[Federal Register Volume 59, Number 118 (Tuesday, June 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15062]
[[Page Unknown]]
[Federal Register: June 21, 1994]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 151
[CGD 94-003]
RIN 2115-AE76
Ballast Water Management for Vessels Entering the Hudson River
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes regulations to implement an amendment
to the Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 (the Act). The proposed regulations, if adopted, would require
Ballast Water Management practices for each vessel entering the Hudson
River, north of the George Washington Bridge, after operating on waters
beyond the Exclusive Economic Zone.
These rules would help to prevent the additional introduction of
nonindigenous aquatic nuisance species into the Great Lakes through the
ballast water of vessels operating on the Hudson River.
DATES: Comments must be received on or before August 22, 1994.
ADDRESSES: Comments may be mailed to the Executive Secretary, Marine
Safety Council (G-LRA/3406) (CGD 94-003), U.S. Coast Guard
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may
be delivered to room 3406 at the same address between 8 a.m. and 3
p.m., Monday through Friday, except Federal holidays. The telephone
number is (202) 267-1477. Comments on collection-of-information
requirements must be mailed also to the Office of Management and
Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer,
U.S. Coast Guard.
The Executive Secretary maintains the public docket for this
rulemaking. Comments will become part of this docket and will be
available for inspection or copying at room 3406, U.S. Coast Guard
Headquarters, between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Jonathan C. Burton, Project
Manager, Marine Environmental Protection Division (G-MEP-1), (202) 267-
6714.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking (CGD 94-003) and the specific section of this
proposal to which each comment applies, and give the reason for each
comment. Please submit two copies of all comments and attachments in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. Persons wanting acknowledgment of
receipt of comments should enclose stamped, self-addressed postcards or
envelopes.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to the Marine Safety Council at the address
under ``ADDRESSES.'' The request should include the reasons why a
hearing would be beneficial. If it determines that the opportunity for
oral presentations will aid this rulemaking, the Coast Guard will hold
a public hearing at a time and place announced by a later notice in the
Federal Register.
Drafting Information
The principal persons involved in drafting this document are
Lieutenant Jonathan C. Burton, Project Manager, Marine Environmental
Protection Division, and Ms. Helen Boutrous, Project Counsel, Office of
Chief Counsel.
Background and Purpose
Historical records suggest that over 100 non-native species have
been introduced into the Great Lakes and its tributaries. The primary
medium for their introduction is believed to be ballast water from
vessels. Many vessels take on water in foreign harbors or in the near
shore waters which are often rich in living organisms. When these
vessels arrive to take on cargo, they discharge ballast water and any
organisms contained in the water enter the local ecosystem. While many
of these species do not survive in this new environment, those that do
quickly adapt, and in some instances thrive, particularly where there
are no natural predators.
The Zebra Mussel provides a good example of the harmful effects of
a newly introduced species. In 1988, this small bivalve mollusk native
to the Black, Azov, and Caspian Seas in the Ukraine and southern
Russia, was discovered in the Western Basin of Lake Erie. Scientists
believe that it was introduced in 1986 by the discharge of freshwater
ballast of a vessel from Northern Europe. Hundreds of millions of Zebra
Mussels can now be found on and in pipes, screens, conduits, boat
bottoms, floats, buoys, rocks, submerged objects, and native animals
and plants. As a filter feeding organism, it removes vast quantities of
microscopic organisms from the water, the same organisms that fish
larvae and young fish rely upon for their food supply. It also
completely covers rocks and other substances normally used by native
fish for laying eggs. Since its introduction into the Great lakes the
Zebra Mussel has reproduced and spread throughout the Great Lakes and
its tributaries and has been found as far south as New Orleans.
The Coast Guard issued ballast water control regulations on April
8, 1993, for vessels entering the Great Lakes after operating beyond
the exclusive economic zone (EEZ). Such vessels are required to
exchange their ballast water beyond the EEZ. While the regulations are
viewed as an excellent start toward addressing the nonindigenous
aquatic nuisance species introduction problem, Congress now realizes
that it is necessary to implement ballast water controls for vessels
entering the Hudson River after operating beyond the EEZ. The Hudson
River is connected to the Great Lakes through the New York State Barge
Canal System which allows for the movement of commercial and
recreational vessels throughout waterways of New York State and
provides direct access to the Great Lakes. As a result of this
connection, species released from vessel's ballast water into the
Hudson River can migrate, or can be transferred by vessels navigating
the canal system into the Great Lakes.
Solutions
Congress has noted that high seas ballast exchange is ``not a
panacea'' for prevention of unintentional introductions of
nonindigenous aquatic species. Other means of infestation such as
attachment to anchor chains and vessel hulls contribute to
infiltration. Moreover, the effects of ballast water exchange on high
seas and coastal ecosystems are not yet completely known. Nevertheless,
ballast water exchange currently appears to be the most cost and labor
effective means of reducing the probability of new infestations.
Alternative approaches may be warranted in some situations, or may
replace ballast exchange entirely, depending upon knowledge obtained
through a Task Force set up by the Act.
International Recognition
The need for control of the introduction of nonindigenous species
has also been recognized by the international maritime community. The
ballast water control regulations for vessels entering the Great Lakes
that were issued by the Coast Guard on April 8, 1993, in large part,
were based on ballast water control guidelines adopted by The Marine
Environment Protection Committee of the International Maritime
Organization at its 31st session in July 1991. The resolution (MEPC
50(31)) which accompanied the issuance of the guidelines recommends
that member countries issue guidelines for the control of nonindigenous
species into their ports.
United States Legislation
On November 4, 1993, Congress amended (Pub. L. 102-587) the
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (the
Act) (16 U.S.C. 4711(b)). This amendment extends the Act's
applicability to vessels entering the Hudson River, north of the George
Washington Bridge, after operating beyond the EEZ. The Act, as amended,
attempts to prevent the spread of injurious nonindigenous species into
the Great Lakes through the ballast water of these vessels. The Act
mandates that the Coast Guard, in consultation with the Task Force
created by the Act, issue regulations to prevent the introduction and
spread of aquatic nuisance species in the Great Lakes through the
ballast water of vessels entering a U.S. port, north of the George
Washington Bridge, on the Hudson River, after operating beyond the EEZ.
The current regulations contained in 33 CFR part 151, subpart C,
issued under the Act, cover vessels entering the Great Lakes after
operating beyond the EEZ and require the retention of ballast water or
the exchange of ballast water beyond the EEZ, by vessels subject to the
Act. Further, as authorized under the Act, those regulations permit the
use of environmentally sound alternative ballast water management
methods that the Coast Guard determines are as effective as ballast
water exchange in preventing and controlling infestations of aquatic
nuisance species, thereby providing the needed flexibility to approve
additional ballast water management methods that, in the future, may
prove to be even more effective than ballast water exchange. These
requirements, as well as the other requirements contained in subpart C
of part 151, would satisfy the requirements of the amendments to the
Act if applied to vessels navigating on the Hudson River, north of the
George Washington Bridge, after operating beyond the EEZ. Therefore,
few changes to the regulations issued by the Coast Guard on April 8,
1993, covering vessels entering a U.S. port on the Great Lakes after
operating beyond the EEZ, are required to implement the requirements of
the amendments to the Act.
The Act provides for civil and criminal penalties (16 U.S.C.
4711(c) and (d)). Any person who violates the regulations shall be
liable for a civil penalty not to exceed $25,000. Each day of a
continuing violation would constitute a separate violation. A vessel
operated in violation of the regulations would be liable in rem for any
civil penatly assessed for that violation. Any person who knowingly
violates the regulations would be guilty of a class C felony. A class C
felony is punishable by imprisonment of not more than 12 years (18
U.S.C. 3581(b)(3)) and a fine of not more than $250,000 for an
individual or not more than $500,000 for an organization (18 U.S.C.
3571(c)(3)).
In accordance with the Act, the Coast Guard proposes the
regulations discussed below.
Discussion of Proposed Rules
This proposal, if adopted, would propose changes to subpart C of 33
CFR part 151 to extend the applicability of the ballast water
management requirements to vessels operating on the Hudson River, north
of the George Washington Bridge, after operating on the waters beyond
the EEZ.
Proposed changes to Sec. 151.1504 would add ``the Captain of the
Port, New York,'' to the definition of ``Captain of the Port (COTP)''
and add the ``Hudson River, north of the George Washington Bridge,'' to
the definition of ``Voyage''.
A proposed change to Sec. 151.1510(a)(1) would require that an
exchange of ballast water be carried out on the waters beyond the EEZ,
in a depth exceeding 2000 meters, prior to a vessel traveling on the
Hudson River, north of the George Washington Bridge.
A proposed change to Sec. 151.1510(a)(2) would authorize the COTP
to seal the tanks of vessels subject to the Act, in which ballast water
is retained, for the duration of the voyage within the Hudson River,
north of the George Washington Bridge.
By proposing to apply subpart C of part 151 to the vessels subject
to the amendments to the Act, the Coast Guard is proposing that each of
the requirements of subpart C, including collection-of-information
requirements which will be discussed below, apply to vessels navigating
on the Hudson River, north of the George Washington Bridge, after
operating beyond the EEZ.
Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979).
A draft Regulatory Evaluation under paragraph 10e of the regulatory
policies and procedures of DOT has been prepared and is available in
the docket for inspection or copying where indicated under
``ADDRESSES.'' The Evaluation is summarized as follows.
In 1992, 112 visits were made by vessels to the Hudson River, north
of the George Washington Bridge, after operating beyond the EEZ. The
most recent data available from the U.S. Army Corps of Engineers
concerning Hudson River vessel traffic reveals that vessels operating
on the Hudson River after operating beyond the EEZ are primarily
foreign importer vessels. Vessels carrying cargo, such as vessels
engaged in importing, are generally not carrying ballast water.
Accordingly, the Coast Guard has identified no vessels that have
actually discharged ballast into the Hudson River. Vessels that do not
discharge ballast, do not have to exchange ballast water and would
incur no costs due to the proposed regulations. Therefore, the only
aspect of the proposed regulations that these vessels would be subject
to is the recordkeeping requirements of 33 CFR 151.1516. It is
estimated that it takes one half hour to complete. At the cost of
$35.00 per half hour and assuming 120 visits by vessels subject to
these regulations, the annual cost will be $4,200.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal, if adopted, will have
a significant economic impact on a substantial number of small
entities. ``Small entities'' may include (1) small businesses and not-
for-profit organizations that are independently owned and operated and
are not dominant in their fields and (2) governmental jurisdictions
with populations of less than 50,000.
Owners of vessels that would be engaging in ballast water
management in the affected area are large corporations. No small
entities have been identified as being affected. The economic affect on
all entities will be minimal. No U.S. vessels have been identified as
being subject to the proposed regulations. The total cost per vessel
has been determined to be $35 per visit for each vessel with a total
annual cost in 1995 to $4,200 for all vessels. Therefore, the Coast
Guard certifies under 5 U.S.C. 605(b) that this proposal, if adopted,
will not have a significant economic impact on a substantial number of
small entities. If, however, you think that your business or
organization qualifies as a small entity and that this proposal will
have a significant economic impact on your business or organization,
please submit a comment (see ADDRESSES) explaining why you think it
qualifies and in what way and to what degree this proposal will
economically affect it.
Collection of Information
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the
Office of Management and Budget (OMB) reviews each proposed rule that
contains a collection-of-information requirement to determine whether
the practical value of the information is worth the burden imposed by
its collection. Collection-of-information requirements include
reporting, recordkeeping, notification, and other, similar
requirements.
This proposal contains collection-of-information requirements in
the following sections: Sec. 151.1516. The following particulars apply:
DOT No: 2115.
OMB Control No.: 2115-0598.
Administration: U.S. Coast Guard.
Title: Ballast Water Management for Vessels Entering the Hudson River
Need for Information: No other method exists for the Coast Guard to
determine compliance with the regulations. Recording of ballast water
management will allow for review of this compliance and aid in
establishing the sources of species introduced through ballast water.
Proposed Use of Information: This information will be used to determine
compliance with the regulations and for development of a statistical
base for determining the possible sources of nonindigenous aquatic
nuisance invasions.
Frequency of Response: Upon each entry into the Hudson River, north of
the George Washington Bridge, after operating beyond the EEZ, certain
information must be available to provide to the COTP.
Burden Estimate: 60 hours annually.
Respondents: Approximately 120 visits by foreign vessels will be
subject to this requirement.
Form(s): No specific form is required by the proposed regulations.
Average Burden Hours per Respondent: .5 hour.
The Coast Guard has submitted the requirements to OMB for review
under section 3504(h) of the Paperwork Reduction Act. Persons
submitting comments on the requirements should submit their comments
both to OMB and to the Coast Guard where indicated under ADDRESSES.
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
The authority to issue regulations requiring ballast water
management practices for vessels navigating the Hudson River, north of
the George Washington Bridge, after operating beyond the EEZ, has been
committed to the Coast Guard by the Act. Standardizing the minimum
requirements for these vessels is necessary to effectively prevent
further introductions of nonindigenous species. Therefore, if the rule
becomes final, the Coast Guard intends it to preempt state and local
regulations that are inconsistent with the requirements of this
proposed rule. These regulations were developed in consultation with
the Task Force which is charged with coordinating among, and providing
technical assistance to, regional, State, and local entities regarding
environmentally sound approaches to prevention and control of aquatic
nuisance species.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that preparation of an Environmental Impact
Statement is not necessary. An Environmental Assessment and a draft
Finding of No Significant Impact are available in the docket for
inspection or copying where indicated under ADDRESSES. The exchange of
ballast water in open ocean would benefit the Hudson River environment
and the Great Lakes environment by helping to prevent potential
infestations of nonindigenous species through ballast water emptied
into the Hudson River north of the George Washington Bridge and
transferred through the Hudson River and into the Great Lakes.
Introduction of nonindigenous nuisance species through the ballast
water of vessels has caused millions of dollars of damage to date in
the Great Lakes area.
Initial study has concluded that the amount of vessels' seawater-
ballast to be discharged into the Hudson River would constitute such a
small volume that no change in the salinity or temperature levels would
occur. Species contained in water collected from the open ocean are
unlikely to survive a fresh water environment. Any nuisance species
contained in the ballast water would not therefore, create a new
infestation.
While these regulations will help to prevent potential infestation
of species introduced through the ballast water of vessels, data from
the Army Corps of Engineers shows that no vessel traveled north of the
George Washington Bridge in a light cargo load condition after
operating beyond the EEZ. This indicates that these vessels carried no
ballast water. Therefore, it is anticipated that few vessels will
actually be discharging water into the Hudson River. Therefore, the
Coast Guard has concluded that the proposed regulations would have no
negative impact on the environment. The Coast Guard solicits comments
on the potential environmental impact of the proposed regulations.
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 set out in the preamble, the Coast Guard proposes
to amend 33 CFR part 151, subpart C as follows:
PART 151--VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE,
MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER
* * * * *
Subpart C--Ballast Water Management for Control of Nonindigenous
Species
1. The authority citation for subpart C is revised to read as
follows:
Authority: 16 U.S.C. 4711, as amended; 49 CFR 1.46.
2. Section 151.1502 is revised to read as follows:
Sec. 151.1502 Applicability.
This subpart applies to each vessel that carries ballast water and
that after operating on the waters beyond the Exclusive Economic Zone
during any part of its voyage enters the Snell Lock at Massena, New
York, or navigates north of the George Washington Bridge on the Hudson
River, regardless of other port calls in the United States or Canada
during that voyage.
3. In Sec. 151.1504, the definitions of Captain of the Port (COTP)
and Voyage are revised to read as follows:
Sec. 151.1504 Definitions.
* * * * *
Captain of the Port (COTP) means the Coast Guard officer designated
as COTP of either the Buffalo, NY, Marine Inspection Zone and Captain
of the Port Zone or the New York, NY, Captain of the Port Zone
described in part 3 of this chapter or an official designated by the
COTP.
* * * * *
Voyage means any transit by a vessel destined for the Great Lakes
or the Hudson River, north of the George Washington Bridge, from a port
or place outside of the EEZ, including intermediate stops at a port or
place within the EEZ.
4. Section 151.1506 is revised to read as follows:
Sec. 151.1506 Restriction of operation.
No vessel subject to the requirements of this subpart may be
operated in the Great Lakes or the Hudson River, north of the George
Washington Bridge, unless the master of the vessel has certified, in
accordance with Sec. 151.1516, that the requirements of this subpart
have been met.
5. In Sec. 151.1510, paragraphs (a)(1) and (a)(2) are revised to
read as follows:
Sec. 151.1510 Ballast water management.
(a) * * *
(1) Carry out an exchange of ballast water on waters beyond the
EEZ, in a depth exceeding 2000 meters, prior to entry into the Snell
Lock, at Massena, New York, or prior to navigating on the Hudson River,
north of the George Washington Bridge, such that, at the conclusion of
the exchange, any tank from which ballast water will be discharged into
the Great Lakes contains water with a minimum salinity level of 30
parts per thousand.
(2) Retain the vessel's ballast water on board the vessel. If this
method of ballast water management is employed, the COTP may seal any
tank or hold containing ballast water on board the vessel for the
duration of the voyage within the waters of the Great Lakes or the
Hudson River, north of the George Washington Bridge.
* * * * *
Dated: June 13, 1994.
Joseph J. Angelo,
Acting Chief, Office of Marine Safety, Security and Environmental
Protection.
[FR Doc 94-15062 Filed 6-20-94; 8:45 am]
BILLING CODE 4910-14-M
