[Federal Register: May 8, 2009 (Volume 74, Number 88)]
[Rules and Regulations]
[Page 21554-21558]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my09-8]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Part 8
[Docket No. USCG-2008-1014]
RIN 1625-AB31
International Air Pollution Prevention (IAPP) Certificates
AGENCY: Coast Guard, DHS.
ACTION: Direct final rule; request for comments.
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SUMMARY: By this direct final rule, the Coast Guard amends its vessel
inspection regulations to add the International Air Pollution
Prevention (IAPP) certificate to the list of certificates a recognized
classification society may be authorized to issue on behalf of the
United States. This action is being taken because the United States
recently deposited an instrument of ratification with the International
Maritime Organization for Annex VI of the International Convention for
the Prevention of Pollution by Ships, 1973 as modified by the Protocol
of 1978 (MARPOL 73/78). As a result, Annex VI entered into force for
the United States on January 8, 2009. This rulemaking will offer a more
efficient means for U.S. ships to obtain an IAPP certificate.
DATES: This rule is effective August 6, 2009, unless an adverse
comment, or notice of intent to submit an adverse comment, is either
submitted to our online docket via http://www.regulations.gov on or
before June 22, 2009 or reaches the Docket Management Facility by that
date. If an adverse comment, or notice of intent to submit an adverse
comment, is received by June 22, 2009, we will withdraw this direct
final rule and publish a timely notice of withdrawal in the Federal
Register.
ADDRESSES: You may submit comments identified by docket number USCG-
2008-1014 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these methods. For
instructions on submitting comments, see the ``Public Participation and
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section
below.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Mr. Wayne Lundy, Systems Engineering Division, Coast Guard,
telephone 202-372-1379. If you have questions on viewing or submitting
material to the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for the Preamble
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Public Meeting
II. Abbreviations
III. Regulatory Information
IV. Background and Purpose
[[Page 21555]]
V. Discussion of the Rule
VI. Regulatory Analyses
A. Regulatory Planning and Review
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. 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://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (USCG-2008-1014), indicate the specific section of this
document to which each comment applies, and give the reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
To submit your comment online, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2008-1014'' in the Docket ID box, press Enter,
and then click on the balloon shape in the actions column. If you
submit your comments by mail or hand 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.
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://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2008-1014'' in the Docket ID box, press Enter,
and then click on the item in the Docket ID column. If you do not have
access to the internet, you may also view the docket online by visiting
the Docket Management Facility in Room W12-140 on the ground floor of
the Department of Transportation, West Building, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. We have an agreement with the
Department of Transportation to use the Docket Management Facility.
C. 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 a Privacy Act notice
regarding our public dockets in the January 17, 2008 issue of the
Federal Register (73 FR 3316).
D. Public Meeting
We do not now plan to hold a public meeting. But you may use the
same means of submitting a comment to request a public meeting. In your
request, explain why you believe this additional forum for public
comments would be beneficial. If we determine that one would aid this
rulemaking, we will hold one at a time and place announced by a later
notice in the Federal Register.
II. Abbreviations
Annex VI MARPOL Annex Re Prevention of Air Pollution From Ships
APPS Act to Prevent Pollution from Ships
CFR Code of Federal Regulations
DHS Department of Homeland Security
EIAPP Engine International Air Pollution Prevention
EPA Environmental Protection Agency
IAPP International Air Pollution Prevention
IMO International Maritime Organization
MARPOL International Convention for the Prevention of Pollution from
Ships, as modified by the Protocol of 1978
MPPA Maritime Pollution Prevention Act of 2008
NEPA National Environmental Policy Act of 1969
NTTAA National Technology Transfer and Advancement Act
U.S.C. United States Code
III. Regulatory Information
We are publishing this direct final rule under 33 CFR 1.05-55
because we do not expect an adverse comment. If no adverse comment or
notice of intent to submit an adverse comment is received by June 22,
2009, this rule will become effective as stated in the DATES section.
In that case, approximately 30 days before the effective date, we will
publish a document in the Federal Register stating that no adverse
comment was received and confirming that this rule will become
effective as scheduled. However, if we receive an adverse comment or
notice of intent to submit an adverse comment, we will publish a
document in the Federal Register announcing the withdrawal of all or
part of this direct final rule.
A comment is considered ``adverse'' if it explains why this rule or
a part of this rule would be inappropriate, including a challenge to
its underlying premise or approach, or would be ineffective or
unacceptable without a change. If an adverse comment applies only to
part of this rule and it is possible to remove that part without
defeating the purpose of this rule, we may adopt, as final, those parts
of this rule on which no adverse comment was received. We will withdraw
the part of this rule that was the subject of an adverse comment. If we
cannot proceed to a direct final rule following receipt of an adverse
comment, and we decide to proceed with a rulemaking, we will publish a
separate notice of proposed rulemaking (NPRM) and provide a new
opportunity for comment.
IV. Background and Purpose
On May 19, 2005, air pollution prevention regulations in Annex VI
to the International Convention for the Prevention of Pollution from
Ships, as modified by the Protocol of 1978 (MARPOL), came into force
internationally. Under the terms of the convention, Article V(4),
nations that are parties to MARPOL Annex VI may require ships in their
waters to comply with these international air pollution prevention
regulations. The International Air Pollution Prevention (IAPP)
Certificate and Engine International Air Pollution Prevention (EIAPP)
Certificate are used to document compliance with MARPOL Annex VI.
On July 21, 2008, the United States enacted the Maritime Pollution
Prevention Act of 2008 (MPPA), Pub. L. 110-280, 122 Stat 2611. The MPPA
amends the Act to Prevent Pollution from Ships (APPS), 33 U.S.C. 1901-
1910, for the purpose of implementing MARPOL Annex VI. The U.S. State
Department deposited the U.S. instrument of ratification for Annex VI
with the International Maritime Organization (IMO) on October 8, 2008.
Under MARPOL Article 15(5), Annex VI entered into force for the United
States on January 8, 2009. With the exception of EIAPP certificates to
be issued by the Environmental Protection Agency
[[Page 21556]]
(EPA), in 33 U.S.C. 1904, Congress directs the Secretary of the
Department of Homeland Security (DHS) to designate those persons
authorized to issue on behalf of the United States the certificates
required by the MARPOL Protocol. The Secretary delegated that authority
to the Coast Guard Commandant in DHS Delegation No. 0170.1 sec. 2(77).
The Commandant has delegated authority to issue IAPP certificates to
the Assistant Commandant for Marine Safety, Security and Stewardship
and Coast Guard Officers in Charge, Marine Inspection (OCMI).
Under authority of 46 U.S.C. 3103, 3306, 3316, 3703, the Coast
Guard may delegate authority to issue international convention
certificates to a recognized classification society. Because the United
States had not ratified MARPOL Annex VI until recently, our Vessel
Inspection Alternatives regulations in 46 CFR part 8 do not include the
IAPP certificate as one of the international certificates that may be
so delegated. In this direct final rule, we are adding the IAPP
certificate to the list of international certificates that a recognized
classification society may be authorized to issue on our behalf.
Regulation 7 of MARPOL Annex VI, which entered into force
internationally on May 19, 2005, prohibits issuing an IAPP certificate
to a ship that is entitled to fly the flag of a State which is not a
Party to MARPOL Annex VI. Although the U.S. deposited the instrument of
ratification on October 8, 2008, MARPOL Annex VI did not enter into
force for the United States until January 8, 2009. Starting on that
date, IAPP certificates may be issued to U.S. ships.
Before January 8, 2009, U.S. ships had not been able to obtain an
IAPP certificate. This put them at risk of port state control from
nations already party to MARPOL Annex VI. Therefore, the Coast Guard
coordinated with the EPA to reduce that risk by documenting compliance
with MARPOL Annex VI without issuing an IAPP certificate.
Under this program, owners and operators of those ships required by
MARPOL Annex VI to have an EIAPP certificate could request a statement
of voluntary compliance with the MARPOL Annex VI engine certification
provisions from EPA. See discussion in 68 FR 9746, at 9756-57 and 9769-
70, February 28, 2003. Once the statement of voluntary compliance was
issued by EPA, the ship owner or operator could ask the Coast Guard or
a recognized classification society for a statement of voluntary
compliance with all the provisions in MARPOL Annex VI. The owners and
operators of ships not required by MARPOL Annex VI to have an EIAPP
certificate could approach the Coast Guard or a recognized
classification society directly for a statement of voluntary compliance
for the ship. Therefore, to obtain a statement of voluntary compliance,
U.S. ships underwent, on a voluntary basis, the same surveys, testing,
and inspection called for by MARPOL Annex VI for an IAPP certificate.
Since the United States is now a party to MARPOL Annex VI, ship
owners and operators possessing a valid statement of voluntary
compliance issued by the Coast Guard or a recognized classification
society may exchange the statement of voluntary compliance for an IAPP
certificate if they have obtained an Engine International Air Pollution
Prevention (EIAPP) certificate from the EPA. To make this exchange,
ship owners and operators should request an EIAPP certificate from the
EPA. Then, the owner or operator should display the EIAPP to the local
Coast Guard OCMI or a recognized classification society to receive the
IAPP certificate. Owners and operators of ships not required by MARPOL
Annex VI to have an EIAPP certificate may simply approach the local
OCMI or recognized classification society directly for an IAPP
certificate. Under this process, the new IAPP certificate would have
the same expiration date as the statement of voluntary compliance.
Alternatively, an owner or operator could have the ship undergo an
initial inspection to obtain an IAPP certificate. If the ship were
required to have an EIAPP, it could not be issued an IAPP certificate
without first having obtained an EIAPP certificate from the EPA.
For further information, Policy Letter 09-01 from the Coast Guard
Office of Vessel Activities provides guidance for owners and operators
of U.S. and foreign flag ships that operate in U.S. waters regarding
compliance with the provisions of MARPOL 73/78. This policy letter and
other guidance pertaining to Annex VI compliance, including links to
Annex VI, the NOx Technical code, and EPA EIAPP Certificate
information, are available on the Coast Guard's Annex VI information
web site at http://homeport.uscg.mil by selecting the following tabs:
Missions > Domestic Vessels > Domestic Vessel General > MARPOL ANNEX
VI.
V. Discussion of Rule
Through this direct final rule, the Coast Guard amends 46 CFR
8.320(b) by adding the MARPOL 73/78 International Air Pollution
Prevention Certificate to the current list of certificates in that
section.
VI. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
A. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
The rule does not impose mandatory actions on the U.S. maritime
industry. Industry will have to meet the conditions of MARPOL Annex VI
regardless of whether this rulemaking is promulgated.
This rule initiates the process that may allow recognized
classification societies to issue IAPP certificates on behalf of the
Coast Guard. The full range of activities related to compliance with
the MARPOL Annex VI requirements are beyond the scope of this limited
rulemaking and are not accounted for under this rule as these
activities will take place in the absence of this rulemaking.
However, as a result of the rule, classification societies may take
action to request delegation of authority to conduct IAPP inspections
and certifications. In response, the Coast Guard would evaluate the
application and may issue a delegation of authority.
Although voluntary, classification societies may incur minor costs
associated with requesting the delegation of authority to conduct IAPP
inspections and certifications. The Coast Guard may incur costs
associated with the evaluation of these requests and the issuance of
delegations of authority to recognized classification societies.
We estimate that the rule potentially affects five classification
societies that may request delegation of authority to issue IAPP
certifications. We use OMB-approved collections of information (1625-
0101, 1625-0095, 1625-0093, and 1625-0041) to estimate the costs and
burden.
We estimate that it will take classification society employees
about 5.25 hours to review the rulemaking requirements and prepare the
delegation request, at an average cost of $458.50 per classification
society (3.5 hours @ $112 per hour for a director and 1.75 hours @ $38
per hour for a secretary). We estimate the total one-time costs for
[[Page 21557]]
all five classification societies to be $2,300 (rounded).
In addition, we estimate that the federal government (Coast Guard)
will incur one-time costs to review and approve the requests for
delegation. Based on the OMB-approved collections of information
discussed above, we estimate that it will take about 3.5 hours to
review and approve each request for delegation and 1.5 hours to issue
an order to delegate authority for a total one-time government cost of
$1,800 based on OMB-approved collection of information estimates.
We estimate the total one-time cost of this rule to be $4,100 (non-
discounted) for classification societies and the government combined.
The rulemaking would result in several direct and indirect benefits
to the U.S. maritime industry. The rule may result in a reduction in
potential wait time for IAPP certificates. In the absence of delegation
of authority to classification societies, vessel owners and operators
might have to queue for IAPP certificates from the Coast Guard.
Combined with the Coast Guard's other activities, such a process could
result in an unnecessary and burdensome wait for vessels. The Coast
Guard might have to redirect resources that would have been used for
other missions which may result in a less efficient use of government
resources. Finally, the rulemaking may mitigate potential consequences
to U.S. vessels due to non-compliance with MARPOL Annex VI, including
costly vessel detentions in foreign ports.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
Classification societies affected by this rule will most likely be
classified under one of the following North American Industry
Classification System (NAICS) 6-digit codes for water transportation:
488330--Navigation Services to Shipping or 488390--Other Support
Activities for Water Transportation. According to the Small Business
Administration's size standards, a U.S. company classified under these
NAICS codes with annual revenues less than $7 million is considered a
small entity.
We have determined that there is only one U.S. classification
society affected by this rule. We researched size and revenue data
using proprietary and public business databases and found that this
entity earns more than $7 million in annual revenue and is not
considered a small entity by the Small Business Administration's size
standards. In addition, we found other classification societies not to
be small and foreign owned and operated. However, this rule is not
mandatory and classification societies, regardless of size, will only
choose to participate if the benefits are greater than the costs.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule would not have a significant economic impact on a substantial
number of small entities. If you think that your business,
organization, or governmental jurisdiction qualifies as a small entity
and that this rule would have a significant economic impact on it,
please submit a comment to the Docket Management Facility at the
address under ADDRESSES. In your comment, explain why you think it
qualifies and how and to what degree this rule would economically
affect it.
C. 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 the rule will
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please consult Mr. Wayne Lundy, Systems Engineering
Division, Coast Guard, telephone 202-372-1379. 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.
D. Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). On April 8,
2008, we published a notice in the Federal Register announcing our
plans to seek a 3-year extension of OMB's approval of our 1625-0041
collection of information entitled, ``Various International Agreement
Pollution Prevention Certificates and Documents, and Equivalency
Certificates'' (73 FR 19082, April 8, 2008), under which IAPP voluntary
compliance certificates are issued.
That notice invited comments on our proposed information collection
request. Our proposed information collection request estimated the
burden for requests and delegation of certificates similar to the IAPP
certificates. We received no comments in response to that notice and
submitted our information collection request to OMB. 73 FR 41364, July
18, 2008. We received OMB approval without change on November 19, 2008.
However, we expect only five entities will be affected by this
requirement in the first year it is implemented. As such, this rule
contains no new collection of information under the Paperwork Reduction
Act.
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if the rule has a substantial direct effect on State or
local governments and would either preempt State law or impose a
substantial direct cost of compliance on them. We have analyzed this
rule under that Order and have determined that it does not have
implications for federalism.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
G. Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference With Constitutionally Protected Property
Rights.
H. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children From Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to
[[Page 21558]]
health or risk to safety that may disproportionately affect children.
J. Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination With Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
K. Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (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 rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards. In the separate
action of a recognized classification society issuing an IAPP, any
technical standards applied would be those from MARPOL Annex VI itself
and 33 U.S.C. 1907(a), which makes it unlawful to act in violation of
the MARPOL Protocol. MARPOL Protocol is now defined to include Annex
VI. 33 U.S.C. 1901(a)(4)&(5).
M. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Commandant Instruction M16475.lD, which guide the
Coast Guard in complying with the National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action
is one of a category of actions which do not individually or
cumulatively have a significant effect on the human environment.
Therefore, this rule is categorically excluded, under section 2.B.2.
Figure 2-1, paragraph 34(d), from the Instruction and neither an
environmental assessment nor an environmental impact statement is
required. This rule involves IAPP certificates and falls within the
documentation portion of this categorical exclusion. An environmental
analysis checklist and a categorical exclusion determination are
available in the docket where indicated under ADDRESSES.
List of Subjects for 46 CFR Part 8
Administrative practice and procedure, Incorporation by reference,
Organization and functions (Government agencies), Reporting and
recordkeeping requirements, Vessels.
0
For the reasons discussed in the preamble, the Coast Guard amends 46
CFR part 8 as follows:
PART 8--VESSEL INSPECTION ALTERNATIVES
0
1. The authority citation for part 8 continues to read as follows:
Authority: 46 U.S.C. 3103, 3306, 3316, 3703; Department of
Homeland Security Delegation No. 0170.1.
0
2. In Sec. 8.320--
0
a. In paragraph (b)(10), remove the word ``and'';
0
b. In paragraph (b)(11), remove the period and add, in its place, ``;
and''; and
0
c. Add new paragraph (b)(12) to read as follows:
Sec. 8.320 Classification society authorization to issue
international certificates.
* * * * *
(b) * * *
(12) MARPOL 73/78 International Air Pollution Prevention
Certificate.
* * * * *
Dated: April 30, 2009.
Jeffrey G. Lantz,
U.S. Coast Guard, Director, Commercial Regulations and Standards.
[FR Doc. E9-10749 Filed 5-7-09; 8:45 am]
BILLING CODE 4910-15-P