
[Federal Register Volume 76, Number 237 (Friday, December 9, 2011)]
[Rules and Regulations]
[Pages 76896-76899]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31595]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 8

[Docket No. USCG-2011-0745]
RIN 1625-AB79


International Anti-Fouling System Certificate

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending its vessel inspection regulations 
to add the International Anti-fouling System (IAFS) Certificate to the 
list of certificates a recognized classification society may issue on 
behalf of the Coast Guard. This action is being taken in response to 
recently enacted legislation implementing the International Convention 
on the Control of Harmful Anti-fouling Systems on Ships, 2001. This 
final rule will enable recognized classification societies to apply to 
the Coast Guard for authorization to issue IAFS Certificates to vessel 
owners on behalf of the Coast Guard.

DATES: This final rule is effective January 9, 2012.

ADDRESSES: Comments and material received from the public, if any, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2011-0745 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

[[Page 76897]]

Internet by going to http://www.regulations.gov, inserting USCG-2011-
0745 in the ``Keyword'' box, and then clicking ``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email CDR Ryan Allain, Environmental Standards Division, Coast 
Guard; telephone (202) 372-1430, email Ryan.D.Allain@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

    CFR Code of Federal Regulations
    DHS Department of Homeland Security
    FR Federal Register
    IAFS International Anti-fouling System
    NAICS North American Industry Classification System
    NPRM Notice of proposed rulemaking
    Sec.  Section
    U.S.C. United States Code

II. Regulatory History

    On September 1, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled ``International Anti-fouling System Certificate'' in 
the Federal Register (76 FR 54419). We did not receive any comments on 
the NPRM. No public meeting was requested and none was held.

III. Basis and Purpose

    The Coast Guard is amending 46 CFR 8.320(b) by adding the 
International Anti-fouling System (IAFS) Certificate to the current 
list of international convention certificates included in that 
paragraph. Adding the IAFS Certificate to Sec.  8.320(b) will allow the 
Coast Guard to authorize recognized classification societies to issue 
IAFS Certificates. Authorization will be based on the Coast Guard's 
review of applicable class rules and applicable classification society 
procedures. See 46 CFR 8.320(a). For successful applicants, the Coast 
Guard will then enter into a written agreement with a recognized 
classification society authorized to issue international convention 
certificates. The agreement will define the scope, terms, conditions, 
and requirements of that delegation. See 46 CFR 8.320(c).

IV. Background

    The Coast Guard Authorization Act of 2010 at Title X, Public Law 
111-281, 124 Stat. 3023, 33 U.S.C. 3801 to 3857 (Oct. 15, 2010), 
directs the Secretary of Homeland Security to administer and enforce 
the International Convention on the Control of Harmful Anti-fouling 
Systems on Ships, 2001 (Convention). The Secretary has delegated to the 
Commandant of the Coast Guard her authority under 33 U.S.C. 3803, 3805, 
3821-3823, 3842(a), 3852(a)-(e), and 3855 to implement, administer, and 
enforce the Convention. Section 1021 of Title X (33 U.S.C. 3821) and 
Regulation 2 of Annex 4 of the Convention call for U.S. Government 
officials, or an organization identified by the United States, to issue 
IAFS Certificates to ships whose anti-fouling systems fully comply with 
the Convention.
    Under the Convention, an ``anti-fouling system'' is defined as a 
coating, paint, surface treatment, surface, or device that is used on a 
ship to control or prevent attachment of unwanted organisms. The 
Convention is currently focused on reducing pollution caused by 
organotin compounds used in anti-fouling systems.
    Since the mid-1990s, under authority of 46 U.S.C. 3103, 3306, 3316 
and 3703, and regulations in 46 CFR part 8, the Coast Guard has 
authorized recognized classification societies to issue international 
certificates to vessels. The United States currently recognizes six 
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), and 
RINA, S.p.A. (RINA, Italy).
    The list of international certificates the Coast Guard may 
authorize a recognized classification society to issue appears in 46 
CFR 8.320. That list currently includes 12 certificates, but does not 
include the IAFS Certificate.

V. Discussion of Comments and Changes

    We received no comments on the NPRM and we made no changes in the 
regulatory text in going from the proposed rule to this final rule.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 14 of 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 regulatory assessment follows:
    Under the authority of 46 U.S.C. 3103, 3306, 3316, and 3703, the 
Coast Guard amends 46 CFR 8.320, to enable the Coast Guard to delegate 
the activity of issuing IAFS Certificates to a recognized 
classification society which would act on behalf of the Coast Guard. 
The intent of this final rule is only to allow for the delegation of 
IAFS Certification to recognized class societies; it does not impose 
mandatory actions on the U.S. maritime industry.
    We received no comments and found no additional information or data 
that would cause us to change our regulatory assessment in the 
``Regulatory Planning and Review'' section of the NPRM. We, therefore, 
have adopted the regulatory assessment of the NPRM as final.
    This final rule initiates the process that will allow recognized 
classification societies to issue IAFS Certificates on behalf of the 
Coast Guard. Any recognized classification society that wishes to issue 
IAFS Certificates on the Coast Guard's behalf will be required to 
request a delegation of authority from the Coast Guard pursuant to the 
procedures in 46 CFR part 8. In response, the Coast Guard will evaluate 
the application, and review the applicant's applicable class rules and 
applicable classification society procedures, before deciding whether 
to

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issue a delegation of authority to the applicant.
    Although requesting the delegation of authority to conduct IAFS 
surveys, inspections, and certifications is voluntary, classification 
societies will incur minor costs associated with this process. The 
Coast Guard will also incur costs associated with the evaluation of 
these requests and the issuance of delegations of authority to 
recognized classification societies.
    The Coast Guard expects that this final rule will potentially 
affect six classification societies which may request a delegation of 
authority to issue IAFS Certificates. The Coast Guard used OMB-approved 
collections of information (1625-0101, 1625-0095, 1625-0093, and 1625-
0041) to estimate the costs and burden.
    The Coast Guard anticipates that each classification society will 
take about 5.25 hours to review the rulemaking requirements and prepare 
the delegation request. The total one-time cost for all six 
classification societies is expected to be $2,800 (rounded).
    In addition, the Coast Guard will incur a one-time cost to review 
and approve the requests for delegation from each of the classification 
societies. Based on the OMB-approved collections of information 
discussed above, the Coast Guard will take about 5 hours to review, 
approve, and issue an order to delegate authority. The Coast Guard will 
incur a total one-time cost of $2,200 (rounded) based on OMB-approved 
collection of information estimates.
    The total one-time cost of this rule is expected to be $5,000 (non-
discounted) for classification societies and the Government combined.
    This final rule will result in several benefits to the U.S. 
maritime industry. First, it will result in a reduction of potential 
wait time for IAFS Certificates. In the absence of delegation of 
authority to classification societies, vessel owners and operators 
would experience delays while the Coast Guard processes and issues IAFS 
Certificates. Combined with the Coast Guard's other activities and 
responsibilities, such a process would result in an unnecessary and 
burdensome wait for vessels. By issuing delegation of authority to 
classification societies, the Coast Guard will not have to redirect 
resources that would be used for other missions, resulting in a more 
efficient use of Government resources. Finally, this final rule will 
mitigate potential consequences to 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), the Coast 
Guard has 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 are classified under 
one of the following North American Industry Classification System 
(NAICS) 6-digit codes for water transportation: 488330--Navigation 
Services to Shipping, 488390--Other Support Activities for Water 
Transportation, or 541611--Administrative Management and General 
Management Consulting Services.
    The Coast Guard did not find any classification societies directly 
affected by this rule that are small businesses or governments with 
populations of less than 50,000. The predominant 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 an annual revenue of more than 
$800 million (Source: 2011 Bloomberg, http://investing.businessweek.com/research/stocks/private/person.asp?personId=28915205&privcapId=4217113&previousCapId=764755&previousTitle=ABS%20Group%20of%20Companies,%20Inc). We do not consider ABS 
to be a small entity under the Regulatory Flexibility Act. The other 
classification societies affected by this rule are foreign owned and 
operated.
    The Coast Guard expects that this final 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 rule, per class society, is 
less than $500. This rule is not mandatory, and classification 
societies, regardless of size, will 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), the Coast Guard wants 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 
final rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult CDR Ryan Allain, 
Environmental Standards Division, Coast Guard, telephone (202) 372-1430 
or email ryan.d.allain@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 final 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 will be less 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 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) 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).). We have evaluated this rule under 
E.O. 13132 and have determined that it is preemptive of state law or 
regulation since Congress intended the Coast Guard to regulate the 
issuance of international certificates that demonstrate compliance with 
international conventions requiring antifouling systems aboard U.S. 
flagged vessels certificated for international voyages, including 
certificates issued by recognized classification societies. Because 
States may not promulgate

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rules within this category, preemption is not an issue under Executive 
Order 13132.

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 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 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 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 13211 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

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.

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 (NEPA) (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, 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. 3803 and 3821; 46 U.S.C. 3103, 3306, 3316, 
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)(11), remove the word ``and'';
0
b. In paragraph (b)(12), remove the symbol ``.'' and add, in its place, 
the text ``; and''; and
0
c. Add paragraph (b)(13) to read as follows:


Sec.  8.320  Classification society authorization to issue 
international certificates.

* * * * *
    (b) * * *
    (13) International Anti-fouling System Certificate.
* * * * *

    Dated: December 5, 2011.
J.G. Lantz,
Director of Commercial Regulations and Standards, U.S. Coast Guard.
[FR Doc. 2011-31595 Filed 12-8-11; 8:45 am]
BILLING CODE 9110-04-P


