Dry Cargo Residue Discharges in the Great Lakes, 56492-56501 [E8-22670]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 189 (Monday, September 29, 2008)]
[Rules and Regulations]
[Pages 56492-56501]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22670]


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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: Interim rule; request for comments.

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SUMMARY: The Coast Guard is amending its regulations to allow the 
discharge of bulk dry cargo residue (DCR) in limited areas of the Great 
Lakes by self-propelled vessels and by any barge that is part of an 
integrated tug and barge unit. DCR is the residue of non-toxic and non-
hazardous bulk dry cargo like limestone, iron ore, and coal. These 
regulations also add new recordkeeping and reporting requirements and 
encourage carriers to adopt voluntary control measures for reducing 
discharges. Discharges are now prohibited in certain protected and 
sensitive areas where, previously, they were allowed. The Coast Guard 
also requests public comments on the need for and feasibility of 
additional conditions that might be imposed on discharges in the 
future, such as mandatory use of control measures, or further 
adjustments to the areas where discharges are allowed or prohibited.

DATES: This interim rule takes effect September 29, 2008. Initial 
reports under amended 33 CFR 151.66(c)(4) are due January 15, 2009. 
Comments and related material submitted in response to the request for 
comments must reach the Docket Management Facility on or before January 
15, 2009.

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 at https://www.regulations.gov.
    We encourage you to submit comments identified by Coast Guard 
docket number USCG-2004-19621 to the Docket Management Facility at the 
U.S. Department of Transportation. To avoid duplication, please use 
only one of the following methods:
    (1) Online: https://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (4) Fax: 202-493-2251.
    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act system of 
records notice regarding our public dockets in the January 17, 2008 
issue of the Federal Register (73 FR 3316).

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call LT Heather St. Pierre, U.S. Coast Guard, telephone 202-372-
1432 or e-mail Heather.J.St.Pierre@uscg.mil. If you have questions on 
viewing or submitting material to the docket, call Ms. Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Acronyms
II. Regulatory History and Good Cause for Immediate Effectiveness
III. Background, Purpose, and Discussion of Rule
IV. Discussion of Comments
V. Request for Additional Comments
VI. Regulatory Evaluation
    A. Executive Order 12866
    B. Small Entities
    C. Assistance for Small Business
    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. Acronyms

APA Administrative Procedure Act
DCR Dry Cargo Residue

[[Page 56493]]

DEIS Draft Environmental Impact Statement
FEIS Final Environmental Impact Statement
IEP Interim Enforcement Policy
NPRM Notice of Proposed Rulemaking
ROD Record of Decision

II. Regulatory History and Good Cause for Immediate Effectiveness

    In the Federal Register on May 23, 2008, we published a notice of 
proposed rulemaking (NPRM) and a notice of availability for the 
accompanying Draft Environmental Impact Statement (DEIS) (73 FR 30014). 
We received written comments on the proposed rule from 55 sources, and 
heard from 3 commenters at public meetings. The public meetings were 
announced in the Federal Register on June 6, 2008 (73 FR 32273) and 
held in Duluth, MN, and Cleveland, OH, on July 15 and 17, 2008, 
respectively. Availability of the Final Environmental Impact Statement 
(FEIS) was announced on August 22, 2008, by the Environmental 
Protection Agency (73 FR 49667) and by the Coast Guard (73 FR 49694), 
and the Record of Decision (ROD) adopting the findings of the FEIS was 
signed on [DATE].
    This interim rule takes effect immediately upon its publication in 
the Federal Register. Under the Administrative Procedure Act (APA), 5 
U.S.C. 553(d), a substantive rule such as this must be published not 
less than 30 days before its effective date, unless the agency finds 
good cause for an earlier effective date and publishes that finding 
with the rule. As we subsequently discuss in more detail, this rule 
generally allows the continuation of existing practices in the Great 
Lakes. Those practices have been sanctioned by Congress and, although 
they have minor indirect adverse impacts on the Great Lakes 
environment, their discontinuation could impose a substantial economic 
burden on Great Lakes maritime commerce. Congressional sanction for the 
existing practices expires on September 30, 2008, and it was Congress's 
intent that the Coast Guard review existing practices and issue new 
regulations governing those practices by that date. If the APA's 30-day 
provision were given effect, then there would be a period of up to a 
month during which existing practices would be prohibited, and the 
resulting burden on Great Lakes maritime commerce would be significant 
in relation to the duration of the prohibition and the potential 
environmental benefits of such a short prohibition. The Coast Guard has 
concluded the APA's 30-day provision is unnecessary and contrary to the 
public interest due to the disruption entailed by so short a period of 
prohibition. Therefore, the Coast Guard finds good cause for this 
interim rule to take effect upon publication in the Federal Register.

III. Background, Purpose, and Discussion of Rule

    This interim rule adopts the regulatory text proposed in our May 
2008 NPRM, with only minor changes. For a fuller discussion of the 
background and purpose of this rulemaking, please consult the NPRM.
    A substantial portion of Great Lakes shipping involves ``bulk dry 
cargos:'' principally limestone, iron ore, and coal, but also lesser 
quantities of other substances like cement and salt. During ship 
loading or unloading operations, small portions of these cargos often 
fall on ship decks or within ship unloading tunnels. This fallen dry 
cargo residue (DCR) can contaminate other cargos or cause crew members 
to slip or otherwise injure themselves on a ship's deck. Traditionally, 
Great Lakes carriers have managed DCR by periodically washing both the 
deck and cargo unloading tunnels with water in a practice commonly 
known as ``cargo sweeping.'' In order to reduce costs and minimize in-
port time, ships typically conduct this cargo sweeping underway while 
transiting between ports.
    Prior to the adoption of this interim rule, Coast Guard regulations 
that implement the Act to Prevent Pollution from Ships (APPS), 33 
U.S.C. 1901 et seq., have treated DCR as an operational waste, which 
constitutes garbage. The discharge of any garbage, anywhere on the 
navigable waters of the United States, was prohibited. Strict 
enforcement of this regulatory scheme on the Great Lakes would have put 
an end to the practice of cargo sweeping. However, in recognition of 
the special characteristics of Great Lakes dry cargo shipping, an 
``interim enforcement policy'' (IEP) allowed ``incidental discharges'' 
of non-toxic and non-hazardous DCR on the Great Lakes from 1993 until 
2008. The IEP was originally adopted by the Coast Guard's Ninth 
District, and then mandated by Congress in 1998, 2000, and 2004 (Pub. 
L. 105-383, sec. 415; Pub. L. 106-554, sec. 1117; Pub. L. 108-293, sec. 
623). The IEP allowed cargo sweeping only in defined waters, most of 
which are relatively deep and far from shore. Additionally, it 
prohibited or restricted discharges in special areas that are 
considered environmentally sensitive. The congressionally mandated 
enforcement of the IEP expires September 30, 2008, or upon the 
promulgation of new regulations, whichever date comes first.
    The 2004 legislation gave the Coast Guard authority to regulate the 
discharge of DCR on the Great Lakes, notwithstanding any other law 
(Pub. L. 108-293, sec. 623(b)). The Coast Guard interprets this 
authority to allow regulation on the Great Lakes, on water or on shore, 
of any operation related to the loading, transfer, or unloading of dry 
bulk cargo, or to cargo sweeping or other discharge of dry bulk cargo 
residue. All of these operations relate to and are part and parcel of 
the discharge of dry bulk cargo, as contemplated by Congress in the 
2004 legislation. House Report 108-617, the conference report prepared 
in support of the 2004 legislation, states:

    It is expected that the [IEP] will be made permanent or replaced 
with an alternative regime that appropriately balances the needs of 
maritime commerce and environmental protection.

    This interim rule amends Coast Guard regulations so that DCR 
discharges may continue in the U.S. waters of the Great Lakes, so long 
as those discharges are in compliance with regulatory conditions that 
derive, with modifications, from the IEP. One modification is non-
substantive: We are clarifying the current policy but not changing it, 
to exclude non-self propelled barges that are not part of an integrated 
tug and barge unit. Integrated tugs and barges remain included because 
they are designed and operated similarly to self propelled vessels of 
the same size and service. We are substantively modifying the IEP to 
add new recordkeeping and reporting requirements for dry cargo 
carriers. We are adding, to the list of locations in the Great Lakes 
where DCR discharges will not be allowed, additional areas that the 
Final Environmental Impact Study designates as protected and sensitive. 
Finally, we are strongly encouraging carriers to voluntarily adopt 
control measures for reducing the amount of DCR that accumulates on or 
within vessels and that would ultimately be discharged into the Great 
Lakes.
    Based on our Final Environmental Impact Statement, we have 
concluded that continued discharges of DCR will have only a minor 
indirect impact on most areas within the Great Lakes environment. The 
FEIS indicated that unconstrained discharges could have a direct 
significant adverse impact on protected and sensitive areas. We will 
mitigate that impact by prohibiting most discharges in those areas, and 
within three miles of land-based protected and sensitive areas. Only 
discharges under certain conditions and in specified areas

[[Page 56494]]

will be allowed in the Western Basin of Lake Erie, in order to avoid 
the adverse economic impact that the FEIS indicates could accompany the 
complete prohibition of discharges in that area. Vessels operating 
exclusively in the Western Basin will be allowed to discharge 
limestone, clean stone, coal, iron ore, and salt in dredged navigation 
channels between Toledo Harbor Light and Detroit River Light, where 
environmental conditions are already disturbed frequently due to 
dredging.

IV. Discussion of Comments

    We received 55 comments during the public comment period on our May 
2008 NPRM, as well as comments from 3 individuals at our two public 
meetings. Few, if any, commenters distinguished between the DEIS and 
NPRM in their comment, and therefore all comments were considered for 
both documents. We have addressed the comments in detail in the FEIS, 
which was made available to the public on August 22, 2008. In response 
to public comments, we are extending the areas where DCR discharges are 
prohibited to include waters within three miles of shore at the 
following sites: Indiana Dunes and Sleeping Bear National Lakeshores on 
Lake Michigan and Grand Portage National Monument and Apostle Islands 
and Pictured Rocks National Lakeshores on Lake Superior. Otherwise, we 
are adopting the regulatory text we proposed in the NPRM without 
substantive change.
    A table presenting the substance of each comment received, and the 
Coast Guard's response, appears in the FEIS which can be found in the 
docket at https://www.regulations.gov. The comments, and our responses, 
are summarized in the following discussion. During the drafting of this 
interim rule, we received late comments which did not raise new 
substantive issues and did not affect the following discussion.
    Comments in favor of prohibiting continued DCR discharges. Forty-
six commenters favored prohibiting continued DCR discharges in the 
Great Lakes. We agree with these commenters that our environmental 
analysis shows that prohibition could minimize the potential for 
adverse environmental impacts, but disagree that DCR discharges should 
be completely prohibited. In giving the Coast Guard permanent 
regulatory authority over Great Lakes DCR discharges, Congress expected 
us to strike an appropriate balance between maritime commercial and 
environmental protection needs. By balancing the adverse environmental 
impact of continued DCR discharges in the Great Lakes against the 
potentially substantial economic cost of prohibiting discharges 
anywhere in the Great Lakes, we believe this interim rule best achieves 
Congress' intent.
    Comments on the toxicity of DCR. Fifteen commenters expressed 
concern regarding toxic chemicals in DCR and their effects on humans, 
animals, and plants. As recounted in detail in the FEIS, we have 
carefully evaluated the toxic potential of DCR. In general, we found 
that any toxic components of DCR deposits in the Great Lakes do not 
exist in concentrations known to be toxic to organisms. In those few 
instances where a cargo's residue concentration can be found near or 
above potentially harmful levels, natural sedimentation lowers the 
concentration to well below potentially harmful levels. There is little 
or no potential for any fish with toxic concentrations in their tissues 
to enter the food chain. Moreover, the inclusion of mandatory 
recordkeeping in our interim rule will enable us to track future DCR 
discharges, and should environmental conditions change significantly in 
the future, we retain the regulatory authority needed to address those 
changed conditions.
    Comments on the impact of DCR on invasive mussels and the aquatic 
environment. Eight commenters expressed concern regarding invasive 
mussels and the aquatic environment. The FEIS contains detailed 
information about how we evaluated the impact of DCR on the aquatic 
environment, especially with respect to invasive mussels. We found 
minor adverse effects on sediment physical structure, the benthic 
community, and invasive species. Except in portions of Lakes Michigan 
and Huron where the potential impact is minor, the discharge of DCR 
will not change the distribution or density of mussels in most of the 
Great Lakes, either because mussels are already ubiquitous (e.g., in 
Lakes Erie and Ontario) or because water depth, temperature, and 
calcium levels limit mussel distribution and density (e.g., in Lake 
Superior). Once again, we believe our interim rule best achieves the 
legislative intention behind our regulatory authority by balancing the 
minor adverse impact of continued DCR discharges on sediment physical 
structure, the benthic community, and invasive species against the 
potential economic cost of prohibiting those discharges.
    Comments on the legality of the Coast Guard's proposal. Thirty-six 
commenters objected to the continued allowance of DCR discharge on the 
grounds that it is already illegal under U.S. or international laws, 
treaties, or agreements. Among the authorities listed by these 
commenters are the International Convention for the Prevention of 
Pollution from Ships (MARPOL), APPS, the Great Lakes Water Quality 
Agreement (GLWQA), and State laws in Michigan, Minnesota, and 
Pennsylvania. We discuss the possible interplay between this interim 
rule and State law more fully in ``Federalism,'' Part V.E. of this 
preamble.
    This interim rule replaces the IEP with new regulations. We 
initially adopted the IEP in response to concerns that strict 
enforcement of existing authorities such as APPS would prohibit 
continued DCR discharge in the Great Lakes. Congress subsequently 
addressed that same concern by passing legislation in 1998, 2000, and 
2004 that required the Coast Guard to implement and enforce the IEP on 
the Great Lakes. In 2004, Congress also gave the Coast Guard authority 
``notwithstanding any other law'' to regulate the discharge of DCR in 
the Great Lakes. The legislative history of the 2004 legislation shows 
that Congress expected the Coast Guard to make the IEP permanent or 
replace the IEP with an alternative regime that appropriately balances 
maritime commercial and environmental protection needs. The 2004 
legislation is the latest expression of Congress's intentions with 
respect to regulating Great Lakes DCR discharge, and the basis for the 
Coast Guard's rulemaking.
    Comments relating to recordkeeping and reporting. Seventeen 
commenters either opposed mandatory recordkeeping and reporting as 
unnecessary, or asked for modifications in the record form or in the 
frequency of reporting. We agree that some minor modifications to the 
reporting form are appropriate which will be reflected in Form CG-33. 
However, we disagree that the quarterly reporting schedule requires 
excessively frequent reporting. We have found through the numerous 
rules and programs we administer that recordkeeping is an integral and 
important part of ensuring regulatory compliance. The Coast Guard is 
not requiring the recording or reporting of any data that constitutes 
trade secrets or privileged and confidential commercial or financial 
information. We consider the economic cost of our new recordkeeping and 
reporting requirements to be reasonable, especially considering the 
value of comprehensive DCR practice data and its potential relationship 
with natural resources. Data reported to the Coast Guard will be useful 
as we evaluate the costs and benefits of DCR control measures. 
Quarterly reporting ensures

[[Page 56495]]

that data is assembled quickly. Once our data collection needs are 
satisfied, we will likely retain the recordkeeping requirement, but may 
modify or eliminate the reporting requirement.
    We have removed the facsimile of Form CG-33 from the regulation, 
but included information on how to obtain the form itself in the 
regulatory text.

V. Request for Additional Comments

    In our May 2008 NPRM, we promised to open a new rulemaking to begin 
a new phase of DCR study, simultaneously with publication of the final 
rule for the present rulemaking. The new phase would consider what 
additional conditions, if any, should be imposed on DCR discharges in 
order to offset any long term impacts they might have.
    We have decided to conduct this new phase as part of the present 
rulemaking rather than as a separate project. Therefore, in this 
interim rule we announce the opening of the new phase, and strongly 
encourage you to submit public comments to assist us. We want to 
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 
discharges are currently allowed, or other regulatory changes.
    The outcome of this new phase is not predetermined. We might find a 
clear case for imposing new DCR control measure requirements and 
altering geographical boundaries. Alternatively, we might find that the 
costs of any new regulatory measures outweigh the environmental 
benefits the new measures would provide, and leave our regulations 
unchanged. In determining the regulatory outcome, we intend to be 
guided by data on DCR discharges and on DCR control measures that are 
already in voluntary use, and by careful consideration of public 
comments. The DCR control measures we have identified for analysis are 
listed in the Table below.

           Table--Potential Dry Cargo Residue Control Measures
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Shipboard measures:
    Enclosed conveyor.
    Troughed conveyor.
    Conveyor skirts.
    Belt scrapers.
    Water mist for dust control.
    Conveyor capacity indicators.
    Deck remote controls for conveyors.
    Stop conveyor while ship or belt is repositioned.
    Delay loading/unloading during high wind.
    Radio communication between deck and loader.
    Crew training on procedures to reduce DCR.
    Limit vertical angle of conveyor boom.
    Broom & shovel.
    Tarps to collect DCR.
    Cargo hold vibrator.
    Watertight gate seal.
    Cargo hold lining.
    Minimize hatch removal during poor weather.
    Careful cargo hold gate operation.
Shoreside measures:
    Enclosed conveyor.
    Troughed conveyor.
    Conveyor skirts.
    Belt scrapers.
    Water mist for dust control.
    Conveyor capacity indicators.
    Deck remote controls for conveyors.
    Stop conveyor while ship or belt is repositioned.
    Delay loading/unloading during high wind.
    Radio communication between deck and loader.
    Crew training on procedures to reduce DCR.
    Limit vertical angle of conveyor boom.
    Flow feeder.
    Loading chute, including telescoping or conveyors.
    Chemical surfactants.
    Suction pumped cargo, slurry transport, pneumatic or screw
     conveyors.
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    To better focus our efforts, we invite you to respond to the 
following questions:
    1. Is there a control measure, other than those listed in the 
Table, that we should study?
    2. Do you have data on the cost of installing, operating and 
maintaining control measures or their effectiveness in reducing the 
volume of DCR discharged? Can you identify a data source we should 
consult?
    3. If control measures were to be required, are you in favor of a 
phase-in, and if so, how might the phase-in be structured?
    4. Are you in favor of limiting the areas in which control measures 
should be required, and if so, what are the areas where those 
requirements should apply?
    5. Are there other changes the Coast Guard should make in order to 
regulate the long term discharge of DCR in the Great Lakes in a way 
that is both economically and environmentally sustainable?
    Please see the ADDRESSES section of this document for information 
on how you can share your responses to these questions with us.

[[Page 56496]]

VI. Regulatory Evaluation

A. Executive Order 12866

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    Public comments on the NPRM are summarized in Part IV of this 
preamble. We received no public comments that would alter our 
assessment of impacts in the NPRM. We have adopted the assessment in 
the NPRM as final. See the ``Regulatory Evaluation'' section of the 
NPRM for the complete analysis. A summary of the assessment follows.
    The recordkeeping provisions in this rule require owners and 
operators of self propelled vessels to maintain records and report 
information on dry cargo operations. This rule does not require the use 
of control measures to reduce the amount of residue swept into the 
Great Lakes.
    There are minimal costs involved in requiring owners and operators 
of vessels to keep records of their bulk dry cargo residue sweeping 
operations and to make those records available to the Coast Guard. 
Moreover, many vessel operators already record this information 
voluntarily. We identified 55 U.S., 33 Canadian, and 186 non-Canadian 
foreign vessels operating on the Great Lakes affected by the 
recordkeeping and reporting requirements of this rule.
    We estimate the annual recurring cost of this rule to industry, 
both U.S. and foreign, to be $88,828 (non-discounted). The total 
combined U.S. and foreign 10-year (2009-2018) present value cost of 
this rule is $623,891 discounted at 7 percent and $757,721 discounted 
at 3 percent.
    We estimate the annual recurring cost of this rule to U.S. industry 
to be $60,077 (non-discounted). The total U.S. 10-year (2009-2018) 
present value cost of this rule is $421,956 discounted at 7 percent and 
$512,469 discounted at 3 percent. See the ``Regulatory Evaluation'' 
section of the NPRM for additional details of the population and cost 
estimates.
    This rule will increase the Coast Guard's ability to understand the 
practice of dry cargo sweeping, monitor the practice, and, if 
necessary, subject the practice of dry cargo sweeping to further 
controls in the future.

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.
    In the NPRM, we certified under 5 U.S.C. 605(b) that the proposed 
rule would not have a significant economic impact on a substantial 
number of small entities and we requested public comments on this 
certification. We received no comments on this certification and adopt 
it as final.
    In the NPRM, we identified 13 small entities affected by this rule 
involving inland water freight transportation, marine cargo handling, 
packaging and labeling services, and other navigation related 
industries. We estimated the per vessel annual cost impact of this 
rulemaking on small entities to be about $1,092. We determined that the 
cost of the recordkeeping and reporting requirements would not 
significantly impact the annual operating revenues of the affected 
small entities. See the ``Small Entities'' section of the NPRM for more 
details.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this interim rule will not have a significant economic impact on a 
substantial number of small entities.

C. Assistance for Small Business

    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. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance; please consult Lt St. Pierre (see FOR FURTHER 
INFORMATION CONTACT).
    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). 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.

D. Collection of Information

    This rule calls for a new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 
CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. A summary of 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. This information has 
not changed from the NPRM. 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. See the ``Collection of Information'' section of the NPRM 
for additional details.
    Title: Dry Cargo Residue Sweepings in the Great Lakes.
    Summary of the Collection of Information: These DCR recordkeeping 
provisions will require vessel operators to maintain a DCR log to 
document what dry cargos are loaded, unloaded, and swept, when they are 
swept, how they are swept, how much is swept, what control measures, if 
any, are in place, and where, when, and how fast the vessel is 
traveling when the sweepings take place.
    Need for Information: By making DCR recordkeeping mandatory, we 
will greatly increase our ability to understand the practice of dry 
cargo sweeping, monitor the practice, and if necessary, subject the 
practice of DCR sweeping to further controls in the future.
    Proposed Use of Information: The DCR recordkeeping and reporting 
requirements will provide additional data to support Coast Guard 
analysis of policies to reduce DCR discharges over the long term, 
beyond the next 6 to 10 years.
    Description of the Respondents: The respondents are owners and 
operators of U.S., Canadian, and foreign flag vessels carrying dry-bulk 
cargos operated on the Great Lakes. The respondents will conduct DCR 
recordkeeping and handle the submissions.
    Number of Respondents: Based on estimates from the NPRM, the total 
number of vessels that handle Great Lakes dry bulk cargo shipments is 
274 (= 55 U.S. vessels + 33 Canadian vessels

[[Page 56497]]

+ 186 non-Canadian foreign vessels). We estimate the number of 
respondents equal the number of vessels since there will be crew on 
each vessel recording the information.
    Frequency of Response: Based on estimates from the NPRM, the annual 
frequency of response is 10,615 for U.S. vessels and 5,153 for foreign 
vessels.
    Burden of Response: Based on estimates from the NPRM, the total 
annual burden hours for this rule are 886 hours for U.S. vessel 
operators and 448 hours for foreign vessel operators. We estimate the 
annual costs of this burden to be $60,077 (non-discounted) for U.S. 
operators and $28,751 for foreign operators.
    During public hearings, one commenter questioned the usefulness of 
collecting man hour data stating that recording man hours can vary 
greatly by interpretation and that the data will be unusable. The Coast 
Guard disagrees with the commenter. The man hour data provided by 
vessel masters will enable the Coast Guard to better estimate the 
burden of implementing DCR control measures. The information will 
provide a benchmark for measuring DCR-related man hours for the 
different alternatives under consideration. We have provided 
instructions and guidance for recording man hours. As discussed in the 
NPRM, we found many vessel operators already record this information 
voluntarily.
    As required by 44 U.S.C. 3507(d), we submitted a copy of the 
proposed rule to the Office of Management and Budget for its review of 
the collection of information. OMB approved the collection for 33 CFR 
part 151 and Form CG-33 on September 4, 2008, and the corresponding 
approval number from OMB is OMB Control Number 1625-0072, which expires 
on September 11, 2011.

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. The Coast Guard received 10 comments 
in response to our NPRM regarding the possible interplay between Coast 
Guard regulations and State laws that may relate to DCR discharges. We 
understand that at least some States in the Great Lakes region already 
have legislation that may prohibit certain solid waste discharges in 
their Great Lakes waters, and that certain of those States take the 
position that DCR may be or at least may contain solid waste. However, 
we do not agree with the commenters that the Federal regulation either 
expressly preempts or necessarily conflicts with those laws. Rather, 
and to clarify our Federalism statement in accordance with the 
responsibilities and the principles contained in EO 13132 regarding 
Federalism, the Coast Guard states that this regulation does not 
expressly preempt those State laws. Nor does the Coast Guard by 
promulgating this regulation take the position that such State laws 
facially frustrate an over-riding federal purpose. However, the 
ultimate question regarding preemption of State laws is a legal 
question that is subject to court interpretation and decision based on 
the application of particular facts to those individual laws. Because 
no court has ruled on the questions raised, the Coast Guard cautions 
carriers that they must comply with all applicable Federal and State 
laws regulating DCR discharges. 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 we have proposed.

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 or more in any 
one year. This rule will not result in such expenditure.

G. Taking of Private Property

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

H. Civil Justice Reform

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

I. Protection of Children

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

J. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it will not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

K. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This 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 5100.1 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 Final 
Environmental Impact Statement and Record of Decision appear in the 
docket.

[[Page 56498]]

List of Subjects in 33 CFR Part 151

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

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 151 as follows:

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

0
1. The authority citation for part 151 is revised 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).

Subpart A--Implementation of MARPOL 73/78 and the Protocol on 
Environmental Protection to the Antarctic Treaty as it pertains to 
Pollution From Ships

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.
    (b) On the United States' waters of the Great Lakes, commercial 
ships, excluding non-self propelled barges that are not part of an 
integrated tug and barge unit, may discharge bulk dry cargo residues in 
accordance with this paragraph and paragraph (c) of this section. 
Owners and operators of ships to which these paragraphs apply are 
encouraged to minimize the volume of dry cargo residues discharged 
through the use of suitable residue control measures onboard and by 
loading and unloading cargo at facilities that use suitable shoreside 
residue control measures. As used in this paragraph and 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, 90[deg]52'51.0'' W 
southwest along the shoreline to a point of land at 46[deg]52'56.4'' N, 
91[deg]3'3.1'' W.
    Bulk dry cargo residues means non-hazardous and non-toxic residues 
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                       85[deg]50.0' W
47[deg]24.2' N                       85[deg]38.5' W
47[deg]04.0' N                       85[deg]49.0' W
47[deg]05.7' N                       85[deg]59.0' W
47[deg]18.1' N                       86[deg]05.0' W
 

    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' N, 
083[deg]06' W along the U.S.-Canada boundary southward and clockwise 
connecting points:

42[deg]02' N                         083[deg]08' W
41[deg]54' N                         083[deg]06' W
41[deg]50' N                         083[deg]10' W
41[deg]44.52 N                       083[deg]22' W
41[deg]44.19 N                       083[deg]27' W
 

    Grand Portage National Monument means the site on or near Lake 
Superior, administered by the National Park Service, from a southwest 
corner of the monument point of land, 47[deg]57.521' 89[deg]41.245', to 
the northeast corner of the monument point of land, 47[deg]57.888' 
89[deg]40.725'.
    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.
    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 seakeeping 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 four and one-half miles of the shoreline of Isle Royale 
and the surrounding islands, including Passage Island and Gull Island.
    Mile means a statute mile, and refers to the distance from the 
nearest land or island;
    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                       87[deg]14.0' W
43[deg]21.2' N                       87[deg]02.3' W
43[deg]03.3' N                       87[deg]04.8' W
42[deg]57.5' N                       87[deg]21.0' W
43[deg]16.0' N                       87[deg]39.8' W
 

    Northern Refuge means the area enclosed by rhumb lines connecting 
the coordinates, beginning on the northernmost point and proceeding 
clockwise:

45[deg]45' N                         86[deg]00' W,
 


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

45[deg]30' N                         85[deg]30' W
45[deg]30' N                         85[deg]15' W
45[deg]25' N                         85[deg]15' W
45[deg]25' N                         85[deg]20' W
45[deg]20' N                         85[deg]20' W
45[deg]20' N                         85[deg]40' W
45[deg]15' N                         85[deg]40' W
45[deg]15' N                         85[deg]50' W
45[deg]10' N                         85[deg]50' W
45[deg]10' N                         86[deg]00' 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' N                         82[deg]33' W
44[deg]47' N                         82[deg]18' W
44[deg]39' N                         82[deg]13' W
44[deg]27' N                         82[deg]13' W
44[deg]27' N                         82[deg]20' W
44[deg]17' N                         82[deg]25' W
44[deg]17' N                         82[deg]30' W
44[deg]28' N                         82[deg]40' W
44[deg]51' N                         82[deg]44' W
44[deg]53' N                         82[deg]44' W
44[deg]54' N                         82[deg]40' 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 87[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 
87[deg]06.3' W;

[[Page 56499]]

    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                   83[deg]23'18.6'' W
45[deg]12'25.5'' N                   83[deg]00'00'' W
44[deg]51'30.5'' N                   83[deg]00'00'' W
44[deg]51'30.5'' N                   83[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                       87[deg]29.3' W
42[deg]13.0' N                       87[deg]25.1' W
42[deg]12.2' N                       87[deg]29.1' W
42[deg]18.1' N                       87[deg]33.1' W
42[deg]24.1' N                       87[deg]32.0' W; and
 

    Western Basin means that portion of Lake Erie west of a line due 
south from Point Pelee.

 Table 151.66(b)--Bulk Dry Cargo Residue Discharges Allowed on the Great
                                  Lakes
------------------------------------------------------------------------
                                                     Discharge allowed
           Location                   Cargo           except as noted
------------------------------------------------------------------------
Tributaries, their connecting   Limestone and      Prohibited where
 rivers, and St. Lawrence        other clean        there is an apparent
 River.                          stone.             impact on wetlands,
                                                    fish spawning areas,
                                                    and potable water
                                                    intakes.
                                All other cargos.  Prohibited.
Lake Ontario..................  Limestone and      Prohibited where
                                 other clean        there is an apparent
                                 stone.             impact on wetlands,
                                                    fish spawning areas,
                                                    and potable water
                                                    intakes.
                                Iron ore.........  Prohibited within 6
                                                    miles from shore.
                                All other cargos.  Prohibited within
                                                    13.8 miles from
                                                    shore.
Lake Erie.....................  Limestone and      Prohibited where
                                 other clean        there is an apparent
                                 stone.             impact on wetlands,
                                                    fish spawning areas,
                                                    and potable water
                                                    intakes; prohibited
                                                    in the Detroit River
                                                    International
                                                    Wildlife Refuge;
                                                    prohibited in
                                                    Western Basin,
                                                    except that a vessel
                                                    operating
                                                    exclusively within
                                                    Western Basin may
                                                    discharge limestone
                                                    or clean stone cargo
                                                    residues over the
                                                    dredged navigation
                                                    channels between
                                                    Toledo Harbor Light
                                                    and Detroit River
                                                    Light.
                                Iron ore.........  Prohibited within 6
                                                    miles from shore;
                                                    prohibited in the
                                                    Detroit River
                                                    International
                                                    Wildlife Refuge;
                                                    prohibited in
                                                    Western Basin,
                                                    except that a vessel
                                                    may discharge
                                                    residue over the
                                                    dredged navigation
                                                    channels between
                                                    Toledo Harbor Light
                                                    and Detroit River
                                                    Light if it unloads
                                                    in Toledo or Detroit
                                                    and immediately
                                                    thereafter loads new
                                                    cargo in Toledo,
                                                    Detroit, or Windsor.
                                Coal, salt.......  Prohibited within
                                                    13.8 miles from
                                                    shore; prohibited in
                                                    the Detroit River
                                                    International
                                                    Wildlife Refuge;
                                                    prohibited in
                                                    Western Basin,
                                                    except that a vessel
                                                    may discharge
                                                    residue over the
                                                    dredged navigation
                                                    channels between
                                                    Toledo Harbor Light
                                                    and Detroit River
                                                    Light if it unloads
                                                    in Toledo or Detroit
                                                    and immediately
                                                    thereafter loads new
                                                    cargo in Toledo,
                                                    Detroit, or Windsor.
                                All other cargos.  Prohibited within
                                                    13.8 miles from
                                                    shore; prohibited in
                                                    the Detroit River
                                                    International
                                                    Wildlife Refuge;
                                                    prohibited in
                                                    Western Basin.
Lake St. Clair................  Limestone and      Prohibited where
                                 other clean        there is an apparent
                                 stone.             impact on wetlands,
                                                    fish spawning areas,
                                                    and potable water
                                                    intakes.
                                All other cargos.  Prohibited.
Lake Huron except Six Fathom    Limestone and      Prohibited where
 Scarp Mid-Lake Special          other clean        there is an apparent
 Protection Area.                stone.             impact on wetlands,
                                                    fish spawning areas,
                                                    and potable water
                                                    intakes; prohibited
                                                    in the Thunder Bay
                                                    National Marine
                                                    Sanctuary.
                                Iron ore.........  Prohibited within 6
                                                    miles from shore and
                                                    in Saginaw Bay;
                                                    prohibited in the
                                                    Thunder Bay National
                                                    Marine Sanctuary;
                                                    prohibited for
                                                    vessels up bound
                                                    along the Michigan
                                                    thumb as follows:
                                                   (1) Between 5.8 miles
                                                    northeast of
                                                    entrance buoys 11
                                                    and 12 to the track
                                                    line turn abeam of
                                                    Harbor Beach,
                                                    prohibited within 3
                                                    miles from shore;
                                                    and
                                                   (2) For vessels bound
                                                    for Saginaw Bay
                                                    only, between the
                                                    track line turn
                                                    abeam of Harbor
                                                    Beach and 4 nautical
                                                    miles northeast of
                                                    Point Aux Barques
                                                    Light, prohibited
                                                    within 4 miles from
                                                    shore and not less
                                                    than 10 fathoms of
                                                    depth.
                                Coal, salt.......  Prohibited within
                                                    13.8 miles from
                                                    shore and in Saginaw
                                                    Bay; prohibited in
                                                    the Thunder Bay
                                                    National Marine
                                                    Sanctuary;
                                                    prohibited for
                                                    vessels up bound
                                                    from Alpena into
                                                    ports along the
                                                    Michigan shore south
                                                    of Forty Mile Point
                                                    within 4 miles from
                                                    shore and not less
                                                    than 10 fathoms of
                                                    depth.
                                All other cargos.  Prohibited within
                                                    13.8 miles from
                                                    shore and in Saginaw
                                                    Bay; prohibited in
                                                    the Thunder Bay
                                                    National Marine
                                                    Sanctuary.
Lake Michigan.................  Limestone and      Prohibited where
                                 other clean        there is an apparent
                                 stone.             impact on wetlands,
                                                    fish spawning areas,
                                                    and potable water
                                                    intakes; prohibited
                                                    within the Milwaukee
                                                    Mid-Lake and
                                                    Waukegan Special
                                                    Protection Areas;
                                                    prohibited within
                                                    the Northern Refuge;
                                                    prohibited within 3
                                                    miles of the shore
                                                    of the Indiana Dunes
                                                    and Sleeping Bear
                                                    National Lakeshores;
                                                    prohibited within
                                                    Green Bay.

[[Page 56500]]

 
                                Iron ore.........  Prohibited in the
                                                    Northern Refuge;
                                                    north of 45[deg] N,
                                                    prohibited within 12
                                                    miles from shore and
                                                    in Green Bay; south
                                                    of 45[deg] N,
                                                    prohibited within 6
                                                    miles from shore,
                                                    and prohibited
                                                    within the Milwaukee
                                                    Mid-Lake and
                                                    Waukegan Special
                                                    Protection Areas, in
                                                    Green Bay, and
                                                    within 3 miles of
                                                    the shore of Indiana
                                                    Dunes and Sleeping
                                                    Bear National
                                                    Lakeshores; except
                                                    that discharges are
                                                    allowed at:
                                                   (1) 4.75 miles off
                                                    Big Sable Point
                                                    Betsie, along
                                                    established Lake
                                                    Carriers Association
                                                    (LCA) track lines;
                                                    and
                                                   (2) Along 056.25[deg]
                                                    LCA track line
                                                    between due east of
                                                    Poverty Island to a
                                                    point due south of
                                                    Port Inland Light.
                                Coal.............  Prohibited in the
                                                    Northern Refuge;
                                                    prohibited within
                                                    13.8 miles from
                                                    shore and prohibited
                                                    within the Milwaukee
                                                    Mid-Lake and
                                                    Waukegan Special
                                                    Protection Areas, in
                                                    Green Bay, and
                                                    within 3 miles of
                                                    the shore of Indiana
                                                    Dunes and Sleeping
                                                    Bear National
                                                    Lakeshores; except
                                                    that discharges are
                                                    allowed:
                                                   (1) Along 013.5[deg]
                                                    LCA track line
                                                    between 45[deg] N
                                                    and Boulder Reef,
                                                    and along 022.5[deg]
                                                    LCA track running
                                                    23.25 miles between
                                                    Boulder Reef and the
                                                    charted position of
                                                    Red Buoy 2;
                                                   (2) Along 037[deg]
                                                    LCA track line
                                                    between 45[deg]20' N
                                                    and 45[deg]42' N;
                                                   (3) Along 056.25[deg]
                                                    LCA track line