[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Rules and Regulations]
[Pages 59617-59620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24221]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 104, 105, and 160

[Docket No. USCG-2004-19963]
RIN 1625-AA93


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is adopting, with changes, an interim rule 
published December 16, 2005, regarding certain dangerous cargo (CDC) 
and notice of arrival requirements. The interim rule defined certain 
dangerous cargo residue (CDC residue) as limited to certain dry cargo 
and made other changes to regulations in 33 CFR parts 104, 105, and 
160. After reviewing comments on the interim rule, the Coast Guard 
issued a notice of proposed rulemaking in 2009 that proposed to change 
the CDC residue definition to include certain bulk liquids and 
liquefied gases in residue quantities, revise the definition of CDC to 
reflect the proposed change in the CDC residue definition, and adopt 
other changes introduced by the 2005 interim rule. This final rule will 
relieve an unnecessary burden on industry by including more lower-risk 
cargoes in the CDC residue category and thereby reducing the number of 
notice of arrival submissions required based on the cargo a vessel is 
carrying.

DATES: This final rule is effective October 28, 2010.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are a part of docket USCG-2004-19963 and are available for inspection 
or copying at the Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-2004-19963 in the ``Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Lieutenant Sharmine Jones, Office of Vessel Activities, 
Coast Guard; telephone 202-372-1234, e-mail [email protected]. 
If you have questions on viewing the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

CDC Certain dangerous cargo
CDC residue Certain dangerous cargo residue
CFR Code of Federal Regulations
CTAC Chemical Transportation Advisory Committee
DHS Department of Homeland Security
FR Federal Register
NOA Notice of arrival
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
TSAC Towing Safety Advisory Committee
U.S.C. United States Code

II. Regulatory History

The Coast Guard published an interim rule on December 16, 2005, titled 
``Notification of Arrival in U.S. Ports; Certain Dangerous Cargoes; 
Electronic Submission'' (70 FR 74663). That interim rule adopted the 
definition of certain dangerous cargo (CDC), which a 2004 temporary 
final rule (69 FR 51176, August 18, 2004) introduced. By revising Sec.  
104.105 in Title 33 of the Code of Federal Regulations (33 CFR), the 
interim rule also made permanent the application of vessel security 
requirements in 33 CFR part 104 to barges carrying CDC. The interim 
rule, however, removed the remainder of the temporary changes made to 
33 CFR parts 104 and 105 because they involved past submission and 
compliance deadlines and were no longer necessary.
The interim rule also introduced changes that were not included in the 
2004 temporary final rule, including--
 Adding another optional method, via Microsoft InfoPath, for 
electronic submission of notices of arrival (NOAs).
 Clarifying that Coast Guard NOA regulations in 33 CFR part 
160, subpart C, do not apply to U.S. recreational vessels.
 Adding a definition of ``CDC residue'' that identified certain 
dry cargo in bulk that, at or below specified quantities, did not 
trigger NOA requirements. The 2005 definition of CDC residue only 
included residue quantities of bulk ammonium nitrate or ammonium 
nitrate fertilizer that remained onboard after the vessel discharges 
all saleable cargo; no other cargo residues fell within the interim 
rule definition of CDC residue.
    In response to the 2005 interim rule, the Coast Guard received a 
comment from the Chemical Transportation Advisory Committee (CTAC) 
suggesting that the Coast Guard revise the definition of CDC residue to 
include some bulk liquids and liquefied gases. The Coast Guard 
requested CTAC's Hazardous Cargoes Transportation Security Subcommittee 
to assist in our rulemaking. They reviewed the current requirement that 
a CDC vessel remain a CDC vessel until the removal of all bulk liquid 
and liquefied gas CDC cargoes, including residue quantities of such 
cargoes, from the vessel. The Committee completed its recommendation on 
August 24, 2006, and submitted it to the Coast Guard for review and 
consideration. (See the CTAC Recommendations Related to Residues of CDC 
Cargoes, August 24, 2006, which is available in the docket for this 
rulemaking.) The Coast Guard concurred with CTAC's recommendations to--
     Keep cargoes of Anhydrous Ammonia, Chlorine, Ethane, 
Ethylene Oxide, Methane (LNG), Methyl Bromide, Sulfur Dioxide, and 
Vinyl Chloride as CDC at all times, even when only residue quantities 
remain onboard.
     Allow other cargoes that would be considered CDC in larger 
quantities to be defined as CDC residue if the amount that remains 
onboard in a cargo system after discharge is not accessible through 
normal transfer procedures.
    The Coast Guard took steps to implement these recommendations. On 
December 23, 2009, we published a notice of proposed rulemaking (NPRM) 
titled ``Notification of Arrival in U.S. Ports; Certain Dangerous 
Cargoes'' (74 FR 68208). In it, the Coast Guard proposed to amend the 
definitions of CDC and CDC residue in accordance with CTAC's 
recommendation. With the exception of the revision of these two 
definitions, the NPRM proposed to adopt the current regulations 
introduced by the interim rule in 2005 as final.
    We received two comments on the proposed rule. No public meeting 
was requested and none was held.

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III. Basis and Purpose

    Under authority of the Ports and Waterways Safety Act (see, 
specifically, 33 U.S.C. 1223 and 1231) and the Maritime Transportation 
Security Act (46 U.S.C. Chapter 701), as delegated by Department of 
Homeland Security Delegation No. 0170.1, the Coast Guard is adopting, 
with changes, the interim rule published on December 16, 2005 (70 FR 
74663) regarding CDC and NOA requirements. This final rule reflects the 
adoptions and changes as proposed in the Coast Guard's 2009 NPRM (74 FR 
68208). This rule will also relieve an unnecessary burden on industry 
by including more lower-risk cargoes in the CDC residue category and 
reducing the number of NOA submissions required based on the cargo a 
vessel is carrying. Additionally, it will complete this rulemaking, 
which has already introduced existing requirements into 33 CFR parts 
104, 105, and 160.

IV. Background

    NOA regulations require the submission of information about certain 
vessels and their voyages, including cargoes, crews, and other persons 
onboard to the Coast Guard's National Vessel Movement Center before 
those vessels arrive at a port or place in the United States. The Coast 
Guard uses the information contained in the NOA to implement 
appropriate safety and security measures, including security screening 
and escorts into port.
    In 2003, the Coast Guard became concerned about the potential 
security hazards of bulk ammonium nitrate and propylene oxide cargoes 
transported on U.S. waters. After consultation with CTAC and the Towing 
Safety Advisory Committee (TSAC), (see, e.g., TSAC Report on Task 03-
03, Recommendation 124, which is available in the docket for this 
rulemaking), the Coast Guard determined that these substances should be 
considered CDC (69 FR 51176, 51177, August 18, 2004) and, as noted, 
published a temporary final rule in 2004 (69 FR 51176), followed by an 
interim rule in 2005 (70 FR 74663). The Coast Guard's definition of CDC 
appears in 33 CFR 160.204. CDC includes substances or materials that 
have been determined to pose an unreasonable risk to health, safety, 
and property if improperly handled. Existing regulations require most 
vessels carrying CDC to submit NOAs.

V. Discussion of Comments and Changes

    The Coast Guard received one letter containing two comments on the 
proposal to change the definition of CDC so that residue quantities of 
some chemicals are not classified as CDC. This commenter commended the 
Coast Guard for working with CTAC to develop ``this more sophisticated 
and nuanced approach to security requirements for CDCs in residue 
form.''
    First, the commenter concurred with the Coast Guard's proposal that 
eight CDCs--anhydrous ammonia, chlorine, ethane, ethylene oxide, 
methane (LNG), methyl bromide, sulfur dioxide, and vinyl chloride--
should maintain their CDC classification when in residue form. 
Regardless of how small the quantities of these eight substances that 
remain onboard in a cargo system after discharge are, they will still 
be defined as CDC. Second, as manifested in our revised definition of 
CDC residue, the commenter also believed that in the case of all other 
CDCs, industry practices are sufficiently effective in diluting CDC 
residues, that it is prudent for the Coast Guard to develop a different 
set of security requirements for vessels with these types of residues 
onboard.
    The Coast Guard agrees with the assessment to change the definition 
of CDC residue and to exclude certain CDCs from that definition. 
Because of this change, fewer vessels carrying only lower-risk cargoes 
will trigger NOA or other security requirements that apply to vessels 
carrying CDC.
    This commenter also noted that while standing by her 
recommendation, she does not want her ``endorsement of the revised 
definition of CDC residue [to] be seen as an endorsement of the current 
process for submitting NOAs generally.'' The commenter encourages the 
Coast Guard to use these two parallel rulemakings ``to seriously 
evaluate the impractical process requiring operators to submit NOAs to 
* * * the National Vessel Movement Center and the Inland River Vessel 
Movement Center[], depending on a vessel's position on the inland river 
system.''
    The NOA CDC NPRM focused on changing the definition of CDC residue. 
Revising where vessels should report based on requirements in both 33 
CFR parts 160 and 165 is beyond the scope of this rulemaking. The Coast 
Guard will address this comment about the National Vessel Movement 
Center and the Inland River Vessel Movement Center in its broader, 
``Vessel Requirements for Notices of Arrival and Departure, and 
Automatic Identification System'' (RIN 1625-AA99) rulemaking.
    The Coast Guard did not make any changes from the NOA CDC proposed 
rule based on these comments. This final rule remains the same as 
proposed in the NPRM.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. Accordingly, OMB has not reviewed it under that 
Order.
    In the NPRM, published on December 23, 2009 (74 FR 68208, 68212), 
we estimated that there are on average 2,800 vessels currently carrying 
CDCs that make approximately 25,000 port arrivals a year. With this 
rule, some of these vessels will no longer be required to submit NOAs 
when transporting residue quantities of certain CDCs. As detailed in 
the NPRM, we estimate a 5 percent annual reduction in the number of 
NOAs submitted as a result of this final rule, which is equivalent to a 
$22,000 decrease in cost burden for vessel operators that transport 
certain CDCs in residue status.
    We received no public comments or additional information that would 
alter our assessment of the impacts presented in the NPRM.

B. 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.
    In the NPRM, we certified that under 5 U.S.C. 605(b) the proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. We received no public comments or additional 
information that would alter our certification of the rule.
    This rule will not increase the NOA reporting costs to vessel 
operators shipping CDC. We estimate that this rule will reduce the 
burden to vessel operators shipping residue quantities of certain CDCs. 
Therefore, the Coast Guard certifies that under 5 U.S.C. 605(b) this 
final rule will not have a significant economic impact on a substantial 
number of small entities.

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C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. 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).

 D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In our NPRM, 
however, we noted it would modify an existing collection under OMB 
Control Number 1625-0100, Advance Notice of Vessel Arrival, by reducing 
the number of responses. We received no public comments or additional 
information that would alter our estimates in the NPRM of the burden 
imposed by this rule through the ANOA collection of information.
    As required by 44 U.S.C. 3507(d), we submitted a copy of the 
proposed rule to the Office of Management and Budget (OMB) for its 
review of the collection of information. We received no comments from 
either OMB or the public on the collection of information portion of 
our NPRM, and we have made no changes to the final rule from what we 
proposed in the NPRM.
    On January 29, 2010, OMB approved collection 1625-0100 until 
January 31, 2012, without change. You are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

F. 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 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 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

 G. Taking of Private Property

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

H. 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.

I. Protection of Children

    We have 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 create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

J. 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.

K. 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. 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.

L. Technical Standards

    The National Technology Transfer and Advancement Act (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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions which does not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(a) and (d) of the Instruction. An 
environmental analysis checklist and a categorical exclusion 
determination are available in 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 adopts the

[[Page 59620]]

amendments to 33 CFR parts 104, 105, and 160 introduced by the interim 
rule published at 70 FR 74669 on December 16, 2005, as final with the 
following changes:

PART 160--PORTS AND WATERWAYS SAFETY--GENERAL

0
1. The authority citation for part 160 continues 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
2. In Sec.  160.204, revise paragraphs (7) through (9) of the 
definition for ``Certain dangerous cargo (CDC)'' and the entire 
definition of ``Certain dangerous cargo residue (CDC residue)'' to read 
as follows:


Sec.  160.204  Definitions.

* * * * *
    Certain dangerous cargo (CDC) * * *
* * * * *
    (7) All bulk liquefied gas cargo carried under 46 CFR 151.50-31 or 
listed in 46 CFR 154.7 that is flammable and/or toxic and that is not 
carried as certain dangerous cargo residue (CDC residue).
    (8) The following bulk liquids except when carried as CDC residue:
    (i) Acetone cyanohydrin;
    (ii) Allyl alcohol;
    (iii) Chlorosulfonic acid;
    (iv) Crotonaldehyde;
    (v) Ethylene chlorohydrin;
    (vi) Ethylene dibromide;
    (vii) Methacrylonitrile;
    (viii) Oleum (fuming sulfuric acid); and
    (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 except when carried as CDC residue; and
    (ii) Ammonium nitrate based fertilizer listed as a Division 5.1 
(oxidizing) material in 49 CFR 172.101 except when carried as CDC 
residue.
    Certain dangerous cargo residue (CDC residue) includes any of the 
following:
    (1) 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.
    (2) For bulk liquids and liquefied gases, the cargo that remains 
onboard in a cargo system after discharge that is not accessible 
through normal transfer procedures, with the exception of the following 
bulk liquefied gas cargoes carried under 46 CFR 151.50-31 or listed in 
46 CFR 154.7:
    (i) Ammonia, anhydrous;
    (ii) Chlorine;
    (iii) Ethane;
    (iv) Ethylene oxide;
    (v) Methane (LNG);
    (vi) Methyl bromide;
    (vii) Sulfur dioxide; and
    (viii) Vinyl chloride.
* * * * *

    Dated: September 20, 2010.
Kevin S. Cook,
Rear Admiral, U.S. Coast Guard, Director of Prevention Policy.
[FR Doc. 2010-24221 Filed 9-27-10; 8:45 am]
BILLING CODE 9110-04-P