[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Proposed Rules]
[Pages 44528-44544]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18399]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[Docket No. USCG-2004-19621]
RIN 1625-AA89


Dry Cargo Residue Discharges in the Great Lakes

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes replacing its existing interim rule 
with a new rule to regulate the operation of U.S. and foreign vessels 
carrying bulk dry cargo such as limestone, iron ore, and coal on the 
U.S. waters of the Great Lakes, and the operation of U.S. bulk dry 
cargo vessels anywhere on the Great Lakes. Specifically, the Coast 
Guard proposes new requirements for the discharge of bulk dry cargo 
residue (DCR) on the U.S. waters of the Great Lakes. The Coast Guard 
also announces the availability of the tiered Draft Environmental 
Impact Statement (DEIS) prepared in support of this proposal. The 
proposed rule would continue to allow non-hazardous and non-toxic 
discharges of bulk DCR in limited areas of the Great Lakes. However, 
vessel owners and operators would need to minimize DCR discharges using 
methods they would be required to document in DCR management plans. The 
proposed rule would prohibit limestone and clean stone DCR discharges 
in some waters where they are now permitted. The proposed rule promotes 
the Coast Guard's strategic goals of maritime mobility and safety and 
protection of natural resources.

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before October 29, 
2012 or reach the Docket Management Facility by that date. Comments 
sent to the Office of Management and Budget (OMB) on collection of 
information must reach OMB on or before October 29, 2012.

ADDRESSES: You may submit comments identified by docket number USCG- 
2004-19621 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Collection of Information Comments: If you have comments on the 
collection of information discussed in section VII.D. of this document, 
you must also send comments to the Office of Information and Regulatory 
Affairs (OIRA), Office of Management and Budget. To ensure that your 
comments to OIRA are received on time, the preferred methods are by 
email to oira_submission@omb.eop.gov (include the docket number and 
``Attention: Desk Officer for Coast Guard, DHS'' in the subject line of 
the email) or fax at 202-395-6566. An alternate, though slower, method 
is by U.S. mail to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street NW., Washington, DC 
20503, ATTN: Desk Officer, U.S. Coast Guard.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email John C. Morris, Office of Operating and 
Environmental Standards (CG-OES-3), U.S. Coast Guard; telephone 202-
372-1433, email John.C.Morris@uscg.mil. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public meeting
II. Abbreviations
III. Basis and Purpose
IV. Background
V. Discussion of Comments on Interim Rule
VI. Discussion of Proposed Rule
VII. Regulatory Analyses
    A. Executive Order 12866 and Executive Order 13563
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2004-19621), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online or by fax, mail, or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing

[[Page 44529]]

address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2004-19621'' in the ``Keyword'' 
box. Click ``Search'' then click on the balloon shape in the 
``Actions'' column. If you submit your comments by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit 
comments by mail and would like to know that they reached the Facility, 
please enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2004-19621'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
If you do not have access to the Internet, you may view the docket 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

D. Public Meeting

    We do not plan to hold a public meeting. But you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, explain why you believe a public meeting 
would be beneficial. If we determine that one would aid this 
rulemaking, we will hold one at a time and place announced by a later 
notice in the Federal Register.

II. Abbreviations

AB Able Bodied Seaman
APPS Act to Prevent Pollution from Ships
CZMA Coastal Zone Management Act
DCR Dry Cargo Residue
DEIS Draft Environmental Impact Statement
DHS Department of Homeland Security
EIS Environmental Impact Statement
EPA Environmental Protection Agency
FEIS Final Environmental Impact Statement
FR Federal Register
ICR Information Collection Request
IR Interim Rule
MARPOL 73/78 International Convention for the Prevention of 
Pollution from Ships
NPRM Notice of Proposed Rulemaking
OIRA Office of Information and Regulatory Affairs, Office of 
Management and Budget
ROD Record of Decision
PIC Person in charge
SNPRM Supplemental Notice of Proposed Rulemaking
Sec.  Section symbol
U.S.C. United States Code
VGP Vessel General Permit

III. Basis and Purpose

    This supplemental notice of proposed rulemaking (SNPRM) proposes a 
rule to replace the interim rule (73 FR 56492, Sep. 29, 2008) now in 
effect. It also announces the availability of the tiered Draft 
Environmental Impact Statement (DEIS), which we previously announced we 
would prepare in support of this proposed rule (scoping notice, 73 FR 
79496; Dec. 29, 2008). The legal basis for this rulemaking is section 
623(b) of the Coast Guard and Maritime Transportation Act of 2004 
(``the Act,'' Pub. L. 108-293). Section 623(b) of the Act gives the 
Coast Guard the authority, ``notwithstanding any other law * * * to 
promulgate regulations governing the discharge of dry bulk cargo 
residue on the Great Lakes.''
    The purpose of this rulemaking, as a whole, is to exercise the 
authority conferred on the Coast Guard by the Act in a way that 
appropriately balances the needs of maritime commerce and environmental 
protection, by determining how, if at all, the discharge of dry cargo 
residue (DCR) can continue in the Great Lakes within a regulatory 
framework that imposes environmentally appropriate conditions on DCR 
discharges. The purpose of this SNPRM phase of the rulemaking is to 
propose a rule that would allow some DCR discharges to continue, under 
a regulatory framework that imposes additional conditions on the 
vessels from which those discharges take place.

IV. Background

    Prior to opening this rulemaking, we published a notice of inquiry 
requesting information about the then-current status of dry cargo 
operations in the Great Lakes (69 FR 77147, Dec. 27, 2004; correction, 
70 FR 1400, Jan. 5, 2005). The regulatory history for this rulemaking 
began with an announcement of our intent to prepare an Environmental 
Impact Statement (EIS) in support of the rulemaking and a request for 
public comments on the scope of the EIS (``scoping notice,'' 71 FR 
12209, March 9, 2006). On June 8, 2006, we published a notice for a 
public meeting on the scope of the EIS, and again requested public 
comments (71 FR 33312). The scoping meeting was held in Cleveland, OH, 
on July 6, 2006. Our notice of proposed rulemaking (NPRM) and notice of 
the availability of the accompanying draft environmental impact 
statement appeared on May 23, 2008 (73 FR 30014). Public meetings on 
the NPRM and DEIS were announced on June 6, 2008 (73 FR 32273) and held 
in Duluth, MN, and Cleveland, OH, on July 15 and 17, 2008, 
respectively. Availability of the final environmental impact statement 
(FEIS) was announced on August 22, 2008, by the Environmental 
Protection Agency (73 FR 49667) and by the Coast Guard (73 FR 49694), 
and the Record of Decision (ROD) adopting the findings of the FEIS was 
signed September 23, 2008. An interim rule was published September 29, 
2008 (73 FR 56492). On December 29, 2008 (73 FR 79496), we published a 
second scoping notice announcing our intent to prepare a new ``tiered'' 
(updated) EIS in support of a final rule, requested public comments, 
and announced a public scoping meeting, which was held in Chicago, IL, 
on January 28, 2009.
    There are several factors that must be taken into account when 
addressing DCR discharges in the waters of the U.S. side of the Great 
Lakes. The Lakes support a significant volume of bulk dry cargo 
shipping that remains within the Great Lakes system. The Lakes are, in 
places, very deep and wide and either adjoin Canadian waters or are 
land-locked. Therefore, vessels that remain within the Great Lake 
system--unlike their East, West, or Gulf Coast counterparts--are 
continually subject to the navigable waters laws of both the United 
States and Canada.
    The legislative conference report prepared in support of section 
623(b) of the Act expressed Congress's expectation that in regulating 
Great Lakes DCR discharges, given these special characteristics, the 
U.S. Coast

[[Page 44530]]

Guard would adopt an approach ``that appropriately balances the needs 
of maritime commerce and environmental protection.'' House Report 108-
617.
    Our interim rule amended 33 CFR 151.66, a Coast Guard regulation 
that implements the Act to Prevent Pollution from Ships (APPS) 33 
U.S.C. 1901 et seq. That regulation generally prohibits the discharge 
of DCR--an ``operational waste'' and, hence, ``garbage'' as both terms 
are defined in 33 CFR 151.05--in all U.S. navigable waters. The interim 
rule amended that prohibition with respect to the U.S. waters of the 
Great Lakes. It allows non-hazardous and non-toxic DCR discharges in 
limited areas of the Great Lakes, provided that carriers observe 
recordkeeping and reporting requirements, and it encourages carriers to 
adopt voluntary control measures for minimizing discharges. The interim 
rule applies to the owners and operators of U.S., Canadian, and other 
foreign vessels carrying bulk dry cargo on the U.S. waters of the Great 
Lakes, and also to the owners and operators of U.S. vessels carrying 
bulk dry cargo when they are on the Canadian waters of the Great Lakes. 
Non-self-propelled barges are excluded unless they are part of an 
integrated tug-and-barge unit.
    Our Record of Decision in support of the interim rule concluded 
that the interim rule's only adverse environmental impacts would be 
minor and indirect, and that an outright ban of DCR discharges could 
cause an adverse economic impact for carriers and related industries in 
the Great Lakes region. Therefore, we found that allowing DCR 
discharges in the Great Lakes, under the conditions imposed by the 
interim rule, struck ``the best balance between economic and 
environmental concerns that can be achieved, given currently available 
information.'' ROD, p. 4. The conditions the interim rule imposed on 
DCR discharges were intended to limit even minor and indirect impacts 
of DCR discharges, and to give us the regulatory tools we needed to 
monitor discharges in the future.
    We stated in the interim rule that, before taking action in this 
rulemaking, we would ``determine if, in the long term, the optimal 
balancing of commercial and environmental interests requires the 
mandatory use of DCR control measures, the adjustment of the 
geographical boundaries within which those discharges are currently 
allowed, or other regulatory changes.'' (73 FR at 56495.) We have now 
made a tentative determination of that issue and, in this SNPRM, we 
propose a rule based on that tentative determination. We request your 
comments on that determination and on the proposed rule.

V. Discussion of Comments on Interim Rule

    In response to our September 2008 interim rule and December 2008 
scoping notice, we received comments from 19 sources, including 5 State 
agencies (representing 4 States, with 1 State providing comments from 2 
separate agencies, and 1 agency submitting multiple comments), 4 
industry groups, 2 non-industry groups, 1 Indian Tribal group, and 7 
individuals.
    Three commenters expressed support for the interim rule or said DCR 
discharges should be permitted because of their low environmental 
impact and the high cost of eliminating discharges. Eight commenters 
expressed opposition to the interim rule or favored prohibiting all DCR 
discharges in the Great Lakes; one of the eight said our rule should 
move toward eliminating those discharges. These comments were 
unsupported by argument or evidence and therefore we can only 
acknowledge them.
    Three State agency commenters said the interim rule is inconsistent 
with their State laws and with their coastal zone management plans. The 
interim rule states that it does not expressly preempt State laws and 
that it expressly cautions carriers that they must comply with all 
applicable Federal and State laws regulating DCR discharges. It also 
states that the Coast Guard will work with States and carriers to make 
sure carriers are informed of any State laws that could impose more 
restrictions on DCR discharges than the Coast Guard allows. 73 FR at 
56497 col. 2.
    Two State agency commenters said that DCR discharges are harmful 
because they provide favorable substrate conditions for invasive or 
exotic species. We acknowledge this as a legitimate concern, but point 
out that our tiered DEIS continues to support our 2008 ROD's finding 
that, with the mitigating measures the interim rule provides, any such 
adverse environmental impact is only minor and indirect. Furthermore, 
except for the Western Basin of Lake Erie, our proposed rule prohibits 
the discharge of any type of DCR within 3 miles of any shoreline in the 
Great Lakes. (The existing exception for the Western Basin recognizes 
that some vessels carrying limestone or clean stone never leave that 
area, so a complete prohibition on DCR discharges on those vessels 
could pose an extreme hardship on them.) This change to the interim 
rule would eliminate the introduction of any additional DCR substrate 
to shallower near-shore waters, the preferred habitat of several 
invasive species found in freshwater.
    Two State agency commenters disagreed with our characterization of 
DCR as non-toxic and non-hazardous. Our tiered DEIS continues to 
support the interim rule's characterization of any DCR discharge it 
allows as non-toxic and non-hazardous.
    Two State agency commenters pointed out that Lake Superior is the 
subject of a ``Demonstration Lake'' agreement between several States 
and the Province of Ontario, Canada, pursuant to which the parties 
commit themselves to the elimination of pollutants in Lake Superior. 
The International Joint Commission's 1990 designation of Lake Superior 
as a ``demonstration area'' led to a Binational Program to Restore and 
Protect the Lake Superior Basin, under which a zero-discharge standard 
applies, but only to particularly toxic heavy metals and organochlorine 
compounds. The Binational Program does not apply a zero discharge 
standard to other materials, such as DCR, so long as discharges of 
those other materials do not threaten identified key near-shore and 
wetland habitats. Our environmental analysis identified such habitats, 
based on all the data supplied to us by commenters or otherwise 
available to us. Both the interim rule and the proposed rule prohibit 
discharges in those habitats and other special protection areas.
    Two State agency commenters said the interim rule is at odds with 
the EPA's Vessel General Permit (VGP) for discharges incidental to the 
normal operation of vessels. EPA requires VGP permittees to engage in 
specific behaviors or best management practices in order to minimize 
those discharges; the approach this SNPRM proposes for our rule. 
However, there is no conflict between the VGP and the interim rule, 
because the VGP specifically excludes from its coverage ``discharges of 
bulk dry cargo residues as defined at 33 CFR 151.66(b),'' citing the 
interim rule-amended version of 33 CFR 151.66. See VGP (Feb. 5, 2009), 
sec. 1.2.3.4; docket number EPA-HQ-OW-2008-0055-0717 (available at 
http://www.regulations.gov). One State agency commenter asked us to 
require specific technological and procedural measures for controlling 
DCR, pointing out for example that decks can be swept while cargo 
loading is in progress, and that shoreside facilities can stop their 
conveyor belts while a vessel repositions itself during loading 
operations. Another commenter offered information about specific 
control measures, recommended requiring the

[[Page 44531]]

use of best management practices to minimize DCR discharges, and 
recommended that we regulate shoreside facilities because vessels have 
no control over those facilities. Our proposed rule's ``broom clean'' 
requirement does not specify how to comply with that requirement, but 
one way would be to sweep the deck while loading takes place. We assume 
that the other control measures cited by these commenters would be 
among the voluntary options vessel owners and operators would consider 
in preparing the DCR management plans that we propose to require. With 
respect to shoreside facilities, we understand that vessels do not 
control those facilities, but they can voluntarily arrange with a 
facility to identify measures that the facility is willing to take to 
help the vessel comply with 33 CFR 151.66's requirements. As we 
subsequently discuss, we think that our regulatory focus needs to be on 
vessels rather than on shoreside facilities.
    One State agency commenter said that we should voluntarily extend 
the interim rule's comment period and the period for consulting with 
States within the framework of the Coastal Zone Management Act (CZMA). 
The Coast Guard routinely grants State requests for additional time to 
evaluate Coast Guard CZMA consistency determinations, and both States 
and the general public will have that additional time to consider the 
Coast Guard's proposal for regulating DCR during the public comment 
period for this SNPRM, and therefore we do not see the need for 
additional extensions of time as requested by this commenter at this 
time.
    One commenter, representing many States with coastal zone 
management plans, said that we should rely on States to provide us with 
information about developing port-based DCR control measures. As we 
subsequently discuss, we think that our regulatory focus needs to be on 
vessels, rather than on shoreside facilities. However, in proposing 
that vessels develop DCR management plans, we assume that a vessel's 
owner or operator will want to consult with shoreside facilities to 
assess what each facility can do to help the vessel comply with 
discharge minimization requirements.
    Two commenters asked us to remove the quarterly reporting 
requirement as unnecessary, while two commenters recommended 
modifications to the Coast Guard recordkeeping form. We lack sufficient 
information to remove the reporting requirement at this time, and we 
specifically seek further public comment on the costs and benefits of 
indefinitely requiring the reporting to continue. Because the 
recommended modifications came from only two of the commenters and 
would require the costly revision of a commonly used standard form that 
provides the information we need, we also decline to modify the form at 
this time.
    Another commenter, representing several associations, said that our 
reliance on the Act to regulate DCR discharges in the Great Lakes 
``notwithstanding any other law'' was misplaced in the absence of a 
stronger showing of congressional intent to override international 
treaties like the International Convention for the Prevention of 
Pollution from Ships (MARPOL 73/78), or a stronger showing of the 
irreconcilability of MARPOL 73/78 and Great Lakes DCR regulations. 
MARPOL 73/78 is not irreconcilable with our interim rule or our 
proposed rule. Our interim rule already shares MARPOL Annex V's 
requirements for recordkeeping and for avoiding near-shore discharges, 
and our proposed rule would add an Annex V-like requirement for 
maintaining and following a DCR management plan. However, MARPOL 73/78 
is inapplicable to the U.S. waters of the Great Lakes. APPS and the Act 
provide the statutory authority for 33 CFR 151.66. In the preamble to 
our interim rule, 73 FR at 56493, we extensively discussed the reasons 
why the zero-discharge approach to operational waste discharges 
(including DCR discharges) generally taken by APPS and Coast Guard 
regulations is not necessary for protecting the environment and could 
be disruptive for Great Lakes commerce. We also stated our 
interpretation that House Report 108-617, which accompanied passage of 
the Act, clearly expresses Congress's expectation that the Coast Guard 
will exercise its authority ``notwithstanding any other law'' to 
``appropriately balance[e] the needs of maritime commerce and 
environmental protection.'' We believe the approach we took in the 
interim rule, and that we now propose strengthening in this rule, meets 
that expectation by adapting the pollution-preventing spirit of APPS to 
the special characteristics of the Great Lakes cited in our interim 
rule preamble's discussion.
    The commenter representing several associations also called on the 
Coast Guard to review DCR control measures every three years. While we 
acknowledge that industry practices and technology may evolve over 
time, the Coast Guard declines to set a requirement for a three-year 
review. However, the Coast Guard will monitor that evolution and 
expects industry participants to do the same. In evaluating a vessel's 
compliance with the proposed DCR management plan requirement, the 
proposed rule would allow Coast Guard inspectors to take into account 
the extent to which the procedures described in the DCR management plan 
reflect current industry standard practices for vessels with comparable 
characteristics, cargoes, and operations. Furthermore, the Coast Guard 
is subject to statutes, executive orders, and agency policies that 
require the periodic reevaluation of existing regulations, including 33 
CFR 151.66, to make sure that regulations continue to be appropriate 
despite changes in conditions.
    Finally, the commenter representing several associations said that 
the Environmental Impact Statement (EIS) for the final rule should 
reevaluate DCR controls that affect special protected areas, and that 
we should add studies of discharge prohibitions under section 312 of 
the Clean Water Act, mandate complete discharge bans for new commercial 
operations and phased-in eliminations for existing operations, require 
mandatory discharge controls, and undertake additional studies of DCR 
toxicity. The interim rule already prohibits DCR discharges in special 
protected areas, and we have reevaluated that prohibition in the 
environmental analysis for this SNPRM. www.regulations.gov. Section 312 
of the Clean Water Act seeks to address the dumping of untreated or 
inadequately treated sewage from vessels into U.S. navigable waters; 
DCR is not considered sewage waste and therefore this aspect of the 
comment is beyond the scope of our rulemaking. Our ongoing 
environmental analysis affirms our earlier assessment that ``any toxic 
components of DCR deposits in the Great Lakes do not exist in 
concentrations known to be toxic to organisms.'' 73 FR at 56494 col. 2; 
www.regulations.gov. We do not agree with the commenter's suggestion 
that mandatory discharge controls be imposed on all operations, but we 
do propose requiring each vessel to have a DCR management plan 
describing specifically how it will minimize discharges. This approach 
would require a vessel's owner or operator to determine and to 
implement those measures that best achieve discharge minimization, 
given the vessel's characteristics, cargoes, and operations. We also 
disagree with the commenter's suggestion that DCR discharge 
prohibitions be imposed on new operations and phased in for existing 
operations. We believe our proposal for discharge minimization, in 
accordance

[[Page 44532]]

with a vessel's DCR management plan, best achieves the balance of 
commercial and environmental considerations that Congress had in mind 
when it passed the Act.
    One commenter said that the EIS for the final rule should study 
specific best management practices and technology. We agree, and our 
tiered DEIS reflects our evaluation of specific best management 
practices and technology.
    One commenter, a Canadian association, said that we should 
harmonize our regulatory treatment of DCR with Canada's. We believe 
that our interim rule and our proposed rule are in harmony with 
Canadian DCR regulations for the Great Lakes, which may be found in 
Division 5, Subdivisions 1-4 of the Statutory Orders and Regulations of 
Canada (SOR)/2007-86, ``Regulations for the Prevention of Pollution 
from Ships and for Dangerous Chemicals.'' In promulgating these 2007 
regulations, Transport Canada stated that its intent was to make 
Canadian regulations compatible with the then-current U.S. DCR 
enforcement policy. Like that policy, and like the interim rule and our 
proposed rule, the Canadian regulations prohibit the discharge of DCR 
in near-shore or special protected areas and require DCR discharge 
recordkeeping. In addition, Canadian regulations require that vessels 
carry and operate in accordance with a garbage management plan that 
covers its DCR procedures, and we are proposing a similar requirement 
with this rule.
    The Canadian association also suggested some voluntary industry 
programs that could provide information about DCR control measures. We 
agree that owners and operators might find that such programs offer 
good advice on minimizing DCR discharges.
    One commenter, representing Indian tribal interests, asked for 
consultation with the Coast Guard and asked that the EIS for the final 
rule add fish spawning grounds as a separate area of focus. Although we 
determined in the interim rule that Executive Order 13175, Consultation 
and Coordination with Indian Tribal Governments, is not applicable to 
this rulemaking because it does not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes, 73 
FR at 56496 col. 3, we have nevertheless engaged in consultation with 
this commenter. Documentation of that consultation appears in the 
docket as item USCG-2004-19621-0182. Fish spawning grounds have already 
been incorporated in our environmental analysis and DCR discharges in 
these areas are prohibited.

VI. Discussion of Proposed Rule

    The context in which we developed this proposal. We stated in the 
interim rule that, before taking action in this rulemaking, we would 
``determine if, in the long term, the optimal balancing of commercial 
and environmental interests requires the mandatory use of DCR control 
measures, the adjustment of the geographical boundaries within which 
those discharges are currently allowed, or other regulatory changes.'' 
73 FR at 56495.
    To help us achieve that long term balance, we analyzed the DCR 
discharge records reported to us in accordance with the interim rule. 
This helped us describe and quantify DCR discharges, and to determine 
what control measures were common and effective in controlling DCR 
discharges. This information is available in the appendices to the 
tiered DEIS. We also observed Great Lakes dry cargo operations 
firsthand. During the 2009 and 2010 shipping seasons, we visited 
vessels and facilities in the region, and observed cargo loading and 
unloading, and DCR discharge operations. This enabled us to gather DCR 
data using a known consistent set of metrics and a process that was 
completely independent of any used by vessel owners or operators to 
complete and submit their DCR discharge reports.
    From this analysis and observation, we drew the following 
conclusions:
    There is significant variation in the amount of DCR that vessels 
discharge; a finding that is supported by results reported by the 
regulated industry. However, most vessels appear to be minimizing the 
volume of DCR they discharge. They treat their cargo as a commodity to 
be conserved and not wasted. They deal with shoreside facilities that 
take the same practical view. These vessels and facilities use best 
practices to prevent cargo spillage in the first place, and to clean it 
up when it occurs. Most best practices are simple, intuitive, and cost 
little: For example, lining conveyor belts with fabric skirts, 
communicating with the shoreside facility to shut down loading chutes 
while moving from one hold to the next, and using brooms and shovels to 
clean up DCR and return it to the hold before the hold is sealed.
    Deck spillage is a relatively minor source of DCR, and easily 
addressed through simple measures. By far the greater source of DCR is 
from cargo hold spillage into vessel tunnels. Tunnel spillage 
predominantly occurs during cargo unloading.
    Within tunnels, large pieces of DCR that remain after unloading 
should be easy to recover while the vessel is underway, and to place on 
the conveyor belt with the rest of the cargo during the vessel's next 
unloading. Dust and small particles, however, inevitably make their way 
into the vessel's sump water. The sump must be pumped periodically, to 
preserve the vessel's trim and stability. Sump pumping can take several 
hours. If performed shoreside, this operation may delay the vessel, 
increasing its operating costs. It would be economically more rational 
to perform sump pumping only while the vessel is underway, though this 
would likely result in sump discharges being the main contributor to 
DCR discharges in the Great Lakes.
    In this SNPRM, we propose a rule that would make three general 
changes to the current interim rule. (We also propose the non-
substantive addition or amendment of two definitions, ``commercial 
vessel'' and ``mile,'' for stylistic purposes.) Our tiered DEIS 
supports all of these changes. The proposed rule would, like the 
interim rule, continue to apply to the owners and operators of U.S., 
Canadian, and other foreign vessels carrying bulk dry cargo on the U.S. 
waters of the Great Lakes, and also to the owners and operators of U.S. 
vessels carrying bulk dry cargo when they are on the Canadian waters of 
the Great Lakes. It would continue the interim rule's exclusion of non-
self-propelled barges, unless they are part of an integrated tug and 
barge unit. The three proposed changes are as follows:
    First, we would require the volume of DCR discharges to be 
minimized. Except for a new, objectively verifiable, ``broom clean'' 
standard applying to decks, discharge minimization would be achieved 
through methods of the vessel owner or operator's choice. ``Broom 
clean'' would be defined in 33 CFR 151.66(b)(2) as a condition in which 
deck residues ``consist only of dust, powder, or isolated and random 
pieces none of which exceeds 1 inch in diameter.'' ``Minimization'' 
would also be defined, as the ``reduction, to the greatest extent 
practicable, of any bulk dry cargo residue discharge from the vessel.'' 
Reinforcing the concept of minimization, we would also redefine bulk 
DCR to emphasize that DCR can exist ``regardless of particle size.''
    Second, we would require discharge minimization methods to be 
documented in a vessel-specific DCR management plan, which we would

[[Page 44533]]

define as a written plan, subject to Coast Guard inspection, meeting at 
least the minimum criteria we would describe in 33 CFR 151.66(b)(5)
    Third, limestone and clean stone DCR discharges would no longer be 
permitted within 3 miles of shore, except within a limited area of the 
Western Basin of Lake Erie.
    Minimization and the DCR management plan. The proposed rule would 
require U.S. and foreign carriers conducting bulk dry cargo operations 
on the Great Lakes to minimize the amount of cargo residue discharged 
into the Great Lakes. Except for the new broom clean standard, our 
focus would be on discharge minimization, not on minimizing DCR. Nor 
would we require vessels to eliminate DCR discharges, because we 
continue to believe, as we did when we issued the interim rule, that a 
``zero discharge'' requirement would be more costly than necessary to 
protect the environment against adverse impacts, and because the 
adverse impacts that can be associated with DCR discharges are only 
minor and indirect. Nevertheless, the elimination of DCR discharges 
remains the ideal, and we expect vessels to come as close to that ideal 
as practicable, given current industry standard practices for vessels 
of ``comparable characteristics, cargoes, and operations''--a term we 
would define in 33 CFR 151.66(b)(2) as meaning ``similar vessel design, 
size, age, crew complement, cargoes, operational routes, deck and hold 
configuration, and fixed cargo transfer equipment configuration.''
    Discharge minimization would include keeping the vessel's deck in 
broom clean condition. All vessels should be able to achieve the broom 
clean standard on deck, by sweeping spilled cargo back into holds 
before they are sealed, if not by some other method. However, as noted, 
deck DCR only accounts for a relatively small proportion of overall DCR 
discharges. For the more significant tunnel sump discharges, it is not 
possible for us to define a similar standard that could be applied to 
all vessels. We believe that the degree of minimization that will be 
practicable for those discharges will depend on the variables of a 
vessel's characteristics, cargoes, and operations, and on the 
technology or procedures used to compensate for those variables.
    Rather than mandating the use of specific procedures or 
technologies that may be ineffective or impracticable for some vessels, 
each vessel's owner or operator would select the method or methods best 
suited for minimizing that vessel's DCR discharges. We believe that the 
great majority of vessels affected by the proposed rule are already 
effectively minimizing those discharges. However, by making 
minimization a regulatory requirement, we would level the playing field 
to ensure that all affected vessels engage in responsible discharge 
minimization practices.
    The proposed requirement for each vessel to carry its own vessel-
specific DCR management plan on board, and to have that plan available 
for inspection, is central to the enforceability of a discharge 
minimization requirement.
    Coast Guard inspectors would enforce discharge minimization by 
making sure that the vessel has a DCR management plan onboard, that the 
plan is complete and addresses all required items, and that the master 
or person in charge (PIC) ensures that the vessel and its crew operate 
according to the plan. The Coast Guard could infer the vessel's failure 
to minimize discharges from evidence such as:
     A missing plan;
     A plan that fails to address obvious DCR situations on the 
vessel that raise the probability of an eventual DCR discharge, such as 
obvious DCR buildup in the vessel's tunnels;
     Discharge minimization equipment that is called for in the 
plan but not maintained or operating properly; or
     A crewmember's inability to perform a discharge-
minimization task for which the plan makes the crewmember responsible.
    To ensure that the vessel's owner and operator exercise due 
diligence in writing the management plan, we would require the plan to 
describe:
     The equipment and procedures the vessel uses to minimize 
cargo spillage during loading and unloading;
     The equipment and procedures the vessel uses to recover 
spilled cargo and place it in holds or on unloading conveyances;
     How the owner or operator ensures crew familiarity with 
management plan procedures;
     Who has onboard responsibility for the vessel's discharge 
minimization procedures;
     What arrangements, if any, the vessel has with specific 
ports or cargo terminals for unloading and disposing of the vessel's 
DCR ashore; and
     How unavoidable DCR discharges will be conducted.
    Our regulatory focus has been, and will remain, the vessels that 
carry bulk dry cargo--even though shoreside cargo loading and unloading 
facilities undoubtedly play a role in creating, or limiting the 
creation of, the shipboard DCR that is eventually discharged into the 
Great Lakes. Focusing on vessels makes sense because the Coast Guard's 
inspection infrastructure is more geared toward vessels than to 
shoreside facilities. We would expect each vessel's DCR management plan 
to describe how the vessel works with shoreside facilities to 
facilitate the vessel's compliance with the requirements of 33 CFR 
151.66.
    Another important aspect of the proposed management plan 
requirement is that the plan would need to be revised whenever there 
was a substantive change to the procedures or the equipment used to 
manage dry cargo residues on the vessel covered by the plan. Although 
regular or periodic revisions of the management plan are not required 
under this proposed rule, vessel owners would be required to maintain 
the plan in a manner that assures it accurately reflects the current 
procedures, practices, and technology employed in managing dry cargo 
residues on the vessel.
    We expect that industry standard practices for the management of 
dry cargo residue will evolve as existing dry cargo conveyance 
technologies are supplanted by those that are more efficient, 
effective, and reliable. ``Industry standard practices'' would be 
specifically defined in 33 CFR 151.66(b)(2) and would include practices 
for installation, maintenance, operation, training, and supervision 
relating to bulk dry cargo transfer and DCR control measures. A primary 
premise of this proposed rule is that a vessel owner or operator will 
employ dry cargo residue management practices that are on par with the 
current industry standard for vessels of comparable characteristics, 
cargoes, and operations. ``Comparable characteristics, cargoes, and 
operations'' would be defined in 33 CFR 151.66 (b)(2) as meaning 
``similar vessel design, size, age, crew complement, cargoes, 
operational routes, deck and hold configurations, and fixed cargo 
transfer equipment configurations''. A vessel's compliance with this 
requirement of the proposed rule would be determined in part by how 
well the vessel's DCR management practices, as outlined in its 
management plan, compare with the current industry standard practices 
employed by the majority of vessels with comparable characteristics, 
cargoes, and operations. If, for example, a vessel's plan continues to 
rely on technology or procedures that have been supplanted by more 
recent, affordable, and easily implemented industry standard practices, 
a Coast Guard inspector could consider this as evidence of failure to 
maintain the plan or failure to minimize DCR discharges.
    Limestone and clean stone. While we propose to retain the interim 
rule's

[[Page 44534]]

approach toward the discharge of DCR in general, we propose a change 
with respect to limestone and clean stone DCR discharges. For most 
substances, DCR discharges have been and would remain subject to 
several geographic limitations, including a flat prohibition on 
discharges within a certain distance from shore and in special 
protected areas. For limestone and clean stone, however, the interim 
rule continued the prior policy, which allowed DCR from limestone and 
clean stone to be discharged close to shore, except where the nearest 
shore is in a special protected area or where the discharge would have 
an ``apparent impact'' on wetlands, fish spawning areas, or potable 
water intakes. We think this standard is too subjective and that it 
could be difficult for vessel crews to determine whether or not a stone 
DCR discharge would have an apparent impact on the local environment. 
Therefore, we propose making limestone and clean stone DCR discharges 
subject to the same 3 mile restriction we impose on other DCR 
discharges. Our 2009 and 2010 field research and the EIS indicated that 
limestone and clean stone vessels already avoid DCR discharges within 3 
miles of shore because of near-shore operational hazards. Thus, those 
vessels should not incur any additional cost from the proposed 
extension of the exclusion zone. (We would preserve the existing 
exception for a limited portion of Lake Erie's Western Basin because 
some vessels carrying limestone or clean stone never leave that area, 
and if such a vessel wanted to discharge DCR it could be unusually and 
adversely affected by a complete prohibition on DCR discharges in the 
area.) Our proposed change would ensure that near-shore wetlands, fish 
spawning areas, and potable water intakes within the entire Great Lakes 
ecosystem are protected from DCR discharges, while simultaneously 
simplifying understanding and compliance with the rule for the 
regulated industry. It should also mitigate an environmental impact 
identified in the Final EIS for the interim rule; that is, possible 
changes in the physical structure of the lake bottom sediment, which 
may cause a less than 10% increase in zebra and quagga mussel 
attachment rates.

VII. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This SNPRM has not been designated a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, the SNPRM has not been reviewed by the Office of 
Management and Budget. A draft Regulatory Assessment follows:
    The Coast Guard proposes a rule that would require vessels to 
minimize their DCR discharges, to document their DCR minimization 
methods, and to observe new restrictions on limestone and clean stone 
DCR discharges.
    Table 1 compares components of the interim rule (baseline used for 
this rulemaking) and this SNPRM. It summarizes any changes in the 
component that we propose in the SNPRM.

                                          Table 1--No-Action (IR) and Preferred Alternative Comparison Summary
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                               SNPRM Provision       Change from IR to
       Provision description              IR Provision        IR Provision synopsis     SNPRM Provision            synopsis                SNPRM
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping......................  33 CFR                  Vessels must record     NA...................  .....................  Recordkeeping
                                      151.66(c)(1)(iv).       all DCR loading,                                                      requirement would
                                                              unloading and                                                         remain in place. The
                                                              sweeping on form CG-                                                  industry would not
                                                              33.                                                                   incur any change in
                                                                                                                                    cost.
Reporting/Certification............  33 CFR                  The data collected are  NA...................  .....................  Vessels will continue
                                      151.66(c)(1)(iv).       used to determine                                                     to certify and
                                                              vessel practices in                                                   submit reports on a
                                                              handling DCR, and the                                                 quarterly basis. The
                                                              amount of DCR that is                                                 industry will not
                                                              being managed by the                                                  incur any change in
                                                              vessels.                                                              cost.
Limestone & clean stone............  33 CFR 151.66(b)......  Limestone and clean     33 CFR 151.66(b)(2)..  Limestone and clean    There would be a no-
                                                              stone are exempt from                          stone DCR              cost change; our
                                                              the 3-mile near-shore                          discharges, under      research indicates
                                                              sweeping boundary.                             the proposed rule,     that vessels already
                                                              Under the IR, these                            would not be allowed   avoid DCR discharges
                                                              commodities can be                             within 3 miles of      within 3 miles of
                                                              discharged anywhere                            shore.                 shore because of
                                                              along the shoreline,                                                  near-shore
                                                              provided there is no                                                  operational hazards.
                                                              apparent impact on
                                                              environmentally
                                                              sensitive areas.
Voluntary minimization.............  33 CFR 151.66(b)......  Vessels are encouraged  NA...................  The portion of 33 CFR  There is no cost
                                                              to minimize the                                151.66(b) in the IR    associated with the
                                                              amount of DCR going                            dealing with           removal of this IR
                                                              into the water and                             voluntary              requirement. (See
                                                              the use of control                             minimization would     the management plan
                                                              measures to reduce                             be removed in the      below for details on
                                                              the amount of DCR                              SNPRM.                 mandatory
                                                              falling on the decks                                                  minimization.)
                                                              and tunnels of
                                                              vessels.

[[Page 44535]]

 
Broom clean standard...............  NA....................  ......................  33 CFR 151.66(b)(3)..  This requirement       Vessels would realize
                                                                                                             stipulates that        a new cost for this
                                                                                                             vessels must show      requirement. We
                                                                                                             that decks have been   anticipate that
                                                                                                             swept to a standard    vessels would see an
                                                                                                             that is in keeping     annual cost increase
                                                                                                             with the mandatory     ranging from $14,203
                                                                                                             minimization           to $53,263 (non-
                                                                                                             requirement of this    discounted). Foreign
                                                                                                             proposed rule.         vessels would incur
                                                                                                                                    an average annual
                                                                                                                                    cost of $28,847 (non-
                                                                                                                                    discounted). The
                                                                                                                                    benefit of this
                                                                                                                                    requirement is a
                                                                                                                                    reduction in the
                                                                                                                                    amount of discharge
                                                                                                                                    going into the
                                                                                                                                    waters of the Great
                                                                                                                                    Lakes.
Management plan....................  NA....................  ......................  33 CFR 151.66(b)(4)..  The plan must          The new requirement
                                                                                                             describe the           would have an
                                                                                                             specific measures      initial year cost of
                                                                                                             the vessel employs     $24,777 (non-
                                                                                                             to ensure the          discounted) to
                                                                                                             minimization of bulk   prepare a management
                                                                                                             dry cargo residue      plan. After the
                                                                                                             discharge.             initial year,
                                                                                                                                    existing U.S.
                                                                                                                                    vessels would not
                                                                                                                                    incur additional
                                                                                                                                    cost (within the 10-
                                                                                                                                    year period of
                                                                                                                                    analysis) from this
                                                                                                                                    new requirement.
                                                                                                                                    Foreign vessels
                                                                                                                                    would incur a first
                                                                                                                                    year cost of $17,340
                                                                                                                                    and an annual cost
                                                                                                                                    of $1,530 (all non-
                                                                                                                                    discounted) from
                                                                                                                                    this new
                                                                                                                                    requirement. This
                                                                                                                                    requirement would
                                                                                                                                    ensure that vessels
                                                                                                                                    are minimizing the
                                                                                                                                    amount of DCR going
                                                                                                                                    into the waters of
                                                                                                                                    the Great Lakes, and
                                                                                                                                    provide USCG with
                                                                                                                                    the means of
                                                                                                                                    policing DCR
                                                                                                                                    discharge.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Costs
    The proposed rule has costs associated with having vessel owners 
and operators develop and maintain a management plan that describes the 
specific measures the vessel employs to ensure the minimization of bulk 
DCR discharges in the waters of the Great Lakes. The proposed rule 
would not impose any additional capital expenditures on the U.S. bulk 
dry cargo fleet operating exclusively on the Great Lakes, since we 
believe that vessels would use equipment already available onboard 
their vessels to comply with this proposed rule (for further 
information on specific measures currently being used, see DEIS).
    We estimated the annualized costs of the SNPRM for the US fleet to 
range from $17,500 to $56,298 (with a per vessel average cost of $671), 
and the annualized costs of the SNPRM for the foreign fleet to range 
from $13,922 to $48,697 (with a per vessel average cost of $368), all 
costs are estimated using a 7 percent discount rate. The following 
table summarizes the affected population of vessels, costs and benefits 
of the proposed rule.

Table 2--Summary of Affected Population, Costs and Benefits of the SNPRM
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                           Affected Population
------------------------------------------------------------------------
US.................................  55 Vessels (14 owners).
Foreign............................  85 Vessels.
                                    ------------------------------------
    Total..........................  140 Vessels.
------------------------------------------------------------------------
                                 Costs*
------------------------------------------------------------------------
US.................................  Annualized = $17,500--$56,298.
                                     10 year = $122,916--$395,413.
Foreign............................  Annualized = $13,922--$48,697.
                                     10 year = $97,786--$342,029.
                                    ------------------------------------
    Total..........................  Annualized = $31,423--$104,995.
                                     10 year = $220,701--$737,444.
------------------------------------------------------------------------
                                Benefits
------------------------------------------------------------------------
Minimizing the amount of DCR discharged into the waters of the Great
 Lakes would improve the aquatic environment.
Promotion of environmental stewardship among owners and operators.
------------------------------------------------------------------------
* Costs are presented as ranges and estimated using a 7 percent discount
  rate.

    The proposed rule would require all vessels loading or unloading 
bulk dry cargo at ports within the U.S. waters of the Great Lakes, and 
each U.S. bulk dry cargo vessel anywhere on the Great Lakes, to have a 
management plan

[[Page 44536]]

onboard and available for Coast Guard inspection that describes the 
specific measures the vessel employs to minimize DCR discharges. 
Foreign vessels greater than 400 GT can meet the management plan 
requirement under this proposed rule because they are required to meet 
the similar waste management plan requirement in Annex V of MARPOL 73/
78. However, since Annex V of MARPOL 73/78 does not cover all of the 
requirements in 33 CFR 151.66(b)(4), foreign vessels would be required 
to address any additional management plan requirements under this 
proposed rule.
    We estimate that the proposed rule would affect 14 entities that 
currently manage the 55 U.S. dry bulk carrier vessels, and 85 foreign 
dry bulk carrier vessels (70 Canadian and 15 non-Canadian) operating 
within U.S. jurisdictional waters of the Great Lakes in any given year. 
We anticipate that the controlling entities of U.S. vessels would write 
the management plans. We assume that a management plan for a foreign 
vessel operating in the U.S. waters of the Great Lakes would be written 
by the vessel master.
    We estimate the affected population of foreign dry bulk carriers to 
be 85 vessels based on the data obtained from reporting requirements 
established by the 2009 interim rule. We originally estimated the 
foreign vessel population to be 219 vessels for 2008 NPRM and the 2009 
interim rule. Our revised estimate of the foreign vessel population is 
based on recent data on foreign vessel dry cargo operations that was 
not available for the NPRM or the interim rule publications.
    To maintain consistency with the cost methodology used in the 
interim rule, we continue to use Coast Guard reimbursable standard 
rates found in COMMANDANT INSTRUCTION 7310.1M (``COMDTINST'') to 
analyze the changes in wages for this rulemaking.\1\ We have verified 
that the wages found in the COMDTINST are comparable to the loaded 
wages found in the Bureau of Labor Statistics. Therefore, that 
comparison between the interim rule and the SNPRM is straightforward.
---------------------------------------------------------------------------

    \1\ COMMANDANT INSTRUCTION 7310.1M, ``COAST GUARD REIMBURSABLE 
STANDARD RATES'', FEB 28 2011, http://www.uscg.mil/directives/ci/7000-7999/CI_7310_1M.PDF (begins on page 3).
---------------------------------------------------------------------------

    Table 3 below shows estimated costs for developing the management 
plan required by proposed 33 CFR 151.66(b)(4) and for having onboard a 
hard copy of the plan available for inspection by the Coast Guard.

                                                Table 3--Cost of Company Development of a Management Plan
                                                                    [Non-discounted]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Labor rate    Time in      Cost per    Number of    Total initial
          33 CFR 151.66 (b)(4)                 Developer rating         (loaded)      hours         plan        plans          cost       Recurring cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
US
    Company management plan............  GS-12......................          $69           25       $1,725           14         $24,150  ..............
    Cost of copies.....................  GS-3.......................           28          .05    \a\ 11.40           55             627  ..............
Foreign
    Canadian Vessel....................  O-6........................          136      \b\ 1.5          204           70          14,280  ..............
    Non-Canadian Foreign...............  O-6........................          136      \b\ 1.5          204           15           3,060       \c\ 1,530
                                        ----------------------------------------------------------------------------------------------------------------
        Total..........................  ...........................  ...........  ...........  ...........  ...........          42,117           1,530
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values may not total due to rounding.
(a): Assumes that companies would spend $10 on supplies for each copy of the management plan. The $10 is added to the labor and time estimated to be
  $1.40 ($28 * 0.05 hrs), therefore the total cost of copies per plan is $11.40.
(b): We assume that foreign vessels greater than 400 GT would develop a modified management plan, since foreign vessels greater than 400 GT are required
  to have a waste management plan in accordance with Annex V of MARPOL 73/78. Therefore, the time required by foreign vessels greater than 400 GT to
  develop a management plan would be less than the time estimated for the U.S. fleet. Time required for foreign vessels developing a management plan was
  provided by the USCG Environmental Standards Division.
(c): The recurring cost of the management plan is only for half of the non-Canadian foreign vessels entering the Great Lakes in any given year. We
  anticipate that half the number of these vessels would return the following year, while the other half would be new visitors to the Great Lakes.

    In addition to the management plan, the proposed rule would require 
that the deck be maintained in a broom clean condition whenever a 
vessel is in transit (33 CFR 151.66(b)(4)). We assume for the purpose 
of this regulatory analysis that an Able Body Seaman (AB) would be 
tasked with maintaining the broom clean standard as required under this 
proposed rule during loading and unloading operations, to the best of 
the AB's abilities under current vessel conditions. The requirement is 
intended to ensure that vessels are active in reducing the amount of 
DCR going into the waters of the Great Lakes. We do not expect that 
vessels would need to purchase additional brooms, shovels, etc., since 
these items are standard equipment on those vessels.
    In order to determine the cost of maintaining decks in broom clean 
condition, we established that the surface area requiring broom 
cleaning would be those areas around the cargo hatches. During a site 
visit to the Great Lakes to observe vessel loading and unloading 
operations, we recorded the number of hatches for each vessel visited. 
We extrapolated the observed data to obtain an estimated number of 
total hatches for the Great Lakes bulk dry cargo fleet. We estimated 
the total number of hatches for the 55 U.S. vessels to be 1,169, while 
the total number of hatches for the 70 Canadian and 15 non-Canadian 
foreign vessels was estimated at 1,672. We estimate that 15 to 56 
percent of the hatches would be affected by the broom clean standard 
after every loading and unloading event, and that it would take an AB 
three minutes per hatch (at a wage rate of $27 per hour) to meet the 
broom clean standard. Table 4 shows the annual estimated cost to the 
U.S. fleet for maintaining the broom clean standard. The cost range for 
this requirement is $14,203 to $53,001 (non-discounted). Costs are 
based on all vessels making an average of 60 trips per year.\2\
---------------------------------------------------------------------------

    \2\ Annual vessel trip information comes from the DEIS.

[[Page 44537]]



                                                                  Table 4--U.S. Fleet Cost for Meeting the Broom Clean Standard
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Total
                                                                                                  Time req'd   number of     % of      % Vessels  Avg number   Number of  Total hrs/
              33 CFR 151.66 (b)(3)                            Crew member             Labor rate    (%/Hr)       fleet      Hatches      broom     of trips/     crew         yr.     Total cost
                                                                                                                hatches      swept       clean        yr.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Broom Clean (Low)...............................  Deckhand (AB).....................         $27        0.05       1,169          15         100          60           1         526     $14,203
Broom Clean (High)..............................  Deckhand (AB).....................          27        0.05       1,169          56         100          60           1       1,963      53,001
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values may not total due to rounding.

    The cost to Canadian and non-Canadian foreign vessels is shown in 
Tables 5(a) and (b). The combined cost of the broom clean standard for 
foreign vessels is estimated to range from $69 to $45, 247 (non-
discounted). Costs are based on Canadian vessels making an average of 
45 trips per year and non-Canadian foreign vessels averaging only one 
trip per year.

                                                              Table 5(a)--Canadian Fleet Cost for Meeting the Broom Clean Standard
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Total
                                                                                                  Time req'd   number of     % of      % Vessels  Avg number   Number of  Total hrs/
              33 CFR 151.66 (b)(3)                            Crew member             Labor rate    (%/Hr)       fleet      Hatches      broom     of trips/     crew         yr.     Total cost
                                                                                                                hatches      swept       clean        yr.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Broom Clean (Low)...............................  Deckhand (AB).....................         $27        0.05       1,330          15         100          45           1         449     $12,120
Broom Clean (High)..............................  Deckhand (AB).....................          27        0.05       1,330          56         100          45           1        1676      45,247
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values may not total due to rounding.


                                                         Table 5(b) Non-Canadian Foreign Fleet Cost for Meeting the Broom Clean Standard
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Total
                                                                                                  Time req'd   number of     % of      % Vessels  Avg number   Number of  Total hrs/
              33 CFR 151.66 (b)(3)                            Crew member             Labor rate    (%/Hr)       fleet      Hatches      broom     of trips/     crew         yr.     Total cost
                                                                                                                hatches      swept       clean        yr.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Broom Clean (Low)...............................  Deckhand (AB).....................         $27        0.05         342          15         100           1           1           3         $69
Broom Clean (High)..............................  Deckhand (AB).....................          27        0.05         342          56         100           1           1          10         259
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values may not total due to rounding.

    The cost of complying with the management plan and broom clean 
requirements for the U.S. fleet is estimated to have a first-year cost 
range of $38,982 to $77,778 (non-discounted) and recurring annual costs 
ranging from $14,203 to $53,001 (non-discounted). Table 6 shows the 
U.S. fleet cost estimate for the 10-year period of analysis.

                                                    Table 6--U.S. Vessels High and Low Cost Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        High Cost Estimate                               Low Cost Estimate
                          Year                           -----------------------------------------------------------------------------------------------
                                                           Undiscounted         3%              7%         Undiscounted         3%              7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         $77,778         $75,513         $72,690         $38,982         $37,846         $36,432
2.......................................................          53,001          49,959          46,293          14,203          13,388          12,406
3.......................................................          53,001          48,503          43,265          14,203          12,998          11,594
4.......................................................          53,001          47,091          40,434          14,203          12,619          10,836
5.......................................................          53,001          45,719          37,789          14,203          12,252          10,127
6.......................................................          53,001          44,388          35,317          14,203          11,895           9,464
7.......................................................          53,001          43,095          33,006          14,203          11,549           8,845
8.......................................................          53,001          41,839          30,847          14,203          11,212           8,266
9.......................................................          53,001          40,621          28,829          14,203          10,886           7,726
10......................................................          53,001          39,438          26,943          14,203          10,569           7,220
                                                         -----------------------------------------------------------------------------------------------
    Total Cost..........................................         554,787         476,165         395,413         166,812         145,214         122,916
                                                         -----------------------------------------------------------------------------------------------
        Annualized Cost.................................  ..............          55,821          56,298  ..............          17,024          17,500
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values may not total due to rounding.

    In addition, we estimate that foreign vessels would incur a first-
year cost that ranges from $15,249 to $59,527 (non-discounted). All 
foreign vessels would incur an annual cost due to the broom clean 
standard; however, half of the 15 non-Canadian foreign vessels entering 
the U.S. waters of the Great Lakes would be anticipated to incur an 
additional cost for developing a management plan since the same non-
Canadian foreign vessel is not expected to make the same trip every 
year. We estimate recurring cost of all foreign vessels to range from 
$13,719 to $47,035 (non-discounted). Table 7 shows the U.S. fleet cost 
estimate for the 10-year period of analysis.

[[Page 44538]]



                                                  Table 7--Foreign Vessels High and Low Cost Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        High Cost Estimate                               Low Cost Estimate
                          Year                           -----------------------------------------------------------------------------------------------
                                                           Undiscounted         3%              7%         Undiscounted         3%              7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         $59,527         $57,793         $55,632         $15,249         $14,805         $14,251
2.......................................................          47,035          44,335          41,082          13,719          12,391          11,983
3.......................................................          47,035          43,044          38,395          13,719          12,555          11,199
4.......................................................          47,035          41,790          35,883          13,719          12,189          10,466
5.......................................................          47,035          40,573          33,535          13,719          11,834           9,781
6.......................................................          47,035          39,391          31,342          13,719          11,489           9,141
7.......................................................          47,035          38,244          29,291          13,719          11,155           8,543
8.......................................................          47,035          37,130          27,375          13,719          10,830           7,985
9.......................................................          47,035          36,049          25,584          13,719          10,514           7,462
10......................................................          47,035          34,999          23,910          13,719          10,208           6,974
                                                         -----------------------------------------------------------------------------------------------
    Total Cost..........................................         482,843         413,347         342,029         138,719         118,510          97,786
                                                         -----------------------------------------------------------------------------------------------
        Annualized Cost.................................  ..............          48,457          48,697  ..............          13,893          13,922
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Values may not total due to rounding.

    The proposed rule would also prohibit all near-shore limestone and 
clean stone DCR discharges, except in the Western Basin of Lake Erie. 
Our research found that vessels carrying limestone and clean stone 
already avoid DCR discharges within 3 miles of shore because of near-
shore operational hazards. Therefore, the proposed prohibition of these 
discharges would not incur any additional cost to the fleet.
    We estimate the total annualized cost to industry (US and foreign) 
of the SNPRM to be $31,423 to $104,995 and the total discounted 10-year 
costs to industry to be $220,701 to $737,444 (values discounted at 7 
percent). We do not expect there would be additional government costs 
required to implement the changes from this SNPRM.
Benefits
    We examined the benefits of the proposed rule and concluded that 
the benefits are qualitative. The requirement of the management plan 
causes all vessel owners and operators to become more active in 
preserving the Great Lakes' aquatic environment. The proposed rule sets 
a performance standard that allows the industry to determine its most 
efficient methods to minimize DCR discharges.
    We anticipate that the proposed rule would change the current 
industry behavior of discharging DCR into the waters of the Great 
Lakes. The proposed requirement for vessels to have and follow DCR 
management plans should increase overall compliance levels with today's 
industry best practices for preventing or minimizing DCR discharges. In 
enforcing the DCR management plan requirement, the Coast Guard would be 
able to consider how well a vessel's plan reflects then-current 
industry standard practices. This would ensure that if, over time, 
there is an improvement in most vessels' ability to manage DCR, all 
vessels will be measured against the improved standard. Although our 
environmental analysis has shown only minor and indirect adverse 
environmental impacts from DCR discharges, we assume that any reduction 
in those impacts would provide at least a qualitative benefit. In 
addition, the vessel owners and operators themselves could realize 
efficiency gains from maintaining and gradually improving their DCR 
management practices. The proposed rule would not impose a rigid 
prescriptive standard, but would give the industry the flexibility to 
develop vessel-specific performance standards that achieve the 
regulatory objectives in the most cost-effective way.
Alternatives
    Alternative 1: no action. This alternative would simply keep the 
current DCR interim rule in place. We have re-evaluated the interim 
rule and concluded that our proposed rule would do more to minimize the 
volume of DCR discharge going into the waters of the Great Lakes and 
would reduce the interim rule's regulatory costs. Therefore we reject 
this alternative.
    Alternative 2: modified regulations with DCR management plan 
requirement. This is the preferred alternative described in this SNPRM 
and evaluated here.
    Alternative 3: baseline control measures. This alternative would 
enforce the existing DCR management baseline. Each vessel would be 
required to maintain its current practices or equipment for managing 
DCR. We closely evaluated this alternative but reject it because over 
time a vessel's baseline operational equipment will wear out and need 
replacement, and it would be difficult for inspectors to gauge how well 
the replacement equipment replicates the operational state attained by 
the original equipment. Moreover, this alternative provides inferior 
environmental protection, by locking vessels into today's baseline. By 
contrast, the preferred alternative assumes that DCR management 
practices and technology will improve over time, and we want the 
regulatory compliance of vessels in the future to be measured against 
the best practices and technology then available, and not against 
today's baseline, which we assume will represent a lower level of DCR 
management capability.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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.
    The Coast Guard analysis did not find any non-profit or 
governmental small entities. However, we did find 9 small entities 
affected by this rule classified under one of the following North 
American Industry Classification System (NAICS) 6-digit codes for water 
transportation: 238910--Site Preparation Constructor; 483113--Coastal 
and Great Lakes Freight Transportation; 484110--General Freight 
Trucking Local; 487210--Scenic & Sightseeing Transportation Water;

[[Page 44539]]

483212--Inland Water Passenger Transportation; and 483211--Inland Water 
Freight. According to the Small Business Administration's size 
standards, a U.S. company classified under these NAICS codes with 
annual revenues of less than $7 million is considered a small business. 
We estimate the cost of this rule to be less than 1 percent of revenue 
for 100 percent of the small entities for both initial and recurring 
costs. The estimated annualized costs per small entity complying with 
the proposed rule would range from a high estimate of $7,327 to a low 
estimate of $2,267 with both discounted at 7 percent respectively.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed rule would not have a significant economic impact on a 
substantial number of small entities. Comments submitted in response to 
this finding will be evaluated under the criteria in the ``Regulatory 
Information'' section of this preamble.
    We are interested in the potential impacts from this proposed rule 
on small businesses and we request public comment on these potential 
impacts. If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this proposed rule 
would have a significant economic impact on it, please submit a comment 
to the docket where indicated under the ``Public Participation and 
Request for Comments'' section of this SNPRM, or see 
www.regulations.gov, docket number USCG-2004-19621, for additional 
instruction.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult John C. Morris of 
the Office of Operating and Environmental Standards (CG-OES-3) at the 
telephone number or email address indicated under the FOR FURTHER 
INFORMATION CONTACT section of this notice. The Coast Guard will not 
retaliate against small entities that question or complain about this 
rule or any policy or action of the Coast Guard.
    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).

D. Collection of Information

    The proposed rule would call for a revision to an existing 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520). As defined in 5 CFR 1310.3(c), ``collection of 
information'' comprises reporting, recordkeeping, monitoring, posting, 
labeling, and other, similar actions. The title and description of 
those who must collect the information, and an estimate of the total 
annual burden can be found under, ``The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.''
    Title: Waste Management Plans, Refuse Discharge Logs, and Letters 
of Instruction for Certain Persons in Charge (PIC).
Summary of the Collection of Information
    The Information Collection Request (ICR) is a collection of 
recordkeeping requirements that documents management of waste onboard 
vessels. It also requires that persons on non-inspected vessels must 
carry a letter verifying the credential of the PIC, and that they have 
had instruction on the management of waste. Currently, the ICR covers 
Waste Management Plans and Refuse Discharge Logs for The International 
Convention for the Prevention of Pollution from Ships letters of 
instruction for certain PIC and the DCR recordkeeping.
    This proposed rule deals with section D of the current ICR, which 
addresses all dry bulk carrier vessels (foreign and domestic) operating 
on the Great Lakes. Under the interim rule, this population is required 
to report DCR quantities and the location of discharges into U.S. 
waters of the Great Lakes, in accordance with 33 CFR 151.66(c). We used 
the information collected from these reports to analyze and determine 
how best to regulate vessels in handling/managing DCR. The proposed 
rule would require U.S. and foreign vessels to develop and maintain a 
management plan that describes the specific measures the vessel employs 
to ensure the minimization of bulk DCR discharges.
    Need for Information: Since there is no uniformity as to the types 
of equipment used throughout the fleet, the management plan would 
provide a description of how the individual vessel ensures the 
minimization of DCR discharges.
    Proposed Use of Information: The information in the management plan 
would provide the Coast Guard with the means to monitor how individual 
operators are effectively managing and minimizing their DCR discharges. 
In addition, the management plan would be used by Coast Guard 
inspectors to enforce the minimization requirement.
    Description of the Respondents: We estimate that all U.S. bulk dry 
cargo vessels operating anywhere in the Great Lakes, and foreign 
commercial bulk dry cargo vessels operating on the U.S. waters of the 
Great Lakes, would be affected by the management plan requirement.
    Number of Respondents: The management plan would have a total 
number of 140 \3\ (55 U.S. vessels + 70 Canadian vessels + 15 non-
Canadian foreign vessels) respondents, which account for the total 
number of bulk dry cargo vessels operating on the waters of the Great 
Lakes in any given year.
---------------------------------------------------------------------------

    \3\ The number of foreign vessels affected has been updated 
(from the interim rule) due to information being provided by Form 
CG-33.
---------------------------------------------------------------------------

    Frequency of the Response: All vessels carrying bulk dry cargo on 
the Great Lakes are required to develop a management plan. The 
frequency in the development of the management plan would be subject to 
vessels modifying their vessels and/or equipment. We do not anticipate 
vessels modifying or adding major equipment during the 10-year period 
of this analysis. We therefore assume that the development of the 
management plan would occur once for U.S. and Canadian vessels. 
However, a percentage (50%) of non-Canadian foreign vessels would be 
required to develop a management plan each year, since we estimate that 
this percentage would be entering the Great Lakes for the first time. 
Therefore, we estimate that in the first year there would be 140 (55 
U.S. vessels + 70 Canadian vessels + 15 non-Canadian foreign vessels) 
total management plans developed by all bulk dry cargo vessels 
operating in U.S. waters, and 8 (rounded) reoccurring responses by non-
Canadian foreign vessels.
    Burden of Response: We estimate that there would be 55 management 
plans developed for the entire U.S. dry cargo vessel fleet operating on 
the Great

[[Page 44540]]

Lakes, and that it would only affect the burden of response in the 
first year that the proposed rule is in effect. The total estimated 
burden hours for the U.S. fleet is 352.75 (350 hours company section + 
2.75 hours copies), at a cost to the fleet of $24,150 (non-discounted). 
The total foreign vessel fleet would have a burden of response in the 
first year of 128 hours (1.5 hours for management plan x 85 vessels), 
at a cost of $17,340 (non-discounted).
    Estimate of Total Annual Burden: The proposed rule would not have 
an annual cost burden after the first year of this rule being 
implemented for U.S. and Canadian vessels (see ``BURDEN OF RESPONSE,'' 
above). After the first year, non-Canadian foreign vessels would incur 
an annual burden. We anticipate non-Canadian vessels would incur an 
annual burden of 11 hours for management plan development at a cost of 
$1,530 (non-discounted).
    As required by the Paperwork Reduction Act of 1995, we have 
submitted a copy of this proposed rule to OMB for its review of the 
collection of information.
    We ask for public comment on the proposed collection of information 
to help us determine how useful the information is; whether it can help 
us perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining the burden are; how we can 
improve the quality, usefulness, and clarity of the information, and 
how we can minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDESSES, by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the Coast 
Guard could enforce the collection of information requirements in this 
proposed rule, OMB would need to approve the Coast Guard's request to 
collect this information.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this proposed rule under that Order and 
have determined that it does not have implications for federalism. As 
we discussed at length in part V of this preamble, we received comments 
from several States in response to our interim rule and are aware that 
some agencies in some States bordering the Great Lakes disagree with 
the Coast Guard's approach to the discharge of DCR in those waters. We 
encourage all such States, and any of their agencies with a stake in 
the outcome of this rulemaking, to continue sharing their input with 
us. We believe neither the interim rule, nor the rule proposed by this 
document, necessarily preempts or conflicts with State laws that may 
prohibit DCR discharges or impose conditions on those discharges that 
differ from those imposed by the Coast Guard. We do not take the 
position that such State laws facially frustrate an overriding Federal 
purpose. Until such time as a cognizant court rules to the contrary, we 
caution carriers that they must comply with all applicable Federal and 
State laws regulating DCR discharges. We encourage States to make us 
aware of laws they think are applicable. As we are so informed, we will 
share that information with the public by placing it in the docket for 
this rulemaking.

F. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble

G. Taking of Private Property

    This proposed rule would not cause a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

H. Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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. 
However, a group representing tribal interests requested consultation, 
and the Coast Guard agreed to brief that group on the rulemaking. The 
briefing is described in the docket (see docket item USCG-2004-19621-
0182).

K. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This proposed rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National

[[Page 44541]]

Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). A draft 
``Environmental Impact Statement'' (EIS) is available in the docket 
where indicated under the ``Public Participation and Request for 
Comments'' section of this preamble. We encourage the public to submit 
comments on the draft EIS.

List of Subjects in 33 CFR Part 151

    Administrative practice and procedure, Oil pollution, Penalties, 
Reporting and recordkeeping requirements, Water pollution control.
    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 151 as follows:

PART 151--VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE, 
MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER

    1. The authority citation for part 151 continues to read as 
follows:

    Authority:  33 U.S.C. 1321, 1902, 1903, 1908; 46 U.S.C. 6101; 
Pub. L. 104-227 (110 Stat. 3034); Pub. L. 108-293 (118 Stat. 1063), 
Sec.  623; E.O. 12777, 3 CFR, 1991 Comp. p. 351; DHS Delegation No. 
0170.1, sec. 2(77).

    2. Amend Sec.  151.66 by revising paragraph (b) to read as follows:


Sec.  151.66  Operating requirements: Discharge of garbage in the Great 
Lakes and other navigable waters.

* * * * *
    (b)(1) On the U.S. waters of the Great Lakes, commercial vessels 
may discharge bulk dry cargo residues in accordance with and subject to 
the conditions imposed by this paragraph
    (2) As used in this paragraph--
    Apostle Islands National Lakeshore means the site on or near Lake 
Superior administered by the National Park Service, less Madeline 
Island, and including the Wisconsin shoreline of Bayfield Peninsula 
from the point of land at 46[deg]57'19.7'' N, 090[deg]52'51.0'' W 
southwest along the shoreline to a point of land at 46[deg]52'56.4'' N, 
091[deg]3'3.1'' W.
    Broom clean means a condition in which the vessel's deck shows that 
care has been taken to prevent or eliminate any visible concentration 
of bulk dry cargo residues, so that any remaining bulk dry cargo 
residues consist only of dust, powder, or isolated and random pieces, 
none of which exceeds 1 inch in diameter.
    Bulk dry cargo residues means non-hazardous and non-toxic residues, 
regardless of particle size, of dry cargo carried in bulk, including 
limestone and other clean stone, iron ore, coal, salt, and cement. It 
does not include residues of any substance known to be toxic or 
hazardous, such as nickel, copper, zinc, lead, or materials classified 
as hazardous in provisions of law or treaty.
    Caribou Island and Southwest Bank Protection Area means the area 
enclosed by rhumb lines connecting the following coordinates, beginning 
on the northernmost point and proceeding clockwise:

47[deg]30.0' N, 085[deg]50.0' W

47[deg]24.2' N, 085[deg]38.5' W

47[deg]04.0' N, 085[deg]49.0' W

47[deg]05.7' N, 085[deg]59.0' W

47[deg]18.1' N, 086[deg]05.0' W
    Commercial vessel means a commercial vessel loading, unloading, or 
discharging bulk dry cargo in the U.S. waters of the Great Lakes, or a 
U.S. commercial vessel transporting bulk dry cargo and operating 
anywhere on the Great Lakes; but the term does not include a non-self-
propelled barge unless it is part of an integrated tug and barge unit.
    Comparable characteristics, cargoes, and operations means similar 
vessel design, size, age, crew complement, cargoes, operational routes, 
deck and hold configuration, and fixed cargo transfer equipment 
configuration.
    Detroit River International Wildlife Refuge means the U.S. waters 
of the Detroit River bound by the area extending from the Michigan 
shore at the southern outlet of the Rouge River to 41[deg]54.0' N 
083[deg]06.0' W along the U.S.-Canada boundary southward and clockwise 
connecting points:

42[deg]02.0' N, 083[deg]08.0' W

41[deg]54.0' N, 083[deg]06.0' W

41[deg]50.0' N, 083[deg]10.0' W

41[deg]44.52' N, 083[deg]22.0 ' W

41[deg]44.19' N, 083[deg]27.0' W
    Dry cargo residue (or DCR) management plan means the plan required 
by paragraph (b)(5) of this section.
    Grand Portage National Monument means the site on or near Lake 
Superior, administered by the National Park Service, from the southwest 
corner of the monument point of land at 47[deg]57.521' N, 
089[deg]41.245' W to the northeast corner of the monument point of 
land, 47[deg]57.888' N, 089[deg]40.725' W.
    Indiana Dunes National Lakeshore means the site on or near Lake 
Michigan, administered by the National Park Service, from a point of 
land near Gary, Indiana at 41[deg]42'59.4'' N, 086[deg]54'59.9'' W 
eastward along the shoreline to 41[deg]37'08.8'' N, 087[deg]17'18.8'' W 
near Michigan City, Indiana.
    Industry standard practices means practices that ensure the proper 
installation, maintenance, and operation of shipboard cargo transfer 
and DCR removal equipment, proper crew training in DCR minimization 
procedures and cargo transfer operations, and proper supervision of 
cargo transfer operations to minimize DCR accumulation on or in a 
commercial vessel.
    Integrated tug and barge unit means any tug-barge combination 
which, through the use of special design features or a specially 
designed connection system, has increased sea-keeping capabilities 
relative to a tug and barge in the conventional pushing mode.
    Isle Royale National Park means the site on or near Lake Superior, 
administered by the National Park Service, where the boundary includes 
any submerged lands within the territorial jurisdiction of the United 
States within 4\1/2\ miles of the shoreline of Isle Royale and the 
surrounding islands, including Passage Island and Gull Island.
    Mile means a statute mile.
    Milwaukee Mid-Lake Special Protection Area means the area enclosed 
by rhumb lines connecting the following coordinates, beginning on the 
northernmost point and proceeding clockwise:


43[deg]27.0' N, 087[deg]14.0' W

43[deg]21.2' N, 087[deg]02.3' W

43[deg]03.3' N, 087[deg]04.8' W

42[deg]57.5' N, 087[deg]21.0' W

43[deg]16.0' N, 087[deg]39.8' W

    Minimization means the reduction, to the greatest extent 
practicable, of any bulk dry cargo residue discharge from the vessel.
    Northern Refuge means the area enclosed by rhumb lines connecting 
the coordinates, beginning on the northernmost point and proceeding 
clockwise:


45[deg]45.0' N, 086[deg]00.0' W


western shore of High Island, southern shore of Beaver Island:


45[deg]30.0' N, 085[deg]30.0' W

45[deg]30.0' N, 085[deg]15.0' W

45[deg]25.0' N, 085[deg]15.0' W

45[deg]25.0' N, 085[deg]20.0' W

45[deg]20.0' N, 085[deg]20.0' W

45[deg]20.0' N, 085[deg]40.0' W

45[deg]15.0' N, 085[deg]40.0' W

45[deg]15.0' N, 085[deg]50.0' W

45[deg]10.0' N, 085[deg]50.0' W

45[deg]10.0' N, 086[deg]00.0' W

    Pictured Rocks National Lakeshore means the site on or near Lake 
Superior, administered by the National Park Service, from a point of 
land at

[[Page 44542]]

46[deg]26'21.3'' N, 086[deg]36'43.2'' W eastward along the Michigan 
shoreline to 46[deg]40'22.2'' N, 085[deg]59'58.1'' W.
    Six Fathom Scarp Mid-Lake Special Protection Area means the area 
enclosed by rhumb lines connecting the following coordinates, beginning 
on the northernmost point and proceeding clockwise:


44[deg]55.0' N, 082[deg]33.0' W

44[deg]47.0' N, 082[deg]18.0' W

44[deg]39.0' N, 082[deg]13.0' W

44[deg]27.0' N, 082[deg]13.0' W

44[deg]27.0' N, 082[deg]20.0' W

44[deg]17.0' N, 082[deg]25.0' W

44[deg]17.0' N, 082[deg]30.0' W

44[deg]28.0' N, 082[deg]40.0' W

44[deg]51.0' N, 082[deg]44.0' W

44[deg]53.0' N, 082[deg]44.0' W

44[deg]54.0' N, 082[deg]40.0' W

    Sleeping Bear Dunes National Lakeshore means the site on or near 
Lake Michigan, administered by the National Park Service, that includes 
North Manitou Island, South Manitou Island and the Michigan shoreline 
from a point of land at 44[deg]42'45.1'' N, 086[deg]12'18.1'' W north 
and eastward along the shoreline to 44[deg]57'12.0'' N, 
085[deg]48'12.8'' W.
    Stannard Rock Protection Area means the area within a 6-mile radius 
from Stannard Rock Light, at 47[deg]10'57'' N, 087[deg]13'34'' W.
    Superior Shoal Protection Area means the area within a 6-mile 
radius from the center of Superior Shoal, at 48[deg]03.2' N, 
087[deg]06.3' W.
    Thunder Bay National Marine Sanctuary means the site on or near 
Lake Huron designated by the National Oceanic and Atmospheric 
Administration as the boundary that forms an approximately rectangular 
area by extending along the ordinary high water mark between the 
northern and southern boundaries of Alpena County, cutting across the 
mouths of rivers and streams, and lakeward from those points along 
latitude lines to longitude 83 degrees west. The coordinates of the 
boundary are:


45[deg]12'25.5'' N, 083[deg]23'18.6'' W

45[deg]12'25.5'' N, 083[deg]00'00'' W

44[deg]51'30.5'' N, 083[deg]00'00'' W

44[deg]51'30.5'' N, 083[deg]19'17.3'' W

    Waukegan Special Protection Area means the area enclosed by rhumb 
lines connecting the following coordinates, beginning on the 
northernmost point and proceeding clockwise:


42[deg]24.3' N, 087[deg]29.3' W

42[deg]13.0' N, 087[deg]25.1' W

42[deg]12.2' N, 087[deg]29.1' W

42[deg]18.1' N, 087[deg]33.1' W

42[deg]24.1' N, 087[deg]32.0' W
    Western Basin means that portion of Lake Erie west of a line due 
south from Point Pelee.
    (3) Discharges of bulk dry cargo residue under paragraph (b) of 
this section are allowed, subject to the conditions listed in Table 
151.66(b)(3) of this section.

                Table 151.66(b)(3)--Bulk Dry Cargo Residue Discharges Allowed on the Great Lakes
----------------------------------------------------------------------------------------------------------------
                Location                             Cargo                 Discharge allowed except as noted
----------------------------------------------------------------------------------------------------------------
Tributaries, their connecting rivers,     Limestone and other clean    Prohibited within 3 miles from shore.
 and the St. Lawrence River.               stone.
                                          All other cargoes..........  Prohibited.
Lake Ontario............................  Limestone and other clean    Prohibited within 3 miles from shore.
                                           stone.
                                          Iron ore...................  Prohibited within 6 miles from shore.
                                          All other cargoes..........  Prohibited within 13.8 miles from shore.
Lake Erie...............................  Limestone and other clean    Prohibited within 3 miles from shore;
                                           stone.                       prohibited in the Detroit River
                                                                        International Wildlife Refuge;
                                                                        prohibited in Western Basin, except that
                                                                        a vessel operating exclusively within
                                                                        Western Basin may discharge limestone or
                                                                        clean stone cargo residues over the
                                                                        dredged navigation channels between
                                                                        Toledo Harbor Light and Detroit River
                                                                        Light.
                                          Iron ore...................  Prohibited within 6 miles from shore;
                                                                        prohibited in the Detroit River
                                                                        International Wildlife Refuge;
                                                                        prohibited in Western Basin, except that
                                                                        a vessel may discharge residue over the
                                                                        dredged navigation channels between
                                                                        Toledo Harbor Light and Detroit River
                                                                        Light if it unloads in Toledo or Detroit
                                                                        and immediately thereafter loads new
                                                                        cargo in Toledo, Detroit, or Windsor.
                                          Coal, salt.................  Prohibited within 13.8 miles from shore;
                                                                        prohibited in the Detroit River
                                                                        International Wildlife Refuge;
                                                                        prohibited in Western Basin, except that
                                                                        a vessel may discharge residue over the
                                                                        dredged navigation channels between
                                                                        Toledo Harbor Light and Detroit River
                                                                        Light if it unloads in Toledo or Detroit
                                                                        and immediately thereafter loads new
                                                                        cargo in Toledo, Detroit, or Windsor.
                                          All other cargoes..........  Prohibited within 13.8 miles from shore;
                                                                        prohibited in the Detroit River
                                                                        International Wildlife Refuge;
                                                                        prohibited in Western Basin.
Lake St. Clair..........................  Limestone and other clean    Prohibited within 3 miles from shore.
                                           stone.
                                          All other cargoes..........  Prohibited.
Lake Huron, except Six Fathom Scarp Mid-  Limestone and other clean    Prohibited within 3 miles from shore;
 Lake Special Protection Area.             stone.                       prohibited in the Thunder Bay National
                                                                        Marine Sanctuary.
                                          Iron ore...................  Prohibited within 6 miles from shore and
                                                                        in Saginaw Bay; prohibited in the
                                                                        Thunder Bay National Marine Sanctuary;
                                                                        prohibited for vessels upbound along the
                                                                        Michigan thumb as follows:
                                                                       (i) Between 5.8 miles northeast of
                                                                        entrance buoys 11 and 12 to the track
                                                                        line turn abeam of Harbor Beach,
                                                                        prohibited within 3 miles from shore.
                                                                       (ii) For vessels bound for Saginaw Bay
                                                                        only, between the track line turn abeam
                                                                        of Harbor Beach and 4 nautical miles
                                                                        northeast of Point Aux Barques Light,
                                                                        prohibited within 4 miles from shore and
                                                                        not less than 10 fathoms of depth.

[[Page 44543]]

 
                                          Coal, salt.................  Prohibited within 13.8 miles from shore
                                                                        and in Saginaw Bay; prohibited in the
                                                                        Thunder Bay National Marine Sanctuary;
                                                                        prohibited for vessels upbound from
                                                                        Alpena into ports along the Michigan
                                                                        shore south of Forty Mile Point within 4
                                                                        miles from shore and not less than 10
                                                                        fathoms of depth.
                                          All other cargoes..........  Prohibited within 13.8 miles from shore
                                                                        and in Saginaw Bay; prohibited in the
                                                                        Thunder Bay National Marine Sanctuary.
Lake Michigan...........................  Limestone and other clean    Prohibited within 3 miles from shore;
                                           stone.                       prohibited within the Milwaukee Mid-Lake
                                                                        and Waukegan Special Protection Areas;
                                                                        prohibited within the Northern Refuge;
                                                                        prohibited within 3 miles of the shore
                                                                        of the Indiana Dunes and Sleeping Bear
                                                                        National Lakeshores; prohibited within
                                                                        Green Bay.
                                          Iron ore...................  Prohibited in the Northern Refuge; north
                                                                        of 45[deg]N, prohibited within 12 miles
                                                                        from shore and in Green Bay; south of
                                                                        45[deg]N, prohibited within 6 miles from
                                                                        shore, and prohibited within the
                                                                        Milwaukee Mid-Lake and Waukegan Special
                                                                        Protection Areas, in Green Bay, and
                                                                        within 3 miles of the shore of Indiana
                                                                        Dunes and Sleeping Bear National
                                                                        Lakeshores; except that discharges are
                                                                        allowed at:
                                                                       (a) 4.75 miles off Big Sable Point
                                                                        Betsie, along established Lake Carriers
                                                                        Association (LCA) track lines; and
                                                                       (b) Along 056.25[deg] LCA track line
                                                                        between due east of Poverty Island to a
                                                                        point due south of Port Inland Light.
                                          Coal.......................  Prohibited in the Northern Refuge;
                                                                        prohibited within 13.8 miles from shore
                                                                        and prohibited within the Milwaukee Mid-
                                                                        Lake and Waukegan Special Protection
                                                                        Areas, in Green Bay, and within 3 miles
                                                                        of the shore of Indiana Dunes and
                                                                        Sleeping Bear National Lakeshores;
                                                                        except that discharges are allowed--
                                                                       (i) Along 013.5[deg] LCA track line
                                                                        between 45[deg]N and Boulder Reef, and
                                                                        along 022.5[deg] LCA track running 23.25
                                                                        miles between Boulder Reef and the
                                                                        charted position of Red Buoy 2;
                                                                       (ii) Along 037[deg] LCA track line
                                                                        between 45[deg]20'N and 45[deg]42'N;
                                                                       (iii) Along 056.25[deg] LCA track line
                                                                        between points due east of Poverty
                                                                        Island to a point due south of Port
                                                                        Inland Light; and
                                                                       (iv) At 3 miles from shore for coal
                                                                        carried between Manistee and Ludington
                                                                        along customary routes.
                                          Salt.......................  Prohibited in the Northern Refuge;
                                                                        prohibited within 13.8 miles from shore
                                                                        and prohibited within the Milwaukee Mid-
                                                                        Lake and Waukegan Special Protection
                                                                        Areas, in Green Bay, and within 3 miles
                                                                        of the shore of Indiana Dunes and
                                                                        Sleeping Bear National Lakeshores, and
                                                                        in Green Bay.
                                          All other cargoes..........  Prohibited in the Northern Refuge;
                                                                        prohibited within 13.8 miles from shore
                                                                        and prohibited within the Milwaukee Mid-
                                                                        Lake and Waukegan Special Protection
                                                                        Areas, in Green Bay, and within 3 miles
                                                                        of the shore of Indiana Dunes and
                                                                        Sleeping Bear National Lakeshores.
Lake Superior...........................  Limestone and other clean    Prohibited within 3 miles from shore; and
                                           stone.                       prohibited within Isle Royale National
                                                                        Park and the Caribou Island and
                                                                        Southwest Bank, Stannard Rock, and
                                                                        Superior Shoal Protection Areas, and
                                                                        within 3 miles of the shore of the
                                                                        Apostle Islands and Pictured Rocks
                                                                        National Lakeshores or the Grand Portage
                                                                        National Monument.
                                          Iron ore...................  Prohibited within 6 miles from shore
                                                                        (within 3 miles off northwestern shore
                                                                        between Duluth and Grand Marais); and
                                                                        prohibited within Isle Royale National
                                                                        Park and the Caribou Island and
                                                                        Southwest Bank, Stannard Rock, and
                                                                        Superior Shoal Protection Areas, and
                                                                        within 3 miles of the shore of the
                                                                        Apostle Islands and Pictured Rocks
                                                                        National Lakeshores or the Grand Portage
                                                                        National Monument.
                                          Coal, salt.................  Prohibited within 13.8 miles from shore
                                                                        (within 3 miles off northwestern shore
                                                                        between Duluth and Grand Marais); and
                                                                        prohibited within Isle Royale National
                                                                        Park and the Caribou Island and
                                                                        Southwest Bank, Stannard Rock, and
                                                                        Superior Shoal Protection Areas, and
                                                                        within 3 miles of the shore of the
                                                                        Apostle Islands and Pictured Rocks
                                                                        National Lakeshores or the Grand Portage
                                                                        National Monument.
                                          Cement.....................  Prohibited within 13.8 miles from shore
                                                                        (within 3 miles offshore west of a line
                                                                        due north from Bark Point); and
                                                                        prohibited within Isle Royale National
                                                                        Park and the Caribou Island and
                                                                        Southwest Bank, Stannard Rock, and
                                                                        Superior Shoal Protection Areas, and
                                                                        within 3 miles of the shore of the
                                                                        Apostle Islands and Pictured Rocks
                                                                        National Lakeshores or the Grand Portage
                                                                        National Monument.
                                          All other cargoes..........  Prohibited within 13.8 miles from shore;
                                                                        and prohibited within Isle Royale
                                                                        National Park and the Caribou Island and
                                                                        Southwest Bank, Stannard Rock, and
                                                                        Superior Shoal Protection Areas, and
                                                                        within 3 miles of the shore of the
                                                                        Apostle Islands and Pictured Rocks
                                                                        National Lakeshores or the Grand Portage
                                                                        National Monument.
----------------------------------------------------------------------------------------------------------------

     (4) The master, owner, operator, or person in charge of any 
commercial vessel must ensure that the vessel's deck is kept broom 
clean whenever the vessel is in transit.
    (5) The master, owner, operator, or person in charge of any 
commercial vessel must ensure that a dry cargo residue management plan 
is onboard the vessel, kept available for Coast Guard inspection, and 
that all operations are

[[Page 44544]]

conducted in accordance with the plan. A waste management plan meeting 
the requirements of 33 CFR 151.57 satisfies this requirement, so long 
as it provides all the information required by this paragraph (b)(5). 
If the plan is maintained electronically, at least one paper copy of 
the plan must be onboard for use during inspections. The plan must 
describe the specific measures the vessel employs to ensure the 
minimization of bulk dry cargo residue discharges, and, at a minimum, 
must list or describe--
    (i) Equipment onboard the vessel that is designed to minimize bulk 
dry cargo spillage during loading and unloading;
    (ii) Equipment onboard the vessel that is available to recover 
spilled cargo from the decks and transfer tunnels and return it to the 
holds or to unloading conveyances;
    (iii) Operational procedures employed by the vessel's crew during 
the loading or unloading of bulk dry cargoes to minimize cargo spillage 
onto the decks and into the transfer tunnels and to achieve and 
maintain the broom clean deck condition required by paragraph (b)(4) of 
this section;
    (iv) Operational procedures employed by the vessel's crew during or 
after loading or unloading operations to return spilled bulk dry cargo 
residue to the vessel's holds or to shore via an unloading conveyance;
    (v) How the vessel's owner or operator ensures that the vessel's 
crew is familiar with any operational procedures described by the plan;
    (vi) The position title of the person onboard who is in charge of 
ensuring compliance with procedures described in the plan;
    (vii) Any arrangements between the vessel and specific ports or 
terminals for the unloading and disposal of the vessel's bulk dry cargo 
residues ashore; and
    (viii) The procedures used and the vessel's operating conditions to 
be maintained during any unavoidable discharge of bulk dry cargo 
residue into the Great Lakes.
    (6) In determining whether a commercial vessel or person is in 
compliance with this paragraph (b), Coast Guard personnel may 
consider--
    (i) The extent to which the procedures described in the vessel's 
DCR management plan reflect current industry standard practices for 
vessels of comparable characteristics, cargoes, and operations;
    (ii) The crew's demonstrated ability to perform tasks for which the 
DCR management plan holds them responsible;
    (iii) Whether equipment described in the DCR management plan is 
maintained in proper operating condition; and
    (iv) The extent to which the crew adheres to the vessel's DCR 
management plan during actual dry cargo loading and unloading 
operations and DCR discharge operations.
* * * * *

J.G. Lantz,
Director of Commercial Regulations and Standards, United States Coast 
Guard.
[FR Doc. 2012-18399 Filed 7-27-12; 8:45 am]
BILLING CODE 9110-04-P