[Federal Register Volume 74, Number 239 (Tuesday, December 15, 2009)]
[Rules and Regulations]
[Pages 66238-66241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29747]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[Docket No. USCG-2009-0273]
RIN 1625-AB41


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.

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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outdated because it does not list these two special areas.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.''

[[Page 66239]]


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 202-372-1431, e-mail 
[email protected]. If you have questions on viewing the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

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

[[Page 66240]]

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

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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.


0
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

0
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), 
Sec.  623; E.O. 12777, 3 CFR, 1991 Comp. p. 351; DHS Delegation No. 
0170.1, sec. 2(77).


0
2. Amend Sec.  151.53 by revising paragraph (a) and adding paragraph 
(c) to read as follows:


Sec.  151.53  Special areas for Annex V of MARPOL 73/78.

    (a) For the purposes of Sec. Sec.  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 Sec.  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.
[FR Doc. E9-29747 Filed 12-14-09; 8:45 am]
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