format. This rule also permanently adds an optional method, 
the Electronic Notice of Arrival and Departure (eNOAD) system, for 
electronically submitting a NOA to the Coast Guard's NVMC. On January 
31, 2005, the Coast Guard replaced its electronic NOA (e-NOA) system 
with the newer eNOAD system. The new eNOAD has Microsoft InfoPath as a 
third optional electronic format for submittal. The Coast Guard has 
worked with the Bureau of Customs and Border Protection (CBP) in 
developing the eNOAD so that it may be used to meet both the Coast 
Guard's notice of arrival requirements and CBP's Sea Advance Passenger 
Information System (APIS) requirements. This will eliminate duplicative 
reporting. On April 7, 2005, CBP published a final rule concerning the 
use of eNOAD. 70 FR 17819.
    The eNOAD system, available on the NVMC Web site at http://www.nvmc.uscg.gov, consists of the following three submission formats:
    1. An online web format that can be used to submit NOA information 
directly to the NVMC;
    2. Raw Extensible Markup Language (XML) formatted documents that 
conform to the eNOAD schema, provided for those interested in creating 
their own application. This format would allow offline data input and 
would allow users to draw information from their existing systems to 
submit, via web service, XML formatted data to comply with NOA 
requirements; and
    3. A new Microsoft InfoPath template, designed for those wanting to 
input NOA data offline (when not connected to the Internet) for 
submission later via their Internet connection or as an e-mail 
attachment to the NVMC.
    For more information on any of these formats, please contact the 
NVMC at [email protected] or by telephone at 1-800-708-9823 or 304-
264-2502, or visit the NVMC Web site listed above and click on ``FAQ'' 
or ``Downloads.''
    The rule clarifies that the notice of arrival provisions in part 
160 do not apply to U.S. recreational vessels. Based on queries from 
industry and local USCG assets, we have revised the language to clearly 
state that part 160 does not apply to U.S. recreational vessels under 
46 U.S.C 4301. However, this part does apply to foreign recreational 
vessels. This change does not substantively alter the scope of the 
applicability in part 160.
    Finally, this interim rule also removes the temporary provisions 
that are in parts 104 and 105 that are no longer needed. The paragraphs 
being removed are Sec.  104.115(d), Sec.  104.410(g), Sec.  105.115(c), 
and Sec.  105.410(g).

VI. Regulatory Analysis

A. Administrative Procedure Act

    Implementation of this rule as an interim rule is based upon the 
``good cause'' exception found under the Administrative Procedure Act 
(APA) at 5 U.S.C. 553(b)(B). Delaying implementation of this rule to 
await public notice and comment is unnecessary and contrary to the 
public interest.
    This interim rule adopts changes made by the temporary rule. There 
was a 90-day post-promulgation comment period for that temporary rule 
and the Coast Guard received only four comments. The Coast Guard 
considered those comments when drafting this interim rule and addressed 
them above.
    In addition to adopting changes introduced by the temporary rule 
that were subject to notice and comment, this interim rule makes only 
three changes: one change relieves a burden, another clarifies that the 
rule does not apply to certain vessels, and the third offers an 
additional option for submitting a notice of arrival. These changes 
either have no effect on the public, or ease a public burden by 
relaxing the regulatory requirement or providing more options in the 
reporting requirement. For these reasons, the Coast Guard finds good 
cause to publish this interim rule without first publishing an NPRM.
    Although we have good cause to publish this rule without prior 
notice and comment, we value public comments. As a result, we are 
soliciting public comments on this interim rule and may revise the 
final rule in response to those comments.

[[Page 74667]]

B. Regulatory Evaluation

    Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 
51735, October 4, 1993, requires a determination whether a regulatory 
action is ``significant'' and therefore subject to review by the Office 
of Management and Budget (OMB) and subject to the requirements of the 
Executive Order. This rule has been identified as significant under 
Executive Order 12866 and has been reviewed by OMB. A Regulatory 
Assessment is available in the docket as indicated under the ``Public 
Participation and Request for Comments'' section of this preamble. A 
summary of the analysis follows.
    As in the temporary rule, the two cost elements in the interim rule 
are the NOA requirements and the vessel and facility security 
requirements associated with the Maritime Transportation Security Act 
of 2002 (``MTSA'', Public Law 107-295, 116 Stat. 2064). Vessels that 
transport CDC materials already are required to submit NOAs to the 
Coast Guard. 33 CFR 160.202 and 160.212. Vessels and facilities that 
carry and handle CDC materials are required to implement security 
measures to comply with MTSA regulations (Vessel Security Plans, 33 CFR 
part 104; Facility Security Plans, 33 CFR part 105).
    For our analysis of the costs of this interim rule, we have 
retained the estimate from the Regulatory Assessment conducted for the 
August 2004 temporary rule of about 9,200 barges that can potentially 
transport ammonium nitrate and propylene oxide. In addition, we 
retained from the same Regulatory Assessment an estimate of 50 as the 
average number of fleeting facilities that can potentially receive 
these two cargoes and the estimate of approximately 11,400 port calls 
made by about 2,220 vessels that can potentially carry CDC materials.
    The initial cost of the interim rule for the NOA and the security 
requirements is approximately $6.8 million (non-discounted), which 
covers the preparation of NOAs, the security requirements for vessels 
and facilities, and the installation, operation and maintenance of 
equipment that may be required to upgrade facility security. The annual 
cost of the interim rule for the NOA and the security requirements is 
approximately $4.9 million (non-discounted).
    We estimate the discounted total cost of the interim rule to vessel 
owners and facilities to range from $38.9 million to $45.1 million 
(2005-2014, seven percent and three percent discount rates, 
respectively). We estimate that fleeting facilities will incur 
approximately 88 percent of the discounted total cost ($34.3 to $39.8 
million). Table 1 presents the discounted total cost of the interim 
rule by element of compliance.

   Table 1.--Summary of Discounted Costs of Interim Rule for NOA and Facility and Vessel Security Requirements
                               (2005-2014, Three and Seven Percent Discount Rates)
                                         [Cost by Element* ($ Millions)]
----------------------------------------------------------------------------------------------------------------
                                                 Vessels not
                                                  previously   Covered by     Vessel      Facility     Total PV
                    Increase                        in NOA        NOA        security     security    cost of IR
                                                  submittals
----------------------------------------------------------------------------------------------------------------
Seven Percent Discount Rate....................       $0.062        $0.35         $4.1        $34.3        $38.9
Three Percent Discount Rate....................        0.072         0.41          4.8         39.8        45.1
----------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.

    As shown in Table 1, using the seven percent discount rate, we 
estimate the cost associated with the increase in NOA submittals for 
vessels that only carry ammonium nitrate or propylene oxide to be $0.35 
million of the total discounted cost of this interim rule. The cost 
associated with the vessel and facility security requirements is $38.4 
million at a seven percent discount rate ($4.1 for vessel security + 
$34.3 for facility security). Using three percent as the discount rate, 
we estimated the cost associated with an increase in NOA submittals for 
vessels that only carry ammonium nitrate or propylene oxide to be $0.41 
million, and the cost associated with the vessel and facility security 
requirements is $44.6 million ($4.8 for vessel security + $39.8 for 
facility security).
    The qualitative benefits in this interim rule are security-related. 
By adding ammonium nitrate and propylene oxide to the list of CDCs, 
society will benefit, as the whereabouts of these two dangerous cargoes 
are tracked and become known. Furthermore, the revision of the CDC 
definition to include ammonium nitrate and propylene oxide, will 
provide relevant information about an applicable vessel's cargo and the 
threat that cargo may pose.
    This interim rule will provide security standards for fleeting 
facilities that handle these two dangerous cargoes. These security 
standards will increase awareness, communication, and surveillance to 
reduce the likelihood of theft and unlawful access to fleeting 
facilities that handle these volatile and dangerous cargoes.
    Lastly, this interim rule will allow the Coast Guard to provide 
greater flexibility for NOA submissions by allowing vessel owners and 
operators three additional electronic means of NOA submittal.

C. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
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. 
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, we have reviewed it for 
potential economic impacts on small entities.
    We expect that this interim rule may have an economic impact on 
some small entities, as defined by the Small Business Administration. 
Small entities affected by this rule fall into two groups: (1) Those 
small entities that currently carry or handle CDCs in addition to 
ammonium nitrate and ammonium nitrate based fertilizers, in bulk, and 
propylene oxide, alone or mixed with ethylene oxide, in bulk; and (2) 
those small entities that currently carry or handle only ammonium 
nitrate and ammonium nitrate based fertilizers in bulk, and propylene 
oxide, alone or mixed with ethylene oxide, in bulk.

[[Page 74668]]

    Small entities in the first category currently submit NOAs and 
comply with the security measures and planning requirements. These 
entities will have to submit a greater number of NOAs for the newly 
covered cargoes. They may have to revise existing security plans and 
change security measures to cover these cargoes.
    Small entities in the second category were affected for the first 
time by the temporary rule and will continue to comply with NOA 
requirements in 33 CFR part 160 for shipments of these cargoes and with 
the security measures and planning requirements in 33 CFR parts 104 and 
105.
    The Coast Guard is particularly interested in the impact of this 
rule on small entities. If you are a small entity, we specifically 
request comments regarding the economic impact of this rule on you.

D. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If you think 
this interim rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult ENS Joseph Azzata, 
Office of Port Security Planning and Readiness (G-MPP), Coast Guard, 
telephone 202-267-0069. The Coast Guard will not retaliate against 
small entities that question or complain about this rule or any policy 
or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

E. Collection of Information

    This interim rule does not require a new collection of information 
(COI) or change to the two existing OMB-approved collections, 1625-0100 
and 1625-0077. The current approval for 1625-0100 expires on March 31, 
2008. The approval for 1625-0077 expires July 31, 2008.

F. Executive Order 13132 (Federalism)

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, the Coast Guard certifies that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

G. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-
1538) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. 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. UMRA does not require an assessment in the 
case of an interim rule issued without prior notice and comment. 
Nevertheless, the Coast Guard does not expect this interim rule to 
result in such an expenditure. We discuss this interim rule's effects 
elsewhere in this preamble.

H. Taking of Private Property

    This interim 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.

I. Civil Justice Reform

    This interim 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.

J. Protection of Children

    We have analyzed this interim rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This interim rule is not an economically significant rule and 
does not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

K. Indian Tribal Governments

    This interim 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.

L. Energy Effects

    We have analyzed this interim 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. Although it is a ``significant 
regulatory action'' under Executive Order 12866, it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

M. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This interim rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

N. Environment

    We have analyzed this interim rule under Commandant Instruction 
M16475.lD, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, we believe that this rule should be 
categorically excluded, under figure 2-1, paragraphs (34)(a) and (d), 
of the Instruction from further environmental documentation. An 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' is available in

[[Page 74669]]

the docket where indicated under ADDRESSES.

List of Subjects

33 CFR Part 104

    Maritime security, Reporting and recordkeeping requirements, 
Security measures, Vessels.

33 CFR Part 105

    Maritime security, Reporting and recordkeeping requirements, 
Security measures.

33 CFR Part 160

    Administrative practice and procedure; Harbors; Hazardous materials 
transportation; Marine safety; Navigation (water); Reporting and 
recordkeeping requirements; Vessels; Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR parts 104, 105, and 160 as follows:

PART 104--MARITIME SECURITY: VESSELS

0
1. The authority citation for part 104 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191; 33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department 
of Homeland Security Delegation No. 0170.1.

0
2. In Sec.  104.105, remove temporary paragraph (a)(12); reinstate 
temporarily suspended paragraph (a)(9); and revise paragraph (a)(9) to 
read as follows:


Sec.  104.105  Applicability.

    (a) * * *
    (9) Barge carrying certain dangerous cargo in bulk or barge that is 
subject to 46 CFR Chapter I, subchapter I, that is engaged on an 
international voyage.
* * * * *


Sec.  104.115  [Amended]

0
3. In Sec.  104.115, remove temporary paragraph (d).


Sec.  104.410  [Amended]

0
4. In Sec.  104.410, remove temporary paragraph (g).

PART 105--MARITIME SECURITY: FACILITIES

0
5. The authority citation for part 105 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 70103; 50 U.S.C. 191; 
33 CFR 1.05-1, 6.04-11, 6.14, 6.16, and 6.19; Department of Homeland 
Security Delegation No. 0170.1.


Sec.  105.115  [Amended]

0
6. In Sec.  105.115, remove temporary paragraph (c).


Sec.  105.410  [Amended]

0
7. In Sec.  105.410, remove temporary paragraph (g).

PART 160--PORTS AND WATERWAYS SAFETY-GENERAL

0
8. The authority citation for part 160 is revised to read as follows:

    Authority: 33 U.S.C. 1223, 1231; 46 U.S.C. Chapter 701; 
Department of Homeland Security Delegation No. 0170.1. Subpart C is 
also issued under the authority of 33 U.S.C. 1225 and 46 U.S.C. 
3715.

0
9. In Sec.  160.202, revise paragraph (b) to read as follows:


Sec.  160.202  Applicability.

* * * * *
    (b) This subpart does not apply to U.S. recreational vessels under 
46 U.S.C. 4301 et seq., but does apply to foreign recreational vessels.
* * * * *

0
10. In Sec.  160.204, in the definition for ``Certain dangerous cargo 
(CDC)'', remove temporary paragraphs (9) and (10); in the definition 
for ``Certain dangerous cargo (CDC)'', add new paragraphs (8)(ix) and 
(9); and add a new definition for ``Certain dangerous cargo residue 
(CDC residue)'' in alphabetical order to read as follows:


Sec.  160.204  Definitions.

* * * * *

Certain dangerous cargo (CDC)

* * * * *
    (8) The following bulk liquids:
* * * * *
    (ix) Propylene oxide, alone or mixed with ethylene oxide.
    (9) The following bulk solids:
    (i) Ammonium nitrate listed as a Division 5.1 (oxidizing) material 
in 49 CFR 172.101 that is not certain dangerous cargo residue (CDC 
residue).
    (ii) Ammonium nitrate based fertilizer listed as a Division 5.1 
(oxidizing) material in 49 CFR 172.101 that is not CDC residue.
    Certain dangerous cargo residue (CDC residue) means ammonium 
nitrate in bulk or ammonium nitrate based fertilizer in bulk remaining 
after all saleable cargo is discharged, not exceeding 1,000 pounds in 
total and not individually accumulated in quantities exceeding two 
cubic feet.
* * * * *

0
11. In Sec.  160.210, remove temporary paragraph (e), reinstate 
temporarily suspended paragraph (a) and revise paragraph (a) to read as 
follows:


Sec.  160.210  Methods for submitting an NOA.

    (a) Submission to the National Vessel Movement Center (NVMC). 
Except as provided in paragraphs (b) and (c) of this section, vessels 
must submit NOA information required by Sec.  160.206 (entries 1 
through 9 in Table 160.206) to the NVMC, United States Coast Guard, 408 
Coast Guard Drive, Kearneysville, WV 25430, by:
    (1) Electronic submission via the electronic Notice of Arrival and 
Departure (eNOAD) and consisting of the following three formats:
    (i) A Web site that can be used to submit NOA information directly 
to the NVMC, accessible from the NVMC web site at http://www.nvmc.uscg.gov;
    (ii) Electronic submission of Extensible Markup Language (XML) 
formatted documents via web service;
    (iii) Electronic submission via Microsoft InfoPath; contact the 
NVMC at [email protected] or by telephone at 1-800-708-9823 or 304-
264-2502 for more information;
    (2) E-mail at [email protected]. Workbook available at http://www.nvmc.uscg.gov;
    (3) Fax at 1-800-547-8724 or 304-264-2684. Workbook available at 
http://www.nvmc.uscg.gov; or,
    (4) Telephone at 1-800-708-9823 or 304-264-2502.
* * * * *

    Dated: December 8, 2005.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 05-24126 Filed 12-15-05; 8:45 am]
BILLING CODE 4910-15-P