[Federal Register Volume 77, Number 237 (Monday, December 10, 2012)]
[Rules and Regulations]
[Pages 73334-73338]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29749]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Part 8
[Docket No. USCG-2012-0861]
RIN 1625-AB90
Adding International Energy Efficiency (IEE) Certificate to List
of Certificates a Recognized Classification Society May Issue
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is amending its Vessel Inspection Alternatives
regulations to add the International Energy Efficiency (IEE)
Certificate to the list of certificates that a recognized
classification society may issue on behalf of the Coast Guard. We are
making this change because Annex VI of the International Convention for
the Prevention of Pollution by Ships, 1973, as modified by the Protocol
of 1978, has been amended to address energy efficiency for ships, and
these amendments call for the issuance of IEE Certificates starting
January 1, 2013. This rule will enable recognized classification
societies to apply to the Coast Guard to issue IEE Certificates to
vessel owners and help to ensure that the demand for IEE Certificates
is met.
DATES: This final rule is effective January 9, 2013.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2012-0861 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.,
[[Page 73335]]
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-2012-0861 in the
Search box, and pressing Enter.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Wayne Lundy, Systems Engineering Division, Office of
Design and Engineering Standards, Coast Guard; telephone 202-372-1379,
email Wayne.M.Lundy@uscg.mil. 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. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
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. Abbreviations
ABS American Bureau of Shipping
APPS Act to Prevent Pollution from Ships
CFR Code of Federal Regulations
DHS Department of Homeland Security
EPA Environmental Protection Agency
FR Federal Register
IEE International Energy Efficiency
IMO International Maritime Organization
MARPOL Protocol International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978
MEPC Maritime Environment Protection Committee
NMFS National Marine Fisheries Service
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
Sec. Section
U.S.C. United States Code
II. Regulatory History
On October 2, 2012, we published a notice of proposed rulemaking
(NPRM) entitled ``Adding International Energy Efficiency (IEE)
Certificate to List of Certificates a Recognized Classification Society
May Issue'' in the Federal Register (77 FR 60096). We received one
written submission on the proposed rule. No public meeting was
requested and none was held.
III. Basis and Purpose
The Coast Guard is amending its Vessel Inspection Alternatives
regulations to add the International Energy Efficiency (IEE)
Certificate to the list of certificates that a recognized
classification society may issue on behalf of the Coast Guard. We are
making this change because Annex VI of the International Convention for
the Prevention of Pollution by Ships, 1973 (MARPOL), as modified by the
Protocol of 1978 (MARPOL Protocol), has been amended to address energy
efficiency for ships, and these amendments call for the issuance of IEE
Certificates starting January 1, 2013. This rule will enable recognized
classification societies to apply to the Coast Guard to issue IEE
Certificates to vessel owners and help to ensure that the demand for
IEE Certificates is met.
IV. Background
The Act to Prevent Pollution from Ships (APPS), 33 U.S.C. 1901 et
seq., implements legislation for the International Convention for the
Prevention of Pollution from Ships, 1973 as modified by the Protocol of
1978 (MARPOL Protocol), which includes MARPOL Annex VI: Regulations for
the Prevention of Air Pollution from Ships. See 33 U.S.C. 1901(a)(4)
and (5). APPS directs the Secretary of Homeland Security to prescribe
any necessary or desired regulations to carry out the provisions of the
MARPOL Protocol, and it directs the Secretary to designate those
persons authorized to issue MARPOL Protocol certificates on behalf of
the United States. See 33 U.S.C. 1903(c) and 1904. This authority was
delegated to the Coast Guard. See Department of Homeland Security
Delegation No. 0170.1. As required by APPS, the Coast Guard has
consulted with the U.S. Environmental Protection Agency (EPA) regarding
this final rule.
On July 15, 2011, in resolution MEPC.203(62), the International
Maritime Organization's (IMO's) Marine Environment Protection Committee
(MEPC) adopted amendments to MARPOL Annex VI. Those amendments, which
were accepted July 1, 2012, and come into force January 1, 2013,
contain energy efficiency provisions for new and existing ships. These
amended regulations call for the issuance of an International Energy
Efficiency (IEE) Certificate to document a ship's compliance with Annex
VI's new Chapter 4, Regulations on Energy Efficiency for Ships. See
amended Annex VI Regulations 5.4 and 6.4. Since the mid-1990s, under
authority of 46 U.S.C. 3103, 3306, 3316, and 3703, and regulations in
46 CFR part 8--Vessel Inspection Alternatives, the Coast Guard has
authorized recognized classification societies to issue international
certificates to vessels. The Coast Guard regularly adds to the list of
international certificates that classification societies may apply to
issue to vessels on the Coast Guard's behalf. This list is located in
46 CFR 8.320(b). Recent additions to the list include the MARPOL 73/78
International Air Pollution Prevention Certificate and the
International Anti-Fouling System Certificate. See, respectively, 74 FR
21554, May 8, 2009; and 76 FR 76896, December 9, 2011. The United
States currently recognizes seven classification societies for purposes
of issuing international certificates: The American Bureau of Shipping
(ABS, United States); Det Norske Veritas (DNV, Norway); Lloyd's
Register (LR, Great Britain); Germanischer Lloyd (GL, Germany); Bureau
Veritas (BV, France); RINA S.p.A. (RINA, Italy), and ClassNK (NKK,
Japan).
Recognized classification societies assist the Coast Guard and help
to ensure that U.S.-flagged ships that qualify for an international
certificate are able to obtain it promptly. As we stated in 1996, to
avoid a duplication of effort between the Coast Guard and
classification societies that results in extra costs to U.S. vessel
owners, it is more efficient to take full advantage of inspections done
by classification societies:
* * * Insurance companies require that, before a vessel is
insured, it be classed. This means that a classification society
must survey a vessel for compliance with its class rules. Class
rules are rules developed by the particular classification society
to cover design, construction and safety of vessels. To ensure
compliance with these class rules and with international standards,
classification societies perform surveys on vessels using qualified
marine surveyors. Many of the items examined by the classification
society surveyors are the same as those examined by Coast Guard
marine inspectors in their inspections for certification.
61 FR 68510-11, December 27, 1996.
Starting January 2013, U.S.-flagged ships that are 400 gross
tonnage or more as measured under 46 U.S.C. 14302, Convention
Measurement System, (hereafter 400 GT ITC or more) may be subject to
detention or delay in foreign ports if they do not have an IEE
certificate to document compliance with Annex VI. See amended Annex VI
Regulation 19.
Section 8.320 of 46 CFR allows the Coast Guard to delegate issuance
of an international convention certificate to a
[[Page 73336]]
recognized classification society only if the certificate is listed in
Sec. 8.320(b). The IEE Certificate is not currently listed in Sec.
8.320(b).
V. Discussion of Comments and Changes
As noted, we published an NPRM on October 2, 2012 (77 FR 60096). We
received one written submission containing three comments. See docket
USCG-2012-0861.
First, the commenter recommended that the Coast Guard consult with
the National Marine Fisheries Service (NMFS) within the Department of
Commerce regarding this rulemaking, as we did with the EPA. She wrote
that NMFS's expertise is valuable in determining whether adding the IEE
Certificate is worth the additional administrative costs it will cause.
In response to the first comment, the Coast Guard did contact NMFS and
advised them of our rulemaking and this comment. The NMFS had no
comments.
Second, regarding the comment on the administrative cost of adding
the International Energy Efficiency (IEE) Certificate, we note that
APPS requires compliance with Annex VI, which now includes a new
chapter, Chapter 4, with energy efficiency requirements for ships, and
the IEE Certificate documents compliance with these Chapter 4
requirements. See 33 U.S.C. 1907(a). Annex VI Regulation 6.5 directs
that the IEE ``certificate shall be issued or endorsed either by the
[United States] or any organization duly authorized by it.'' APPS
directs the Secretary of Homeland Security to designate those persons
authorized to issue MARPOL Protocol certificates on behalf of the
United States and this final rule does that. See 33 U.S.C. 1904(a).
Third, the commenter recommended that the United States consider
creating its own energy efficiency certificate that has greater
standards than the IEE Certificate, and that such a certificate could
meet the standards of the IEE Certificate, and more. The commenter
stated: ``This way other areas could require the IEE Certificate as a
minimum baseline, while [a U.S.] energy efficiency certificate would
not only meet the minimum baseline but also go beyond it.'' This third
comment is beyond the scope of this rulemaking. This rulemaking is
solely intended to identify who may issue a MARPOL Annex VI IEE
certificate on behalf of the Coast Guard. We made no changes from the
proposed rule based on any of these comments.
In the NPRM, we proposed to insert a statement regarding preemption
in Sec. 8.300, of part 8, subpart C, International Convention
Certificate Issuance, and to rename that section heading ``Purpose and
Preemption.'' See 77 FR 60098, 60100, October 2, 2012. After another
review of Presidential Memorandum of May 20, 2009 titled ``Preemption''
(74 FR 24693, May 22, 2009) however, we have determined that we should
not include our proposed changes to Sec. 8.300 in this final rule. As
discussed in our preamble Federalism section, VI.E, below, States may
not regulate in an area that is preempted by Federal statute. APPS is
the source of preemption regarding the issuance of MARPOL certificates,
not this regulatory action. Therefore, our only change to the CFR in
this final rule is to add the IEE certificate to Sec. 8.320.
VI. Regulatory Analyses
We developed this final rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on these statutes or executive orders.
A. Regulatory Planning and Review
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. This final rule has not been designated a
``significant regulatory action'' under section 3(f) of Executive Order
12866. Accordingly, this final rule has not been reviewed by the Office
of Management and Budget. A final regulatory assessment follows:
Under the authority of 33 U.S.C. 1903, 1904, and 46 U.S.C. 3103,
3306, 3316, and 3703, the Coast Guard is amending 46 CFR 8.320, to
enable the Coast Guard to delegate the activity of issuing IEE
Certificates to a recognized classification society that would act on
behalf of the Coast Guard. The intent of this rule is to allow for the
delegation of IEE Certification to recognized class societies and thus
create options for industry in obtaining these certificates. This rule
does not impose mandatory actions on the U.S. maritime industry.
Although requesting the delegation of authority to conduct IEE
surveys, inspections, and certifications is voluntary, classification
societies may incur minor costs associated with this process. The Coast
Guard may incur costs associated with the evaluation of these requests
and the issuance of delegations of authority to recognized
classification societies.
The Coast Guard estimates that this rule would potentially affect
seven classification societies that may request a delegation of
authority to issue IEE Certificates. The Coast Guard used an Office of
Management and Budget (OMB)-approved collection of information (1625-
0041) to estimate the costs and burden.
The Coast Guard estimates that it will take classification society
employees 5.25 hours to review the rulemaking requirements and prepare
the delegation request, at an average one-time cost of $428.75 per
classification society (3.5 hours at $112 per hour \1\ for a director
and 1.75 hours at $21 per hour for an administrative assistant). The
total one-time cost for all seven classification societies is estimated
to be $3,000 (rounded).
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\1\ All hourly wages shown are ``fully loaded'' wages. Fully
loaded wages include the costs of employer paid benefits such as
health insurance.
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In addition, the Coast Guard estimates that it will incur a one-
time cost to review and approve the requests for delegation. Based on
the OMB-approved collections of information discussed above, the Coast
Guard estimates that it will take about 5 hours to review, approve, and
issue an order to delegate authority, at an average cost of $360 per
event (3.5 hours for reviewing/approving and 1.5 hours for issuing at
$72 per hour for a lieutenant (O-3)). The Coast Guard estimates a total
one-time Government cost of $2,500 (rounded) based on OMB-approved
collection of information estimates.
The Coast Guard estimates the total one-time cost of this rule for
classification societies and the Government combined to be
approximately $5,500 (non-discounted) for classification societies and
the Government combined.
This rule may result in several benefits to the U.S. maritime
industry. First, it may result in a reduction of potential wait time
for IEE certificates. In the absence of delegation of authority to
classification societies, vessel owners and operators may experience
delays while the Coast Guard processes and issues IEE Certificates. The
Coast Guard also might have to redirect resources that could be used
for other missions, resulting in a less efficient use of Government
resources. Finally, this rule may mitigate potential consequences to
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U.S.-flagged vessels due to non-compliance with the Convention,
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.
Affected classification societies are classified under one of the
following North American Industry Classification System codes for water
transportation: 488330--Navigational Services to Shipping, 488390--
Other Support Activities for Water Transportation, or 541611--
Administrative Management and General Management Consulting Services.
The only predominate U.S. classification society is the American
Bureau of Shipping (ABS). ABS is a privately owned non-profit
organization that is dominant in its field (Source: 2011 Hoovers,
http://www.hoovers.com/company/American Bureau of Shipping Inc/rfsksji-
1.html). Based on publicly available information, ABS has more than
3,000 employees and annual revenues of more than $800 million.\2\ We do
not consider ABS to be a small entity using the Small Business Act
definitions of a small entity.
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\2\ Source: 2011 Bloomberg, http://investing.businessweek.com/research/stocks/private/person.asp?personId=28915205&privcapId=4217113&previousCapId=764755&previous Title=ABS%20Group%20of%20Companies,%20Inc.
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The Coast Guard expects that this rule will not have a significant
economic impact on a substantial number of small entities. As described
in section VI.A. of this preamble, ``Regulatory Planning and Review,''
the anticipated cost of this proposed rule, per class society, would be
less than $500. This rule is not mandatory, and classification
societies, regardless of size, would choose to participate only if the
benefits are greater than the costs.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) 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 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 this rule
would 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 or email
Wayne.M.Lundy@uscg.mil. 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) because the Coast
Guard expects that the number of applications would be fewer than 10 in
any given year.
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have
determined that it does not have implications for federalism.
As noted above, APPS implements the MARPOL Protocol. APPS also
directs the Secretary to ``designate those persons authorized to issue
on behalf of the United States the certificates required by the MARPOL
Protocol.'' See 33 U.S.C. 1904. By enacting this specific provision, it
was the intent of Congress to give the Coast Guard, as delegated by the
Secretary, the exclusive authority to regulate within this field.
A State may not regulate in an area such as this one which is field
preempted by Federal statute. Because the exclusive authority to issue
certificates under APPS was given to the DHS Secretary by law, and
further delegated to the Coast Guard, this rule does not substantially
affect the States, the relationship between the national government and
the States, or the distribution of power and responsibilities among the
various levels of government. Therefore, we have determined that this
rule does not have implications for federalism because the States are
preempted from issuing certificates evincing compliance with APPS.
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 (adjusted for
inflation) or more in any one year. Though this rule would not result
in such expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
G. Taking of Private Property
This rule will not cause 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 a risk to safety that might
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
Tribal governments, on the relationship between the Federal Government
and Tribal governments, or on the distribution of power and
responsibilities between the Federal Government and Tribal governments.
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, supplemented by
Executive Order 13563, and is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The Administrator
of the Office of
[[Page 73338]]
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 OMB, 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 that do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded under section 2.B.2, figure 2-1,
paragraphs (34)(b) and (d), of the Instruction, and 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). This rule involves the delegation of
authority, the inspection and documentation of vessels, and
congressionally-mandated regulations designed to improve or protect the
environment. An environmental analysis checklist and a categorical
exclusion determination are available in the docket where indicated
under ADDRESSES.
List of Subjects in 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
0
1. The authority citation for part 8 is revised to read as follows:
Authority: 33 U.S.C. 1903, 1904, 3803 and 3821; 46 U.S.C. 3103,
3306, 3316, and 3703; Department of Homeland Security Delegation No.
0170.1 and Aug. 8, 2011 Delegation of Authority, Anti-Fouling
Systems.
0
2. Amend Sec. 8.320 as follows:
0
a. In paragraph (b)(12), remove the word ``and'';
0
b. In paragraph (b)(13), remove the period at the end of the sentence
and add, in its place, the text ``; and''; and
0
c. Add paragraph (b)(14) to read as follows:
Sec. 8.320 Classification society authorization to issue
international certificates.
* * * * *
(b) * * *
(14) MARPOL 73/78 International Energy Efficiency Certificate.
* * * * *
Dated: December 5, 2012.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2012-29749 Filed 12-7-12; 8:45 am]
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