[Federal Register: July 28, 2004 (Volume 69, Number 144)]
[Rules and Regulations]
[Page 44952-44961]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy04-11]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 151
[USCG-2003-14273]
RIN 1625-AA52
Mandatory Ballast Water Management Program for U.S. Waters
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is requiring mandatory ballast water
management practices for all vessels equipped with ballast water tanks
bound for ports or places within the U.S. or entering U.S. waters. This
rule will increase the Coast Guard's ability to protect U.S. waters
against the unintentional introduction of nonindigenous species via
ballast water discharges, which have had significant impacts on the
nation's marine and freshwater resources, biological diversity, and
coastal infrastructure. It will also comply with the requirements of
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990
and the National Invasive Species Act of 1996. The Great Lakes ballast
water management program remains unchanged.
DATES: This final rule is effective September 27, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2003-14273 and are available for inspection or
copying at the Docket Management Facility, U.S. Department of
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://dms.dot.gov
.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Mr. Bivan R. Patnaik, Project Manager, Environmental Standards
Division, Coast Guard, telephone 202-267-1744, e-mail:
bpatnaik@comdt.uscg.mil. If you have questions on viewing the docket,
call Andrea M. Jenkins, Program Manager, Docket Operations, telephone
202-366-0271.
SUPPLEMENTARY INFORMATION:
Legislative and Regulatory History
The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990 (NANPCA) [Pub. L. 101-646], enacted by Congress on November 29,
1990, established the Coast Guard's regulatory jurisdiction over
ballast water management (BWM). To fulfill the directives of NANPCA,
the Coast Guard published a final rule on April 8, 1993, titled
``Ballast Water Management for Vessels Entering the Great Lakes'' in
the Federal Register (58 FR 18330). This rule established mandatory BWM
procedures for vessels entering the Great Lakes in 33 CFR part 151,
subpart C.
A subsequent final rule titled ``Ballast Water Management for
Vessels Entering the Hudson River'' was published on December 30, 1994,
in the Federal Register (59 FR 67632). This final rule amended 33 CFR
part 151 to extend the BWM requirements into portions of the Hudson
River.
The National Invasive Species Act (NISA) [Pub. L. 104-332] enacted
by Congress on October 26, 1996, reauthorized and amended NANPCA. NISA
reemphasized the significant role of ships' ballast water in the
introduction and spread of nonindigenous species (NIS). NISA authorized
the Coast Guard to develop a voluntary national BWM program and
mandated the submission of reporting forms without penalty provisions.
On
[[Page 44953]]
May 17, 1999, the Coast Guard published an interim rule on this
voluntary program titled, ``Implementation of the National Invasive
Species Act of 1996 (NISA)'' (64 FR 26672) and finalized the rule on
November 21, 2001 (66 FR 5838).
NISA also instructed the Secretary of the Department in which the
Coast Guard is operating (the Coast Guard was operating under the
Department of Transportation when NISA was enacted) to submit a Report
to Congress evaluating the effectiveness of the voluntary BWM program.
Congress anticipated that the Secretary might determine that either
compliance with the voluntary guidelines was inadequate, or the rate of
reporting was too low to allow for a valid assessment of compliance. In
either case, Congress stipulated the development of additional
regulations to make the voluntary guidelines a mandatory BWM program.
The Secretary's Report to Congress, signed June 3, 2002, concluded that
compliance with the voluntary guidelines, found in 33 CFR part 151,
subpart D, was insufficient to allow for an accurate assessment of the
voluntary BWM regime. Accordingly, the Secretary stated his intention
to make the voluntary BWM guidelines mandatory. A copy of this Report
to Congress can be found in the public docket (USCG-2002-13147) at
http://dms.dot.gov.
On June 14, 2004 (69 FR 32864), we published a final rule titled
``Penalties for Non-submission of Ballast Water Management Reports''
that implemented penalties for failure to comply with the mandatory
requirements found in 33 CFR part 151 and widened the applicability of
the reporting and recordkeeping requirements to all vessels bound for
ports or places within the U.S., with minor exceptions.
On July 30, 2003, we published a notice of proposed rulemaking
titled ``Mandatory Ballast Water Management Program for U.S. Waters''
in the Federal Register (68 FR 44691). We received 38 letters
commenting on the proposed rule. No public meeting was held on this
rulemaking.
Background and Purpose
As directed by NISA and as stated in the Secretary of
Transportation's Report to Congress in June 2002, the Coast Guard has
determined that the voluntary BWM program is inadequate because
sufficient compliance has not occurred. Therefore, as of the effective
date of this rule, the Coast Guard has converted the voluntary BWM
program into a mandatory program. This rule will increase the Coast
Guard's ability to protect against introductions of NIS via ballast
water discharges.
On March 1, 2003, the Coast Guard became a component of the
Department of Homeland Security. As a result, the Secretary of the
Department of Homeland Security assumed all duties once bestowed on the
Secretary of the Department of Transportation with respect to this
rule. The Secretary of Homeland Security concurs with the Coast Guard's
rule regarding the mandatory BWM program.
This final rule revises 33 CFR part 151, subpart D, by requiring a
mandatory BWM program for all vessels equipped with ballast water tanks
bound for ports or places within the U.S. and/or entering U.S. waters.
The mandatory BWM requirements for vessels entering the Great Lakes and
Hudson River from outside the U.S. Exclusive Economic Zone (EEZ) remain
unchanged.
The mandatory program requires all vessels equipped with ballast
water tanks entering U.S. waters after operating beyond the EEZ to
employ at least one of the following BWM practices:
(a) Prior to discharging ballast water in U.S. waters, perform
complete ballast water exchange in an area no less than 200 nautical
miles (nm) from any shore.
(b) Retain ballast water onboard the vessel.
(c) Prior to the vessel entering U.S. waters, use an alternative
environmentally sound method of BWM that has been approved by the Coast
Guard.
Although the national mandatory BWM program provides vessels with
the option of using one of three BWM practices, ballast water exchange
is likely to be the most used practice because--
Some vessels engaged in trade are unlikely to hold their
ballast water after arriving in U.S. waters from outside the EEZ, as
this would mean they would not be able to conduct cargo operations;
Alternative environmentally sound methods of BWM are still
being developed and will likely be of limited availability in the near
future; and
Therefore, under this rule, the BWM practice of conducting mid-
ocean ballast water exchange prior to discharging ballast water in U.S.
waters will be the practice used by the majority of vessels at this
time.
Mid-ocean ballast water exchange is currently the most practicable
method to help prevent the introductions of NIS into U.S. waters. Water
in the open ocean contains certain physical, chemical, and biological
conditions (such as high salinity). Organisms contained in ballast
water that is exchanged in mid-ocean will not, or are unlikely to
survive in an open ocean system. Likewise organisms that are contained
in ballast water after a mid-ocean exchange is conducted will not, or
are unlikely to survive if introduced into a freshwater or coastal
system.
As mid-ocean ballast water exchange will be the most likely used
BWM practice at this time, there are those vessels with voyage and/or
safety concerns that will not be able to conduct ballast water
exchange. Voyage and/or safety concerns may include security concerns
since these issues have increased significantly due to recent events.
NISA requires us to take into consideration different operating
conditions in developing the mandatory BWM program. Therefore, a vessel
that cannot practicably meet the requirements of paragraph (a) above
due to a voyage that does not take it into waters at least 200 nm from
any shore for a sufficient length of time or due to safety concerns
will retain its ballast onboard. The vessel will not be prohibited from
discharging the minimum amount of its ballast water necessary to
maintain the safety of the vessel in areas other than the Great Lakes
and the Hudson River. However, the vessel must discharge only the
amount of ballast water operationally necessary for safety concerns. An
entry must be made in the ballast water records supporting the reasons
that the vessel could not comply with the regulatory requirements.
Ballast water records must be made available to the local Captain of
the Port (COTP) upon request.
This final rule also revises the criteria for a mid-ocean exchange
by removing the constraints of exchanging ballast water in waters at a
depth of 2,000 meters. Currently, there is no international consensus
on a water-depth criterion for ballast water exchange. For example,
Australian legislation has a depth requirement of 200 meters, and
Israel's ballast water exchange requirement has no depth restriction,
while the International Maritime Organization (IMO) Convention for the
Control and Management of Ship's Ballast Water and Sediments, recently
adopted on February 9, 2004, has a criterion of 200 meters. As there is
no international consensus to mid-ocean ballast water exchange
criteria, at this time, we believe defining mid-ocean ballast water
exchange as taking place at least 200 nm from shore allows more vessels
to conduct exchange and simplifies enforceability.
[[Page 44954]]
The Coast Guard recognizes that there are two currently feasible
methods of conducting an exchange:
An empty/refill exchange. The tank (or pair of tanks) is
pumped down to the point where the pumps lose suction, and then the
tank is pumped back up to the original level.
A flow-through exchange. Mid-ocean water is pumped into a
full tank while the existing coastal or fresh water is pumped or pushed
out through another opening. As defined by the Coast Guard, a volume of
water equal to three times the ballast tank capacity must be pumped for
a flow-through exchange.
Failure to employ at least one of the BWM practices outlined above
will result in a penalty, unless the vessel is exempt due to safety or
voyage constraints or specifically exempted from the regulation.
Each vessel subject to this rule (33 CFR part 151 subpart D) will
be required to develop and maintain a BWM plan. The plan shall be
specific to each vessel and shall fulfill two purposes: (1) Show that
there is a BWM strategy for the vessel; and (2) allow any master, or
other ship's officer as appropriate, serving on that vessel to
understand and follow the BWM strategy for the vessel. The IMO has
issued guidelines on the content of BWM plans in IMO Resolution
A.868(20) Annex 1, Chapter 7. Any plan meeting these IMO guidelines
will meet the regulatory requirement laid out in Sec. 151.2035(a)(7).
This Resolution is available on the IMO's Global Ballast Water
Management Programme Web site [http://globallast.imo.org]. For your
reference, we have also placed a copy of the IMO guidelines in the
docket for this rule at the location listed above under ADDRESSES.
Failure to maintain a BWM plan onboard the vessel or to make the
required ballast water reporting forms available will result in
penalties.
Discussion of Comments and Changes
We received 38 letters on the proposed rulemaking for BWM. Most
letters contained more than one comment. These included general
comments as well as specific comments. We address the general comments
first and then the specific comments.
General Comments
We received 16 comments in general support of the rule. One of
these commenters supported the requirement that vessels must maintain
BWM plans and that they should be modeled after IMO guidelines. One
commenter supported the provisions of the rule that would not require
vessels to deviate from their voyages or delay their voyages in order
to conduct ballast water exchange.
One commenter stated that effective BWM and reporting are critical
to maintaining the ecological and economic well being of coastal
Alaska.
Three commenters stated that the U.S. mandatory BWM program should
be consistent with IMO guidelines and supported our removal of the
depth requirement for conducting ballast water exchange. One commenter
stated that the Coast Guard did not adequately explain why ballast
water exchange is acceptable in waters less than 2,000 meters deep.
We agree with the commenters. We have developed the BWM program to
be as consistent with IMO guidelines as practicable. For example, and
as recognized by the commenters, under the voluntary BWM program, we
requested that ballast water exchange take place in an area 200 nm from
shore and at a depth of 2,000 meters. To be consistent with IMO
guidelines, we modified the mandatory program to require that ballast
water exchange take place 200 nm from shore, without regard to water
depth. We believe this harmonization will help vessel operators that
must follow both IMO guidelines and U.S. requirements. As stated in the
proposed rulemaking (68 FR 44691), there is not consensus on water
depth criterion for ballast water exchange. Because there is no
scientific consensus on a specific water depth that is suitable for
exchange, and for the reasons stated above, we aligned our requirements
with IMO guidelines.
One commenter stated that there should be no vessels exempt from
the mandatory BWM program.
We disagree with the commenter. NISA authorizes specific exemptions
for crude oil tankers engaged in coastwise trade and Department of
Defense and Coast Guard vessels. Therefore, we do not currently have
the authority to include these vessels in the applicability for the
final rule.
One commenter requested that the Coast Guard host a public meeting
on the Programmatic Environmental Assessment (PEA).
The Coast Guard does not intend to hold a public meeting for the
PEA. We believe that the comment period provided ample opportunity for
the public to suggest other alternatives to the one examined in the
PEA.
Two commenters stated that there should be a publicly accessible
database for nationwide ballast water discharges.
National ballast water discharge data is publicly available and can
be found at the Web site for the National Ballast Information
Clearinghouse at http://invasions.si.edu/NBIC/ballast.html.
One commenter asked if vessels discharging ballast water should be
regulated under the Environmental Protection Agency's (EPA) National
Pollution Discharge Elimination System (NPDES) Program.
This comment was the subject of a petition submitted to EPA on
January 13, 1999. EPA responded to this petition on September 9, 2003
to comply with a court order (68 FR 53165). The Coast Guard opined,
during the legal proceedings, that regulation of vessels discharging
ballast water should remain under the authority of the Coast Guard.
EPA, for the reasons set out in its September 9, 2003, petition denial,
does not regulate vessels discharging ballast water under the NPDES
program.
One commenter asked if the Coast Guard would identify ``high-risk
vessels'' and if we would encourage their owners to install ballast
water treatment systems. This commenter also asked if the Coast Guard
has funding to conduct research onboard vessels.
The Coast Guard does not have the ability to identify ``high-risk
vessels'' with respect to NIS, nor have we defined this term in our
regulations. Further, the Coast Guard does not have funding to conduct
research onboard vessels; however, we have developed a Shipboard
Technology Evaluation Program (STEP) that encourages owners to install
and test various technologies for ballast water treatment. This program
was established in January 2004, through a Navigation and Inspection
Circular (NVIC 01-04) and announced in a Notice of Availability
published in the Federal Register on January 7, 2004 (69 FR 1082).
One commenter asked how the Coast Guard, in conjunction with EPA
and the States, will develop education and outreach programs for BWM.
We intend to develop guidance regarding BWM procedures and
recommended practices. This guidance will take into account
coordination with EPA and other Federal and State agencies.
Additionally, class societies and IMO have published guidance on best
practices and procedures for BWM that is specific to ship type.
One commenter stated there has been a misunderstanding among
mariners on what constitutes a ``full exchange.''
As defined in Sec. 151.2025, there are two methods of exchange,
either ``flow through'' or ``empty/refill.'' Both exchange methods, as
defined in this section, describe what constitutes a full exchange. A
``full exchange'' using the ``flow through'' method means that three
full tank volumes of water have
[[Page 44955]]
been exchanged. A ``full exchange'' using the ``empty/refill'' method
means that the ballast tanks are pumped down to the point where the
pumps lose suction, and the tank is then refilled to the original
level.
One commenter suggested we revise Sec. 151.2030 to remove the
distinction between U.S. waters and the Great Lakes. Another commenter
stated that the national BWM program should be the same as the program
on the Great Lakes.
We agree with these comments; however, the intent of this rule is
simply to convert the voluntary national guidelines for BWM to a
mandatory, national program. We intend to merge the Great Lakes program
and the national program into a single program in a future rulemaking.
One commenter stated that Sec. 151.2037 is not enforceable and is
inconsistent with Sec. 151.2035(b) and recommended removing the term
``voyage concerns.''
We disagree with this comment. If a vessel cannot comply with Sec.
151.2035(b) because of ``voyage concerns,'' that vessel is responsible
for documenting this action. If there is no documentation, the Coast
Guard will assess a monetary penalty for failing to comply with Sec.
151.2037.
One commenter stated that a minimum ballast water transfer quantity
or capacity should be established and that BWM or reporting should not
be required for volumes below these amounts.
We disagree with the commenter. As directed by NISA, we are
required to analyze BWM operations for vessels, regardless of a
vessel's ballast capacity or volume of ballast water carried on any
particular voyage. Therefore, we are not establishing a minimum
quantity or capacity requirement.
One commenter requested clarification on what is expected of
vessels in innocent passage in terms of compliance with the rule.
As stated in Sec. 151.2015 titled ``Is a vessel in innocent
passage exempt from the mandatory requirements?'' vessels merely
traversing the territorial seas of the U.S. (i.e., not entering or
departing a U.S. port, or not navigating the internal waters of the
U.S.) are exempt from the requirements of 33 CFR part 151. Vessels
merely traversing the territorial seas of the U.S. would be considered
engaged in ``innocent passage.''
One commenter requested clarification on the definition of ``waters
of the U.S.,'' asking if the term means ``territorial waters'' (12 nm
from shore) or the U.S. EEZ (200 nm from shore).
``Waters of the U.S.,'' as stated in 33 CFR 151.2025, means waters
subject to the jurisdiction of the United States as defined in 33 CFR
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. We are
revising that definition to correct the citation from 33 CFR 2.05-30 to
33 CFR 2.38.
One commenter requested clarification on distance and depth
requirements for ballast water exchange.
As stated in Sec. 151.2035(b)(1), ballast water exchange must be
performed in an area no less than 200 nm from any shore. Neither the
proposed rulemaking nor the final rule for mandatory BWM contains a
depth requirement for ballast water exchange.
Two commenters requested clarification for the term ``discharge
only the amount operationally necessary.''
This term was intended to allow vessel operators some flexibility
in their cargo operations and BWM practices, while protecting the
receiving environment to the extent practicable. If ballast water
exchange has not been conducted prior to entering U.S. waters, and a
vessel operator must conduct cargo operations in a U.S. port, the
operator may release the amount of ballast water necessary to conduct
safe cargo operations. The vessel operator must make a note of the
discharge into the U.S. port on the ballast water reporting form.
Four commenters expressed concern regarding the breadth of these
regulations. Two commenters stated concern that some vessels are exempt
from conducting ballast water exchange due to voyage constraints and
suggested that these vessels employ alternative BWM methods. Two
commenters stated that ballast water exchange is not an ``effective
solution'' and should not be the ``default solution.'' The Coast Guard
should instead focus on a ``zero discharge'' standard.
We understand that ballast water exchange is not the final answer
in preventing the introduction of NIS. Currently, there are no
alternative BWM methods to ballast water exchange that have been
approved by the Coast Guard. We are exploring environmentally sound
alternative BWM methods that are at least as effective as ballast water
exchange and intend to approve those methods that meet the above
criteria in the future. We are not mandating the use of alternative
methods in this final rule. Additionally, the Coast Guard intends to
establish ballast water discharge standards that prevent the
introduction of NIS and are both environmentally protective and
economically feasible. As described in the Notice of Intent for our
Programmatic Environmental Impact Statement (68 FR 55559), one of the
alternatives under consideration would ``result in the discharge of no
detectable viable organisms larger than 0.1 microns,'' which is, in
essence, a ``zero discharge'' alternative.
One commenter stated that it is premature to establish a mandatory
BWM program without first establishing ballast water discharge
standards.
We disagree with this commenter. The intent of this final rule is
to convert the voluntary BWM program to a mandatory program if we
deemed the voluntary BWM program inadequate, as required by NISA. We
believe it is inefficient to develop discharge standards without first
having an overarching BWM program in place. The Coast Guard is in the
process of establishing ballast water discharge standards and
evaluating shipboard treatment technologies that could be employed to
meet these standards. Ballast water discharge standards will be the
subject of a future rulemaking.
Three commenters stated that the mandatory BWM program does not
address vessels with no ballast on board (NOBOBs) and that ballast
water exchange is not a final answer to preventing the introduction of
NIS.
While our final rule for mandatory BWM does not address NOBOBs, we
believe that addressing these vessels is an important factor in the
prevention of NIS introductions. As a first step, the Coast Guard now
requires NOBOBs to submit ballast water reporting forms, as stated in
the final rule titled ``Penalties for Non-submission of Ballast Water
Management Reports'' published on June 14, 2004 (69 FR 32864). We will
continue to explore the issue of NOBOBs entering U.S. waters, and these
vessels may be included in a future rulemaking.
One commenter suggested removing the term ``voluntary guidelines''
in Sec. 151.2015 and replacing it with ``mandatory program.''
We agree with the commenter and have amended Sec. 151.2015 to
reflect this change.
Three commenters suggested that the definition of ballast water
tanks be clarified.
We have added the definition for ``ballast tank,'' currently found
in Sec. 151.1504 (151 subpart C) to Sec. 151.2025 (151 subpart D).
This definition will
[[Page 44956]]
help clarify which vessels must comply with the rule.
One commenter recommended that language regarding the BWM plan in
Sec. 151.2035(a)(7) should be changed from ``ship's officer'' to
``those responsible for its implementation.''
We agree with the commenter and have amended Sec. 151.2035(a)(7)
to clarify the specificity needed in the BWM plan.
One commenter recommended that language in Sec. 151.2035(b)(4)
should state that reception facilities be approved by the Coast Guard
for receipt and treatment of ballast water.
We disagree with the commenter. The Coast Guard does not currently
have the statutory authority to approve reception facilities; therefore
adding the language requested by the commenter would be inappropriate.
In order to eliminate the confusion created by this provision, and for
the reasons discussed in greater detail in the ``Environment'' section,
below, we are deleting Sec. 151.2035(b)(4).
Comments Regarding Coastwise Trade
Two commenters recommended that the Coast Guard, in consultation
with Canada and IMO, adopt a single set of national or regional ballast
water exchange zones along the West Coast to address concerns regarding
coastwise voyages. An additional ten commenters asked the Coast Guard
to adopt regulations addressing coastwise trade and recommended that we
convene a panel of experts to develop alternative ballast water
exchange zones within the EEZ.
The final rule does not address coastwise trade because vessels on
these voyages cannot conduct a mid-ocean ballast water exchange, due to
the fact that they do not travel outside 200 nm of any shore. The Coast
Guard is examining the possibility of establishing alternative ballast
water exchange zones. As part of this effort, we participated in a
workshop for alternative ballast water exchange zones in October 2003,
and believe the ideas exchanged at this and future workshops could
provide a sound, scientific basis for establishing ballast water
exchange zones within the EEZ.
One commenter stated that vessels engaged in coastwise trade should
be required to submit ballast water reporting forms.
We agree. As stated in the final rule titled ``Penalties for Non-
submission of Ballast Water Management Reports'' (69 FR 32864), as of
August 13, 2004, these vessels are required to submit ballast water
reporting forms.
One commenter stated that vessels on domestic voyages that do not
conduct ballast water operations outside the EEZ should be exempt from
this rule.
We agree and as stated in Sec. 151.2005(b), only those vessels
equipped with ballast tanks that enter U.S. waters from beyond the EEZ
must conduct BWM, with the exception of those vessels exempted in
Sec. Sec. 151.2010 and 151.2015.
Comments on Barges and Towing Vessels
Four commenters asked the Coast Guard to recognize the uniqueness
of domestic barges and towing operations by accepting different
approaches to ballast water management.
The Coast Guard appreciates the uniqueness of all types of vessels.
However, if a barge or tug vessel operates outside the EEZ, it will be
required to conduct ballast water management, unless it meets the
requirements under Sec. 151.2037.
Three commenters asked the Coast Guard to exempt inland towing
vessels and barges from BWM requirements, as they are not equipped with
ballast water tanks.
We disagree. Inland towing vessels and barges may be covered even
if they are not equipped with ballast water tanks. As stated in the
definition for ``ballast tank,'' any vessel that carries ballast water
must comply with these regulations. NISA, while allowing for exemptions
from BWM, mandates that the BWM program be based on the best scientific
information possible. We do not currently have information that would
allow us to make specific exemptions for inland towing vessels and
barges. We note, however, that those inland towing vessels and barges
that never carry ballast water do not fall within the applicability
section of this regulation; therefore, no specific exemption is needed.
Additionally, vessels that do not transit outside the EEZ, such as most
inland towing vessels and barges, are not subject to mandatory BWM
requirements.
Four commenters asked the Coast Guard not to require BWM plans for
barges and towing vessels that operate within the EEZ. One of these
commenters also asked the Coast Guard to provide a template to assist
them in developing their plans.
We believe that if towing vessels and barges are equipped with
ballast water tanks or use other tanks to ballast and deballast water,
these vessels will be required to maintain a BWM plan specific to those
vessels. At this time, the Coast Guard does not intend to develop a
template for a BWM plan. We recommend that these vessels seek
assistance from their class societies or maritime associations. We also
suggest that vessel owners refer to IMO guidelines for IMO Resolution
A.868(20) Annex 1, which are available in the public docket for this
rule.
We received four comments regarding the ballast water reporting
form. Two commenters asked the Coast Guard to develop a new ballast
water reporting form specific to barges and towing vessels. One
commenter expressed concern with the ballast water reporting form. One
commenter recommended that the ballast water reporting form include a
listing of all locations where ballast water was discharged.
Comments regarding the ballast water reporting form were addressed
in the Discussion of Comments section of the final rule for ``Penalties
for Non-submission of Ballast Water Reporting Forms'' [69 FR 32864]. At
this time we do not intend to develop a ballast water reporting form
that is specific to barges and towing vessels; however, we are
exploring a potential redesign of the reporting form. Additionally, we
wish to note that the locations of all ballast water discharges are
already part of the ballast water reporting form. Operators are
required to log the coordinates (latitude/longitude) or port where the
ballast water was discharged. Ballast water sources are required to be
similarly reported on the form.
Two commenters asked the Coast Guard to allow tug and barge
operators that carry ballast water and serve domestic coastwise trade
to submit reports every 30 days, rather than 24 hours prior to arrival
at the first U.S. port. These commenters argued that monthly reporting
would ease the administrative burden on the vessel operator.
We disagree with this comment. To change the submission
requirements of ballast water reports for tugs and barges from 24 hours
to 30 days would delay the accounting of BWM practices, thus denying
the Coast Guard the means of enforcing compliance with mandatory
ballast water reporting requirements. If the operators of these vessels
know their destinations in advance, they may submit multiple reports of
their BWM practices to the Coast Guard prior to their arrival.
One commenter stated that coastwise barges will be unable to comply
with Sec. 151.2035(b)(1 through 3) because it is ``unsafe'' for barges
to conduct ballast water operations in the open sea.
As previously stated, vessels engaged in coastwise trade will not
be expected to conduct mandatory BWM under this final rule.
Additionally, Sec. 151.2037 states that a vessel that cannot meet the
requirements of Sec. 151.2035(b)(1-3)
[[Page 44957]]
because of safety concerns will not be prohibited from discharging
ballast water in areas other than the Great Lakes and Hudson River;
however, the vessel must discharge only that amount that is
operationally necessary and make ballast water records available to the
local COTP upon request.
Comments on Compliance and Enforcement
Three commenters asked how the Coast Guard would ensure that a
vessel has conducted BWM.
The vessel owner or operator must maintain accurate copies of the
ballast water records onboard the vessel as required by 33 CFR 151.2045
and the forms must be readily available upon request. Additionally, we
will use the ballast water reporting forms that must be submitted in
advance of a vessel arriving at a U.S. port as required by 33 CFR
151.2040 to verify and ensure that the vessel has conducted BWM. We are
actively pursuing ballast water exchange verification technologies, and
when these technologies are available, we will employ them as
appropriate.
One commenter requested a discussion on penalties, including
failure to keep required records, failure to record why BWM was not
conducted, and the range of potential penalties for these violations.
We addressed penalties for violations of BWM and non-submission of
reporting forms at length in the preamble to the final rule titled
``Penalties for Non-submission of Ballast Water Reporting Forms'' [69
FR 32864].
Two commenters raised issues regarding penalties. One commenter
asked if monetary penalties for violating these regulations would be
based on a flat fee or a weighted fee based on ship size or amount of
ballast water. One commenter asked that the Coast Guard assess
penalties that deter inaccurate reporting or failure to report ballast
water discharge information.
Monetary civil penalties associated with violations of this rule
will not be based on a flat fee or based on ship size or ballast water
amount. Penalties for failure to comply with any of the BWM
regulations, including reporting requirements, will be assessed on a
case-by-case basis. We have the discretion to issue a penalty of up to
$27,500, depending on the facts of each individual case, and each day
is considered a separate violation, pursuant to NISA.
One commenter urged the Coast Guard to use the existing Port State
Control (PSC) program to enforce the BWM program.
We partially agree with the commenter. BWM reports will not be
considered in the ``scoring matrix'' used to prioritize boardings and
inspections under the Coast Guard's PSC program at this time. However,
inspectors boarding vessels that arrive in U.S. ports may ask for any
documentation regarding a vessel's BWM practices during the inspection
process. Inspectors may also target specific vessels if they believe
these vessels are not in compliance with the mandatory BWM provisions.
As a result, BWM maybe become a future part of PSC. We intend to
publish a NVIC that describes our intended enforcement activities for
BWM. The NVIC will be available to all interested stakeholders through
their local COTP or the Office of Operating and Environmental Standards
at http://www.uscg.mil/hq/gm/mso/index.html.
Comments Beyond the Scope of This Rule
One commenter recommended that a fund be established from
noncompliance fees to remediate ballast water-related impact areas.
We think this type of program is a novel concept; however, the
Coast Guard does not currently have the authority to establish or
administer such a program.
Five commenters stated that establishing ballast water discharge
standards should be a priority for the Coast Guard.
We agree with commenters; however, ballast water discharge
standards will be addressed in a future rulemaking.
One commenter stated that vessels on voyages outside the EEZ that
do not perform any ballasting operations while outside the EEZ should
not have to submit a ballast water reporting form.
We disagree with the commenter. As stated in the final rule titled
``Penalties for Non-submission of Ballast Water Management'' [69 FR
32864], vessels are required to submit a ballast water reporting form
if they transit within U.S. waters, regardless of where they operate,
with minor exceptions, such as a vessel in innocent passage.
Two commenters stated that the rule does not give any consideration
to the National Aquatic Invasive Species Act (NAISA).
While introduced into Congress, NAISA has not yet been enacted. We
will monitor NAISA's progress through Congress, but will not begin
implementing any portions of the Act before it becomes law.
One commenter stated that the Coast Guard's highest priority should
be establishing an experimental technology approval program.
On January 7, 2004, the Coast Guard published NVIC 01-04, as
announced in the Federal Register (69 FR 1082), describing the STEP
application process. We are actively reviewing and providing feedback
on all applications received to date.
One commenter recommended that the Coast Guard consider a specific
treatment technology.
The Coast Guard cannot recommend specific technologies without
first evaluating their effectiveness and environmental soundness. We
encourage any parties that believe they have shipboard technologies to
prevent the introduction of NIS to participate in the Coast Guard's
STEP.
One commenter suggested that the Coast Guard encourage the Canadian
and Mexican governments to adopt BWM regulations similar to ours.
We agree that international coordination, particularly with Canada
and Mexico, is essential for the successful prevention of NIS
introductions. The U.S. is currently working with Canada under the
auspices of the International Joint Commission to address the
prevention of NIS. Both Canada and Mexico participate as invited
observers to the Aquatic Nuisance Species Task Force. We will continue
to work with all countries to address the challenges posed by invasive
species.
Regulation Evaluation
This rule is a ``significant regulatory action'' under section 3(f)
of Executive Order 12866, Regulatory Planning and Review. The Office of
Management and Budget has reviewed it under that Order. It requires an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. It is significant under the regulatory policies and
procedures of the Department of Homeland Security. A final Regulatory
Evaluation is available in the docket as indicated under ADDRESSES. A
summary of the Regulatory Evaluation follows and is available in the
public docket for this rule.
We received 5 comments on the Regulatory Evaluation. One commenter
stated that annual costs for BWM should be explained in the final rule.
We have included a summary of the annual costs for BWM in this
preamble to the final rule. A detailed analysis of annual costs for BWM
can be found in the final Regulatory Evaluation, which is available in
the public docket for this rule.
Two commenters stated that our estimated costs for ballast water
exchange were too low. One commenter stated that a single exchange for
a large
[[Page 44958]]
bulk carrier would be several times more than our estimate. The second
commenter stated that the annual cost for container ships would be
higher than our estimate.
Our cost-per-exchange estimates are based on information from class
societies, ballast water literature, and the U.S. Maritime
Administration. We believe that the alternate estimates provided by the
commenters greatly overstate, in one case by an order of magnitude, the
costs of ballast water exchange. Additionally, these commenters did not
provide documentation or substantiation for their alternate estimates.
We have not, therefore, modified our cost estimates based on these
comments.
One commenter generally agreed with the analysis, but expressed
concern that costs to the environment were understated and more
information should be provided. Another commenter stated that we must
consider the costs to local communities and ecosystems if NIS continue
to gain a foothold in Alaskan waters.
We did not estimate the annual benefit of BWM in monetary terms.
Instead, we supplied a literature review providing estimated damages
resulting from invasions. In this review, we discuss potential damages
from NIS to local communities and ecosystems. Much of this literature
revolves around the damages caused by the zebra mussel in the Great
Lakes and Mississippi River basin. In our Regulatory Evaluation, we
were careful to note that we do not believe that this rule will prevent
a species as destructive as the zebra mussel from becoming established
because the uncertainties surrounding invasions are numerous. We
believe that ballast water exchange will provide a measure of
protection to the environment. However, ballast water exchange is not
the final answer to preventing invasions and, therefore, we do not wish
to overstate the potential benefits of exchange. We will revisit
environmental damages in our Regulatory Assessment and Environmental
Impact Statement in a future rulemaking for ballast water discharge
standards. A summary of the Regulatory Evaluation follows.
This Regulatory Evaluation identified the vessel population
affected by the rule and provides cost and benefit models for the
current principal option of BWM provided for under the rule-ballast
water exchange. Any vessel equipped with ballast tanks entering U.S.
waters from outside the EEZ must conduct BWM, with minor exceptions.
The vessel population was categorized by vessel type under the
assumption that vessels in different cargo services and of different
sizes likely manage ballast water in different ways. We estimated that
approximately 7,420 vessels will be affected and approximately 11,500
ballast water exchanges will be performed annually. Annual costs
totaled approximately $15.8 million. The 10-year present value cost for
this rule is $116.7 million. These costs do not account for the Great
Lakes program, which was not part of this rule.
The benefit assessment expanded on the analysis conducted for costs
by focusing on the probability of viable organisms being introduced
into U.S. waters through ballast water discharge, both before the rule
and following the implementation of mandatory BWM. A probability of a
reduction in the number of invasions of NIS was calculated using data
on voyages, vessel types, ballast water volumes, and exchange
effectiveness, as well as order-of-magnitude assumptions about the
probabilities of inoculations, introductions, and invasions resulting
from ballast water discharges. The calculations indicated the rule may
result in avoiding approximately 10 inoculations that result in
invasions for each year the rule is in effect. While there is
considerable uncertainty in these calculations and the order-of-
magnitude assumptions (referred to as the ``rule of 10s'' in the
Regulatory Evaluation) are admittedly an oversimplification of a
complex problem, we believe their simplicity and transparency are
compelling. To date, there is no national estimate of the invasion rate
of NIS, and we cannot compare our baseline invasion estimate to other,
more limited estimates regarding invasions. Our findings are broadly
consistent, however, with other estimates of the rate of NIS invasions.
One study finds that in the San Francisco Bay and Delta, invasions have
increased from one new species every 55 weeks (1851-1960) to one new
species every 14 weeks (1961-1995) (Cohen and Carlton, 1998). Another
study posits that invasion rates may have increased in the San
Francisco Bay and the Great Lakes over the past several decades (Mills,
et al., 1993). Finally, some researchers believe that the increase of
initial invasions is best described by an exponential function (Ruiz,
et al., 2000). Using our simple methodology, we found that an invasion
occurs about twice every 3 weeks somewhere in the U.S.
There is considerable difficulty in estimating monetized damages
resulting from NIS invasions. Some species impose significant, long-
term damages on marine industries and infrastructure. Other species may
create subtle disturbances in ecosystems that are difficult to
quantify. Still others may be relatively benign. There have been
attempts to estimate monetized damages for a few species, most notably
the zebra mussel. One study estimated costs to Great Lakes water users,
mostly due to fouling of intake structures, of $120 million over the
time period 1989 to 1994 (Hushak, 1996). Another estimated cumulative
zebra mussel impacts of $750 million to $1 billion over the time period
1989 to 2000 (Carlton, 2001). Other species for which monetized damage
estimates have been developed include the Asian clam ($1 billion per
year, OTA, 1993) and European green crab ($44 million per year, CRS,
1999). Eight Federal agencies that sit on the National Invasive Species
Council collectively spent $514 million in 1999 and $631 million in
2000 for the control and management of NIS (GAO, 2000).
We have not reviewed the methodologies used to produce these
estimates in detail, though all of them (except expenditures by Federal
agencies) involve considerable uncertainty. They are indicative,
however, of the magnitude of damages that may result from particularly
destructive invasions. It is likely, however, that most invasions would
result in considerably lower damages than the numbers reported in these
studies. Because of the lack of data on damages potentially associated
with any but the most destructive invasions, we have not tried to
monetize the benefits of the rule. If the rule resulted in avoiding
even one invasion of this magnitude over the course of several decades,
however, the benefits of the rule would most likely justify the costs.
Small Entities
We did not receive any comments on small entities. Of the affected
population of all vessels arriving at U.S ports, we estimate that 21
vessels of the 171 U.S. flag vessels, are owned by 10 small businesses.
Approximately 35 large companies own the remaining 150 U.S.-flagged
vessels. We estimate all vessels will choose the alternative of
conducting a mid-ocean ballast water exchange. The cost of complying
with this rule is the cost of exchanges performed by the vessel added
to the cost of additional maintenance required for the ballast water
pumping system. The cost per exchange is a function of vessel type.
Each vessel's costs will be a function of the cost of exchange for that
vessel type multiplied by the number of trips into U.S. waters from
outside the U.S. EEZ. Thus the annual
[[Page 44959]]
impact on the revenue for a small business will vary with the number of
entries the vessel makes from outside the U.S. EEZ. In order to
estimate the upper bound of that impact, we calculated the cost of
exchange for the maximum number of exchanges possible for the years
1999 and 2000. We then assumed that weather conditions and transit
tracks allowed exchanges for all of these entries. For the annual cost
of the rule, the number of vessels owned by each small business is
multiplied by the number of exchanges performed, and the resulting
product is then multiplied by the cost of exchange for the particular
vessel type, and added to the maintenance cost of 10 percent of the
capital cost of the ballast pump. Of the 10 small businesses that own
vessels affected by the rule, we found revenue for nine. For the
remaining company where no revenue information was available, we
assumed revenue of $1 million for the purposes of the analysis. Table 1
gives the effect of the rule on the average annual revenues for the
small business affected. For more detailed information, refer to the
Regulatory Evaluation in the docket.
Table 1.--Effect of BWM on Average Annual Revenue for Small Business
Entities Owning U.S.-Flagged Vessels
------------------------------------------------------------------------
Total small
entities
Percent of annual revenue that is BWM rule cost per impact
category
------------------------------------------------------------------------
0-3........................................................ 8
3-5........................................................ 2
> 5........................................................ 0
------------
Total.................................................. 10
------------------------------------------------------------------------
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule so that they can better evaluate
its effects on them and participate in the rule. If the rule will
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please consult Bivan Patnaik, G-MSO-4, Coast Guard,
telephone 202-267-1744, e-mail: Bpatnaik@comdt.uscg.mil.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule modifies an existing collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We received
several comments regarding general collection of information issues.
These comments were addressed in the discussion of comments above.
As required by 44 U.S.C. 3507(d), we submitted a copy of the
proposed rule to the Office of Management and Budget (OMB) for its
review of the collection of information. OMB approved the change to the
collection on September 9, 2003: OMB Control Number 1625-0069, expiring
on September 30, 2006.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We received three comments
pertaining to Federalism.
Two commenters asked how the Coast Guard is developing partnerships
with State agencies to coordinate various BWM policies and research
programs for treatment installation. A third commenter asked if States
wishing to require stricter standards could issue ``supplements'' that
would be enforced only in the issuing States.
As stated in the ``Federalism'' section of the proposed rulemaking,
Congress clearly intended for a Federal-State cooperative regime and
not for Federal preemption of State requirements. Thus, each State is
authorized under NISA to develop its own regulations, including its own
research programs, if it believes that Federal regulations or programs
are not stringent enough.
We have analyzed this rule under Executive Order 13132. NANPCA
contains a ``savings provision'' that provides States the authority to
``adopt or enforce control measures for aquatic nuisance species, [and
nothing in the Act would] diminish or affect the jurisdiction of any
States over species of fish and wildlife.'' 16 U.S.C. 4725. It also
requires that ``all actions taken by Federal agencies in implementing
the provisions of [the Act] be consistent with all applicable Federal,
State and local environmental laws.'' Thus, the congressional mandate
is clearly for a Federal-State cooperative regime in combating the
introduction of aquatic nuisance species into U.S. waters from ships'
ballast tanks. This makes it unlikely that preemption, which would
necessitate consultation with the States under Executive Order 13132,
would occur.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble. We did
not receive any comments regarding unfunded mandates.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights. We did not receive any comments regarding the taking of private
property.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden. We did not receive any comments
regarding civil justice reform.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children. We did not receive any comments
regarding the protection of children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it will not have a substantial direct effect on one or more
Indian
[[Page 44960]]
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. We did not receive any
comments regarding Indian Tribal governments.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order. Although it is a ``significant
regulatory action'' under Executive Order 12866, it is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211. We did not receive any comments regarding
energy effects.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that preparation of a PEA is necessary and is available
in the public docket for this rule. The PEA and Finding of No
Significant Impact (FONSI) have been completed and are available in the
public docket for inspection. We received nine comments regarding the
environment.
Two commenters expressed concern regarding limitations on
ballasting in areas near coral reefs, dredging operations, tidal
flushing, darkness, and sediment, stating that these types of areas are
where their barges load and discharge. One of these commenters also
added his concern that his company will not be able to comply with the
BWM options.
While we appreciate the commenters' concerns and the effects this
rule will have on general operations, we believe that the requirements
for ballasting and the options for BWM are necessary to protect the
environment from the damages caused by NIS. In order to comply with
these requirements, the commenters will have to adjust their ballasting
operations accordingly.
One commenter stated that the Coast Guard should include an
Essential Fish Habitat determination in the PEA, as required by the
Magnuson-Stevens Fishery Act.
We agree with the commenter and have included language regarding
essential fish habitat in the PEA.
Two commenters requested that we include language in Sec. 151.2035
regarding conducting BWM near pods of whales, convergence zones, and
boundaries of major currents in order to protect threatened or
endangered species.
We agree and have amended Sec. 151.2035 to reflect these changes.
Under the consultation process of the Endangered Species Act, the
Fish and Wildlife Service (FWS) and the National Marine Fisheries
Service (NMFS) recommended that the Coast Guard work with ballast water
reception facilities and any relevant permitting authorities to address
any potential effects to listed species or critical habitats and
compliance with the Endangered Species Act.
We have consulted extensively with FWS and NMFS in regards to the
issue of approval of facilities to receive ballast water. Currently,
there are no ballast water reception facilities in the United States
approved for the treatment of ballast water to remove NIS. The Coast
Guard is not involved in the regulatory or approval process for ballast
water reception facilities. Anyone wishing to establish a ballast water
reception facility that would discharge to waters of the United States
would need to obtain a National Pollutant Discharge Elimination System
(NPDES) permit under the Clean Water Act. Forty-five States and the
U.S. Virgin Islands have been approved to issue NPDES permits, and
would be the relevant permitting authority. In the remainder of the
States, territories, and Indian country that have not been approved to
issue NPDES permits, the NPDES permitting authority would be EPA. In
the case of a ballast water reception facility that discharges into a
local sewage collection system rather than directly to waters of the
United States, the discharge would need to comply with local
pretreatment requirements and national prohibited discharge standards
under section 307 of the Clean Water Act. Non-storm water discharges
into a municipal separate storm sewer system are prohibited. Because of
these issues, we cannot state with certainty that allowing vessels to
discharge their ballast water into a reception facility would be as
effective as ballast water exchange in preventing and controlling
infestations of NIS as per NISA. As a result, we are eliminating this
option from Sec. 151.2035.
The only additional comment regarding reception facilities was a
request for Coast Guard approval of such entities, an act that we are
not legally authorized to perform. As stated previously, there are no
ballast water reception facilities in the United States approved for
the treatment of ballast water to remove NIS, nor do we believe there
are any applications for approval for such facilities on file.
Additionally, all vessels equipped with ballast water tanks would need
to be retrofitted with ballast water shore connections in order to
utilize a shore-side reception facility. As stated in the Regulatory
Evaluation, we do not expect any vessels to utilize the option of
discharging into a shore-side facility. Accordingly, we do not believe
that eliminating this option from Sec. 151.2035 will have any
immediate effect on regulated industry.
The Coast Guard will continue to work with other Federal agencies,
such as FWS and NMFS, to examine and resolve issues surrounding ballast
water treatment facilities.
Three commenters encouraged the Coast Guard to pursue
environmentally sound alternatives to ballast water exchange.
We agree with the commenters. As required by NISA, we are working
to facilitate development of alternatives to ballast water exchange
that are environmentally sound. To do this, we encourage industry and
others to participate in the STEP announced in the Federal Register on
January 7, 2004 (69 FR 1082, NVIC 01-04).
In considering the environmental impact of this rule, as stated
earlier in this section, we believe the PEA is necessary because this
rule requires vessels with ballast tanks entering U.S. ports around the
country, subject to conditions discussed above, to have completed one
of the mandatory BWM practices. Although the national mandatory BWM
program provides vessels with ballast tanks the option of using one of
three BWM practices, ballast water exchange is likely to be the most
used practice for reasons discussed earlier. However, this PEA is
necessary to ensure the potential environmental effects of the three
BWM practices are considered.
The Coast Guard has considered the implications of the Coastal Zone
Management Act (16 U.S.C. 1451, et seq.) with regard to this rule.
Under this Act, the Coast Guard must determine whether the activities
proposed by it are consistent with activities covered by Federally
approved coastal zone management plans for each State, which may be
affected by this federal action. A listing of 29 States and Territories
with federally approved coastal zone management plans can be found in
Appendix E of the PEA for this rule.
The Coast Guard has determined that the mandatory BWM program will
have no effect on the coastal zones of the listed States and
Territories. In addition,
[[Page 44961]]
we found the regulations in the final rule were consistent, to the
maximum extent practicable, with the enforceable policies of the
Federally-approved coastal zone management plans and submitted a
consistency determination to that effect. The State Administrators for
each of the listed States and Territories with coastal zone management
plans responded, concurring with the Coast Guard consistency
determination that implementing a mandatory BWM program would be
consistent with their respective coastal zone management plans.
The Coast Guard provided the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service with a copy of the final rule and its
environmental assessment of the rule. This information initiated an
informal Section 7 Consultation per the Endangered Species Act (16
U.S.C. 1531, et seq.), which resulted in both agencies concurring with
the Coast Guard's determination that this rule is not likely to
adversely affect listed or proposed species or their critical habitats.
List of Subjects in 33 CFR Part 151
Administrative practice and procedure, Oil pollution, Penalties,
Reporting and recordkeeping requirements, Water pollution control.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 151 as follows:
PART 151--VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE,
MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER
Subpart D--Ballast Water Management for Control of Nonindigenous
Species in Waters of the United States
0
1. The authority citation for subpart D is revised to read as follows:
Authority: 16 U.S.C. 4711; Department of Homeland Security
Delegation No. 0170.1.
0
2. Revise Sec. 151.2015 to read as follows:
Sec. 151.2015 Is a vessel in innocent passage exempt from the
mandatory requirements?
A foreign vessel merely traversing the territorial sea of the U.S.
(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 this
subpart.
0
3. In Sec. 151.2025--
0
a. Add in alphabetical order the definition of ``Ballast tank'' as set
out below;
0
b. Under the definition for ``Exchange,'' redesignate paragraph (a) to
(1); and
0
c. Revise the definition of ``Waters of the United States'' as set out
below:
Sec. 151.2025 What definitions apply to this subpart?
* * * * *
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.
* * * * *
Waters of the United States means waters subject to the
jurisdiction of the United States as defined in 33 CFR Sec. 2.38,
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.
0
4. In Sec. 151.2035--
0
a. Revise the section heading to read as set out below;
0
b. Revise the introductory text for paragraph (a) to read as set out
below;
0
c. Add paragraph (a)(2)(vii) to read as set out below; and
0
d. Revise paragraphs (a)(7) and (b) to read as set out below:
Sec. 151.2035 What are the required ballast water management
practices for my vessel?
(a) Masters, owners, operators, or persons-in-charge of all vessels
equipped with ballast water tanks that operate in the waters of the
U.S. must:
* * * * *
(2)(vii) Areas with pods of whales, convergence zones, and
boundaries of major currents.
* * * * *
(7) Maintain a ballast water management plan that has been
developed specifically for the vessel that will allow those responsible
for the plan's implementation to understand and follow the vessel's
ballast water management strategy.
* * * * *
(b) In addition to the provisions of paragraph (a) of this section,
if the vessel carries ballast water that was taken on in areas less
than 200 nautical miles from any shore into the waters of the U.S.
after operating beyond the Exclusive Economic Zone, you (the master,
operator, or person-in-charge of a vessel) must employ at least one of
the following ballast water management practices:
(1) Perform complete ballast water exchange in an area no less than
200 nautical miles from any shore prior to discharging ballast water in
U.S. waters;
(2) Retain ballast water onboard the vessel;
(3) Prior to the vessel entering U.S. waters, use an alternative
environmentally sound method of ballast water management that has been
approved by the Coast Guard;
0
5. Add Sec. 151.2036 to read as follows:
Sec. 151.2036 If my voyage does not take me into waters 200 nautical
miles or greater from any shore, must I divert to conduct a ballast
water exchange?
A vessel will not be required to deviate from its voyage, or delay
the voyage, in order to conduct a ballast water exchange.
0
6. Add Sec. 151.2037 to read as follows:
Sec. 151.2037 If my vessel cannot conduct ballast water management
practices because of its voyage and/or safety concerns, will I be
prohibited from discharging ballast water?
(a) A vessel that cannot practicably meet the requirements of Sec.
151.2035(b)(1) because its voyage does not take it into waters 200
nautical miles or greater from any shore for a sufficient length of
time and elects to retain ballast water on board, or because of the
safety concerns contained in Sec. 151.2030, will not be prohibited
from the discharge of ballast water in areas other than the Great Lakes
and the Hudson River. However, the vessel must discharge only that
amount of ballast water operationally necessary to ensure the safety of
the vessels for cargo operations and make ballast water records
available to the local Captain of the Port upon request.
(b) A vessel that cannot practicably meet the requirements of Sec.
151.2035(b)(3) because its alternative environmentally sound ballast
water management method is inoperable must employ one of the other
ballast water management practices stated in Sec. 151.2035(b). If the
vessel cannot employ other ballast water management practices due to
voyage or safety concerns, the vessel will not be prohibited from the
discharge of ballast water in areas other than the Great Lakes and the
Hudson River. However, the vessel must discharge only that amount of
ballast water operationally necessary to ensure the safety of the
vessels for cargo operations and make ballast water records available
to the local Captain of the Port upon request.
Dated: July 21, 2004.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 04-17096 Filed 7-27-04; 8:45 am]
BILLING CODE 4910-15-P