[Federal Register: December 16, 2005 (Volume 70, Number 241)]
[Rules and Regulations]
[Page 74663-74669]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de05-10]
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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 sans@nvmc.uscg.gov 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 sans@nvmc.uscg.gov 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
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* 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 sans@nvmc.uscg.gov or by telephone at 1-800-708-9823 or 304-
264-2502 for more information;
(2) E-mail at sans@nvmc.uscg.gov. 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