Implementation of the National Invasive Species Act of 1996 (NISA)

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.

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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.

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33 CFR

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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)

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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.

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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.

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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

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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