[Federal Register Volume 68, Number 146 (Wednesday, July 30, 2003)]
[Proposed Rules]
[Pages 44691-44696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19373]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[USCG-2003-14273]
RIN 1625-AA52 [Formerly RIN 2115-AG52]


Mandatory Ballast Water Management Program for U.S. Waters

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The unintentional introduction of nonindigenous species (NIS) 
into U.S. waters via the discharge of vessels' ballast water has had 
significant impacts on the nation's marine and freshwater resources, 
biological diversity, and coastal infrastructures. To address this 
continued threat, and to comply with the Nonindigenous Aquatic Nuisance 
Prevention and Control Act of 1990, and the National Invasive Species 
Act of 1996, the Coast Guard proposes mandatory ballast water 
management practices for all vessels equipped with ballast tanks bound 
for ports or places within the U.S. and/or entering U.S. waters. The 
Great Lakes ballast water management program would remain unchanged. 
This proposed rulemaking would increase the Coast Guard's ability to 
protect U.S. waters against the introduction of NIS via ballast water 
discharges.

DATES: Comments and related material must reach the Docket Management 
Facility on or before October 28, 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-2003-14273), 
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

[[Page 44692]]

17th Street NW., Washington, DC 20503, ATTN: Desk Officer, United 
States Coast Guard.
    The Docket Management Facility maintains the public docket for this 
proposed 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 
Department of Transportation'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 
rulemaking, call Mr. Bivan Patnaik, Environmental Standards Division, 
Coast Guard, telephone 202-267-1744, e-mail: [email protected]. 
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 proposed rulemaking by 
submitting comments and related material. If you do so, please include 
your name and address, identify the docket number for this proposed 
rulemaking (USCG-2003-14273), 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 8\1/2\ 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 rulemaking 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 proposed rulemaking, we will hold one at a time and 
place announced by a later notice in the Federal Register.

Legislative and Regulatory History

    The Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990 (NANPCA) [Pub. L. 101-6461], enacted by Congress on November 29, 
1990, established the Coast Guard's regulatory jurisdiction over 
ballast water management. To fulfill the directives of NANPCA, the 
Coast Guard published a final rule on April 8, 1993, entitled ``Ballast 
Water Management for Vessels Entering the Great Lakes'' in the Federal 
Register (58 FR 18330). This rulemaking established mandatory ballast 
water management procedures for vessels entering the Great Lakes in 33 
CFR part 151, subpart C.
    A subsequent final rule entitled, ``Ballast Water Management for 
Vessels Entering the Hudson River'', was published on December 30, 1994 
in the Federal Register (59 FR 67632), which amended 33 CFR part 151 to 
extend the ballast water management requirements into portions of the 
Hudson River.
    The National Invasive Species Act (NISA) [Pub. L. 104-3321] enacted 
by Congress on October 26, 1996, reauthorized and amended NANPCA. NISA 
reemphasized the significant role of ships' ballast water in the 
introduction and spread of NIS. NISA authorized the development of a 
voluntary national ballast water management program, and mandated the 
submission of ballast water management (BWM) reports without penalty 
provisions. The Coast Guard published an interim rule in the Federal 
Register on May 17, 1999, on this voluntary program entitled, 
``Implementation of the National Invasive Species Act of 1996 (NISA)'' 
(64 FR 26672), and finalized the rule in the Federal Register (66 FR 
5838) on November 21, 2001.
    NISA also instructed the Secretary of Transportation (Secretary) to 
submit a Report to Congress evaluating the effectiveness of the 
voluntary BWM program. Congress anticipated that the Secretary might 
determine that either compliance with the voluntary guidelines was 
inadequate, or the rate of reporting was too low to allow for a valid 
assessment of compliance. In either case, Congress stipulated the 
development of additional regulations to make the voluntary guidelines 
a mandatory BWM program. The Secretary's report to Congress, signed 
June 3, 2002, concluded that compliance with the voluntary guidelines, 
found in 33 CFR part 151, subpart D, was insufficient to allow for an 
accurate assessment of the voluntary BWM regime. Accordingly, the 
Secretary stated his intention to make the voluntary BWM guidelines 
mandatory. (A copy of this Report to Congress can be found in the U.S. 
Coast Guard docket  2002-13147 at http://dms.dot.gov.)

Related Projects

    The Coast Guard is working on three projects related to addressing 
the NIS problems in U.S. waters.
    The first project addresses the Coast Guard's ability to impose 
penalty provisions under NISA for non-submission of Ballast Water 
Management Reports, the Coast Guard published a notice of proposed 
rulemaking on January 6, 2003, entitled ``Penalties for Non-Submission 
of Ballast Water Management Reports'' in the Federal Register (68 FR 
523), which would implement penalties for failure to comply with the 
mandatory requirements found in 33 CFR part 151 and widen the 
applicability of the reporting and recordkeeping requirements to all 
vessels bound for ports or places within the U.S., with minor 
exceptions. Although the current mandatory portions of 33 CFR part 151 
are reporting and recordkeeping, the penalty provisions will extend to 
mandatory ballast water management practices once this rulemaking 
becomes final.
    The second project involves setting a standard to evaluate the 
discharge from ballast water treatment systems. A notice entitled, 
``Potential Approaches to Setting Ballast Water Treatment Standards'' 
(66 FR 21807), published May 1, 2001, requested comments on approaches 
to setting, implementing, and enforcing ballast water standards. It was 
followed by an advance notice of proposed rulemaking (ANPRM) entitled 
``Standards for Living Organisms in Ships' Ballast Water Discharged in 
U.S. Waters'' (67 FR 9632), published on March 4, 2002. This ANPRM 
sought comments on the development of a ballast water treatment goal. 
The comment period on the ANPRM closed

[[Page 44693]]

on June 3, 2002, and the Coast Guard is analyzing the comments and 
continuing to evaluate options for a standard.
    The third project involves encouraging the installation and testing 
of ballast water treatment technologies on board vessels. A notice, 
entitled ``Approval for Experimental Shipboard Installations of Ballast 
Water Treatment Systems'' (66 FR 282131), published on May 22, 2001, 
requested comments on a possible means of providing incentives for 
vessel owners to assist in the development and testing of ballast water 
treatment technologies. The Coast Guard is currently working on an 
interim rule to establish a program through which vessel owners can 
apply for approval of experimental ballast water treatment systems 
installed and tested on board their operating vessels. This rulemaking 
will facilitate the development of effective ballast water treatment 
technology, thus creating more options for vessels seeking alternatives 
to ballast water exchange.

Discussion of Proposed Rulemaking

    As directed by NISA and as a result of the Secretary of 
Transportation's Report to Congress in June 2002, the Coast Guard has 
determined that the voluntary BWM program is inadequate. Therefore, the 
Coast Guard is proposing to convert the voluntary BWM program into a 
mandatory BWM program. This proposed rulemaking would increase the 
Coast Guard's ability to protect against introductions of new NIS via 
ballast water discharges.
    On March 1, 2003, the Coast Guard became a component of the 
Department of Homeland Security. As a result, the Secretary of the 
Department of Homeland Security assumed all duties once bestowed on the 
Secretary of the Department of Transportation with respect to this 
proposed rulemaking. The Secretary of Homeland Security concurs with 
the Coast Guard's proposed rule regarding the mandatory ballast water 
program.
    This proposed rulemaking would revise 33 CFR part 151 to implement 
the requirements of NISA. Specifically, subpart D of 33 CFR part 151 
would be revised to require a mandatory ballast water management 
program for all vessels equipped with ballast water tanks entering U.S. 
waters. The mandatory ballast water management requirements for vessels 
entering into the Great Lakes and Hudson River from outside the U.S. 
Exclusive Economic Zone (EEZ) would remain unchanged.
    This mandatory program would require all vessels equipped with 
ballast water tanks entering U.S. waters after operating beyond the EEZ 
to employ at least one of the following ballast water management 
practices:
    (a) Prior to discharging ballast water in U.S. waters, perform 
complete ballast water exchange in an area no less than 200 nautical 
miles from any shore.
    (b) Retain ballast water onboard the vessel.
    (c) Prior to the vessel entering U.S. waters, use an alternative 
environmentally sound method of ballast water management that has been 
approved by the Coast Guard.
    (d) Discharge ballast water to an approved reception facility.
    Although, the national mandatory BWM program provides vessels with 
the option of using one of four BWM practices, ballast water exchange 
is likely to be the most used practice. This is due to--
    [sbull] Some vessels engaged in trade are unlikely to hold their 
ballast after arriving here from outside the EEZ, as this would mean 
they would not be able to load their cargo;
    [sbull] Alternative environmentally sound methods of ballast water 
management are still being developed, and would likely be of limited 
availability in the near future; and
    [sbull] The number of on-shore reception facilities is limited, and 
none are approved for the removal of NIS. This is likely to remain so.
    Therefore, under this proposed rulemaking, the BWM practice of 
conducting mid-ocean ballast water exchange prior to discharging 
ballast in U.S. waters would be the practice most used by the majority 
of vessels.
    A vessel would not be required to deviate from its voyage, or delay 
the voyage, in order to conduct a ballast water exchange. A vessel that 
cannot practicably meet the requirements of paragraphs (a)-(d) due to a 
voyage that does not take it into waters 200 nautical miles or greater 
from any shore for a sufficient length of time, and/or due to safety 
concerns, would not be prohibited from discharging its ballast water in 
areas other than the Great Lakes and the Hudson River. However, the 
vessel must discharge only the amount of ballast water operationally 
necessary. An entry must be made in the ballast water records 
supporting the reasons that the vessel could not comply with the 
regulatory requirements. Ballast water records must be made available 
to the local Captain of the Port upon request.
    For example, we would not expect a passenger vessel traveling from 
the Bahamas to Fort Lauderdale, FL (approximately 200 miles) to travel 
an additional 200 miles and delay their voyage by 24 hours to conduct a 
ballast water exchange. This passenger vessel would discharge their 
ballast water at port, and make an entry in the ballast water report 
form stating the reasons for not complying with paragraphs (a)-(d).
    The proposed rule also revises the criteria for a mid-ocean 
exchange by removing the constraint of exchanging ballast water in 
waters more than 2000 meters deep. Currently, there is not consensus on 
a water-depth criterion for exchange. For example, Australian 
legislation has a depth requirement of 200 meters, and Israel's ballast 
water exchange requirement has no depth restriction, while the current 
draft of the IMO Convention for the Control and Management of Ship's 
Ballast Water and Sediments has a criterion of 200 meters. At this time 
we believe defining mid-ocean ballast water exchange as taking place 
not less than 200 miles from shore allows more vessels to conduct 
exchange and simplifies enforceability. We welcome public comment on 
this proposed change in the Coast Guard program.
    Failure to maintain a BWM plan onboard the vessel or to make the 
required ballast water reports available will result in penalties. 
Also, failure to employ at least one of the BWM practices outlined 
above would result in a penalty, unless the vessel is exempt due to 
safety or voyage constraints, or specifically exempted by regulation.
    A BWM plan should be specific to each vessel, and should fulfill 2 
purposes: (1) Show that there is a BWM strategy for the vessel; and (2) 
allow any master, or other ship's officer as appropriate, serving on 
that vessel to understand and follow the BWM strategy for that vessel. 
The International Maritime Organization (IMO) has issued guidelines on 
the content of BWM plans in IMO Resolution A.868(20) Annex 1, Chapter 
7. Any plan meeting these IMO guidelines would meet the regulatory 
requirement laid out in Sec.  151.2035(a)(7). This Resolution is 
available on the IMO's Global Ballast Water Management Programme Web 
site [http://globallast.imo.org]. For your reference, we have also 
placed a copy of the IMO guidelines in the docket for this proposed 
rulemaking at the location listed above under ADDRESSES.
    The Coast Guard recognizes that there are two currently feasible 
methods of conducting an exchange:
    [sbull] An empty/refill exchange. The tank or a pair of tanks are 
pumped down to the point where the pumps lose suction, and then the 
tank is pumped back up to the original levels.
    [sbull] A flow-through exchange. Mid-ocean water is pumped into a 
full tank

[[Page 44694]]

while the existing coastal or fresh water is pumped or pushed out 
through another opening. As defined by the Coast Guard, a volume of 
water equal to three times the ballast tank capacity must be pumped for 
a flow-through exchange.

Regulatory Evaluation

    This proposed rule is a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does require an assessment of potential costs and benefits under 
section 6(a)(3) of that Order. 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 Homeland 
Security (DHS). A full Regulatory Evaluation is available in the public 
docket for this rulemaking.
    This Regulatory Evaluation identified the vessel population 
affected by the proposed rule and provides cost and benefit models for 
the current principle option of ballast water management (BWM) provided 
for under the rule-ballast water exchange. BWM is applicable for any 
vessel equipped with ballast tanks entering U.S. waters from outside 
the EEZ. The vessel population was categorized by vessel type under the 
assumption that vessels in different cargo services and of different 
sizes likely manage ballast water in different ways. We estimated that 
approximately 7,420 vessels will be affected and approximately 11,500 
ballast water exchanges will be performed annually. Annual costs 
totaled approximately $15.8 million. The 10-year present value cost for 
this rule is $116.7 million.
    The benefit assessment expanded on the analysis conducted for costs 
by focusing on the probability of viable organisms being introduced 
into U.S. waters through ballast discharge, both before the proposed 
rule and following the implementation of mandatory BWM. A probability 
of a reduction in the number of invasions of NIS was calculated using 
data on voyages, vessel types, ballast water volumes, and exchange 
effectiveness, as well as order-of-magnitude assumptions about the 
probabilities of inoculations, introductions, and invasions resulting 
from ballast water discharges. The calculations indicated the proposed 
rule may result in avoiding approximately 10 inoculations that result 
in invasions for each year the rule is in effect. While there is 
considerable uncertainty in these calculations and the order-of-
magnitude assumptions (referred to as the ``rule of 10s'' in the 
Regulatory Evaluation) are admittedly an oversimplification of a 
complex problem, we believe their simplicity and transparency are 
compelling. To date, there is no national estimate of the rate of 
aquatic NIS, and we cannot compare our baseline invasion estimate to 
other, more limited estimates regarding invasions. Our findings are 
broadly consistent, however, with other estimates of the rate of NIS 
invasions. One study finds that in the San Francisco Bay and Delta, 
invasions have increased from one new species every 55 weeks (1851-
1960) to one new species every 14 weeks (1961-1995) (Cohen and Carlton, 
1998). Another study posits that invasion rates may have increased in 
the San Francisco Bay and the Great Lakes over the past several decades 
(Mills, et al., 1993). Finally, some researchers believe that the 
increase of initial invasions is best described by an exponential 
function (Ruiz, et al., 2000). Using our simple methodology, we found 
that an invasion occurs somewhere in the United States about twice 
every 3 weeks.
    There is considerable difficulty in estimating monetized damages 
resulting from NIS invasions. Some species impose significant, long-
term damages on marine industries and infrastructure. Other species may 
create subtle disturbances in ecosystems that are difficult to 
quantify. Still others may be relatively benign. There have been 
attempts to estimate monetized damages for a few species, most notably 
the zebra mussel. One study estimated costs to Great Lakes water users, 
mostly due to fouling of intake structures, of $120 million over the 
time period 1989 to 1994 (Hushak, 1996). Another estimated cumulative 
zebra mussel impacts of $750 million to $1 billion over the time period 
1989 to 2000 (Carlton, 2001). Other species for which monetized damage 
estimates have been developed include the Asian clam ($1 billion per 
year, OTA, 1993) and European green crab ($44 million per year, CRS, 
1999). Eight Federal agencies that sit on the Invasive Species Council 
collectively spent $514 million in 1999 and $631 million in 2000 for 
the control and management of NIS (GAO, 2000).
    We have not reviewed the methodologies used to produce these 
estimates in detail, though all of them (except expenditures by Federal 
agencies) involve considerable uncertainty. They are indicative, 
however, of the magnitude of damages that may result from particularly 
destructive invasions. It is likely, however, that most invasions would 
result in considerably lower damages than the numbers reported in these 
studies. Because of the lack of data on damages potentially associated 
with any but the most destructive invasions, we have not tried to 
monetize the benefits of the proposed rule. If the proposed rule 
resulted in avoiding even one invasion of this magnitude over the 
course of several decades, however, the benefits of the rule would most 
likely justify the costs. The Coast Guard requests comment on its 
benefits estimation methodology and on possible approaches for 
monetizing benefits associated with avoiding future invasions.

Small Entities

    Of the affected population of all vessels arriving at U.S ports, we 
estimate that 21 vessels of the 171 U.S. flag vessels, are owned by 10 
small businesses. Approximately 35 large companies own the remaining 
150 U.S. flagged vessels. We estimate all vessels will choose the 
alternative of conducting a mid-ocean ballast water exchange. The cost 
of complying with the proposed rule is the cost of exchanges performed 
by the vessel added to the cost of additional maintenance required for 
the ballast water pumping system. The cost per exchange is a function 
of vessel type. Each vessel's costs will be a function of the cost of 
exchange for that vessel type multiplied by the number of trips into 
U.S. waters from outside the U.S. EEZ. Thus the annual impact on the 
revenue for a small business will vary with the number of entries the 
vessel makes from outside the U.S. EEZ. In order to estimate the upper 
bound of that impact, we calculated the cost of exchange for the 
maximum number of exchanges possible for the years 1999 and 2000. We 
then assumed that weather conditions and transit tracks allowed 
exchanges for all of these entries. For the annual cost of the rule, 
the number of vessels owned by each small business is multiplied by the 
number of exchanges performed, and the resulting product is then 
multiplied by the cost of exchange for the particular vessel type, and 
added to the maintenance cost of 10 percent of the capital cost of the 
ballast pump. Of the 10 small businesses that own vessels affected by 
the rule, we found revenue for 9. For the remaining company where no 
revenue information was available, we assumed revenue of $1 million for 
the purposes of the analysis. Table 1 gives the effect of the rule on 
the average annual revenues for the small business affected. For more 
detailed information, refer to the Regulatory Evaluation in the docket.

[[Page 44695]]



  Table 1.--Effect of BWM on Average Annual Revenue for Small Business
                  Entities Owning U.S.-Flagged Vessels
------------------------------------------------------------------------
                                                            Total small
                                                           entities per
     Percent of annual revenue that is BWM rule cost          impact
                                                             category
------------------------------------------------------------------------
0-3.....................................................               8
3-5.....................................................               2
 5...........................................               0
                                                         ---------------
  Total.................................................              10
------------------------------------------------------------------------

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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 Mr. Bivan Patnaik, G-MSO-4, 
Coast Guard, telephone 202-267-1744, email: [email protected].
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This proposed rule would call for a collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined 
in 5 CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. The title and description of the information collections, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. 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.
    This proposed rule affects an existing OMB approved Collection of 
Information (Ballast Water Management for Vessels with Ballast Tanks 
Entering U.S. Waters). The revised Collection of Information is as 
follows:
    Title: Ballast Water Management for Vessels with Ballast Tanks 
Entering U.S. Waters.
    OMB Control Number: 1625-0069 [Formerly 2115-0598.]
    Summary of the Collection of Information: This rule contains 
collection of information requirements for 33 CFR 151 subpart D.
    Need for Information: For the Coast Guard to protect U.S. waters 
against the introduction of nonindigenous species.
    Proposed Use of Information: For the Coast Guard to verify 
increased ability to protect against introductions of new nonindigenous 
species.
    Description of the Respondents: All vessels equipped with ballast 
water tanks entering U.S. waters.
    Number of Respondents: The existing OMB-approved collection number 
of responses is 50,000 arrivals made by 7,420 vessels (respondents). 
This rule will increase the information to include a ballast water 
management plan for each vessel, but does not increase the number of 
respondents. Thus, the total number of respondents is 7,420.
    Frequency of Response: The existing OMB-approved collection annual 
number of responses is 50,000 (responses are arrivals at U.S. ports). 
The ongoing Penalties for Non-Submission of Ballast Water Management 
Reports rulemaking [USCG-2002-13147] would increase the number by 
20,000 responses. This rule will increase the number by 7,420 responses 
in the first year of the rule to account for every vessel developing a 
ballast water management plan. In subsequent years, this rule will not 
change the number of responses. Thus, in the first year of this rule 
there will be a total of 77,420 (50,000 + 20,000 + 7,420) responses, 
and in subsequent years the total will be 70,000 (50,000 + 20,000) 
responses.
    Burden of Response: The existing OMB-approved collection burden of 
response is 40 minutes (0.666 hours) for each arrival. For each vessel, 
this rule will have a first-year (one-time) burden of response of 8 
hours to write the BWM plan.
    Estimate of Total Annual Burden: The existing OMB-approved burden 
is 33,500 hours. The ongoing Penalties for Non-Submission of Ballast 
Water Management Reports rulemaking will increase the annual burden by 
13,333 hours. This rule will increase the total first year burden by 8 
hours per vessel, or 59,360 hours, to a total of 106,193 hours. This 
rule does not affect the annual burden for subsequent years, and the 
total annual burden will be 46,833 hours.

Federalism

    We have analyzed this proposed rulemaking 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 would] 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 ships' 
ballast tanks. This makes it unlikely that preemption, which would 
necessitate consultation with the States under Executive Order 13132, 
would 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 rulemaking 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 rulemaking 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 rulemaking under Executive Order

[[Page 44696]]

13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This proposed rule would not create an environmental risk 
to health or risk to safety that might disproportionately affect 
children.

Indian Tribal Governments

    This proposed rulemaking 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 rulemaking 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. Although it is a 
``significant regulatory action'' under Executive Order 12866, 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

    The Coast Guard considered the environmental impact of this 
proposed rulemaking and concluded that preparation of a Programmatic 
Environmental Assessment (PEA) is necessary. A draft PEA has been 
completed. For more detailed information, refer to the draft PEA in the 
docket.
    This PEA is considered necessary because the proposed rulemaking 
would require vessels with ballast tanks entering U.S. ports around the 
country, subject to conditions discussed above, to have completed one 
of the mandatory BWM practices. Although the national mandatory BWM 
program provides vessels with ballast tanks the option of using one of 
four BWM practices, ballast water exchange is likely to be the most 
used practice for reasons discussed earlier. However, this PEA is 
necessary to ensure the potential environmental effects of the four BWM 
practices are considered.

List of Subjects in 33 CFR Part 151

    Administrative practice and procedure, Oil pollution, Penalties, 
Reporting and recordkeeping requirements, Water pollution control, 
Ballast water management.

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

    1. The authority citation for subpart D is revised to read as 
follows:

    Authority: 16 U.S.C. 4711; Department of Homeland Security 
Delegation No. 0170.


Sec.  151.2010  [Revised]

    2. Revise Sec.  151.2010(d) by removing the phrase ``and in waters 
more than 2,000 meters (6,560 feet, 1,093 fathoms) deep''.
    3. Revise Sec.  151.2035, the section heading and the introductory 
text in paragraph (a), and paragraphs (a)(7), and (b) to read as 
follows:


Sec.  151.2035  What are the required ballast water management 
practices for my vessel?

    (a) Masters, owners, operators, or persons-in-charge of all vessels 
equipped with ballast water tanks that operate in the waters of the 
United States must:
* * * * *
    (7) Maintain a ballast water management plan that has been 
developed specifically for the vessel that will allow any ship's 
officer to understand and follow the vessels ballast water management 
strategy.
* * * * *
    (b) In addition to the provisions of paragraph (a) of this section, 
if the vessel carries ballast water that was taken on in areas less 
than 200 nautical miles from any shore into the waters of the United 
States after operating beyond the Exclusive Economic Zone, you (the 
master, operator, or person-in-charge of a vessel) must employ at least 
one of the following ballast water management practices:
    (1) Perform complete ballast water exchange in an area no less than 
200 nautical miles from any shore prior to discharging ballast water in 
United States waters;
    (2) Retain ballast water onboard the vessel;
    (3) Prior to the vessel entering United States waters, use an 
alternative environmentally sound method of ballast water management 
that has been approved by the Coast Guard; or
    (4) Discharge ballast water to an approved reception facility.
    4. Add Sec.  151.2036 to read as follows:


Sec.  151.2036  If my voyage does not take me into waters 200 nautical 
miles or greater from any shore must I divert to conduct a ballast 
water exchange?

    A vessel will not be required to deviate from its voyage, or delay 
the voyage, in order to conduct a ballast water exchange.
    5. Add Sec.  151.2037 to read as follows:


Sec.  151.2037  If my vessel cannot conduct ballast water management 
because of its voyage and/or safety concerns, will I be prohibited from 
discharging ballast water?

    A vessel who cannot practicably meet the requirements of paragraphs 
(b)(1)-(b)(4) of section Sec.  151.2035 because its voyage does not 
take it into waters 200 nautical miles or greater from any shore for a 
sufficient length of time, and/or because of the safety concerns 
contained in Sec.  151.2030, will not be prohibited from the discharge 
of ballast water in areas other than the Great Lakes and the Hudson 
River. However, the vessel must discharge only that amount 
operationally necessary and make ballast water records available to the 
local Captain of the Port upon request.

    Dated: July 25, 2003.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 03-19373 Filed 7-25-03; 4:33 pm]
BILLING CODE 4910-15-P