[Federal Register Volume 79, Number 21 (Friday, January 31, 2014)]
[Rules and Regulations]
[Pages 5261-5282]
[FR Doc No: 2014-01927]

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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: Final rule.

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SUMMARY: The Coast Guard is finalizing its existing interim rule
regulating 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 is publishing new
requirements for the discharge of bulk dry cargo residue (DCR) on the
U.S. waters of the Great Lakes. The rule will continue to allow non-
hazardous and non-toxic discharges of bulk DCR in limited areas of the
Great Lakes. However, vessel owners and operators will need to minimize
DCR discharges using methods they will be required to document in DCR
management plans. The rule will prohibit limestone and clean stone DCR
discharges in some waters where they are now permitted. The final rule
promotes the Coast Guard's maritime safety and stewardship missions.

DATES: This final rule is effective March 3, 2014 except for the
management plan requirement of 33 CFR 151.66(b)(5), which is a
collection of information requirement that has not yet been approved by
the Office of Management and Budget (OMB). The Coast Guard will publish
a document in the Federal Register announcing the effective date of
that requirement.

ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2004-19621 and are available for inspection or
copying at the 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, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to http://www.regulations.gov,
inserting USCG-2004-19621 in the ``Keyword'' box, and then clicking
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email John A. Meehan, Office of Operating and Environmental
Standards (CG-OES-3), U.S. Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>If you have questions on viewing or submitting
material to the docket, call Ms. Cheryl Collins, Program Manager,
Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose
III. Background
IV. Discussion of Comments to SNPRM
V. Discussion of Final Rule
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    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. Abbreviations

AB Able Body Seaman
APPS Act to Prevent Pollution from Ships
CFR Code of Federal Regulations
COMDTINST COMMANDANT INSTRUCTION 7310.1M
DCR Dry Cargo Residue
DEIS Draft Environmental Impact Statement
EIS Environmental Impact Statement
E.O. Executive Order
EPA Environmental Protection Agency
FEIS Final Environmental Impact Statement
FR Federal Register
GLWQA Great Lakes Water Quality Agreement of 2012
ICR Information Collection Request
IR Interim Rule
MARPOL 73/78 International Convention for the Prevention of
Pollution from Ships
NAICS North American Industry Classification System

NOAA National Oceanic and Atmospheric Administration
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
ROD Record of Decision
PIC Person in charge
SBA U.S. Small Business Administration
SNPRM Supplemental notice of proposed rulemaking
Sec.  Section symbol
    the Act the Coast Guard and Maritime Transportation Act of 2004
    U.S.C. United States Code

II. Basis and Purpose

    This final rule replaces the interim rule (73 FR 56492, Sep. 29,
2008) that has been in effect since 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 final rule is to provide that
regulatory framework.

III. 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; correction, 70 FR 1400) on
December 27, 2004 and January 7, 2005, respectively. The regulatory
history for this rulemaking began with a March 9, 2006 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). 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). We held a scoping
meeting in Cleveland, OH, on July 6, 2006. We published a notice of
proposed rulemaking (NPRM) and notice of the availability of the
accompanying draft environmental impact statement (DEIS) on May 23,
2008 (73 FR 30014). We announced public meetings on the NPRM and DEIS
on June 6, 2008 (73 FR 32273), and held those meetings in Duluth, MN,
and Cleveland, OH, on July 15 and 17, 2008, respectively. With the
Environmental Protection Agency (EPA), we announced the availability of
the final environmental impact statement (FEIS) on August 22, 2008 (EPA
at 73 FR 49667; Coast Guard at 73 FR 49694), and the Record of Decision
(ROD) adopting the findings of the FEIS was signed September 23, 2008.
We published an interim rule on 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. We published a supplemental notice of proposed rulemaking (SNPRM)
on July 30, 2012 (77 FR 44528). With the EPA, we announced the
availability of the FEIS for this final rule on November 1, 2013 (78 FR
65643).
    A vessel loading or unloading bulk dry cargo often accumulates
small amounts of dry cargo residue on its deck, and more substantial
amounts in cargo tunnels within the vessel, where the DCR mixes with
sump water. If these accumulations are not addressed, the deck residue
can adversely affect crew safety, and the tunnel residue can adversely
affect vessel stability, which in turn risks the safety of the entire
vessel, its crew, and the maritime environment. DCR accumulation can be
mitigated or reduced through the use of DCR control equipment or
procedures, but it is not always operationally feasible or economically
practical to deploy that equipment or procedures only while the vessel
is in port. Consequently, a bulk dry cargo vessel may find it
advantageous to sweep residue from the deck, or to discharge tunnel
sump water, while the vessel is in transit. For oceangoing vessels on
the high seas, this is generally permissible under international
maritime law, but it is generally prohibited within each country's
navigable waters, including a country's navigable rivers and lakes. For
most bulk dry cargo vessels operating on rivers and lakes, the general
prohibition against in-transit DCR discharges does not impose special
hardships on the vessel operator, because transit time is short and the
sheltered river and lake waters limit any risk to the vessel from
conducting DCR control measures only while the vessel is in port.
    However, Great Lakes vessel operators may experience special
difficulties with DCR accumulation. The Great Lakes support a
significant volume of bulk dry cargo shipping that remains within the
land-locked Great Lakes system. All Great Lakes waters are considered
either U.S. or Canadian navigable waters, and hence are subject to the
general prohibition against in-transit DCR discharges. Transits on the
Great Lakes can be many hours long, through waters that can be very
deep, very wide, and subject to severe weather risks. Thus, in some
ways Great Lakes bulk dry cargo vessels are more like vessels in
oceangoing trade than they are like vessels on most rivers or lakes. In
recognition of these special factors, the Coast Guard's Ninth District
adopted an ``interim enforcement policy'' in 1995, which allowed
continued and ``incidental'' discharges of non-toxic, non-hazardous DCR
in defined areas of the Great Lakes. On three occasions between 1998
and 2004, Congress required the Coast Guard to continue enforcing the
interim enforcement policy.
    In 2004, Congress prepared a legislative conference report in
support of section 623(b) of the Act, which provides the authority for
this rulemaking, expressing Congress's expectation that in regulating
Great Lakes DCR discharges, given the special characteristics of the
Great Lakes, the Coast 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 allowed non-hazardous and non-toxic DCR discharges in
limited areas of the Great Lakes, provided that carriers observed
recordkeeping and reporting requirements, and it encouraged carriers to
adopt voluntary control measures for minimizing discharges. The interim
rule applied 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 were excluded from the interim rule amendment
unless they are part of an integrated tug-and-barge unit.

    Our ROD 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 final 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 that determination and accordingly, we are issuing this final
rule. The final rule's provisions are identical to those we proposed in
the SNPRM, except insofar as we have decided to retain existing
reporting and recordkeeping requirements for the final rule's first
year in effect, as a transitional measure. For a detailed discussion,
see part V of this preamble.

IV. Discussion of Comments to SNPRM

    We received eight public comments from seven commenters on the
SNPRM. Two of the commenters were individuals, three were industry
associations, one was an alliance of advocacy groups with a shared
interest in ensuring ``that commercial navigation practices in the
Great Lakes and St. Lawrence River do not have a deleterious impact on
the basin's freshwater ecosystem and dependent communities and
economies,'' and one was the Michigan Department of Environmental
Quality. The commenters raised the following issues.
    Legal basis. The advocacy alliance said our interim rule and our
final rule, are inconsistent with APPS and that section 623(b) of the
Act does not provide an exception from APPS. We disagree that the Act
provides no exception from APPS. In passing APPS, Congress gave the
Secretary of the Department in which the Coast Guard is operating
sufficient regulatory authority to implement it (33 U.S.C. 1903(c)(1))
and the Secretary delegated that authority to the Coast Guard (DHS
Delegation No. 0170.1(77)). Section 1903(c)(1) was last amended in
1996, and there was no logical reason for Congress to do more if
Congress intended the general language of that provision to govern
Coast Guard rulemaking on any topic and in any waters to which APPS
might be applicable. Nevertheless, on three subsequent occasions, in
1998, 2000, and 2004, the 105th, 106th, and 108th Congresses saw fit to
legislate three specific exceptions to section 1903(c)(1) with respect
to the discharge of DCR in the Great Lakes: Public Law 105-383, section
415; Public Law 106-554, section 1117; and Public Law 108-293, section
623. Not one of these subsequent specific enactments can be logically
explained in any other way than by inferring that Congress intends for
the Coast Guard to take into account factors unique to the handling of
DCR on the Great Lakes in regulating DCR discharges in those waters,
notwithstanding how APPS would apply to other topics involving the
Great Lakes, and notwithstanding how APPS would apply to DCR discharges
in other waters.
    Need for further regulatory measures. The three industry
associations questioned the need for further regulatory measures. They
said the current interim rule's requirements already achieve the
balance between environmental protection and commercial interests that
Congress intended. They also reminded us of the relatively small volume
of DCR discharges given the volume of bulk dry cargo shipments, and of
our previous finding of only minor and indirect adverse environmental
impacts from DCR discharges. We agree with these statements, but we
also recognize that in the absence of Coast Guard regulations allowing
limited discharges, discharges of any kind would be prohibited and
industry would have to bear the cost of eliminating any DCR discharges.
In our view, the additional measures imposed by this final rule will
help minimize adverse environmental impacts, without exposing industry
to unreasonable regulatory costs. One of the three associations
commented that effective DCR minimization procedures, including DCR
management plans are already in general use. To the extent that is the
case, the incremental cost of this final rule will be minimized and
will be felt only by parties who are not currently operating at the
general level.
    Environmental analysis. The advocacy alliance made several comments
about the DEIS that accompanied the SNPRM.
    First, the alliance said our characterization of the environmental
impacts of permitted DCR discharges as ``minor and indirect'' is not
supported with sufficient evidence in the record and should be
reconsidered. We disagree with this statement. Our analysis shows that
the DCR deposition rate in open Great Lakes waters is within natural
deposition rates--0.2 percent or less of the natural deposition rate
even in areas of highest DCR discharge activity. Only port and
nearshore areas experience deposition rates higher than the natural
deposition rate. The DCR-discharge impact in those areas must be
mitigated as we described in the DEIS's preferred alternative. The
criteria for determining the effects on environmental and human
resources for each of the alternatives were established through
collaboration with experienced National Environmental Policy Act
practitioners and with the EPA as a cooperating agency. The evaluation
of the impacts was based on scientific studies, vetted through expert
panels. The results were published in draft and final environmental
impact statements issued prior to publication of the interim rule,
resulting in further refinement of the analysis.
    Second, the alliance said we should reassess the effects of DCR
discharges on the physical sediment of the Great Lakes rather than rely
on the findings in the interim rule's FEIS and ROD. The Coast Guard
did, in fact, reassess the effects on the physical sediment evaluated
in the FEIS based on the analysis of vessel DCR records and direct
observations subsequent to publication of the interim rule. We did not
find a significant change in the results stated in the interim rule's
FEIS.
    Third, the alliance said we had not adequately estimated the volume
of DCR discharge so as to permit informed decision making on the
direct, indirect, and cumulative environmental impacts to the Great
Lakes. We disagree with this statement. To determine the volume of DCR
discharge we conducted in-depth studies outlined in Appendix N of the
interim rule's FEIS. Subsequent to publication of the interim rule, we
analyzed vessel DCR records and made direct observations.
    Fourth, the alliance said the SNPRM's DEIS predicted DCR discharge
reductions that are inconsistent with our statement that the majority
of vessels already effectively minimize DCR discharge. There is no
inconsistency. The predicted DCR discharge reductions from this
rulemaking do not conflict with the

already low current discharge rates from vessels. However, further
reductions in the discharge rates are feasible with limited impacts to
industry.
    Finally, the alliance said that, with respect to the potential
introduction of toxic components into the Lakes' sediments, the issue
is not only whether those sediments are currently contaminated at
levels sufficient to adversely affect the natural communities of the
Great Lakes, but also whether those levels might be reached if DCR
discharges are allowed to continue. The alliance said this possibility
is not fully explored in the SNPRM's DEIS, and that we have ignored the
recommendation of the National Oceanic and Atmospheric Administration
(NOAA) to undertake a rigorous front-end analysis of the potential for
toxic constituents in the types of cargo that produce DCR. We disagree.
Under the Clean Water Act, vessels are prohibited from discharging DCR
that is toxic, hazardous, or both. The 1995 interim enforcement policy
allowed incidental DCR discharges only if the DCR was non-toxic and
non-hazardous, and our 2008 interim rule also applied only to non-
toxic, non-hazardous DCR. We addressed NOAA's recommendations in the
2008 FEIS. (See U.S. Coast Guard 2002, ``A Study of Dry Cargo Residue
Discharges in the Great Lakes'' and U.S. Coast Guard 2006, ``Study of
Incidental Dry Cargo Residue Discharges in the Great Lakes'' referenced
in the 2008 FEIS and posted on the Docket). We have extensively and
thoroughly evaluated the direct, indirect, and cumulative effects of
DCR discharges, including toxicity. Our FEIS finds that while sediment
concentrations exceeded some threshold effect concentrations in DCR
sweeping areas and some toxicity was observed, the sediment
concentrations were similar to those in areas used as a control group
for sampling purposes, and the toxicity does not appear to be
associated with any chemical constituent attributable to DCR,
indicating that our long-standing restriction of DCR discharges to non-
toxic and non-hazardous DCR is being observed. We do not expect the
predicted rates and composition of DCR discharges to contribute to
raising sediment toxicity levels such that they will adversely affect
the ecosystems.
    Federalism. All three industry associations and the Michigan
Department of Environmental Quality commented on the interaction
between the interim rule and final rule, as Federal regulations, and
the water quality laws of States in the Great Lakes region. The
associations pointed out that we have not preempted States from
adopting or enforcing their own laws affecting DCR discharges in their
waters. They are concerned that the lack of Federal preemption will
lead to a patchwork of different State requirements. One of these
associations said that the imposition of more stringent restrictions or
even discharge bans by individual States would also result in severe
hardship on vessels and economic harm to commerce on the Great Lakes,
while providing no additional environmental benefit.
    The Michigan agency said that DCR discharges in Michigan waters
would be in violation of section 324.9502 of the State's Natural
Resources and Environmental Protection Act. While acknowledging that
the lack of Federal preemption leaves Michigan free to enforce this
statute in its waters, the agency said this could leave industry
confused, that it places a significant potential burden for enforcement
on Michigan, and is contrary to the Coastal Zone Management Act.
    Neither the interim rule nor this final rule expressly preempts
State laws relating to DCR discharges. As we stated in the interim
rule, 73 FR 56492 at 56497, col. 2, carriers must comply not only with
Coast Guard DCR discharge regulations, but with ``all applicable
Federal and State laws regulating DCR discharges,'' and we ``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
are imposed by our regulations. We do not believe the final rule will
confuse the industry because it allows for continuing the current
industry practices with regard to dry cargo residues, which have been
in place for decades. It incorporates recordkeeping requirements that
are similar to regulations with which industry already must and does
comply. This final rule does not frustrate or conflict with the laws of
any State; nor is it inconsistent with any State coastal management
program that may impose additional restrictions on DCR discharges.
    Vessel operations. Two of the industry associations commented on
the affected industry's importance to the regional and national
economies. Both expressed concern over the cost implications of
delaying a vessel's voyage to remove DCR while in port, in light of the
high hourly cost of vessel operation and the short Great Lakes shipping
season. One of the two associations observed that DCR discharges are
not in the industry's interest, since vessels are paid to deliver
cargo, not wash it overboard. The other said this places shipping at a
disadvantage when compared to rail or road transportation.
    We agree that Great Lakes shipping is an important industry and
that the cost implications of this rulemaking must be kept as low as
possible, consistent with our interpretation of the mandate Congress
gave us in the 2004 Act. The new DCR management plan requirement leaves
industry free to determine, for each vessel, how best to minimize DCR
without compromising a vessel's economics, safety, or other operational
considerations. We are confident this can be done without delaying any
vessel's operations, because we found from our own direct observations
that it is existing industry practice to maintain DCR-free decks and
that crew members can retrieve significant amounts of DCR from cargo
tunnels while the vessel is under way for later disposal. We discuss
minimization requirements more fully in connection with the comments we
received on minimization.
    Elimination of DCR discharges. The advocacy alliance and an
individual commenter wrote in favor of eliminating DCR discharges in
the Great Lakes. As we stated in the SNPRM, 77 FR 44528 at 44533, col.
1, this remains our ideal. The individual commenter remarked that
``profiteers . . . sneak what they dump.'' We disagree, at least
insofar as the industry affected by this rulemaking is concerned,
because they have openly acknowledged their discharges and because we
agree with the industry that discharge of DCR is contrary to their
profit motive.
    The alliance said we should adopt regulations that move industry
toward eventual elimination of DCR discharges. They suggested we
``reconsider an alternative that incorporates the following measures: A
timeline for reaching zero-discharge; periodic review of DCR best
management practices followed by regulations that require
implementation of such practices; and in the interim, incremental
reductions in the volume of DCR discharged by vessels.'' They also said
the Great Lakes Water Quality Agreement of 2012 (GLWQA) between the
U.S. and Canada ``directs the attention of each party to the task of
developing reasonable regulations minimizing the discharge of cargo
residue into the Great Lakes,'' and requires ``the parties to produce
progress reports every three years after implementation,'' which would
provide a natural timeframe for us to periodically review and improve
our DCR regulations.
    We decline to adopt the alliance's suggestion for a timeline to
incrementally reduce and eventually

eliminate all DCR discharges. We lack any factual basis for
establishing such a timeline, of whatever length, without triggering
the direct and adverse socioeconomic impacts that justified our
rejecting the imposition of a zero-discharge requirement in our interim
rule; see the ROD for the interim rule's FEIS, pp. 2, 3, Sept. 23,
2008. As we stated in the SNPRM, 77 FR at 44533, col. 1, ``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.''
    We disagree with the alliance on setting any schedule specifically
for the periodic review of our DCR regulations. This is not required by
the GLWQA, which discusses triennial progress reviews in the overall
context of Great Lakes water quality rather than with respect to
reviewing specific statutes or regulations. Also, as we stated in the
SNPRM, 77 FR at 44531, col. 3, we are already ``subject to statutes,
executive orders, and agency policies that require the periodic
reevaluation of existing regulations'' including our DCR regulations.
However, as we also stated in the SNPRM, 77 FR at 44533, col. 3, ``[w]e
expect that industry standard practices for the management of dry cargo
residue will evolve'' and that, as they do, each vessel will have to
keep pace or risk a Coast Guard inspector's determination that its DCR
management plan no longer compares adequately ``with the current
industry standard practices employed by the majority of vessels with
comparable characteristics, cargoes, and operations.''
    Minimization of DCR discharges--Decks. All three industry
associations commented on our minimization proposals, in particular the
``broom clean'' standard for decks, and expressed concern over the
costly delays in port that attaining broom cleanliness might entail
(costs are addressed in the regulatory analyses section of this final
rule).
    One of the associations said we should set a ``shovel clean''
standard instead, because shovels are operationally preferable to
brooms and can attain the same performance level (elimination of
visible DCR, other than dust, powder, or isolated and random pieces,
none of which exceeds 1 inch in diameter). We chose the term ``broom
clean'' because of its descriptive value in conveying an image of the
performance level we want vessels to achieve. This final rule does not
prescribe the actual tools or procedures by which a vessel achieves it;
that information will be set out in the vessel's DCR management plan.
    One association pointed out that ``the goal of this provision is
standard practice. Spilled cargo is shoveled back into the hold to the
degree possible.'' We agree that this is standard practice because
usually it serves the carrier's economic interest. This association
also mentioned conditions under which it could be difficult or
impossible to attain broom cleanliness without unacceptably long and
expensive delays in port. We agree that in bad or very cold weather, or
because of operational conditions, it may be more difficult than usual
to attain broom cleanliness. As the association observed, however, we
acknowledged in the SNPRM that cargo is loaded and discharged in
different environments: ``[w]e assume . . . an Able Body Seaman (AB)
would be tasked with maintaining the broom clean standard . . . during
loading and unloading operations, to the best of the AB's ability under
current vessel conditions,'' 77 FR at 44536, col. 1. The association
continued by granting ``that it would be difficult to define `the best
of an individual's ability under varying vessel conditions,' '' but
expressed the hope that ``Coast Guard inspectors will agree that what
is possible on a summer day is unachievable with snow falling and
temperatures below freezing.'' We agree. We have tried to design a
reasonable requirement that can be executed by people of varying
physical capabilities under widely varying conditions, in what is
fundamentally an industrial setting. We have also tried to design a
regulation that can be easily and fairly enforced by our inspectors
without the use of scales or micrometers. As stated in the regulatory
definition of ``broom clean'' adopted by this final rule, 33 CFR
151.66(b)(2), what we want to see on a vessel's deck is evidence that
``care has been taken to prevent or eliminate'' deck DCR. We understand
and expect that the results of that care will vary, but we expect that
the results will indicate that the vessel's DCR management plan has
been written and carried out to obtain the best DCR minimization
results across the full range of variables that affect the vessel.
    A second association said that maintaining the broom clean standard
``is likely to cause vessel delays as compliance with hours-of-rest
regulations would prevent critical crew members from participating in
departure or navigation tasks.'' The association provided no data to
show that the interaction of our broom clean requirement with work hour
laws will necessarily lead to any appreciable interference with
critical crew duties. We know of no reason to assume this will happen,
and once again we emphasize that it is up to each vessel to determine,
for inclusion in its DCR management plan, what arrangements it chooses
to make to comply with our DCR regulations.
    This second association also said that ``[c]onsidering variability
in weather conditions and the requirement to vacate docks as soon as
possible for commercial and trade reasons . . . the requirement
[should] be modified to allow for broom cleaning operations, if not
complete before departure, to continue as soon as work related to
departure is completed, or at sunrise the next morning should the
vessel depart at night.'' As stated in our response to the first
association, we understand that a vessel's ability to attain broom
cleanliness will vary according to conditions. However, were we to make
the change this association suggests, vessels would have little
guidance for distinguishing when in-port compliance is essential from
when it can be deferred until the vessel is in transit on the Great
Lakes. Since the goal of our final rule is to minimize DCR discharges
into the Great Lakes, we think this would undermine the purpose of the
broom clean requirement, and we therefore, decline to make the
suggested change.
    Minimization of DCR discharges--Tunnels. One industry association
and the advocacy alliance commented on DCR minimization with respect to
vessel tunnels.
    The association referred to the safety hazard that can be posed by
the accumulation of significant amounts of water in tunnels, and said
we should therefore, make it clear that nothing in our minimization
requirement or other parts of our DCR regulation ``is intended to
preclude the master or person-in-charge (PIC) from taking or executing
any decision which, in his/her professional judgment, is necessary to
maintain the safety of the crew and vessel.'' We decline to add the
suggested language. We believe that the vessel-specific DCR management
plan our rule requires is a more direct and effective way to address
the safety concerns posed by the accumulation of excess water in vessel
tunnels.
    In an apparent reference to our statement in the SNPRM, 77 FR at
44532, col. 3, that ``[w]ithin tunnels, large pieces of DCR that remain
after unloading should be easy to recover. . . and to place on the
conveyor belt with the rest of the cargo during the vessel's next
unloading,'' the association said that opportunities to do this are
``somewhat limited and vary

significantly from vessel to vessel.'' Therefore, the ``current
practice of sumping [sump pumping] tunnel DCR will have to continue.''
We agree that sump pumping is often necessary and our final rule does
not preclude that pumping.
    The alliance parenthetically urged us to consider whether the Clean
Water Act applies to sump pump discharge of DCR-laden effluent. We take
no position on that question, as it is outside the scope of this final
rule.
    The alliance also said that we should prohibit offshore sump
pumping so that vessels can discharge it only at certified shoreside
garbage reception facilities. There are two reasons a vessel pumps sump
while in transit. One is economy; it is cheaper for the vessel to pump
while it is in transit than to spend time in port doing so. However,
the second reason is operational--to preserve the vessel's stability
and safety in transit. We agree with the association that offshore
pumping of ``DCR-laden effluent'' for reasons of economy alone would
not be consistent with the discharge minimization we will require, but
we disagree that offshore pumping can be prohibited altogether because
that could interfere with vessel safety. We expect that a vessel's DCR
management plan will describe under what conditions offshore pumping
may take place, and what measures the vessel takes to minimize the
volume of DCR discharged with the pumped effluent.
    DCR management plans. Two industry associations commented on the
vessel-specific DCR management plan requirement. Both said that
industry has already put in place some sort of current fleet-wide DCR
management policies and plans, and one association said that because of
this, regulations for written vessel-specific plans are not needed and
would only create unnecessary paperwork. The other association agreed
with us that ``there are instances when a vessel-specific plan is
necessary,'' but said ``there is so much commonality in terms of
general vessel layout, cargo hold figurations and unloading systems''
that a single DCR management plan will likely work for all its members.
    We believe the additional regulatory cost of documenting policies
and practices that already exist in some form will be minimal, will be
of benefit to vessel crews in complying with our DCR regulations, and
will provide Coast Guard inspectors with an important means of ensuring
compliance. The cost of documentation should be further minimized by
the ``commonality'' one association referred to, and we agree some
common documentation for similar vessels, cargoes, or operations should
be possible. However, the same association also cited many reasons why
certain minimization measures will have drawbacks for particular
vessels carrying particular cargoes under particular conditions. For
that reason, we will require each vessel to have a plan that
specifically describes how DCR will be minimized in light of those
particularities.
    One of the associations said we should specify that a recognized
certified management system that accounts for DCR management procedures
is acceptable so long as it complies with the version of 33 CFR
151.66(b)(5) promulgated by this final rule. We acknowledge that such a
system may provide a useful basis for the required vessel-specific DCR
management plan, but we decline the association's suggestion, and we
caution that ``turnkey'' use of a recognized certified management
system's standards, without specific adaptations made for the specific
vessel, may not be enough to meet the section 151.66(b)(5)
requirements.
    Shoreside facilities. All three industry associations and the
advocacy alliance criticized our focusing on vessels even though, as we
stated in the SNPRM (77 FR at 44533, col. 2), ``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.''
    One of the industry associations correctly pointed out that the
Coast Guard has some shoreside regulatory authority, for example under
the Maritime Transportation Security Act of 2002. However, whether or
not we have legal authority to regulate shoreside facilities in
connection with DCR, as a practical matter our marine inspectors lack
the resources or training to regulate the relations between vessels and
a variety of shoreside facilities.
    As one industry association said, industry members also feel they
lack ``the expertise, time, or authority to implement practices or
install equipment on docks.'' One of the other associations also made
this point. We agree with the first association that ``there is little
contractual or formal interface between carriers and docks,'' that
shippers rather than carriers decide where cargo will be shipped and
pay shoreside facilities, and that ``[d]ocks and vessels are distinct
and separate links in the supply chain.'' However, they are both
components of the same supply chain and are, therefore, interdependent
on the smooth and economical operation of that chain. In light of the
frequent communication between vessel and dock crews that the
association acknowledged, it is reasonable to expect the vessel-
specific DCR management plan to outline how those communications will
be managed to maximize coordination with shoreside facilities and
minimize DCR.
    The advocacy alliance said that because we have ``made arrangements
to consider and issue certificates to reception facilities that meet
other aspects'' of MARPOL Annex V requirements, we ``cannot credibly
claim'' that we are ``not suited to do so as to garbage and DCR.'' The
Coast Guard makes no such claim. As the alliance goes on to say, we
certify garbage reception facilities under 33 CFR part 158 subpart D.
If a vessel pumps tunnel sump water at a shoreside garbage reception
facility, it must be certified under that subpart.
    Enforcement. Two industry associations and one individual commented
on how the Coast Guard will enforce this final rule. The associations
commented that Coast Guard requirements for DCR discharges are unique
to the Great Lakes ``and it will be important that inspectors
transferred to the Lakes are familiarized with the practice and what
constitutes compliance with the final rule before they begin their new
duties.'' One of the associations also favorably mentioned, in this
context, the use of photographs in our DEIS to illustrate shipboard
conditions. We agree. Coast Guard inspectors routinely receive training
to familiarize them with local conditions and practices. Training often
includes, but is not limited to, the use of photographs like those in
the DEIS.
    The individual commenter asked how we plan to enforce compliance,
specifically what happens to the vessel if it does not keep a DCR
management plan. The commenter suggested we include more detail about
``the implementation of inspections and what penalties the vessels will
incur if they do not comply.'' Coast Guard inspections are carried out
in accordance with detailed protocols contained in our Marine Safety
Manual (http://www.uscg.mil/directives/cim/16000-16999/CIM_16000_7A.pdf), which need not be duplicated in our regulations. Those
protocols will likely be supplemented with additional guidance to
inspectors who will enforce our regulations on the Great Lakes.
However, as adopted by this final rule, 33 CFR 151.66(b)(6) generally
lists the criteria inspectors will apply in determining the adequacy of
a vessel's DCR management plan--how closely

the vessel has kept up with best practices, how well trained the crew
is in operations described in the plan, whether equipment described in
the plan is in good working order, and how the crew conforms to plan
standards in performing actual loading and unloading operations.
Violations of our DCR regulations are subject to the criminal and civil
penalties described in 33 CFR 151.04 and could include seizure of a
vessel found to be in violation.
    Limestone and clean stone. The advocacy alliance and one industry
association commented on the SNPRM's proposals for new restrictions on
discharges of limestone or clean stone DCR within 3 miles of shore. The
alliance said they see the new restrictions ``as a major improvement to
the interim rule.'' The association said the new restrictions will
impede some operations, ``specifically in situations where the vessel
must unload a cargo of stone, then load a different cargo in the same
port or at a nearby port.'' The association said these restrictions are
unnecessary because limestone or clean stone DCR discharges do not
deposit an appreciable quantity of stone over the lake bed, and
therefore ``it is difficult to believe that it would create a mussel
breeding ground.''
    We disagree that limestone and clean stone discharges do not
deposit an appreciable quantity of stone over the lake bed.
Observations conducted for this final rule's FEIS revealed that under
current regulations, the discharge of limestone and clean stone DCR can
occur while vessels are stationary at loading and unloading docks.
According to the FEIS, multiple discharges of stone at port and in near
shore areas could create as much as one inch per year of DCR
accumulation on the lake floor, which would completely alter the
existing sediment's physical structure and potentially affect the
ecosystems at the bottom of the lake. Thus, in port and near shore
areas, stone DCR deposition could have a significant, long-term, and
cumulative impact on sediment structure. Furthermore, in port and near
shore areas, limestone and clean stone discharges could create an
optimum habitat for invasive mussels. In these shallow waters, which
the mussels prefer, depositing bottom substrate that is stone over the
native soft bottom sediments creates an optimum anchoring medium for
the invasive mussels. In summary, all of the predicted ``significant''
environmental impacts delineated in our FEIS are the result of
limestone and clean stone DCR discharge in port and near shore areas.
For this reason, the final rule generally prohibits limestone and clean
stone DCR discharges within 3 miles of shore.
    Specific regulatory language. One industry association objected to
the SNPRM's proposed wording of 33 CFR 151.66(b)(5)(viii). The
association said that requiring a vessel's DCR management plan to
include 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'' implies that DCR discharge is
prohibited, ``when in fact the expectation of the rule is that the
discharge'' need only be minimized. Our final rule retains the SNPRM's
language. As other industry associations have commented persuasively,
industry has a profit motive not to discharge DCR. Our expectation,
therefore, is that it would be illogical, as well as illegal, for
vessels to discharge DCR except when doing so is operationally
``unavoidable.''

V. Discussion of Final Rule

    The context in which we developed this rule. We stated in the
interim rule that, before taking final 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, col. 2.
    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 this
final rule's FEIS. 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 occurs
predominantly 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, under some conditions the pumping could
delay the vessel, increasing its operating costs and making it more
economically rational to perform sump pumping while the vessel is
underway, though this would likely result in sump discharges being the
main contributor to DCR discharges in the Great Lakes.
    Our final rule makes the following four general changes to the
current interim rule, all of which are supported by the final rule's
FEIS, and otherwise finalizes the interim rule. The rule also revises
the definitions of ``commercial vessel'' and ``mile'' to provide
greater clarity.
    First, we require the volume of DCR discharges to be minimized.
Except for a new, objectively verifiable, ``broom clean'' standard
applying to decks, discharge minimization will be achieved through
methods of the vessel owner or operator's choice. ``Broom clean'' is
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'' is also 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 also redefine ``bulk cargo residues'' to emphasize
that DCR can exist ``regardless of particle size.''
    Second, we require discharge minimization methods to be documented
in a vessel-specific DCR management plan, which is a written plan,
subject to Coast Guard inspection, meeting at least the minimum
criteria we describe in 33 CFR 151.66(b)(5).
    Third, limestone and clean stone DCR discharges are no longer
permitted within 3 miles of shore. In the Western Basin of Lake Erie,
we provide an exception within the dredged navigation channel between
Toledo Harbor Light and the Detroit River Light. This is the only
section of the Great Lakes where known Lake carrier track lines for
limestone and clean stone transport vessels do not extend more than 3
miles from land and the discharge of stone DCR in the dredged channel
would not adversely affect native sediments or underwater life.
    Fourth, one year after the remainder of the final rule takes
effect, we will remove the requirements of 33 CFR 151.66(c) to record
cargo loading and unloading operations and DCR discharge data on a
Coast Guard form and to submit copies of those forms to us once each
quarter.
    Minimization and the DCR management plan. The final rule requires
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 will be
on discharge minimization, not on minimizing DCR. Nor will 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
outcome, 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
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 includes 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 will 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 final rule are already
effectively minimizing those discharges. However, by making
minimization a regulatory requirement, we level the playing field to
ensure that all affected vessels engage in responsible discharge
minimization practices.
    The 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 will enforce discharge minimization by
making sure that the vessel has a DCR management plan on board, that
the plan is complete and addresses all required items, and that the
master or PIC ensures that the vessel and its crew operate according to
the plan. The Coast Guard can 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 is not present on the vessel or is 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 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 remains, on 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 Coast Guard's
inspectors are specifically trained and equipped to inspect vessels and
not shoreside facilities. We 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 management plan requirement is that
the plan must be revised whenever there is a substantive change to the
procedures or to the equipment the vessel uses to manage dry cargo
residues. Although regular or periodic revisions of the management plan
are not required under this rule, vessel owners must maintain the plan
in a manner that assures it accurately reflects the current procedures,
practices, and technology employed in managing DCR 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'' are
specifically defined in 33 CFR 151.66(b)(2) and include practices for
installation, maintenance, operation, training, and supervision
relating to bulk dry cargo transfer and DCR control measures. A primary
premise of this 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''
is defined 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.'' A
vessel's compliance with this requirement of the rule will 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 can consider this as
evidence of failure to maintain the plan, failure to minimize DCR
discharges, or both.
    Limestone and clean stone. While we retain the interim rule's
approach toward the discharge of DCR in general, we are tightening
restrictions on limestone and clean stone DCR discharges. For most
substances, DCR discharges have been and 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
believe this standard is too subjective and that it could be difficult
for vessel crews to determine whether or not a stone DCR discharge will
have an apparent impact on the local environment. Therefore, we are
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 interim rule's FEIS 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 costs from the extension of the
exclusion zone. (We will 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.) This change
ensures that near-shore wetlands, fish spawning areas, and potable
water intakes within the entire Great Lakes ecosystem are protected
from DCR discharges, and it simplifies understanding and compliance
with the rule for the regulated industry. It should also mitigate an
environmental impact identified in the interim rule's FEIS; that is,
possible changes in the physical structure of the lake bottom sediment,
which may cause a less than 10 percent increase in zebra and quagga
mussels' attachment rates.
    Recordkeeping and reporting. We are retaining the interim rule's
requirement, in 33 CFR 151.66(c), for vessels to keep detailed records
of their bulk dry cargo loading and unloading operations and their DCR
discharges. However, effective February 28, 2015 we will relax the
interim rule's requirement in section 151.66(c)(3)(iv), for these
records to be kept on Coast Guard Form CG-33, and for copies of the
records to be submitted to the Coast Guard on a quarterly basis. Our
SNPRM, 77 FR at 44531, col. 1, stated that ``[w]e lack sufficient
information to remove the reporting requirement at this time.'' Form
CG-33 greatly facilitated our research in preparation for issuing this
final rule, but we have since concluded that while reporting on Form
CG-33 may have value in monitoring the first year of operation under
the final rule, after that time it will no longer be necessary to use
Form CG-33, and no longer necessary to submit reports. This should
reduce industry's recordkeeping and reporting burden. We have also
concluded that we have good cause to relieve this burden without
additional public notice or opportunity to comment, because after the
first year of operation under the final rule it will be unnecessary and
contrary to the public interest, within the meaning of 5 U.S.C. 553, to
impose that burden.

VI. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders (E.O.s) 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 rule is not a significant regulatory action under section 3(f)
of E.O. 12866 as supplemented by E.O. 13563 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
E.O. 12866. The Office of Management and Budget (OMB) has not reviewed
it under E.O. 12866. Nonetheless, we developed an analysis of the costs
and benefits of the rule to ascertain its probable impacts on industry.
A final Regulatory Assessment follows:
    We received public comments related to this rulemaking, which are
summarized in part IV of this preamble. There was one comment
addressing the possible costs incurred by vessels due to port delays in
order to perform the broom clean standard. As mentioned in part IV, we
observed the loading and unloading practices of vessels operating on
the Great Lakes, and found their practice is to maintain a clear deck
as loading or unloading operations are taking place. Therefore, we do
not anticipate vessels having to be burdened with an additional $2,000
(as stated by the commenter) to perform broom cleaning at dockside.
    The final rule will 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 (the baseline used
for this rulemaking) and the final rule. It summarizes any changes in
the component that will be in effect in this final rule.

                                          Table 1--No-Action (IR) and Preferred Alternative Comparison Summary
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Final rule provision   Change from IR to final
      Provision description            IR Provision       IR Provision synopsis   Final rule provision          synopsis                   rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping....................  33 CFR                Vessels must record all  NA..................  .......................  Recordkeeping
                                    151.66(c)(1)(iv).     DCR loading,                                                            requirement would
                                                          unloading, and                                                          remain in place.
                                                          sweeping on Form CG-33.                                                 However, after the
                                                                                first year of
                                                                                implementation, vessel
                                                                                operators will have
                                                                                the option of
                                                                                continuing to use Form
                                                                                CG-33. The industry
                                                                                would not incur any
                                                                                change in cost.
Reporting/ Certification.........  33 CFR 151.66         The data collected are   NA..................  .......................  Vessels will continue
                                    (c)(1)(iv).           used to determine                                                       to certify and submit
                                                          vessel practices in                                                     reports on a quarterly
                                                          handling DCR, and the                                                   basis for 13 months
                                                          amount of DCR that is                                                   after the publication
                                                          being managed by the                                                    of the final rule (no
                                                          vessels.                                                                cost added to the
                                                                                rule). After the 13
                                                                                month period, this
                                                                                requirement will be
                                                                                eliminated, thereby
                                                                                giving industry a cost
                                                                                saving.
Limestone and 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 discharges,    cost change; our
                                                          the 3-mile near-shore                          under the final rule,    research indicates
                                                          sweeping boundary.                             would not be allowed     that vessels already
                                                          Under the IR, these                            within 3 miles of        avoid DCR discharges
                                                          commodities can be                             shore.                   within 3 miles of
                                                          discharged anywhere                                                     shore because of near-
                                                          along the shoreline,                                                    shore operational
                                                          provided there is no                                                    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 amount                         151.66(b) in the IR      associated with the
                                                          of DCR going into the                          dealing with voluntary   removal of this IR
                                                          water and the use of                           minimization would be    requirement. (See the
                                                          control measures to                            removed in the final     management plan below
                                                          reduce the amount of                           rule.                    for details on
                                                          DCR falling on the                                                      mandatory
                                                          decks and tunnels of                                                    minimization.)
                                                          vessels.
Broom clean standard.............  NA..................  .......................  33 CFR 151.66(b)(3).  This requirement         Vessels would realize a
                                                                                stipulates that          new cost for this
                                                                                vessels must show that   requirement. We
                                                                                decks have been swept    anticipate that
                                                                                to a standard that is    vessels would see an
                                                                                in keeping with the      annual cost increase
                                                                                mandatory minimization   ranging from $14,203
                                                                                requirement of this      to $53,263
                                                                                final rule.              (undiscounted).
                                                                                Foreign vessels would
                                                                                incur an average
                                                                                annual cost of $28,847
                                                                                (undiscounted). 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 describe   The new requirement
                                                                                the specific measures    would have an initial
                                                                                the vessel's crew        year cost of $24,777
                                                                                employs to ensure the    (undiscounted) to
                                                                                minimization of bulk     prepare a management
                                                                                DCR discharge.           plan. After the
                                                                                initial year, existing
                                                                                U.S. vessels would not
                                                                                incur additional costs
                                                                                (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
                                                                                undiscounted) 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 the Coast
                                                                                Guard with the means
                                                                                of policing DCR
                                                                                discharge.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Costs
    The final 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 final rule will
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 will use equipment already available on board their
vessels to comply with this rule (for further information on specific
measures currently being used, see FEIS).
    We estimated the annualized costs of the final rule for the U.S.
fleet to range from $17,500 to $56,298 (with a per vessel average cost
of $671), and the annualized costs to 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 rule. We also estimated an annualized cost saving of $11,595 for
the U.S. fleet and $8,442 for the foreign fleet; both costs are
reported at 7 percent discount.

Table 2--Summary of Affected Population, Costs and Benefits of the Final
                                  Rule
------------------------------------------------------------------------

------------------------------------------------------------------------
                           Affected Population
------------------------------------------------------------------------
U.S..................................  55 Vessels (14 owners).
Foreign..............................  85 Vessels.
                                      ----------------------------------
    Total............................  140 Vessels.
------------------------------------------------------------------------
                                Costs \1\
------------------------------------------------------------------------
U.S..................................  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.
------------------------------------------------------------------------
                               Savings \2\
------------------------------------------------------------------------
U.S..................................  Annualized = $11,959.
                                       9 year cost savings = $83,992.
Foreign..............................  Annualized = $8,442.
                                       9 year cost savings = $59,295.
------------------------------------------------------------------------
                                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.
------------------------------------------------------------------------
\1\ Costs are presented as ranges and estimated using a 7 percent
  discount rate.
\2\ Savings do not occur until 13 months after the publication of the
  final rule.

    The final rule will 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 operating anywhere on the Great Lakes, to
have a management plan on board 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 final rule because they are
required to meet the similar waste management plan requirement in Annex
V of the International Convention for the Prevention of Pollution from
Ships (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 final rule.
    We estimate that the final rule will 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 the 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 final rule 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 shows estimated costs for developing the management plan
required by 33 CFR 151.66(b)(4) and for having a hard copy of the plan
on board and available for Coast Guard inspection.
[GRAPHIC] [TIFF OMITTED] TR31JA14.021

    In addition to the management plan, the final rule will 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 AB would be tasked with maintaining
the broom clean standard as required under this 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 (undiscounted). Costs are based
on all vessels making an average of 60 trips per year.\2\
---------------------------------------------------------------------------

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

                                                                  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 clean   of trips/       crew         yr.       Total cost
                                                                                hatches       swept                      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
(undiscounted). 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 clean   of trips/       crew         yr.       Total cost
                                                                                hatches       swept                      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 clean   of trips/       crew         yr.       Total cost
                                                                                hatches       swept                      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 (undiscounted) and recurring annual costs
ranging from $14,203 to $53,001 (undiscounted). Table 6 shows the U.S.
fleet cost estimate for the 10-year period of analysis.

[GRAPHIC] [TIFF OMITTED] TR31JA14.022

    In addition, we estimate that foreign vessels would incur a first-
year cost that ranges from $15,249 to $59,527 (undiscounted). 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 the recurring cost of all foreign vessels to range
from $13,719 to $47,035 (undiscounted). Table 7 shows the U.S. fleet
cost estimate for the 10-year period of analysis.

[GRAPHIC] [TIFF OMITTED] TR31JA14.023

    The final rule will 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 prohibition of these
discharges will not incur any additional cost to the fleet.
Savings
    The costs estimated in the final rule will be offset by eliminating
(13 months after the publication of the final rule) the requirement for
vessel owners or operators to submit a master-certified report to the
Coast Guard on a quarterly basis. The submission of the reports was a
temporary requirement that provided needed information throughout the
rulemaking process. Now that the final rule is being published, there
is no need to continue having vessel owners or operators submit these
documents to the Coast Guard. However, information regarding DCR
discharge will still be maintained on board all vessels as part of the
recordkeeping requirement. In addition, the vessel owner or operator
will have the option of using or not using Form CG-33 to record DCR
discharges.
    We estimated an annual savings to the U.S. fleet at $13,794
(undiscounted), and a foreign savings of $9,738 (undiscounted). The
total 9-year \3\ savings for the U.S. fleet is estimated at $83,992 and
foreign at $59,295, both discounted at 7 percent. The annualized
savings for the U.S. fleet and foreign fleet is estimated at $11,959
and $8,442 respectively; both are discounted at 7 percent. Table 8
shows anticipated savings for both U.S. and foreign fleets.
---------------------------------------------------------------------------

    \3\ The decision to remove the requirement for submitting DCR
discharge reports to the Coast Guard (13 months after the
publication of this rule), causes the estimated industry saving to
start in year 2. Hence, estimated cost savings are done using a 9-
year estimate with the exception of the annualized cost which is
taken over a 10-year period of analysis. Annualized savings uses a
10-year approach to appropriately measure total effective cost of
this rulemaking on industry.

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

[GRAPHIC] [TIFF OMITTED] TR31JA14.024

    We estimate total annualized cost to industry (U.S. and foreign) of
the final rule to be $9,206 to $66,551, and the total discounted 10-
year costs to industry to be $64,656 to $467,427 (values discounted at
7 percent). We do not expect that there will be additional government
costs required to implement the changes from this final rule.
Benefits
    We examined the benefits of the 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 final rule sets a performance
standard that allows the industry to determine its most efficient
methods to minimize DCR discharges.
    We anticipate that the final rule will change the current industry
behavior of discharging DCR into the waters of the Great Lakes. The
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 will be able to consider
how well a vessel's plan reflects then-current industry standard
practices. This will 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 will 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 final rule
will not impose a rigid prescriptive standard, but will 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 final rule will do more to minimize the
volume of DCR discharge going into the waters of the Great Lakes and
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 final
rule 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 rejected it because
over time a vessel's baseline operational equipment will wear out and
need replacement. Also, 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 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 nine small entities
affected by this rule classified under one of the following North
American Industry Classification System (NAICS) 6-digit codes for water
transportation. We have provided a summary table with all NAICS codes
impacted by this rulemaking with a description of the NAICS codes and
what constitutes a small business as per the U.S. Small Business
Administration's (SBA) guidelines.

                         Table 9--Summary of SBA Small Business Standards by NAICS Codes
----------------------------------------------------------------------------------------------------------------
                                                                                Small business
         NAICS Codes                  Descriptions               Small business by revenue         by employee
----------------------------------------------------------------------------------------------------------------
238910......................  Site Preparation Constructor  $14 million.......................
483113......................  Coastal and Great Lakes                                                        500
                               Freight Transportation.
484110......................  General Freight Trucking      $25 million.......................
                               Local.
487210......................  Scenic & Sightseeing          $7 million........................
                               Transportation Water.
483212......................  Inland Water Passenger                                                         500
                               Transportation.
483211......................  Inland Water Freight........                                                   500
----------------------------------------------------------------------------------------------------------------

    According to the SBA's size standards, a U.S. company classified
under one of the above mentioned NAICS codes with annual revenues not
to exceed, as indicated in Table 9, $14 million, $25 million, and $7
million respectively, and have fewer than 500 employees is considered a
small business. We estimate the cost of this final rule to be less than
1 percent of revenue for 100 percent of the small entities for both
initial and recurring costs. The average estimated annual costs per
small entity complying with the final rule is $4,797 discounted at 7
percent.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this final rule will not have a significant economic impact on a
substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking. 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 final rule calls 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 the information
collection, 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 rulemaking relates to an existing OMB-approved collection of
information, 1658-0072, revisions for which are pending OMB approval.
    OMB Control Number: 1625-0072.
    Title: Waste Management Plans, Refuse Discharge Logs, Letters of
Instruction for Certain Persons in Charge (PIC), and Great Lakes Dry
Cargo Residue Recordkeeping.
    Summary of the Collection of Information:
    The Information Collection Request (ICR) is a collection of
recordkeeping requirements that documents management of waste on board
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 MARPOL 73/78 from
ships' letters of instruction for certain PIC and the DCR
recordkeeping.
    This 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 rule will
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.
    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, will be affected by the management plan requirement.
    Number of Respondents: The management plan would have a total
number of 99 \4\ (14 U.S. Firms + 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.
---------------------------------------------------------------------------

    \4\ The number of foreign vessels affected has been updated
(from the interim rule) due to information being provided to the
Coast Guard 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 a 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, 50 percent of non-Canadian foreign vessels would be required
to develop a management plan each year, since we estimate that this
percentage of vessels 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 Lakes, and that it would only affect the burden of response
in the first year that the 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 (undiscounted).
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 (undiscounted).
    Estimate of Total Annual Burden: The rule will not have an annual
cost burden for U.S. and Canadian vessels after the rule's first year
of implementation (see ``BURDEN OF RESPONSE,'' earlier in this final
rule). After the first year, non-Canadian foreign vessels will incur an
annual burden. We anticipate non-Canadian vessels will incur an annual
burden of 11 hours for management plan development at a cost of $1,530
(undiscounted).
    After February 28, 2015, we will no longer require vessels to
submit DCR discharge records to the Coast Guard each quarter, which
will reduce the industry annual reporting burden by 18 hours.
    As required by the Paperwork Reduction Act of 1995, we have
submitted a copy of this rule to OMB for its review of the collection
of information.
    You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Before the Coast
Guard can enforce the collection of information requirements in this
rule, OMB must approve the Coast Guard's request to collect this
information.

E. Federalism

    A rule has implications for federalism under E.O. 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 rule under E.O. 13132 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 this final
rule 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 rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

G. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

    This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, 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. 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 rule under E.O. 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 E.O. 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 (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
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 rule does not use
technical standards. Therefore, we did not consider the use of
voluntary consensus standards.

M. Environment

    We have analyzed this 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 Environmental
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The FEIS and ROD
appear in the docket.

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 amends
33 CFR part 151 as follows:

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

0
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).

0
2. Revise Sec.  151.66 to read as follows:

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

    (a) Except as otherwise provided in this section, no person on
board any ship may discharge garbage into the navigable waters of the
United States. Cleaning agents or additives contained in deck and
external surface wash water may be discharged only if these substances
are not harmful to the marine environment.
    (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 and in paragraph (c) of this
section--
    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 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 Dischrges 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