Coast Guard, DOT.
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.
This final rule is effective December 20, 2001.
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.Start Further Info
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.End Further Info End Preamble Start Supplemental Information
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 Start Printed Page 58067North 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 § 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 § 169.5 and inserted self-propelled in § 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.Start Printed 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 § 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.
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 § 169.110 was amended to incorporate the section number and to reflect the removal of 50 CFR 223.32. The wording in § 169.120 was changed to clarify the annual, consecutive November through April dates of the reporting period. In § 169.135, the order of the reference to the table in § 169.140 was changed. Finally, a reference to the section number for the table in § 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.
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.
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.Start Printed 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.
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.
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.
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.Start List of Subjects
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
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:End Amendment Part Start Part Start Printed Page 58070
PART 169—SHIP REPORTING SYSTEMSEnd Part Start Amendment Part
1. The authority citation for part 169 is revised to read as follows:End Amendment Part Start Amendment Part
2. Revise § 169.5 to read as follows:End Amendment Part
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 § 169.100, revise the note at the end of the section to read as follows:End Amendment Part
Note to § 169.100:
50 CFR 224.103(c) contains requirements and procedures concerning northern right whale approach limitations and avoidance procedures.
4. Revise § 169.120 to read as follows:End Amendment Part
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 § 169.125 to read as follows:End Amendment Part
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 § 169.135(a) to read as follows:End Amendment Part
(a) A ship equipped with INMARSAT C must report in IMO standard format as provided in § 169.140 in table 169.140.
7. Revise § 169.140 to read as follows:End Amendment Part
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.
|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 event||A 6-digit group 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 and tenths of knots||A 3-digit group.|
|H||Date, time and point of entry into system||Entry time expressed as in (B) and entry 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 expected time of arrival||Name of port and date time group 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]
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