IV. Discussion of Comments and Changes

In response to our request for comments on the three paragraphs33 CFR 155.350(a)(3), 155.360(a)(2), and 155.370(a)(4)in the interim rule, we received five comments from three commenters. One comment was submitted jointly by two commenters who generally agree with the interim rule, but suggest that the Coast Guard adopt a pollution standard stricter than the 15 ppm set forth in MARPOL Annex I. While the Coast Guard appreciates the support for the interim rule, the commenters' suggestion to adopt a maximum oil discharge limit lower than 15 ppm is outside the jurisdiction of the Coast Guard.

The four remaining comments came from a manufacturer, and one of his comments specifically addressed 33 CFR 155.350(a)(3), one of the three delayedeffective date paragraphs on which we sought public comment in the interim rule. The three other comments sought clarification to other aspects of the interim rule. The Coast Guard provided the below responses to these four comments in direct communications to the manufacturer, unless noted otherwise. A summary and the substance of those communications are available in the docket where indicated under ADDRESSES.

Regarding 33 CFR 155.350(a)(3), the commenter asked for clarification on when ship owners would have to comply with the requirement set forth in paragraph (a)(3), which will become effective on October 13, 2009. The commenter noted that it appears this paragraph requires all equipment installed after 2004 to be supplied or upgraded to satisfy these new international standards in MEPC.107(49), and asked if this needs to be accomplished by October 13. The Coast Guard's initial response in a direct communication to the manufacturer, which is included in the docket, deferred addressing this comment until the close of the comment period.

The Coast Guard recognizes that it may not be feasible for ship owners to comply with the requirements in Sec. 155.350(a)(3) by October 13, and in response to this comment, we are adding an implementation period to allow ship owners to budget and plan for the work required to comply. Under revised paragraph (a)(3), a vessel owner must install equipment meeting the new requirements in MEPC.107(49) by one of two dates, as set forth in new paragraphs (a)(3)(i) and (a)(3)(ii): either the date of the vessel's first drydock following October 13, 2009, or for those vessels going into international service for the first time since January 2005, the date of its first survey prior to receiving its International Oil Pollution Prevention (IOPP) certificate. The Coast Guard is making the same change to paragraphs 155.360(a)(2) and 155.370(a)(4).

The manufacturer's second comment requested clarification on the interim rule's affect on his backlog of equipment that complies with the older international standard, MEPC.60(33), and is ordered but not yet installed. The commenter noted that the interim rule may preclude the installation of any MEPC.60(33) equipment after March 17, 2009.

The Coast Guard's response to this comment is that equipment that has not been physically installed must comply with the current regulations, i.e., the MEPC.107(49) standard.

The commenter's third comment asked for clarification of whether, under the interim rule, bilge alarms replaced after March 17, 2009, on separators installed prior to January 1, 2005, must be replaced with bilge alarms complying with the revised 46 CFR 162.050 specifications. The Coast Guard notes this comment concerns what is meant by the term ``good working order.''

After March 17, 2009, if a bilge alarm approved to MEPC.60(33) needs to be replaced, then it may be replaced by a bilge alarm approved to MEPC.60(33), but only for separators approved to MEPC.60(33) that were installed on the ship prior to January 1, 2005. This is allowed in recognition of the need for compatibility between the separator and bilge alarm, as well the relative ease to replace a bilge alarm. Separators approved to MEPC.60(33) that were installed on the ship prior to January 1, 2005, may continue to be used as long as they are maintained in good working order, which includes basic or routine maintenance and repair of such separators as well as replacement of components and consumables. If, however, a separator approved to MEPC.60(33) needs to be replaced, regardless of when it was installed on the ship, then it must be replaced with a separator approved to MEPC.107(49). In this case, the separator approved to MEPC.107(49) must also have a bilge alarm approved to MEPC.107(49).

Finally, the commenter's fourth comment sought confirmation that the definition of the term ``expired'' as used in the preamble to the interim rule (74 FR 3375) has the same meaning as ``expired'' on the United States Coast Guard Maritime Information Exchange Web site, Approved Equipment
[[Page 52416]]
Definitions. http://cgmix.uscg.mil/Equipment/Definitions.aspx.\2\ \2\ ``EXPIREDProduct's approval has expired, and the approval holder has not notified us whether it should be extended or terminated. Pending resolution of its status, the product is no longer approved for production. Items manufactured prior to expiration of the approval are considered APPROVED.''

The Coast Guard response to this comment is that a bilge alarm or separator installed on a ship on or after January 1, 2005, but not having approval under MEPC.107(49), is subject to the requirements of 33 CFR 155.350, 155.360, and 155.370, (see 74 FR 3363 and 74 FR 6358), namely the requirement to be replaced by equipment approved under MEPC.107(49) unless it is determined to be unreasonable or impracticable. Bilge alarms and separators installed prior to January 1, 2005, having a Certificate of Approval issued by the Coast Guard, can remain installed on the ship as long as they are maintained in good working order. Please note: A Certificate of Approval is issued by the Coast Guard to a manufacturer usually for a period of five years. This fiveyear period primarily affects the manufacturer and not the ship. Equipment of a type approved by the Coast Guard that is manufactured during this five year period in accordance with the terms of the certificate may be installed on a ship in order to meet the applicable requirements for approved equipment. There is no requirement, however, that equipment be removed when the Certificate of Approval expires. Discussion of Final Rule

This rule finalizes the amendments set forth in the interim rule. A full discussion of the provisions of this rule may be found in the ``Discussion of Interim Rule'' section of the interim rule. 74 FR 3364, at 3375. We are making only one minor change to the interim rule in the final rule by adding implementation periods in 33 CFR 155.350(a)(3), 155.360(a)(2), and 155.370(a)(4), as discussed above.

V. Incorporation by Reference

The Director of the Federal Register has approved the material in 33 CFR 157.02 and 46 CFR 162.0504 for incorporation by reference under 5 U.S.C. 552 and 1 CFR part 51. Copies of the material are available from the sources listed in 33 CFR 157.02 and 46 CFR 162.0504. 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 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.

Public comments on the interim rule are summarized in Part IV of this preamble. The Coast Guard received no public comments, and have made no changes, that would alter our assessment of impacts in the interim rule. We have found no additional data or information that would change our findings in the interim rule. We have adopted the assessment in the interim rule as final. A summary follows.

We estimated 176 existing vessels and 46 new vessels annually will be affected by this rule and incur additional costs for installing OWS and bilge alarms.

We estimated the annual costs of the OWS and bilge alarms combined range from $9,000 to $19,000, depending on vessel type and size for both existing and new vessels: $9,000 for vessels below 400 gross tons; $13,000 for vessels 400 gross tons or more and less than 10,000 gross tons; and, $19,000 for vessels 10,000 gross tons and over.

We estimated nondiscounted annual costs for existing vessels at approximately $2.3 million and approximately $550,000 for new vessels, or about $2.9 million combined. We estimated the total 10year present value cost of the rule to be $21 million or $25 million based on a seven or three percent discount rate (all values rounded).

The benefits of this rule are improved environmental conditions from the use of PPE, which meets higher standards of pollution prevention. The new OWS equipment will better handle the separation of emulsified oils, surfactants, and contaminants from water. These pollutants will no longer be released into the environment because of these standards. See the assessments in the interim rule and the NPRM for additional details.

B. Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601612), we have considered whether this rule has a significant economic impact on a substantial number of small entities. The term ``small entities'' comprises small businesses, notforprofit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

In the interim rule, we certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities. We have found no additional data or information that would change our findings in the interim rule. We have adopted the certification in the interim rule for this final rule. See the ``Small Entity'' sections of the interim rule and the NPRM for additional details.

Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that this final rule does 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. 104121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Mr. Wayne Lundy, Office of Systems Engineering (CG5213), Office of Design and Engineering Standards, U.S. Coast Guard, telephone 2023721379, 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.35013520). The paperwork burden associated with the manufacture, laboratory testing, approval tests, and marking of pollution prevention equipment is addressed in the existing collection of information, OMB 16250035, entitled ``Title 46 CFR Subchapter Q: Lifesaving, Electrical and Engineering Equipment; Construction and Materials.'' The Office of Management and Budget renewed its approval of this collection of information on May 27, 2009. It will expire after the 3year approval period ends on May 31, 2012, unless renewed again.

E. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct
[[Page 52417]]
effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)

The pollution prevention equipment regulations promulgated in this rule are within the field foreclosed from regulation by the States, and therefore preemption under E.O. 13132 is not an issue.

F. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 15311538) 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 final rule uses the following consensus standards that are not voluntary standards:

They are used because the United States is party to MARPOL Annex I and we must use these standards to effectively implement MARPOL Annex I regulations. The sections that reference these standards and the locations where these standards are available are listed in 33 CFR 157.02 and 46 CFR 162.0504.

M. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 02301 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. 43214370f), 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 2.B.2, figure 21, paragraph (34)(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), from further environmental documentation. This regulation fits within these categorical exclusions because it concerns equipment approval and carriage requirements and implements regulations designed to protect the environment. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.
[[Page 52418]]
List of Subjects

33 CFR Part 155

Alaska, Hazardous substances, Oil pollution, Reporting and recordkeeping requirements.

33 CFR Part 157

Cargo vessels, Incorporation by reference, Oil pollution, Reporting and recordkeeping requirements.

46 CFR Part 162

Fire prevention, Incorporation by reference, Marine safety, Oil pollution, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 33 CFR parts 155 and 157 and 46 CFR part 162, which was published at 74 FR 3377 on January 16, 2009, as amended by the correction published at 74 FR 6358 on February 9, 2009, is adopted as a final rule with the following changes:
TITLE 33NAVIGATION AND NAVIGABLE WATERS
PART 155OIL OR HAZARDOUS MATERIAL POLLUTION PREVENTION
REGULATIONS FOR VESSELS
1. The authority citation for part 155 continues to read as follows:

Authority: 33 U.S.C. 1231, 1321(j); 46 U.S.C. 3703; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation No. 0170.1. Sections 155.100 through 155.130, 150.350 through 155.400, 155.430, 155.440, 155.470, 155.1030(j) and (k), and 155.1065(g) are also issued under 33 U.S.C. 1903(b). Section 155.490 also issued under section 4110(b) of Public Law 101 380. Sections 155.1110 through 155.1150 also issued under 33 U.S.C. 2735.

Note: Additional requirements for vessels carrying oil or hazardous materials are contained in 46 CFR parts 30 through 40, 150, 151, and 153.
2. In Sec. 155.350, revise paragraph (a)(3) to read as follows: Sec. 155.350 Oily mixture (bilge slops)/fuel oil tank ballast water discharges on oceangoing ships of less than 400 gross tons. (a) * * *
(3) For equipment installed after 2004 to be approved under paragraph (a)(2) of this section, it must meet current standards in 46 CFR part 162, subpart 162.050 by the date set forth in paragraphs (a)(3)(i) and (a)(3)(ii) of this section, unless the equipment is installed on a ship constructed before 2005 and it would be unreasonable or impracticable to meet those current standards. (i) A ship entering international service for the first time since 2004, must comply with the requirements of paragraph (a)(3) of this section by the date of its initial survey prior to receiving its International Oil Pollution Prevention (IOPP) certificate.
(ii) Any ship, other than a ship described in paragraph (a)(3)(i) of this section, must comply with the requirements of paragraph (a)(3) of this section by the date of the ship's first drydock after October 13, 2009.
* * * * *
3. In Sec. 155.360, revise paragraph (a)(2) to read as follows: Sec. 155.360 Oily mixture (bilge slops) discharges on oceangoing ships of 400 gross tons and above but less than 10,000 gross tons, excluding ships that carry ballast water in their fuel oil tanks. (a) * * *
(2) For equipment installed after 2004 to be approved under paragraph (a)(1) of this section, it must meet current standards in 46 CFR part 162, subpart 162.050 by the date set forth in paragraphs (a)(2)(i) and (a)(2)(ii) of this section, unless the equipment is installed on a ship constructed before 2005 and it would be unreasonable or impracticable to meet those current standards. (i) A ship entering international service for the first time since 2004, must comply with the requirements of paragraph (a)(2) of this section by the date of its initial survey prior to receiving its International Oil Pollution Prevention (IOPP) certificate.
(ii) Any ship, other than a ship described in paragraph (a)(2)(i) of this section, must comply with the requirements of paragraph (a)(2) of this section by the date of the ship's first drydock after October 13, 2009.
* * * * *
4. In Sec. 155.370, revise paragraph (a)(4) to read as follows: Sec. 155.370 Oily mixture (bilge slops)/fuel oil tank ballast water discharges on oceangoing ships of 10,000 gross tons and above and oceangoing ships of 400 gross tons and above that carry ballast water in their fuel oil tanks.
(a) * * *
(4) For equipment installed after 2004 to be approved under paragraph (a) of this section, it must meet current standards in 46 CFR part 162, subpart 162.050 by the date set forth in paragraphs (a)(4)(i) and (a)(4)(ii) of this section, unless the equipment is installed on a ship constructed before 2005 and it would be unreasonable or impracticable to meet those current standards.
(i) A ship entering international service for the first time since 2004, must comply with the requirements of paragraph (a)(4) of this section by the date of its initial survey prior to receiving its International Oil Pollution Prevention (IOPP) certificate.
(ii) Any ship, other than a ship described in paragraph (a)(4)(i) of this section, must comply with the requirements of paragraph (4) of this section by the date of the ship's first drydock after October 13, 2009.
* * * * *

Dated: October 7, 2009.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard. [FR Doc. E924670 Filed 10909; 8:45 am]
BILLING CODE 491015P

FOR FURTHER INFORMATION CONTACT

If you have questions on this rule, call or email Mr. Wayne Lundy, Systems Engineering Division (CG5213), Office of Design and Engineering Standards, U.S. Coast Guard, telephone 2023721379, email Wayne.M.Lundy@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 2023669826.