Penalties for Non-submission of Ballast Water Management Reports

AGENCY:

Coast Guard, DOT.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes penalty provisions for non-submission of Ballast Water Management Reports. The Coast Guard also proposes widening the applicability of the reporting and recordkeeping requirements to all vessels bound for ports or places within the United States, with minor exceptions. The proposed actions would increase the Coast Guard's ability to protect against introductions of new aquatic invasive species via ballast water discharges, as required by the Nonindigenous Aquatic Nuisance Prevention and Control and the National Invasive Species Acts.

DATES:

Comments and related material must reach the Docket Management Facility on or before April 7, 2003. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before April 7, 2003.

ADDRESSES:

To make sure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:

(1) By mail to the Docket Management Facility (USCG-2002-13147), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.

(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(3) By fax to the Docket Management Facility at 202-493-2251.

(4) Electronically through the Web Site for the Docket Management System at http://dms.dot.gov.

You must also mail comments on collection of information 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.

The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov.

Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; pages 19477-78) or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call Mr. Bivan Patnaik, G-MSO-4, Coast Guard, telephone 202-267-1744. If you have questions on viewing or submitting material to the docket, call Dorothy Beard, Chief, Dockets, Department of Transportation, telephone 202-366-5149.

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (USCG-2002-13147), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them 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. We may change this proposed rule in view of them.

Public Meeting

We do not plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one 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.

Background and Purpose

Congress, in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), as amended by the National Invasive Species Act of 1996 (NISA), directed the Coast Guard to issue regulations and guidelines for ballast water management (BWM). The goal of BWM is to prevent the introduction and dispersal of nonindigenous species (NIS) to U.S. waters via ballast water discharges. This proposed rule would amend U.S. regulations by promulgating penalty provisions for those who fail to submit reports of their BWM activities in conjunction with their voyages to U.S. ports.

Responding to NANPCA's directive, the Coast Guard published a Final Rule (58 FR 18330, April 8, 1993) mandating BWM for the Great Lakes (33 CFR part 151, subpart C), and later extended the provisions to include the Hudson River north of the George Washington Bridge (59 FR 67632, Dec. 30, 1994). In 1999, responding to NISA's directive, we published an interim rule (64 FR 26672, May 17, 1999) that set voluntary BWM guidelines for most vessels entering all other U.S. waters, and mandated BWM reporting and recordkeeping requirements, without penalty provisions. Our Final Rule implementing these NISA-required regulations was published on November 21, 2001 (66 FR 58381).

In NISA, Congress also instructed the Secretary of Transportation (Secretary) to submit a Report to Congress evaluating the effectiveness of the voluntary program. Congress anticipated that, in this Report, the Secretary might determine that either compliance with the voluntary guidelines was inadequate, or the rate of reporting was too low to allow for a valid assessment of the compliance. In either case, Congress stipulated the development of additional regulations to make the voluntary guidelines a mandatory BWM program, and providing penalties for violations of these regulations. The Secretary's report, signed June 3, 2002, concluded that compliance with the reporting requirement of 33 CFR part 151, subpart D was insufficient to allow for an accurate assessment of the voluntary BWM regime. Accordingly, the Secretary stated his intention to make the voluntary BWM requirements mandatory and include sanctions as an enforcement tool. A copy of the Report to Congress has been placed in the docket for this rulemaking (USCG-2002-13147) and is available at http://dms.dot.gov.

In carrying out Congress' intent of a stepped approach, the Coast Guard, as the Secretary's delegate, is moving forward with the promulgation of penalty provisions for those who fail to submit reports of their BWM activities in conjunction with their voyages to U.S. ports. This step will also include broadening the class of vessels required to submit and keep, respectively, ballast water management reports and records.

This proposed rule will not broaden the class of vessels required to conduct ballast water exchange. The Coast Guard will address this subject in a separate rulemaking that is under development.

Related Projects

The Coast Guard is currently working on a number of other projects related to addressing the aquatic invasive species problem in U.S. waters. As mentioned above, the Coast Guard is developing regulations to convert the voluntary guidelines in 33 CFR part 151, subpart D to a mandatory BWM program.

NANPCA and NISA authorize the Coast Guard to approve alternate ballast water treatment (BWT) methods that are found to be at least as effective as ballast water exchange (BWE) in preventing and controlling infestations of aquatic nuisance species (ANS). Therefore, in order to evaluate the effectiveness of alternative BWT methods, the Coast Guard must first define for programmatic purposes what “as effective as [BWE]” means. On March 4, 2002, the Coast Guard published an advance notice of proposed rulemaking (ANPRM) titled “Standards for Living Organisms in Ship's Ballast Water Discharged in U.S. Waters” (67 FR 9632). Along with proposing BWT goals and standards, one of the purposes of the ANPRM was to present our approach to clarifying this term. The comment period on the ANPRM closed on June 3, 2002, and the Coast Guard is now analyzing the comments.

The Coast Guard is also planning on promulgating rules to allow for approval of ship-board installation of experimental BWT technologies.

Discussion of Proposed Rule

The proposed amendments to 33 CFR part 151 would achieve two objectives. First, penalty provisions would be clearly spelled out in both subparts C and D, in accordance with NANPCA and NISA. Violators of either the mandatory exchange provisions (for vessels bound for the Great Lakes or portions of the Hudson River) or the mandatory reporting and recordkeeping provisions (for all vessels bound for ports or places within the United States) would be liable for a civil penalty of up to $25,000 for each violation, with each day of a continuing violation equaling a separate violation. Knowing violations of either provision would be class C felonies. These changes can be found in proposed sections 151.1518 and 151.2007.

The second change would increase the number of vessels subject to the reporting and recordkeeping provisions of subpart D. This expansion of the reporting population is being proposed in order to generate the data that will allow for a more thorough understanding of ballast water delivery and management practices and how these relate to invasions of ANS from ships' ballast water on both a national and regional basis. This information should provide a clearer picture of the realities of BWM and ANS invasions over time and lead to a more effective and efficient program.

Currently, only those vessels entering United States waters after operating outside of the EEZ (which for the purposes of NANPCA as amended by NISA includes the equivalent zone of Canada) must submit ballast water management reports and keep accurate ballast water management records. Under the proposed changes, all vessels operating in United States waters bound for ports or places in the United States would have to submit these reports and keep records, regardless of whether they operated outside of the EEZ. The proposed reporting requirements are detailed in Tables 1 and 2, below. Only crude oil tankers engaged in coastwise trade, Department of Defense and Coast Guard vessels, and those vessels operating solely within one Captain of the Port (COTP) zone would be exempt from the reporting and recordkeeping requirements.

The proposed changes to the regulatory text in subpart D (with the exception of section 151.2007) would achieve this second objective, while improving the readability of the subpart. One proposed change that should be highlighted is in sections 151.2010(b) and (d), where we are proposing the deletion of the exemptions for “a passenger vessel equipped with a functioning treatment system designed to kill aquatic organisms in the ballast water” and “a vessel that will discharge ballast water or sediments only at the same location where the ballast water or sediments originated”. These exemptions were intended to apply to a requirement to conduct a ballast water exchange (BWE). As there are no requirements for BWE outside of the Great Lakes and Hudson River North of George Washington Bridge, there is nothing in 33 CFR 151 Subpart D to be exempted from and the continued inclusion of this wording only leads to confusion. Requiring these previously exempted vessels to submit BWM reports will allow the U.S. Coast Guard to gain a more thorough understanding of ballast water delivery and management practices. In the future, when ballast water exchange becomes mandatory (as we expect it will), we will ensure that these exemptions are re-inserted into the regulations as appropriate.

We would appreciate any comments on whether these proposed changes have unintentionally changed the voluntary guidelines in a manner not discussed above.

Regulatory Evaluation

This proposed rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, regulatory Planning and Review. The Office of Management and Budget has reviewed it under that order. It is “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) [44 FR 11040 (February 26, 1979)]. A draft Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT follows:

This Regulatory Evaluation estimates the costs and benefits of the proposed rule for civil penalties and new reporting requirements for vessels arriving from domestic ports of origin. The costs of collecting and reporting ballast water information for vessels arriving from foreign ports of origin have already been accounted for in previous Regulatory Evaluations and an OMB-approved collection of information (OMB 2115-0598). Therefore, in this Regulatory Evaluation, we account only for the costs of reporting that will be incurred by vessels arriving in U.S. ports from other U.S. ports (i.e., domestic voyages).

According to data from the Coast Guard, the U.S. Customs Service, and the U.S. Maritime Administration, there are approximately 70,000 arrivals in U.S. ports annually. Of these, 50,000 have a foreign port of origin and the remaining 20,000 have a domestic port of origin. Those vessels arriving from foreign ports of origin have already been reporting ballast water management practices under existing regulations. Under the proposed rule, the 20,000 arrivals from domestic ports will now submit ballast water reports.

Based on the current collection, we estimate that each ballast water report takes 40 minutes (0.666 hours) to complete the form and submit it to the Coast Guard. We estimate that it costs $35 per hour for the labor to complete and submit each form. If there are 20,000 arrivals from domestic ports annually, this means the annual cost of the proposed rule is $466,667 ($35 × 0.666 hours × 20,000 ballast water reports).

The benefit of the proposed rule is an increase in the amount and quality of BWM information provided to the Coast Guard. This will allow the Coast Guard to more accurately analyze and assess the BWM practices and delivery patterns of vessels navigating in U.S. waters and take appropriate programmatic action.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this 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.

We do not expect that a substantial number of small businesses will be significantly affected by this rulemaking. The final rule implementing NISA, published in November of 2001 (66 FR 58381), was able to certify that a significant number of small entities were not substantially affected by that rule. We do not expect that this will change by increasing the number of vessels subject to the reporting requirements, to cover all vessels equipped with ballast water tanks that are bound for ports or places within the United States, since the cost per ballast water report is only $23 (40 minutes x $35/hours).

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. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

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 rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult Lieutenant Commander Mary Pat McKeown at 202-267-0500.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

Collection of Information

Title: Ballast Water Management for Vessels with Ballast Tanks Entering U.S. Waters

Summary of the Collection of Information: The proposed rule will require 46,833 hours of labor burden annually for mandatory reporting and recordkeeping requirements.

Need for Information: The information collection requirement described in this section is necessary to carry out the reporting requirement of title 16 U.S.C. 4711, which concerns the management of ballast water to prevent the introduction of aquatic nuisance species into U.S. waters.

Proposed Use of Information: The purpose of the information collection is to more fully understand and respond to the threat posed by ballast water. The Coast Guard and researchers, from both private and other governmental agencies, will use the information to assess the effectiveness of the voluntary ballast water management guidelines.

The collection of information for the proposed rule modifies an existing OMB-approved collection (OMB 2115-0598).

Description of the Respondents: Under the current collection, respondents are vessel owners and operators that make ports of call in the United States after departing a foreign port. Under the proposed rule, respondents will also include vessel owners and operators that make ports of call in the United States after departing another U.S. port.

Number of Respondents: The existing OMB-approved collection number of respondents is 50,000 (respondents are owners/operators of the vessels calling on U.S. ports annually). This proposed rule will increase the number of respondents by 20,000, since now owners and operators of vessels arriving from domestic ports will submit ballast water reports.

Frequency of Response: Owners/operators of vessels making calls in U.S. ports will submit ballast water reports as necessary. The existing OMB-approved collection number of responses is 50,000 (responses are arrivals at U.S. ports). This proposed rule will increase the number of responses by 20,000 (reports for vessels arriving from domestic ports of origin) for a net total of 70,000 responses.

Burden of Response: The existing OMB-approved collection burden of response is approximately 40 minutes (0.666 hours) (burden of response is the time required to complete the paperwork requirements of the rule for a single response). This proposed rule will not increase the burden of response.

Estimate of Total Annual Burden: The existing OMB-approved collection total annual burden is 33,500 hours (total annual burden is the time required to complete the paperwork requirements of the rule for all responses). This proposed rule will increase the total annual burden by 13,333 hours for a net total of 46,833 hours.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we have submitted a copy of this proposed rule to the Office of Management and Budget (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 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 ADDRESSES, 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 requirements for this collection of information become effective, we will publish a notice in the Federal Register of OMB's decision to approve, modify, or disapprove the collection.

Federalism

We have analyzed this rule under Executive Order 13132. The Aquatic Nuisance Prevention and Control Act contains a “savings provision” that saves to the states their authority to “adopt or enforce control measures for aquatic nuisance species, [and nothing in the Act will] diminish or affect the jurisdiction of any States over species of fish and wildlife.” 16 U.S.C. 4725. It also requires that “all actions taken by Federal agencies in implementing the provisions of [the Act] be consistent with all applicable Federal, State and local environmental laws.” Thus, the congressional mandate is clearly for a Federal-State cooperative regime in combating the introduction of aquatic nuisance species into U.S. waters from ship's ballast tanks. This makes it unlikely that preemption, which would necessitate consultation with the States under Executive Order 13132, will occur. If, at some later point in the rulemaking process we determine that preemption may become an issue, we will develop a plan for consultation with affected states/localities.

Unfunded Mandates Reform Act

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

Taking of Private Property

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

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.

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.

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.

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 likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this proposed rule and concluded that, under paragraph 6(b) of the Appendix to “National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48243), this rule is categorically excluded from further environmental documentation. This rule falls under congressionally mandated regulations. Analyses of these types of regulations and their respective environmental reviews have determined these actions do not normally have significant effects either individually or cumulatively on the human environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 151

• Administrative practice and procedure
• Oil pollution
• Penalties
• Reporting and recordkeeping requirements
• Water pollution control

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

Subpart C—Ballast Water Management for Control of Nonindigenous Species in the Great Lakes and Hudson River

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

Authority: 16 U.S.C. 4711; 49 CFR 1.46.

2. Add § 151.1518 to read as follows:

Subpart D—Ballast Water Management for Control of Nonindigenous Species in Waters of the United States

3. The authority citation for 33 CFR part 151 subpart D continues to read as follows:

Authority: 16 U.S.C. 4711; 49 CFR 1.46. 4. Revise § 151.2005 to read as follows: