Coast Guard, DOT.
The Coast Guard amends its advance notification requirements in the Notification of Arrival regulations for vessels bound for ports or places in the United States. In addition to the Start Printed Page 53736information already required by these regulations, this rule will require the owner, master, operator, agent, or person in charge of the vessel to identify the charterer of their vessel. The addition of the charterer information will allow us to better identify charterers associated with substandard vessels.
This final rule is effective September 18, 2002, except for §§ 160.T208(c)(15)(iv) and (c)(16) and 160.T212(b)(20), which are effective September 18, 2002, through September 30, 2002.
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-2001-8659 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:
If you have questions on this rule, call Project Manager Michael Jendrossek, U.S. Coast Guard, Office of Vessel and Facility, Operating and Environmental Standards Division (G-MSO), telephone 202-267-0836. If you have questions on viewing the docket, call Dorothy Beard, Chief, Dockets, Department of Transportation, telephone 202-366-5149.End Further Info End Preamble Start Supplemental Information
On August 18, 2000, we published a notice of request for comment entitled “Notification of Arrival: Addition of Charterer or Cargo Owner to Required Information” (65 FR 50481). The notice sought to enhance the Coast Guard's understanding of the role of charterers and cargo owners in influencing the quality of shipping. We received 16 comments, which were summarized in a notice of proposed rulemaking (NPRM) (66 FR 21710, May 1, 2001). The NPRM proposed including the charterer information, but not the cargo owner information. After publication of the NPRM, we received 10 letters containing 21 comments on the proposed rule. No public hearing was requested and none was held.
Background and Purpose
The Coast Guard initiated the Port State Control program in April 1994 because of concerns raised over the steady increase in the number of substandard non-U.S. flagged vessels visiting U.S. waters. The program's goal is the elimination of substandard vessels from U.S. waters. To meet this goal, we developed a risk-based targeting matrix that evaluated a foreign vessel's Flag State, owner, operator, classification society, vessel type, and its compliance history. The matrix allowed limited Coast Guard resources to be directed to those vessels that posed the greatest risk to safety and the environment. The matrix's basis is derived from information obtained as part of a vessel's notification of arrival, required by 33 CFR part 160, subpart C. The Captain of the Port (COTP) uses the matrix as a tool to score each arriving foreign vessel. The COTP then prioritizes boardings based on each vessel's score. If a vessel is determined to be substandard, it is detained until the deficiencies are corrected. Although the number of detentions of substandard vessels fell from 547 in 1997 to 193 in 2000, there are still too many substandard vessels calling on U.S. ports.
The Coast Guard knows that many companies chartering vessels to move their cargo go to great lengths to ensure that the vessels they charter are sound and pose minimal risks. In other cases, individuals or corporations select a vessel based solely on the cost of chartering the vessel, foregoing any examination of the vessel's condition, safety, and casualty history. It is the Coast Guard's opinion these two scenarios demonstrate the value of collecting the arriving vessel's charterer as one more factor in the Port State Control matrix.
Discussion of Comments and Changes
We received 10 comment letters containing 21 comments in response to the NPRM (66 FR 21710, May 1, 2001) and our proposed amendments to the advance notification requirements in 33 CFR part 160, subpart C.
We received four comments supporting the rule. Of those, two commenters stated publishing a list of substandard vessels could enhance vessel compliance with safety and pollution standards by deterring the chartering of substandard vessels. One indicated the rule would improve the Port State Control initiative by bringing greater transparency to the Coast Guard's ability to target specific vessels for inspections. One stated the rule would allow the Coast Guard to build a database to properly assess if some companies are frequently associated with chartering substandard vessels.
We received four comments addressing ownership differences. One asked if the rule would regulate time charterers, voyage charterers, or both. The commenter said charterers are not normally responsible for, and have no direct control over the condition of vessels that they charter. According to the commenter, changing the regulation will not help the Coast Guard ensure vessels are operated safely. We disagree. The rule will apply to all charterers that are responsible for chartering the majority of a vessel's cargo carrying capacity. When a charterer is contracting for the services of a vessel to carry goods, that individual or organization has the greatest amount of control in selecting a vessel in suitable condition to make a voyage to the United States. For example, if the vessel is substandard, the charterer can opt to not enter into a charterer agreement.
We received three comments addressing the definition of “charterer”, with two asking for a clarification in defining the term. Of those, one stated the definition could create confusion and uncertainty in determining the type of charterer. One comment said only the “head charterer” should be listed because that would identify the most important “charterer” and reduce the complication of listing every “charterer”. We agree with the comment's intent. We have modified the language to alleviate any confusion as to whose identity we are seeking. The Coast Guard is requiring only the identity of the individual or organization that contracts for the majority of a vessel's cargo carrying capacity. The person or organization that contracts for this amount of space has control over vessel selection and, therefore, the condition of the vessel they choose to hire. It is not our intent to capture minor space charterers who are not involved in vessel selection. We also added explicit reference to the “types” of charters that are subject to this change.
We received two comments in support of not collecting information on cargo owners, which were included in our August 2000 request for comments. Both agreed that the frequent changes in ownership of given cargo would overly complicate the reporting effort. In response to our request for comments, we received numerous negative comments opposed to the collection of cargo owner information. Based on these responses, we elected not to propose collecting cargo owner information in the NPRM, or in this final rule.
We received two comments that stated the charterer of a vessel is Start Printed Page 53737generally considered confidential and commercial proprietary information. Of those, one stated publishing a list of charterers associated with detentions would not improve compliance, but instead hurt sensitive marketplaces such as the Great Lakes and that the marketplace will detract a charterer from substandard vessel usage instead of forcing better compliance. The Coast Guard disagrees. Anyone involved in the selection and chartering of a vessel to carry cargo to the United States is subject to analysis to determine if their business practices pose an environmental threat. Additionally, the charterer information is being provided to the government, not to the public. Any subsequent release to the public, under the Freedom of Information Act (FOIA), for example, would be analyzed to ensure no actual proprietary information is released.
One commenter addressed applicability involving certain vessel operations. The commenter stated vessels conducting operations, such as drilling or construction on the Outer Continental Shelf (OCS), do not have a “charterer” under the rule's definition. The commenter also said each vessel arriving at an OCS facility is contracted for its crew and services by a “lessee” or “permitee”, not for its capacity to transport cargo to a port. In cases involving vessels that do not have charterers in accordance with the definition of this subpart, a vessel need only provide all other pre-arrival notification information.
One commenter asked that bareboat chartering agreements not fall under the definition of “charterer” because it is already included in the existing Notification of Arrival requirements. The commenter stated under bareboat agreements, the charterer is the “legal and de facto operator.” We agree. Bareboat, or demise charterer agreements are not part of the “charterer” definition in this subpart. Bareboat and demise charterers are further discussed in 46 CFR 169.107, amended by final rule, published in the Federal Register on May 15, 2002 (67 FR 34756).
One commenter indicated that time and voyage charterers should be considered “charterers” as part of the Notification of Arrival requirements because those agreements are comparable to “single charterer—single vessel—single cargo” scenarios. We agree with the comment's intent. The purpose of this rulemaking is to identify the single entity responsible for selecting a vessel for a particular voyage. Thus, we are looking to capture charterer information for the type of agreement described by the commenter.
One commenter said the definition is too broad and would create multiple “charterers” among liner carriers who are sharing space on the same voyage. The commenter stated the Coast Guard should only be interested in “the carrier directly responsible for the mechanical operation of the specific vessel arriving in a U.S. port.” We agree. Our definition of charterer, provided in § 160.203, captures the individual (or corporation) who charters for the majority of a vessel's cargo capacity. Thus, anyone chartering less than the majority would not be included in this rule. If, however, one individual contracts for a majority of the vessel and then subcharters the vessel's available cargo space, the original contractor is the charterer we want to identify.
One commenter indicated adding the charterer's name would be a potential problem and could do more harm than good, but did not go into specifics. Without more information regarding the problem mentioned by the commenter, we are unable to give a specific response. The Coast Guard reiterates its belief that collecting charterer information will increase the effectiveness of the Port State Control matrix.
One commenter asked the Coast Guard to look into the duplication of reporting requirements in regard to mobile offshore drilling units (MODUs). The commenter recommended we add language to the rule to this effect: if your vessel meets the requirements of 33 CFR 146.202, you are also in compliance with 33 CFR part 160. We disagree. The reporting requirements contained in 33 CFR 146.202 are specifically for operations on the Outer Continental Shelf and do not apply to arrival and departure from ports within the United States.
One commenter stated the Coast Guard is seeking information on the majority of a vessel's cargo capacity instead of the individual goods being delivered to a port. The commenter said the rule would not stop charterers from seeking substandard vessels to reduce their transportation cost. We disagree. We are seeking information on the individual or organization that contracts for the majority of a vessel's cargo carrying capacity. It is our contention that this individual or organization has the power of vessel selection in the process and, therefore, can exercise the option of choosing a vessel that is not substandard.
One commenter said the Coast Guard's Port State Control matrix has been successful in identifying substandard vessels and has reduced accidents and pollution, but identifying the charterer for every vessel is unnecessary. We disagree. Collecting charterer information will enhance our ability to utilize limited resources to enforce our Port State Control program more effectively.
One commenter supports the temporary collection of charterer information stating the collection should be for at least one year and only for internal use by the Coast Guard. The commenter stated there should be a clear connection between the requirement and the desired result. The commenter also said that the rule would not help the Coast Guard in identifying substandard vessels. We disagree. The object of the program is to identify charterers that continually use substandard vessels to carry cargo. When scored according to their history, charterers that fit into the high-risk category will have their vessels targeted for boarding.
One commenter asked that the Great Lakes be considered separately in regard to this rule. According to the commenter, more than 80 percent of the vessels using the Great Lakes Waterway system are already known by the Marine Safety Office Buffalo and the Saint Lawrence Seaway agencies, who would know what vessels throw up a “red flag” because of the vessels' regular use of the Lakes. We disagree. This rule seeks information on charterers, not vessels. The Coast Guard is adding an important element, the charterer, to the targeting matrix. This additional information will allow the Coast Guard to further utilize its limited resources in the most judicious manner.
One commenter stated a charterer should not be responsible or liable for the conditions over which they have no control. The commenter added that voyage charterers, in particular, have little or no role in a vessel's compliance with the international standards. With the Great Lakes being a small system, the commenter indicates enhancing the PSC matrix would be unnecessary. We disagree. When an individual or organization seeks to charter a vessel for the purpose of carrying cargo to the United States, they have the option of ensuring that the vessel they charter is in suitable condition to be in compliance with all U.S. laws and international accords.
Discussion of Final Rule
In our August, 2000, NPRM for this rulemaking, we proposed amending the permanent requirements in 33 CFR part 160. On October 4, 2001, however, the Coast Guard published a temporary final Start Printed Page 53738rule entitled, “Temporary Requirements for Notification of Arrival in U.S. Ports” (66 FR 50565). That temporary rule suspended the majority of the sections we had proposed amending and added temporary sections in their place. That temporary rule was amended on November 19, 2001, and January 18, 2002 (66 FR 57877; 67 FR 2571) and on May 30, 2002, was extended until September 30, 2002 (67 FR 37682). On June 19, 2002, the Coast Guard published an NPRM (67 FR 41659) proposing to make permanent changes to the notice of arrival requirements. Then on July 23, 2002, we proposed an additional extension of the temporary rule (67 FR 48073). The temporary rule, therefore, could be effective until the permanent changes are published, perhaps until March 31, 2003. We have decided, therefore, to make the changes to the currently effective “temporary” sections in 33 CFR part 160 instead of to the suspended permanent sections, as proposed in our NPRM. The changes made by this rule will then be incorporated into the permanent sections in 33 CFR part 160 when those revisions are completed.
With this final rule allowing the Coast Guard to enforce the new requirement for charterer information, we also recognize that the various names used for different charterer scenarios adds to some of the confusion regarding this requirement. In order to clarify this rulemaking, we added definitions for time and voyage charters into the regulations, and we offer the following explanations of various types of charterers:
- Time Charterer. The party who hires a vessel for a specific amount of time. The owner and his crew manage the vessel, but the charterer selects the ports of destination.
- Voyage Charterer. The party who hires a vessel for a single voyage. The owner and his crew manage the vessel, but the charterer selects the ports of destination.
- Demise Charterer. A legally binding document for a term of one year or more under which, for the period of the charter, the party who leases or charters the vessel, known as the bareboat or demise charterer, assumes legal responsibility for all of the levels of ownership, including insuring, manning, supplying, repairing, fueling, maintaining, and operating the vessel. The term “bareboat or demise charterer” is synonymous with “owner pro hac vice”. This information is captured through the submission of the owner/operator information for the Advance Notice of Arrival.
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. 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 (44 FR 11040, February 26, 1979).
The regulatory baseline for this final rule is the existing requirements in 33 CFR part 160. On October 4, 2001, the Coast Guard published a temporary final rule entitled, “Temporary Requirements for Notification of Arrival in U.S. Ports” (66 FR 50565). The temporary final rule suspended the sections of which this rulemaking amends until September 30, 2002. Also, on May 30, 2002, the Coast Guard published an NPRM (67 FR 37682) proposing to amend the suspended sections by making permanent the provisions of the temporary final rule.
The population of vessels affected by the final rule will also be modified by a notice of proposed rulemaking (NPRM) entitled “Notification of Arrival in U.S. Ports” published in the Federal Register on June 19, 2002 (67 FR 41659), which proposes to further amend requirements for the Notification of Arrival. The proposed rule removed reporting exemptions for vessels under the Automated Mutual Assistance Vessel Rescue System (AMVER), certain vessels operating solely on the Great Lakes, and vessels operating on a regularly scheduled route. The evaluation for this final rule considers the cost for submitting the charterer information for this new population of vessels.
The cost of the final rule to industry is presented in Table 1. The estimate of the number of arrivals is based on average annual arrivals for 1998 and 1999. The “Non-AMVER/Non-Great Lakes” number of arrivals is for those non-exempt vessels covered by existing Notification of Arrival requirements in 33 CFR part 160 and were included in the evaluation of the proposed rule for charterers. The AMVER and Great Lakes number of arrivals is the new population of vessels that would be required to submit Notifications of Arrival under the proposed rule published on June 19, 2002. These vessels would also be required to complete the information on vessel charterer under this final rule. We estimate that including the information for the charterer will require 1 minute (0.017 hours) to complete on the Notification of Arrival form, at a cost of $43 per hour.
|NOA report||Arrivals||Cost per arrival||Annual cost|
|Detail may not calculate to total due to independent rounding.|
As shown, this rule is estimated to cost approximately $50,000 annually. Under the proposed rule for “Notification of Arrival in U.S. Ports” published June 19, 2002, vessel owners and operators could now consolidate multiple arrivals in U.S. ports in a single Notification of Arrival (where previously they could not). Consequently, the number of arrivals presented in Table 1 may overstate the actual number of annual arrivals in U.S. ports that will have individual reports. The arrivals in Table 1, therefore, represent the “worst-case” scenario and the costs of the final rule are conservative estimates.
Over the next 10 years, the Present Value (PV) cost of the final rule is $367,697 (2002-2011, 7 percent discount rate, 2002 dollars).
The potential benefits of the final rule are not quantifiable, but include the Start Printed Page 53739following: (1) U.S. waters will experience increased safety; (2) U.S. waters will experience a decrease in damage to property and the environment; (3) the Coast Guard will target substandard vessels traveling U.S. waters that pose safety and environmental risks; (4) the Coast Guard will spend less effort on compliant vessels; (5) the Coast Guard will spend more effort examining previously unboarded vessels; (6) the Coast Guard will have more information on foreign vessels traveling U.S. waters; (7) the Coast Guard and vessel owners will have better understanding of the risks posed by foreign vessels; and (8) the degrees of liability would be clarified.
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.
The final rule does not include any special provisions for small entities. However, the burden required by this rule is so minimal (only 1 minute per Notification of Arrival) that the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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.
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).
Collection of Information
This rule calls for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions. The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.
Title: Notification of Arrival: Addition of Charterer to Required Information.
Summary of the Collection of Information: This rule amends 33 CFR 160.203, 160.T208, and 160.T212 to include the name of the vessel's charterer as part of the information required for vessels bound for ports or places in the United States. This collection of information will add minimal burden to the information collection described in OMB 2115-0557, Advance Notice of Vessel Arrival and Departure. The new collection of information estimate is based on the current collection, which is accounted for in the temporary rule published October 4, 2001, and the NPRM published June 19, 2002.
Use of Information: The Coast Guard will use the information collected to identify those vessels that pose the highest risks to U.S. waterways and ports, and target those vessels for inspection.
Description of the Respondents: The respondents are vessel crews traveling U.S. waterways and hailing U.S. ports that must report an Advance Notification of Arrival.
Number of Respondents: The existing OMB-approved collection number of respondents is 10,367 (respondents are owners/operators of the vessels calling on U.S. ports annually). This final rule will not increase the number of respondents.
Frequency of Response: Owners/operators of vessels making calls in U.S. ports will submit Notification of Arrival reports as necessary. The existing OMB-approved collection number of responses is 68,139. This final rule will not increase the frequency of response.
Burden of Response: The existing OMB-approved collection burden of response is 74 minutes (1.233 hours) (burden of response is the time required to complete the paperwork requirements of the rule for a single response). This final rule will increase the burden of response by 1 minute (0.017 hours) for a net total of 75 minutes (1.250 hours).
Estimate of Total Annual Burden: The existing OMB-approved collection total annual burden is 174,179 hours (total annual burden is the time required to complete the paperwork requirements of the rule for all responses). This final rule will increase the total annual burden by 1,136 hours for a net total of 175,315 hours.
As required by 44 U.S.C. 3507(d), we submitted a copy of this rule to the Office of Management and Budget (OMB) for its review of the collection of information.
We analyzed this rule under Executive Order 13132, Federalism. The existing advance notice of arrival regulation in 33 CFR 160.213, which is issued under Title I of the Ports and Waterways Safety Act, is preemptive of any State rule that would also require the vessel to provide the State, or one of its political subdivisions, advance notice of arrival. (See, U.S. v. Locke, 529 U.S. 89, 120 S.CT 1135 (2000)). However, the Coast Guard has, in numerous instances, through Memoranda of Agreement with an interested State, cooperated with the States and agreed to provide the information contained in the advance notice of arrival to the States. It will continue to do so.
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 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.
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
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not Start Printed Page 53740an economically significant rule and does not create 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.
We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (34)(d), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. This rule is a procedural regulation that does not have any environmental impact. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.Start List of Subjects
List of Subjects in 33 CFR Part 160
- Administrative practice and procedure
- Hazardous materials transportation
- Marine safety
- Navigation (water)
- Reporting and recordkeeping requirements
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 160, subpart C as follows:End Amendment Part Start Part
PART 160—PORTS AND WATERWAYS SAFETY—GENERAL
Subpart C—Notifications of Arrivals, Departures, Hazardous Conditions, and Certain Dangerous CargoesEnd Part Start Amendment Part
1. The authority citation for Part 160 continues to read as follows:End Amendment Part
2. In § 160.203, add in alphabetical order the definitions for “Charterer”, “Time Charterer” and “Voyage Charterer” to read as follows:
Charterer means the person or organization that contracts for the majority of the carrying capacity of a ship for the transportation of cargo to a stated port for a specified period. This includes “time charterers” and “voyage charterers”.
Time charterer means the party who hires a vessel for a specific amount of time. The owner and his crew manage the vessel, but the charterer selects the ports of destination.
Voyage charterer means the party who hires a vessel for a single voyage. The owner and his crew manage the vessel, but the charterer selects the ports of destination.
3. In § 160.T208, which was added at 66 FR 50565, October 4, 2001, effective October 4, 2001, until June 15, 2002, and amended by 66 FR 57877, November 19, 2001, and by 67 FR 2571, January 18, 2002, and extended in effect until September 30, 2002, by 67 FR 37682, May 30, 2002, revise paragraph (c)(15)(iv) and add new paragraph (c)(16) to read as follows:End Amendment Part
(c) * * *
(15) * * *
(iv) Passport number; and
(16) Name of the vessel's charterer.
4. In § 160.T212, which was added at 66 FR 50565, October 4, 2001, effective October 4, 2001, until June 15, 2002, amended by 66 FR 57877, November 19, 2001, and extended in effect until September 30, 2002, by 67 FR 37682, May 30, 2002, add new paragraph (b)(20) to read as follows:End Amendment Part
(b) * * *
(20) Name of the vessel's charterer;
Dated: August 13, 2002.
Acting Assistant Commandant for Marine Safety, Security and Environmental Protection.
[FR Doc. 02-20954 Filed 8-16-02; 8:45 am]
BILLING CODE 4910-15-P