[Federal Register: December 15, 2009 (Volume 74, Number 239)]
[Rules and Regulations]
[Page 66238-66241]
[DOCID:fr15de09-11]

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outdated because it does not list these two special areas.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

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<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>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

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

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]

BILLING CODE 9110-04-P


[Federal Register: June 20, 2008 (Volume 73, Number 120)]
[Notices]
[Page 35180-35181]
[DOCID:fr20jn08-104]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57964; File No. SR-NASD-2006-005]

Self-Regulatory Organizations; National Association of Securities
Dealers, Inc. (n/k/a Financial Industry Regulatory Authority, Inc.);
Order Approving Proposed Rule Change and Amendment No. 1 Thereto To
Expand the Scope of NASD Rule 2440 and Interpretive Material 2440-1
Relating to Fair Prices and Commissions To Apply to All Securities
Transactions

June 13, 2008.

I. Introduction

    On January 19, 2006, the National Association of Securities
Dealers, Inc. (``NASD'') (n/k/a Financial Industry Regulatory
Authority, Inc. (``FINRA'')) filed with the Securities and Exchange
Commission (``Commission''), pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act'')\1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to expand the coverage of NASD
Rule 2440 and Interpretive Material (``IM'') 2440 relating to fair
prices and commissions, to all securities transactions that involve
members and their customers.\3\ The proposed rule change was published
for comment in the Federal Register on April 4, 2006.\4\ The Commission
received two comment letters regarding the proposal.\5\ NASD

responded to the comment letters on October 2, 2006.\6\ On May 30,
2008, FINRA filed Amendment No. 1 to the proposed rule change.\7\ This
order approves the proposed rule change, as modified by Amendment No.
1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ IM-2440-1, which was designated as IM-2440 at the time of
this filing, was proposed to be re-numbered in SR-NASD-2003-141,
which was filed before this proposal was filed and approved while
this proposal was pending. See Securities Exchange Act Release No.
55638 (April 16, 2007), 72 FR 20150 (April 23, 2007) (SR-NASD-2003-
141).
    \4\ See Securities Exchange Act Release No. 53562 (March 29,
2006), 71 FR 16849.
    \5\ See submission via SEC WebForm from Dan Mayfield, President,
Sanderlin Securities, dated April 6, 2006 (``First Commenter'');
letter from Mary C.M. Kuan, Vice President and Assistant General
Counsel, The Bond Market Association, to Nancy M. Morris, Secretary,
Commission, dated May 4, 2006 (``Second Commenter'').
    \6\ See letter from Stephanie M. Dumont, Vice President and
Associate General Counsel, NASD, to Nancy M. Morris, Secretary,
Commission, dated October 2, 2006 (``NASD letter'').
    \7\ In Amendment No. 1, FINRA clarified that the proposed rule
change will regulate the charges imposed by members on customers for
trades that are executed on an exchange, and not the execution
prices that are obtained on the exchange. Because the Amendment is
technical in nature, it is not subject to notice and comment.
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II. Description of the Proposed Rule Change

    FINRA proposes to amend NASD Rule 2440, which requires that a
member charge fair commissions and service charges, and buy or sell
securities at fair prices, in over-the-counter (``OTC'') securities
transactions with a customer. FINRA also proposes to amend IM-2440-1,
which provides further guidance on the commissions and prices that a
member may charge a customer in an OTC transaction. Specifically, FINRA
proposes to expand the scope of Rule 2440 and IM-2440-1 to include all
securities transactions involving members and their customers,
including transactions between members and their customers that are
executed on an exchange.\8\
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    \8\ The proposed amendments would only apply to transactions
between members and their customers, and not to transactions among
members.
    Rule 2440 and IM-2440-1 do not currently apply to municipal
securities or exempt securities. This would be unchanged by the
proposal.
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III. Summary of Comments

    The Commission received two comment letters in response to the
proposed rule change.\9\ One commenter, using the example of a
municipal bond that had not sold in several years, stated that the
proposed rule was problematic for the same reason that the existing
rule was problematic; specifically, that a mark-up, especially in a
highly illiquid market, may have little relation to fair pricing.\10\
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    \9\ Supra note 5.
    \10\ First Commenter at 1.
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    The main concern the other commenter raised was which self-
regulatory organization had jurisdiction over the pricing of an
exchange transaction.\11\ The commenter stated that NASD did not
explain how Rule 2440 would be applied to exchange transactions.\12\
The commenter questioned whether, under the proposal, NASD and the
exchanges would have overlapping authority over exchange
transactions,\13\ as well as whether NASD had authority under Section
15A of the Act to regulate exchange transactions.\14\ The commenter
noted that the proposal would result in increased surveillance by NASD
of exchange transactions, which NASD could use to justify increasing
its regulatory fees for broker-dealers.\15\ Finally, the commenter said
that, in the event the Commission approves the proposal, it should
require NASD to enter into Rule 17d-2 agreements with the various
exchanges to minimize regulatory duplication.\16\
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    \11\ Second Commenter at 1.
    \12\ Id. at 4.
    \13\ Id. at 3.
    \14\ Id.
    \15\ Id.
    \16\ Id. at 4.
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    In response to the comment letters, NASD said that the First
Commenter's submission was not relevant to the proposed rule change,
and that the Second Commenter only raised procedural, not substantive,
issues.\17\ According to NASD, the First Commenter's submission was not
germane to the proposed rule change, as it dealt with municipal
securities.\18\ NASD stated that Rule 2440 and IM-2440-1 do not
currently apply to municipal securities, and will not apply to
municipal securities under the proposed rule change.\19\
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    \17\ NASD letter at 1, 4.
    \18\ Id. at 1-2.
    \19\ Id. at 2.
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    In response to the Second Commenter, NASD said that its regulatory
jurisdiction is not limited to OTC trading, but encompasses members'
conduct on all markets with respect to customer transactions.\20\ As
such, the application of Rule 2440 and IM-2440-1 should not vary
according to where the order is ultimately executed.\21\ According to
NASD, the proposal will not create duplicative regulation, as it was
not aware of another SRO that had established similar rules relating to
a member's pricing of transactions with a customer.\22\ NASD stated
that a Rule 17d-2 agreement was thus inapplicable in this context.\23\
Even if another SRO maintained similar rules relating to the pricing of
customer transactions, however, NASD said that some regulatory overlap
is inevitable, given the existence of multiple SROs.\24\ NASD also
asserted that it did not intend to change its current formula for
calculating regulatory fees for members, and that the proposal would
not extend to non-members.\25\
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    \20\ Id. at 3.
    \21\ Id.
    \22\ Id.
    \23\ Id. at 4.
    \24\ Id. at 3-4.
    \25\ Id. at 4.
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IV. Discussion and Commission Findings

    The Commission has carefully reviewed the proposed rule change, the
comment letters, and NASD's response to the comment letters, and finds
that the proposed rule change is consistent with the requirements of
the Act and the rules and regulations thereunder applicable to a
national securities association \26\ and, in particular, Section
15A(b)(6) of the Act,\27\ which requires, among other things, that
FINRA rules be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, and, in
general, to protect investors and the public interest. The Commission
believes that the response to comments addressed the concerns the
commenters raised. In addition, in Amendment No. 1, FINRA stated that
the proposed rule change will apply to charges imposed by members on
customers for trades that are executed on an exchange, and not to the
execution prices that are obtained on the exchange.
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    \26\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. 15 U.S.C. 78c(f).
    \27\ 15 U.S.C. 78o-3(b)(6).
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    The proposed rule change extends broker-dealer fair pricing
obligations to all securities transactions between members and their
customers, except for those transactions involving municipal and exempt
securities. By extending the requirement to charge fair commissions and
mark-ups to customers in connection with exchange transactions, in
addition to OTC transactions, the proposed rule change should enhance
investor protection.
    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-NASD-2006-005), as modified by
Amendment No. 1 be, and it hereby is, approved.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
Florence E. Harmon,
Acting Secretary.
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    \28\ 17 CFR 200.30-3(a)(12).
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[FR Doc. E8-13945 Filed 6-19-08; 8:45 am]

BILLING CODE 8010-01-P