E9-10749. International Air Pollution Prevention (IAPP) Certificates

AGENCY:

Coast Guard, DHS.

ACTION:

Direct final rule; request for comments.

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: [phone].

(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 [phone]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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

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 81/2 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 (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 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 [phone]. 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 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

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 8 as follows:

PART 8—VESSEL INSPECTION ALTERNATIVES

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.

2. In § 8.320—

a. In paragraph (b)(10), remove the word “and”;

b. In paragraph (b)(11), remove the period and add, in its place, “; and”; and

c. Add new paragraph (b)(12) to read as follows:

§ 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.