[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Rules and Regulations]
[Pages 32864-32871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-13173]



[[Page 32864]]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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