[Federal Register Volume 68, Number 187 (Friday, September 26, 2003)]
[Proposed Rules]
[Pages 55559-55563]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 03-24138]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[USCG-2001-10486]


Standards for Living Organisms in Ship's Ballast Water Discharged 
in U.S. Waters

AGENCY: Coast Guard, DHS.

ACTION: Notice of intent with request for comments.

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SUMMARY: The Coast Guard announces its intent to prepare and circulate 
a Programmatic Environmental Impact Statement (PEIS) for the proposed 
regulatory action to establish a ballast water discharge standard. The 
intent of this standard is to establish the required level of 
environmental protection in preventing introductions and the spread of 
nonindigenous species from ballast water discharges. The Coast Guard is 
seeking public and agency input to develop the scope of this PEIS. The 
U.S. Environmental Protection Agency, U.S. Department of Interior's 
Fish and Wildlife Service, and U.S. Department of Commerce's National 
Marine Fisheries Service will be participating in the development of 
this PEIS as a Cooperating Agencies in accordance with Title 40, Code 
of Federal Regulations, Sec.  1501.6.

DATES: Comments and related material must reach the Docket Management 
Facility on or before December 26, 2003.

ADDRESSES: To make sure your comments and related material are not 
entered more than once in the docket, please submit them by only one of 
the following means:

(1) By mail to the Docket Management Facility (USCG-2001-10486), U.S. 
Department of Transportation, room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001.
(2) By 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 the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web site for the Docket Management 
System at http://dms.dot.gov.

    In choosing among these means, please give due regard to the recent 
difficulties and delays associated with the delivery of mail through 
the U.S. Postal Service to Federal facilities. Delivery methods 2-4 of 
those listed above are the preferred methods because security measures 
taken by the USPS and the USCG mail reception facilities may seriously 
damage or render unreadable comments sent via regular mail.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents mentioned in this notice 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, 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 
at the following Web site address: http://dms.dot.gov.
    Electronic forms of all comments received into any of our dockets 
can be searched by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor unit, etc) and is open to the public without 
restriction. You may review the Department of Transportation's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (65 FR 19477-78), or you may visit http://dms.dot.gov/.

FOR FURTHER INFORMATION CONTACT: For information concerning this PEIS, 
call Mr. Brad McKitrick, Office of Standards Evaluation and Development 
(G-MSR), U.S. Coast Guard, telephone 202-267-0995 or via e-mail 
bmckitrick@comdt.uscg.mil. If you have any questions on viewing or 
submitting

[[Page 55560]]

material to the docket, call Andrea M. Jenkins, Program Manager, Docket 
Operations, Department of Transportation, telephone 202-366-0271.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to submit written 
data, views, or comments. Persons submitting comments should please 
include their name and address and identify the docket number (USCG-
2001-10486). 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 means. If you submit them 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 were received, please enclose a 
stamped, self-addressed postcard or envelope.
    The Coast Guard invites comments and suggestions on the proposed 
scope and content of the PEIS, as well as on the ideal means for 
notifying and involving the public. The Coast Guard will consider all 
comments received during the comment period.

Coast Guard's Transition to Department of Homeland Security

    On March 1, 2003, the Coast Guard became an Agency under the 
Department of Homeland Security. As a result, the Secretary of the 
Department of Homeland Security assumed all Coast Guard duties once 
bestowed on the Secretary of the Department of Transportation.

Background

    Under the National Invasive Species Act (NISA), Congress directed 
the Coast Guard to develop regulations to prevent the introduction and 
spread of nonindigenous species (NIS) in U.S. waters via ballast water 
discharge. According to the National Research Council (see reference 
1), the uptake and discharge of ballast water is one of the largest 
pathways for the introduction and spread of aquatic NIS.
    Living organisms can survive the process of being loaded into the 
ballast tanks, transported to different geographic locations, and 
released into a new environment (i.e. U.S. waters). The probability 
that NIS will survive once introduced into U.S. waters depends on a 
large number of poorly understood factors. While many of the 
transported NIS do not survive in U.S. waters, those that do may 
establish populations, spread beyond the point of introduction, and 
cause adverse changes in the recipient ecosystem. In many cases, there 
can be significant time lags between when a NIS becomes established as 
a reproducing population and when its distribution and abundance 
increase to the extent that it becomes a recognized pest.

Legislative and Regulatory History

    Congress directed the Coast Guard to prevent the introductions of 
NIS from ballast water in the Nonindigenous Aquatic Nuisance Prevention 
and Control Act of 1990 (NANPCA), as reauthorized, and amended by the 
National Invasive Species Act of 1996 (NISA). In response to this 
direction, the Coast Guard established a program of mandatory 
requirements and voluntary guidelines in Title 33 of the Code of 
Federal Regulations part 151. Acceptable ballast water management (BWM) 
methods include mid-ocean ballast water exchange (BWE), holding ballast 
water onboard, discharging ballast water to an approved reception 
facility, or use of an alternative Coast Guard approved BWM method. BWM 
is mandated for vessels entering the Great Lakes and the Hudson River 
but is voluntary in the rest of the U.S. waters.
    On May 1, 2001, we published a notice and request for public 
comments (66 FR 21807) on four conceptual approaches to setting ballast 
water treatment (BWT) standards and on approaches for assessing the 
effectiveness of BWT relative to BWE. The comments we received revealed 
a wide range of opinion, indicating the need for more discussion. 
Subsequently, on March 4, 2002, we published an advance notice of 
proposed rulemaking and request for comments (67 FR 9632) on the 
development of a BWT standard. The Coast Guard is incorporating the 
information we received in response to the advanced notice into the 
proposed rulemaking.
    Over the past two years, the Coast Guard has used several venues to 
explore options for BWT standards. These include technical discussions 
organized by: (1) The International Maritime Organization's (IMO) 
Global Ballast Water Program (Globallast); (2) the Ballast Water and 
Shipping Committee of the U.S. Aquatic Nuisance Species Task Force; and 
(3) the U.S. Coast Guard's Research and Development Center.
    Although the initial Federal Register publications were phrased in 
terms of BWT standards, the critical issue has always been the quality 
of the ballast water actually discharged from vessels. Therefore, 
beginning with this notice the emphasis will be on requirements related 
to ballast water discharges. This is also in line with the development 
of ballast water discharge standards internationally.
    At the international level, in September 1995, the IMO identified 
the NIS threat as a major issue confronting the international maritime 
community. To address the issue, the IMO issued voluntary guidelines 
titled, ``International Guidelines for Preventing the Introduction of 
Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and 
Sediment Discharges.'' The IMO Marine Environment Protection Committee 
(MEPC) is currently developing an international, legally binding, 
instrument to mandate ballast water management, which would include an 
international standard for ballast water discharge.

Scoping

    Preliminary investigations to define the scope of environmental 
issues that may be relevant to the proposed regulatory action indicate 
that there is the potential for both beneficial and adverse effects to 
the environment. The Coast Guard, in general, believes the proposed 
regulatory action's effects on the environment will be significantly 
beneficial. The Council on Environmental Quality's (CEQ) regulations 
for implementing the National Environmental Policy Act (NEPA) state 
that a significant environmental impact may exist even if an agency 
believes that the net balance of environmental effects are beneficial. 
Therefore, the Coast Guard has decided to prepare a PEIS.
    The matter of establishing a ballast water discharge (BWD) standard 
for preventing the introduction of aquatic NIS involves two levels of 
environmental impact consideration: (1) An evaluation of the remaining 
probability of aquatic NIS introduction with the standard in place, as 
well as the associated potential for environmental consequences from 
introduction; and (2) the potential for environmental impacts from the 
use of particular management methods to meet the established standard. 
NISA calls for the use of environmentally sound \1\

[[Page 55561]]

ballast water management methods. Although no ballast water methods 
have yet been demonstrated to work effectively and consistently on a 
single vessel, let alone across a range of vessel types and operating 
conditions, a number of methods are being actively investigated. These 
methods currently include, among others, mid-ocean exchange; 
filtration; hydrocyclonic separation; ultraviolet radiation; ultrasonic 
impulses; oxidizing chemical biocides such as ozone, chlorine dioxide, 
hypochlorite, and various electrolytically produced ions; non-oxidizing 
organic chemicals; deoxygenation, and micro-scale shear forces. Some of 
these methods, such as oxidizing chemicals, have a well known potential 
to result in unwanted residuals and disinfection-by-products (DBPs), 
and it is even possible that the physical methods might result in 
unwanted changes to the quality of discharged water. These residuals, 
DPBs, and changes to water quality may have adverse environmental 
impacts. This PEIS will address the potential environmental impacts 
from the varying levels of remaining organisms in discharged ballast 
water that meets the BWD standard. However, when BWM methods are 
developed to meet the BWD standard, follow-on environmental analyses to 
determine environmental soundness will be conducted on each proposed 
method brought forward for approval or certification.
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    \1\ ``Environmentally sound'' methods, efforts, actions or 
programs means methods, efforts, actions or programs to prevent 
introductions or control infestations of aquatic nuisance species 
that minimize adverse impacts to the structure and function of an 
ecosystem and adverse effects on non-target organisms and ecosystems 
and emphasize integrated pest management techniques and nonchemical 
measures. The meaning of ``environmentally sound'' as described in 
this footnote pertains to all occurrences of the term in this 
notice.
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    This PEIS is being prepared as a ``programmatic'' EIS since the 
proposed regulatory action meets CEQ's definition of ``a broad Federal 
action such as the adoption of agency programs or regulations'' (40 CFR 
1502.4(b)). The PEIS will focus on an evaluation of the general 
environmental impacts that may result from either taking No Action 
(defined as not establishing BWD standards) or taking Action (defined 
as choosing and mandating a BWD standard from among several possible 
levels of management). The PEIS will be prepared in accordance with 
NEPA, CEQ's ``Regulations for Implementing the Procedural Provisions of 
NEPA,'' and the established Coast Guard NEPA procedures and policies, 
as specified in, ``National Environmental Policy Act: Implementing 
Procedures and Policy for Considering Environmental Impacts,'' 
COMDTINST M16475.1D.
    The proposed regulatory action is part of a national program of 
regulations intended to prevent the introduction and spread of NIS via 
discharged ballast water. Other active projects in the program include 
a rule to impose penalties for noncompliance with mandatory aspects of 
ballast water management (68 FR 523) and a rule that makes the current 
voluntary BWM program mandatory (68 FR 44691). In order to determine 
the potential effectiveness of experimental technologies designed to 
treat ballast water for the removal of NIS aboard ship, the Coast Guard 
will promote the installation of experimental technologies aboard 
ships. Each project has been or will be analyzed under NEPA at the 
appropriate and meaningful point during Coast Guard planning and 
decision making.
    The PEIS will provide general environmental information on the 
proposed action and alternatives to Coast Guard decision-makers, other 
agencies, and the interested and affected public, and help to determine 
whether implementing a regulatory BWD standard has the potential for 
significant environmental impacts. The PEIS will also look at the 
potential direct and indirect environmental impacts of each alternative 
including not implementing a BWD standard (the ``No action'' 
alternative). In addition to complying with NEPA, obtaining the 
information in the PEIS will ensure that the Coast Guard makes fully 
informed decisions before choosing a final course of action. The Coast 
Guard intends to continue to involve the public in these later 
associated actions, as appropriate, and will also prepare further, more 
specific, environmental analyses and documentation as necessary. The 
Coast Guard considers this PEIS to be a first-tier environmental review 
and may prepare subsequent NEPA analyses and documentation for future 
individual actions and their site-specific impacts if such analyses are 
not adequately covered by this PEIS.
    The U.S. Environmental Protection Agency, U.S. Department of 
Interior's Fish and Wildlife Service, and U.S. Department of Commerce's 
National Marine Fisheries Service will be participating in the PEIS 
preparation as a Cooperating Agencies in accordance with Title 40, Code 
of Federal Regulations, Sec.  1501.6.

Purpose of Proposed Action

    The purpose of the proposed action is to fulfill the need for a 
ballast water discharge (BWD) standard to prevent the introduction and 
spread of NIS via discharged ballast water. In the future, this 
standard will be used to fulfill the Coast Guard authority under NISA 
to approve BWM methods that are effective at helping to prevent the 
introduction and spread of NIS via discharged ballast water.
    Under NISA, the minimum for this discharge standard is ``at least 
as effective as ballast water exchange.'' It is difficult to determine 
the effectiveness of BWE due in part to the wide variety of vessel 
designs, ballast tank structures, and voyages. In addition, the Coast 
Guard believes that to prevent the introduction and spread of NIS, the 
ballast water discharge standard must relate to biological 
effectiveness. Therefore, the Coast Guard is working to develop a 
ballast water discharge (BWD) standard based on the level of protection 
needed to prevent introductions and spread of NIS.
    The development of a BWD standard presents a complex challenge. 
Technologies for removing NIS from ballast water are in the early 
stages of development. These technologies need to be complementary with 
existing vessels as well as future vessel designs. The BWD standard to 
be achieved by these technologies must be environmentally sound. 
Development of this BWD standard requires close collaboration between 
government agencies, the scientific community, water treatment experts, 
the shipping industry, and a wide range of stakeholders.

Proposed Action

    The proposed action is to establish a BWD standard that is 
effective in preventing the introduction and spread of NIS via 
discharged ballast water.

Need for Action

    Under NISA, Congress mandated that the Coast Guard establish 
guidelines on BWM. Initially established as voluntary guidelines, 
Congress directed the Secretary of Transportation to make the actions 
prescribed in the guidelines mandatory if shipping industry compliance 
with found to be insufficient.
    The next Congressionally required step is making the voluntary BWM 
guidelines into a mandatory BWM program. The Coast Guard published an 
NPRM on a mandatory BWM program for all U.S. waters on July 30, 2003 
(68 FR 44691). This program would emphasize BWE, due to the lack of 
availability of other BWM methods. However, most existing vessels are 
not designed to conduct BWE, and in some cases, depending on vessel 
design, age, load, and sea conditions, the practice can be unsafe. 
Further, BWE is not an option for vessels moving along coastlines, 
since BWE in coastal areas may increase the risk of bioinvasions. 
Finally, even when conducted, the

[[Page 55562]]

effectiveness of BWE in removing NIS from ballast tanks can be quite 
variable. These drawbacks combine to make BWE less than desirable as a 
long-term approach to preventing introductions of NIS via ballast water 
discharges.
    Recognizing that BWE is not a long-term solution, and that some 
vessels would not be able to consistently conduct effective BWE 
operations, Congress provided, as part of its recommended management 
actions, that vessel owners have the option of using BWM methods other 
than BWE. The Secretary of Homeland Security can approve such BWM 
methods if they are found to be at least as effective as BWE in 
reducing the risk of NIS introductions. The marine industry and 
scientific community are currently developing BWM methods and studying 
their biological efficacy and engineering performance. To comply with 
NISA and approve such BWM management methods as an alternative to BWE, 
the Coast Guard must develop objective criteria and administrative 
procedures for such approvals. The criteria include the quantitative 
treatment requirements that must be accomplished by treatment 
technologies. The first step to meeting the directives of NISA is to 
develop a BWD standard.

Alternatives

    Reasonable alternatives that meet the established purpose and need 
will be evaluated and considered in detail. Currently the Coast Guard 
is examining a range of alternatives that vary in the degree to which 
the discharge of organisms would be prevented.
    (1) Alternative 1: This alternative is the most stringent of all 
the alternatives in preventing the introduction of NIS. This 
alternative would comply with all current applicable environmental laws 
and other environmental mandates, and result in the discharge of no 
detectable viable organisms larger than 0.1 microns. This alternative 
would also require the removal or inactivation of all membrane-bound 
organisms (including bacteria), and most viruses, and would essentially 
require the sterilization of ballast water.
    (2) Alternative 2: This alternative would fall between Alternative 
1 and Alternative 3 in stringency. It would establish maximum 
acceptable discharge concentrations for various types of potential 
NIS--macrofauna, including fish and invertebrate zooplankton; 
heterotrophic and autotrophic protists (phytoplankton); and other 
microbes such as bacteria and viruses--to greatly reduce the risk of 
future introductions. Alternative 2 would also comply with all current 
applicable environmental laws and other environmental mandates. It 
would result in the discharge of no more than a particular number of 
viable individuals per liter of zooplankton greater than a cut-off size 
in microns and no more than a particular number of phytoplankton 
greater than a cut-off size, and discharge of a specified set of 
indicator microbes not to exceed specified concentrations. These 
standards could include the establishment of indicator species for use 
in approval and compliance testing. Concentration numbers have not been 
stated in the above description, as we are requesting comments from the 
public regarding the conceptual approach and the quantitative 
concentrations that should be specified. However the Coast Guard 
anticipates that the concentration number will fall between Alternative 
1 and Alternative 3.
    (3) Alternative 3: No Action. This alternative is the least 
stringent of the range of alternatives in preventing the introduction 
of NIS and would not establish a BWD standard. Instead, under the 
mandatory BWM program established according to the directives in NISA, 
it would be applicable to vessels equipped with ballast tanks entering 
U.S. waters after operating beyond the Exclusive Economic Zone (EEZ). 
As currently framed, the mandatory BWM program directs vessels to 
either conduct BWE or retain ballast water onboard or use a reception 
facility or another environmentally sound management method approved by 
the Coast Guard. Currently, few vessels have the ability to retain 
ballast water onboard and still conduct commercial activities, and no 
reception facility has been built to treat ballast water for removal of 
NIS. In addition, no environmentally sound methods to manage ballast 
water, other than BWE, have been approved by the Coast Guard. Thus, for 
the near future, the No Action alternative would mean that the primary 
mandatory BWM practice vessels would conduct is mid-ocean BWE when safe 
and feasible. Those vessel owners desiring to use some other ballast 
water management method would be required to demonstrate that the 
proposed method was at least as effective as BWE, on that vessel.
    The Coast Guard is requesting input on any additional alternatives 
for analysis, any environmental concerns the public may have related to 
the alternatives for establishing a BWD standard, suggested analyses or 
methodologies for inclusion in the PEIS, and possible sources of 
relevant data or information.

Scope

    The following environmental requirements have been tentatively 
identified for analysis in the PEIS and are presented to facilitate 
public comment during the scoping process of the PEIS. This list of 
requirements is neither intended to be all-inclusive nor to be a 
predetermined set of potential impacts. Additions to or deletions from 
the list of issues may occur as a result of the scoping process. The 
environmental requirements include the following:
    (1) Endangered or Threatened Species: Potential impacts to 
endangered or threatened marine life and birds from each of the 
alternatives.
    (2) Essential Fish Habitat: Potential effects to waters and 
substrate necessary to fish for spawning, breeding, feeding, or growth 
to maturity from each of the alternatives.
    (3) Other Biological Habitats and Organisms: Potential impacts to 
aquatic vegetation and benthic organisms from each of the alternatives.
    (4) Coastal and Marine Birds: Potential impacts to coastal marine 
and birds from each of the alternatives.
    (5) Aquatic Resources: Potential effects to marine mammals, sea 
turtles, and fisheries species from each of the alternatives.
    (6) Water Quality: Potential impact to water quality resulting from 
each of the alternatives.
    (7) Air Quality: Potential impact to air quality resulting from 
each of the alternatives.
    (8) Great Lakes/Hudson River environment/resources.
    (9) Socio-economics: Potential impact to recreational activities 
(including fishing), tourism, commercial fisheries, commercial 
infrastructure (including power plants and water treatment facilities), 
maritime commerce, and subsistence activities due to each of the 
alternatives.
    (10) Public Health and Safety: Potential impacts to public health 
and safety associated with each of the alternatives.

Public Meetings

    Five public scoping meetings will be held during the public comment 
period of this notice. Notice of those meetings will be published in 
the Federal Register. All appropriate comments provided at the public 
scoping meetings, both written and oral, will be considered in the 
preparation of the Draft and Final PEIS and will become part of the 
public record (i.e., names, addresses, letters of comments, comments 
provided during the public meeting).

[[Page 55563]]

    Once the Draft PEIS is published, the Coast Guard will hold 
additional public meeting(s). Notice of those meetings will be 
published in the Federal Register. All appropriate comments provided at 
the public meeting(s), both written and oral, will be considered in the 
preparation of the Final PEIS and will become part of the public record 
(i.e., names, addresses, letters of comments, comments provided during 
the public meeting).

Reference

1. National Research Council. 1996. Stemming the Tide: Controlling 
Introductions of Nonindigenous Species by Ships' Ballast Water. 
National Academy Press, Washington, DC.

    Dated: September 17, 2003.
Joseph J. Angelo,
Director of Standards, Marine Safety, Security & Environmental 
Protection.
[FR Doc. 03-24138 Filed 9-25-03; 8:45 am]
BILLING CODE 4910-15-M