E9-29747. Amendment to the List of MARPOL Annex V Special Areas That Are Currently in Effect To Add the Gulfs and Mediterranean Sea Special Areas

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

By this final rule, the Coast Guard amends the list of special areas in effect under Annex V of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978, as amended, (MARPOL) to include the Gulfs and Mediterranean Sea special areas. The current list of special areas in effect is now outdated because it does not list these two special areas. The Coast Guard must update its regulations to harmonize its list of special areas with MARPOL Annex V. This rule will correct the list of special areas in effect to provide accurate information to the public.

DATES:

This final rule is effective December 15, 2009.

ADDRESSES:

Documents mentioned in this preamble as being available in the docket are part of docket USCG-2009-0273 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to http://www.regulations.gov,, inserting USCG-2009-0273 in the “Keyword” box, and then clicking “Search.”

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail Mr. David Major, Coast Guard Environmental Standards Division (CG-5224); telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations

II. Regulatory History

III. Background

IV. Discussion of the Rule

V. Regulatory Analyses

A. Regulatory Planning and Review

B. Small Entities

C. Assistance for Small Entities

D. Collection of Information

E. Federalism

F. Unfunded Mandates Reform Act

G. Taking of Private Property

H. Civil Justice Reform

I. Protection of Children

J. Indian Tribal Governments

K. Energy Effects

L. Technical Standards

M. Environment

I. Abbreviations

APPS Act To Prevent Pollution From Ships, 33 U.S.C. 1901 et seq.

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

IMO International Maritime Organization

MARPOL The International Convention for the Prevention of Pollution From Ships, 1973, as Modified by the Protocol of 1978

MEPC Marine Environmental Protection Committee

NPRM Notice of Proposed Rulemaking

OMB Office of Management and Budget

RFA Regulatory Flexibility Act

U.S.C. United States Code

II. Regulatory History

The Coast Guard did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM for the revision of the rule because this final rule is non-substantive, in that it merely updates in the Coast Guard's regulations the list of special areas currently in effect, as established by the International Maritime Organization (IMO) in accordance with the procedures described in 33 CFR 151.53(b). Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

Good cause exists when publication would be impracticable, unnecessary, or contrary to the public interest. Here, publishing an NPRM and delaying the effective date are unnecessary because the change being made is a conforming amendment required by existing authority and because an opportunity for public comment has already been provided.

Publishing an NPRM and delaying the effective date are unnecessary because this rulemaking merely restates a legal responsibility already in effect under MARPOL and the Act to Prevent Pollution from Ships (codified at 33 U.S.C. 1901 et seq.) (APPS), which is the U.S. authority implementing MARPOL. When APPS became law, the United States accepted the IMO process for bringing special areas into effect and, for convenience, the Coast Guard listed the special areas currently in effect in the CFR. Since then, two more of the special areas have come into effect through the IMO process. This rulemaking corrects the list at 33 CFR 151.53 to accurately list the special areas currently in effect.

Another reason publishing an NPRM is unnecessary is because opportunity for public comment on the regulations related to APPS, including the IMO process for bringing special areas into effect, was provided in 1989. The original APPS regulations in 33 CFR parts 151, 155, and 158 were implemented through a full informal rulemaking process, including an Advance Notice of Proposed Rulemaking (53 FR 23884, June 24, 1988), an Interim Rule with Request for Comments (54 FR 18384, April 28, 1989), and a Final Rule (55 FR 35986, September 4, 1990) (APPS rulemaking). The Coast Guard held three public meetings, received public comments, and responded to all comments received. The Coast Guard received no comments on the Gulfs or Mediterranean special areas or on the IMO process for bringing special areas into effect, there have been no substantive changes regarding these special areas since the APPS rulemaking. This rulemaking also does not make any such substantive changes.

III. Background

A MARPOL Annex V special area is a sea area where, for recognized technical reasons, the adoption of special mandatory methods for the prevention of sea pollution by garbage is required. The Coast Guard is updating the APPS regulations at 33 CFR part 151 to reflect that two special areas already defined by MARPOL Annex V are now in effect. A special area under MARPOL Annex V enters into effect on the date set by the International Maritime Organization. The IMO sets an effective date after it receives sufficient notification of port reception facility adequacy from coastal states bordering a special area. In a special area prior to its effective date, 33 CFR 151.69 (Operating requirements: Discharge of garbage outside special areas) applies. In a special area after its effective date, the more restrictive requirements of 33 CFR 151.71 (Operating Requirements: Discharge of garbage within special areas) apply.

The two special areas that this rulemaking addresses and their corresponding effective dates are:

• The Gulfs area, as defined in Regulation 5(e) of MARPOL Annex V, in effect as of August 1, 2008 (Marine Environmental Protection Committee (MEPC) 56/23); and
• The Mediterranean Sea area, as defined in Regulation 5(a) of MARPOL Annex V, in effect as of May 1, 2009 (MEPC 57/21).

Both of these special areas entered into force (but not effect) on December 31, 1988, as agreed to by Parties to MARPOL Annex V. As of the above effective dates, the discharge of garbage from vessels in these areas is restricted to the discharge of food wastes only (i.e., subject to the restrictions of MARPOL Annex V, Regulation 5 and 33 CFR 151.71).

These special areas are already defined at 33 CFR 151.06. However, the Gulfs and Mediterranean Sea special areas must be added to the list of special areas in effect at 33 CFR 151.53. The more restrictive requirements of 33 CFR 151.71 only apply within special areas, and enforcement by the Coast Guard is limited to vessels subject to U.S. jurisdiction.

IV. Discussion of the Rule

This final rule modifies 33 CFR 151.53 to add the Gulfs and Mediterranean Sea special areas to the list of special areas in effect to be consistent with MARPOL and to clarify where the discharge restrictions of 33 CFR 151.71 (Operating Requirements: Discharge of garbage within special areas) apply. This modification will take effect upon publication.

V. 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 Coast Guard does not expect this rule to impose an additional burden on the U.S. maritime industry. The Gulfs and Mediterranean Sea special area requirements currently apply to all U.S. vessels under MARPOL Annex V. Vessels of all signatories to MARPOL on international voyages, including U.S. flagged vessels, are required to adhere to these standards regardless of whether this rule is promulgated. Because industry is currently required to adhere to the MARPOL Annex V special area requirements, this modification to 33 CFR 151.33 is not expected to impose a burden on industry.

The primary benefit of this rule is to provide consistent information on MARPOL Annex V special area requirements in order to increase the regulated community's awareness of the requirements. The secondary benefit is more efficient regulations through greater consistency between U.S. domestic regulations and MARPOL Annex V.

B. Small Entities

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider whether regulatory actions 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. An RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard has determined that this rule is exempt from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Therefore, an RFA analysis is not required for this rule. The Coast Guard, nonetheless, expects that this final rule will not have a significant economic impact on a substantial number of small entities.

C. Assistance for Small Entities

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

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). 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).

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 (adjusted for inflation) 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 health or risk to safety that may disproportionately affect children.

J. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

K. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

L. Technical Standards

The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

M. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (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. This rule is categorically excluded under section 6(b) of the “Appendix to National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48243, July 23, 2002). An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under the ADDRESSES section of this preamble.

List of Subjects in 33 CFR Part 151

• Administrative practice and procedure
• Oil pollution
• Penalties
• Reporting and recordkeeping requirements
• Water pollution control

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 151 as follows:

PART 151—VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE, MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER

1. The authority citation for part 151 continues to read:

Authority: 33 U.S.C. 1321, 1902, 1903, 1908; 46 U.S.C. 6101; Pub. L. 104-227 (110 Stat. 3034); Pub. L. 108-293 (118 Stat. 1063), § 623; E.O. 12777, 3 CFR, 1991 Comp. p. 351; DHS Delegation No. 0170.1, sec. 2(77).

2. Amend § 151.53 by revising paragraph (a) and adding paragraph (c) to read as follows:

§ 151.53

Special areas for Annex V of MARPOL 73/78.

(a) For the purposes of §§ 151.51 through 151.77, the special areas are the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area, the Gulfs area, the North Sea area, the Antarctic area, and the Wider Caribbean region, including the Gulf of Mexico and the Caribbean Sea which are described in § 151.06.

* * * * *

(c) The discharge restrictions are in effect in the Mediterranean Sea, Baltic Sea, the North Sea, the Gulfs and the Antarctic special areas.

Dated: November 24, 2009.

F.J. Sturm,

Acting Director of Commercial Regulations and Standards, U.S. Coast Guard.