[Federal Register Volume 64, Number 94 (Monday, May 17, 1999)]
[Rules and Regulations]
[Pages 26672-26690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12266]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 151
[USCG 1998-3423]
RIN 2115-AF55
Implementation of the National Invasive Species Act of 1996
(NISA)
AGENCY: Coast Guard, DOT.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: To comply with the National Invasive Species Act of 1996
(NISA), the Coast Guard establishes both regulations and voluntary
guidelines to control the invasion of aquatic nuisance species (ANS).
Ballast water from ships is one of the largest pathways for the
intercontinental introduction and spread of ANS. This rule amends
existing regulations for the Great Lakes ecosystem, establishes
voluntary ballast water management guidelines for all other waters of
the United States, and establishes mandatory reporting for nearly all
vessels entering waters of the United States.
DATES: This interim rule is effective July 1, 1999. Comments and
related material must reach the Docket Management Facility on or before
July 16, 1999. Comments sent to the Office of Management and Budget
(OMB) on collection of information must reach OMB on or before July 16,
1999.
ADDRESSES: You may submit your comments and material by mail, hand
delivery, fax, or electronic means to the Docket Management Facility at
the address under ADDRESSES; but please submit your comments and
material by only one of the following methods to help us avoid
confusion in the public docket:
(1) By mail to the Docket Management Facility (USCG-1998-3423),
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001.
(2) By hand delivery to room PL-401 on the Plaza level of the
Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
(3) By fax to Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management
System at http://dms.dot.gov.
You may also mail comments on collection of information to the
Office of Information and Regulatory Affairs,
[[Page 26673]]
Office of Management and Budget, 725 17th Street NW., Washington, DC
20503, ATTN: Desk Officer, U.S. Coast Guard.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza level of the Nassif Building at the
same address between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. You may also find this docket on the Internet at
http://dms.dot.gov.
You can get the International Maritime Organization (IMO)
publications and documents referred to in this preamble from the
International Maritime Organization, Publications Section, 4 Albert
Embankment, London SE1 7SR, England.
FOR FURTHER INFORMATION CONTACT: For questions on this rule, contact
Lieutenant Mary Pat McKeown, Project Manager, U.S. Coast Guard
Headquarters, Office of Operating and Environmental Standards (G-MSO),
telephone 202-267-0500. For questions on viewing, or submitting
material to, the docket, contact Dorothy Walker, Chief, Dockets,
Department of Transportation, telephone 202-366-9329.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages you to participate in this rulemaking by
submitting comments and related material. If you do so, please include
your name and address, identify the docket number for this rulemaking
(USCG-1998-3423), indicate the specific section of this document to
which each comment applies, and give the reason for each comment. If
you submit comments by mail or hand delivery, submit them in an unbound
format, no larger than 8\1/2\ by 11 inches, suitable for copying and
electronic filing. If you submit them by mail and would like to know
they reached the Facility, please enclose a stamped, self-addressed
postcard or envelope. We will consider all comments and material
received during the comment period. We may change this interim rule in
view of the comments.
Public Meeting
We do not now plan to hold a public meeting. But you may request
one by submitting a request to the Docket Management Facility at the
address under ADDRESSES explaining why one would be beneficial. If we
determine that one would aid this rulemaking, we will hold one at a
time and place announced by a later notice in the Federal Register.
Regulatory History
On April 8, 1993, the Coast Guard published a final rule titled
``Ballast Water Management for Vessels Entering the Great Lakes'' in
the Federal Register (58 FR 18330). The rule established mandatory
procedures for the Great Lakes in 33 CFR part 151, subpart C.
On December 30, 1994, we published a final rule titled ``Ballast
Water Management for Vessels Entering the Hudson River'' in the Federal
Register (59 FR 67632). The rule amended the regulations in 33 CFR part
151 to include requirements for portions of the Hudson River, which
connects to the Great Lakes.
On April 10, 1998, we published a notice of proposed rulemaking
(NPRM) titled ``Implementation of the National Invasive Species Act of
1996 (NISA)'' in the Federal Register (63 FR 17782). The Coast Guard
received 53 letters commenting on the NPRM. Several letters requested
more time to comment.
On June 16, 1998, we published a notice (63 FR 32780) to reopen the
comment period until August 8, 1998. On June 16, 1998, we also
published a correction notice in the Federal Register (63 FR 32780),
making minor editorial corrections to the NPRM. No public meeting was
requested, and none was held.
Background and Purpose
Aquatic nuisance species invasions through ballast water are now
recognized as a serious problem threatening global biological diversity
and human health.
On November 29, 1990, Congress enacted the Nonindigenous Aquatic
Nuisance Prevention and Control Act of 1990 (NANPCA) (Pub. L. 101-646).
Congress enacted NANPCA to prevent and control infestations of zebra
mussels and other nonindigenous aquatic nuisance species in coastal and
inland waters of the United States.
On October 26, 1996, Congress enacted the National Invasive Species
Act of 1996 (NISA) (Pub. L. 104-332) which amended and reauthorized
NANPCA (the Act). Congress enacted the Act to provide for ballast water
management to prevent the introduction and spread of nonindigenous
species into the waters of the United States.
On November 27, 1997, the IMO Marine Environmental Protection
Committee (MEPC) adopted Resolution A.868(20), ``Guidelines for the
Control and Management of Ships' Ballast Water to Minimize the Transfer
of Harmful Aquatic Organisms and Pathogens.'' The IMO recommends that
all maritime nations of the world adopt and use these voluntary
guidelines.
The regulations and guidelines in this rule will help control the
spread of invasive species. This rule will implement the Act by--
Requiring operators of vessels entering waters of the
United States from beyond the EEZ to submit a ballast water management
report;
Providing voluntary ballast water management guidelines
for operators of vessels entering waters of the United States from
beyond the Exclusive Economic Zone (EEZ); and
Promoting ballast water management for operators of all
vessels in waters of the United States.
Discussion of Comments and Changes
The Coast Guard received 53 comment letters, containing 361
specific comments on the NPRM. The paragraphs in this section discuss
the comments we received and the Coast Guard's responses, and explain
any changes we made to the proposed regulations. General comments on
the rulemaking are discussed first, followed by comments on specific
sections of the regulation. Other changes to the proposed rule, not
based on comments, are discussed last.
General Comments
Several comments asked the Coast Guard to extend the comment period
to allow adequate time to comment on the proposed requirements in the
NPRM. We determined that allowing the public more time to comment would
help us develop a better rule. Therefore, we extended the comment
period until August 8, 1998.
Numerous comments asked for more stringent regulations and more
restrictive ballast water management control methods. Other comments
asked for less strict regulations and more lenient requirements for
ballast water management control methods.
The Coast Guard has determined that the regulations adopted in this
rule accurately reflect the requirements of the Act and represent the
most practical and effective ballast water management method available
at this time. We will continue to support and encourage the development
of more efficient and effective methods of protecting waters of the
United States from non-indigenous aquatic nuisance species.
Three comments wanted to make sure that the regulations in the
proposed rule will be the national requirements. The
[[Page 26674]]
comments didn't want States or other levels of government to issue
other regulations that exceed or make significant changes to these
regulations.
It has long been the Coast Guard's position that consistent
standards of universal application, coupled with Federal initiatives to
address unique regional concerns, are the best means of meeting local
and national environmental goals with the least disruption to
international maritime commerce. To avoid potential conflicts and
duplication, we request that any political subdivision of the United
States contemplating any laws, regulations, or requirements regarding
the discharge of ballast water, consider this regulation prior to
taking action.
The Coast Guard will try to maintain nationwide consistency in
methods for control of invasive species and is committed to ensuring
national consistency for any regulations touching on the design,
construction, equipment, manning and operation of vessels that were
established as international rules and regulations adopted by the
International Maritime Organization and ratified by the United States.
However, this regulation isn't intended to preempt any State,
regional, or local efforts that exceed but do not conflict with the
standards set forth in this rule. Section 1205 of the Act states that--
Nothing in this title shall affect the authority of any State or
political subdivision thereof to adopt or enforce control measures
for aquatic nuisance species, or diminish or affect the jurisdiction
of any State over species of fish and wildlife.
Five comments addressed statements in the Background and Purpose
section of the NPRM. One comment noted that cholera was detected in
ballast water; however, there wasn't conclusive evidence that linked
the strain of cholera detected to the contaminated shellfish in Mobile
Bay. Another comment agreed with the statement that more than 40
species have appeared in the Great Lakes since 1960. However, the
comment noted that ``very few (species) if any, have been introduced
since the Canadian voluntary ballast water exchange guidelines of 1989
and the USCG exchange requirements of 1993.'' Another comment noted
that in the Description of the Problem section of the NPRM, the
reference to Purple Loosestrife implies that the species entered the
United States only through ballast water. The comment noted that the
species may have entered the United States through solid ballast, but
the floral industry is primarily responsible for bringing the Purple
Loosestrife into the United States. Therefore, the comment suggested
that we use other suitable examples such as the round nosed goby or the
spiny waterflea.
Fifty-six comments discussed the organization and clarity of the
regulations. Four comments expressed support for the proposed rule and
suggested minor modifications. One comment supported the proposed rule
as written. Ten comments stated that the regulations were confusing as
written. One comment requested a ``plain English guide for mariners.''
The Coast Guard has revised this rule to better organize and clarify
the information. Specific changes are discussed within each section.
We received eight comments on the IMO ``Guidelines for the Control
and Management of Ships' Ballast Water to Minimize the Transfer of
Harmful Aquatic Organisms and Pathogens'' (IMO Resolution A.868(20),
adopted November 1997). Two comments wanted the Coast Guard to continue
to issue regulations that are consistent with IMO guidelines.
The Coast Guard will be consistent with any international
agreement, agreed to by the United States, governing management of the
transfer of nonindigenous aquatic species by vessel.
Five comments discussed the ballast water management plan. Four of
the comments supported a request that a ballast water management plan
be carried and maintained aboard the vessel. The other comment opposed
the request to carry and maintain a ballast water management plan.
In Sec. 151.2035(a)(7), we request that owners and operators
develop ballast water management plans specific to their vessels. The
Coast Guard is working with IMO to identify what information needs to
be contained in the ballast water management plan. When that
information is determined, we will publish it in the Federal Register.
Fifteen comments related to what would trigger the implementation
of mandatory national ballast water management regulations.
The Act requires the Coast Guard to publish national voluntary
guidelines for the control of aquatic nuisance species. The Act lists
the specific criteria that will cause or allow these guidelines to
become mandatory. These are detailed in the following paragraphs.
Two comments asked what would happen if a vessel fails to comply
with the mandatory reporting requirements. The Act directs the Coast
Guard to assess the rate of compliance with the guidelines, using the
ballast water management reports we receive from the owners and
operators who submit the reports in accordance with the Act. If we
can't assess the rate of compliance with these guidelines because we
don't have adequate reports (i.e., numbers of reports or accurate
reports), then we are required to issue regulations making the
voluntary guidelines mandatory.
If we find that the voluntary guidelines are not adequate or
effective, at reducing introduction and spread of nonindigenous aquatic
species into waters of the United States, the Coast Guard must
establish mandatory requirements.
Thirteen comments asked us to clarify what criteria we will use to
determine the adequacy and effectiveness of the voluntary guidelines.
The authority and responsibility for developing these criteria was
given to the Aquatic Nuisance Species Task Force (ANSTF) by the Act.
The ANSTF has formed the Ad Hoc Voluntary Ballast Water Guidelines
Effectiveness Criteria Committee to develop these criteria. The
committee's meetings will be open to the public. The U.S. Fish and
Wildlife Service will announce the dates and times for the meetings in
the Federal Register. In addition, the Coast Guard worked with the
Smithsonian Environmental Research Center and came up with suggestions
for monitoring the rate of compliance with the guidelines. The
suggestions are listed in the ``National Ballast (Water) Information
Clearinghouse: Function, Design, and Implementation'' Progress Report
I, which has been submitted by the Department of Transportation to
Congress and the ANSTF.
One comment asked us to consider conducting a risk assessment of
the Gulf Coast. The Coast Guard encourages studies which would detail
what species are present and what species may threaten specific water
bodies. We recommend that you submit your proposals to conduct these
studies to the ANSTF, and to any other appropriate funding agency.
One comment asked the Coast Guard to develop a chart showing the
500 meter (1640 feet/273 fathoms) or 2,000 meter (6,650 feet/1,093
fathoms) contour line. Bathymetric charts which show the measurement of
the depth of large bodies of water are already available. You can buy
the charts from a vendor, or from an organization such as the National
Oceanographic and Atmospheric Administration National Data Center or
the U.S. National Geophysical Data Center. However, vessel owners and
operators are already required to maintain detailed navigation charts
aboard their vessels that show the depths of the waters where they
operate.
[[Page 26675]]
Several comments were concerned that the estimate of costs for
preparing, submitting, collecting, collating, and filing the
information obtained seemed to be a low estimate. Due to the expansion
of the Coast Guard Aquatic Nuisance Species program efforts this fiscal
year, and the current number of vessels to be considered (as obtained
from the Coast Guard Marine Safety Management System), these comments
are correct. The Coast Guard has reexamined these costs and the current
Regulatory Evaluation accurately reflects current costs.
Several comments wanted the Coast Guard to consider costs
associated with ballast exchange and ballast water management plans in
the rule implementing the voluntary national guidelines. The Coast
Guard will estimate the costs and benefits of required portion of the
rulemaking. Costs associated with the ballast water management plan and
ballast water exchange are voluntary and we didn't address these costs
in this rule.
Two comments specified that the spread of aquatic nuisance species
is a naturally occurring phenomenon and not pollution. These comments
further stated that nature will always ``create checks and balances in
the medium and long term.'' These comments also stated that aquatic
nuisance species are a quarantine problem, not a pollution problem.
The Coast Guard disagrees with some of these comments. We agree
that some spread of exotic species does occur naturally and nature does
create ``checks and balances.'' However, shipping allows many organisms
to bypass natural barriers such as the open ocean, different salinity
levels, and ability to reach hospitable ecosystems, etc. This means
that the natural checks and balances are disrupted and can no longer
prevent introductions and degradation of ecosystems. Further, while
there is overlap with quarantine issues, anything that makes an
ecosystem less suitable for an activity, or unfit for or harmful to
living things is a pollutant.
One comment asked the Coast Guard to accept dual load lines. The
comment stated that dual load lines on the vessel will reduce the
amount of ballast water the vessel will carry into waters of the United
States.
We would have to consider many factors not within the scope of this
rulemaking to determine whether the United States should accept dual
load lines. This rulemaking doesn't address dual load lines and we
didn't make any changes based on this comment.
One comment wanted to know if the Coast Guard intended to
``incorporate by reference'' or require vessel operators to carry the
``Guidelines for the Control and Management of Ships' Ballast Water to
Minimize the Transfer of Harmful Aquatic Organisms and Pathogens (IMO
Resolution A.868(20), adopted November 1997).'' We want to ensure that
vessel operators are aware that these guidelines exist, but we aren't
incorporating them by reference or requiring vessel operators to carry
the guidelines on board their vessels. Many of the recommendations we
make in this rule are adapted from those guidelines. However, we have
made revisions based upon the needs of our domestic waters.
Two comments wanted to know how the Coast Guard will handle the
issue of a vessel operator who declares ``No Ballast on Board
(NOBOB).'' A vessel with NOBOB may not have a large quantity of ballast
water on board, but the vessel does retain sediment and residual
ballast water. The Coast Guard requests in this regulation that all
vessels remove sediments in an appropriate manner on a regular basis.
We are working on identifying possible management methods to reduce the
threat of a vessel operator claiming NOBOB. However, it would be
premature to issue regulations specifically for these vessels at this
time. To ask a vessel operator in a NOBOB status to conduct a ballast
water exchange could destabilize a vessel, causing it to submerge its
load line or compromise seaworthiness by exceeding hull girder stress
limits, or increase the stresses on the hull to the point they
fracture.
Comments on Specific Sections of the Rule
What Vessels Does This Subpart Apply to (Sec. 151.1502)?
Thirty-eight comments discussed the NPRM's applicability section,
Sec. 151.1502. Many of the comments seemed to misunderstand the
applicability section. Others seemed to misunderstand who is exempt
from the requirements of this rule. One comment suggested that we
separate the existing mandatory ballast control regulations for the
Great Lakes and the Hudson River to make it easier to understand the
national program. Two comments stated that the NPRM proposes changes
that could increase the chances of invasive species entering the Great
Lakes.
In response to these comments, we have changed the organization of
the rule. We will revise the existing regulations in 33 CFR 151 subpart
C. The new subpart C will detail the additional requirements for
vessels entering the Great Lakes and Hudson River. We will add a new
subpart D to 33 CFR part 151. Subpart D will detail mandatory and
voluntary requirements for all vessels operating in waters of the
United States (including the Great Lakes and Hudson River). The section
numbers in this rule are different from the section numbers in the NPRM
because of these changes. Please use the following cross-reference
table to follow these changes.
Instructions for the Table: Find the old section number listed in
the NPRM in the first column and read across to the second column to
find the corresponding new section number in this rule. The third
column lists the section numbers for subpart C.
----------------------------------------------------------------------------------------------------------------
33 CFR
--------------------------------------------------------------------------
Section numbers in
Description of section subpart D (waters of Section numbers in
Section numbers in the the United States subpart C (Great Lakes
NPRM including the Great and Hudson River)
Lakes and Hudson River)
----------------------------------------------------------------------------------------------------------------
Purpose.............................. 151.1500............... 151.2000............... 151.1500.
Applicability:
For Vessels...................... 151.1502............... 151.2005, 151.2010 and 151.1502.
151.2015.
For Ballast Water................ ....................... 151.2020............... .......................
Definitions.......................... 151.1504............... 151.2025............... 151.1504.
Penalties............................ 151.1506............... 16 U.S.C. under certain 151.1506, 151.1508, 16
provisions. U.S.C.
Mandatory Requirements............... 151.1508............... 151.2040............... 151.1510.
Safety............................... 151.1510............... 151.2030............... 151.1512.
[[Page 26676]]
Alternative Methods:
Required......................... 151.1512............... ....................... 151.1514.
Requested........................ ....................... 151.2035(b)............ .......................
Mandatory:
Reporting........................ 151.1514............... 151.2040............... 151.2040.
Recordkeeping.................... 151.1514............... 151.2045............... 151.2045 (also
satisfies Sec.
151.1516).
Voluntary Guidelines................. 151.1516............... 151.2035............... .......................
Compliance and Monitoring............ 151.1518............... 151.2050............... 151.1516.
----------------------------------------------------------------------------------------------------------------
Five comments requested that we add an exemption for other types of
vessels operating on voyages between the States and Territories of the
United States. One comment stated that there shouldn't be any
exemptions for owners and operators of passenger vessels.
The applicability and exemptions in this rule are taken directly
from the Act. Additionally, we don't have scientific and technological
support to include exemptions for other vessels, or for other voyages
outside of the EEZ. The Coast Guard can only remove the exemption for
passenger vessels if we find that their ballast water treatment systems
are less effective than ballast water exchange. The regulations that
apply to voyages between States and Territories of the United States
are in subparts C and D.
Two comments expressed concern about the regulations that apply to
Mobile Offshore Drilling Units (MODU). One of these comments had
specific concerns about ballast procedures for tanks that may be in
continuous contact with the sea.
The Coast Guard has determined that a blanket exemption for MODUs
isn't warranted. However, we encourage vessel owners and operators to
bring their specific ballast issues to the Coast Guard for
consideration for alternative compliance. Methods for submitting
alternative compliance proposals are detailed in Sec. 151.2035(b)(3) of
this regulation. We will need more detailed information on flow rates,
volumes exchanged, etc., before we can make a determination on whether
a particular MODU should be exempt.
Two comments asked us to clarify whether this rule applies to
foreign vessels. In Sec. 151.2005, we state that this regulation
applies to the owners and operators of U.S. and foreign vessels.
Three comments asked us to clarify whether the mandatory
requirements in this rule apply to military vessels. In Sec. 151.2010,
we clarify that mandatory provisions of this rule don't apply to
vessels of the Department of Defense, the Coast Guard, or those vessels
of the Armed Forces that are subject to the ``Uniform National
Discharge Standards for Vessels of the Armed Forces (UNDS).'' (Federal
Water Pollution Control Act--33 U.S.C. 1322(n)). We don't intend for
these regulations to replace or interfere with practices already
addressed by section 1103 of the Act or by UNDS.
Five comments suggested that we also provide guidelines or
requirements for owners and operators on domestic voyages.
The Coast Guard agrees with these comments. In Sec. 151.2035(a), we
have included guidelines (precautionary practices) for all vessels
equipped with ballast tanks that operate in waters of the United
States. However, the Act doesn't give the Coast Guard the authority to
require owners and operators of vessels engaged in domestic trade to
perform ballast water management methods such as ballast water
exchange.
One comment requested that ballast water management methods, such
as ballast water exchange only apply to vessels that have operated
beyond the EEZ for more than 48 hours. The Coast Guard has reviewed the
legislation and determined that this is contrary to the intent of the
Act.
One comment noted that in the regulations we consider a transit
from Alaska, or Hawaii to the continental United States a voyage, but
we don't consider a transit from a Canadian port to the continental
United States, Hawaii, or Alaska a voyage. Two comments wanted to know
if the proposed regulations apply to voyages from U.S. territories.
We understand that the wording of this section in the NPRM was
unclear. We have reworded Sec. 151.2025 to clarify when this regulation
applies. Any vessel, unless exempted by Sec. 151.2010, on a voyage to a
U.S. port, that in any portion of that voyage has operated beyond the
EEZ of the United States or an equivalent zone of Canada (generally 200
miles seaward of the baseline) is subject to the mandatory reporting
requirements. The vessel operator must or may (depending on which port
they are going to) conduct ballast water management practices as
detailed in the regulation. This includes voyages to any port in the
U.S. or its territories, from any other port in the U.S. or its
territories, if the vessel has operated more than 200 miles from the
baseline of the United States or Canada. If a vessel operator remains
in areas less than 200 miles from the baseline of the United States or
Canada during a voyage, then they are not subject to the mandatory
requirements. However, we request that the operator follow the
voluntary guidelines in Sec. 151.2035.
One comment wanted to know if the regulations apply to only
segregated ballast water. Two comments wanted to know if all ballast
water, including that which was taken on in the high seas, was subject
to the regulations in the NPRM. One of these comments also stated that
we shouldn't require an open ocean exchange of water that has been
taken on in open ocean.
We have revised the regulations to clarify these issues. The
regulations apply to any ballast water, taken in waters within 200
miles from any shore, or in waters less than 2,000 meters (6,650 feet/
1,093 fathoms) deep, that could be discharged into waters of the United
States.
One comment asked the Coast Guard to address ``innocent passage''
in this rule. Innocent passage occurs when a foreign vessel navigates
through the U.S. territorial sea for the purpose of traversing the sea
without entering U.S. internal waters or calling at a U.S. port. A
foreign vessel is also considered in innocent passage when in transit
to or from a U.S. port. However, a vessel that actually enters U.S.
internal waters (i.e., waters shoreward of the territorial sea
baseline) or that enters a U.S. port no
[[Page 26677]]
longer has innocent passage status, and the mandatory reporting
requirements of this rule, as well as the voluntary ballast water
management guidelines apply. In plain terms, if you are bound for or
departing from a U.S. port, these regulations apply.
We have added a provision for innocent passage to Sec. 151.2015.
For the purpose of defining whether a vessel is navigating in the
territorial sea, the Coast Guard defines the territorial sea for this
regulation as extending to 12 nautical miles from the baseline, under
Presidential Proclamation No. 5928 of December 27, 1988. Innocent
passage doesn't include a vessel that enters the Snell Lock at Massena,
New York, on the St. Lawrence River, regardless of its destination.
Two comments questioned if the mandatory regulations for the Great
Lakes and Hudson River apply to a vessel that operates beyond the EEZ,
and then makes stops in other waters of the United States before
entering the Great Lakes or Hudson River.
The Coast Guard has determined that the mandatory regulations in 33
CFR part 151, subpart C apply to any vessel operated as described in
the previous paragraph. In addition, Secs. 151.2035(b), 151.2040, and
151.2045 of subpart D do not apply to vessels that only transit between
ports in the United States, or between ports in the United States or
Canada without entering waters beyond the EEZ of Canada or the United
States.
What Definitions Apply to Subpart C (Sec. 151.1504)?
Thirty-three comments discussed the definitions section of the
NPRM. Four comments concerned the definition of ``environmentally
sound.'' One of these comments noted that people might misinterpret the
definition with regard to releases of ``harmful concentrations'' of
chemicals, as some individuals don't consider concentrations to be
harmful when released into water bodies where significant dilution
occurs.
The Coast Guard agrees that the proposed changes to the definition
could cause confusion. No ballast water management method would be
accepted if it violated any existing water quality standards.
Therefore, the definition of ``environmentally sound'' currently in
force in 33 CFR 151.1504 will not be changed. The definition is the
same definition used in the Act.
Two comments questioned whether we had scientific support for the
definition of ``reasonably effective ballast water management system.''
Eight comments stated that we should be cautious when we estimate
percentages for the volume of ballast water exchanged, and for the kill
or removal rate. Four comments wanted a method for determining when you
have met a 90 percent kill or removal rate.
The Coast Guard agrees with these comments and we have deleted this
definition. The Coast Guard will continue to support research that will
identify ballast water management methods that are ``as effective as
ballast water exchange.''
One comment stated that this rule should also address ballast water
carried in cargo tanks. In Sec. 151.1504, we have revised the rule to
clarify that the definition of ``ballast tanks'' includes any tank or
hold used for carrying ballast water. In Sec. 151.1504, we have also
added the phrase ``regardless of how it is carried on the vessel'' to
the definition of ``ballast water.''
Eight comments discussed the definition of ``reasonably complete
ballast water exchange.'' Three comments stated that they support the
standard to exchange 90 percent of the original water in the ballast
tank. Two comments suggested that we raise the standard, and two
comments suggested that we lower the standard.
The Coast Guard's goal is for owners and operators to exchange 100
percent of the original water in the ballast tank. However, owners and
operators should consider the operating systems and physical
limitations of the vessel before conducting an exchange. We didn't
change the existing regulations for the Great Lakes and Hudson River in
Sec. 151.1510 of subpart C. Owners and operators of all other vessels
are requested to conduct an exchange as follows:
For a flow through exchange. Exchange the equivalent of
three times the volume of water in the ballast tank.
For an empty/refill exchange. If conditions are safe and
it is practical, try to replace 100 percent of the volume of ballast
water.
Four comments concerned the proposed change to the minimum depth
requirement from 2,000 meters to 500 meters, for a ballast water
exchange. Two comments pointed out deficiencies in the scientific
support for such a change. One comment indicated that reducing the
requirement may create a conflict for complying with U.S. regulations
and following Canadian voluntary guidelines.
In response to these comments, and to ensure that owners and
operators are able to satisfy the requirements of the United States and
Canada, we do not plan on changing the depth requirement until
agreement, based upon sound scientific evidence, is reached.
Why Must I Meet the Requirements of the Regulations in This Subpart and
What Are the Penalty Provisions (Sec. 151.1506)?
Two comments requested clarification of the penalty provisions. The
penalty provisions for the Great Lakes and Hudson River ballast water
management requirements will remain unchanged. The penalty provisions
include restriction of operation, revocation of Customs clearance, and
possible civil and criminal penalties. The new voluntary national
guidelines do not carry penalty provisions. However, if vessel
operators fail to make the mandatory reports, then the Coast Guard is
directed under NISA to implement a mandatory national program that will
carry the same penalty provisions that apply in Great Lakes and Hudson
River.
What are the Mandatory Ballast Water Management Requirements
(Sec. 151.1508)?
Three comments expressed concern that the proposed rule may make
ballast water exchange a standard, and rule out other ballast water
management techniques that may be more effective.
The Coast Guard agrees with these comments. We have revised the
rule to include language that encourages the development of alternative
technologies for managing ballast water.
Eleven comments discussed an acceptable salinity level for an open
ocean exchange as it applies to mandatory exchange for the Great Lakes
and Hudson River. Four comments questioned the scientific support for
the proposed change. One comment questioned whether we considered
``instrument error'' when we proposed changing the salinity level. One
comment stated that measuring the level of salinity is not enough to
determine if an exchange has been done as it applies to coastal ports.
The comment also asked the Coast Guard to develop alternative tests.
The Coast Guard agrees with these comments. We are not changing the
salinity standard as proposed in the NPRM. The Coast Guard recognizes
that salinity can't be used as the only verification of open ocean
exchange at a coastal port. Salinity also can't be used as the sole
measure to confirm proper operation of alternative control methods as
developed. The Coast Guard is awaiting a final report on parameters to
be used for verification, and is engaged in preliminary stages of
additional studies to obtain a full complement of methods to be used.
Over the next 30 months, we will test the identified parameters in the
field to ensure their
[[Page 26678]]
efficiency and accuracy and to streamline sampling procedures. We will
also test protocols and parameters during this phase. The Coast Guard
finds it inappropriate to publish parameters under consideration for
coastal ports, other than the screening mechanism of salinity, until
those parameters have been confirmed as definitive.
Twenty-eight comments concerned alternative environmentally sound
methods of ballast water management. Twenty-eight comments asked that
we clarify the requirement for approval of other environmentally sound
methods of ballast water management. The comment also asked the Coast
Guard to explain the process of submitting alternative ballast water
management methods for approval.
The Coast Guard will approve alternative methods of ballast water
management (under 33 CFR 151.2035(b)(3)). The request to approve an
alternative method must be submitted to, and approved by, the Coast
Guard before a vessel's scheduled voyage. The requestor must provide
adequate time for the Coast Guard to process, analyze, and consider the
alternative method for approval. Send your request to U.S. Coast Guard
Headquarters, (G-MSO-4), 2100 Second Street SW., Washington, DC 20593-
0001. The phone number is (202) 267-0500. Each proposal is evaluated on
a case-by-case basis. The Coast Guard is working with the ANSTF Ballast
Water and Shipping Committee to develop a standardized protocol and
requirements for approval. Industry, government agencies, and non-
government organizations will develop the requirements. We will approve
an alternative method only after we consider the following:
Does the method conform to existing laws and standards?
How effective is the method in reducing the viability of
organisms within the vessel's ballast water?
How will the vessel operator verify that the system is
operating as designed?
We will incorporate the protocol and requirements into 33 CFR part 151
subpart D when it's completed.
Four comments asked us to clarify if retaining ballast water on
board is a viable ballast water management method. Section
151.2035(b)(2), states that retaining ballast water on board is an
option.
Three comments asked the Coast Guard to consider whether discharge
to an approved reception facility is a viable method of ballast water
control management. We agree. Section 151.2035(b)(4) states that
discharging ballast water to an approved reception facility is an
option.
One comment suggested that we allow vessel owners and operators to
discharge ballast water at publicly-owned treatment plants. The Coast
Guard has determined that each treatment plant will have to be
considered on a case-by-case basis. To determine if vessel owners and
operators can be allowed to discharge ballast water at a publicly-owned
treatment plant, we will need specific information, including whether
or not--
The plant has the capacity to handle the volume of ballast
water discharged from a vessel;
The treatment methods used at the plant are effective in
killing the full range of genus and species of organisms found in the
ballast water;
Allowing vessel owners and operators to discharge ballast
water will violate any local or State regulations;
The waste water treatment plant will accept the ballast
water; and
The waste water treatment plant is aware of the salinity
levels of the ballast water.
Two comments encouraged the development of shoreside ballast water
reception facilities. Two comments suggested that we continue to
develop alternative technologies to ballast water exchange. Two
comments asked that we give chemical treatment methods fair
consideration as an alternative method of ballast water management. One
comment stated that chemical treatments are an essential tool for
``integrated pest management.'' Four comments asked that we also
consider by-products and concentration levels in any effluent when we
consider chemical treatments.
The Coast Guard supports all of these statements. We will continue
to encourage advances in methods of treating ballast water. We will
consider applicable laws, regulations, and the consequences of a
treatment before we approve any method.
Two comments recommended that we consider risk-based assessment as
an acceptable alternative compliance mechanism. The Coast Guard
recognizes that some waters may pose higher risks of containing
potential invasive species than other waters. However, it has not been
proven that any waters pose no risk. Historical patterns show that
zebra mussels may have been shipped for more than 50 years before
establishing a sustainable population in the Great Lakes and becoming a
nuisance species. Therefore, we have determined that we don't have a
sound, definitive scientific basis to approve risk-based assessment as
an alternative ballast water management option.
Two comments requested a means of sharing knowledge of alternative
compliance methods. The Coast Guard is working with the Smithsonian
Environmental Research Center to incorporate a research and technology
section into the National Ballast Water Information Clearinghouse
(NBIC) (NBIC Web site: www.serc.si.edu/invasions/ballast.htm).
Two comments discussed the research and development of specific
ballast water control methods. The Coast Guard encourages companies to
continue to research and develop other ballast control methods. Two
comments suggested that we specify alternate ballast water exchange
sites in this rule. The establishment of alternative discharge areas
must be based on the best scientific data available. Therefore, the
Coast Guard leaves in place the provisions in Sec. 151.1514 that
address ballast water management alternatives under extraordinary
conditions. This section applies specifically to the waters of the
Great Lakes and Hudson River, North of George Washington Bridge. The
requests for alternative sites requests go directly to the Captain of
the Port (COTP) of the affected zone. In addition, the Coast Guard is
reviewing a study entitled ``Ballast Exchange Study Consideration of
Back-up Exchange Zones and Environmental Effects of Ballast Exchange
and Ballast Release.'' After this study is accepted by the ANSTF, the
Coast Guard will consider the areas detailed for pre-accepted alternate
exchange sites. If accepted, we will publish a detailed list of these
areas with a request for comments in the Federal Register. We have
reserved Sec. 151.2055 in this rule and will list the sites in that
section when they are approved.
We received three comments on the disposal of sediment ashore. One
comment suggested removing the reference to ``sediment ashore'' from
the rule. One comment suggested that we require a disposal facility be
built at every port. One comment noted that the proposed regulation
might contradict existing Federal regulations. One comment noted that
restrictions on disposal of sediments ashore may also be under the
jurisdiction of entities other than the Coast Guard, such as the Animal
and Plant Health Inspection Service, 7 CFR part 330.
We have changed Sec. 151.2035(a)(3) to state that sediments must be
disposed in accordance with local, State, and Federal regulations. This
requirement is to ensure that vessel representatives are aware that
disposal of sediments within
[[Page 26679]]
the United States must be done in accordance with existing regulations
or laws.
Three comments suggested that we refer to the owner, operator,
agent, or person-in-charge within the appropriate sections of the rule.
Two comments noted that some types of vessels subject to this rule
might not be under the command of a master. One comment noted that
reporting requirements on a vessel are often satisfied by the vessel
agent. The Coast Guard agrees with these comments. We refer to the
owner, operator, agent, or person-in-charge in the appropriate sections
of the rule.
Is the Master Still Responsible for the Safety of the Vessel
(Sec. 151.1510)?
Seven comments stated that the NPRM didn't adequately address
safety exemptions. The Coast Guard agrees with this comment. In
Sec. 151.2030, we now use language similar to the Act, which clearly
states the safety exemptions.
Three comments asked what will happen if they use the safety
exemption, and don't conduct a ballast exchange. We have included in
Sec. 151.2030(b) the provisions of the Act which address this concern.
Vessels subject to 33 CFR part 151 subpart C must comply with the
requirements of Sec. 151.1514 subpart C (Ballast water management
alternatives under extraordinary conditions). Vessels not subject to 33
CFR part 151 subpart C shall not be required to perform a ballast water
management practice which the master has found to threaten the safety
of the vessel, its crew, or its passengers because of adverse weather,
vessel design limitations, equipment failure, or any other
extraordinary conditions.
What Are the Mandatory Reporting and Recordkeeping Requirements
(Sec. 151.1514)?
Four comments suggested that we provide more options for submitting
the required information to the Coast Guard. One comment noted that the
proposed requirements for submitting information may bypass existing
Canadian reporting requirements for shared waters. One comment asked
that we allow the information to be submitted electronically.
The Coast Guard agrees with these comments. In Sec. 151.2040(c), we
have added other options for submitting the required information.
Two comments wanted to submit ``one standard voyage profile
regarding ballast water management versus trip by trip reports.'' The
Coast Guard is not prepared to approve this. We will require individual
reports. This approach may be reconsidered at a later date depending on
the quality and detail of the reports that are received.
Two comments stated that owners and operators of container ships
and roll-on/roll-off (RoRo) vessels may have difficulty submitting the
information as proposed in the NPRM. These comments noted that the
actual discharge amount and location of discharge might be different
than expected because of operational considerations.
We have determined that the owners and operators of these vessels
must still submit the required information. However, in
Sec. 151.2040(d), we allow owners and operators to submit an amended
form before leaving waters of the United States. This allowance will
accommodate the owner or operator of any vessel who finds that the
information they originally submitted to the Coast Guard has changed.
Two comments stated that we should remove the requirement to submit
information about the salinity of the ballast water discharged, and the
temperature of the ballast water at its source. The Coast Guard
disagrees with this comment. The Act directs the Coast Guard to
consider the various characteristics of the point of origin (of ballast
water) and receiving water bodies. Salinity and temperature are
essential to obtaining that information.
One comment requested the removal of sea height at the time of an
exchange as required information. This comment expressed concern that
this data may be dangerously extrapolated to set definitive sea state
standards at which ballast water exchange must be conducted.
The Coast Guard has determined that this information is necessary
to get an accurate collection of data on ballast water practices.
However, we will ensure that any reports of data include qualifying
statements. For example, ``while 65 percent of vessels conducting
ballast water exchange did so in seas with waves of up to 1 foot in
height, complete data is not available on vessels not conducting an
exchange for safety reasons under those same conditions. This data
should never be used to determine safe operating parameters at which
all ships can conduct an exchange. We must consider each ship's unique
operating, structural, and stability issues.''
Are There Methods to Monitor Compliance With This Subpart
(Sec. 151.1518)?
Three comments suggested that the phrase ``may take samples''
should be replaced with ``shall take samples.'' The Coast Guard
recognizes the concern; however, logistical constraints may preclude
the taking of samples during each boarding of the vessel. Additionally,
as parameters are identified for testing procedures, cost per sample
analysis may increase. Resources availability will determine the number
of samples taken. Use of the term ``may'' leaves the Coast Guard
flexibility to address these issues and to implement valid sampling
procedures.
Appendix to Subpart C of Part 151
We received nine comments about the sample ballast water reporting
form and its directions. One comment suggested ``streamlining the
form'' or making the form more efficient. One comment asked the Coast
Guard to use standard forms. Two comments asked that we make the forms
consistent with IMO forms. Three comments suggested changes to the
instructions for the forms. Two comments noted that Sec. 151.1514 of
the NPRM affects the information requested on the form.
In response to these comments and based on what we have learned
during pilot programs, we have changed the proposed form to make it
easier to use and quicker to convert from a paper copy to an electronic
submittal form. The Coast Guard will continue to accept the IMO
``Ballast Water Reporting Form'' and the St. Lawrence Seaway required
``Pre-entry Information from Foreign Flagged Vessels Form'' as
satisfying the information and reporting requirements of this rule. The
Coast Guard will coordinate with IMO and Canada to encourage
standardization of a ballast water reporting form. The Coast Guard
feels that to sacrifice an improved product in attempt to maintain
standardization of the proposed form is not in the best interest of
this program.
Two comments asked the Coast Guard to ensure that the data obtained
from the mandatory reports will be useful for local, regional, and
state governments and organizations. The Coast Guard has been working
to ensure that the data will be entered in a usable form to identify
ballast patterns that are essential to sound decisions on ballast water
management. For a more detailed description of the NBIC, please review
the NBIC Web site at www.serc.si.edu/invasions/ballast.htm.
One comment wondered if there are plans to distribute the form and
instructions. The Coast Guard will distribute copies of the form and
provide multiple copies to agencies and entities that will be able to
disseminate them. The form and instructions will also be available at
the NBIC Web site.
[[Page 26680]]
Other Changes to the Proposed Regulations
In addition to the changes made to the regulations as a result of
the comments, we have defined the term ``voyage'' in Sec. 151.2025 to
include intermediate port calls and avoid confusion with the definition
of (Great Lakes or Hudson River) voyage in Sec. 151.1504 of subpart C.
We have also revised the definition in Sec. 151.2025 to clarify that
the equivalent zone of Canada is considered part of the EEZ, as
provided in the Act.
Regulatory Evaluation
The rule 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 (OMB)
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).
The Coast Guard expects the economic impact of this rule to be so
minimal that a full Regulatory Evaluation under paragraph 10e of the
regulatory policies and procedures of DOT is unnecessary.
Summary of Costs
The rule will cost industry the time and resources it will take to
submit the paperwork required by this rule. A vessel's officer is
likely to be the person tasked with completing the report, so we based
our estimate on the current annual salary for a third mate on a U.S.
merchant vessel, and included administrative costs ($9 per report for
photocopying, etc.). We calculated that it will cost $35 to submit each
report. The following equation illustrates the calculation:
$81,840 2,080 hours x 40 minutes + $9 = $35
We used the U.S. Coast Guard Marine Safety Management System (MSMS)
to determine that this rule will apply to 30,877 vessel transits (this
includes transits on the Great Lakes). We multiplied the cost of each
report ($35) by the number of vessel arrivals from outside the
Exclusive Economic Zone (30,877) to get a total annual cost of
$1,080,695. The following equation illustrates the calculation:
$35 x 30,877 = $1,080,695
The rule will cost the Federal government the time it will take
Coast Guard personnel to review ballast water management record
information. The Coast Guard will add 30 E-5 billets to verify
compliance and collect the information this rule will require.
Commandant Instruction 7310.1E states that the hourly cost for an E-1
to E-5 range billet is $15 per hour. This translates to yearly cost of
$31,200 per billet (2080 x $15 = $31,200). Therefore, the cost of 30
billets will equal $936,000 ($31,200 x 30=$936,000). We estimate that
the total cost to the Coast Guard to collect and send the appropriate
paperwork to the National Ballast Water Information Clearinghouse
(NBIC) is $75,000. The total annual cost was calculated as illustrated
in the following equation:
30 [billets] x $2,500 [administrative costs] = $75,000
The Coast Guard will also allocate $300,000 per year to the NBIC.
The NBIC will provide analysis, synthesis, and interpretation of data
collected under the Act. Therefore, the total government cost of this
rule is $1,311,000 annually. The total government cost was calculated
as illustrated in the following equation:
$936,000 + $300,000 + $75,000 = $1,311,000
Summary of Benefits
This rule is the next step in an ongoing effort to reduce the
numbers of non-indigenous species invading the waters of the United
States.
According to the U.S. Congress' Office of Technology Assessment,
``Harmful Non-Indigenous Species in the United States,'' the economic
impact on the United States from introductions of non-indigenous
species has exceeded several billions of dollars through--
Efforts to prevent and reduce further infestations;
Repairs of damage to various infrastructures; and
Lost revenues.
For example, the Great Lakes Fishery Commission estimates the
European ruffe, a fish that entered the Great Lakes via expelled
ballast water in the early 1980's, could cause annual losses of $90
million if the European ruffe is not controlled.
As international maritime trade continues to expand, the economic
impact of non-indigenous species invasions will continue to increase.
This increase may necessitate more extensive long-term control efforts,
including improving ballast water management practices. The reporting
requirements in this rule will allow the Coast Guard to receive the
information it needs to make decisions on what measures may be required
in the future to help solve the aquatic nuisance species problem.
Impact on Small Entities
The provisions of the Regulatory Flexibility Act (5 U.S.C. 601-
612), require the Coast Guard to consider whether the interim rule will
have a significant economic impact on a substantial number of small
entities. ``Small entities,'' include: (1) Small businesses, 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.
The rule applies to any vessel with ballast tanks entering the
waters of the United States after operating beyond the EEZ. Vessels
engaged in coastwise trade (within the EEZ) and passenger vessels
equipped with treatment systems designed to eliminate aquatic species
in their ballast tanks will be exempt from the mandatory provisions of
the rule. The rule requires vessel operators to report their ballast
water management efforts. We estimate that each report will cost the
vessel operator $35. This sum is very low on an absolute dollar basis.
We believe that it will account for a very low percentage of the
operating costs of even the smallest commercial vessel operations. For
this reason, the Coast Guard certifies under 5 U.S.C. 605(b) that the
rule will not have a significant economic impact on a substantial
number of small entities.
Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard
offers to assist small entities in understanding this rule so that they
can better evaluate its effects on them and participate in the
rulemaking process. If your small business or organization is affected
by this rule and you have questions concerning its provisions or
options for compliance, please contact Lieutenant Mary Pat McKeown,
Project Manager, Office of Operating and Environmental Standards (G-
MSO) at 202-267-0500.
The Small Business and Agriculture Regulatory Enforcement Ombudsman
and 10 Regional Fairness Boards were established to receive comments
from small businesses about Federal agency enforcement actions. The
Ombudsman will annually evaluate the enforcement activities and rate
each agency's responsiveness to small business. If you wish to comment
on the enforcement actions of the Coast Guard, call 1-888-REG-FAIR (1-
888-734-3247).
Collection of Information
The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-
[[Page 26681]]
3520) require the Office of Management and Budget (OMB) to review each
rule that contains a collection-of-information. The Office of
Management and Budget must determine if the practical value of the
information is worth the burden of collecting the information.
Collection-of-information requirements include reporting,
recordkeeping, notification, monitoring, posting, labeling, and other
similar requirements.
The rulemaking will require the owner or operator of a vessel with
ballast tanks, entering the waters of the United States from outside
the EEZ, to submit paperwork to the Coast Guard. The paperwork will
document the owner's or operator's ballast water management practices.
The provisions of the Act require the Coast Guard, in consultation and
cooperation with the Aquatic Nuisance Species Task Force and the
Smithsonian Institution Environmental Research Center, to develop and
maintain the National Ballast Water Information Clearinghouse (NBIC).
The purpose of the NBIC is to determine the patterns of ballast water
delivery and management in the waters of the United States. The
information obtained from the mandatory reports that owners and
operators must submit will be entered into a database at the NBIC. The
rulemaking requires submission of the following information:
Vessel type, owner or operator, gross tonnage, call sign,
and Port of Registry (Flag);
Port of arrival, vessel agent, last port and country of
call, and next port and country of call;
Total ballast water capacity, total volume of ballast
water on board, total number ballast water tanks, and total number of
ballast water tanks in ballast;
Total number of ballast tanks/holds that are to be
discharged into the waters of the United States or at a reception
facility, the number of tanks that were exchanged or treated using an
alternative method of compliance; type of alternative compliance
method, if used for treatment; whether the vessel has a ballast water
management plan and IMO guidelines on board, and whether the ballast
water management plan was used;
Origin of ballast water--this includes date(s),
location(s), volume(s) and temperature(s) (if a tank has been exchanged
this is the ballast water that was taken on in port and then replaced
during the exchange);
Date(s), location(s), volume(s), method, thoroughness
(percentage exchanged if exchange conducted), sea height at time of
exchange if exchange conducted, of any ballast water exchanged or
treated;
Expected date, location, volume, and salinity of any
ballast water to be discharged into the waters of the United States or
at a reception facility; and
Location of the facility used for disposal of sediment
carried into the waters of the United States, if sediment is to be
discharged within the jurisdiction of the United States.
If we did not require owners or operators to provide this
information, it would be impossible to produce the studies and
congressional reports on ballast water management patterns that the
provisions of the Act require. The Coast Guard will use the information
to--
Ensure that an owner or operator has complied with the
ballast water management regulations; and
Assess the rate of compliance with the voluntary
guidelines listed in the rule.
As stated under Regulatory Evaluation in this document, the
vessel's officer is likely to be the person tasked with completing the
report, so we based our cost estimate on the current annual salary for
a third mate on a U.S. merchant vessel and included administrative
costs. We calculated that it will cost $35 to submit each report. We
used the U.S. Coast Guard Marine Safety Management System to determine
that this rule will apply to 30,877 vessel transits (this includes
transits on the Great Lakes). We multiplied the cost of each report
($35) by the number of vessel arrivals from outside the EEZ (30,877) to
get a total annual cost of $1,080,695. The annual burden on industry
will be 20,585 hours per year, and the cumulative burden for 3 years is
61,755 hours.
The title and description of the information collection, a
description of the respondents, and an estimate of the total annual
burden follow. Included in the estimate is the time for reviewing
instructions, searching existing sources of data, gathering and
maintaining the data needed, and completing and reviewing the
collection.
Title: Implementation of the National Invasive Species Act of 1996
(NISA)
Summary of Collection of Information: This rule contains
collection-of-information requirements in the following sections:
Secs. 151.2040 and 151.2045.
Need for Information: This rule will require owners or operators of
each vessel with ballast water tanks, who enter the United States after
operating outside the EEZ, to provide to the U.S. Coast Guard
information regarding ballast water management practices.
Proposed Use of Information: The information is needed to ensure
that the mandatory ballast water management regulations are complied
with prior to allowing the vessel to enter U.S. ports, and to assess
the effectiveness of the voluntary guidelines. The information will be
used by the Coast Guard Headquarters staff and researchers from both
private and other governmental agencies to assess the effectiveness of
voluntary ballast-water management guidelines for vessels with ballast
tanks that enter U.S. waters after operating outside the EEZ. The
information will be provided to Congress on a regular basis as required
by the Act.
Description of the Respondents: Any vessel (owner or operator) with
ballast tanks entering U.S. waters after operating outside the EEZ.
Number of Respondents: 30,877 vessel entries.
Frequency of Response: Whenever a vessel with ballast tanks enters
the United States after operating outside the EEZ.
Burden of Response: 40 minutes per respondent.
Estimated Total Annual Burden: 20,585 hours.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Coast Guard has submitted a copy of this rule to OMB for its
review of the collection of information.
If you are submitting a comment on the collection of information,
you should submit it to OMB and to the Coast Guard where indicated
under ADDRESSES by the date under DATES.
No one is required to respond to a collection of information unless
it displays a currently valid OMB control number. The Coast Guard will
publish notice in the Federal Register of OMB's decision to approve,
modify, or disapprove the collection.
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4, 109 Stat. 48) requires Federal agencies to assess the effects
of certain regulatory actions on State, local, and tribal governments,
and the private sector. The Unfunded Mandates Reform Act requires a
written statement of economic and regulatory alternatives for rules
that contain Federal mandates. A
[[Page 26682]]
``Federal mandate'' is a new or additional enforceable duty imposed on
any State, local, or tribal government, or the private sector. If any
Federal mandate causes those entities to spend, in the aggregate, $100
million or more in any one year, the UMRA analysis is required. This
rule will not impose Federal mandates on any State, local, or tribal
governments, or the private sector.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
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.
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 does not concern an environmental
risk to health or risk to safety that may disproportionately affect
children.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that preparation of an Environmental Impact Statement is
not necessary. An Environmental Assessment and proposed Finding of No
Significant Impact are available in the docket for inspection or
copying where indicated under ADDRESSES.
The Coast Guard is establishing voluntary guidelines for all
vessels equipped with ballast tanks that operate in waters of the
United States. The Coast Guard is also establishing additional
voluntary ballast water management guidelines and mandatory reporting
requirements for all vessels carrying ballast water into the waters of
the United States after operating beyond the exclusive economic zone.
These reporting requirements are intended to monitor the level of
participation by vessels in the voluntary national guidelines program.
If participation levels in this program are inadequate, the Act
requires the Secretary of Transportation to mandate the ballast water
management guidelines. Once reported, the information will be used to
develop and maintain a ballast water information clearinghouse, which
will monitor the effectiveness of the program and identify future needs
for better protecting domestic waters from the introduction of invasive
species.
Therefore, the regulations to implement provisions of the Act
concerning ballast water control, when using voluntary guidelines for
ballast water management and mandatory reporting requirements, will not
have a significant impact on the environment.
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
1. The authority citation for part 151 continues to read as
follows:
Authority: 33 U.S.C. 1321(j)(1)(C) and 1903; E.O. 12777, 3 CFR,
1991 Comp. p.351; 49 CFR 1.46.
Subpart C--Ballast Water Management for Control of Nonindigenous
Species in the Great Lakes and Hudson River
2. The authority citation for part 151 subpart C continues to read
as follows:
Authority: 16 U.S.C. 4711; 49 CFR 1.46.
3. Revise the subpart heading to read as shown above.
4. In Sec. 151.1504, revise the definition of ``ballast water'' and
add definitions in alphabetical order to read as follows:
Sec. 151.1504 Definitions.
* * * * *
Ballast water means any water and suspended matter taken on board a
vessel to control or maintain, trim, draught, stability, or stresses of
the vessel, regardless of how it is carried.
Ballast tank means any tank or hold on a vessel used for carrying
ballast water, whether or not the tank or hold was designed for that
purpose.
* * * * *
Sediments means any matter settled out of ballast water within a
vessel.
* * * * *
5. Add subpart D, consisting of Secs. 151.2000 through 151.2065, to
read as follows:
Subpart D--Ballast Water Management for Control of Nonindigenous
Species in waters of the United States.
Sec.
151.2000 What is the purpose of this subpart?
151.2005 To which vessels does this subpart apply?
151.2010 Which vessels are exempt from the mandatory requirements?
151.2015 Is a vessel in innocent passage exempt from the mandatory
requirements?
151.2020 To what ballast water does this subpart apply?
151.2025 What definitions apply to this subpart?
151.2030 Who is responsible for determining when to use the safety
exemption?
151.2035 What are the voluntary ballast water management guidelines?
151.2040 What are the mandatory requirements for vessels carrying
ballast water into the waters of the United States after operating
beyond the exclusive economic zone (EEZ)?
151.2045 What are the mandatory recordkeeping requirements?
151.2050 What methods are used to monitor compliance with this
subpart?
151.2055 Where are the alternate exchange zones located? (Reserved)
151.2060 What must each application for approval of an alternative
compliance technology contain? (Reserved)
151.2065 What is the standard of adequate compliance determined by
the ANSTF for this subpart? (Reserved)
Appendix to Subpart D of Part --Ballast Water Reporting Form and
Instructions for Ballast Water Reporting Form
Subpart D--Ballast Water Management for Control of Nonindigenous
Species in Waters of the United States
Authority: 16 U.S.C. 4711; 49 CFR 1.46.
Sec. 151.2000 What is the purpose of this subpart?
This subpart implements the provisions of the Nonindigenous Aquatic
Nuisance Prevention and Control Act of 1990 (NANPCA) (16 U.S.C. 4701-
4751), as amended by the National Invasive Species Act of 1996 (NISA).
Sec. 151.2005 To which vessels does this subpart apply?
(a) Sections 151.2000 through 151.2035(a) of this subpart apply to
all vessels, U.S. and foreign, equipped with ballast tanks that operate
in the waters of the United States.
(b) Sections 151.2035(b) through 151.2065 apply to all vessels,
U.S. and foreign, carrying ballast water into the waters of the United
States after operating beyond the exclusive economic zone, except those
vessels exempted in Secs. 151.2010 and 151.2015.
[[Page 26683]]
Sec. 151.2010 Which vessels are exempt from the mandatory
requirements?
Four types of vessels are exempt from the requirements in
Secs. 151.2040 and 151.2045:
(a) A crude oil tanker engaged in the coastwise trade.
(b) A passenger vessel equipped with a functioning treatment system
designed to kill aquatic organisms in the ballast water. The treatment
system must operate as designed.
(c) A Department of Defense or Coast Guard vessel subject to the
requirements of section 1103 of the Act, or any vessel of the Armed
Forces, as defined in the Federal Water Pollution Control Act (33
U.S.C. 1322(a)) that is subject to the ``Uniform National Discharge
Standards for Vessels of the Armed Forces'' (33 U.S.C. 1322(n)).
(d) A vessel that will discharge ballast water or sediments only at
the same location where the ballast water or sediments originated. The
ballast water or sediments must not mix with ballast water or sediments
from areas other than the high seas.
Sec. 151.2015 Is a vessel in innocent passage exempt from the
mandatory requirements?
A foreign vessel merely traversing the territorial sea of the
United States (i.e., not entering or departing a U.S. port, or not
navigating the internal waters of the U.S.) is exempt from the
requirements of Secs. 151.2040 and 151.2045, however such vessels are
requested not to discharge ballast water into the waters of the United
States unless they have followed the voluntary guidelines of
Sec. 151.2035.
Sec. 151.2020 To what ballast water does this subpart apply?
This subpart applies to all ballast water and associated sediments
taken on a vessel in areas--
(a) Less than 200 nautical miles from any shore, or
(b) With water that is less than 2,000 meters (6,560 feet,1,093
fathoms) deep.
Sec. 151.2025 What definitions apply to this subpart?
(a) Unless otherwise stated in this section, the definitions in 33
CFR 151.1504, 33 CFR 160.203, and the United Nations Convention on the
Law of the Sea apply to this part.
(b) As used in this part--
ANSTF means the Aquatic Nuisance Species Task Force mandated under
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990
(NANPCA).
Captain of the Port (COTP) means the Coast Guard officer designated
as the COTP, or a person designated by that officer, for the COTP zone
covering the first U.S. port of destination. These COTP zones are
listed in 33 CFR part 3.
Exchange means to replace the water in a ballast tank using one of
the following methods:
(a) Flow through exchange means to flush out ballast water by
pumping in mid-ocean water at the bottom of the tank and continuously
overflowing the tank from the top until three full volumes of water has
been changed--to minimize the number of original organisms remaining in
the tank.
(2) Empty/refill exchange means to pump out the ballast water taken
on in ports, estuarine, or territorial waters until the tank is empty,
then refilling it with mid-ocean water; masters/operators should pump
out as close to 100 percent of the ballast water as is safe to do so.
IMO guidelines mean the Guidelines for the Control and Management
of Ships' Ballast Water to Minimize the Transfer of Harmful Aquatic
Organisms and Pathogens (IMO Resolution A.868 (20), adopted November
1997).
NANCPA means the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990.
NBIC means the National Ballast Water Information Clearinghouse
operated by the Coast Guard and the Smithsonian Environmental Research
Center as mandated under NISA.
NISA means the National Invasive Species Act of 1996, which
reauthorized and amended NANCPA.
United States means the States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands,
and the Trust Territory of the Pacific Islands.
Voyage means any transit by a vessel destined for any United States
port from a port or place outside of the EEZ, including intermediate
stops at a port or place within the EEZ. For the purpose of this rule,
a transit by a vessel from a United States port to any other United
States port, if at any time the vessel operates outside the EEZ or
equivalent zone of Canada, is also considered a voyage.
Waters of the United States means waters subject to the
jurisdiction of the United States as defined in 33 CFR Sec. 2.05-30,
including the navigable waters of the United States. For this
regulation, the navigable waters include the territorial sea as
extended to 12 nautical miles from the baseline, pursuant to
Presidential Proclamation No. 5928 of December 27, 1988.
Sec. 151.2030 Who is responsible for determining when to use the
safety exemption?
(a) The master, operator, or person-in-charge of a vessel is
responsible for the safety of the vessel, its crew, and its passengers.
(b) The master, operator, or person-in-charge of a vessel is not
required to conduct a ballast water management practice (including
exchange), if the master decides that the practice would threaten the
safety of the vessel, its crew, or its passengers because of adverse
weather, vessel design limitations, equipment failure, or any other
extraordinary conditions. If the master uses this section, and the--
(1) Vessel is on a voyage to the Great Lakes or Hudson River, the
vessel must comply with the requirements of Sec. 151.1514 of subpart C
of this part (Ballast water management alternatives under extraordinary
conditions); or
(2) Vessel is on a voyage to any port other than the Great Lakes or
Hudson River, the vessel shall not be required to perform a ballast
water management practice which the master has found to threaten the
safety of the vessel, its crew, or its passengers because of adverse
weather, vessel design limitations, equipment failure, or any other
extraordinary conditions.
(c) Nothing in this subpart relieves the master, operator, or
person-in-charge of a vessel, of the responsibility for ensuring the
safety and stability of the vessel or the safety of the crew and
passengers, or any other responsibility.
Sec. 151.2035 What are the voluntary ballast water management
guidelines?
(a) Masters, owners, operators, or persons-in-charge of all vessels
equipped with ballast water tanks that operate in the waters of the
United States are requested to take the following voluntary precautions
to minimize the uptake and the release of harmful aquatic organisms,
pathogens, and sediments:
(1) Avoid the discharge or uptake of ballast water in areas within
or that may directly affect marine sanctuaries, marine preserves,
marine parks, or coral reefs.
(2) Minimize or avoid uptake of ballast water in the following
areas and situations:
(i) Areas known to have infestations or populations of harmful
organisms and pathogens (e.g., toxic algal blooms).
(ii) Areas near sewage outfalls.
(iii) Areas near dredging operations.
(iv) Areas where tidal flushing is known to be poor or times when a
tidal stream is known to be more turbid.
[[Page 26684]]
(v) In darkness when bottom-dwelling organisms may rise up in the
water column.
(vi) Where propellers may stir up the sediment.
(3) Clean the ballast tanks regularly to remove sediments. Clean
the tanks in mid-ocean or under controlled arrangements in port, or at
dry dock. Dispose of your sediments in accordance with local, State,
and Federal regulations.
(4) Discharge only the minimal amount of ballast water essential
for vessel operations while in the waters of the United States.
(5) Rinse anchors and anchor chains when you retrieve the anchor to
remove organisms and sediments at their place of origin.
(6) Remove fouling organisms from hull, piping, and tanks on a
regular basis and dispose of any removed substances in accordance with
local, State and Federal regulations.
(7) Maintain a ballast water management plan that was developed
specifically for the vessel.
(8) Train the master, operator, person-in-charge, and crew, on the
application of ballast water and sediment management and treatment
procedures.
(b) In addition to the provisions of Sec. 151.2035(a), you (the
master, operator, or person-in-charge of a vessel) are requested to
employ at least one of the following ballast water management
practices, if you carry ballast water into the waters of the United
States after operating beyond the EEZ:
(1) Exchange ballast water beyond the EEZ, from an area no less
than 200 nautical miles from any shore, and in waters more than 2,000
meters (6,560 feet, 1,093 fathoms) deep, before entering waters of the
United States.
(2) Retain the ballast water on board the vessel.
(3) Use an alternative environmentally sound method of ballast
water management that has been approved by the Coast Guard before the
vessel begins the voyage. Submit the requests for approval of
alternative ballast water management methods to the Commandant (G-MSO-
4), U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington,
DC 20593-0001. The phone number is 202-267-0500.
(4) Discharge ballast water to an approved reception facility.
(5) Under extraordinary conditions, conduct a ballast water
exchange within an area agreed to by the COTP at the time of the
request.
Sec. 151.2040 What are the mandatory requirements for vessels carrying
ballast water into the waters of the United States after operating
beyond the Exclusive Economic Zone (EEZ)?
(a) The master, owner, operator, person-in-charge of a vessel bound
for the Great Lakes or Hudson River, which has operated beyond the EEZ
during any part of its voyage, regardless of intermediate ports of
calls within the waters of the United States or Canada, must comply
with paragraphs (c) through (f) of this section, all of Sec. 151.2045,
and with the provisions of this part 151 subpart C.
(b) A vessel engaged in the foreign export of Alaskan North Slope
Crude Oil must comply with paragraphs (c) through (f) of this section,
all of Sec. 151.2045, and with the provisions of 15 CFR
754.2(j)(1)(iii). That section (15 CFR 754.2(j)(iii)) requires a
mandatory program of deep water ballast exchange (i.e., at least 2,000
meters water depth and recordkeeping), unless doing so would endanger
the safety of the vessel or crew.
(c) The master, owner, operator, agent, or person-in-charge of a
vessel carrying ballast water into the waters of the United States
after operating beyond the EEZ, unless specifically exempted by
Sec. 151.2010 or Sec. 151.2015, must provide the information required
by Sec. 151.2045 in electronic or written form to the Commandant, U.S.
Coast Guard or the appropriate COTP as follows:
(1) For a United States or Canadian Flag vessel bound for the Great
Lakes. You must fax the required information to the COTP Buffalo 315-
764-3283 at least 24 hours before the vessel arrives in Montreal,
Quebec.
(2) For a foreign flagged vessel bound for the Great Lakes. You
must--
(i) Fax the required information to the COTP Buffalo 315-764-3283
at least 24 hours before the vessel arrives in Montreal, Quebec; or
(ii) Complete the ballast water information section of the St.
Lawrence Seaway required ``Pre-entry Information from Foreign Flagged
Vessels Form'' and submit it in accordance with the applicable Seaway
notice.
(3) For a vessel bound for the Hudson River north of the George
Washington Bridge. You must telefax the information to the COTP New
York at 718-354-4249 before the vessel enters the waters of the United
States (12 miles from the baseline).
(4) For a vessel not addressed in paragraphs (c)(1), (c)(2), and
(c)(3) of this section. Before the vessel departs from the first port
of call in the waters of the United States, you must--
(i) Mail the information to U.S. Coast Guard, c/o Smithsonian
Environmental Research Center (SERC), P.O. Box 28, Edgewater, MD 21037-
0028; or
(ii) Transmit the information electronically to the NBIC at
www.serc.si.edu/invasions/ballast.htm; or
(iii) Fax the information to the Commandant, U.S. Coast Guard, c/o
the NBIC at 301-261-4319.
(d) If the information submitted in accordance with paragraph (c)
of this section changes, you must submit an amended form before the
vessel departs the waters of the United States.
(e) This subpart does not authorize the discharge of oil or noxious
liquid substances (NLS) in a manner prohibited by United States or
international laws or regulations. Ballast water carried in any tank
containing a residue of oil, NLS, or any other pollutant must be
discharged in accordance with the applicable regulations.
(f) This subpart does not affect or supersede any requirement or
prohibition pertaining to the discharge of ballast water into the
waters of the United States under the Federal Water Pollution Control
Act (33 U.S.C. 1251 to 1376).
Sec. 151.2045 What are the mandatory recordkeeping requirements?
(a) The master, owner, operator, or person in charge of a vessel
carrying ballast water into the waters of the United States after
operating beyond the EEZ, unless specifically exempted by Sec. 151.2010
or Sec. 151.2015 shall keep in written form, records that include the
following information (Note: Ballast tank is any tank or hold that
carries ballast water regardless of design):
(1) Vessel information. Include the--
(i) Name;
(ii) International Maritime Organization (IMO) Number (official
number if IMO number not issued);
(iii) Vessel type;
(iv) Owner or operator;
(v) Gross tonnage;
(vi) Call sign; and
(vii) Port of Registry (Flag).
(2) Voyage information. Include the date and port of arrival,
vessel agent, last port and country of call, and next port and country
of call.
(3) Total ballast water information. Include the total ballast
water capacity, total volume of ballast water on board, total number of
ballast water tanks, and total number of ballast water tanks in
ballast. Use units of measurements such as metric tons (MT), cubic
meters (m3), long tons (LT), and short tons (ST).
(4) Ballast Water Management. Include the total number of ballast
[[Page 26685]]
tanks/holds that are to be discharged into the waters of the United
States or to a reception facility. If an alternative ballast water
management method is used, please note the number of tanks that were
managed using an alternative method, as well as the type of method
used. Indicate whether the vessel has a ballast water management plan
and IMO guidelines on board, and whether the ballast water management
plan is used.
(5) Information on ballast water tanks that are to be discharged
into the waters of the United States or to a reception facility.
Include the following:
(i) The origin of ballast water. This includes date(s),
location(s), volume(s) and temperature(s) (If a tank has been
exchanged, list the loading port of the ballast water that was
discharged during the exchange.).
(ii) The date(s), location(s), volume(s), method, thoroughness
(percentage exchanged if exchange conducted), sea height at time of
exchange if exchange conducted, of any ballast water exchanged or
otherwise managed.
(iii) The expected date, location, volume, and salinity of any
ballast water to be discharged into the waters of the United States or
a reception facility.
(6) Discharge of sediment. If sediment is to be discharged within
the jurisdiction of the United States include the location of the
facility where the disposal will take place.
(7) Certification of accurate information. Include the master,
owner, operator, person in charge, or responsible officer's printed
name, title, and signature attesting to the accuracy of the information
provided and certifying compliance with the requirements of this
subpart.
(8) Change to previously submitted information.
(i) Indicate whether the information is a change to information
previously submitted for this voyage.
(ii) The master, owner, operator, or person in charge of a vessel
subject to this section, must retain a signed copy of this information
on board the vessel for 2 years.
(iii) The information required of this subpart may be used to
satisfy the ballast water recordkeeping requirements for vessels
subject to Sec. 151.2040(a) and (b).
(iv) A sample form and the instructions for completing the form are
in the appendix to this subpart. If you complete the ``Ballast Water
Reporting Form'' contained in the IMO Guidelines or complete the
ballast water information section of the St. Lawrence Seaway required
``Pre-entry Information Flagged Vessels Form,'' then you have met the
requirements of this section.
Sec. 151.2050 What methods are used to monitor compliance with this
subpart?
(a) The COTP may take samples of ballast water and sediment,
examine documents, and make other appropriate inquiries to assess the
compliance of any vessel subject to this subpart.
(b) The master, owner, operator, or person in charge of a vessel
subject to this section, shall make available to the COTP the records
required by Sec. 151.2045 upon request.
(c) The NBIC will compile the data obtained from submitted reports.
This data will be used, in conjunction with existing databases on the
number of vessel arrivals, to assess vessel reporting rates.
Sec. 151.2055 Where are the alternate exchange zones located?
[Reserved]
Sec. 151.2060 What must each application for approval of an
alternative compliance technology contain? [Reserved]
Sec. 151.2065 What is the standard of adequate compliance determined
by the ANSTF for this subpart? [Reserved]
Appendix to Subpart D of Part 151--Ballast Water Reporting Form and
Instructions for Ballast Water Reporting Form
BILLING CODE 4910-15-P
[[Page 26686]]
[GRAPHIC] [TIFF OMITTED] TR17MY99.001
[[Page 26687]]
[GRAPHIC] [TIFF OMITTED] TR17MY99.002
[[Page 26688]]
[GRAPHIC] [TIFF OMITTED] TR17MY99.003
[[Page 26689]]
[GRAPHIC] [TIFF OMITTED] TR17MY99.004
[[Page 26690]]
Dated: May 11, 1999.
R.C. North,
Assistant Commandant for Marine Safety and Environmental Protection.
[FR Doc. 99-12266 Filed 5-14-99; 8:45 am]
BILLING CODE 4910-15-C
