[Federal Register Volume 69, Number 144 (Wednesday, July 28, 2004)]
[Rules and Regulations]
[Pages 44952-44961]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-17096]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 151

[USCG-2003-14273]
RIN 1625-AA52


Mandatory Ballast Water Management Program for U.S. Waters

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is requiring mandatory ballast water 
management practices for all vessels equipped with ballast water tanks 
bound for ports or places within the U.S. or entering U.S. waters. This 
rule will increase the Coast Guard's ability to protect U.S. waters 
against the unintentional introduction of nonindigenous species via 
ballast water discharges, which have had significant impacts on the 
nation's marine and freshwater resources, biological diversity, and 
coastal infrastructure. It will also comply with the requirements of 
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 
and the National Invasive Species Act of 1996. The Great Lakes ballast 
water management program remains unchanged.

DATES: This final rule is effective September 27, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2003-14273 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 400 Seventh Street SW., Washington, DC, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. You may also find this docket on the Internet at http://
dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Mr. Bivan R. Patnaik, Project Manager, Environmental Standards 
Division, Coast Guard, telephone 202-267-1744, e-mail: 
bpatnaik@comdt.uscg.mil. If you have questions on viewing the docket, 
call Andrea M. Jenkins, Program Manager, Docket Operations, telephone 
202-366-0271.

SUPPLEMENTARY INFORMATION:

Legislative and Regulatory History

    The Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990 (NANPCA) [Pub. L. 101-646], enacted by Congress on November 29, 
1990, established the Coast Guard's regulatory jurisdiction over 
ballast water management (BWM). To fulfill the directives of NANPCA, 
the Coast Guard published a final rule on April 8, 1993, titled 
``Ballast Water Management for Vessels Entering the Great Lakes'' in 
the Federal Register (58 FR 18330). This rule established mandatory BWM 
procedures for vessels entering the Great Lakes in 33 CFR part 151, 
subpart C.
    A subsequent final rule titled ``Ballast Water Management for 
Vessels Entering the Hudson River'' was published on December 30, 1994, 
in the Federal Register (59 FR 67632). This final rule amended 33 CFR 
part 151 to extend the BWM requirements into portions of the Hudson 
River.
    The National Invasive Species Act (NISA) [Pub. L. 104-332] enacted 
by Congress on October 26, 1996, reauthorized and amended NANPCA. NISA 
reemphasized the significant role of ships' ballast water in the 
introduction and spread of nonindigenous species (NIS). NISA authorized 
the Coast Guard to develop a voluntary national BWM program and 
mandated the submission of reporting forms without penalty provisions. 
On

[[Page 44953]]

May 17, 1999, the Coast Guard published an interim rule on this 
voluntary program titled, ``Implementation of the National Invasive 
Species Act of 1996 (NISA)'' (64 FR 26672) and finalized the rule on 
November 21, 2001 (66 FR 5838).
    NISA also instructed the Secretary of the Department in which the 
Coast Guard is operating (the Coast Guard was operating under the 
Department of Transportation when NISA was enacted) to submit a Report 
to Congress evaluating the effectiveness of the voluntary BWM program. 
Congress anticipated that the Secretary might determine that either 
compliance with the voluntary guidelines was inadequate, or the rate of 
reporting was too low to allow for a valid assessment of compliance. In 
either case, Congress stipulated the development of additional 
regulations to make the voluntary guidelines a mandatory BWM program. 
The Secretary's Report to Congress, signed June 3, 2002, concluded that 
compliance with the voluntary guidelines, found in 33 CFR part 151, 
subpart D, was insufficient to allow for an accurate assessment of the 
voluntary BWM regime. Accordingly, the Secretary stated his intention 
to make the voluntary BWM guidelines mandatory. A copy of this Report 
to Congress can be found in the public docket (USCG-2002-13147) at 
http://dms.dot.gov.
    On June 14, 2004 (69 FR 32864), we published a final rule titled 
``Penalties for Non-submission of Ballast Water Management Reports'' 
that implemented penalties for failure to comply with the mandatory 
requirements found in 33 CFR part 151 and widened the applicability of 
the reporting and recordkeeping requirements to all vessels bound for 
ports or places within the U.S., with minor exceptions.
    On July 30, 2003, we published a notice of proposed rulemaking 
titled ``Mandatory Ballast Water Management Program for U.S. Waters'' 
in the Federal Register (68 FR 44691). We received 38 letters 
commenting on the proposed rule. No public meeting was held on this 
rulemaking.

Background and Purpose

    As directed by NISA and as stated in the Secretary of 
Transportation's Report to Congress in June 2002, the Coast Guard has 
determined that the voluntary BWM program is inadequate because 
sufficient compliance has not occurred. Therefore, as of the effective 
date of this rule, the Coast Guard has converted the voluntary BWM 
program into a mandatory program. This rule will increase the Coast 
Guard's ability to protect against introductions of NIS via ballast 
water discharges.
    On March 1, 2003, the Coast Guard became a component of the 
Department of Homeland Security. As a result, the Secretary of the 
Department of Homeland Security assumed all duties once bestowed on the 
Secretary of the Department of Transportation with respect to this 
rule. The Secretary of Homeland Security concurs with the Coast Guard's 
rule regarding the mandatory BWM program.
    This final rule revises 33 CFR part 151, subpart D, by requiring a 
mandatory BWM program for all vessels equipped with ballast water tanks 
bound for ports or places within the U.S. and/or entering U.S. waters. 
The mandatory BWM requirements for vessels entering the Great Lakes and 
Hudson River from outside the U.S. Exclusive Economic Zone (EEZ) remain 
unchanged.
    The mandatory program requires all vessels equipped with ballast 
water tanks entering U.S. waters after operating beyond the EEZ to 
employ at least one of the following BWM practices:
    (a) Prior to discharging ballast water in U.S. waters, perform 
complete ballast water exchange in an area no less than 200 nautical 
miles (nm) from any shore.
    (b) Retain ballast water onboard the vessel.
    (c) Prior to the vessel entering U.S. waters, use an alternative 
environmentally sound method of BWM that has been approved by the Coast 
Guard.
    Although the national mandatory BWM program provides vessels with 
the option of using one of three BWM practices, ballast water exchange 
is likely to be the most used practice because--
     Some vessels engaged in trade are unlikely to hold their 
ballast water after arriving in U.S. waters from outside the EEZ, as 
this would mean they would not be able to conduct cargo operations;
     Alternative environmentally sound methods of BWM are still 
being developed and will likely be of limited availability in the near 
future; and
    Therefore, under this rule, the BWM practice of conducting mid-
ocean ballast water exchange prior to discharging ballast water in U.S. 
waters will be the practice used by the majority of vessels at this 
time.
    Mid-ocean ballast water exchange is currently the most practicable 
method to help prevent the introductions of NIS into U.S. waters. Water 
in the open ocean contains certain physical, chemical, and biological 
conditions (such as high salinity). Organisms contained in ballast 
water that is exchanged in mid-ocean will not, or are unlikely to 
survive in an open ocean system. Likewise organisms that are contained 
in ballast water after a mid-ocean exchange is conducted will not, or 
are unlikely to survive if introduced into a freshwater or coastal 
system.
    As mid-ocean ballast water exchange will be the most likely used 
BWM practice at this time, there are those vessels with voyage and/or 
safety concerns that will not be able to conduct ballast water 
exchange. Voyage and/or safety concerns may include security concerns 
since these issues have increased significantly due to recent events. 
NISA requires us to take into consideration different operating 
conditions in developing the mandatory BWM program. Therefore, a vessel 
that cannot practicably meet the requirements of paragraph (a) above 
due to a voyage that does not take it into waters at least 200 nm from 
any shore for a sufficient length of time or due to safety concerns 
will retain its ballast onboard. The vessel will not be prohibited from 
discharging the minimum amount of its ballast water necessary to 
maintain the safety of the vessel in areas other than the Great Lakes 
and the Hudson River. However, the vessel must discharge only the 
amount of ballast water operationally necessary for safety concerns. An 
entry must be made in the ballast water records supporting the reasons 
that the vessel could not comply with the regulatory requirements. 
Ballast water records must be made available to the local Captain of 
the Port (COTP) upon request.
    This final rule also revises the criteria for a mid-ocean exchange 
by removing the constraints of exchanging ballast water in waters at a 
depth of 2,000 meters. Currently, there is no international consensus 
on a water-depth criterion for ballast water exchange. For example, 
Australian legislation has a depth requirement of 200 meters, and 
Israel's ballast water exchange requirement has no depth restriction, 
while the International Maritime Organization (IMO) Convention for the 
Control and Management of Ship's Ballast Water and Sediments, recently 
adopted on February 9, 2004, has a criterion of 200 meters. As there is 
no international consensus to mid-ocean ballast water exchange 
criteria, at this time, we believe defining mid-ocean ballast water 
exchange as taking place at least 200 nm from shore allows more vessels 
to conduct exchange and simplifies enforceability.

[[Page 44954]]

    The Coast Guard recognizes that there are two currently feasible 
methods of conducting an exchange:
     An empty/refill exchange. The tank (or pair of tanks) is 
pumped down to the point where the pumps lose suction, and then the 
tank is pumped back up to the original level.
     A flow-through exchange. Mid-ocean water is pumped into a 
full tank while the existing coastal or fresh water is pumped or pushed 
out through another opening. As defined by the Coast Guard, a volume of 
water equal to three times the ballast tank capacity must be pumped for 
a flow-through exchange.
    Failure to employ at least one of the BWM practices outlined above 
will result in a penalty, unless the vessel is exempt due to safety or 
voyage constraints or specifically exempted from the regulation.
    Each vessel subject to this rule (33 CFR part 151 subpart D) will 
be required to develop and maintain a BWM plan. The plan shall be 
specific to each vessel and shall fulfill two purposes: (1) Show that 
there is a BWM strategy for the vessel; and (2) allow any master, or 
other ship's officer as appropriate, serving on that vessel to 
understand and follow the BWM strategy for the vessel. The IMO has 
issued guidelines on the content of BWM plans in IMO Resolution 
A.868(20) Annex 1, Chapter 7. Any plan meeting these IMO guidelines 
will meet the regulatory requirement laid out in Sec.  151.2035(a)(7). 
This Resolution is available on the IMO's Global Ballast Water 
Management Programme Web site [http://globallast.imo.org]. For your 
reference, we have also placed a copy of the IMO guidelines in the 
docket for this rule at the location listed above under ADDRESSES. 
Failure to maintain a BWM plan onboard the vessel or to make the 
required ballast water reporting forms available will result in 
penalties.

Discussion of Comments and Changes

    We received 38 letters on the proposed rulemaking for BWM. Most 
letters contained more than one comment. These included general 
comments as well as specific comments. We address the general comments 
first and then the specific comments.

General Comments

    We received 16 comments in general support of the rule. One of 
these commenters supported the requirement that vessels must maintain 
BWM plans and that they should be modeled after IMO guidelines. One 
commenter supported the provisions of the rule that would not require 
vessels to deviate from their voyages or delay their voyages in order 
to conduct ballast water exchange.
    One commenter stated that effective BWM and reporting are critical 
to maintaining the ecological and economic well being of coastal 
Alaska.
    Three commenters stated that the U.S. mandatory BWM program should 
be consistent with IMO guidelines and supported our removal of the 
depth requirement for conducting ballast water exchange. One commenter 
stated that the Coast Guard did not adequately explain why ballast 
water exchange is acceptable in waters less than 2,000 meters deep.
    We agree with the commenters. We have developed the BWM program to 
be as consistent with IMO guidelines as practicable. For example, and 
as recognized by the commenters, under the voluntary BWM program, we 
requested that ballast water exchange take place in an area 200 nm from 
shore and at a depth of 2,000 meters. To be consistent with IMO 
guidelines, we modified the mandatory program to require that ballast 
water exchange take place 200 nm from shore, without regard to water 
depth. We believe this harmonization will help vessel operators that 
must follow both IMO guidelines and U.S. requirements. As stated in the 
proposed rulemaking (68 FR 44691), there is not consensus on water 
depth criterion for ballast water exchange. Because there is no 
scientific consensus on a specific water depth that is suitable for 
exchange, and for the reasons stated above, we aligned our requirements 
with IMO guidelines.
    One commenter stated that there should be no vessels exempt from 
the mandatory BWM program.
    We disagree with the commenter. NISA authorizes specific exemptions 
for crude oil tankers engaged in coastwise trade and Department of 
Defense and Coast Guard vessels. Therefore, we do not currently have 
the authority to include these vessels in the applicability for the 
final rule.
    One commenter requested that the Coast Guard host a public meeting 
on the Programmatic Environmental Assessment (PEA).
    The Coast Guard does not intend to hold a public meeting for the 
PEA. We believe that the comment period provided ample opportunity for 
the public to suggest other alternatives to the one examined in the 
PEA.
    Two commenters stated that there should be a publicly accessible 
database for nationwide ballast water discharges.
    National ballast water discharge data is publicly available and can 
be found at the Web site for the National Ballast Information 
Clearinghouse at http://invasions.si.edu/NBIC/ballast.html.
    One commenter asked if vessels discharging ballast water should be 
regulated under the Environmental Protection Agency's (EPA) National 
Pollution Discharge Elimination System (NPDES) Program.
    This comment was the subject of a petition submitted to EPA on 
January 13, 1999. EPA responded to this petition on September 9, 2003 
to comply with a court order (68 FR 53165). The Coast Guard opined, 
during the legal proceedings, that regulation of vessels discharging 
ballast water should remain under the authority of the Coast Guard. 
EPA, for the reasons set out in its September 9, 2003, petition denial, 
does not regulate vessels discharging ballast water under the NPDES 
program.
    One commenter asked if the Coast Guard would identify ``high-risk 
vessels'' and if we would encourage their owners to install ballast 
water treatment systems. This commenter also asked if the Coast Guard 
has funding to conduct research onboard vessels.
    The Coast Guard does not have the ability to identify ``high-risk 
vessels'' with respect to NIS, nor have we defined this term in our 
regulations. Further, the Coast Guard does not have funding to conduct 
research onboard vessels; however, we have developed a Shipboard 
Technology Evaluation Program (STEP) that encourages owners to install 
and test various technologies for ballast water treatment. This program 
was established in January 2004, through a Navigation and Inspection 
Circular (NVIC 01-04) and announced in a Notice of Availability 
published in the Federal Register on January 7, 2004 (69 FR 1082).
    One commenter asked how the Coast Guard, in conjunction with EPA 
and the States, will develop education and outreach programs for BWM.
    We intend to develop guidance regarding BWM procedures and 
recommended practices. This guidance will take into account 
coordination with EPA and other Federal and State agencies. 
Additionally, class societies and IMO have published guidance on best 
practices and procedures for BWM that is specific to ship type.
    One commenter stated there has been a misunderstanding among 
mariners on what constitutes a ``full exchange.''
    As defined in Sec.  151.2025, there are two methods of exchange, 
either ``flow through'' or ``empty/refill.'' Both exchange methods, as 
defined in this section, describe what constitutes a full exchange. A 
``full exchange'' using the ``flow through'' method means that three 
full tank volumes of water have

[[Page 44955]]

been exchanged. A ``full exchange'' using the ``empty/refill'' method 
means that the ballast tanks are pumped down to the point where the 
pumps lose suction, and the tank is then refilled to the original 
level.
    One commenter suggested we revise Sec.  151.2030 to remove the 
distinction between U.S. waters and the Great Lakes. Another commenter 
stated that the national BWM program should be the same as the program 
on the Great Lakes.
    We agree with these comments; however, the intent of this rule is 
simply to convert the voluntary national guidelines for BWM to a 
mandatory, national program. We intend to merge the Great Lakes program 
and the national program into a single program in a future rulemaking.
    One commenter stated that Sec.  151.2037 is not enforceable and is 
inconsistent with Sec.  151.2035(b) and recommended removing the term 
``voyage concerns.''
    We disagree with this comment. If a vessel cannot comply with Sec.  
151.2035(b) because of ``voyage concerns,'' that vessel is responsible 
for documenting this action. If there is no documentation, the Coast 
Guard will assess a monetary penalty for failing to comply with Sec.  
151.2037.
    One commenter stated that a minimum ballast water transfer quantity 
or capacity should be established and that BWM or reporting should not 
be required for volumes below these amounts.
    We disagree with the commenter. As directed by NISA, we are 
required to analyze BWM operations for vessels, regardless of a 
vessel's ballast capacity or volume of ballast water carried on any 
particular voyage. Therefore, we are not establishing a minimum 
quantity or capacity requirement.
    One commenter requested clarification on what is expected of 
vessels in innocent passage in terms of compliance with the rule.
    As stated in Sec.  151.2015 titled ``Is a vessel in innocent 
passage exempt from the mandatory requirements?'' vessels merely 
traversing the territorial seas of the U.S. (i.e., not entering or 
departing a U.S. port, or not navigating the internal waters of the 
U.S.) are exempt from the requirements of 33 CFR part 151. Vessels 
merely traversing the territorial seas of the U.S. would be considered 
engaged in ``innocent passage.''
    One commenter requested clarification on the definition of ``waters 
of the U.S.,'' asking if the term means ``territorial waters'' (12 nm 
from shore) or the U.S. EEZ (200 nm from shore).
    ``Waters of the U.S.,'' as stated in 33 CFR 151.2025, means waters 
subject to the jurisdiction of the United States as defined in 33 CFR 
2.05-30, including the navigable waters of the United States. For this 
regulation, the navigable waters include the territorial sea as 
extended to 12 nautical miles from the baseline, pursuant to 
Presidential Proclamation No. 5928 of December 27, 1988. We are 
revising that definition to correct the citation from 33 CFR 2.05-30 to 
33 CFR 2.38.
    One commenter requested clarification on distance and depth 
requirements for ballast water exchange.
    As stated in Sec.  151.2035(b)(1), ballast water exchange must be 
performed in an area no less than 200 nm from any shore. Neither the 
proposed rulemaking nor the final rule for mandatory BWM contains a 
depth requirement for ballast water exchange.
    Two commenters requested clarification for the term ``discharge 
only the amount operationally necessary.''
    This term was intended to allow vessel operators some flexibility 
in their cargo operations and BWM practices, while protecting the 
receiving environment to the extent practicable. If ballast water 
exchange has not been conducted prior to entering U.S. waters, and a 
vessel operator must conduct cargo operations in a U.S. port, the 
operator may release the amount of ballast water necessary to conduct 
safe cargo operations. The vessel operator must make a note of the 
discharge into the U.S. port on the ballast water reporting form.
    Four commenters expressed concern regarding the breadth of these 
regulations. Two commenters stated concern that some vessels are exempt 
from conducting ballast water exchange due to voyage constraints and 
suggested that these vessels employ alternative BWM methods. Two 
commenters stated that ballast water exchange is not an ``effective 
solution'' and should not be the ``default solution.'' The Coast Guard 
should instead focus on a ``zero discharge'' standard.
    We understand that ballast water exchange is not the final answer 
in preventing the introduction of NIS. Currently, there are no 
alternative BWM methods to ballast water exchange that have been 
approved by the Coast Guard. We are exploring environmentally sound 
alternative BWM methods that are at least as effective as ballast water 
exchange and intend to approve those methods that meet the above 
criteria in the future. We are not mandating the use of alternative 
methods in this final rule. Additionally, the Coast Guard intends to 
establish ballast water discharge standards that prevent the 
introduction of NIS and are both environmentally protective and 
economically feasible. As described in the Notice of Intent for our 
Programmatic Environmental Impact Statement (68 FR 55559), one of the 
alternatives under consideration would ``result in the discharge of no 
detectable viable organisms larger than 0.1 microns,'' which is, in 
essence, a ``zero discharge'' alternative.
    One commenter stated that it is premature to establish a mandatory 
BWM program without first establishing ballast water discharge 
standards.
    We disagree with this commenter. The intent of this final rule is 
to convert the voluntary BWM program to a mandatory program if we 
deemed the voluntary BWM program inadequate, as required by NISA. We 
believe it is inefficient to develop discharge standards without first 
having an overarching BWM program in place. The Coast Guard is in the 
process of establishing ballast water discharge standards and 
evaluating shipboard treatment technologies that could be employed to 
meet these standards. Ballast water discharge standards will be the 
subject of a future rulemaking.
    Three commenters stated that the mandatory BWM program does not 
address vessels with no ballast on board (NOBOBs) and that ballast 
water exchange is not a final answer to preventing the introduction of 
NIS.
    While our final rule for mandatory BWM does not address NOBOBs, we 
believe that addressing these vessels is an important factor in the 
prevention of NIS introductions. As a first step, the Coast Guard now 
requires NOBOBs to submit ballast water reporting forms, as stated in 
the final rule titled ``Penalties for Non-submission of Ballast Water 
Management Reports'' published on June 14, 2004 (69 FR 32864). We will 
continue to explore the issue of NOBOBs entering U.S. waters, and these 
vessels may be included in a future rulemaking.
    One commenter suggested removing the term ``voluntary guidelines'' 
in Sec.  151.2015 and replacing it with ``mandatory program.''
    We agree with the commenter and have amended Sec.  151.2015 to 
reflect this change.
    Three commenters suggested that the definition of ballast water 
tanks be clarified.
    We have added the definition for ``ballast tank,'' currently found 
in Sec.  151.1504 (151 subpart C) to Sec.  151.2025 (151 subpart D). 
This definition will

[[Page 44956]]

help clarify which vessels must comply with the rule.
    One commenter recommended that language regarding the BWM plan in 
Sec.  151.2035(a)(7) should be changed from ``ship's officer'' to 
``those responsible for its implementation.''
    We agree with the commenter and have amended Sec.  151.2035(a)(7) 
to clarify the specificity needed in the BWM plan.
    One commenter recommended that language in Sec.  151.2035(b)(4) 
should state that reception facilities be approved by the Coast Guard 
for receipt and treatment of ballast water.
    We disagree with the commenter. The Coast Guard does not currently 
have the statutory authority to approve reception facilities; therefore 
adding the language requested by the commenter would be inappropriate. 
In order to eliminate the confusion created by this provision, and for 
the reasons discussed in greater detail in the ``Environment'' section, 
below, we are deleting Sec.  151.2035(b)(4).

Comments Regarding Coastwise Trade

    Two commenters recommended that the Coast Guard, in consultation 
with Canada and IMO, adopt a single set of national or regional ballast 
water exchange zones along the West Coast to address concerns regarding 
coastwise voyages. An additional ten commenters asked the Coast Guard 
to adopt regulations addressing coastwise trade and recommended that we 
convene a panel of experts to develop alternative ballast water 
exchange zones within the EEZ.
    The final rule does not address coastwise trade because vessels on 
these voyages cannot conduct a mid-ocean ballast water exchange, due to 
the fact that they do not travel outside 200 nm of any shore. The Coast 
Guard is examining the possibility of establishing alternative ballast 
water exchange zones. As part of this effort, we participated in a 
workshop for alternative ballast water exchange zones in October 2003, 
and believe the ideas exchanged at this and future workshops could 
provide a sound, scientific basis for establishing ballast water 
exchange zones within the EEZ.
    One commenter stated that vessels engaged in coastwise trade should 
be required to submit ballast water reporting forms.
    We agree. As stated in the final rule titled ``Penalties for Non-
submission of Ballast Water Management Reports'' (69 FR 32864), as of 
August 13, 2004, these vessels are required to submit ballast water 
reporting forms.
    One commenter stated that vessels on domestic voyages that do not 
conduct ballast water operations outside the EEZ should be exempt from 
this rule.
    We agree and as stated in Sec.  151.2005(b), only those vessels 
equipped with ballast tanks that enter U.S. waters from beyond the EEZ 
must conduct BWM, with the exception of those vessels exempted in 
Sec. Sec.  151.2010 and 151.2015.

Comments on Barges and Towing Vessels

    Four commenters asked the Coast Guard to recognize the uniqueness 
of domestic barges and towing operations by accepting different 
approaches to ballast water management.
    The Coast Guard appreciates the uniqueness of all types of vessels. 
However, if a barge or tug vessel operates outside the EEZ, it will be 
required to conduct ballast water management, unless it meets the 
requirements under Sec.  151.2037.
    Three commenters asked the Coast Guard to exempt inland towing 
vessels and barges from BWM requirements, as they are not equipped with 
ballast water tanks.
    We disagree. Inland towing vessels and barges may be covered even 
if they are not equipped with ballast water tanks. As stated in the 
definition for ``ballast tank,'' any vessel that carries ballast water 
must comply with these regulations. NISA, while allowing for exemptions 
from BWM, mandates that the BWM program be based on the best scientific 
information possible. We do not currently have information that would 
allow us to make specific exemptions for inland towing vessels and 
barges. We note, however, that those inland towing vessels and barges 
that never carry ballast water do not fall within the applicability 
section of this regulation; therefore, no specific exemption is needed. 
Additionally, vessels that do not transit outside the EEZ, such as most 
inland towing vessels and barges, are not subject to mandatory BWM 
requirements.
    Four commenters asked the Coast Guard not to require BWM plans for 
barges and towing vessels that operate within the EEZ. One of these 
commenters also asked the Coast Guard to provide a template to assist 
them in developing their plans.
    We believe that if towing vessels and barges are equipped with 
ballast water tanks or use other tanks to ballast and deballast water, 
these vessels will be required to maintain a BWM plan specific to those 
vessels. At this time, the Coast Guard does not intend to develop a 
template for a BWM plan. We recommend that these vessels seek 
assistance from their class societies or maritime associations. We also 
suggest that vessel owners refer to IMO guidelines for IMO Resolution 
A.868(20) Annex 1, which are available in the public docket for this 
rule.
    We received four comments regarding the ballast water reporting 
form. Two commenters asked the Coast Guard to develop a new ballast 
water reporting form specific to barges and towing vessels. One 
commenter expressed concern with the ballast water reporting form. One 
commenter recommended that the ballast water reporting form include a 
listing of all locations where ballast water was discharged.
    Comments regarding the ballast water reporting form were addressed 
in the Discussion of Comments section of the final rule for ``Penalties 
for Non-submission of Ballast Water Reporting Forms'' [69 FR 32864]. At 
this time we do not intend to develop a ballast water reporting form 
that is specific to barges and towing vessels; however, we are 
exploring a potential redesign of the reporting form. Additionally, we 
wish to note that the locations of all ballast water discharges are 
already part of the ballast water reporting form. Operators are 
required to log the coordinates (latitude/longitude) or port where the 
ballast water was discharged. Ballast water sources are required to be 
similarly reported on the form.
    Two commenters asked the Coast Guard to allow tug and barge 
operators that carry ballast water and serve domestic coastwise trade 
to submit reports every 30 days, rather than 24 hours prior to arrival 
at the first U.S. port. These commenters argued that monthly reporting 
would ease the administrative burden on the vessel operator.
    We disagree with this comment. To change the submission 
requirements of ballast water reports for tugs and barges from 24 hours 
to 30 days would delay the accounting of BWM practices, thus denying 
the Coast Guard the means of enforcing compliance with mandatory 
ballast water reporting requirements. If the operators of these vessels 
know their destinations in advance, they may submit multiple reports of 
their BWM practices to the Coast Guard prior to their arrival.
    One commenter stated that coastwise barges will be unable to comply 
with Sec.  151.2035(b)(1 through 3) because it is ``unsafe'' for barges 
to conduct ballast water operations in the open sea.
    As previously stated, vessels engaged in coastwise trade will not 
be expected to conduct mandatory BWM under this final rule. 
Additionally, Sec.  151.2037 states that a vessel that cannot meet the 
requirements of Sec.  151.2035(b)(1-3)

[[Page 44957]]

because of safety concerns will not be prohibited from discharging 
ballast water in areas other than the Great Lakes and Hudson River; 
however, the vessel must discharge only that amount that is 
operationally necessary and make ballast water records available to the 
local COTP upon request.

Comments on Compliance and Enforcement

    Three commenters asked how the Coast Guard would ensure that a 
vessel has conducted BWM.
    The vessel owner or operator must maintain accurate copies of the 
ballast water records onboard the vessel as required by 33 CFR 151.2045 
and the forms must be readily available upon request. Additionally, we 
will use the ballast water reporting forms that must be submitted in 
advance of a vessel arriving at a U.S. port as required by 33 CFR 
151.2040 to verify and ensure that the vessel has conducted BWM. We are 
actively pursuing ballast water exchange verification technologies, and 
when these technologies are available, we will employ them as 
appropriate.
    One commenter requested a discussion on penalties, including 
failure to keep required records, failure to record why BWM was not 
conducted, and the range of potential penalties for these violations.
    We addressed penalties for violations of BWM and non-submission of 
reporting forms at length in the preamble to the final rule titled 
``Penalties for Non-submission of Ballast Water Reporting Forms'' [69 
FR 32864].
    Two commenters raised issues regarding penalties. One commenter 
asked if monetary penalties for violating these regulations would be 
based on a flat fee or a weighted fee based on ship size or amount of 
ballast water. One commenter asked that the Coast Guard assess 
penalties that deter inaccurate reporting or failure to report ballast 
water discharge information.
    Monetary civil penalties associated with violations of this rule 
will not be based on a flat fee or based on ship size or ballast water 
amount. Penalties for failure to comply with any of the BWM 
regulations, including reporting requirements, will be assessed on a 
case-by-case basis. We have the discretion to issue a penalty of up to 
$27,500, depending on the facts of each individual case, and each day 
is considered a separate violation, pursuant to NISA.
    One commenter urged the Coast Guard to use the existing Port State 
Control (PSC) program to enforce the BWM program.
    We partially agree with the commenter. BWM reports will not be 
considered in the ``scoring matrix'' used to prioritize boardings and 
inspections under the Coast Guard's PSC program at this time. However, 
inspectors boarding vessels that arrive in U.S. ports may ask for any 
documentation regarding a vessel's BWM practices during the inspection 
process. Inspectors may also target specific vessels if they believe 
these vessels are not in compliance with the mandatory BWM provisions. 
As a result, BWM maybe become a future part of PSC. We intend to 
publish a NVIC that describes our intended enforcement activities for 
BWM. The NVIC will be available to all interested stakeholders through 
their local COTP or the Office of Operating and Environmental Standards 
at http://www.uscg.mil/hq/gm/mso/index.html.

Comments Beyond the Scope of This Rule

    One commenter recommended that a fund be established from 
noncompliance fees to remediate ballast water-related impact areas.
    We think this type of program is a novel concept; however, the 
Coast Guard does not currently have the authority to establish or 
administer such a program.
    Five commenters stated that establishing ballast water discharge 
standards should be a priority for the Coast Guard.
    We agree with commenters; however, ballast water discharge 
standards will be addressed in a future rulemaking.
    One commenter stated that vessels on voyages outside the EEZ that 
do not perform any ballasting operations while outside the EEZ should 
not have to submit a ballast water reporting form.
    We disagree with the commenter. As stated in the final rule titled 
``Penalties for Non-submission of Ballast Water Management'' [69 FR 
32864], vessels are required to submit a ballast water reporting form 
if they transit within U.S. waters, regardless of where they operate, 
with minor exceptions, such as a vessel in innocent passage.
    Two commenters stated that the rule does not give any consideration 
to the National Aquatic Invasive Species Act (NAISA).
    While introduced into Congress, NAISA has not yet been enacted. We 
will monitor NAISA's progress through Congress, but will not begin 
implementing any portions of the Act before it becomes law.
    One commenter stated that the Coast Guard's highest priority should 
be establishing an experimental technology approval program.
    On January 7, 2004, the Coast Guard published NVIC 01-04, as 
announced in the Federal Register (69 FR 1082), describing the STEP 
application process. We are actively reviewing and providing feedback 
on all applications received to date.
    One commenter recommended that the Coast Guard consider a specific 
treatment technology.
    The Coast Guard cannot recommend specific technologies without 
first evaluating their effectiveness and environmental soundness. We 
encourage any parties that believe they have shipboard technologies to 
prevent the introduction of NIS to participate in the Coast Guard's 
STEP.
    One commenter suggested that the Coast Guard encourage the Canadian 
and Mexican governments to adopt BWM regulations similar to ours.
    We agree that international coordination, particularly with Canada 
and Mexico, is essential for the successful prevention of NIS 
introductions. The U.S. is currently working with Canada under the 
auspices of the International Joint Commission to address the 
prevention of NIS. Both Canada and Mexico participate as invited 
observers to the Aquatic Nuisance Species Task Force. We will continue 
to work with all countries to address the challenges posed by invasive 
species.

Regulation Evaluation

    This rule is a ``significant regulatory action'' under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review. The Office of 
Management and Budget has reviewed it under that Order. It requires an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. It is significant under the regulatory policies and 
procedures of the Department of Homeland Security. A final Regulatory 
Evaluation is available in the docket as indicated under ADDRESSES. A 
summary of the Regulatory Evaluation follows and is available in the 
public docket for this rule.
    We received 5 comments on the Regulatory Evaluation. One commenter 
stated that annual costs for BWM should be explained in the final rule.
    We have included a summary of the annual costs for BWM in this 
preamble to the final rule. A detailed analysis of annual costs for BWM 
can be found in the final Regulatory Evaluation, which is available in 
the public docket for this rule.
    Two commenters stated that our estimated costs for ballast water 
exchange were too low. One commenter stated that a single exchange for 
a large

[[Page 44958]]

bulk carrier would be several times more than our estimate. The second 
commenter stated that the annual cost for container ships would be 
higher than our estimate.
    Our cost-per-exchange estimates are based on information from class 
societies, ballast water literature, and the U.S. Maritime 
Administration. We believe that the alternate estimates provided by the 
commenters greatly overstate, in one case by an order of magnitude, the 
costs of ballast water exchange. Additionally, these commenters did not 
provide documentation or substantiation for their alternate estimates. 
We have not, therefore, modified our cost estimates based on these 
comments.
    One commenter generally agreed with the analysis, but expressed 
concern that costs to the environment were understated and more 
information should be provided. Another commenter stated that we must 
consider the costs to local communities and ecosystems if NIS continue 
to gain a foothold in Alaskan waters.
    We did not estimate the annual benefit of BWM in monetary terms. 
Instead, we supplied a literature review providing estimated damages 
resulting from invasions. In this review, we discuss potential damages 
from NIS to local communities and ecosystems. Much of this literature 
revolves around the damages caused by the zebra mussel in the Great 
Lakes and Mississippi River basin. In our Regulatory Evaluation, we 
were careful to note that we do not believe that this rule will prevent 
a species as destructive as the zebra mussel from becoming established 
because the uncertainties surrounding invasions are numerous. We 
believe that ballast water exchange will provide a measure of 
protection to the environment. However, ballast water exchange is not 
the final answer to preventing invasions and, therefore, we do not wish 
to overstate the potential benefits of exchange. We will revisit 
environmental damages in our Regulatory Assessment and Environmental 
Impact Statement in a future rulemaking for ballast water discharge 
standards. A summary of the Regulatory Evaluation follows.
    This Regulatory Evaluation identified the vessel population 
affected by the rule and provides cost and benefit models for the 
current principal option of BWM provided for under the rule-ballast 
water exchange. Any vessel equipped with ballast tanks entering U.S. 
waters from outside the EEZ must conduct BWM, with minor exceptions. 
The vessel population was categorized by vessel type under the 
assumption that vessels in different cargo services and of different 
sizes likely manage ballast water in different ways. We estimated that 
approximately 7,420 vessels will be affected and approximately 11,500 
ballast water exchanges will be performed annually. Annual costs 
totaled approximately $15.8 million. The 10-year present value cost for 
this rule is $116.7 million. These costs do not account for the Great 
Lakes program, which was not part of this rule.
    The benefit assessment expanded on the analysis conducted for costs 
by focusing on the probability of viable organisms being introduced 
into U.S. waters through ballast water discharge, both before the rule 
and following the implementation of mandatory BWM. A probability of a 
reduction in the number of invasions of NIS was calculated using data 
on voyages, vessel types, ballast water volumes, and exchange 
effectiveness, as well as order-of-magnitude assumptions about the 
probabilities of inoculations, introductions, and invasions resulting 
from ballast water discharges. The calculations indicated the rule may 
result in avoiding approximately 10 inoculations that result in 
invasions for each year the rule is in effect. While there is 
considerable uncertainty in these calculations and the order-of-
magnitude assumptions (referred to as the ``rule of 10s'' in the 
Regulatory Evaluation) are admittedly an oversimplification of a 
complex problem, we believe their simplicity and transparency are 
compelling. To date, there is no national estimate of the invasion rate 
of NIS, and we cannot compare our baseline invasion estimate to other, 
more limited estimates regarding invasions. Our findings are broadly 
consistent, however, with other estimates of the rate of NIS invasions. 
One study finds that in the San Francisco Bay and Delta, invasions have 
increased from one new species every 55 weeks (1851-1960) to one new 
species every 14 weeks (1961-1995) (Cohen and Carlton, 1998). Another 
study posits that invasion rates may have increased in the San 
Francisco Bay and the Great Lakes over the past several decades (Mills, 
et al., 1993). Finally, some researchers believe that the increase of 
initial invasions is best described by an exponential function (Ruiz, 
et al., 2000). Using our simple methodology, we found that an invasion 
occurs about twice every 3 weeks somewhere in the U.S.
    There is considerable difficulty in estimating monetized damages 
resulting from NIS invasions. Some species impose significant, long-
term damages on marine industries and infrastructure. Other species may 
create subtle disturbances in ecosystems that are difficult to 
quantify. Still others may be relatively benign. There have been 
attempts to estimate monetized damages for a few species, most notably 
the zebra mussel. One study estimated costs to Great Lakes water users, 
mostly due to fouling of intake structures, of $120 million over the 
time period 1989 to 1994 (Hushak, 1996). Another estimated cumulative 
zebra mussel impacts of $750 million to $1 billion over the time period 
1989 to 2000 (Carlton, 2001). Other species for which monetized damage 
estimates have been developed include the Asian clam ($1 billion per 
year, OTA, 1993) and European green crab ($44 million per year, CRS, 
1999). Eight Federal agencies that sit on the National Invasive Species 
Council collectively spent $514 million in 1999 and $631 million in 
2000 for the control and management of NIS (GAO, 2000).
    We have not reviewed the methodologies used to produce these 
estimates in detail, though all of them (except expenditures by Federal 
agencies) involve considerable uncertainty. They are indicative, 
however, of the magnitude of damages that may result from particularly 
destructive invasions. It is likely, however, that most invasions would 
result in considerably lower damages than the numbers reported in these 
studies. Because of the lack of data on damages potentially associated 
with any but the most destructive invasions, we have not tried to 
monetize the benefits of the rule. If the rule resulted in avoiding 
even one invasion of this magnitude over the course of several decades, 
however, the benefits of the rule would most likely justify the costs.

Small Entities

    We did not receive any comments on small entities. Of the affected 
population of all vessels arriving at U.S ports, we estimate that 21 
vessels of the 171 U.S. flag vessels, are owned by 10 small businesses. 
Approximately 35 large companies own the remaining 150 U.S.-flagged 
vessels. We estimate all vessels will choose the alternative of 
conducting a mid-ocean ballast water exchange. The cost of complying 
with this rule is the cost of exchanges performed by the vessel added 
to the cost of additional maintenance required for the ballast water 
pumping system. The cost per exchange is a function of vessel type. 
Each vessel's costs will be a function of the cost of exchange for that 
vessel type multiplied by the number of trips into U.S. waters from 
outside the U.S. EEZ. Thus the annual

[[Page 44959]]

impact on the revenue for a small business will vary with the number of 
entries the vessel makes from outside the U.S. EEZ. In order to 
estimate the upper bound of that impact, we calculated the cost of 
exchange for the maximum number of exchanges possible for the years 
1999 and 2000. We then assumed that weather conditions and transit 
tracks allowed exchanges for all of these entries. For the annual cost 
of the rule, the number of vessels owned by each small business is 
multiplied by the number of exchanges performed, and the resulting 
product is then multiplied by the cost of exchange for the particular 
vessel type, and added to the maintenance cost of 10 percent of the 
capital cost of the ballast pump. Of the 10 small businesses that own 
vessels affected by the rule, we found revenue for nine. For the 
remaining company where no revenue information was available, we 
assumed revenue of $1 million for the purposes of the analysis. Table 1 
gives the effect of the rule on the average annual revenues for the 
small business affected. For more detailed information, refer to the 
Regulatory Evaluation in the docket.

  Table 1.--Effect of BWM on Average Annual Revenue for Small Business
                  Entities Owning U.S.-Flagged Vessels
------------------------------------------------------------------------
                                                             Total small
                                                               entities
      Percent of annual revenue that is BWM rule cost         per impact
                                                               category
------------------------------------------------------------------------
0-3........................................................            8
3-5........................................................            2
> 5........................................................            0
                                                            ------------
    Total..................................................           10
------------------------------------------------------------------------

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rule. If the rule will 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please consult Bivan Patnaik, G-MSO-4, Coast Guard, 
telephone 202-267-1744, e-mail: Bpatnaik@comdt.uscg.mil.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

Collection of Information

    This rule modifies an existing collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We received 
several comments regarding general collection of information issues. 
These comments were addressed in the discussion of comments above.
    As required by 44 U.S.C. 3507(d), we submitted a copy of the 
proposed rule to the Office of Management and Budget (OMB) for its 
review of the collection of information. OMB approved the change to the 
collection on September 9, 2003: OMB Control Number 1625-0069, expiring 
on September 30, 2006.
    You are not required to respond to a collection of information 
unless it displays a currently valid OMB control number.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We received three comments 
pertaining to Federalism.
    Two commenters asked how the Coast Guard is developing partnerships 
with State agencies to coordinate various BWM policies and research 
programs for treatment installation. A third commenter asked if States 
wishing to require stricter standards could issue ``supplements'' that 
would be enforced only in the issuing States.
    As stated in the ``Federalism'' section of the proposed rulemaking, 
Congress clearly intended for a Federal-State cooperative regime and 
not for Federal preemption of State requirements. Thus, each State is 
authorized under NISA to develop its own regulations, including its own 
research programs, if it believes that Federal regulations or programs 
are not stringent enough.
    We have analyzed this rule under Executive Order 13132. NANPCA 
contains a ``savings provision'' that provides States the authority to 
``adopt or enforce control measures for aquatic nuisance species, [and 
nothing in the Act would] diminish or affect the jurisdiction of any 
States over species of fish and wildlife.'' 16 U.S.C. 4725. It also 
requires that ``all actions taken by Federal agencies in implementing 
the provisions of [the Act] be consistent with all applicable Federal, 
State and local environmental laws.'' Thus, the congressional mandate 
is clearly for a Federal-State cooperative regime in combating the 
introduction of aquatic nuisance species into U.S. waters from ships' 
ballast tanks. This makes it unlikely that preemption, which would 
necessitate consultation with the States under Executive Order 13132, 
would occur.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble. We did 
not receive any comments regarding unfunded mandates.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights. We did not receive any comments regarding the taking of private 
property.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden. We did not receive any comments 
regarding civil justice reform.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children. We did not receive any comments 
regarding the protection of children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it will not have a substantial direct effect on one or more 
Indian

[[Page 44960]]

tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes. We did not receive any 
comments regarding Indian Tribal governments.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order. Although it is a ``significant 
regulatory action'' under Executive Order 12866, it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211. We did not receive any comments regarding 
energy effects.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that preparation of a PEA is necessary and is available 
in the public docket for this rule. The PEA and Finding of No 
Significant Impact (FONSI) have been completed and are available in the 
public docket for inspection. We received nine comments regarding the 
environment.
    Two commenters expressed concern regarding limitations on 
ballasting in areas near coral reefs, dredging operations, tidal 
flushing, darkness, and sediment, stating that these types of areas are 
where their barges load and discharge. One of these commenters also 
added his concern that his company will not be able to comply with the 
BWM options.
    While we appreciate the commenters' concerns and the effects this 
rule will have on general operations, we believe that the requirements 
for ballasting and the options for BWM are necessary to protect the 
environment from the damages caused by NIS. In order to comply with 
these requirements, the commenters will have to adjust their ballasting 
operations accordingly.
    One commenter stated that the Coast Guard should include an 
Essential Fish Habitat determination in the PEA, as required by the 
Magnuson-Stevens Fishery Act.
    We agree with the commenter and have included language regarding 
essential fish habitat in the PEA.
    Two commenters requested that we include language in Sec.  151.2035 
regarding conducting BWM near pods of whales, convergence zones, and 
boundaries of major currents in order to protect threatened or 
endangered species.
    We agree and have amended Sec.  151.2035 to reflect these changes.
    Under the consultation process of the Endangered Species Act, the 
Fish and Wildlife Service (FWS) and the National Marine Fisheries 
Service (NMFS) recommended that the Coast Guard work with ballast water 
reception facilities and any relevant permitting authorities to address 
any potential effects to listed species or critical habitats and 
compliance with the Endangered Species Act.
    We have consulted extensively with FWS and NMFS in regards to the 
issue of approval of facilities to receive ballast water. Currently, 
there are no ballast water reception facilities in the United States 
approved for the treatment of ballast water to remove NIS. The Coast 
Guard is not involved in the regulatory or approval process for ballast 
water reception facilities. Anyone wishing to establish a ballast water 
reception facility that would discharge to waters of the United States 
would need to obtain a National Pollutant Discharge Elimination System 
(NPDES) permit under the Clean Water Act. Forty-five States and the 
U.S. Virgin Islands have been approved to issue NPDES permits, and 
would be the relevant permitting authority. In the remainder of the 
States, territories, and Indian country that have not been approved to 
issue NPDES permits, the NPDES permitting authority would be EPA. In 
the case of a ballast water reception facility that discharges into a 
local sewage collection system rather than directly to waters of the 
United States, the discharge would need to comply with local 
pretreatment requirements and national prohibited discharge standards 
under section 307 of the Clean Water Act. Non-storm water discharges 
into a municipal separate storm sewer system are prohibited. Because of 
these issues, we cannot state with certainty that allowing vessels to 
discharge their ballast water into a reception facility would be as 
effective as ballast water exchange in preventing and controlling 
infestations of NIS as per NISA. As a result, we are eliminating this 
option from Sec.  151.2035.
    The only additional comment regarding reception facilities was a 
request for Coast Guard approval of such entities, an act that we are 
not legally authorized to perform. As stated previously, there are no 
ballast water reception facilities in the United States approved for 
the treatment of ballast water to remove NIS, nor do we believe there 
are any applications for approval for such facilities on file. 
Additionally, all vessels equipped with ballast water tanks would need 
to be retrofitted with ballast water shore connections in order to 
utilize a shore-side reception facility. As stated in the Regulatory 
Evaluation, we do not expect any vessels to utilize the option of 
discharging into a shore-side facility. Accordingly, we do not believe 
that eliminating this option from Sec.  151.2035 will have any 
immediate effect on regulated industry.
    The Coast Guard will continue to work with other Federal agencies, 
such as FWS and NMFS, to examine and resolve issues surrounding ballast 
water treatment facilities.
    Three commenters encouraged the Coast Guard to pursue 
environmentally sound alternatives to ballast water exchange.
    We agree with the commenters. As required by NISA, we are working 
to facilitate development of alternatives to ballast water exchange 
that are environmentally sound. To do this, we encourage industry and 
others to participate in the STEP announced in the Federal Register on 
January 7, 2004 (69 FR 1082, NVIC 01-04).
    In considering the environmental impact of this rule, as stated 
earlier in this section, we believe the PEA is necessary because this 
rule requires vessels with ballast tanks entering U.S. ports around the 
country, subject to conditions discussed above, to have completed one 
of the mandatory BWM practices. Although the national mandatory BWM 
program provides vessels with ballast tanks the option of using one of 
three BWM practices, ballast water exchange is likely to be the most 
used practice for reasons discussed earlier. However, this PEA is 
necessary to ensure the potential environmental effects of the three 
BWM practices are considered.
    The Coast Guard has considered the implications of the Coastal Zone 
Management Act (16 U.S.C. 1451, et seq.) with regard to this rule. 
Under this Act, the Coast Guard must determine whether the activities 
proposed by it are consistent with activities covered by Federally 
approved coastal zone management plans for each State, which may be 
affected by this federal action. A listing of 29 States and Territories 
with federally approved coastal zone management plans can be found in 
Appendix E of the PEA for this rule.
    The Coast Guard has determined that the mandatory BWM program will 
have no effect on the coastal zones of the listed States and 
Territories. In addition,

[[Page 44961]]

we found the regulations in the final rule were consistent, to the 
maximum extent practicable, with the enforceable policies of the 
Federally-approved coastal zone management plans and submitted a 
consistency determination to that effect. The State Administrators for 
each of the listed States and Territories with coastal zone management 
plans responded, concurring with the Coast Guard consistency 
determination that implementing a mandatory BWM program would be 
consistent with their respective coastal zone management plans.
    The Coast Guard provided the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service with a copy of the final rule and its 
environmental assessment of the rule. This information initiated an 
informal Section 7 Consultation per the Endangered Species Act (16 
U.S.C. 1531, et seq.), which resulted in both agencies concurring with 
the Coast Guard's determination that this rule is not likely to 
adversely affect listed or proposed species or their critical habitats.

List of Subjects in 33 CFR Part 151

    Administrative practice and procedure, Oil pollution, Penalties, 
Reporting and recordkeeping requirements, Water pollution control.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 151 as follows:

PART 151--VESSELS CARRYING OIL, NOXIOUS LIQUID SUBSTANCES, GARBAGE, 
MUNICIPAL OR COMMERCIAL WASTE, AND BALLAST WATER

Subpart D--Ballast Water Management for Control of Nonindigenous 
Species in Waters of the United States

0
1. The authority citation for subpart D is revised to read as follows:

    Authority: 16 U.S.C. 4711; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Revise Sec.  151.2015 to read as follows:


Sec.  151.2015  Is a vessel in innocent passage exempt from the 
mandatory requirements?

    A foreign vessel merely traversing the territorial sea of the U.S. 
(i.e., not entering or departing a U.S. port, or not navigating the 
internal waters of the U.S.) is exempt from the requirements of this 
subpart.

0
3. In Sec.  151.2025--
0
a. Add in alphabetical order the definition of ``Ballast tank'' as set 
out below;
0
b. Under the definition for ``Exchange,'' redesignate paragraph (a) to 
(1); and
0
c. Revise the definition of ``Waters of the United States'' as set out 
below:


Sec.  151.2025  What definitions apply to this subpart?

* * * * *
    Ballast tank means any tank or hold on a vessel used for carrying 
ballast water, whether or not the tank or hold was designed for that 
purpose.
* * * * *
    Waters of the United States means waters subject to the 
jurisdiction of the United States as defined in 33 CFR Sec.  2.38, 
including the navigable waters of the United States. For this 
regulation, the navigable waters include the territorial sea as 
extended to 12 nautical miles from the baseline, pursuant to 
Presidential Proclamation No. 5928 of December 27, 1988.

0
4. In Sec.  151.2035--
0
a. Revise the section heading to read as set out below;
0
b. Revise the introductory text for paragraph (a) to read as set out 
below;
0
c. Add paragraph (a)(2)(vii) to read as set out below; and
0
d. Revise paragraphs (a)(7) and (b) to read as set out below:


Sec.  151.2035  What are the required ballast water management 
practices for my vessel?

    (a) Masters, owners, operators, or persons-in-charge of all vessels 
equipped with ballast water tanks that operate in the waters of the 
U.S. must:
* * * * *
    (2)(vii) Areas with pods of whales, convergence zones, and 
boundaries of major currents.
* * * * *
    (7) Maintain a ballast water management plan that has been 
developed specifically for the vessel that will allow those responsible 
for the plan's implementation to understand and follow the vessel's 
ballast water management strategy.
* * * * *
    (b) In addition to the provisions of paragraph (a) of this section, 
if the vessel carries ballast water that was taken on in areas less 
than 200 nautical miles from any shore into the waters of the U.S. 
after operating beyond the Exclusive Economic Zone, you (the master, 
operator, or person-in-charge of a vessel) must employ at least one of 
the following ballast water management practices:
    (1) Perform complete ballast water exchange in an area no less than 
200 nautical miles from any shore prior to discharging ballast water in 
U.S. waters;
    (2) Retain ballast water onboard the vessel;
    (3) Prior to the vessel entering U.S. waters, use an alternative 
environmentally sound method of ballast water management that has been 
approved by the Coast Guard;

0
5. Add Sec.  151.2036 to read as follows:


Sec.  151.2036  If my voyage does not take me into waters 200 nautical 
miles or greater from any shore, must I divert to conduct a ballast 
water exchange?

    A vessel will not be required to deviate from its voyage, or delay 
the voyage, in order to conduct a ballast water exchange.

0
6. Add Sec.  151.2037 to read as follows:


Sec.  151.2037  If my vessel cannot conduct ballast water management 
practices because of its voyage and/or safety concerns, will I be 
prohibited from discharging ballast water?

    (a) A vessel that cannot practicably meet the requirements of Sec.  
151.2035(b)(1) because its voyage does not take it into waters 200 
nautical miles or greater from any shore for a sufficient length of 
time and elects to retain ballast water on board, or because of the 
safety concerns contained in Sec.  151.2030, will not be prohibited 
from the discharge of ballast water in areas other than the Great Lakes 
and the Hudson River. However, the vessel must discharge only that 
amount of ballast water operationally necessary to ensure the safety of 
the vessels for cargo operations and make ballast water records 
available to the local Captain of the Port upon request.
    (b) A vessel that cannot practicably meet the requirements of Sec.  
151.2035(b)(3) because its alternative environmentally sound ballast 
water management method is inoperable must employ one of the other 
ballast water management practices stated in Sec.  151.2035(b). If the 
vessel cannot employ other ballast water management practices due to 
voyage or safety concerns, the vessel will not be prohibited from the 
discharge of ballast water in areas other than the Great Lakes and the 
Hudson River. However, the vessel must discharge only that amount of 
ballast water operationally necessary to ensure the safety of the 
vessels for cargo operations and make ballast water records available 
to the local Captain of the Port upon request.

    Dated: July 21, 2004.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 04-17096 Filed 7-27-04; 8:45 am]
BILLING CODE 4910-15-P