[Federal Register: June 14, 2004 (Volume 69, Number 113)]
[Rules and Regulations]
[Page 32864-32871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn04-14]
[[Page 32864]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 151
[USCG-2002-13147]
RIN 1625-AA51 [Formerly 2115-AG50]
Penalties for Non-Submission of Ballast Water Management Reports
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard finalizes regulations for vessels equipped
with ballast water tanks bound for ports or places within the United
States. These regulations establish penalty provisions for vessels that
fail to submit a ballast water management (BWM) report. Penalty
provisions are also established for vessels bound for the Great Lakes
or portions of the Hudson River who violate the mandatory BWM
requirements. These regulations also widen the reporting and
recordkeeping requirements. This will increase the Coast Guard's
ability to prevent the introduction of nonindigenous species as
required by the Nonindigenous Aquatic Nuisance Prevention and Control
Act and the National Invasive Species Act.
DATES: This final rule is effective August 13, 2004.
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-2001-13147 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://dms.dot.gov
.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Mr. Bivan Patnaik, Project Manager, Environmental Standards
Division, Coast Guard, telephone 202-267-1744, email:
bpatnaik@comdt.uscg.mil. If you have questions on viewing the docket,
call Ms. Andrea M. Jenkins, Program Manager, Docket Operations,
telephone 202-366-0271.
SUPPLEMENTARY INFORMATION:
Legislative and Regulatory History
The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 (NANPCA) [Pub. L. 101-646], enacted by Congress on November 29,
1990, established the Coast Guard's regulatory jurisdiction over BWM.
To fulfill the directives of NANPCA, the Coast Guard published a final
rule on April 8, 1993, entitled ``Ballast Water Management for Vessels
Entering the Great Lakes'' in the Federal Register (58 FR 18330). This
rule established mandatory BWM procedures for the Great Lakes in 33 CFR
part 151, subpart C.
A subsequent final rule entitled, ``Ballast Water Management for
Vessels Entering the Hudson River,'' was published on December 30,
1994, in the Federal Register (59 FR 67632), which amended 33 CFR part
151 to extend the BWM requirements into portions of the Hudson River.
The National Invasive Species Act (NISA) [Pub. L. 104-332] enacted
by Congress on October 26, 1996, reauthorized and amended NANPCA. NISA
reemphasized the significant role of ships' ballast water in the
introduction and spread of nonindigenous species (NIS). NISA authorized
the development of a voluntary, national BWM program and mandated the
submission of BWM reports without penalty provisions. The Coast Guard
implemented this voluntary program in the interim rule entitled,
``Implementation of the National Invasive Species Act of 1996'' on
November 17, 1999, (64 FR 26672) and finalized it on November 21, 2001
(66 FR 58381).
NISA also instructed the Secretary of the Department of
Transportation to submit a Report to Congress evaluating the
effectiveness of the voluntary BWM program. Congress anticipated that
the Secretary might determine that either compliance with the voluntary
guidelines was inadequate, or the rate of reporting was too low to
allow for a valid assessment of compliance. In either case, Congress
stipulated the development of additional regulations to make the
voluntary guidelines a mandatory BWM program. The Secretary of the
Department of Transportation's report to Congress, signed June 3, 2002,
concluded that compliance with the voluntary guidelines, found in 33
CFR part 151, subpart D, was insufficient to allow for an accurate
assessment of the voluntary BWM regime. Accordingly, the Secretary of
the Department of Transportation stated his intention to make the
voluntary BWM requirements mandatory. (A copy of this Report to
Congress can be found in the USCG 2002-13147 at http://dms.dot.gov).
On March 1, 2003, the Coast Guard became a component of the
Department of Homeland Security. As a result, the Secretary of the
Department of Homeland Security assumed all duties once bestowed on the
Secretary of the Department of Transportation with respect to this
final rule. The Secretary of the Department of Homeland Security
concurs with the Coast Guard's determination regarding the mandatory
ballast water program.
On January 6, 2003, we published a notice of proposed rulemaking
entitled, ``Penalties for Non-submission of Ballast Water Management
Reports,'' in the Federal Register (68 FR 523). We received 26 letters
commenting on the proposed rule. No public hearing was requested and
none was held.
Related Projects
The Coast Guard is currently working on three other projects
related to addressing the NIS problems in U.S. waters.
The first project proposes mandatory BWM practices for all vessels
bound for ports or places within the U.S. and for vessels entering
waters of the U.S. This proposed rulemaking would increase the Coast
Guard's ability to protect U.S. waters against the introduction of NIS
via ballast water discharges. A notice of proposed rulemaking entitled,
``Mandatory Ballast Water Management Program for U.S. Waters'' was
published on July 30, 2003 (68 FR 44691), and proposes to revise 33 CFR
part 151 to implement the requirements of NISA. Specifically, subpart D
of 33 CFR part 151 would be revised to require a mandatory BWM program
for all vessels equipped with ballast water tanks operating within, or
entering U.S. waters. The mandatory BWM requirements for vessels
entering the Great Lakes and Hudson River from outside the Exclusive
Economic Zone (EEZ) would remain unchanged.
The second project involves encouraging the installation and
testing of ballast water treatment technologies on board vessels. A
notice, entitled ``Approval for Experimental Shipboard Installations of
Ballast Water Treatment Systems'' (66 FR 282131), published on May 22,
2001, requested comments on a possible means of providing incentives
for ship owners to assist in the development and testing of ballast
water treatment technologies. The Coast Guard has established a program
through which vessel owners can apply for acceptance of experimental
ballast water treatment systems installed and tested on board their
operating vessels. This program facilitates the development of
effective ballast water treatment technology, thus creating more
options for vessels seeking alternatives to ballast water exchange. A
[[Page 32865]]
Navigation Inspection Circular detailing the Shipboard Technology
Evaluation Program (STEP) is available at http://www.stage.uscg.mil/hq/g-m/mso/step.htm
.
The third project involves establishing water quality standards for
ballast water discharged into U.S. waters. A notice entitled,
``Potential Approaches to Setting Ballast Water Treatment Standards''
(66 FR 21807), published May 1, 2001, requested comments on approaches
to setting, implementing, and enforcing ballast water standards. It was
followed by an advanced notice of proposed rulemaking (ANPRM) entitled
``Standards for Living Organisms in Ships' Ballast Water Discharged in
U.S. Waters'' (67 FR 9632), published on March 4, 2002. This ANPRM
sought comments on the development of a ballast water treatment goal
and an interim ballast water treatment standard. The comment period on
the ANPRM closed on June 3, 2002, and the Coast Guard is currently
analyzing comments. We have also begun the process of preparing a
Programmatic Environmental Impact Statement, as stated in a Notice of
Intent published in the Federal Register on September 26, 2003 (68 FR
55559).
Background and Purpose
The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 (NANPCA), as amended by the National Invasive Species Act of 1996
(NISA), directed the Coast Guard to issue regulations and guidelines to
prevent the introduction and dispersal of nonindigenous species (NIS)
to U.S. waters via ballast water discharges. In carrying out Congress'
intent of a stepped approach, the Coast Guard, as the Secretary's
delegate, is moving forward with the promulgation of regulations that
establish penalty provisions and widen the range of vessels required to
submit and keep, respectively, BWM reports and records. This rule
finalizes regulations that will--
Establish penalty provisions for vessels bound for ports
or places within the United States who fail to submit ballast water
reporting forms;
Establish penalty provisions for vessels bound for the
Great Lakes or portions of the Hudson River who violate the mandatory
BWM requirements; and
Widen the reporting and recordkeeping requirements for
vessels bound for ports or places within the United States.
Discussion of Comments
The Coast Guard received comments from 26 sources on the notice of
proposed rulemaking. We received comments from vessel owners, industry
associations, non-governmental associations, and Federal and State
agencies. Overall, we received general comments as well as comments on
specific sections of the proposed rulemaking.
General Comments
The Coast Guard received five comments that supported the penalty
provisions of non-submission of ballast water reporting forms as well
as mandatory reporting, regardless of whether or not vessels operate
outside, or within U.S. waters.
Four commenters supported the collection of data regarding volumes
and uptake/discharge locations of vessels' ballast water, but did not
support imposing penalties for the voluntary BWM program. These
comments suggested imposing penalties when the program becomes
mandatory.
The Coast Guard disagrees with this comment. Although the BWM
guidelines are voluntary, submittal of ballast water reporting forms
has been mandatory since 1999. Due to industry's low compliance rate of
submitting reporting forms, the Coast Guard is authorized by NISA to
enforce penalties to increase compliance.
One commenter suggested that the Department of Defense (DoD)
agencies and the Coast Guard should sign a Memorandum of Agreement that
will allow DoD vessels to provide summary ballast water activity
information on a periodic basis.
The Coast Guard disagrees with this comment. Ballast water
discharges from these vessels will be regulated under the Uniform
National Discharge Standards program via the Clean Water Act as
directed by NISA.
One commenter asked that this rule become applicable under the
National Aquatic Invasive Species Act (NAISA) once it is enacted.
This rule is authorized under NANPCA and NISA and will stay
authorized when NANPCA is reauthorized, and amended by NAISA or by some
other legislation.
Five commenters said that the $25,000 penalty for non-submission of
BWM reports is excessive. They said that California assesses between
$500 and $5,000 for those who intentionally fail to comply, and after 3
years, the State has had a 95 percent compliance rate.
Although, the penalty amount of $25,000 was discussed in the notice
of proposed rulemaking, the Coast Guard recently published a final rule
on December 23, 2003, entitled, ``Civil Monetary Penalties--Adjustments
for Inflation'' (68 FR 74189). Under the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended by the Debt Collection
Improvement Act of 1996, the Coast Guard is authorized to adjust
penalties for violating Federal laws set by Congress long ago whereas
the deterrent value of the penalties have weakened with time due to
inflation. As such, we have changed the monetary amount authorized by
NISA, from $25,000 to $27,500. With respect to the commenters concern
about the penalty amount, we believe there is some confusion regarding
the penalty amount. The penalty is not $27,500; rather, the penalty is
not to exceed $27,500. We have the discretion to issue a penalty of up
to $27,500, depending on the facts of each individual case.
Three commenters said the ballast water reporting form needs to be
redesigned and updated.
The Coast Guard, in conjunction with the National Ballast
Information Clearinghouse (NBIC) is currently examining the possibility
of redesigning and updating the ballast water reporting form. If the
Coast Guard determines that the form will be updated, this will be the
subject of future rulemaking project. In this regard, we have
determined that the reporting form, as currently designed, does not
allow for vessels to make multiple or consecutive voyage reports on a
single form in a way that is useful to either the Coast Guard or the
NBIC. As a result, we have deleted that option from the regulation in
section 151.2041. Our economic analysis accounted for all arrivals in
U.S. ports or places, therefore, removing this option does not affect
our cost analysis, and should not have a substantial effect on the
public.
The Coast Guard received eight comments that stated it should
coordinate its national BWM program with State programs, citing
California and the West Coast Ballast Water Working Group as a good
example. The commenters claimed that this would eliminate duplicative
reporting requirements and allow States access to Federal ballast water
reporting data.
We consider this comment to be outside the scope of this
rulemaking. When this rule is finalized, each State is authorized under
NISA to develop their own regulations if they feel that Federal
regulations are not stringent enough. Additionally, we note that States
may access Federal ballast water reporting data by utilizing NBIC,
found
[[Page 32866]]
at http://www.invasions.si.edu/NBIC/ballast.html.
One commenter supported the quick and aggressive development of
ballast water discharge standards.
We consider this comment to be outside the scope of this
rulemaking. Ballast water discharge standards will be addressed in a
separate rulemaking.
We received four comments suggesting there be a 2-year grace period
to provide coastwise vessels time for crews to learn and comply with
the mandatory ballast water reporting requirements. According to the
commenters, this would be consistent with the 2 years it took to
finalize the rule on voluntary guidelines from the interim rule (1999-
2001).
The Coast Guard disagrees with this comment. There was no ``2-year
grace period'' between the interim rule on voluntary guidelines and
when the rule was finalized. An interim rule is used when it is in the
public interest to promulgate an effective rule while keeping the
rulemaking open for further refinement. The preamble to the interim
rule clearly indicated that a rule was being issued rather than just
being proposed. It took 2 years to address comments from the public and
incorporate them into the final rule. Therefore, there will be no 2-
year grace period for this rule.
Three commenters stated that the summary table of requirements
should be consistent with the intended regulatory requirements, citing,
the table heading in the Appendix of Subpart D.
The Coast Guard agrees with this comment and will change the table
heading in the Appendix of Subpart D for consistency.
One commenter stated that in Sec. 151.2045, the phrase ``entering
waters after operating beyond the EEZ'' was replaced with the phrase,
``bound for a port or place in the U.S.,'' but that this change was not
made to the section heading.
We agree with this comment and have changed the title of this
section.
One commenter suggested changing the reporting deadline to 48 hours
after a vessel's departure from a port, citing data from California
that shows greater accuracy on reporting prior to arrivals. The
commenter noted that ballasting may change from port to port, and also
stated that any concerns regarding pre-emptive control of ballast water
operations be addressed by collecting minimal ballast operation
information at the 96 hours Notice of Arrival (NOA), with more detailed
data within 48 hours after departure.
The Coast Guard disagrees with this comment. We believe it is
advantageous for vessels to submit their ballast water reporting forms
24 hours prior to arrival, as this provides a more accurate picture of
BWM practices. Cargo operations are already accurately planned, very
few amendments need to be made to the reporting forms. In reviewing
initial ballast water reporting data, the Coast Guard found very few
amendments. Additionally, if a vessel submits a report 48 hours after
departure from a port, the Coast Guard will be unable to determine
whether or not that vessel was in compliance with ballast water
regulations at the departure port. This creates a possibility that BWM
data submitted with the NOA form would be incomplete.
The Coast Guard received one comment stating that procedures should
be established to allow for submission of reporting forms in a non-
paper form method.
The Coast Guard agrees with this comment and encourages all vessels
to submit forms electronically. Procedures are already in place for
vessel owners to email, fax, or otherwise submit forms electronically.
We recognize not all vessels have the capability to email their ballast
water reporting forms or submit electronic forms via the NBIC Web site.
Please note that the email address to send forms has changed to
nbic@ballastreport.org.
Comments Regarding Submission
Nine commenters asked the Coast Guard to allow tug and barge
operators that carry ballast water and serve domestic coastwise trade
to submit reports every 30 days, rather than 24 hours prior to arrival
at the first U.S. port. These commenters argued that monthly reporting
would ease the administrative burden on the vessel operator.
The Coast Guard disagrees with this comment. To change the
submission requirements of ballast water reports for tugs and barges
from 24 hours to 30 days would delay the accounting of BWM practices,
thus denying the Coast Guard the means of enforcing compliance of
mandatory ballast water reporting requirements.
Two commenters asked that vessels be denied entry into the Great
Lakes if they do not submit a ballast water reporting form.
The Coast Guard disagrees with this comment. Compliance for
submission of ballast water reporting forms in the Great Lakes is quite
high, and therefore, the Coast Guard does not intend to deny vessels
entry into the Great Lakes, or delay their voyages.
We received three comments asking who is responsible for submitting
ballast water reporting forms when vessels are under repair. Is it the
responsibility of the vessel owner, tugboat operator, or the dry-dock
manager?
Section 151.2045(a) states, ``The master, owner, operator, or
person in charge of a vessel * * * must keep written records.''
Therefore, the vessel owner, tugboat operator, and the dry-dock manager
should discuss and decide who will submit the ballast water reporting
forms. The responsibility is on the vessel owner to ensure that the
form is submitted.
Comments Regarding Enforcement and Verification
Two commenters wanted to know how the Coast Guard would enforce
penalties if there are several different ways to submit ballast water
reporting forms. They argued that allowing submission of reporting
forms by several methods would add to the amount of time someone would
have to spend to track down a reporting form in order to impose a
penalty. The commenters suggested the use of a single database.
Currently, vessels have several choices in submitting ballast water
reporting forms because not all vessels have the capability to submit
forms electronically. As vessels increase their access to email and the
Internet, we anticipate more forms will be sent electronically. The
Coast Guard is currently working with NBIC to streamline the submittal
of ballast water reporting forms and to have all BWM data in the NBIC
database.
One commenter stated that verification procedures should be
established so that NBIC can let vessel owners know it has received
their reports.
The Coast Guard agrees and is currently working with NBIC on a wide
range of issues to assist vessel owners in their submission of ballast
water reporting forms, including verification procedures to let vessel
owners know that NBIC has received their reports.
Comments Regarding Exemptions
We received six comments that asked the Coast Guard not to require
reporting on BWM for vessels that have tanks or voids, but are not
carrying ballast water. These commenters argued that it is capricious
for the penalty provisions not to make a distinction between vessels
with full or empty tanks.
The Coast Guard disagrees with this comment. The reporting data
gathered on whether or not vessels operating in U.S. waters are
carrying ballast water is important in understanding BWM practices. The
Coast Guard is directed
[[Page 32867]]
by NISA to have a complete picture of BWM practices for U.S. waters.
The Coast Guard received seven comments that requested inland
towing vessels and barges be exempt from ballast water reporting
requirements.
The Coast Guard disagrees with this comment. As stated previously,
the Coast Guard is required by NISA to assess the complete picture of
BWM practices for U.S. waters. Therefore, the Coast Guard requires BWM
data from inland towing vessels and barges if they are equipped with
ballast tanks or even occasionally carry ballast water onboard.
One commenter stated that reporting requirements on ballast water
should apply to all vessels without any exemptions.
NISA requires exemptions from BWM reporting requirements for
certain types of vessels. Therefore, these exemptions will remain in
place unless Congress authorizes the Coast Guard to remove them.
The Coast Guard received four comments supporting the inclusion of
coastwise vessels in the ballast water reporting requirements with
exemptions for: Unmanned vessels, vessels with No Ballast On Board
(NOBOBs), and vessels solely within one Coast Guard district.
The Coast Guard disagrees that exemptions should be provided for
unmanned vessels, NOBOBs, and vessels operating within one Coast Guard
district. The reporting data gathered on these vessels is important in
understanding BWM practices of vessels operating in U.S. waters. Some
Coast Guard districts encompass a large area; therefore, it does not
make sense to exempt them as we are attempting to stop the spread of
NIS in U.S. waters.
Two commenters suggested that NOBOBs operating within the Great
Lakes be required to submit ballast water reporting forms.
As there are large numbers of NOBOB vessels that traverse the Great
Lakes, it is important to understand their BWM practices as directed by
NISA. Therefore, the Coast Guard will require NOBOBs to submit ballast
water reporting forms, and Sec. 151.1516 has been clarified to reflect
this. NOBOBs will still be exempt from conducting BWM practices.
We received one comment asking for clarification on the reporting
exemption for crude oil tankers to ensure that the exemption does not
apply to shipments in the Great Lakes.
Section 151.2041 states that vessels must comply with the mandatory
submittal of ballast water reporting forms unless exempted in
Sec. Sec. 151.2010 or 151.2015. This exemption includes crude oil
tankers engaged in coastwise trade for BWM in U.S. waters. However,
this exemption does not apply to crude oil tankers traversing the Great
Lakes. Section 151.1502 states all vessels carrying ballast water and
operating outside the EEZ, must comply with Subpart C, ``Ballast Water
Management for Control of Nonindigenous Species in the Great Lakes and
Hudson River,'' regardless of other port calls in the U.S. or Canada
during that voyage.
Two commenters asked the Coast Guard to give consideration to
Mobile Offshore Drilling Units (MODUs) as they differ operationally
from traditional merchant shipping.
The Coast Guard believes that MODUs are already given consideration
because most of them operate within one Captain of the Port (COTP)
zone. Those MODUs that operate within one COTP zone will be exempt from
the mandatory ballast water reporting requirements. MODUs that move
from one COPT zone to another will be required to submit ballast water
reporting forms.
The Coast Guard received two comments stating that it is not clear
if Sec. 151.2010(c) intends to include offshore supply vessels (OSVs)
operating out of a single COTP zone in terms of voyages that are to and
from sites in the EEZ. The commenters also asked if COTP zones extend
to the EEZ.
Section 151.2010(c) covers all vessels, including OSVs that operate
within a single COTP zone. As stated in 33 CFR part 151 Sec. 3.01(f),
COTP zones, include and extend into the EEZ.
Two commenters suggested adding subparagraph (d) to Sec. 151.2010
to read: ``OSVs operating exclusively in the EEZ from U.S. ports that
do not take ballast water from the sea or discharge ballast water
overboard in the course of their operations''.
The Coast Guard disagrees with this comment. If an OSV operates
within one COTP zone, that vessel will be exempt. At this time, under
the direction of NISA, the Coast Guard must evaluate the BWM operations
of all vessels operating within U.S. waters. Therefore, OSVs operating
in more than one COTP zone will be required to submit ballast water
reporting forms. If, after a period of time we determine that we are
receiving data that does not benefit our evaluation, we will then
revisit the program and adjust it accordingly.
Comments on Definitions
Three commenters stated that in Sec. 151.2025, the term ``ports
and places'' needs to be clearly defined. They suggested that the term
be defined to exclude ports or places that lie outside the 12 nautical
miles territorial sea. They further stated that the preamble for the
final rule on NOA states that MODUs moving from one location to another
on the Outer Continental Shelf (OCS) are not required to submit a NOA
form. The commenters suggested MODUs should be exempt from the ballast
reporting requirements.
The Coast Guard disagrees with this comment. ``Ports and places''
are defined in Sec. 151.2025 and are defined in the exact way as in 33
CFR 160.204 of, ``Notification of Arrivals, Departures, Hazardous
Conditions, and Certain Dangerous Cargoes.'' The Coast Guard must
evaluate the BWM operations of all vessels operating within U.S.
waters. Therefore, MODUs or OSVs servicing OCS facilities, moving from
one COTP zone to another, must submit ballast water reporting forms.
If, after a period of time we determine that we are receiving data that
does not benefit our evaluation, we will then revisit the program and
adjust it accordingly.
These three commenters also stated that in Sec. 151.2025, it is
not clear why the definition of EEZ is added. They stated that the
definition of EEZ in Sec. 151.1504 is indistinguishable with the one
referenced in Sec. 151.2025.
Although the definition of the EEZ is in Sec. 151.1504 (Subpart C,
``Ballast Water Management for Control of Nonindigenous Species in the
Great Lakes and Hudson River), it was added to Sec. 151.2025 to create
a more complete set of regulations within Subpart D ``Ballast Water
Control for Nonindigenous Species in Waters of the United States.'' The
Coast Guard hopes in the future, to develop a single set of regulations
that will apply nationwide, including the Great Lakes and the Hudson
River. Duplications and redundancies would be eliminated during that
rulemaking project.
Additional Editorial Change
We have made a minor editorial change in section 151.2045, by
redesignating paragraphs (a)(8)(ii), (a)(8)(iii), and (a)(8)(iv) as
(a)(9), (a)(10), and (a)(11), respectively. This was done to clarify
the organization of this section.
Regulatory Evaluation
This rule is a ``significant regulatory action'' under section 3(f)
of Executive Order 12866, regulatory Planning and Review. The Office of
Management and Budget has reviewed it under that order. It requires an
evaluation of potential costs and benefits under section 6(a)(3) of
that Order. It is ``significant'' under the regulatory policies and
procedures of the Department of Homeland
[[Page 32868]]
Security. A summary of the Assessment follows:
This Regulatory Evaluation estimates the costs and benefits of the
rule for civil penalties and new reporting requirements for vessels
arriving from domestic ports of origin. The costs of collecting and
reporting ballast water information for vessels arriving from foreign
ports of origin have already been accounted for in previous Regulatory
Assessments and an OMB-approved collection of information (OMB 2115-
0598). Therefore, in this Regulatory Evaluation, we account only for
the costs of reporting that will be incurred by vessels arriving in
U.S. ports from other U.S. ports (i.e., domestic voyages).
We received one comment regarding the estimated number of ballast
water reports that will be submitted annually, stating that our
estimate did not appear to include arrivals from OSVs. We agree and
have amended our estimate accordingly.
According to data from the Coast Guard, the U.S. Customs Service,
and the U.S. Maritime Administration, there are approximately 70,000
arrivals in U.S. ports annually. Of these, 50,000 have a foreign port
of origin and the remaining 20,000 have a domestic port of origin.
Additionally, there are about 40,000 arrivals from OSVs that do not
currently report. Vessels arriving from foreign ports of origin are
required to report BWM practices under existing regulations. Under this
final rule, the 20,000 arrivals from domestic ports plus the 40,000
arrivals from OSVs will now be required to submit ballast water
reports.
Based on the current collection, we estimate that each ballast
water report takes 40 minutes (0.666 hours) to complete the form and
submit it to the Coast Guard. We estimate that it costs $35 per hour
for the labor to complete and submit each form. If there are 60,000
arrivals from domestic ports annually, this means the annual cost of
the final rule is $1.4 million ($35 x 0.666 hours x 60,000 ballast
water reports).
The benefit of the rule is an increase in the amount and quality of
BWM information provided to the Coast Guard. This will allow the Coast
Guard to more accurately analyze and assess the BWM practices and
delivery patterns of vessels navigating in U.S. waters and take
appropriate programmatic action.
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.
We do not expect that a substantial number of small businesses will
be significantly affected by this rule. The final rule implementing
NISA, published in November of 2001 (66 FR 58381), was able to certify
that a significant number of small entities were not substantially
affected by that rule. We do not expect that this will change by
increasing the number of vessels subject to the reporting requirements,
to cover all vessels equipped with ballast water tanks that are bound
for ports or places within the United States, because the cost per
ballast water report is only $23 (40 minutes x $35/hour).
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.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), 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.
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).
Collection of Information
This rule modifies an existing collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
As required by 44 U.S.C. 3507(d), we submitted a copy of the
proposed rule to the Office of Management and Budget (OMB) for its
review of the collection of information. OMB approved the change to the
collection on September 9, 2003. OMB Control Number 1625-0069, expiring
on September 30, 2006.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
Federalism
We have analyzed this rule under Executive Order 13132. The
National Aquatic Nuisance Prevention and Control Act contains a
``savings provision'' that saves to the States their authority to
``adopt or enforce control measures for aquatic nuisance species, [and
nothing in the Act will] diminish or affect the jurisdiction of any
States over species of fish and wildlife.'' It also requires that ``all
actions taken by Federal agencies in implementing the provisions of
[the Act] be consistent with all applicable Federal, State and local
environmental laws.'' Thus, the congressional mandate is clearly for a
Federal-State cooperative regime in combating the introduction of NIS
into U.S. waters from ship's ballast tanks. This makes it unlikely that
preemption, which would necessitate consultation with the States under
Executive Order 13132, will occur.
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 in any
one year. Though this rule will not result in such expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
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.
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 will not create an
environmental risk to health or risk to safety that might
disproportionately affect children.
[[Page 32869]]
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it will 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.
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 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.
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
which guides 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 rule is categorically excluded under paragraph
6(b) of the Appendix to ``National Environmental Policy Act: Coast
Guard Procedures for Categorical Exclusions, Notice of Final Agency
Policy'' (67 FR 48244, July 23,2002) from further environmental
documentation. This rule falls under congressionally mandated
regulations. Analyses of these types of regulations and their
respective environmental reviews have determined these actions do not
normally have significant effects either individually or cumulatively
on the human environment. A final ``Environmental Analysis Check List''
and a final ``Categorical Exclusion Determination'' is available in the
docket where indicated under ADDRESSES.
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
Subpart C--Ballast Water Management for Control of Nonindigenous
Species in the Great Lakes and Hudson River
0
1. Revise the authority citation for part 151 subpart C continues to
read as follows:
Authority: 16 U.S.C. 4711; Department of Homeland Security
Delegation No. 0170.1.
Sec. 151.1516 [Amended]
0
2. In Sec. 151.1516(a), remove the phrase ``subject to this subpart''
and add, in its place, the phrase ``equipped with ballast tanks''.
0
3. Add Sec. 151.1518 to read as follows:
Sec. 151.1518 Penalties for failure to conduct ballast water
management.
(a) A person who violates this subpart is liable for a civil
penalty in an amount not to exceed $27,500. Each day of a continuing
violation constitutes a separate violation. A vessel operated in
violation of the regulations is liable in rem for any civil penalty
assessed under this subpart for that violation.
(b) A person who knowingly violates the regulations of this subpart
is guilty of a class C felony.
Subpart D--Ballast Water Management for Control of Nonindigenous
Species in Waters of the United States.
0
4. Revise the authority citation for part 151 subpart C continues to
read as follows:
Authority: 16 U.S.C. 4711; Department of Homeland Security
Delegation No. 0170.1.
0
5. Revise Sec. 151.2005 to read as follows:
Sec. 151.2005 To which vessels does this subpart apply?
Unless exempted in Sec. 151.2010 or Sec. 151.2015, this subpart
applies to all vessels, U.S. and foreign, equipped with ballast tanks,
that operate in the waters of the United States and are bound for ports
or places in the United States.
0
6. Add Sec. 151.2007 to read as follows:
Sec. 151.2007 What are the penalties for violations of the mandatory
provisions of this subpart?
(a) A person who violates this subpart is liable for a civil
penalty not to exceed $ 27,500. Each day of a continuing violation
constitutes a separate violation. A vessel operated in violation of the
regulations is liable in rem for any civil penalty assessed under this
subpart for that violation.
(b) A person who knowingly violates the regulations of this subpart
is guilty of a class C felony.
0
7. In Sec. 151.2010:
0
a. In the introductory text, remove the word ``Four'' and add, in its
place, the word ``Three'';
0
b. Remove paragraphs (b) and (d);
0
c. Redesignate paragraph (c) as paragraph (b); and
0
d. Add new paragraph (c) to read as follows:
Sec. 151.2010 Which vessels are exempt from the mandatory
requirements?
* * * * *
(c) A vessel that operates exclusively within one Captain of the
Port (COTP) Zone.
Sec. 151.2015 [Amended]
0
8. In Sec. 151.2015 remove the text ``151.2040'', and add in its
place, the text ``151.2041''.
Sec. 151.2025 [Amended]
0
9. In Sec. 151.2025(b), in the definition for ``Exchange,''
redesignate paragraph (a) as (1); revise the definitions of ``Captain
of the Port (COTP)'' and ``Voyage''; and add, in alphabetical order,
the definitions for ``Exclusive Economic Zone (EEZ)'', ``Port or place
of departure'' and ``Port or place of destination'' to read as follows:
Sec. 151.2025 What definitions apply to this subpart?
* * * * *
(b) * * *
Captain of the Port (COTP) means the Coast Guard officer designated
as the COTP, or a person designated by that officer, for the COTP zone
covering the U.S. port of destination. These COTP zones are listed in
33 CFR part 3.
* * * * *
Exclusive Economic Zone (EEZ) means the area established by
Presidential Proclamation Number 5030, dated March 10, 1983 (48 FR
10605, 3 CFR, 1983 Comp., p. 22) which extends from the base line of
the territorial sea of the United States seaward 200 miles, and the
equivalent zone of Canada.
* * * * *
Port or place of departure means any port or place in which a
vessel is anchored or moored.
Port or place of destination means any port or place to which a
vessel is bound to anchor or moor.
* * * * *
Voyage means any transit by a vessel destined for any United States
port or place.
* * * * *
0
10. Revise Sec. 151.2040 and its section heading to read as follows:
[[Page 32870]]
Sec. 151.2040 What are the mandatory ballast water management
requirements for vessels equipped with ballast tanks that operate in
the waters of the United States and are bound for ports or places in
the United States?
(a) A vessel bound for the Great Lakes or Hudson River, which has
operated beyond the EEZ (which includes the equivalent zone of Canada)
during any part of its voyage regardless of intermediate ports of call
within the waters of the United States or Canada, must comply with
Sec. Sec. 151.2041 and 151.2045 of this subpart, as well as with the
provisions of subpart C of this part.
(b) A vessel engaged in the foreign export of Alaskan North Slope
Crude Oil must comply with Sec. Sec. 151.2041 and 151.2045 of this
subpart, as well as with the provisions of 15 CFR 754.2(j)(1)(iii).
Section 15 CFR 754.2(j)(1)(iii) requires a mandatory program of deep
water ballast exchange unless doing so would endanger the safety of the
vessel or crew.
(c) A vessel not covered by paragraphs (a) or (b) of this section
and is bound for ports or places in the United States must comply with
Sec. Sec. 151.2041 and 151.2045 of this subpart.
(d) This subpart does not authorize the discharge of oil or noxious
liquid substances (NLS) in a manner prohibited by United States or
international laws or regulations. Ballast water carried in any tank
containing a residue of oil, NLS, or any other pollutant must be
discharged in accordance with applicable regulations.
(e) This subpart does not affect or supercede any requirement or
prohibition pertaining to the discharge of ballast water into the
waters of the United States under the Federal Water Pollution Control
Act (33 U.S.C. 1251 to 1376).
Sec. 151.2041 [Redesignated as Sec. 151.2043]
0
11. Redesignate Sec. 151.2041 as Sec. 151.2043.
0
12. Add new Sec. 151.2041 to read as follows:
Sec. 151.2041 What are the mandatory ballast water reporting
requirements for all vessels equipped with ballast tanks bound for
ports or places in the United States?
(a) Ballast water reporting requirements exist for each vessel
bound for ports or places in the United States regardless of whether a
vessel operated outside of the EEZ (which includes the equivalent zone
of Canada), unless exempted in Sec. Sec. 151.2010 or 151.2015.
(b) The master, owner, operator, agent, or person-in-charge of a
vessel to whom this section applies must provide the information
required by Sec. 151.2045 in electronic or written form (OMB form
Control No. 1625-0069) to the Commandant, U.S. Coast Guard or the
appropriate COTP as follows:
(1) For any vessel bound for the Great Lakes from outside the EEZ
(which includes the equivalent zone of Canada).
(i) You must fax the required information at least 24 hours before
the vessel arrives in Montreal, Quebec to either the USCG COTP Buffalo,
Massena Detachment (315-769-5032), or the St. Lawrence Seaway
Development Corporation (315-764-3250); or
(ii) If you are not a U.S. or Canadian Flag vessel, you may
complete the ballast water information section of the St. Lawrence
Seaway required ``Pre-entry Information from Foreign Flagged Vessels
Form'' and submit it in accordance with the applicable Seaway Notice in
lieu of this requirement.
(2) For any vessel bound for the Hudson River north of the George
Washington Bridge entering from outside the EEZ (which includes the
equivalent zone of Canada). You must fax the information to the COTP
New York (718-354-4249) at least 24 hours before the vessel enters New
York, New York.
(3) For any vessel not addressed in paragraphs (b)(1) and (b)(2) of
this section, which is equipped with ballast water tanks and bound for
ports or places in the United States. If your voyage is less than 24
hours, you must report before departing your port or place of
departure. If your voyage exceeds 24 hours, you must report at least 24
hours before arrival at your port or place of destination. All required
information is to be sent to the National Ballast Information
Clearinghouse (NBIC) using only one of the following means:
(i) Internet at: http://invasions.si.edu/NBIC/bwform.html; (ii) E-mail to NBIC@BALLASTREPORT.ORG;
(iii) Fax to 301-261-4319; or
(iv) Mail to U.S. Coast Guard, c/o SERC (Smithsonian Environmental
Research Center), P.O. Box 28, Edgewater, MD 21037-0028.
(c) If the information submitted in accordance with this section
changes, you must submit an amended form before the vessel departs the
waters of the United States.
Sec. 151.2043 [Amended]
0
13. In newly designated Sec. 151.2043:
0
a. In the section heading, after the words ``Hudson River,'' add the
words ``after operating outside the EEZ or Canadian equivalent''; and
0
b. In paragraphs (a) and (a)(1), remove the text ``Sec.
151.2040(c)(4)'' and add, in its place, the text, ``Sec. 151.2041''.
0
14. In Sec. 151.2045:
0
a. Revise the section heading as set out below;
0
b. In paragraph (a), remove the words ``entering the waters of the
United States after operating beyond the EEZ'' and add, in their place,
the words ``bound for a port or place in the United States''; and
0
c. Remove the designation for paragraph (a)(8)(i) and redesignate
paragraphs (a)(8)(ii), (a)(8)(iii), and (a)(8)(iv) to (a)(9), (a)(10),
and (a)(11), respectively.
Sec. 151.2045 What are the mandatory recordkeeping requirements for
vessels equipped with ballast tanks that are bound for a port or place
in the United States?
0
15. In Subpart D, in Section 6 of the Appendix, revise the text
beginning with the heading ``Where to send this form'' to read as
follows:
Appendix to Subpart D of Part 151--Ballast Water Reporting Form and
Instructions for Ballast Water Reporting Form
* * * * *
Where to send this form.
------------------------------------------------------------------------
Vessels equipped with ballast water tanks bound for all ports or places
within the waters of the United States after operating outside the EEZ
(which includes the equivalent zone of Canada).
-------------------------------------------------------------------------
You must submit your report as
Bound for detailed below.
------------------------------------------------------------------------
The Great Lakes................... Fax the information at least 24
hours before the vessel arrives in
Montreal, Quebec, to the USCG COTP
Buffalo, Massena Detachment (315-
769-5032) or to the Saint Lawrence
Seaway Development Corporation (315-
764-3250).
In lieu of faxing, vessels that are
not U.S. or Canadian flagged may
complete the ballast water
information section of the St.
Lawrence Seaway ``Pre-entry
Information from Foreign Flagged
Vessel Form''.
[[Page 32871]]
Hudson River north of the George Fax the information to the COTP New
Washington Bridge. York at (718-354-4249) at least 24
hours before the vessel arrives at
New York, New York.
*Note: Vessels entering COTP New
York Zone which are not bound up
the Hudson River north of George
Washington Bridge should submit the
form in accordance with the
instructions in the following
block.
All other U.S. Ports.............. Report before departing the port or
place of departure if voyage is
less than 24 hours, or at least 24
hours before arrival at the port or
place of destination if the voyage
exceeds 24 hours; and submit the
required information to the
National Ballast Information
Clearinghouse (NBIC) by one of the
following means:
Via the Internet at http://invasions.si.edu/NBIC/bwform.html
; E-mail to NBIC@BALLASTREPORT.ORG;
Fax to 301-261-4319; or Mail the
information to U.S. Coast Guard, c/
o SERC. P.O. Box 28, Edgewater, MD
21037-0028.
------------------------------------------------------------------------
------------------------------------------------------------------------
Vessels that have not operated outside the EEZ, which are equipped with
ballast water tanks and are bound for all ports or places within the
waters of the United States.
-------------------------------------------------------------------------
You must submit your report as
Bound for detailed below:
------------------------------------------------------------------------
All U.S. ports including the Great Report before departing the port or
Lakes and Hudson River North of place of departure if voyage is
George Washington Bridge. less than 24 hours, or at least 24
hours before arrival at the port or
place of destination if the voyage
exceeds 24 hours; and submit the
required information to the
National Ballast Information
Clearinghouse (NBIC) by one of the
following means:
Via the Internet at http://invasions.si.edu/NBIC/bwform.html
; E-mail to NBIC@BALLASTREPORT.ORG;
Fax to 301-261-4319; or Mail to
U.S. Coast Guard, c/o SERC, P.O.
Box 28, Edgewater, MD 21037-0028.
------------------------------------------------------------------------
If any information changes, send an amended form before the
vessel departs the waters of the United States.
An agency may not conduct or sponsor, and a person is not
required to respond to a collection of information unless it
displays a valid OMB control number. The Coast Guard estimates that
the average burden for this report is 35 minutes. You may submit any
comments concerning the accuracy of this burden estimate or any
suggestions for reducing the burden to: Commandant (G-MSO), U.S.
Coast Guard, 2100 Second St. SW, Washington, DC 20593-0001, or
Office of Management and Budget, Paperwork Reduction Project (2115-
0598), Washington, DC 20503.
Dated: June 4, 2004.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 04-13173 Filed 6-10-04; 8:45 am]
BILLING CODE 4910-15-P