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E-M:/ Coast Guard rule on Invasive Species in Great Lakes



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[Federal Register: November 21, 2001 (Volume 66, Number 225)]
[Rules and Regulations]
[Page 58381-58393]
 >From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no01-11]

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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 151

[USCG-1998-3423]
RIN 2115-AF55


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

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: To comply with the National Invasive Species Act of 1996
(NISA), the Coast Guard has established both regulations and voluntary
guidelines to control the invasion of aquatic nuisance species (ANS).
Ballast water from ships is one of the largest pathways for the
intercontinental introduction and spread of ANS. This rule finalizes
regulations for the Great Lakes ecosystem and voluntary ballast water
management guidelines for all other waters of the United States,
including mandatory reporting for nearly all vessels entering waters of
the United States.

DATES: This final rule is effective December 21, 2001.

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-1998-3423 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

[[Page 58382]]

docket on the Internet at <A HREF="http://dms.dot.gov";>http://dms.dot.gov</A>.

FOR FURTHER INFORMATION CONTACT: For questions on this rule, contact
Lieutenant Commander Mary Pat McKeown, Project Manager, U.S. Coast
Guard Headquarters, Office of Operating and Environmental Standards (G-
MSO), telephone 202-267-0500. For questions on viewing, or submitting
material to the docket, contact Dorothy Beard, Chief, Dockets,
Department of Transportation, telephone 202-366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

     On April 8, 1993, the Coast Guard published a final rule titled
``Ballast Water Management for Vessels Entering the Great Lakes'' in
the Federal Register [58 FR 18330]. The rule established mandatory
procedures for the Great Lakes in 33 CFR part 151, subpart C.
     On December 30, 1994, we published a final rule titled ``Ballast
Water Management for Vessels Entering the Hudson River'' in the Federal
Register [59 FR 67632]. The rule amended the regulations in 33 CFR part
151 to include requirements for portions of the Hudson River, which
connects to the Great Lakes.
     On April 10, 1998, we published a notice of proposed rulemaking
(NPRM) titled ``Implementation of the National Invasive Species Act of
1996 (NISA)'' in the Federal Register [63 FR 17782].
     On May 17, 1999, we published an interim rule [64 FR 26672]
that
implemented the National Invasive Species Act of 1996 (NISA). We
received 27 letters commenting on the interim rule.

Background and Purpose

     Aquatic nuisance species invasions through ballast water are now
recognized as a serious problem threatening global biological diversity
and human health.
     On November 29, 1990, Congress enacted the Nonindigenous Aquatic
Nuisance Prevention and Control Act of 1990 (NANPCA) [Public Law 101-
646; 16 U.S.C. 4711]. Congress enacted NANPCA to prevent and control
infestations of zebra mussels and other nonindigenous aquatic nuisance
species in coastal and inland waters of the United States.
     On October 26, 1996, Congress enacted the National Invasive Species
Act of 1996 (NISA) [Public Law 104-332], which amended and reauthorized
NANPCA (the Act). The purpose of the Act was to provide for ballast
water management to prevent the introduction and spread of
nonindigenous species into the waters of the United States.
     On November 27, 1997, the IMO Marine Environment Protection
Committee (MEPC) adopted Resolution A.868(20), ``Guidelines for the
Control and Management of Ships' Ballast Water to Minimize the Transfer
of Harmful Aquatic Organisms and Pathogens.'' The IMO recommends that
all maritime nations of the world adopt and use these voluntary
guidelines.
     The regulations and guidelines in this rule will implement the Act
by--
      Requiring operators of vessels entering waters of the
United States from beyond the Exclusive Economic Zone (EEZ) to submit a
ballast water management report;
      Providing voluntary ballast water management guidelines
for operators of vessels entering waters of the United States from
beyond the EEZ; and
      Promoting ballast water management for operators of all
vessels in waters of the United States.

Discussion of Comments and Changes

     The Coast Guard received 116 comments on the interim rule. The
paragraphs in this section discuss the comments we received, provide
the Coast Guard's responses, and explain any changes we are making to
the regulations. General comments are discussed first, followed by
comments on specific sections of the regulations.

General Comments

     Six comments expressed support for the rule and commended the Coast
Guard for our effort to control the spread of ANS in U.S. waters and to
develop realistic regulations that reflect industry input.
     Ten comments discussed the importance of maintaining consistent
national and international standards to control the spread of ANS. Some
of these expressed concern that States or other levels of government
may issue other regulations that exceed or significantly change the
standards included in the rule. One respondent stated that solutions to
the spread of ANS must be evaluated to ensure that they don't
exacerbate the ANS problem as it applies to individual ports. Another
comment suggested that Federal government control of ballast water
management is necessary to avoid having different requirements at
individual ports.
     It has long been the Coast Guard's position that consistent
standards of universal application, coupled with Federal initiatives to
address unique regional concerns, are the best means of meeting local
and national environmental goals with the least disruption to
international maritime commerce. To avoid potential conflicts between
regulations and duplication of effort, we request that any political
subdivision of the United States that is contemplating any laws,
regulations, or requirements regarding the discharge of ballast water,
consider this regulation prior to taking action.
     The Coast Guard will try to maintain nationwide consistency in
methods for the control of invasive species. We are committed to
ensuring national consistency for regulations that are established as
international rules and regulations, adopted by the IMO, and ratified
by the United States, which are related to the design, construction,
equipment, manning, and operation of vessels. However, this rulemaking
isn't intended to preempt any State, regional, or local efforts that
exceed but don't conflict with the standards set forth in this rule.
Section 1205 of the Act states that--

Nothing in this title shall affect the authority of any State or
political subdivision thereof to adopt or enforce control measures for
aquatic nuisance species, or diminish or affect the jurisdiction of any
State over species of fish and wildlife.

     Eleven comments discussed the costs associated with compliance and
noted that we did not accurately reflect these costs in the interim
rule. Two respondents suggested that the task of filling out the report
is the responsibility of the chief officer (chief mate or master), so
the associated cost should be based on a chief officer's salary. One of
the respondents suggested basing the cost on the overtime rate of a
master.
     The Coast Guard has revised the cost of complying with the
mandatory reporting requirement and has increased the estimated cost to
industry to meet this requirement.
     Many of the comments stated that the Coast Guard's cost analysis
does not accurately reflect the cost and impact of compliance with
either the voluntary guidelines for ballast water management or the
mandatory reporting requirements. Several comments stated that certain
additional costs should be included in the analysis if the voluntary
guidelines become mandatory. The examples of these costs the
respondents note include those for fuel for ballast pump operations;
shore reception facility fees; increased equipment usage (i.e., wear
and tear), and maintenance and repairs; decreased efficiency of vessels
due to reduced speeds; and

[[Page 58383]]

postponement or cancellation of other operational priorities.
     The Coast Guard disagrees. The only costs the Coast Guard can
consider in this Final Rule are those associated with the mandatory
reporting requirements. However, we agree that the costs identified by
the commenter will need to be addressed if the Coast Guard determines
that a mandatory ballast water exchange program is needed. We will be
evaluating the voluntary program in the coming months in order to
accurately report to Congress on the success (or lack thereof) of the
voluntary program. Should that report indicate our intent to promulgate
a mandatory program, we will issue a new regulation that will consider
the costs of the mandatory program.
     We received two letters prior to the close of the comment period
from respondents who notified us that they were compiling comments from
numerous sources and requested that we consider those group comments
even if they were not received prior to the comment period closing. We
did accept these comments.
     Ten comments discussed research and alternative technologies. One
comment commended the Coast Guard for our research in developing
alternatives to exchanging ballast water at sea. Five comments
emphasized the importance of finding safe, practical, and cost-
effective alternatives, in lieu of ballast water exchange, to achieve
the objectives of NISA. One comment recommended moving research from
identification of the problem to management of the problem. One comment
indicated that developing such alternatives is an extremely important
aspect of any long-term ballast water management program for the U.S.
and for other countries. The respondent noted that discussion of this
topic was not adequately addressed in the interim rule. One comment
noted that with the advances in the development of new technologies for
ballast water management, commercial investment in new systems is
likely if there is a way to implement the new systems and create
markets for them. One comment stated that nearly any system of
treatment that avoids the additional pumping cycles involved in ballast
water exchange at sea will be welcomed by ship owners because of the
savings in both manpower and fuel. The respondent indicated that an
added benefit will come from the reduction in carbon dioxide emissions.
     We concur with these comments and are actively supporting and
encouraging different technologies.
     We received seven comments about the Environmental Assessment (EA)
portion of this rulemaking. The Coast Guard will respond to these seven
comments regarding the Environmental Assessment in the EA section of
this final rule.
     We received two comments from one respondent about the question-
and-answer format of the interim rule. The first comment requested that
the Coast Guard republish the entire requirement for ballast water
management in a traditional format. The second comment stated that the
question-and-answer format is not satisfactory because many of the
existing regulations have been supplemented and are now simply
referenced. The respondent offered as an example that although the
requirements in Sec. 151.2045 are a mixture of information about
recordkeeping and reporting, the stated topic question refers only to
recordkeeping.
     In response to the first comment, the Coast Guard changed the
traditional format of the rule for better organization and clarity. We
used many of the plain language techniques to write the rule. These
writing techniques are intended to make regulations less technical and
easier to follow and understand, and are consistent with the
requirements of the Presidential Memorandum, ``Plain Language in
Government Writing'' (63 FR 31885, June 1, 1998). In response to the
second comment, the actual requirement for reporting is in
Sec. 151.2040. We feel that if we were to add reporting to the heading
of Sec. 151.2045, it may cause confusion.
     We received two comments about the timing of the effective date of
the interim rule compared to the ending date of the comment period. One
respondent indicated that it would have been preferable for the Coast
Guard to first review the public comments about the interim rule before
the rule became effective. Another respondent urged the Coast Guard to
keep the rule in an interim status to gather at least 6 months of data
and experience for evaluation before the final rule is established.
     In response to the first comment, the interim rule was developed
based on the proposed rule and the numerous comments on the proposed
rule. We do not believe that delaying the implementation of the interim
rule was warranted. More importantly, to delay implementation of that
rule would not have been in the best interests of the general public.
In response to the second comment, we understand the respondents'
concerns. We did wait to obtain 6 months of data and experience before
we moved this regulation to final rule status. We wanted to ensure that
any portions of the regulation that had been confusing to the public,
or that had been open to different interpretations than we intended,
were clarified for this final rule. This preliminary data showed an
extremely low compliance with the reporting requirement. One of the
reasons for this may be that the national program requires reports to
be submitted prior to departure from the first port of call in U.S.
waters. This is inconsistent with other CG required information, which
must be submitted prior to a vessel's arrival at a port of call in U.S.
waters. To increase compliance with these regulations, develop
consistency with other CG programs, and better monitor compliance we
have amended Sec. 151.2040(c)(4) to require that the ballast water
information be submitted prior to a vessel's arrival at their first
port of call in U.S. waters.

Comments on Specific Sections of the Rule

What Vessels Does This Subpart Apply To (Sec. 151.2005)?
     Eight comments discussed applicability to vessels. Three of these
comments indicated that the applicability section of the interim rule
is not clear.
     One comment noted that the wording in Sec. 151.2005(a) should be
changed and made consistent with Sec. 151.2005(b). One comment
indicated that the term, ``waters of the United States,'' in
Sec. 151.2005(a) is confusing and conflicts with how it is defined in
33 CFR 2.05-30 and in Sec. 151.2020(a). The comment stated that while
33 CFR 2.05-30 refers to the territorial sea as extended to 12-nautical
miles from the baseline, Sec. 151.2020(a) appears to refer to the 200-
mile EEZ. The comment suggested that we remove the reference to the
``waters of the United States'' and replace it with ``the EEZ.'' The
Coast Guard disagrees; in 33 CFR 2.05-30, navigable waters of the U.S.
extend to 3-nautical miles from the baseline. For this rule navigable
waters of the U.S. extend to 12-nautical miles from the baseline. The
phrase/term ``waters of the United States'' does not appear in
Sec. 151.2020.
     For clarification, we modified Sec. 151.2005(b) to include all
vessels equipped with ballast tanks and to emphasize that these are
additional provisions for vessels that have operated outside the EEZ.
However, the reference in Sec. 151.2020 of the interim rule referred to
the ballast water that is of concern and not ``Waters of the United
States'' or the ``EEZ.'' Please refer to the information under
Sec. 151.2020 of this preamble for a complete discussion of

[[Page 58384]]

this issue. We deleted Sec. 151.2020 and revised Sec. 151.2035(b) to
better convey what we intended.
     Three comments discussed why vessels that are not able to conduct
open ocean exchanges, because of the nature of their voyages, should be
exempt from the mandatory provisions. One comment stated that most
vessels operating in the Wider Caribbean Area and Gulf of Mexico will
find it nearly impossible to take on clean ballast in areas that are
both 200 miles from land and have a depth of water of 2000 meters. One
comment notes that the distance and depth covered in the rule only
applies to a small percent of sea area for the Gulf of Mexico. One
comment said that most itineraries of cruise ships operating in this
geographic area do not include the areas that are both 200 miles from
shorelines and 2,000 meters in depth. The comment also noted that this
would mean that most vessels would have to travel 200 miles out into
the Atlantic Ocean and back to conduct ballast water exchange or to
take on clean ballast water.
     The Coast Guard understands the concerns expressed in these
comments. But, we believe that reporting such information is essential
to future, sound decision-making. If vessels entering the EEZ from the
outside must be diverted or delayed, thereby, imposing economic costs
and increased fuel consumption and air emissions, such information is
highly relevant and is important to any future action. Therefore, it
should be reported on the Ballast Water Reporting Form.
     Three comments discussed the applicability of the regulations to
vessels declaring ``No Ballast on Board (NOBOB).'' One of these
comments questions whether a vessel that is not carrying ballast
onboard, which enters the U.S. EEZ, is expected to comply with the
reporting requirements. Other comments suggest that vessels with
ballast tanks that only contain unpumpable or residual ballast should
be exempt from the rule since these vessels do not pose an
environmental threat to U.S. waters.
     The answer to the first comment question is yes. Vessels which have
residual and unpumpable ballast onboard must still meet the reporting
requirement. Since this area has caused confusion, the Coast Guard
amended the relevant sections of the rule (Secs. 151.2005, 2040, and
2045 subpart D) to state ``equipped with ballast tanks'' in lieu of
``carrying ballast water.'' In response to the other comments, we do
not agree. NISA directs the Coast Guard to take into account, when
developing the guidelines, ``ballasting practices of vessels that enter
the waters of the United States with no ballast onboard.'' There is
concern within the United States that vessels that declare NOBOB may
still pose a potential risk for introducing nonindigenous species by
adding ballast into tanks containing residual ballast, including
sediments, then subsequently discharging this mixture into the
receiving waters. One of the first steps in determining if there is a
threat from these vessels is identifying how many of them are declaring
NOBOB and finding out the particulars about them (e.g., type, port of
call, and point of origin).
Which Vessels Are Exempt From Mandatory Requirements (Sec. 151.2010)?
     We received 16 comments about exemptions for certain vessels from
the mandatory reporting requirements. Many of these comments duplicate
those discussed in the applicability section of this preamble.
     Five of the 16 comments questioned the rationale for exempting
crude oil tankers from mandatory reporting but not exempting similar
vessels engaged in coastwise trade (e.g., chemical and product
tankers). One comment requested an explanation of the difference
between a crude oil tanker engaged in coastwise trade and other vessels
engaged in coastwise trade for the purpose of this regulation. Several
respondents mentioned whether the Coast Guard has the authority to
exempt additional classes of vessels.
     A number of the 16 exemption comments requested an exemption for
vessels that may travel outside the EEZ for brief periods or that make
repetitive voyages (e.g., vessels engaged in liner trade, non-crude-oil
vessels engaged in coastwise trade, passenger vessels trading between
the Bahamas and Florida, and container vessels in the Caribbean and
Gulf of Mexico trade). Many of these comments also requested
flexibility in meeting the reporting requirements. Suggestions offered
for modified reporting by such vessels include the following: allowing
the vessel to submit an initial report, then report by exception when
things change significantly; allowing the vessel to submit a quarterly
or annual report; allowing the vessel to submit one standard voyage
profile versus voyage-by-voyage reports; and allowing a vessel that
doesn't discharge any ballast to simply state this on the report.
     The Coast Guard acknowledges the concerns and suggestions expressed
in these comments. We took the applicability and exemptions in this
rule directly from the Act. The intent of the mandatory reporting and
recordkeeping requirements is to determine the ballasting patterns of
the U.S., including those of vessels that declare NOBOB but are
carrying residual ballast and sediments in their tanks. It is essential
for all currently non-exempt vessels to comply with the reporting
requirements so that this information will be available for future
decision-making. If we do not have sufficient reports to evaluate the
success of the voluntary program, NISA calls for the Coast Guard to
make BWE a mandatory program (16 U.S.C. 4711(f)). As it stands now, we
do not have scientific and technological support to include exemptions
for additional vessels or circumstances not specifically covered in the
Act. Therefore, we do not currently plan on exempting any additional
classes of vessels. We have however added section Sec. 151.2041 to
allow for equivalent reporting procedures for vessels that conduct
repetitive voyages. The Coast Guard believes that exemption of vessels
that operate outside the EEZ would be contrary to the intent of NISA.
There is a growing concern in the United States over the discharge of
even domestic ballast water, so the information from the vessels
referred to here may be essential in determining any future actions.
     One exemption comment suggested that tugs and unmanned barges be
exempt from the rule.
     As indicated previously, the Coast Guard took the applicability and
exemptions in this rule directly from the Act. To expand the exemptions
currently granted under NISA, either the law would need to be amended
to specifically grant additional exemptions, or the proposed exemption
must fit within a fair interpretation of the existing Act. The Coast
Guard does not believe that any of the exemptions proposed by the
commenters meet this criterion. Therefore, it is important for all
currently non-exempt vessels to comply with the reporting requirement,
as this will provide essential information to aid future decision-
making. For example, in many situations, it may be inherently unsafe to
conduct an exchange of ballast by an unmanned barge. If this situation
occurs, it should be reported on the ``Ballast Water Reporting Form''
because it is important information that would be helpful in future
decision-making. Alternatively, if technology is developed that would
be applicable to barges and tugs, it is expected that these vessels
might be able to treat their ballast water, thereby eliminating the
need for ballast exchange.

[[Page 58385]]

     One of the 16 exemption comments mentioned that the term ``same
location'' referenced in Sec. 151.2010(d) is vague and could be better
defined.
     The intent of Sec. 151.2010(d) is to exempt vessels that leave a
berth in a specific port, conduct a voyage that takes them outside the
EEZ (where they take on ballast to compensate for things such as the
fuel burned and heavy-weather compensation), then return to roughly the
same berth in the same port, without taking on any ballast other than a
type that would be acceptable as an open ocean exchange.
     One exemption comment requested that Sec. 151.2010(a) be revised to
read ``the master, operator, or person-in-charge of the vessel must
operate, or ensure the operation of, the treatment system as
designed.''
     Our intent is that the treatment system must be operated as
designed during discharges of ballast water into the United States. We
have amended Sec. 151.2010(b) to clarify this point.
To What Ballast Water Does This Subpart Apply (Sec. 151.2020)?
     We received seven comments about ballast water applicability. These
comments indicated that this section is unclear.
     We agree with these comments. The reference in Sec. 151.2020 as it
appeared in the interim rule referred to the ballast water that is
taken on a vessel that would pose a greater risk to the receiving
environment. This is ballast water most likely to carry species that
can survive in the waters of the United States. This includes any water
taken on from a continental shelf or island plateau. The reference in
Sec. 151.2035(b)(1) as it appeared in the interim rule referred to what
waters are acceptable to conduct an exchange. To clarify these
differences, we deleted Sec. 151.2020 and inserted into
Sec. 151.2035(b), the statement ``that was taken on in areas less than
200 miles from any shore or in waters less than 2000 meters deep.'' We
have also revised Sec. 151.2035(b)(1) for clarity and consistency.
What Definitions Apply to This Subpart (Sec. 151.2025)?
     We received two comments about definitions. One comment asked us to
define and clarify the term ``high seas'' as it relates to the EEZ.
     ``High seas'' means the ``parts of the sea that are not included in
the EEZ, in the territorial sea or in the internal waters of a State,
or in the archipelagic waters of an archipelagic State.'' We have
amended Sec. 151.2010(d) to clarify that what was intended by the
referral to high seas in that section was areas that would be
acceptable for open ocean exchange.
     One comment asked us to define what a crude oil tanker is for the
purpose of this rule.
     In 46 U.S.C., ``crude oil tanker'' is defined as a tanker engaged
in the trade of carrying crude oil.
Who Is Responsible for Determining When To Use the Safety Exemption
(Sec. 151.2030)?
     We received eight comments about safety. The majority of these
comments said that the safety of the vessel and crew must be the number
one consideration in any ballast management effort. One comment thanked
us for recognizing the importance of safety and the importance of the
master's role in ensuring safety. One comment stated that the two
methods of ballast water exchange defined in the rule are not safe for
container ships, and it requested that we consider regulations that
would continue to give the master discretion to consider the safety of
the vessel before performing deep-sea ballasting operations. One
comment explained that a flow-through exchange creates safety concerns
for operating personnel on deck, who may be, because of large
quantities of water flowing on deck, subject to personal injury by
slips and falls. Five comments noted that safety should be the first
consideration and vessel owners or operators should not be charged with
noncompliance if the reason for noncompliance is safety of the vessel
and its crew. Two of the five comments stated that if a vessel does not
comply with the voluntary guidelines for safety reasons, it should not
be placed in the noncompliance category. One comment said that if such
vessels were listed in the noncompliance category, it would skew data
toward mandatory requirements in the future.
     The Coast Guard supports these statements. We believe that safety
of the vessel, its crew, the cargo, and the environment are of
paramount importance, and we will continue to focus on this area in the
regulations. The Coast Guard also recognizes that ballast water
exchange is not the ultimate solution to reducing the influx of
organisms carried in ballast water. We understand that simply due to
the nature of their voyage, many ships cannot conduct ballast exchange.
We will continue to encourage advances in methods of treating ballast
water. We will consider applicable laws, regulations, and the
consequences of a treatment before we approve any method. The Coast
Guard encourages companies to continue to research and develop other
ballast control methods. In addition, the Coast Guard supports the
position that vessels that do not comply with the voluntary guidelines
for safety reasons should not be placed in the noncompliance category.
Therefore, we have taken the same position in this regard as the
Aquatic Nuisance Species Task Force (ANSTF) Effectiveness Criteria
Committee.
What Are the Voluntary Ballast Water Management Guidelines
(Sec. 151.2035)?
     We received twelve comments concerning voluntary ballast-water
management guidelines. Three of these comments related to exemptions
for vessels whose routes do not take them into waters that are both 200
miles from land and have a depth of 2000 meters. You may refer to the
discussion under Sec. 151.2005 for the Coast Guard's response.
     One of the comments about the voluntary guidelines requested that
the Coast Guard reduce the depth requirement for an acceptable open
ocean exchange for the Gulf of Mexico because the 2000-meter
requirement is not warranted.
     The Coast Guard does not plan to change the depth requirement until
international agreement, based on sound scientific evidence, is
reached. We request that affected vessels note on their ``Ballast Water
Reporting Form'' estimates of the delay and distance they experience if
they have to divert to accomplish an open ocean exchange. This
information is essential to future decision-making.
     One of the comments about the voluntary guidelines stated that
Sec. 151.2035 should specify a minimum period of time a U.S. coastwise
vessel must operate beyond the EEZ before the reporting requirements
and ballast exchange provisions apply.
     In response to this comment, please see the discussion under
Sec. 151.2005.
     One comment posed three questions about vessels engaged in domestic
trade: (1) Isn't the intent of the Act to stop the introduction and
spread of ANS? (2) What other ballast water methods are enforceable on
domestic trade? (3) Will these other methods be enforced?
     The Coast Guard recognizes the importance of these questions. In
Sec. 151.2035(a), we have included guidelines (precautionary practices)
for all vessels equipped with ballast tanks that operate in waters of
the United States. However, the Act doesn't give the Coast Guard the
authority to require owners and operators of vessels engaged in
domestic trade to perform ballast

[[Page 58386]]

water management methods such as ballast water exchange. Currently we
are encouraging technological solutions for the treatment of ballast
water. We will pursue implementation and enforcement of regulations
regarding the transport of aquatic nuisance species by ballast water to
the extent of the authority granted to us by Congress.
     One comment concerns precautions for the quality of the water used
as ballast water as referenced in Sec. 151.2035(a) and suggests that
the Coast Guard or other agency publish the ports and other locations
that have water containing the noted harmful agents.
     The Coast Guard recognizes that some waters may pose higher risks
of containing potential invasive species than other waters. However, it
has not been proven that any given water body is completely free from
risk. Historical patterns show that zebra mussels may have been shipped
for more than 50 years before they established a sustainable population
in the Great Lakes and before they became a nuisance species.
Therefore, we have determined that we must proceed using the premise
that any port may be a threat.
     Two comments discussed reception facilities. One of these comments
noted that the definition of ``adequate facility'' is unclear. The
other comment stated that the Coast Guard should publish the details of
where and when the reception facilities mentioned in
Sec. 151.2035(b)(4) are available and what the costs are for using
these facilities.
     An approved or ``adequate facility'' would be one that the Coast
Guard has accepted to be at least as effective as ballast water
exchange in treating ballast water to reduce the risk of invasive
species. The suggestion to publish the information about any ballast
water reception facility that may be approved for the treatment of
aquatic nuisance species in the future is a good one. This type of
information would most likely be published through a ``Local Notice To
Mariners,'' which would be included in the ``Coast Pilot,'' as
appropriate. However, the publication of costs would appropriately be
the responsibility of the facility itself.
     One comment regarding publicly-owned treatment plants stated that
the responsibility to comply with 33 CFR 151, including sediment
disposal, should stay with the vessel operators, not public ports, and
the Coast Guard should avoid requiring port authorities to employ
publicly-owned treatment plants.
     This requirement is to ensure that vessel representatives are aware
that disposal of sediments within the United States must be done per
existing regulations or laws, such as those of the Animal and Plant
Health Inspection Service. The Coast Guard did not add any regulation
of sediment disposal within this regulation. We reaffirmed the existing
requirements for the disposal of soil brought into the United States
that exist under 7 CFR part 330.
     One comment stated that the final rule should require mandatory
ballast water exchange in the same vein as it requires mandatory
recordkeeping.
     The Coast Guard has determined that the regulations adopted in this
rule accurately reflect the requirements of the Act. Those regulations
direct the Coast Guard to develop ``Voluntary Guidelines,'' unless it
is demonstrated after a minimum trial period of 2 years that this level
of guidelines does not offer an acceptable level of protection for the
waters of the United States. The Coast Guard is preparing a report on
the effectiveness of the voluntary guidelines to Congress, which must
also precede any mandatory program. The Coast Guard considers this
regulation to represent the most practical and effective ballast water
management method available at this time. However, we cannot rule out
the possibility of mandatory BWE in the future. Additionally, we will
continue to support and encourage the development of more efficient and
effective methods of protecting waters of the United States from non-
indigenous aquatic nuisance species.
     One comment recommended deleting the suggestion in
Sec. 151.2035(b)(2) to retain ballast water onboard because it is not a
workable solution.
     We do not agree with this comment. Many vessels do retain ballast
onboard. They shift ballast as needed to control the stress and
stability of the ship. This method of ballast management is a
legitimate practice that reduces the discharge of untreated ballast,
and we will continue to recognize it as such.
What Are the Mandatory Requirements for Vessels Carrying Ballast Water
Into the Waters of the United States After Operating Beyond the EEZ
(Sec. 151.2040)?
     We received 13 comments about the mandatory reporting requirements.
Many of these comments were requesting clarification of applicability
or requesting exemptions from the mandatory reporting and recordkeeping
of ballast water practices. They are appropriately discussed in
Sec. 151.2005 and Sec. 151.2010.
     The Coast Guard believes it is important for compliance to be made
as efficient as possible for all concerned. Therefore, we have added to
Sec. 151.2041 a vehicle for parties to request alternative methods of
reporting. As previously discussed, the information from all vessels,
including those not discharging ballast, will be essential to make
practical, enforceable regulations that accomplish the intended purpose
and to make sound recommendations to Congress for future legislative
action.
     One comment requested that the Coast Guard clarify Sec. 151.2045 to
state that the reporting requirement doesn't apply to operators on
voyages in areas less than 200 miles from the baseline of the U.S.
     This comment appeared to misinterpret that the reporting
requirement is triggered by the fact that a vessel has operated beyond
the EEZ. We apologize for any confusion that may have been caused by
our discussion on page 26676 in the preamble of the interim rule. We
used the phrase ``generally 200 miles seaward of the baseline,''
however, we did not emphasize it throughout the example. While the
seaward boundary of the EEZ is 200 miles from the baseline in much of
the United States, there are areas where it differs. Such areas include
portions of Florida, New England, Southern California, Texas, Alaska
and Washington State, where the EEZ limit is less than 200 miles from
the baseline. The Act tasks the Coast Guard with specific
responsibilities for ``a vessel that is carrying ballast water into the
waters of the United States after operating beyond the Exclusive
Economic Zone.'' To effectively fulfill these responsibilities and make
sound decisions for further action, we must gather the information for
all vessels entering the waters of the U.S. after operating beyond the
EEZ, including those vessels declaring NOBOB, which contain residual
and unpumpable ballast.
     Two comments indicate that the requirements for remitting the
report appear burdensome for the master of the vessel. One respondent
says that it would be easier for the vessel's captain to send
information to the nearest Coast Guard office 24 hours before the
vessel arrives in a particular port. Then the Coast Guard office could
send the information to the National Ballast Water Information
Clearinghouse (NBIC) or appropriate Captain of the Port. We agree that
it may be easier for the vessel master to submit the required
information prior to entry in U.S. waters as this would be consistent
with other Coast Guard programs and activities. Therefore, we are
amending paragraph 151.2040(c)(4) to require vessels entering a U.S.
port to submit the required ballast water management

[[Page 58387]]

practices information before the vessel arrives at the first port of
call in the waters of the United States. However, we disagree that it
would be easier to submit the report to the local Coast Guard office.
We believe a centralized location that all reports are sent to creates
less burden to all parties then creating ``middle men'' to obtain and
forward the reports. For the majority of the United States, the report
can be mailed, faxed, or transmitted electronically to the NBIC. It may
be sent by the master, owner, operator, agent, or person-in-charge of a
vessel. The only areas in which there is no need to submit the ballast
water information to the centralized location (NBIC) are those areas
that had existing programs prior to the development of a national
program. Vessels in those areas, the Great Lakes and Hudson River north
of the George Washington Bridge, where ballast management practices are
mandatory, report directly to the appropriate Captain of the Port 24
hours prior to entry by the means detailed in Sec. 151.2040(c)(1),
(c)(2), and (c)(3).
What Are the Mandatory Recordkeeping Requirements (Sec. 151.2045)?
     The comments on Sec. 151.2045 duplicate the comments already
discussed in this preamble.
What Methods Are Used To Monitor Compliance With This Subpart
(Sec. 151.2050)?
     We received three comments about this section of the rule.
     One comment indicated that the final rule should adequately
describe the sampling procedures that the Coast Guard will use to
monitor compliance as required by the Act.
     Current sampling procedures are appropriately described in the
Coast Guard ``Navigation and Inspection Circular'' 08-99 (NVIC 08-99).
You may view this NVIC at <A 
HREF="http://www.uscg.mil/hq/g-m/nvic/8-99/n8-99.pdf";>http://www.uscg.mil/hq/g-m/nvic/8-99/n8-
99.pdf</A>.
     One comment stated that the Coast Guard cannot make a sound and
supportable recommendation to Congress at the end of the ``voluntary''
period based only on results from a verification test that all parties
agree is inadequate. Another comment urged the Coast Guard to increase
its focus on substantial testing so that an adequate verification test
can be released as soon as possible.
     The Coast Guard is using multiple means to verify compliance with
the voluntary ballast water management. These means include a
statistically significant number of Coast Guard boardings to determine
the validity of reports that were submitted to the NBIC, a comparison
of reports received with the number of vessel arrivals as determined by
the Maritime Administration, and spot-checks of the salinity of ballast
water carried on vessels that are boarded. While we are actively
pursuing more definitive physical, biological, and chemical parameters
to definitively verify that open ocean exchange has been conducted,
salinity will likely remain as an effective screening parameter to show
when one was not conducted.
What Must Each Application for Approval of an Alternative Compliance
Technology Contain (Sec. 151.2060)?
     The Coast Guard received two comments about this section of the
rule. One comment noted that there is a need for a clearly defined
approval process for new compliance technology that should follow
internationally agreed-upon standards. A second respondent urged the
ANS Task Force to give sufficient attention to the development of this
approval process.
     The Coast Guard is currently working with Agencies of the ANSTF to
develop publishable standards and protocols for acceptance. In the
interim, approval will be on a case-by-case basis through Commandant
(G-MSO-4).
What Is the Standard of Adequate Compliance Determined by the ANSTF for
This Subpart (Sec. 151.2065)?
     One comment urged the ANS Task Force to give sufficient attention
to the development of the criteria to measure alternative compliance
methods. Another comment said that by not having effectiveness criteria
available at the onset of the evaluation, it is unknown if compliance
with the voluntary guidelines will be sufficient to prevent the need
for mandatory provisions. This, therefore, places vessel owners and
operators at a significant disadvantage in making informed decisions
regarding research, investment, and alternative compliance measures.
     We respect this opinion. However, we feel that delay of the
rulemaking while awaiting the Aquatic Nuisance Species Task Force's
report of adequate compliance would not be in the best interests of the
general public. We have informed the ANSTF of our concerns and the
paramount importance of providing these criteria.

Appendix to Subpart D of Part 151--Ballast Water Reporting Form

     The Coast Guard received eight comments about the ``Ballast Water
Reporting Form.'' Most of the comments expressed concern that the form
is too detailed in scope, and the information requested is not needed
or is duplicative of what is already carried onboard the vessel.
Several comments recommended that an abridged report along with
existing information carried onboard the vessel be accepted as an
alternative. One comment requested that the Coast Guard simplify the
form in future revisions.
     The Coast Guard will not currently make any changes to the form
published in the interim rule. At this stage of the program, all the
information that is required is considered essential to make sound
decisions. We have, however, added provisions within this rule to allow
for equivalent means of reporting (Sec. 151.2041).

Regulatory Evaluation

     This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget (OMB)
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979).
     The Coast Guard expects the economic impact of this rule to be so
minimal that a full Regulatory Evaluation under paragraph 10e of the
regulatory policies and procedures of DOT is unnecessary.

Summary of Costs

     The rule will cost industry the time and resources it will take to
submit the paperwork required by this rule. A vessel's officer is
likely to be the person tasked with completing the report, so we based
our (revised) estimate on the current annual salary for a third mate on
a U.S. merchant vessel. We accounted for overtime/the possibility of
higher-salaried officers completing some reports, and included
administrative costs ($9 per report for photocopying, etc.). We
calculated that it will cost approximately $60 to submit each report.
The following equation illustrates the calculation:

$151,464  2,080 hours  x  .67 hours + $9=$60

     We used the U.S. Coast Guard Marine Safety Management System (MSMS)
to determine that this rule will apply to 30,877 vessel transits (this
includes transits on the Great Lakes). We multiplied the cost of each
report ($60) by the number of vessel arrivals from outside the EEZ
(30,877) to get a total annual cost of $1,852,620. The following
equation illustrates the calculation:


[[Page 58388]]


$60  x  30,877=$1,852,620

     The rule will cost the Federal government the time it will take
Coast Guard personnel to review ballast water management record
information. The Coast Guard will add 30 E-5 billets to verify
compliance and collect the information this rule will require.
Commandant Instruction 7310.1E states that the hourly cost for an E-1
to E-5 range billet is $15 per hour. This translates to a yearly cost
of $31,200 per billet (2080  x  $15=$31,200). Therefore, the cost of 30
billets will equal $936,000 ($31,200  x  30=$936,000). We estimate that
the total cost to the Coast Guard to collect and send the appropriate
paperwork to the National Ballast Water Information Clearinghouse
(NBIC) is $75,000. The total annual cost was calculated as illustrated
in the following equation:

30 [billets]
x  $2,500 [administrative costs]=$75,000

     The Coast Guard will also allocate $450,000 per year to the NBIC.
The NBIC will provide analysis, synthesis, and interpretation of data
collected under the Act. Therefore, the total government cost of this
rule is $1,311,000 annually. The total government cost was calculated
as illustrated in the following equation:

$936,000 + $450,000 + $75,000=$1,461,000

Summary of Benefits

     This rule is the next step in an ongoing effort to reduce the
numbers of non-indigenous species invading the waters of the United
States.
     According to the U.S. Congress' Office of Technology Assessment,
``Harmful Non-Indigenous Species in the United States,'' the economic
impact on the United States from introductions of non-indigenous
species has exceeded several billion dollars through--
      Efforts to prevent and reduce further infestations;
      Repairs of damage to various infrastructures; and
      Lost revenues.
     For example, the Great Lakes Fishery Commission estimates the
European Ruffe, a fish that entered the Great Lakes via expelled
ballast water in the early 1980's, could cause annual losses of $90
million if it is not controlled.
     As international maritime trade continues to expand, the economic
impact of non-indigenous species invasions will continue to increase.
This increase may necessitate more extensive long-term control efforts,
including improving ballast-water management practices. The reporting
requirements in this rule will allow the Coast Guard to receive the
information we need to make decisions on what measures may be required
in the future to help solve the aquatic nuisance species problem.

Impact on Small Entities

     Under the provisions of the Regulatory Flexibility Act (5 U.S.C.
601-612), we considered whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities,'' include small businesses, not-for-profit organizations that
are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
     The rule applies to any vessel with ballast tanks entering the
waters of the United States after operating beyond the EEZ. Vessels
engaged in coastwise trade (within the EEZ) and passenger vessels
equipped with treatment systems designed to eliminate aquatic species
in their ballast tanks will be exempt from the mandatory provisions of
the rule. The rule requires vessel operators to report their ballast
water management efforts. We estimate that each report will cost the
vessel operator $60. This sum is very low on an absolute dollar basis.
We believe that it will account for a very low percentage of the
operating costs of even the smallest commercial vessel operations. For
this reason, the Coast Guard certifies under 5 U.S.C. 605(b) that the
rule will not have a significant economic impact on a substantial
number of small entities.

Assistance for Small Entities

     Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offers to
assist small entities in understanding this rule so that they can
better evaluate its effects on them and participate in the rulemaking
process. If your small business or organization is affected by this
rule and you have questions concerning its provisions or options for
compliance, please contact Lieutenant Commander Mary Pat McKeown,
Project Manager, Office of Operating and Environmental Standards (G-
MSO) at 202-267-0500.
     The Small Business and Agriculture Regulatory Enforcement Ombudsman
and 10 Regional Fairness Boards were established to receive comments
from small businesses about Federal agency enforcement actions. The
Ombudsman will annually evaluate the enforcement activities and rate
each agency's responsiveness to small business. If you wish to comment
on the enforcement actions of the Coast Guard, call 1-888-REG-FAIR (1-
888-734-3247).

Collection of Information

     The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520) require the Office of Management and Budget (OMB) to review
each rule that contains a collection-of-information. The Office of
Management and Budget must determine if the practical value of the
information is worth the burden of collecting the information.
Collection-of-information requirements include reporting,
recordkeeping, notification, monitoring, posting, labeling, and other,
similar requirements.
     This rulemaking will require the owner or operator of a vessel with
ballast tanks, entering the waters of the United States from outside
the EEZ, to submit paperwork to the Coast Guard. The paperwork will
document the owner's or operator's ballast water management practices.
The provisions of the Act require the Coast Guard, in consultation and
cooperation with the Aquatic Nuisance Species Task Force and the
Smithsonian Institution Environmental Research Center, to develop and
maintain the NBIC. The purpose of the NBIC is to determine the patterns
of ballast water delivery and management in the waters of the United
States. The information obtained from the mandatory reports that owners
and operators must submit will be entered into a database at the NBIC.
This rule requires submission of the following information:
      Vessel type, owner or operator, gross tonnage, call sign,
and Port of Registry (Flag).
      Port of arrival, vessel agent, last port and country of
call, and next port and country of call.
      Total ballast water capacity, total volume of ballast
water onboard, total number ballast water tanks, and total number of
ballast water tanks in ballast.
      Total number of ballast tanks/holds that are to be
discharged into the waters of the United States or at a reception
facility, the number of tanks that were exchanged or treated using an
alternative method of compliance, type of alternative compliance
method, if used for treatment, whether the vessel has a ballast water
management plan and IMO guidelines onboard, and whether the ballast
water management plan was used.
      Origin of ballast water--this includes date(s),
location(s), volume(s), and temperature(s) (if a tank has been
exchanged, this is the ballast water that was taken on in port and then
replaced during the exchange).
      For any ballast water exchanged or treated, date(s),
location(s), volume(s),

[[Page 58389]]

method, thoroughness (percentage exchanged if exchange conducted), sea
height at time of exchange if exchange conducted.
      Expected date, location, volume, and salinity of any
ballast water to be discharged into the waters of the United States or
at a reception facility.
      Location of the facility used for disposal of sediment
carried into the waters of the United States, if sediment is to be
discharged within the jurisdiction of the United States.
     If we did not require owners or operators to provide this
information, it would be impossible to produce the studies and
congressional reports on ballast water management patterns that the
provisions of the Act require.
     The Coast Guard will use the information to--
      Ensure that an owner or operator has complied with the
ballast water management regulations; and
      Assess the rate of compliance with the voluntary
guidelines listed in the rule.
     As stated under the Regulatory Evaluation section of this document,
the vessel's officer is likely to be the person tasked with completing
the report, so we based our revised cost estimate on the current annual
salary for a third mate on a U.S. merchant vessel. Overtime, the
possibility of more senior officers completing the report, and
administrative costs were taken into account. We calculated that it
will cost $60 to submit each report. We used the U.S. Coast Guard
Marine Safety Management System to determine that this rule will apply
to 30,877 vessel transits (this includes transits on the Great Lakes).
We multiplied the cost of each report ($60) by the number of vessel
arrivals from outside the EEZ (30,877) to get a total annual cost of
$1,852,620. In the interim rule the annual burden hours on industry of
20,585 and the cumulative burden for 3 years of 61,755 hours were not
correct. The correct annual burden on industry will be 20,688 hours per
year, and the cumulative burden for 3 years is 62,064 hours.
     The title and description of the information collection, a
description of the respondents, and an estimate of the total annual
burden follow. Included in the estimate is the time for reviewing
instructions, searching existing sources of data, gathering and
maintaining the data needed, and completing and reviewing the
collection.
     Title: Implementation of the National Invasive Species Act of 1996
(NISA)
     Summary of Collection of Information: This rule contains
collection-of-information requirements in the following sections:
Secs. 151.2040 and 151.2045.
     Need for Information: This rule will require owners or operators of
each vessel with ballast water tanks, who enter the United States after
operating outside the EEZ, to provide to the U.S. Coast Guard
information regarding ballast water management practices.
     Proposed Use of Information: The information is needed to ensure
that the mandatory ballast water management regulations are complied
with prior to allowing the vessel to enter U.S. ports, and to assess
the effectiveness of the voluntary guidelines. The information will be
used by the Coast Guard Headquarters staff and researchers from both
private and other governmental agencies to assess the effectiveness of
voluntary ballast-water management guidelines for vessels with ballast
tanks that enter U.S. waters after operating outside the EEZ. The
information will be provided to Congress on a regular basis as required
by the Act.
     Description of the Respondents: Any vessel (owner or operator) with
ballast tanks entering U.S. waters after operating outside the EEZ.
     Number of Respondents: 30,877 vessel entries.
     Frequency of Response: Whenever a vessel with ballast tanks enters
the United States after operating outside the EEZ.
     Burden of Response: 40 minutes per respondent.
     Estimated Total Annual Burden: 20,688 hours.
     As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Coast Guard has submitted a copy of this rule to OMB for its
review of the collection of information. OMB has approved the
collection. The approval for the Ballast Water Reporting Form, and the
corresponding OMB Control Number 2115-0598, expires on August 31, 2002.
     You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.

Federalism

     The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 13132 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.

Unfunded Mandates

     Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) [Pub.
L. 104-4, 109 Stat. 48]
requires Federal agencies to assess the effects
of certain regulatory actions on State, local, and tribal governments,
and the private sector. The Unfunded Mandates Reform Act requires a
written statement of economic and regulatory alternatives for rules
that contain Federal mandates. A ``Federal mandate'' is a new or
additional enforceable duty imposed on any State, local, or tribal
government, or the private sector. If any Federal mandate causes those
entities to spend, in the aggregate, $100 million or more in any one
year, the UMRA analysis is required. This rule will not impose Federal
mandates on any State, local, or tribal governments, or the private
sector.

Taking of Private Property

     This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

     This rule meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.

Protection of Children

     We have analyzed this rule under E.O. 13045, Protection of Children
from Environmental Health Risks and Safety Risks. This rule is not an
economically significant rule and does not concern an environmental
risk to health or risk to safety that may disproportionately affect
children.

Indian Tribal Governments

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

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 because it is not a ``significant
regulatory action'' under Executive Order 12866 and 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

[[Page 58390]]

Information and Regulatory Affairs as a significant energy action.
Therefore, it does not require a Statement of Energy Effects under
Executive Order 13211.

Environment

     The Coast Guard considered the environmental impact of this rule
and concluded that preparation of an Environmental Impact Statement is
not necessary. An Environmental Assessment and Finding of No
Significant Impact are available in the docket for inspection or
copying where indicated under ADDRESSES.
     The Coast Guard is establishing voluntary guidelines for all
vessels equipped with ballast tanks that operate in waters of the
United States. The Coast Guard is also establishing additional
voluntary ballast water management guidelines and mandatory reporting
requirements for all vessels carrying ballast water into the waters of
the United States after operating beyond the EEZ. These reporting
requirements are intended to monitor the level of participation by
vessels in the voluntary national guidelines program. If participation
levels in this program are inadequate, the Act requires the Secretary
of Transportation to mandate the ballast water management guidelines.
Once reported, the information will be used to develop and maintain a
ballast water information clearinghouse, which will monitor the
effectiveness of the program and identify future needs for better
protecting domestic waters from the introduction of invasive species.
     The Coast Guard has considered the implications of the Coastal Zone
Management Act (16 U.S.C. 1451, et seq.) with regard to this
rulemaking. Under this Act, the Coast Guard must determine whether the
activities proposed by it are consistent with activities covered by a
federally approved coastal zone management plan for each State, which
may be affected by this federal action. A listing of the 29 States and
Territories with federally approved coastal zone management plans can
be found in Appendix B of the Environmental Assessment for this
rulemaking.
     The Coast Guard has determined that voluntary ballast water
management guidelines and mandatory reporting requirement, will have no
effect on the coastal zones of the listed States and Territories. In
addition, the Coast Guard found the regulations in the interim rule
were consistent, to the maximum extent practicable, with the
enforceable policies of the federally approved coastal zone management
plan and submitted a consistency determination to that effect. The
State Administrator's for each listed State and Territory with coastal
zone management plans responded, concurring with the Coast Guard
consistency determination that implementing voluntary guidelines for
ballast water management and mandatory reporting requirement would be
consistent with their respective coastal zone management plans.
     Seven comments on the interim rule specifically addressed items in
the Environmental Assessment. Several comments mentioned that the
assessment should have considered and discussed mandatory ballast water
exchange as an alternative means of controlling the spread of ANS.
     The Coast Guard agrees with this comment and has added mandatory
ballast water exchange to the list of alternatives evaluated in the
Environmental Assessment.
     One comment recommended that if we do not address mandatory ballast
water exchange, we should consult with the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service under section 7 of
the Endangered Species Act (16 U.S.C. 1531, et seq.). Then, we should
publish the results of these consultations in the final rule.
     The Coast Guard provided the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service with a copy of the 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 assessment that this rule will not significantly
impact listed species or their critical habitats.
     Another comment indicated that all treatment approaches should be
assessed by the same performance standards and the assessment should be
written to reflect consistency.
     The Coast Guard assessed the alternative ballast water management
methods that are being considered for approval to determine if they met
the need and purpose of the proposed action as defined in the
environmental assessment.
     One comment indicated that the evaluation of alternative solutions
to ballast water exchange must be based on scientific, objective
evaluations, and they must be compared to defensible standards of
effectiveness for controlling the invasion and spread of ANS.
     The Environmental Assessment for this rulemaking addressed the
environmental considerations required under the National Environmental
Policy Act (NEPA) and the Coast Guard's NEPA procedures and policies--
as specified in, ``National Environmental Policy Act: Implementing
Procedures and Policy for Considering Environmental Impacts'' COMDTINST
M16475.1C. The Environmental Assessment discussed the effects of
implementing voluntary ballast water management guidelines and
mandatory reporting versus taking a no-action alternative and not
implementing voluntary guidelines and mandatory reporting. Therefore,
the regulations to implement provisions of the Act concerning ballast
water control, when using voluntary guidelines for ballast water
management and mandatory reporting requirements, will not have a
significant impact on the environment.

List of Subjects in 33 CFR Part 151

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


     For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 151 subparts C and D as follows:

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

* * * * *

Subpart C--Ballast Water Management for Control of Nonindigenous
Species in the Great Lakes and Hudson River

     1. The authority citation for part 151 subpart C continues to read
as follows:

     Authority: 16 U.S.C. 4711; 49 CFR 1.46.


     2. Amend Sec. 151.1510 by revising paragraph (a)(1) to read as
follows:


Sec. 151.1510  Ballast water management.

     (a) The master of each vessel subject to this subpart shall employ
one of the following ballast water management practices:
     (1) Carry out an exchange of ballast water on the waters beyond the
EEZ, from an area more than 200 nautical miles from any shore, and in
waters more than 2,000 meters (6,560 feet, 1,093 fathoms) deep, prior
to entry into the Snell Lock, at Massena, New York, or prior to
navigating on the Hudson River, north of the George Washington Bridge,
such that, at the conclusion of the exchange, any tank from which
ballast water will be discharged contains water with a minimum salinity
level of 30 parts per thousand.
* * * * *

[[Page 58391]]


     3. Amend Sec. 151.1516 by revising paragraph (a) introductory text
to read as follows:


Sec. 151.1516  Compliance monitoring.

     (a) The master of each vessel subject to this subpart shall
provide, as detailed in Sec. 151.2040, the following information, in
written form, to the COTP:
* * * * *

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

     4. The authority citation for part 151 subpart D continues to read
as follows:

     Authority: 16 U.S.C. 4711; 49 CFR 1.46.


     5. Amend Sec. 151.2005 by revising paragraph (b) to read as
follows:


Sec. 151.2005  To which vessels does this subpart apply?

* * * * *
     (b) In addition, Secs. 151.2035(b) through 151.2065 apply to all
vessels, U.S. and foreign, equipped with ballast tanks, that enter the
waters of the United States after operating beyond the Exclusive
Economic Zone, except those vessels exempted in Sec. 151.2010 and
Sec. 151.2015.

     6. Amend Sec. 151.2010 by revising paragraphs (b) and (d) to read
as follows:


Sec. 151.2010  Which vessels are exempt from the mandatory
requirements?

* * * * *
     (b) A passenger vessel equipped with a functioning treatment system
designed to kill aquatic organisms in the ballast water. The treatment
system must be utilized for ballast water discharged into the waters of
the United States and it must operate as designed.
* * * * *
     (d) A vessel that will discharge ballast water or sediments only at
the same location where the ballast water or sediments originated. The
ballast water or sediments must not mix with ballast water or sediments
other than those taken on in areas more than 200 nautical miles from
any shore and in waters more than 2,000 meters (6,560 feet, 1,093
fathoms) deep.


Sec. 151.2020  [Removed]

     7. Remove Sec. 151.2020.

     8. Amend Sec. 151.2035 by revising paragraph (b) (1) to read as
follows:


Sec. 151.2035  What are the voluntary ballast water management
guidelines?

* * * * *
     (b) In addition to the provisions of Sec. 151.2035(a), you (the
master, operator, or person-in-charge of a vessel) are requested to
employ at least one of the following ballast water management
practices, if you carry ballast water, that was taken on in areas less
than 200 nautical miles from any shore or in waters less than 2000
meters deep, into the waters of the United States after operating
beyond the EEZ:
     (1) Exchange ballast water on the waters beyond the EEZ, from an
area more than 200 nautical miles from any shore, and in waters more
than 2,000 meters (6,560 feet, 1,093 fathoms) deep, before entering
waters of the United States.
* * * * *

     9. Amend Sec. 151.2040 by revising the section heading and
paragraphs (c)(1), (c)(2), and (c)(4)(ii); and by adding
Sec. 151.2040(c)(4)(iv) to read as follows:


Sec. 151.2040  What are the mandatory requirements for vessels equipped
with ballast tanks that enter the waters of the United States after
operating beyond the Exclusive Economic Zone (EEZ)?

* * * * *
     (c) The master, owner, operator, agent, or person-in-charge of a
vessel entering the waters of the United States after operating beyond
the EEZ, unless specifically exempted by Secs. 151.2010 or 151.2015,
must provide the information required by Sec. 151.2045 in electronic or
written form to the Commandant, U.S. Coast Guard or the appropriate
COTP as follows:
     (1) For a United States or Canadian Flag vessel bound for the Great
Lakes. You must fax the required information to the COTP Buffalo,
Massena Detachment (315-764-3283), at least 24 hours before the vessel
arrives in Montreal, Quebec.
     (2) For a foreign flagged vessel bound for the Great Lakes. You
must--
     (i) Fax the required information to the COTP Buffalo, Massena
Detachment (315-764-3283), at least 24 hours before the vessel arrives
in Montreal, Quebec; or
     (ii) Complete the ballast water information section of the St.
Lawrence Seaway required ``Pre-entry Information from Foreign Flagged
Vessels Form'' and submit it in accordance with the applicable Seaway
Notice.
     (3) * * *
     (4) For a vessel not addressed in paragraphs (c)(1), (c)(2), and
(c)(3) of this section. Before the vessel arrives at the first port of
call in the waters of the United States, you must--
     (i) * * *
     (ii) Transmit the information electronically to the NBIC at <A 
HREF="http://invasions.si.edu/ballast.htm";>http://
invasions.si.edu/ballast.htm</A> or e-mail it to <A 
HREF="mailto:ballast@serc.si.edu";>ballast@serc.si.edu</A>; or
     (iii) * * *
     (iv) A single report that includes the ballast discharge
information for all U.S. ports that will be entered during this voyage
will be accepted unless the vessel exits the EEZ during transits.

     10. Add Sec. 151.2041 to subpart D to read as follows:


Sec. 151.2041  Equivalent Reporting Methods for vessels other than
those entering the Great Lakes or Hudson River

     (a) For ships required to report under Sec. 151.2040(c)(4) the
Chief, Environmental Standards Division (G-MSO-4), acting for the
Assistant Commandant for Marine Safety and Environmental Protection (G-
M) may, upon receipt of a written request, consider and approve
alternative methods of reporting if:
     (1) Such methods are at least as effective as that required by
Sec. 151.2040(c)(4); and
     (2) Compliance with the requirement is economically or physically
impractical.
     (i) The Chief, Environmental Standards Division (G-MSO-4) will take
approval or disapproval action on the request submitted in accordance
with paragraph (a) of this section within 30 days of receipt of the
request.
     (ii) [Reserved].

     11. Amend Sec. 151.2045 by revising the section heading and
paragraph (a) introductory text to read as follows:


Sec. 151.2045  What are the mandatory recordkeeping requirements for
vessels equipped with ballast tanks that enter the waters of the United
States after operating beyond the Exclusive Economic Zone (EEZ)?

     (a) The master, owner, operator, or person in charge of a vessel
entering the waters of the United States after operating beyond the
EEZ, unless specifically exempted by Secs. 151.2010 or 151.2015 must
keep written, records that include the following information (Note:
Ballast tank is any tank or hold that carries ballast water regardless
of design):
* * * * *

     12. Amend Appendix to Subpart D of Part 151 BALLAST WATER REPORTING
FORM AND INSTRUCTIONS FOR BALLAST WATER REPORTING FORM by revising the
second page of the form to read as follows:

BILLING CODE 4910-15-U

[[Page 58392]]

[GRAPHIC]
[TIFF OMITTED] TR21NO01.008



[[Page 58393]]


     Dated: August 21, 2001.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety
and Environmental Protection.
[FR Doc. 01-28162 Filed 11-20-01; 8:45 am]
BILLING CODE 4910-15-C



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